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AGR-6965 - CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY - JOINT EXERCISE OF POWERS AGREEMENT FORMING ORANGE CITY PUBLIC FACILITIES FINANCING AUTHORITYOrarrge City Public Facilities FinancingAulhority Jaint Exercise ofPowers Agreemenl Authority" shall mean the Orange City Public Facilities Financing Authority crea[ed by this Agceement. Board"or`Board of Direcrors"shall mean the goveming board of the Authority. Brown Act"means the Ralph M. Brown Act(Chapter 9 of Part 1 of Division 2 of Title 5 of the California Govemment Code),or any successor legislation hereafter enacted. City"shall mean the City of Orange,California. CSCDA"shall mean California Statewide Communities Development Authority, a joint exercise of powers authority, duly organized and existing under and by viRue of the laws of the State. Indenture" shall mean each indenture, trust agreement, fiscal agent agreement, lease, sublease,loan agreemen[,or other instrument pursuant to which Obligations are issued or incuned: Member"or "Members"means the members of the Authority from time to time as may be modified in accordance with this Agreement. As of the date of this Agreement,the Members are the City and CSCDA. Oblrgations"shall mean bonds and any other evidence of indebtedness of the Authority authorized and issued pursuant to the Act. State"shall mean the State of California. Section 2. Pu ose. This Agreement is made pursuant to the Act for the purpose of assisting the financing and refinancing of capita] impmvement projects of the City and to finance working capital for the City by exercising the powers referred to in this Agreement. Section 3. Term. This Agreement shall become effective as of the date hereof and shall continue in full force and effect until terminated by a supplemental agreement of CSCDA and the City;provided, however, that in no event shall this Agreement terminate while any Obligations of the Authority remain outstanding under the terms of any indenture, trust agreement, conuact, agreement, lease, sublease or other inshvment pursuant to which such Obligations are issued or incurred. Sec[ion 4. The Authoritv. a) Creation of the Authority. There is hereby created pursuant to the Act an authority and public entity to be known as the"Orange Ciry Public Facilities Financing Authority." As provided in the Act, the Authority shall be a public entity sepazate from the Members. The debts,liabilities and obligations ofthe Authority shall not constitute debts,liabilities or obligations of the Membcrs. 2 Orange Ciry Pu61ic Faciliries Financing Authortty Joint Esercrse ofPowers Agreement Within 30 days after the effective date of this Agreement or any amendment hereto, the Authority will cause a notice of this Agreement or atnendment to be prepared and filed with the office of the Secretary of State of the State in the manner set forth in sections 6503.5 of the Act. Such notice shall also be filed with the office of the Secretary of State. In addition, as required by Section 53051 of the Califomia Government Code, within 70 days after the effective date ofthis Agreement,the Authority shall file with the Secretary of State on a form prescribed by the Secretary of State and also with the County Clerk of Orange County,a statement of the following facts: (1)the full,legal name of the Authoriry,(2)the official mailing address of the Board, (3)the name and residence or business address of each member of the Boazd,and (4)the name,title,and residence or business address of the chairman,president,or other presiding officer,and clerk or secretary of the Board,and within 10 days after any change in the facts required to be stated pursuant to the foregoing, an amended statement containing such information shall be filed with the Secretary of State on a form prescribed by the Secretary of State and also with the Counry Clerk of Orange County. b) Governine Board. The Authority shall be administered by the Board which shall consist af the members of the Ciry Council of the City. The term of office as a member of the Boazd shall terminate when such member ofthe Board shall cease to hold its respective oftice at the CiTy and the successor to such seat on the City Council shall automatically become a member of the Board, upon assuming such office. Members of the Board 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 if the Board shall determine that such expenses shall be reimbursed and there are unencumbered funds avai(able for such purpose. c) Meetin s of Board. 1) 'lYie Board shall conduct regulaz meetings on the same date, at the same[ime and atthe same location as the regulaz meetings ofthe City Council ofthe City;provided that the time and place for holding Board meetings may be chan ed at any time by resolution of the Board. Such regular meetings may occur either during or after the regulaz meetings oFthe City Council of[he City, but may not commence earlier than the starting time for the regulaz meetings of the City Council of the CiTy. If the Secretary daes nat post an agenda For a regulaz meeting pursuant to the Brown Act,then such lack of posting shall be deemed to be a determination by the Chair that no items required discussion and,therefore,that the regular meeting has been cancelled, except as otherwise provided in the Brown AcG The Board may hold special meetings at any[ime and from time to time in accordance with law. 2) All regular and special meetings of the Boazd shall be called, uoticed, held and conducted subject to the provisions of the Brown Act. 3 Orange City Publtc Facilrties Financing Authority Join(Fr.ercise ojPowers Agreement 3) The Secretary of the Authority shall cause minutes of all meetings of the Board to be kept and shall, as soon as practicable after each meeting, cause a copy of the minutes to be forwarded to each member of the Board and to the Members. 4) A majority of the members of the Board shall constitute a quorum for the transacGon of business,except that less than a quorum may adjourn meetings from time to time. However, less than a quorum may adjoum a meeting from time to time. A vote of the majority of a quorum at a meeting shall be su cient to take action. d) Officers:Duties:Bonds. 1) The officers of the Authority shall be ffie Chair, Vice Chair, Executive Director, Secretary, Treasurer. The Chair shall be the person serving as the Mayor of the City;the Vice-Chair shall be the person serving as the Mayor Pro Tem of the City;the Executive Director shall be the person serving as the City Manager of the City;and the Secretary shall be the person serving as the City Clerk of the City. The Assistant City Manager shall serve as the Assistant Executive Director ofthe Authority. The officers shall perForm the duties normal to their respective offices and such other duties as may be imposed by the Board. The Chair or the Executive Director shall sign al]contracts on behalf ofthe Authority;provided,thatthe Board may, by resolution,authorized other officers ofthe Authority to sign contracts on behalfofthe Authority. The Vice Chair shall act,si n contracts, and perforcn all of the Chair's duties in the absence of the Chair. The Secretary shall perform such duties as may be imposed by the Board and cause a copy of this Agreement to be filed with the California Secretary of State pursuant to the Act. These officers shall have such additional powers and duties as may be determined by the Board firom time to time by resolution. 2) The Treasurer of the City is hereby designated as the Treasurer of the Authority. Pursuant to Secdon 6505.6 of the Act,the Treasurer of the Authority is designated as the public officer or person who has chazge of, handles, or has access to any property of the Authority, and such o cer shall file an official bond in the amount of$25,000 as required by section 6505.1 of the Act; provided.that such bond shall not be required if the Authority does not possess or own property or funds with an aggregate value of greater than$500(excluding amounts held by a trustee or other fiduciary in connection with any Bonds). The cost of the bond, if necessary, shall be paid by the City. The Finance Direcror of the City shall serve as the Assistant Treasurer of the Authority. 3) So long as required by section 6505 and section 6505.5 of the Act, the Treasurer of the Authority shall prepare or cause to be prepared: (a)a special audit as required pursuant to section 6505 of the Act every year during the term of this Agreement;and(b)a report in writing on the first day of July, October, January and April of each year to the Board, the City and CSCDA which report shall describe the amount of money held by the Treasurer of the Authority for the Boazd,the amount of receipts since the last such report, and the amount paid out since the last such report (which may exclude amounu held.by a trustee or other fiduciary in connection with any Obligations to the extent that such trustee or other fiduciary provides regular reports covering such amounks). 4 Ormtge City Public Facilities Firtancing Authority JointExerciseofPowersAgreement 4) The City Attorney of the City shall serve as the General Counsel to the Authority. 5) The services of the officers shall be withou[ compensation by the Authority. The City will provide such other administrative services as required by the Authority, and shall not receive economic remuneratidn from the Authority for the provision of such services. 6) The Boazd shall have the power to appoint such other officers and employees as it may deem necessary and to retain independent counsel, consultants and accountanu. All of the privileges and immunities from liability,exemptions from laws,ordinances and rules,all pension,relief,disability,worker's wmpensation and other benefits which apply to the activities of officers, agents or employees of the Members when perForming their respective functions within the tenitorial Iimits of their respective Member, shall apply to them to the same degree and extent while engaged in the performance of any of their functions and duties extraterritorially under the provisions of this Agreement. 8) None of the officers,agents or employees,if any, d'uectly employed by the Authority shall be deemed,by reason of their employment by the Authority,to be employed by any Member or, by reason of their employment by the Authority, to be subject to any of the requirements of any Member. 9) The Members hereby confirm their intent and agree that,as provided in Section 4(A)hereof and in the Act,the debts,liabilities and obligations of the Authority shall not constitute debts, liabilities or obligations of the City or CSCDA, and they do not intend by the following sentence to impair this provision. Notwithstanding Section 4(A)hereof and the Act,the City and the Authority shall indemnify, defend and hold harmless CSCDA and each of CSCDA's officers,directors, employees,attomeys, Commission members and agenu(each,an"ndemnified Party")from and against any and alicosts,expenses,losses,claims,damages snd liabilities directly or indirectly arising out of or in connection with the activities of the Authority (including but not Iimited to any transaction or series of transactions undeRaken by or for the benefit of the City), except to the extent that such costs, penses,'losses, claims, damages or liabilities arise from the gross negligence or wrongful act of an Indemnified Party. CSCDA may elect ro defend itse]f in any such action with counsel of its choice, the reasonable fees of such counsel to be paid by the City, The Authority and the City shall be jointly and severally liable for any indemnity obligation owed to CSCDA or any other indemnified pazty under this paragraph. Notwithstanding the pwvisions of section 895.6 of the California Govemment Code, the City shall not have any cight to conhibution from CSCDA. This paragraph(8)shall survive the tercnination of this Agreement. 10) In any event, the Authority or the City shall cause all records regarding the Authority's formation, existence, operations, any Obligations issued or incurteA by the Authority,obligations incurred by it and proceedings per[aining to its termination to be retained for at least six(6)years following termination of the Authority or final payment of any Obligations issued or incurred by the Authority,whichever is later. 5 Orange City Public Facilities Financtng Authortry Joint Exercise ofPowersAgreement Section 5. Powers. The Authority shall have any and all powers which aze common powers of the Members,and the powers sepazately conferred by law upon the Authority. All such powers, whether common to the Parties or separately conferred by law upon the Authority, are specified as powers of the Authority except any such powers which are specifically prohibited to the Authority by applicable law. Except as othenvise set forth herein as permitted by law, the Authority's exercise of its powers is subject to the restrictions upon the manner of exercising the powers of the City. The Authority is hereby authorized, in its own name, to do all acts necessary or convenient for the exercise of its powers,including,but not limited to,any or all of the following: to sue and be sued; to make and enter into contracts; m employ agents, consultanu, attorneys, accountants, and employees; to acquire, hold or dispose of property, whether real or personal, tangible or intangible, wherever located; to issue bonds or otherwise incur debts, liabilities or obligations to the extent authorized by the Act or any other applicable provision of law and to pledge any property or revenues or the rights thereto as security for such Obligations. Notwithstanding the foregoing, the Authority shall have any additional powers conferred under the Act or under applicable ]aw, insofar as such additional powers may be necessary to accomplish the purposes set foRh in Section 2 hereof. Notwithstanding anything to the contrary in this Agreement,the Authority shall not have the power or the authority to enter into any retirement contract with any public retirement system (as defined in Section 6508.2 of the California Govemment Code) for any reason. The provision in this paragraph is intended to benefit the Members and to be a confirming irrevocable obligation of the Authority which may be enforced by the Members, individually or collectively. Section 6. Termination of Powers. The Authority shall continue to exercise the powers herein conferred upon it until the termination of this Agreement in accordance with Section 3 hereo£ Section 7. Fiscal Year. Unless and until changed by resolution of the Board,the fiscal year of the Authority shall be the period from July 1 of each yeaz to and including the following June 30, except for the first fiscal year which shall be the period from the date of this Agreement to June 30,2020. Section 8. Disposition of Assets. Upon termination of this Agreement pursuant to Section 3 hereof, any surplus money in possession of the Authority or on deposit in any fund or account of the Authority sha11 be returned in proportion to any contributions made as required by section 6512 of the Act. The Board is vested with all powers of the Authority for the purpose of concluding and dissolving the business affairs of the Authority. After rescission or termination of this Agreement pursuant to Section 3 hereof, al]propeRy of the Authority, both real and personal, shall be distributed to the City, subject to Sectian 9 hereof. 6 Ormrge City Public Facilities Financing Authority Joint Ezercise ofPowers Agreement Section 9. ContribuNons and Advances. ContribuHons or advances ofpublic funds and oF personnel,equipment or property may be made to the Authority by the Members for any of the purposes of this Agreement. Payment of public funds may be made to defray the cost of any such contribution. My such advance made in respect of a revenue-producing facility shall be made subject to repayment, and shall be repaid, in the mannec agreed upon by the City or CSCDA, as the case may be, end the Authority at the time of making such advance as provided by section 6512.1 of the Act It is mutually understood and agreed that neither the City nor CSCDA has any obligationto make advances or conhibutions to fhe Authority to provide for the costs and expenses of administration of the Authority,even though either may do so. The Members may allow the use of personnel,equipment or property in lieu of other contributions or advances to the Authoriry. Section ]0. Obli at ions. a) Authority to Issue or Incur Obli at ions. When authorized by the Act or other applicable provisions of law and by resolution ofthe Board,the Authority may issue or incur Obligations for the purpose of raising funds for the exercise of any of its powers or to otherwise carry out iu purposes under this Agreement Said Obligadons shall have such terms and conditions as are authorized by the Boazd. b) Limited Obli at ions. The Obligations, including the principal and any purchase price thereof, and the interest and premium, if any, thereon, shall be special obligations of the Authority payable solely from, and secured solely by, the revenues, funds and other asseu pledged therefor under the applicable Indenture(s) and shall not constimte a chatge against the general credit of the Authority or any Membec The Obligations shall not be secured by a legal or equitable pledge of,or lien or chazge upon or security interest in,any property of the Authority or any of its income or receipts except the properry, income and receipu pledged therefor under the applicable Indenture(s). The Obligations shall not constitute a debt, liability or obligation of the State or any public agency thereof,including any Member,other than the special obligation of the Authority as described above. Neither the faith and credit nor the taxing power of the State or any public agency thereof, including the Members, shall be pledged to the payment of the principal or purchase price of, or the premium, if any, or interest on the Obligations nor shall the State or any public agency or instnunentality thereof, including the Members, in any manner be obligated to makc any appropriation for such payment. The Authoriry shall have no taxing power. No covenant or agreement contained in any Obligation or Indenture shall be deemed to be a covenant or agreement of aay director,officer,agent or employee of the Authority or any Member, in his or her individual capacity and no director or officer of the AuthoriTy executing a Obligation shall be liable peisonally on such Obligation or be subject to any personal liability or accountability by reason of the issuance of such Obligation. Section I 1. Aereement not Exclusive. This Agreement shall not be exclusive and shall not be deemed to amend or alter the terms of other agreements beriveen the City and CSCDA, except as the terms of this Agreement shall conflict therewith, in which case the terms of this Agreementshall prevaiL Orange City Public Facilities Financing Authorrty Joinf Exercise ojPowers Agreemen! Section 12. Accounts and Reports. a) Books and Records. All funds of the Authority shall be stricdy accounted for in books of account and financial records maintained by the Authority,inoluding a report of all receipts and disbursements. The Authority shall establish and maintain such funds and accounts as may be required by generally accepted accounting principles and by each Indenture for outstanding Obligations (to the extent such duties are not assigned to a trustee for owners of Obligations). The books and records of the Authority shall be open to inspection at all reasonable times by the Members and their representatives. b) Indentures. The Authority shall require that each Indenture provide that the trustee appointed thereunder shall establish suitable funds, fumish financial reports and provide suitable accounting procedures to carry out the provisions of such Indenture. Said trustee may be given such duties in said Indenture as may be desirable to cazry out the requiremenu of this Section 12. c) Audits. The Treasurer of the AuthoriTy shall cause an independent audit to be made of the books of accounts and financial records of the Authority in compliance with the requirements of the Act. Any costs of the audit, including contracts with, or employment of, cer[ified public accountants or public accountants in making an audit pursuant to this Section 12, shall be borne by the Authority and shall be a charge against any unencumbered funds of the Authority available for that purpose. d) Audit Reoorts. The Treasurer of the.Authority,as soon as p acticable after the close of each Fiscal Year but in any event within the time necessary to comply with the rcquirements of the Act shall file a report oF the audit performed pursuant to this Section 12 as required by the Act and shall send a copy of such report to public entities and persons in accordance with the requiremenu of the AcL Section 13. Funds. Subject to the provisions of each IndenNre for outstanding Obligations providing for a trustee to receive,have custody of and disburse funds which constitute Authority funds, the Treasurer of the Authority shall receive, have the custody of and disburse Authority funds pursuant to accounting procedures approved by the Board and shall make the disbursements required by this Agreement or otherwise necessary to carry out the provisions and purposes of this Agreement. Section 14. Conflict of Interest Code. The Authority shall, by resolution, adopt a Conflict of Interest Code to the e ctent required by law. Such Conflict of Interest Code may be the conflict of interest code of the City. Section 15. Breach. If default shall be made by the City or CSCDA in any covenant contained in this Agreement,such default shall not excuse eitlier the City or CSCDA from fulfilling its obligations under this Agreement and the City and CSCDA shall continue to be liable for the performance of all conditions herein contained. The City and CSCDA hereby declaze that this Agreement is entered into for the benefit of Ihe Authocity crea{ed hereby and the City and CSCDA 8 Orange City Public Facilitres FinancingAWhority Joint Exerctse ojPowers Agreement hereby grant to the Authority the right to enforce by whatever lawful means the Authority deems appropriate all of the obligations oF each of the parties hereunder. Each and all of the remedies given to the Authority hereunder or by any law now or hereafter enacted are cumulative and the exercise of one right or remedy shall not impair the right of the Authority to any or all other remedies. Section 16. Notices. Notices and other communications hereunder to the parties shall be sufficient if delivered to the clerk or secretary of the goveming body of each party. Section 17. Withdrawals and Additions of Members. a) Withdrawals. AnyMembermaywithdrawfromtheAuthoritybyfilingwith the Boazd a certified copy of a resolution ofthe goveming body ofthe Member expressin iu desire to so withdraw, whereupon the withdrawing Member shall no longer be considered a Member for any reason or purpose under this Agreement and iu rights and obligations under this Agreement shall terminate. The withdrawal of a Member shall not affect the existence of the AuUtority nor the effectiveness of any Obligations of the Authority. b) Additional Members. Any public agency may be added as a party to this Agreement, and become a Member, by filing with the Board a certified copy of a resolution of the goveming body of such public agency whereby it agrees to the provisions of this Agreement and requests to become a Member. The Board may accept or reject any such proposal in its sole discretion, and if accepted, such public agency shall become a Member when: (i)its admission is approved by a vote of a majority of the Board voting on the matter and (ii) such public agency agrees to share public agency's fumre share of the costs and expenses incuaed by the Authority in the course of its activities. Upon satisfaction oftheprovisions ofthis clause(b),such public agency shall be a Member for all purposes of this Agreement The effectiveness of such membership shall not constitute an amendment or modification of this Agreement. Section 18. Eft'ectiveness. This Agreement shall become effective and be in ful] force and effect and a legal,valid and binding obligation of CSCDA and the City,as the initial Membe s, when each party has executed a counterpart of this Agreement. Section 19. Severabiliri. Should any part, term, or provision of this Agreement be decided by the courts to be illegal o in conflict with any law of the State,or otherwise be rendered unenforceable or ineffectual, the validity of the remaining parts,terms or provisions hereof shall not be affected thereby. Section 20. Successors: Assienment. This Agreement shall be binding upon and shall inure to the benefit of the successois of the pazties. Except to the extent expressly provided herein, neither party may assign any right or obligation hereunder without the consent of the other. 9 Orange Crty Publtc Factlittes FYxancingAuthortry Jorn1 Fxercrse ofPowersAgreement Section 21. Amendment of A reement. This Agreement may be amended by . supplemental agreement executed by the Members at any time; provided, however, that this Agreement may be terminated only in accordance with Section 3 hereof and,provided further,that such supplemental agreement shall be subject to any restrictions contained in any Obligations or documents related to any Obligations to which the Authority is a paRy. Section 22. Form of Anorovals. Whenever an approval is required in this Agreement, unless the context specifies otherwise, it shall be given, in the case of CSCDA, by resolution duly adopted by the Boazd of Directors of CSCDA, and, in the case of the City, by resolution duly adopted by the Board of Directors of the City,and, in the case oFthe Authority, by resolution duly adopted by the Board. Whenever in this Ageement any consent or approval is required,the same shall not be unreasonably withheld. Section 23. Waiver of Personal Liabilitv. No member, officer, employee, attomey, agent, and, with respect to CSCDA, Commission member of the Authority, the City or CSCDA shall be individually or personally liable for any claims,losses,damages,costs,injury and liability of any kind,nature or description arising from the actions of the Authority or the actions undertaken pursuant to this Agreement, and the City shall defend such members, officers, employees, attorneys, agents, or, with respect to CSCDA, Commission membeq against any such claims, losses, damages, costs, injury and liability. Without limiting the generality of the foregoing, no member,officer, employee, attomey, agent,or,with respect to CSCDA,Commission member,of the Authority or of any Member shall be personally liable on any Obligations or be subject to any personal liability or accountability by reason of the issuance of Obligations pursuant to the Act and this Agreement. To the full extent permitted by law,the Board shall provide for indemnification by the Authority of any person who is or was a member of the Board, 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 of the Board, or an officer, employee or other agent of the Authority, against expenses,judgments, fines, settlements and other amounts actually and reasonably incurred in wnnection with such proceeding, if such person acted in good faith and in the course and scope of his or her office,employment or agency. In the case of a criminal proceeding,the Boazd may provide for indemnification and defense of a member of the Board,or an officer,employee or other agent of the Authority to the extent permitted by law. Section 24. Miscellaneous. a) Notices. No[ices to the City hereunder shall be sufficient if delivered to the General Manager of the City,and notices to CSCDA hereunder shall be sufficient if delivered to CSCDA staf£ b) Section Headines. All section headings contained herein are for convenience of reference only and are not intended to define or limit the scope of any provision of this Agreemen[. 10 Orange City Pub[ic Fac/lides FinancingAuthority Jarn1 Ezercrse ojPowers Agreement c) Performance bv Authorized Deputies or Assistants. Officers of Member. Where.reference is made to duties to be performed for the Authority by a public official or employee, such duties may be performed by that person's duly authorized deputy or assistant. Where reference is made to actions to be taken by a Member,such action may be exercised[hrough the officers,staff or employees of such Member,in the manner provided by law. d) Govemin. This Agteement is made in the State, under the Constitution and laws of the state and is to be construed as a contract made and to be performed in the State. e) Comolete Aereement. This Agreement is the complete and exclusive statement of the agreement among the parties with respect to the subject matter hereof, which supersedes and merges all prior proposals, understandings, and other agreements, whether oral, written,or implied in conduct,between the parties relating to the subject matter of this Agreement. Execution in Counteroarts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. IN WI1'NESS WHEREOF,the parties hereto have caused this Agreement to be executed by their proper officers or officials thereunto duly authorized. CITY OF ORANGE By ln. Mayor st: City Clerk 11 Orm ge City Public Facilitres FinancingAWhortty Joittl Fa erctse ojPowers Agreement CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY By: Authorized Signatory 12