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Home My WebLink About2005-32 CA statewide communities dev authorityRESOLUTION NO. ~~~-- ~.~ RESOLUTION APPROVING, AUTHORIZING AND DIRECTING EXECUTION OF AN AMENDED AND RESTATED JOINT EXERCISE OF POWERS AGREEMENT RELATING TO THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY WHEREAS, the City of Ukiah, California (the "City"), has expressed an interest in participating in the economic development financing programs (the "Programs") in conjunction with the parties to that certain Amended and Restated Joint Exercise of Powers Agreement Relating to the California Statewide Communities Development Authority, dated as of June 1, 1988 (the "Agreement"); and WHEREAS, there is now before this City Council the form of the Agreement; and WHEREAS, the City proposes to participate in the Programs and desires that certain projects to be located within the City be financed pursuant to the Programs and it is in the public interest and for the public benefit that the City do so; and .WHEREAS, the Agreement has been filed with the City, and the members of the City Council of the City, with the assistance of its staff, have reviewed said document; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF UKIAH AS FOLLOWS: Section 1. The Agreement is hereby approved and the Mayor or the City Manager or designee thereof is hereby authorized and directed to execute said document, with such changes, insertions and omissions as may be approved by said Mayor or City Manager, and the City Clerk or such Clerk's designee is hereby authorized and directed to affix the City's seal to said document and to attest thereto. Section 2. The Mayor, the City Manager, the City Clerk and all other proper officers and officials of the City are hereby authorized and directed to execute such other agreements, documents and certificates, and.to perform such other acts and deeds, as may be necessary or convenient to effect the purposes of this Resolution and the transactions herein authorized. Section 3. The City Clerk of the City shall forward a certified copy of this Resolution and an originally executed Agreement to: Angle Sessions Orrick, Herrington & Sutcliffe LLP 400 Capital Mall, Suite 3000 Sacramento, California 95814 DOCSSC1:349443.1 Section 4. This resolution shall take effect immediately upon its passage. · ADOPTED by the City Council of the City of Uldah at a regular meeting of said Council held on the ~ day of ,~--~-~,~2~t~ 2005, by the following vote: NOES: ~ ABSENT: ATTEST: City Clerk DOCSSC 1:349443.1 CITY OF UKIAH, CALIFORNIA, as Seller and CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY, as Purchaser PURCHASE AND SALE AGREEMENT Dated March 2, 2005 Taxable DOCSSF1:7953.97.1 TABLE OF CONTENTS Page o o 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. DEFINITIONS AND INTERPRETATION ...................................................................... 1 AGREEMENT TO SELL AND PURCHASE; CONDITIONS PRECEDENT ................ 2 CONVEYANCE OF VLF RECEIVABLE AND PAYMENT OF FINAL PURCHASE PRICE .......................................................................................................... 3 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER .......................... 3 REPRESENTATIONS AND WARRANTIES OF THE SELLER ................................... 3 COVENANTS OF THE SELLER ..................................................................................... 5 NOTICES OF BREACH ................................................................................................... 7 LIABILITY OF SELLER; INDEMNIFICATION ............................................................ 7 LIMITATION ON LIABILITY ........................................................................................ 7 THE SELLER'S ACKNOWLEDGMENT ........................................................................ 7 NOTICES ........................................................................................................................... 8 AMENDMENTS ............................................................................................................... 8 SUCCESSORS AND ASSIGNS ....................................................................................... 8 THIRD PARTY RIGHTS .................................................................................................. 8 PARTIAL INVALIDITY .................................................................................................. 8 COUNTERPARTS ............................................................................................................ 8 ENTIRE AGREEMENT .................................................................................................... 9 GOVERNING LAW ........................................................................................................ 10 EXHIBIT A- DEFINITIONS ................................................................................................... A-1 EXHIBIT B1 -OPRq'ION OF SELLER'S COUNSEL ....................................... : ................... BI-1 EXHIBIT B2- BRINGDOWN OPINION OF SELLER'S COUNSEL ................................. B2-1 EXHIBIT C1 - CLERK'S CERTIFICATE ............................................................................. CI-1 EXHIBIT C2- SELLER CERTIFICATE ............................................................................... C2-1 EXHIBIT C3 - BILL OF SALE AND BRINGDOWN CERTIFICATE..' .............................. C3-1 EXttlBIT D- IRREVOCABLE INSTRUCTIONS TO CONTROLLER ................................ D-1 EXHIBIT E - RESERVED ....................................................................................................... E-1 EXHIBIT F -ESCROW INSTRUCTION LETTER ................................................................. F-1 Taxable DOCSSF1:795397.1 i -. PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT, dated March 2, 2005 (this "Agreement"), is entered into by and between: (1) "Seller"); and CITY OF UKIAH, a municipal corporation of the State of California (the (2) CALIFORNIA STATEWlDE -COMMUNITIES DEVELOPMENT AUTHORITY, a joint exercise of powers authority organized and existing under the laws of the State of California (the "Purchaser"). RECITALS A. The Seller is the owner of the VLF Receivable (as defined below). B. The Seller is willing to sell, and the Purchaser is willing to purchase, the VLF Receivable upon the terms specified in this Agreement. C. The Purchaser will issue its taxable and tax-exempt notes (the "Notes") pursuant to an Indenture (the "Indenture"), between the Purchaser and Wells Fargo Bank, National Association, as trustee (the "Trustee"), and will use a portion of the proceeds thereof to purchase the VLF Receivable from the Seller. " D. The Purchaser will grant a security interest in such VLF Receivable to the Trustee and each Credit Enhancer to secure the Notes. AGREEMENT NOW, THEREFORE, in consideration of the above Recitals and the mutual covenants herein contained, the parties hereto hereby agree as follows: 1. Definitions and Interpretation. (a) For all purposes of this Agreement, except as otherwise expressly provided herein or unless the context otherwise requires, capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Exhibit A attached hereto and which is incorporated by reference herein. (b) The words "hereof," "herein," "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; section and exhibits references contained in this Agreement are references to sections and exhibits in or to this Agreement unless otherwise specified; and the term "including" shall mean "including without limitation." (c) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time may be amended, modified or supplemented and includes (in the Taxable IX)CSSF1:795397.1 case of agreements or instntments) references to all attachments and exhibits thereto and insmn'nents incorporated therein; and any references to a Person are also to its permitted successors and assigns. 2. Agreement to Sell and Purchase; Conditions Precedent. (a) The Seller agrees to sell, and the Purchaser agrees to purchase, on the Closing Date, for cash paid by' the Purchaser in an amount equal to the amount determined pursuant to Section 3(a) (the 'Final Purchase Price"), which shall be not less than $$240,000.00 '(the "Minimum Purchase Price"), all future right, title and interest of the Seller in and to the "VLF Receivable" as defined in Section 6585(i) of the California Government Code (the "VLF Receivable"), namely, the right to payment of moneys due or to become due to the Seller out of funds payable in connection with vehicle license fees to a local agency pursuant to Section 10754.11 of the California Revenue and Taxation Code. The Purchaser shall pay the Final Purchase Price by transferring such Final Purchase Price directly to the Seller. (b) The performance by the Purchaser of its obligations hereunder shall be conditioned upon: (i) Transaction Counsel receiving on or before the date the Notes are sold (the "Pricing Date"), to be held in escrow until the Closing Date and then delivered to the Purchaser on the Closing Date, the following documents duly executed by the Seller or its counsel, as applicable: (1) an opinion of counsel to the Seller dated the Pricing Date in substantially the form attached hereto as Exhibit B1, (2) certificates dated the Pricing Date in substantially the forms attached hereto as Exhibit C1 and Exhibit C2, (3) irrevocable instructions to the Controller dated as of the Closing Date in substantially the form attached hereto as Exhibit D, (4) this Agreement, (5) a certified copy of the resolution of the Seller's City Council approving this Agreement, the transactions contemplated hereby and the documents attached hereto as exhibits, and (6)an escrow instruction letter in substantially the form attached hereto as Exhibit F; (ii) Transaction Counsel receiving on or before the Closing Date, (1)a bringdown opinion of counsel to the Seller dated as of the Closing Date in substantially the form attached hereto as Exhibit B2, and (2) a bill of sale and bringdown certificate of the Seller (the "Bill of Sale") in substantially the form attached hereto as Exhibit C3; provided that the Purchaser may waive in its sole discretion the requirements of Section 2Co)(ii)(l); and (iii) the Purchaser issuing notes in an amount which will be sufficient to pay the Final Purchase Price. (c) The performance by the Seller of its obligations hereunder shall be conditioned solely upon the Purchaser's payment of the Final Purchase Price as set forth in this Agreement and no other act or omission on the part of the Purchaser or any other party shall excuse the Seller from performing its obligations hereunder. Taxable DOCSSF1:795397.1 2 (d) The Final Purchase Price shall be an amount that satisfies the conditions of Section 2 of the Resolution referred to in Section 2Co)(i)(5) above. 3. Convey~ce of VLF Receivable and Payment of Final Purchase Price. (a) Upon pricing of the Notes by the Purchaser, the Purchaser will inform the 'Seller of the Final Purchase Price, which shall be an amount at least equal to the Minimum Purchase Price, and which shall be determined by the Purchaser based on the final interest rates, costs of credit enhancement and issuance and terms of the Notes. Upon pricing of the Notes, the Purchaser shall deliver a certificate to the Seller indicating the Final Purchase Price to be paid to the Seller on the Closing Date. (b) In consideration of the payment and delivery by the Purchaser to the Seller of the Final Purchase Price, the Seller agrees to (a) transfer, grant, bargain, sell, assign, convey, set over and deliver to the Purchaser, absolutely and not as collateral security, without recourse except as expressly provided herein, and the Purchaser agrees to purchase, accept and receive, the VLF Receivable, and (b) assign to the Purchaser, to the extent permitted by law (as to which no representation is made), all present or future fights, if any, of the Seller to enforce or cause the enforcement of payment of the VLF Receivable pursuant to the Act and other applicable law. 4. Representations and Warranties of the Purcha~_qer. The Purchaser represents and warrants to the Seller that, as of the date hereof, (a) it is duly organized, validly existing and in good standing under the laws of the State of California, Co) it has full power and authority to enter into this Agreement and to perform its obligations hereunder, (c) neither the execution and delivery by the Purchaser of this Agreement, nor the performance by the Purchaser of its obligations hereunder, shall conflict with or result in a breach or default under any of its organizational documents, any law, rule, regulation, jud,~rnent, order or decree to which it is subject or any agreement or instrument to which it is a party, and (d)this Agreement, and its execution, delivery and performance hereof have been duly authorized by it, and this Agreement has been duly executed and delivered by it and constitutes its valid and binding obligation enforceable against it in accordance with the terms hereof, subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' rights generally or the application of equitable principles in any proceeding, whether at law or in equity. 5. Rc0_resentations and Warranties of the Seller. The Seller hereby represents and warrants to the Purchaser, as of the date hereof, as follows: (a) The Seller is a municipal corporation validly existing under the laws and Constitution of the State of California, with full power and authority to execute and deliver this Agreement and to carry out its terms. Co) The Seller has full power, authority and legal right to sell and assign the VLF Receivable to the Purchaser and has duly authorized such sale and assignment to the Purchaser by all necessary action; and the execution, delivery and performance by the Seller of this Agreement has been duly authorized by the Seller by all necessary action. Taxable DOCSSF 1:795397.1 3 (c) This Agreement has been, and as of the Closing Date the Bill of Sale will have been, duly executed and delivered by the Seller and, assuming the due authorization, execution and delivery of this Agreement by the Purchaser, constitutes a legal, valid and binding obligation of the Seller enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors' fights generally or the application of equitable principles in any proceeding, whether at law or in equity. (d) All approvals, consents, authorizations, elections and orders 'of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would adversely affect, the sale by the Seller of the VLF Receivable or the performance by the Seller of its obligations under the Resolution and the Transaction Documents and any other applicable agreements, have been obtained and are in full force and effect. (e) Insofar as it would materially adversely affect the Seller's ability to enter into, carry out and perform its obligations under any or all of the Transaction Documents to which it is a party, or consummate the transactions contemplated by the same, the Seller is not in breach of or default under any applicable constitutional provision, law or administrative regulation of the State of California or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instmment to which it is a party or to which it or any of its property or assets is otherwise subject, and, to the best of the knowledge of the Seller, no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, and the adoption of the Resolution and the execution and delivery by the Seller of the Transaction Documents to which it is a party, and compliance by the Seller with the provisions thereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the Seller a breach of or default under any agreement or other instrument to which the Seller is a party or by which it is bound or any existing law, regulation, court order or consent decree to which the Seller is subject. (f) To the best of the knowledge of the Seller, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or threatened in any way against the Seller affecting the existence of the Seller or the titles of its City Council members or officers to their respective offices, or seeking to restrain or to enjoin the sale of the VLF Receivable or to direct the application of the proceeds of/he sale thereof, or in any way contesting or affecting the validity or enforceability of any of the Transaction Documents or any other applicable agreements or any action of the Seller contemplated by any of said documents, or in any way contesting the powers of the Seller or its authority with respect to the Resolution or the Transaction Documents to which the Seller is a party or any other applicable agreement, or any action on the part of the Seller contemplated by the Transaction Documents, or in any way seeking to enjoin or restrain the Seller from selling the VLF Receivable or which if determined adversely to the Seller would have an adverse effect upon the Seller's ability to sell the VLF Receivable, nor to the knowledge of the Seller is there any basis therefor. Taxable DOCSSF1:795397.1 4 (g) Prior to the sale of the VLF Receivable to the Purchaser, the Seller was the sole owner of the VLF Receivable, and has such right, title and interest as provided in the Act. From and after the conveyance of the VLF Receivable by the Seller to Purchaser on the Closing Date, the Seller shall have no interest in the VLF Receivable. Except as provided in this Agreement, the Seller has not sold, transferred, assigned, set over or otherwise conveyed any fight, title or interest of any kind whatsoever in all or any portion of the VLF Receivable, nor has the Seller created, Or to the knowledge of the Seller permitted the creation of, any lien, pledge,. security interest or any other encumbrance (a "Lien") thereon. Prior to the sale of the VLF Receivable to the Purchaser, the Seller held title to the VLF Receivable free and clear of any Liens. As of the Closing Date, this Agreement, together with the Bill of Sale, constitutes a valid sale to the Buyer of the Seller's right, title and interest in and to the VLF Receivable. (h) The Seller acts solely through its authorized officers or agents. (i) The Seller maintains records and books of account separate from those of the Purchaser. (j) The Seller maintains its respective assets separately from the assets of the Purchaser (including through the maintenance of separate bank accounts); the Seller's funds and assets, and records relating thereto, have not been and are not commingled with those of the Purchaser. (k) The Seller's principal place of business and chief executive office is located at 300 Seminary Avenue, Ukiah, CA 95482. (1) The Seller has received reasonably equivalent value for the VLF Receivable. (m)The Seller does not act as an agent of the Purchaser in any capacity, but instead presents itself to the public as an entity separate from the Purchaser. (n) The Seller has not guaranteed and shall not guarantee the obligations of the Purchaser, nor shall it hold itself out or permit itself to be held out as having agreed to pay or as being liable for the debts of the Purchaser; and the Seller has not received nor shall the Seller accept any credit or financing from any Person who is relying upon the availability of the assets of the Purchaser to satisfy the claims of such creditor. (o) All transactions between or among the Seller, on the one hand, and the Purchaser on the other hand (including, without limitation, transactions governed by contracts for services and facilities, such as payroll, purchasing, accounting, legal and personnel services and office space), whether existing on the date hereof or entered into after the date hereof, shall be on terms and conditions (including, without limitation, terms relating to amounts to be paid thereunder) which are believed by each such party thereto to be both fair and reasonable and comparable to those available on an arms-length basis from Persons who are not affiliates. Taxable DOCSSF 1:795397.1 5 6. Covenants of the Seller. (a) The Seller shall not take any action or omit to take any action which adversely affect the interests of the Purchaser in the VLF Receivable and in the proceeds thereof. The Seller shall not take any action or omit to take any action that shall adversely affect the ability of the Purchaser, and any assignee of the Purchaser, to receive payments made under the Act. (b) The Seller shall not take any action or omit to take any action that would impair the validity or effectiveness of the Act, nor, without the prior written consent of the Purchaser or its assignee, amend, modify, terminate, waive or surrender, or agree to any amendment, modification, termination, waiver or surrender of, the terms of the Act, or waive timely performance or observance under the Act, in each case if the effect thereof would be materially adverse to the Purchaser or to the Noteholders or any Credit Enhancer as assignees of the Purchaser. Nothing in this agreement shall impose a duty on the Seller to seek to enforce the Act or to seek enforcement thereof by others, or to prevent others from modifying, terminating, dischar~ng or impairing the validity or effectiveness of the Act. (c) Upon request of the Purchaser or its assignee, (i) the Seller shall execute and deliver such further instruments and do such further acts (including being named as a plaintiff in an appropriate proceeding) as may be reasonably necessary or proper to carry out more effectively the purposes and intent of this Agreement, and (ii) the Seller shall take all actions necessary to preserve, maintain and protect the title of the Purchaser to the VLF Receivable, provided that such.acts shall not impose any additional cost on the Seller that is not reimbursed. (d) On or before the Closing Date, the Seller shall send (or cause to be sent) an irrevocable instructiOn to the Controller pursuant to Section 6588.5(c) of California Government Code to cause the Controller to disburse all payments of the VLF Receivable to the Trustee, together with notice of the sale of the VLF Receivable to the Purchaser and the assignment of all or a portion of such assets by the Purchaser to the Trustee. Such notice and instructions shall be in the form of Exhibit D hereto. The Seller shall not take any action to revoke or which would have the effect of revoking, in whole or in part, such instructions to the Controller. The Seller hereby relinquishes and waives any control over the VLF Receivable, any authority to collect the VLF Receivable, and any power to revoke or amend the instructions to the Controller contemplated by this paragraph. The Seller shall not rescind, amend or modify the instruction described in the first sentence of this paragraph. The Seller shall cooperate with the Purchaser or its assignee in giving instructions to the Controller if the Purchaser or its assi'gnee transfers the VLF Receivable. In the event that the Seller receives any proceeds of the VLF Receivable, the Seller shall hold the same in trust for the benefit of the Purchaser and the Trustee and each Credit Enhancer, as assignees of the Purchaser, and shall promptly remit the same to the Trustee. (e} The Seller hereby covenants and agrees that it will not at any time institute against the Purchaser, or join in instituting against the Purchaser, any bankruptcy, reorganization, arrangement, insolvency, liquidation, or similar proceeding under any United States or state bankruptcy or similar law. (f) The financial statements and books and records of the Seller prepared after the Closing Date shall reflect the separate existence of the Purchaser. Taxable DOCSSF1:795397.1 6 (g) The Seller shal1 treat the sale of the VLF Receivable as a sale for regulatory and accounting purposes. (h) From and after the date of this Agreement, the Seller shall not sell, transfer, assign, set over or otherwise convey any right, title or interest of any kind whatsoever in all or any portion of the VLF Receivable, nor shall the Seller create, or to the knowledge of the Seller permit the creation of, any Lien thereon. 7. Notices of Breach. (a) Upon discovery by the Seller or the Purchaser that the Seller has breached any of its covenants or that any of the representations or warranties of the Seller or the Purchaser are materially false or misleading, in a manner that materially and adversely affects the value of the VLF Receivable, the discovering party shall give prompt written notice thereof to the other party and to the Trustee, as assignee of the Purchaser, who shall, pursuant to the Indenture, promptly thereafter notify each Credit Enhancer and the Rating Agencies. (b) The Seller shall not be liable to the Purchaser, the Trustee, the Noteholders, or any Credit Enhancer for any loss, cost or expense resulting solely from the failure of the Trustee, any Credit Enhancer or the Purchaser to promptly notify the Seller upon the discovery by an authorized officer of the Trustee, any Credit Enhancer or the Purchaser of a breach of any covenant or any materially false or misleading representation or warranty contained herein. 8. Liability of Seller; Indemnification. The Seller shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Seller Under this Agreement. The Seller shall indemnify, defend and hold harmless the Purchaser, the Trustee and each Credit Enhancer, as assignees of the Purchaser, and their respective officers, directors, employees and agents from and against any and all costs, expenses, losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon any such Person by the Seller's breach of any of its covenants contained herein or any materially false or misleading representation or warranty of the Seller contained herein. Notwithstanding anything to the contrary herein, the Seller shall have no liability for the payment of the principal of or interest on the Notes issued by the Purchaser. 9. Limitation on Liability. (a) The Seller and any officer or employee or agent of the Seller may rely in good faith on the advice of counsel or on any document of any kind, prima facie properly executed and submitted by any Person respecting any matters arising hereunder. The Seller shall not be under any obligation to appear in, prosecute or defend any legal action regarding the Act that is unrelated to its specific obligations under this Agreement. (b) No officer or employee of the Seller shall have any liability for the representations, warranties, covenants, agreements or other obligations of the Seller hereunder or in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the Seller. Taxable DOCSSF1:795397. l 7 10. The Seller's Acknowled~nent. The Seller hereby agrees and acknowledges that the Purchaser intends to assign and grant a security interest in all or a portion of (a) its rights hereunder and (b) the VLF Receivable, to the Trustee and each Credit Enhancer pursuant to the Indenture. The Seller further agrees and acknowledges that the Trustee, the Noteholders, and each Credit Enhancer have relied and shall continue to rely upon each of the foregoing representations, warranties and covenants, and further agrees that such Persons are entitled so to rely thereon. Each of the above representations, warranties and covenants shall survive any assignment and grant of a security interest in all or a portion of this Agreement or the VLF Receivable to the Trustee and each Credit Enhancer and shall continue in full force and effect, notwithstanding any subsequent termination of this Agreement and the other transaction documents. The above representations, warranties and covenants shall inure to the benefit of the Trustee and each Credit Enhancer. 11. Notices. All demands upon or, notices and communications to, the Seller, the Purchaser, the Trustee or the Rating Agencies under this Agreement shall be in writing, personally delivered or mailed by certified mail, return receipt requested, to such party at the appropriate notice address,.and shall be deemed to have been duly given upon receipt. 12. Amendments. This Agreement may be amended by the Seller and the Purchaser, with (a) the consent of the Trustee, Co) the consent of each Credit Enhancer, and (c) a Rating Agency Confirmation, but without the consent of any of the Noteholders, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement. Promptly after the execution of any such amendment, the Purchaser shall fimfish written notification of the substance of such amendment to the Trustee and to the Rating Agencies. 13. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Seller, the Purchaser and their respective successors and permitted assigns. The Seller may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Purchaser. Except as specified herein, the Purchaser may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Seller. 14. Third Party_ Rights. The Trustee and each Credit Enhancer are express and intended third party beneficiaries under this Agreement. Nothing expressed in or to be implied from this Agreement is intended to give, or shall be construed to give, any Person, other than the parties hereto, the Trustee and each Credit Enhancer, and their permitted successors and assigns hereunder, any benefit or legal or equitable right, remedy or claim under or by virtue of this Agreementor under or by virtue of any provision herein. 15. Partial Invalidity. If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. Taxable DOCSSF1:795397.1 8 16. Counterparts. This Agreement may be executed in any number of identical counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a complete, executed original for all purposes. 17. Entire A~eement. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all oral or written agreements or understandings between the parties as to the. subject matter hereof. Taxable DOCSSF1:795397.1 9 18. Governing Law. This Agreement shall be govemed by and construed in accordance with the laws of the State of California. 'IN WITNESS WHEREOF, the Seller and the Purchaser have caused this Purchase and Sale Agreement to be duly executed as of the date first written above. CITY OF UKIAH, as Seller By: ' CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY, as Purchaser By: Member Taxable DOCSSF1:795397.1 10 EXHIBIT A DEFINITIONS For all purposes of this Agreement, except as otherwise expressly provided herein or unless the context otherwise requires, capitalized terms not otherwise defined herein shall have the meanings set forth below. "Act" means Section 10754.11 of the California Revenue and Taxation Code. "Bill of Sale" has the meaning give to that term in Section 2(b)(ii) hereof. "Credit Enhancer" means any municipal bond insurance company, bank or other financial institution or organization which is performing in alt material respects its obligations under any Credit Support Instrument for some or all of the Notes. "Credit Support Instrument" means a. policy of insurance, a letter of credit, a stand-by Purchase agreement, revolving credit agreement or other credit arrangement pursuant to which a Credit Enhancer provides credit or liquidity support with respect to the payment of interest, principal or the purchase price of the Notes. "Closing Date" means the date the Notes are issued. "Controller" means the Controller of the State. "Final Purchase Price" has the meaning ascribed thereto in Section 2. '~linimm Purchase Price" has the meaning ascribed thereto in Section 2. "Noteholder" means, with respect to any Note, the person in whose name such Note is registered. "Oustanding" has the meaning given to that term in the Indenture. "Pricing Date" means the date the Notes are sold. "Rating Agency,' means any nationally recognized rating agency then providing or maintaining a rating on the Notes at the request of the Purchaser. "Rating Agency Confirmation" means written confirmation from each Rating Agency that any proposed action will not, in and of itself, cause the Rating Agency to lower, suspend or withdraw the rating then assigned by such Rating Agency to any Outstanding Notes. ''Resolution" means the resolution adopted by the City Council approving the sate of the VLF Receivable. "State" means the State of California. "Transaction Counsel" means Orrick, Herrington & Sutcliffe LLP. Taxable DOCSSF1:795397.1 A- 1 and the Notes. '°I'ransaction Documents" mean this Agreement, the Bill of Sale, the Indenture, Taxable IX)CSSF1:795397.1 A-2 OPINION OF COUNSEL to CITY OF UKIAH EXHIBIT BI March 2, 2005 California Statewide Communities Development Authority Sacramento, California Wells Fargo Bank, National Association Los Angeles, California Re: Sale of VLF Receivable Ladies & Gentlemen: This Office acted as counsel for the City of Ukiah (the "Seller") in connection with the adoption of that certain resolution (the "Resolution") of the City Council of the Seller (the "Governing Body") pursuant to which the Seller authorized the sale to the California Statewide Communities Development Authority (the "Purchaser") of the Seller's "VLF Receivable", as defined in and pursuant to the Purchase and Sale Agreement dated March 2, 2005 (the "Sale Agreement') between the Seller and the Purchaser. In connection with these transactions, the Seller has issued certain Irrevocable lmtmctions For Disbursement of the Seller's VLF Receivable to the Controller of the State of California (the "Disbursement Instructions" and collectively with the Sale Agreement, the '~rransacfion Documents"). Unless the context otherwise requires, capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Sale Agreement. I have examined and am familiar with those documents relating to the existence, organization, and operation of the Seller, the Resolution, the Transaction Documents and such certified proceedings, certifications of officers of the Seller and others, and such other agreements, instruments and documents, and have satisfied myself as to such other matters, as I deem necessary in order to render the following opinions. Based upon the foregoing, I am of the opinion that: 1. The Seller is a municipal corporation of the State of California, duly organized and validly existing pursuant to the laws and the Constitution of the State of California. Taxable DOCSSF1:795397.1 B1-1 2. The Seller has full power and authority to adopt the Resolution and to execute and deliver the Transaction Documents. 3. The Seller has duly authorized and executed the Transaction Documents and, assuming delivery, each Transaction Document will be legal, valid, and binding against the Seller, and enforceable against the Seller in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or laws relhting to or affecting creditors' rigfits, and the application of equitable principles and the exercise of judicial discretion in appropriate areas. 4. The Resolution was duly adopted at a meeting of the Governing Body which was called and held pursuant to law with all public notice required by law and at which a quorum was present and acting when the Resolution was adopted. 5. The Resolution is in full force and effect and has not been amended, modified, supplemented or rescinded. 6. To the best of my knowledge, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or threatened in any way against the Seller affecting the' existence of the Seller or the titles of its Governing Body members or officers to their respective offices, or seeking to restrain or to enjoin the sale of the VLF Receivable or to direct the application of the proceeds of the sale thereof, or in any way contesting or affecting the validity or enforceability of the Resolution, the Transaction Documents or any other applicable agreements or any action of the Seller contemplated by any of said documents, or in any way contesting the powers of the Seller or its authority with respect to the Resolution or the Transaction Documents or any other applicable agreement, or any action on the part of the Seller contemplated by any of said documents, or in any way seeking to enjoin or restrain the Seller from selling the VLF Receivable or which if determined adversely to the Seller would have a material and adverse effect upon the Seller's ability to sell the VLF Receivable, nor to my knowledge is there any basis therefor. 7. Insofar as it would materially adversely affect the Seller's ability to enter into, carry out and perform its obligations under any or all of the foregoing agreements, or consummate the transactions contemplated by the same, the Seller is not in breach of or default under any applicable constitutional provision, law or administrative regulation of the State or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which it is a party or to which it or any of its property or assets is otherwise subject, and, to the best of my knowledge, no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, and the adoption of the Resolution and the execution and delivery by the Seller of the Transaction Documents, and compliance with the provisions thereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the Seller a breach of or default under any agreement or other insmunent to which the Seller is a party or by which it is bound or any existing law, regulation, court order or consent decree to which the Seller is subject. Taxable DOCSSF1:795397.1 B1-2 8. Prior to the sale of the VLF Receivable to the Purchaser, the Seller was the sole owner of the VLF Receivable, and has such right, title and interest as provided in the Act. From and after the conveyance of the VLF Receivable by the Seller to Purchaser on the Closing Date, the Seller shall have no interest in the VLF Receivable. Except as provided in the Sale Agreement, the Seller has not sold, transferred, assigned, set over or otherwise conveyed any right, title or interest of any kind whatsoever in all or any portion of the Seller's VLF Receivable, nor has the Seller created, or to my knowledge permitted the creation of, any Lien thereon. Prior to the sale of the VLF Receivable to the Purchaser, the Seller held title to the VLF Receivable free and clear of any Liens. 9. To the best of my knowledge, all approvals, consents, authorizations, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would materially adversely affect, the sale by the Seller of the VLF Receivable or the performance by the Seller of its obligations under the Resolution and the Transaction Documents and any other applicable agreements, have been obtained and are in full force and effect. 10. The Disbursement Instructions are irrevocable by the Seller, and comply with the requirements of Section 6588.5(c) of the California Government Code. Each Credit Enhancer, the underwriters of the Notes and Transaction Counsel may rely upon this legal opinion as if it were addressed to them. Very truly yours, By: Taxable DOCSSF1:795397.1 B1-3 EXHIBIT B2 OPINION OF COUNSEL to CITY OF UKIAH · [Closing Date] California Statewide Communities Development Authority Sacramento, California Wells Fargo Bank, National Association Los Angeles, California Re: Sale of VLF Receivable (Bringdown Opinion} Ladies & Gentlemen: Pursuant to that certain Purchase and Sale Agreement dated March 2, 2005 (the "Sale Agreement") between the City of Ukiah (the "Seller") and the California Statewide Communities Development Authority (the "Purchaser"), this Office delivered an opinion (the "Opinion") dated the Pricing Date (as defined in the Sale Agreement) as counsel for the Seller in connection with the sale of the Seller's VLF Receivable (as defined in the Sale Agreement), the execution of documents related thereto and certain other related matters. I confirm that you may continue to 'rely upon the Opinion as if it were dated as of the date hereof. Each Credit Enhancer, the underwriters of the Notes and Transaction Counsel may rely upon this legal opinion as if it were addressed to them. This letter is delivered to you pursuant to Section 2Co)(ii)(1) of the Sale Agreement. Very truly yours, By: .Seller's Counsel Taxable DOCSSF 1:795397. I B2-1 EXHIBIT C1 CLERK'S CERTIFICATE CERTIFICATE OF THE CITY CLERK OF CITY OF UKIAH, CALIFORNIA Dated: March 2, 2005 The undersigned City Clerk of the City of Ukiah, Cal(fomia, do hereby certify that the foregoing is a full, tree and correct copy of Resolution No.~~ ,,~ duly adopted at a regular meeting of the City Council of said Seller duly and regularly and legally held at the regular meeting place thereof on the ,~P'g. day of ~~~ , 2005, of which meeting all of the members of said City Council had due notice and at which all members thereof were present, and that at said meeting said resolution was adopted by the following vote: NOES: ~ ABSENT: ~ ABSTAIN: ~ I do hereby further certify that I have carefully compared the same with the original minutes of said meeting on file and of record in my office and that said resolution is a full, tme and correct copy of the original resolution adopted at said meeting and entered in said minutes and that said resolution has not been amended, modified or rescinded since the date of its adoption and the same is now in full force and effect. I do hereby further certify that an agenda of said meeting was posted at least 72 hours before said meeting at a location in the City of Ukiah, California freely accessible to members of the public, and a brief general description of said resolution appeared on said agenda. WITNESS my hand as of the day and year first above written. City Clerk of the City of Ukiah, California ~ Taxable DOCSSF1:795397.1 CI-1 EXHIBIT C2 SELLER CERTIFICATE SELLER CERTIFICATE Dated: March 2, 2005 We, the undersigned officers of,the City of Ukiah (the "Seller"), State of California, holding the respective offices herein below set opposite our signatures, do hereby certify that on the date hereof the following documents (the "Transaction Documents'') were officially executed and delivered by the Authorized Officer or Officers whose names appear on the executed copies thereof, to wit: Document 1-. Purchase and Sale Agreement, dated March 2, 2005 (the "Sale Agreement"), between the Seller and the California Statewide Communities Development Authority (the "Purchaser") 2. Irrevocable Instructions For Disbursement of Seller's VLF Receivable to the Controller of the State of California dated the Closing Date Capitalized terms used herein and not defined herein shall have the meaning given such terms in the Sale Agreement. We further certify as follows: 1. At the time of signing the Transaction Documents and the other documents and opinions related thereto, we held said offices, respectively, and we now hold the same. 2. The representations and warranties contained in the Transaction Documents are true and correct as of the date hereof in all material respects. o The City Council duly adopted its resolution (the "Resolution") approving the sale of the Seller's VLF Receivable at a meeting of the City Council which was duly called and held pursuant to law with all public notice required by law and at which a quorum was present and acting when the Resolution was adopted, and such Resolution is in full force and effect and has not been amended, modified, supplemented or rescinded. . To the best knowledge of the undersigned, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or threatened, in any way against the Seller affecting the existence of the Seller or the titles of its City Council members or officers to their respective offices, or seeking to restrain or to enjoin the sale of the Seller's VLF Receivable or to direct the application thereof of the Taxable DOCSSF1:795397.1 C2-1 . 6, . proceeds of the sale thereof, or in any way contesting or affecting the validity or enforceability of the Resolution, the Transaction Documents, the Indenture, the Notes, or any other applicable agreements or any. action of the Seller contemplated by any of said documents, or in any way contesting the powers of the Seller or its authority with respect to the Resolution or the Transaction Documents or any other applicable agreement, or any action on the part of the Seller contemplated by any of said documents, or which if determined adversely to the Seller would have a material and adverse effect upon the Seller's ability to sell the Seller's VLF Receivable, nor to our knowledge is there any basis therefor. Insofar as it would materially adversely affect the Seller's ability to enter into, carry out and perform its obligations under any or all of the Transaction Documents, or consummate the transactions contemplated by the same, the Seller is not in breach of or default under any applicable constitutional provision, law or administrative regulation of the State of California or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instnnuent to which it is a party or to which it or any of its property or assets is otherwise subject, and, to the best of our knowledge, no event has occurred and is continuing which with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument, and the adoption of the Resolution and the execution and delivery by the Seller of the Transaction Documents, and compliance by the Seller with the provisions thereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the Seller a breach of or default under any agreement or other insmnuent to which the Seller is a party or by which it is bound or any existing law, regulation, court order or consent decree to which the Seller is subject. Prior to the sale of the VLF Receivable to the Purchaser, the Seller was the sole owner of the VLF Receivable, and has such right, title and interest as provided in the Act. From and after the conveyance of the VLF Receivable by the Seller to Purchaser on' the Closing Date, the Seller shall have no interest in the VLF Receivable. Except as provided in the Sale Agreement, the Seller has not sold, transferred, assigned, set over or otherwise conveyed any right,' title or interest of any kind whatsoever in all or any portion of the Seller's VLF Receivable, nor has the Seller created, or to our knowledge permitted the creation of, any Lien thereon. Prior to the sale of the VLF Receivable to the Purchaser, the Seller held title to the VLF Receivable free and clear of any Liens. All approvals, consents, authorizations, elections and orders of or filings or'registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to or the absence of which would materially adversely affect, the sale by the Seller of the Seller's VLF Receivable or the performance by the Seller of its obligations under the Resolution and the Transaction Documents and any other applicable agreements, have been obtained and are in full force and effect. Taxable DOCSSF1:795397.1 C2-2 Dated as of the date first above written. Name, Official Title Mike McCann, Finance Director Candace Horsley, City Manager Si_maature genuine. I HEREBY CERTIFY that the signatures of the officers named above are Dated as of the date first above written. By: City Clerk of the City ofUkiah, Califomia Taxable DOCSSF1:795397.1 C2-3 EXHIBIT C3 BILL OF SALE AND BRINGDOWN CERTIFICATE BILL OF SALE AND BRINGDOWN CERTIFICATE In consideration of the payment and delivery by the California Statewide Communities Development Authority (the "Purchaser") to the undersigned (the "Seller") of $[Final Purchase Price] (the "Final Purchase Price"), ~d pursuant to terms and conditiohs of the Purchase and Sale Agreement (the "Sale Agreement'), dated March 2, 2005, between the Seller and the Purchaser, the Seller does hereby (a) transfer, grant, bargain, sell, assign, convey, set over and deliver to the Purchaser, absolutely and not as collateral security, without recourse except as expressly provided in the Sale Agreement, the VLF Receivable as defined in the Sale Agreement (the "VLF Receivable"), and (b) assign to the Purchaser, to the extent permitted by law (as to which no representation is made), all present or furore fights, if any, of the Seller to enforce or cause the enforcement of payment of the VLF Receivable pursuant to the Act (as defined in the Sale Agreement) and other applicable law. The Seller hereby acknowledges receipt of the Final Purchase Price. The Seller hereby certifies that the representations and warranties of the Seller set forth in the Certificate of the City Clerk dated March 2, 2005, the Seller Certificate dated March' 2, 2005, and in the Transaction Documents (as such terms are defined in the Sale Agreement) are tree and correct in all material respects as of the date hereof (except for such representations and warranties made as of a specified date, which are tree and correct as of such date). Dated: [Closing Date]~ CITY OF UKIAH By: Authorized Officer Taxable DOCSSF1:795397.1 C3-1 EXHIBIT D IRREVOCABLE INSTRUCTIONS TO CONTROLLER IRREVOCABLE INSTRUCTIONS FOR DISBURSEMENT OF VLF RECEIVABLE OF CITY OF UKIAH ,2005 Office of the Controller State of California P.O. Box 942850 Sacramento, California 94250-5872 Re.' Notice of Sale of VLF Receivable by the City of Uldah and Wiring Instructions Information Form Dear Sir or Madam: Pursuant to Section 6588.5(c) of the California Government Code, City of Ukiah (the "Seller") hereby notifies you of the sale by the Seller, effective as of the date of these instructions written above, of all fight, title and interest of the Seller in and to the "VLF Receivable" as defined in Section 65850) of the California Government Code (the "VLF Receivable"), namely, the fight to payment of moneys due or to become due to the Seller out of funds payable in connection with vehicle license fees to a local agency pursuant to Section 10754.11 of the California Revenue and Taxation Code. By resolution, the Seller's City Council authorized the sale of the VLF Receivable to the California Statewide Communities Development Authority (the "Purchaser") pursuant to a Purchase and Sale Agreement, dated March 2, 2005 and a Bill of Sale, dated [Closing Date]. The VLF Receivable has been pledged and assigned by the Purchaser pursuant to an Indenture, dated March 2, 2005 (the "Indenture") between the Purchaser and Wells Fargo Bank, National Association, as Trustee (the "Trustee"). The Seller hereby irrevocably requests and directs that, commencing as of the date of these instructions written above, all payments of the VLF Receivable (and documentation related thereto) be made directly to Wells Fargo Bank, National Association, as Trustee, in accordance with the wire instructions and bank routing information set forth below. Please note that the sale of the FLF Receivable by the Seller is irrevocable and that (i) the Seller has no power, to revoke or amend these instructions at any time, (ii) the Purchaser shall have the power to revoke or amend these instructions only if there are no notes of the Purchaser outstanding under the Indenture and the Indenture has been discharged, and (iii) so long as the Indenture has not been discharged, these instructions cannot be revoked or amended by the Purchaser without the consent of the Trustee. Taxable DOCSSF1:795397.1 D- 1 Bank Name: Bank ABA Routing #: Bank Account #: Bank Account Name: Further Credit To: Bank Address: Bank Telephone #: Bank Contact Person: Wells Fargo N.A. 121000248 OOO1038377 Corporate Trust Clearing CSCDA VLF #16914200 Wells Fargo Bank 707 Wilshire Blvd., 17 Floor Los Angeles, CA 90017 (213) 614-3353 Robert Schneider Please do not hesitate to call the undersigned if you have any questions regarding this transaction. Thank you for your assistance in this matter. Very truly yours, CITY OF UKIAH Authorized Officer Taxable DOCSSF1:795397~1 D-2 EXHIBIT E RESERVED Taxable DOC$SF1:795397.1 E-1 EXHIBIT F ESCROW INSTRUCTION LETTER PARTICIPATION AGREEMENT AND ESCROW INSTRUCTION LETTER March 2, 2005 California Statewide Communities Development Authority 1100 K Street Sacramento, CA 95814 Re: VLF Receivable Financing Dear Sir or Madam: The City of Ukiah (the "Seller") hereby notifies you of its agreement to participate in the California Statewide Communities Development Authority VLF Receivable Financing. By adoption of a resolution (the "Resolution") authorizing the sale of its VLF Receivable, the Seller's City Council has agreed to sell to the Califomia Statewide Communities Development Authority, for a purchase price that meets the conditions set forth in the Resolution, all of its right, title and interest in the VLF Receivable. and executed Sutcliffe LLP, Enclosed herewith are the following documents which have been duly approved by the Seller and which are to be held in escrow by 'Orrick, Herrington & as transaction counsel ('°I'ransaction Counsel"), as instructed below: 1. Certified copy of the Resolution, together with a certificate of the City Clerk, dated March 2, 2005; 2. the Seller Certificate, dated March 2, 2005; 3. the Opinion of Seller's Counsel, dated March 2, 2005; 4. the Purchase and Sale Agreement, dated March 2, 2005; and 5. the Irrevocable Instmctions to the Controller, undated. The foregoing documents are to be held in escrow by Transaction Counsel and shall be delivered only upon payment to the Seller on or before April 29, 2005, of the Final Purchase Price (as defined in the Purchase and Sale Agreement) that meets the conditions of the Resolution. Upon such payment, Transaction Counsel is hereby authorized to fill in the closing date on the Irrevocable Instructions to the Controller. Taxable F-1 DOCSSF1:795397.1 If the Final Purchase Price meeting the conditions of the Resolution is not paid to the Seller on or before April 29, 2005, this agreement shall terminate and Transaction Counsel shall return all of the enclosed documents to the Seller. Very truly yours, CITY OF UKIAH By: EnclOsures cc: Orrick, Herrington & Sutcliffe LLP Taxable F-2 IX)CSSF1:795397.1 AMENDED AND RESTATED · JOINT EXERCISE OF POWERS AGREEMENT RELATING TO THE CALIFORNIA STATE'WIDE COMMUNITIES DEVELOPMENT AUTHORITY ~ THIS AGREEMENT, dated as of June 1, 1988, by and among the parties, executing this Agreement (all such .parties, except those which have withdrawn in accordance with Section 13 hereof, being herein referred to as the "Program Participants'): WITNESSETH .. ** WHEREAS, pursuant to Title 1, Division 7, Chapter.5 of the Government Code of the State of California (the 'Joint Exercise of Powers Act'), two or more public agencies may by agreement ~ointly exercise any power common to the contracting parties; and WHEREAS, each of the Program Participants is a 'public.agency' as that term is defined in Section 6500 of the Government Code of the State of California, and WHEREASi each of the Program Participants is empowered to promote economic development,.including, without limitation, the promotion of opportunities for the creation or retention of employment, ~the stimulation of economic activity, and the increase of the tax base, within its boundaries; and WHEREAS, a public entity established pursuant to the Joint Exercise of Powers Act is empowered to issue industrial development-bonds pursuant to the California Industrial Development Financing Act (Title 10 (commencing with Section 91500 of the Government Code of the State of California)).(the 'Act') and to otherwise undertake [inancing programs under the Joint Exercise of Powers Act or'other applicable provisions of law to promote economic development through the issuance of bond's, notes, or other evidences of indebtedness, or certificates of .participation in leases or other.agreements (all such instruments being herein collectively referred to as 'Bonds"); and WHEREAS, in order to promote economic development within the State of California, the COunty Supervisors Association of California ('CSAC'), together with the California Manufacturers Association, has established the Bonds for Industry program (the 'Program'). WHEREAS, in furtherance of the Program, certain California counties (collectively, the 'Initial Participants-) have entered into that certain Joint Exercise of Powers Agreement dated as of November 18, 1987 (the' '~nitial Agreement"), pursuant to which the Cal.ifornia Counties Industrial Development Authority has been established as a separate entity under the Joint Exercise of Powers Act for the purposes and with the powers specified, in the Initial Agreement; and WHEREAS, the League of California Cities ('LCC") has determined to join as a sponsor of the Program and to actively participate in the administration of the Authority; and WHEREAS, the Initial Participants have determined to specifically authorize the Authority to issue Bonds pursuant .to Article 2 of the Joint Exercise of Powers Act ("Article 2") and Article 4 of the Joint Exercise of Powers Act ("Article 4"), as well as may be.authorized by the Act or. other applicable law; and WHEREAS, the Initial Participants desire to rename the California Counties Industrial Development. Authority to better reflect the additional Sponsorship of the Program;.and WHEREAS, each of the Initial Participants has determined that it is in the Public interest'of.the citizens within its boundaries, and to the benefit of such Initial Participant and the area and persons served by such Initial Participant, to amend and restate in its entirety the Initial Agreement in.order to implement' the provisions set forth above; and WHEREAS, it is the desire of the Program Participants to use a public entity established pursuant to the Joint Exercise of Powers Act to undertake projects within their respective jurisdictions that may be financed with Bonds issued pursuant to the Act, Article 2, Article 4, or other applicable provisions of law; and WHEREAS, the projects undertaken will result in significant public benefits, including those public benefits set fort'h in Section 91502.1 of the Ac't, an increased level of economic activity, or an increased tax ha'se, and will. therefore serve and be of benefit to the inhabitants of the jurisdictions of the Program Participants; NOW, THEREFORE, the Program Participants, for and in consideration of the mutual promises and agreements herein contained, do agree to restate and amend the Initial Agreement in its entirety to provide as follows'. Section 1. Purpose. This Agreement is made pursuant to the provisions.of the Joint Exercise of Powers Act, relating to the joint exercise of powers common to public agencies, in this case being the Program Participants. The Program Participants each possess the powers referred to in the recitals hereof. The purpose of this Agreement is to establish an agency for, and with the purpose of., issuing Bonds to finance projects within the territorial limits of the Program Participants Pursuant to the Act, Article 2, Article 4, or other appliable provisions of law; provided; however that nothing in this Agreement shall be construed as a limitation on the rights of the. Program Participants to pursue economic development outside of this Agreement, including'the rights to 'issue Bonds through industrial development authorities under the Act, or a~ otherwise permitted by law. Within the various jurisdictions of the Program' Participants such purpose will be accomplished and said powers. exercised in the manner hereinafter set forth. Section Z. Term. This Agreement shall become effective as of the date hereof and shall continue in full force and effect for a period of forty'(40) years from the date hereof, or unti~ such time as it. is terminated in writing by all. the Program Participants; provided, however, that this Agreement shall not terminate Or be terminated until the date on which all Bonds or other indebtedness issued or caused to be issued by the .Authority shall have been retired, or full provision shall have been made for their retirement, including interest until their retirement date.. Section 3. Authority. A. CREATION AND POWERS OF AUTHORITY. (1) Pursuant to the Joint Exercise of Powers Act, there is hereby created a public entity to be known as the' 'California Statewide Communities Development Authority' (the 'Authority"), and said Authority shall be a public entity separate and apart from the Program Participants. Its debts, liabilities and obligations do not constitute debts, liabilities or obligations of any party to this Agreement. B. COMMISSION.. '" The Authority shall be administered by a Commission (the "Commission") which shall consist of seven members, each serving in his or her individual capacity as a member of the Com~ssion. The Co~mission shall be the administering agency of this Agreement, and, as such, shall be vested with the powers set forth herein,, and shall execute and administer ~his Agreement in accordance with the purposes and functions provided herein. Four members of the Commission shall be appointed by ........ the_9_ov_e r ning_~ .................. ~£~SAC-and.-thr~e-memhers_.o/__the_Commis~ion ....... shall be appointed by the governing body of LCC. Initial members of the Commission shall serve a term ending June 1, ' 1991. Successors to such members shall be selected in the ~ manner in which the respective initial member was selected and shall serve a term of three years. Any appointment to fill an unexpired term, however, shall be for such unexpired term.. The term of office specified above shall be applicable'%nless the term of office of the respective member is terminated as hereinafter provided, and provided-that the term of any member shall not expire until a successor thereto has bee~ appointed . as provided herein. Each of CSAC and'LCC may appoint an alternate member of the commission for each member of the Commission which it appoints. Such alternate membe~ may act as a member of the Commission in place of and during the absence-or disability of such regularly appointed member. All references in this Agreement to any.member of the Commission shall be deemed to refer to and include the applicable alternate member when so acting in place, of a regularly appointed member.. Each member or alternate member of the Commission may be removed and replaced at any time by the governing body by which such member was appointed. Any individual', including any member of the governing body-or staff of CSAC or LCC, shall be eligible to serve as a member or alternate member of the Commission. ' Members and alternate members of the Commission shall not receive any compensation for serving as such but shall be entitled to reimbursement for any expenses actually incurred in connection with serving.as a member or alternate member, if the Commission shall determihe that such expenses shall be reimbursed and there are unencumbered funds available for such purpose. C. OFFICERS; DUTIES; OFFICIAL BONDS. The Commission shall elect a Chair, a Vice-Chai.r, and a Secretary of the Author. ity from among its members to serve for such term as shall be determined by the Commission. The Commission shall appoint one or more of its officers or employees to serve as'treasurer, auditor, and controller of the Authority (the "Treasurer") pursuant to Section 6505.6 of the Joint Exercise of Powers Act to serve for such term as shall be determined by the Commission. Subject to the applicable provisions of any resolution, indenture or other 'instrument or proceeding authorizing or securing Bonds (each such resolution,. indenture, instrument and proceeding being herein referred to as an 'Indenture") providing for a trustee or other fiscal agent, the Treasurer is designated as ~he depositarY'of the Authority to have custody of all'money of the Authority, from whatever source derived. The Treasurer of the Authority shall have the powers, duties and responsibilities specified in Section 6505.5 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 wi~h the Secretary of the Authority in the amount specified by resolution of the Commission but in no event less than $1,000. If and to the extent permitted by law, .any such officer may satisfy this requirement by filing an official bond in at least said amount obtained in connection with another public office. The Commission shall have the power to appoint such other officers and employees as it may deem necessary and tO retain independent counsel, consultants and accountants. The. Commission shall have the power, by resolution, to the extent permitted by the Joint Exercise of Powers Act or any other applicable law, to delegate any of its functions to one or more of the members of the Commission or officers or agents of the Authority and to cause any of said members, officers or agents to take any actions and execute any documents or instruments for and in the name and o6'behalf of the Commission or the~Authority. D. MEETINGS OF THE COMMISSION. (1) Reqular Meetings. The Commission shall provide for its regular meetings; provided, however, it shall hold at leas= one regular meeting each year.. The date, hour and place .of the holding of the regular meetings shall be fixed by resolution- of the Commission and a copy of such resolution shall be filed with each party hereto. (2) ~Pecia! Meetings. Special meetings of the Commission may be called in accordance with the provisions of Section 54956 of the Government Code of the State of California. (3) ~Ralph M. Brown Act. All meetings of the Commission, 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). . (4) Minutes. .. The Secretary of the Authority shall cause to be kept minutes of the regular, adjourned regular, special, and adjourned special meetings of the Commission and shall, as soon as possible after each meeting, cause a copy of the. minutes to be forwarded to each member of the Commission. (5) Quo rum. A majority of the members Df the Commission which includes at.least one member appointed by the goVerning.body of each of CSAC and LCC shall constitute a quorum.for' the transaction of business. No action may be taken by the Commission except upon the affirmative vote of a majority of · the members of 'the Commission which incudes at least one member appointed by the governing body of each of CSAC and LCC, except that less than a quorum may adjourn a meeting to another time and place, E. RULES AND REGULATIONS. The Authority may adopt, from time to time, by resolution of the Commission such rules and regulations for. the conduct of its meetings and affairs as may be required. · Section 4. po~e·s. The Authority shall have any and all'pOwers relating to economic development authorized by law to each-of the parties hereto and separately to the public entity herein created, including, without limitation, the promotion of opportunities for the creation and retentioD of emploYment, the stimulation of 'economic activity, and the inCrease.of the tax base, within the jurisdictions, of such parties.: 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. All such powers common to the parties are specified as powers of the Authority; The Authority is hereby authorized to do all acts necessary for the exercise of such powers, including, but not limited tp, any or all of 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, serv. ices and other forms of assistance from persons, firms, corporations and any governmental entity; to sue and be sued in its own name; and generally to do any and all things necessary or convenient to the promotion of economic development, including without limitation the promotion of opportunities for'the' creation or retention of employment, the stimulation of · economic activity, and the increase of the tax base, all as herein contemplated. Without limiting the generality of the foregoing, the AUthority may issue or cause to be issued bonded, and other indebtedness, and pledge any property or revenues as secu'rity to the extent permitted under the Joint Exercise of Powers Act, including Article 1 and Article 4, the Act or any other applicable provision of law. 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 a California county could exercise such powers and perform such duties until a California general law city shall become a Program Participant, .at which time it'shall be subject to the restrictions upon. the manner in which a California general law 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 r'estrictions 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. · Section 5. Fiscal Year. For the purposes of this Agreement, the term 'Fiscal Year" shall mean the fiscal year as established from time to time by the Authority, being,' at the date of this Agreement, the period from July 1 to and including the following June 30, except fo.r the first Fiscal Year which shall be the period from the date of this Agreement to June 30, 1988. ~70h~ Section 6. Disposition of Assets. At the end of the term hereof or upon'the-earlier termination of this Agreement as set forth in .Section 2 hereof, after payment of all expenses and liabilities of the Authority, all property of the Authority both real and personal shall automatically vest in the Program Participants and shall thereafter remain the sole property of the Program Participants; provided, however,-that any su[plus money on hand shall be returned in proportion to the contributions made by the Program Participants. section 7. Bonds. The Authority shall issue Bonds for the purpose of exercising .its powers and raising the funds necessary to carry out its purposes unde'r, this Agreement. Said Bonds may, at the discretion of Authority, be issued in series. 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. The fees and expenses of' such counsel, consultants, advisors,, and 'the expenses of CSAC, LCC, and the Commission shall be paid from the proceeds of the Bonds or any other unencumbered funds of the Authority available for such purpose. Sect ion 9. Local Approval. A copy of the application for financing of a project shall be filed by the Authority with the Program Participant in whose jurisdiction the project is to be located. The Authority shall not issue Bonds with respect to any project unless the governing body of the Program Participant in whose .jurisdiction the prqject is to be located, or its duly authorized designee, shall approve, conditionally or unconditionally, the project, including the issuance of 'Bonds therefor. Action to approve or disapprove a projec.t shall be taken within 45 days of the filing with the Program Participant. Certification of approval or disapproval shall be made by the clerk of the governing body of the Program Participant', or by Such other officer as may be designated bY the applicable Program Participant, to the Authority.. Section 8. Bonds .Only L,.imited 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 Program Participant, CSAC, or LCC or pledge of the faith and credit of the Program Participants, CSAC, LCC, 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 or the respective project costs except from revenues and other funds pledged therefor. Neither the Program Participants, CSAC, LCC, nor the AuthDrity 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 Program Participants nor the faith and credit of CSAC, LCC, or the Authority ShaI1 be pledged to the payment of the principal of, premium, if any, or interest on the ·Bonds nor shall the Program Participants, CSAC, LCC, or the Authority in any manner 'be obligated to make any appropriation for such payment.. No covenant or agreement contained in any Bond or Indenture shall be deemed to be a covenant or agreemedt of any member of 'the Commission, or any officer, agent or employee of the Authority in .his individual capacity and neither the Commission of the Authority nor any 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. Section 10. Accounts and Reports. Ail funds of the Authority shall be' strictly . accounted for. The Authority shall establish and maintain such funds and accoqnts as may be required by good accounting practice and by any provision of any ~ndenture (to the extent such dut'ies are not assigned to a trustee of Bonds). The books and records, of the Authority Shall be open to inspection at all reasonable times by each Program Participant. The Treasurer of the Authority shall cause an independent audit to be made of the books of accounts and financial records of the Agency by a certified public accountant or public accountant in compliance with the provisions of Section 6.505 of the Joint Exercise Of Powers'. Act. In each case the minimum requirements of the audit shall be those prescribed by. the State Controller for special districts Under Section 26909 of the Government Code of the State of California and shall conform to generally accepted auditing standards. When such an audit of accounts and records is made by a certified public accountant Or public accountant, a report thereof shall be filed'as public records with each Program Participant and also with the county auditor of each county in which a Program Participant is located. Such report shall be filed within 12 months of the end of the Fiscal Year or Years under examination. 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 Commission may, by resolution adopted by unanimous vote, replace the annual ~pecial audit .. with an audit covering a two-year period. The Treasurer of the Authority, within 120 days after the close of each Fiscal Year, shall give a complete written report of all financial activities for such Fiscal Year to each of the Program Participants to the extent such activities are not covered by the reports of the trustees for the. Bonds. The trustee appointed under each Indenture'~hall 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 sa.id Indenture as may be desirable to carry out this Agreement. Section 11. Funds. .. Subject to the applicable provisions of each Indenture, which may provide for.a trustee 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 Section 10 hereof, and shall make the disbursements reguired by this Agreement or otherwise necessary to carry out any of the p.rovisions or purposes of this Agreement. Section 12. Notices. Notices and other communications hereunder to the Program Participants shall, be sufficient if .delivered to the clerk of the 9overning body of each Program Participant. Section 13. Withdrawal and Addition of Parties. A Program Participant may withdraw from this Agreement upon written notice to the Commission; provided, however, that no such wi%hdrawal shall result in the dissolution of the Authority so long as any Bonds remain outstanding under an Indenture. Any such withdrawal shall be effective only upon receipt of the notice of withdrawal by the Commission which shall acknowledge .receipt of such notice of withdrawal in writing and shall file such notice as an amendment to this Agreement effective upon Such filing. 10 Qualifying public agencies may be added as parties to this Agreement and become Program Participants upon: (i) the filing by such public agency of an executed counterpart of this Agreement, together with a certified copy of the resolution of the governing body of such public agency approving this Agreement and the execution and delivery hereof; and (ii) adoption of a resolution of the Commission approving the addition of such public agency as a Program Participant. Upon satisfaction of such conditions, the Commission shall file such executed counterpart of this' Agreement as an amendment hereto, effe'ctive upon such filing. Sec t i on. 14. I ndemn i f i ca t i on. ,, To the full extent permitted by.law, the Commission may authorize indemnification by the AUthority of any--person who is or was a member or alternate member of the Commission, or an officer, employee or other agent of the Authority, and who was or is. a party or is threatened to be made a party to a proceeding by reason, of the fact that such person is or was such a member or alternate member of the Commission, or an officer, employee or' other agent of the Authority, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding, if such person acted in good faith and in 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 per'son was unlawful and, in the c~se 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. sect ion 15. 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 parties hereto for any of .the purpmses.of. · this Agreement. Payment of public funds may be made to defray the cost of any such contribution. 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 party making such advance at the. time of..such advance. Sect ion 16. Immu.ni t i.es. All of the privileges and immunities from liabilities,, exemptions from laws, ordinances and rules., all pension, relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents or employees of Program Participants when performing their , 11 respective functions within the territorial limits of their respective public agencies, shall apply to them to the same degree and extent while engaged as members of the Commission or otherwise as an officer, agent or other representative of the Authority or while engaged in the performance of any of their functions or duties extraterritorialiy under the provisions o.f this Agreement. Section 17. Amendments. Except as provided in Section 13 above, this Agreement shall not be amended, modified, Or altered except by a written instrument duly executed by each of the Program Participants. · section 18. Effectiveness. This Agreement .shall become effective and be in full force and effect and a legal, valid and binding obligation of. each of the Program Participants at 9:00 a,m., California time, on 'the date that' the Commission shall have 'received from each of the Initial Participants an executed counterpart of this Agreement, together with a certified copy of a resolution of the governing body of each such ~nitial Participant approving this Agreement and the execution and delivery hereof. Section 19. 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. Sect i on .20. 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 party may assign any right or obligation hereunder without the. consent of the other parties. Section 21' Miscellaneous. This Agreement may be executed in several counterparts, each of Which shall be an origihal and all of which shall constitute but one and the same instrument. 12 The section headings herein are fo£ convenience and are not to be construed as modifying or governing the language in t'he section referred to. Wherever in this Agreement any consent or approval .is required, the same shall not be unreasonably withheld. This Agreement is made in the State of California, under the Constitution and laws of such state and is to be so construed. This Agreement is the complete and exclusive statement of the agreement among the parties hereto, .which supercedes and merges all prior proposals,, understandings, and other agreements, including, without limitation, the Initial Agreement, whether oral, written, or implied in conduct, between and among the parties relating to the subject matter of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this A~lreement to be executed and attested by their proper officers thereunto dul~, authorized, and their official seals' to De hereto affixed, as of the daf and ~,ear first above written. 13