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HomeMy WebLinkAbout159-93RESOLUTION NO. 159-93 A RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF A JOINT EXERCISE OF POWERS AGREEMENT AND APPOINTING THE TOWN'S REPRESENTATIVES TO THE BOARD OF DIRECTORS OF THE TOWN OF DANVILLE FINANCING AUTHORITY CREATED THEREBY RESOLVED, by the Town Council of the Town of Danville, California, as follows: WHEREAS, the Town is a political subdivision duly organized and existing under the laws of the State of California; WHEREAS, the Town, upon authorization of its Town Council, may, pursuant to Article I (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the "JPA Law"), enter into a joint exercise of powers agreement with one or more other public agencies pursuant to which such contracting parties may jointly exercise any power common to them; WHEREAS, the Town and the Redevelopment Agency of the Town of Danville (the "Agency") desire to enter into a joint exercise of powers agreement pursuant to the JPA Law (the "Joint Exercise of Powers Agreement") pursuant to which the Town of Danville Financing Authority (the "Authority") will be created to, among other things, acquire obligations of the Town, the Agency and other Local Agencies, to finance and refinance various Public Capital Improvements and Working Capital, all as defined in Article 4 of Chapter 5 of Division 7 of Title 1 of the California Government Code (the "Bond Pooling Act") which, in the case of Town obligations, the Town determines confers Significant Public Benefits as defined in the Bond Pooling Act, and to issue bonds for any of such foregoing purposes; WHEREAS, under California law and the Joint Exercise of Powers Agreement, the Authority will be a public entity separate and apart from the parties to the Joint Exercise of Powers Agreement and the debts, liabilities and obligations of the Authority will not be the debts, liabilities or obligations of the Town or any representative of the Town serving on the governing body of the Authority (the Authority's "Board of Directors"); WHEREAS, this Town Council proposes to authorize the execution of the above-referenced Joint Exercise of Powers Agreement, in substantially the form heretofore presented to and considered by this Council; WHEREAS, all acts, conditions and things required by the Constitution and laws of the State of California to exist, to 32130~00006~5563 · 1 PAGE 1 OF RESOLUTION NO. 159-93 have happened and to have been performed precedent to and in connection with the consummation of the transactions authorized hereby do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the Town is now duly authorized and empowered, pursuant to each and every requirement of law, to consummate such transactions for the purpose, in the manner and upon the terms herein provided; NOW, THEREFORE, IT IS FOUND, DETERMINED AND ORDERED, as follows: SECTION 1. Declaration of Town Council. This Town Council hereby specifically finds and declares that the actions authorized hereby constitute, and are with respect to, public affairs of the Town, and that the statements, findings and determinations of the Town set forth in the preambles above and of the documents approved herein are true and correct. SECTION 2. Joint Exercise of Powers Agreement. The form of Joint Exercise of Powers Agreement, dated as of December 7, 1993, presented to this meeting and on file with the City Clerk is hereby approved. The Mayor of the Town and the Town Manager and any other Town officer or official of the Town authorized by the Mayor are each hereby authorized and directed, for and in the name and on behalf of the Town to execute, acknowledge and deliver said Joint Exercise of Powers Agreement in substantially said form, with such changes therein as such officer may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof. SECTION 3. Attestation and Seal. The City Clerk is hereby authorized and directed to attest the signature of the authorized signatory, and to affix and attest the seal of the Town, as may be required or appropriate in connection with the execution and delivery of the Joint Exercise of Powers Agreement. SECTION 4. Town Representatives on Authority's Board of Directors. The members of the Town Council shall constitute the Town's representatives on the Authority's Board of Directors. SECTION 5. Further Actions. The Town Council and the Mayor and the Town Manager and any other officer or official of the Town authorized by the Mayor are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents which they may deem necessary or advisable in order to consummate, carry out, give effect to and comply with the terms and intent of this Resolution and the Joint Exercise of Powers Agreement. Such actions heretofore taken by such officers are hereby ratified, confirmed and approved. 32130~00006\5563.1 PAGE 2 OF RESOLUTION NO. 159-93 I hereby certify that the foregoing is a full, true and correct copy of a resolution duly passed and adopted by the Town Council of the Town of Danville, California, at a meeting thereof held on the 7th day of December, 1993 by the following vote: AYES: NOES: NONE ABSENT: NONE RITCHEY, GREENBERG, DOYLE, SHIMANSKY, WALDO MAYOR ATTEST: CITY CLERK 32130~00006~5563.1 PAGE 3 OF RESOLUTION NO. 159-93 JOINT EXERCISE OF POWERS AGREEMENT (Creating the Town Of Danville Financing Authority) This Agreement is executed as of December 7, 1993 by and between the TOWN OF DANVILLE, a general law city, and the REDEVELOPMENT AGENCY OF THE TOWN OF DANVILLE, a redevelopment agency, each organized and existing under the laws of the State of California and hereafter referred to as Member Agencies. RECITALS This Agreement is predicated upon the following facts: A. The Member Agencies are public agencies organized and operating under the laws of the State of California. B. The Town of Danville Financing Authority created by this Agreement (the "Authority") is authorized under the Marks-Roos Local Bond Pooling Act of 1985, constituting Article 4, Chapter 5, Division 7, Title 1 (commencing with Section 6584) of the California Government Code, as amended (the "Bond Pooling Act") to, among other things, purchase at public or negotiated sale certain qualified bonds, as further defined herein ("Bonds"), issued by any of the Member Agencies and other public agencies, and sell at public or negotiated sale such Bonds, or issue and sell at public or negotiated sale certificates of participation or Authority Bonds secured in whole or in part by such Bonds or by other designated revenues. C. The assistance provided to the Member Agencies and other public agencies by the Authority in financing public capital improvements and working capital will result in certain or all of the following significant public benefits: (1) Demonstrable savings in effective interest rate, bond preparation, bond underwriting, or bond issuance costs. (2) Significant reductions in effective user charges levied by a local agency. (3) Employment benefits from undertaking public projects in a timely fashion. (4) More efficient delivery of local agency services to residential and commercial development. D. All capitalized terms used herein are defined in Article III "Definitions" 32130~00006~5596 · 1 NOW, THEREFORE, for and in consideration of the mutual benefits, covenants, and agreements set forth in this Agreement, the parties agree as follows: ARTICLE I CREATION OF TOWN OF DANVILLE FINANCING AUTHORITY Pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California, the parties hereby create a public entity separate and apart from the parties to this Agreement, to be known as the Town of Danville Financing Authority, hereinafter referred to as the "Authority". Pursuant to Government Code Section 6508.1, the debts, liabilities, and obligations of the Authority shall not constitute debts, liabilities, or obligations of any party to this Agreement. A Member Agency may separately contract for or assume responsibility for specific debts, liabilities, or obligations of the Authority. For purposes of, and to the extent required by, Government Code Section 6509, in exercising its powers the Authority shall be subject to the restrictions upon the manner of exercising the powers of the Town of Danville, except as otherwise authorized or permitted by the JPA Law and the Bond Pooling Act. ARTICLE II PURPOSE AND POWERS The purpose of creating this Authority is to accomplish the purposes of the JPA Law and the Bond Pooling Act, including the financing of public capital improvements and the purchase of Bonds issued by Member Agencies or other public agencies or the sale of such Bonds or issuance of Authority Bonds secured in whole or in part by such Bonds, or by any other designated source of revenues, all as permitted by the JPA Law or the Bond Pooling Act. The Authority shall have all powers common to its Member Agencies and all powers granted by applicable law, including, without limitation, the JPA Law and the Bond Pooling Act, and is authorized, in its own name, to do all acts necessary to exercise such powers to fulfill the purposes of this Agreement. Without limiting the foregoing, the Authority shall have the power to do each of the following: A. Finance and refinance, through the issuance of Authority Bonds or other instruments of indebtedness, Public Capital Improvements and Working Capital and other costs as permitted by the JPA Law and the Bond Pooling Act. B. Purchase Bonds. 32130~00006~5596.1 2 C. Incur debts, liabilities, and obligations. D. Acquire, hold or dispose of real and personal property by lease, purchase, sale, eminent domain and other appropriate means. E. Receive contributions and donations of property, funds, services, and other forms of assistance from any source. F. G. H. Sue and be sued in its own name. Employ agents and employees. Acquire, construct, rehabilitate, remodel, install, manage, or operate buildings, works, or improvements. I. Lease real and personal property (including that of a Member Agency or Local Agency) as lessor and as lessee. J. Receive, collect, and disburse monies. K. Invest money in the treasury of the Authority in the same manner and on the same conditions as Local Agencies pursuant to Government Code Section 53601. L. Exercise all other powers necessary and proper to carry out the provisions of this Agreement pursuant to the JPA Law and as authorized under the Bond Pooling Act. ARTICLE III The following definitions shall apply to the provisions of this Agreement: A. "Agreement" shall mean this Joint Exercise of Powers Agreement, as it may be amended from time to time, creating the Authority. B. "Authority" shall mean the Town of Danville Financing Authority. C. "Authority Bonds" shall mean bonds, notes, commercial paper, lease-purchase agreements, certificates of participation, floating rate, and variable maturity securities or other evidences of indebtedness within the meaning of the term "bond" as defined in Section 6585(c) of the JPA Law issued by the Authority pursuant to the Bond Pooling Act. 32130~00006\5596.1 3 D. "Board" or "Board of Directors" shall mean the governing body of the Authority. E. "Bond Pooling Act" shall mean the Marks-Roos Local Bond Pooling Act of 1985, constituting Article 4 (commencing with Section 6584) of the JPA Law. F. "Bonds" shall mean any bond, note, commercial paper, lease-purchase agreement, certificate of participation, floating rate, and variable maturity securities or other evidences of indebtedness within the meaning of the term "bond" as defined in Section 6585(c) of the JPA Law, which is purchased by the Authority from a Local Agency which is the issuer thereof at a public or negotiated sale or which is otherwise acquired by the Authority pursuant to the Bond Pooling Act or a trust agreement providing for the issuance of Bonds. G. "Fiscal Year" shall mean the period of time from the date of this Agreement to June 30, 1994, and thereafter every 12 month period ending on June 30. H. "JPA Law" shall mean Chapter 5 of Division 7 of Title 1 (commencing with Section 6500) of the California Government Code, as amended from time to time. I. "Local Agency" shall mean "local agency" as defined in Section 6585(f) of the JPA Law, and includes the Member Agencies. J. "Member Agency" shall mean any public agency (as defined in Section 6500 of the JPA Law) which is a party to this Agreement. K. "Public Capital Improvement" shall have the meaning given to such term in Section 6585(g) of the JPA Law. L. "Working Capital" shall have the meaning given to such term in Section 6585(i) of the JPA Law. ARTICLE IV PARTIES TO AGREEMENT Each Member Agency represents and warrants that it intends to, and does hereby, contract with the other Member Agency identified on the signature page hereof and any new Member Agency admitted to the Authority pursuant to Article XIV. Each Member Agency also represents and warrants that the withdrawal or 32130~00006~5596.1 4 expulsion of any Member Agency, pursuant to Article XII, shall not relieve any Member Agency of its obligations or duties under this Agreement. ARTICLE V BOARD OF DIRECTORS The Authority shall be governed by a Board of Directors comprised of all of the individuals who are on the Town Council of the Town of Danville and also members of the Redevelopment Agency of the Town of Danville (individually a "Director", collectively the "Directors"). Each Director has one vote. Immediately upon admission of a new Member Agency pursuant to Article XIV, the new Member Agency shall be entitled to appoint two members of its governing body to serve as additional Directors on the Board. A Director shall be removed from the Board of Directors upon the occurrence of any one of the following events: (1) the Director is not longer on the Town Council of the Town of Danville and a member of the Redevelopment Agency of the Town of Danville (or, in the case of a new Member Agency, no longer on the governing body thereof); or (2) the expulsion or withdrawal of the Member Agency from this Agreement on behalf of which such Director serves. Directors are not entitled to compensation. The Board may authorize reimbursement of expenses incurred by Directors or their alternates. Pursuant to Government Code Section 6505.6, the Finance Director of the Town of Danville is designated as Treasurer/ Auditor of the Authority. The Treasurer/Auditor of the Authority shall have charge of, handle, and have access to any property of the Authority, shall have custody of all the money of the Authority from whatever source, and shall perform the other functions of Treasurer/Auditor of the Authority as set forth in Section 6505, 6505.1 and 6505.5 of the JPA Law. The Authority shall fix the amount of the fidelity bond to be filed by the Treasurer/Auditor. ARTICLE VI BOARD MEETINGS AND RECORDS A. Meetings. The Board shall hold regular meetings as provided by resolution of the Board. The Board shall fix by resolution the date upon which, and the hour and place at which, each regular meeting is to be held. The Board may hold special meetings at any time and from time to time. 32130100006\5596.1 S B. RalDh M. Brown Act. Each meeting of the Board, including without limitation regular, adjourned regular, and special meetings shall be called, noticed, held, and conducted in accordance with the Ralph M. Brown Act (Section 54959 et seq. of the California Government Code). C. Minutes. The Authority shall have minutes of regular, adjourned regular, and special meetings kept by the Secretary of the Authority. As soon as possible after each meeting, the Secretary of the Authority shall forward to each Director and each Member Agency copies of the minutes. D. 0uorum. A majority of the Directors is a quorum for the transaction of Authority business. However, less than a quorum may adjourn from time to time. A vote of the majority of a quorum at a meeting is sufficient to take action. ARTICLE VII OFFICERS The Mayor, Vice-Mayor, Town Manager and City Clerk are designated as President, Vice-President, Executive Director and Secretary, respectively, of the Authority. The President shall preside at and conduct al meetings of the Board. In the absence or inability of the President to act, the Vice President acts as President. The Board may appoint such other officers as it considers necessary. Officers are not entitled to compensation. The Board may authorize reimbursement of expenses incurred by officers. ARTICLE VIII AMENDMENTS TO THIS AGREEMENT This Agreement may be amended at any time by written consent of all of the Member Agencies acting through their governing bodies. ARTICLE IX BUDGET The Board shall adopt an annual budget as soon as possible for the first Fiscal Year and not later than thirty days prior to the beginning of each Fiscal Year thereafter. 32130\00006\5596.1 6 ARTICLE X ANNUAL AUDIT AND REVIEW This Authority shall strictly account for all funds and report all receipts and disbursements and shall cause an annual financial audit of the accounts and records to be made by a certified public accountant in compliance with California Government Code Sections 6505 and 6505.5 or 6505.6 with respect to all receipts, disbursements, other transactions, and entries into the books of the Authority. The minimum requirements of the audit shall be those prescribed by the State Controller for special districts under Government Code Section 26909, and it shall conform to generally accepted auditing standards. A report of each audit shall be filed as a public record with each of the Member Agencies and also with the county auditor of the county in which each of the contracting parties is located. The report shall be filed within twelve months of the end of the Fiscal year under examination. The Authority shall pay all costs of such financial audits. ARTICLE XI ESTABLISHMENT AND ADMINISTRATION OF FUNDS Funds of the Authority may be commingled with other funds of the Authority for investment and administration purposes. The Treasurer/Auditor shall draw warrants to pay demands against the Authority when the demands have been approved in writing by the Executive Director. All funds or other property acquired by the Authority as a result of this Agreement shall be paid and disbursed as provided in resolutions or motions of the Board or in any trust agreement securing Authority Bonds. ARTICLE XII WITHDRAWAL AND EXPULSION Subject to the restrictions set forth in Article XIII, the Board, by a vote of two-thirds of the Directors, may expel any Member Agency at any time for material breaches of this Agreement. Subject to the restrictions set forth in Article XIII, any Member Agency may at any time withdraw from this Agreement upon 90 days' written notice to the other Member Agencies, provided that after such withdrawal there shall be at least two Member Agencies. 32130~00006~5596.1 7 The withdrawal or expulsion of any Member Agency shall not terminate its responsibility under any Bonds of such Member Agency or under any actions taken in connection therewith. ARTICLE XIII TERMINATION This Agreement shall continue until terminated. However, it cannot be terminated until such time as all principal of and interest on Authority Bonds, and all other amounts payable under any trust agreement or other document pursuant to which such Authority Bonds have been issued, shall have been paid in full. Thereafter, this Agreement may be terminated by vote or written consent of two-thirds of the Member Agencies; provided, however, that this Agreement and the Authority shall continue to exist for the purposes of disposing of all claims, the distribution of all assets, and any other functions necessary to conclude the affairs of the Authority. After completion of the Authority's purposes, any surplus money on deposit in any fund or account of the Authority shall be returned in proportion to the contributions made as required by Section 6512 of the California Government Code. In the event such surplus is generated from proceeds of any Authority Bonds or the payment to the Authority of amounts due with respect to any Bonds, such surplus shall be distributed as provided in the applicable trust agreement or financing document. The Board is vested with all powers of the Authority for the purpose of concluding and dissolving the business affairs of the Authority. ARTICLE XIV NEW MEMBERS With the approval of two-thirds of the Directors, any qualified public agency (as defined in Section 6500 of the JPA Law) may become a party to this Agreement. A public agency requesting membership shall apply by presenting to the Authority a resolution of the public agency approving this Agreement. The date and the terms upon which the applying public agency will become a Member Agency will be determined by the Board. ARTICLE XV LIABILITY OF THE AUTHORITY Subject to limitations thereon contained in any trust agreement or other documents pursuant to which Authority Bonds are issued, funds of the Authority may be used to defend, 32130/00006/5596.1 8 indemnify, and hold harmless the Authority, any Member Agency, any Director and any employee or officer of the Authority for their actions taken within the scope of their duties while acting on behalf of the Authority. ARTICLE XVI NOTICES Notices under this Agreement shall be sufficiently given and shall be deemed given when delivered or mailed by first-class mail, postage prepaid, or sent by telegram, telecopier or telex, addressed to the parties as follows: If to the Town of Danville: 510 La Gonda Way Danville, CA 94526 Attention: Finance Director If to the Redevelopment Agency of the Town of Danville: 510 La Gonda Way Danville, CA 94526 Attention: Treasurer A Member Agency may, by notice given hereunder, designate any further or different addresses to which subsequent notices or other communications shall be sent. Notice to a new Member Agency shall be sufficiently given when delivered in the manner described above to the address indicated in the amendment to this Agreement adding such new Member Agency. ARTICLE XVII SEVERABILITY Should any portion, term, condition, or provision of this Agreement be decided by a court of competent jurisdiction to be illegal or in conflict with any law of the State of California, or be otherwise rendered unenforceable or ineffectual, the validity of the remaining portions, terms, conditions, and provisions shall not be affected thereby. 32130\00006\5596.1 9 ARTICLE XVIII AGREEMENT COMPLETE The foregoing constitutes the full and complete Agreement of the parties. There are no oral understandings or agreements not set forth in writing herein. ARTICLE XIX GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of California. 32~3 o\oooo6\ss96.1 1 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. TOWN OF DANVILLE REDEVELOPMENT AGENCY OF THE TOWN OF DANVILLE By: Mayor BY~: [J~C ai~ Attest: ~O~Z~a~.3~--c~ City Clerk Attest: ~~~ Secretary 32130~00006~5596.1 11