Resolution - 9649c+.
RESOLUTION NO. 9649
RESOLUTION OF THE CITY COUNCH, OF THE CITY OF WEST
COVINA AUTHORIZING THE EXECUTION AND DELIVERY OF A
JOINT EXERCISE OF POWERS AGREEMENT
WHEREAS, the City of West Covina (the "City") desires to join with other
counties, cities and local agencies (the "Members"), pursuant to the laws of the State of
California in the ABAG Finance Authority For Nonprofit Corporations (the "Authority");
WHEREAS, there has been presented to this meeting a proposed form of the
joint exercise of powers agreement, dated as of April 1, 1990 and revised as of September 18,
1990 and June 9, 1992 (the "Agreement"), pursuant to which the Authority was organized;
WHEREAS, a purpose of the Authority is to assist the City and other Members in
providing for the financing, acquisition, construction and rehabilitation of multifamily rental
housing developments for the benefit of the inhabitants of the City and the other Members;
WHEREAS, Chapter 5 of Division 7 of Title 1, commencing with Section 6500
of the Government Code of the State of California (the "Act"), the Authority may assist local
agencies in financing the acquisition, construction and rehabilitation of homes wherever there are
significant public benefits for taking the action and the participation by the City in the Authority
will benefit the City and the other Members;
WHEREAS, under California law and the Agreement, the Authority is a public
entity separate and apart from the parties to the Agreement and the debts, liabilities and
obligations of the Authority will not be the debts, liabilities or obligations of the City or any
representative of the City serving on the governing body of the Authority (the "Governing
Body"); and
NOW THEREFORE, the Council of the City of West Covina (the "Council")
hereby finds, determines, declares and resolves as follows:
1. Each of the foregoing recitals is correct and is certified to be a
representation of the Council.
2. The Council hereby finds and declares that entering into the Agreement
satisfies various public purposes, including, without limitation, providing Iow and moderate
income rental housing for persons residing in the City.
3. The proposed form of the Agreement, on file with the City Clerk and
incorporated into this Resolution by reference, is hereby approved. The Mayor of the City or the
City Manager is hereby authorized and directed to execute and deliver the Agreement in
substantially said form, with such changes, or additions thereto that hereafter may become
necessary in the interests of the City and which are reviewed and approved by the City Attorney,
any such changes or additions to be conclusively evidenced by the execution and delivery of the
Agreement. The Council hereby authorizes the City Clerk to attest to the Mayor's or the City
Manager's signature.
4. The Mayor and the Mayor Pro Tern are hereby appointed as the City's
Representatives to the Governing Body for all purposes of representing the City's interests and
exercising the authority of the City with respect to the Authority and voting on behalf of the City
on all matters delegated to the Governing Body. The City Manager and the Assistant City
Manager are hereby appointed as the City's Alternate Representatives to the Governing Board
for all purposes of representing the City's interests and exercising the authority of the City with
respect to the Authority and voting on behalf of the City on all matters delegated to the
Governing Board in the absence of the City's Representative.
DOCSSF7:312429.1
41559-1.6
HSG564LK
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5. The officers of the City 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 Agreement. Such actions heretofore taken by
such officers are hereby ratified, confirmed and approved.
6. This resolution shall take effect immediately upon its passage.
7. The City Clerk shall certify to the adoption of this Resolution and forward
a certified copy to the following:
David Castillo
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, California 94111
APPROVED and ADOPTED by the City Council of the City
meeting of said Council held on the 19`h day of January, 1999
ATTEST: -
City Clerk
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF WEST COVINA )
t Covina at a regular
following vote:
I HEREBY CERTIFY that the foregoing Resolution No. 9649 was duly adopted by
the City Council of the City of West Covina at a regular meeting thereof held on the 19th day
of January , 1999, by the following vote:
AYES: Howard, Touhey, Wong, Nelendez
NOES: None
ABSENT: Herfert
ABSTAIN: None
City Clerk
APPROVED AS TO FORM: 1
City Attorney
DOCSSFI :312429.1
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HSG564LK
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Exhibit A
JOINT POWERS AGREEMENT
CREATING THE
ABAG FINANCE AUTHORITY FOR NONPROFIT CORPORATIONS
Dated
as of
April 1, 1990
Revised
as of
September 18, 1990
June 9, 1992
JOINT POWERS AGREEMENT
TABLE OF CONTENTS
Paae
ARTICLE
I
CREATION OF THE ABAG FINANCE AUTHORITY
FOR NONPROFIT CORPORATIONS .................
1
• ARTICLE
II
PURPOSES ...................................
2
ARTICLE
III
DEFINITIONS ................................
2
ARTICLE
IV
PARTIES TO AGREEMENT .......................
2
ARTICLE
V
TERM OF AGREEMENT ..........................
3
ARTICLE
VI
POWERS OF THE AUTHORITY ....................
3
ARTICLE
VII
MEMBER ENTITY RESPONSIBILITIES .............
4
ARTICLE
VIII
MEMBERSHIP .................................
4
ARTICLE
IX
BOARD OF DIRECTORS .........................
5
ARTICLE
X
COMMITTEES .................................
5
ARTICLE
XI
BOARD AND COMMITTEE MEETINGS ...............
5
ARTICLE
XII
OFFICERS AND EMPLOYEES .....................
6
ARTICLE
XIII
FISCAL YEAR .................................
7
ARTICLE
XIV
BUDGET .....................................
7
ARTICLE
XV
ANNUAL AUDIT AND AUDIT REPORTS .............
7
ARTICLE
XVI
ESTABLISHMENT AND ADMINISTRATION OF FUNDS ..
7
ARTICLE
XVII
ADMINISTRATIVE COSTS .......................
8 ..
ARTICLE
XVIII
NEW MEMBERS .................................
8
ARTICLE
XIX
WITHDRAWAL .................................
8
ARTICLE
XX
EXPULSION ..................................
8
ARTICLE
XXI
TERMINATION AND DISTRIBUTION ................
9
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I:\Financial Services\FAN\FANDOCS\Joint Powers Agreement.doc
Paae
ARTICLE
XXII
NOTICES ....................................
9
ARTICLE
XXIII
PROHIBITION AGAINST ASSIGNMENT .............
9
ARTICLE
XXIV
AMENDMENTS .................................
10
ARTICLE
XXV
SEVERABILITY ...............................
10
ARTICLE
XXVI
LIABILITY OF AUTHORITY .....................
10
•
ARTICLE
XXVII
AGREEMENT COMPLETE .........................
10
ARTICLE
XXVIII
GOVERNING LAW
a:.
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\\ABAG\SYS\COMMON\Financial Services\FAN\FANDOCS\Joint Powers Agreement.doc
ABAG FINANCE AUTHORITY FOR NONPROFIT CORPORATIONS
JOINT POWERS AGREEMENT
This Agreement is made by and among the public entities
listed in Appendix A ("Member Entities"); all of which are public
entities organized and:operating under the laws of the State of
California and each of which is a public agency as defined in
• California Government Code Section 6500.
RECITALS
I. Government Code Sections 6500-6515, permitting.two or
more local public entities by agreement to jointly exercise any
power common to them, authorizes the Member Entities to enter in
this ABAG Finance Authority For Nonprofit Corporations.Joint
Powers Agreement ("Agreement").
II. Each Member Entity desires to join together with the
other Member Entities for the primary purpose of assisting
nonprofit corporations located within the jurisdiction or
furthering the public purposes of the Member Entities to obtain
tax-exempt financing for appropriate projects and purposes.
III. The governing board of each Member Entity has
determined that it is in the Member Entity's best interest and in
the public interest that this Agreement be executed and that it is
participating as a member of the public entity created by this
Agreement.
Now therefore, the Member Entities, by, between and among
themselves, in consideration of the mutual benefits, promises and
agreements set forth below, hereby agree as follows:
ARTICLE I
CREATION OF THE ABAG FINANCE AUTHORITY
FOR NONPROFIT CORPORATIONS
Pursuant to Chapter 5, Division 7, Title 1 of the Government
Code of the State of California (commencing with Section 6500) (as
amended from time to. time, the "JPA Law"), the Member Entities
create a public agency, separate and apart from the Member
Entities to be known as the ABAG Finance Authority For Nonprofit
Corporations (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 Entity may separately
contract for or assume responsibility.foi specific debts,
liabilities, or obligations of the Authority. The JPA shall
require indemnification on behalf of itself and its members as
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determined by its Board of Directors from nonprofit corporations
and other entities with which it enters into agreements. 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 city or county Member Entity specified in the
Bylaws, except as otherwise authorized or permitted by the JPA
Law.
ARTICLE II •
PURPOSES
This Agreement is entered into by Member Entities under the -
JPA Law in order to assist nonprofit corporations and other
entities to obtain financing for projects and purposes serving the
public interest.
ARTICLE III
DEFINITIONS :.-
In this Agreement unless the context otherwise requires:
"ABAG" means the Association of Bay Area Governments.
"Administrative Cost" means the amount charged to each Member
Entity by the Authority.for the Authority's general operating
costs and expenses.
"Authority" shall mean the ABAG Finance Authority For
Nonprofit Corporations.
"Board" or "Board of Directors" is the governing body of the
Authority constituted as set forth in Article IX of this
Agreement.
"Bylaws" means the bylaws adopted by the Board of the
Authority, as amended from time to time.
"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.
"Member Entity" includes each public agency (as defined in
Section 6500 of the SPA Law) which is a party to this Agreement.
ARTICLE IV
PARTIES TO AGREEMENT
Each Member Entity certifies that it intends to and does
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contract with every other Member Entity which is a signatory to
this Agreement and, in addition, with such other Member Entity as
may later be added as a Member Entity under ARTICLE XVIII. Each
Member Entity also certifies that the deletion of any Member
Entity from this Agreement does not affect this Agreement nor each
Member Entity's intent to contract with the Member.Entities then
remaining.
ARTICLE V
• TERM OF AGREEMENT
This Agreement became effective as of April 1, 1990, and
continues in full force until terminated in accordance with
ARTICLE XXI. _.:..
ARTICLE VI
POWERS OF THE AUTHORITY
The Authority through its Board of Directors is authorized,
in its own name, to do all acts necessary to.fulfill the purposes
of this Agreement referred to in ARTICLE II including, but not
limited to, each of the following:
A. Make and enter into contracts;
B. Incur debts, liabilities and obligations; provided that
no debt, liability or obligation of the Authority shall be a debt,
liability or obligation of a Member Entity except as separately
agreed to by a Member Entity;
C. Acquire, hold or sell or otherwise dispose of real and
personal property by eminent domain or other appropriate means;
D. Receive contributions and donations of property, funds,
services and other forms of assistance from any source;
E_ Sue and be sued in its own name; _
F. Employ agents and employees;
G. Acquire, construct, manage and maintain buildings;
H. Lease real or personal property as lessee and as
lessor;
I. Receive, collect, invest and disburse monies;
J. Issue revenue bonds or other forms of,indebtedness, as
provided by law; .
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K. Carry out other duties as required to accomplish other
responsibilities as set forth in this Agreement;,
L. Assign, delegate or contract with a Member Entity or
third party to perform any of the duties of the Board, including
but not limited to, acting as administrator for the Authority; and
M. Exercise all other powers necessary and proper to carry
out the provisions of this Agreement.
These powers shall be exercised in the manner provided by •
applicable law and as expressly set forth in this Agreement.
ARTICLE VII
MEMBER ENTITY RESPONSIBILITIES
Each Member Entity is, and shall remain throughout the term
of its membership in this. Authority, a member or cooperating
member of the Association of Bay Area Governments ("ABAG"),. and -
further has the obligations and responsibilities set forth in this
Agreement and the Bylaws.
ARTICLE VIII
MEMBERSHIP
A. Voting Members.
All public agencies in the State shall be eligible to
join the Authority as voting Members subject to the approval of
the Board of Directors.
B. Associate Membership.
1. Those public agencies located outside of the nine
(9) San Francisco Bay Area Counties shall be eligible to join the
Authority as Associate Members, subject to the approval of the
Board of Directors.
2. Associate Members shall be entitled to attend all
meetings of the Board of Directors but shall not be entitled to
vote or participate in debate. Further, no representative of an
Associate Member may become an officer or director of the
Authority.
3. Eligible nonprofit corporations located within the
jurisdictional limits of an Associate Member shall be entitled to
apply to the Authority for assistance in obtaining tax-exempt
financing for their projects and purposes serving the public
interest which qualify for financing under the Authority's
Financing Guidelines.
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C. For the purposes of this Agreement, both Voting Members
and Associate Members shall be referred to as "Member Entities."
ARTICLE IX
BOARD OF DIRECTORS
• There shall be a Board of Directors to govern the affairs of
the Authority: The Board shall be comprised of one director and
two alternate directors from each Member Entity. Each director
has one vote. One alternate director may cast a vote as a member
of the Board of Directors only in the absence of the director.
Each director shall be elected official of the Member Entity.
Each director shall be designated by the governing board of the
respective Member Entity. The alternate directors shall be -- ---
appointed by the director. ^
Directors and alternate directors are not entitled to
compensation. The Board may authorize reimbursement of expenses _•_
incurred by directors or alternate directors.
The powers of the Board are each of the powers of the
Authority not specifically reserved to the Member Entities by this
Agreement.
The Member Entities retain the following powers:
A. The designation of the Board of Directors as specified in
ARTICLE IX; and
B. Approval of an amendment to this Agreement as specified
in ARTICLE XXIV.
ARTICLE X
COMMITTEES
Executive Committee. The Board may create an Executive
Committee comprised of members of the Board and delegate one or
more of its powers to the Executive Committee. An appointment to
the Executive Committee is as set forth in the Bylaws.
Other Committees. The Board may create other committees, as
desired, pursuant to the requirements of the Bylaws.
ARTICLE XI
BOARD AND COMMITTEE MEETINGS
The Board shall hold at least one regular meeting each
5
year, at which time the Board shall elect its officers as
,appropriate to comply with ARTICLE XII. The Board shall fix the
date, hour and place at which each regular meeting is to be held.
To the extent practicable, each Board meeting shall be held in
Alameda County.. The Chair presides at all meetings. A special
meeting may be called upon written request by the Chair or at
least one-third of the Member Entities.
Each regular, adjourned regular, and special meeting of •
the Board and of all committees shall be called, noticed, held
and conducted in,accordance with the Ralph M. Brown Act (Sections
54950, et sea. of the Government Code).
The Secretary shall keep or have kept minutes of each —
regular meeting of the Board and each committee. As soon as -
possible after each meeting, the Secretary shall have a copy of
those minutes forwarded to each member of the Board and relevant
committee.
As soon as practicable after the first meeting of the Board
or within such time as fixed or extended by the Board, the Board
shall approve Authority Bylaws and administrative policies.and
procedures for the transaction of its business to govern the day-
to-day operations of the Authority. The adoption of Authority
Bylaws and administrative policies and procedures requires a vote
of two-thirds (2/3) of all Member Entities.
No business may be transacted by the Board without a quorum
of members of the Board .being present except that less than a
quorum may adjourn from time to time. A quorum consists of a
majority of the members of the Board.
ARTICLE XII
OFFICERS AND EMPLOYEES
The Officers of the Authority are the Chair, Vice -Chair,
President, Chief Financial Officer and Secretary.
The officers shall be elected or appointed by the Board at
its first meeting. The term of office for Chair, Vice -Chair and
Secretary is one year. The President and Financial Officer shall
serve as set forth in the Bylaws. The duties of the officers
shall be as provided in the Bylaws. The officers shall assume
the duties of their offices upon formation of the authority or as
appropriate. If either the Chair, Vice -Chair or Secretary ceases
to be a member of the Board, the resulting vacancy shall be
filled at the next regular meeting of the Board held after the
vacancy occurs.
Officers are not entitled'to compensation. The Board may
authorize reimbursement of expenses incurred by officers.
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The Board may appoint such officers and employees and may
.contract with such persons or firms as it considers necessary to
carry out,the purposes of this Agreement.
ABAG is hereby designated to act as the administrative
agency. The Member Entities acknowledge that this designation
may cause potential conflicts to arise and waive any liability on
the part of ABAG except for its fraud, gross negligence or
• mismanagement. ABAG may not be removed as the, administrative
agency except by reason of its fraud, gross negligence or
mismanagement or by unanimous vote of the Board.
ABAG shall be reimbursed by the Authority for services
rendered on the Authority's behalf. _.-.
ARTICLE--XIIL ----- -.--
FISCAL YEAR
The first fiscal year of the Authority is the period
from the date of this Agreement through June 30, 1990. Each
subsequent fiscal year of the Authority shall end on June 30.
ARTICLE XIV
BUDGET
The Board shall adopt an annual budget not later than
sixty (60) days before the beginning of each fiscal year.
ARTICLE XV
ANNUAL AUDITS AND AUDIT REPORTS
The Chief Financial Officer shall cause an annual
financial audit to be made by an independent certified public
accountant with respect to all Authority receipts, disbursements,
other transactions and entries into the books. A report of the
financial audit shall be filed as a public record with each
Member Entity. The audit shall be filed no later than required
by State law. The Authority shall pay the cost of the financial
audit and charge the cost against the Member Entities in the same
manner as other administrative, costs.
ARTICLE XVI
ESTABLISHMENT AND ADMINISTRATION OF FUNDS
The Authority is responsible for the strict accountability
of all funds and reports of all receipts and disbursements. It
shall comply with every provision of law relating to the
7
establishment and administration of funds, particularly Section
6505 of the California Government Code.
The funds shall be ':,accounted for on a full accrual basis.
The Chief Financial Officer shall receive, invest, and
disburse funds only in accordance with procedures established by
the Board and in conformity with applicable law. The Authority
shall require the Chief Financial Officer.to procure errors and •
omissions insurance or a fidelity bond.
ARTICLE XVII
ADMINISTRATIVE COST
The Board may establish the Administrative Costs of the
Authority, if any, for each fiscal year and may approve a formulae
for allocating these Administrative Costs among Member Entities
for each fiscal year. The Board may in its discretion impose
fees in connection with financings, which fees will be applied
against Administrative Costs of the Member Entities in the manner
the Board shall determine proper.
ARTICLE XVIII
NEW MEMBERS
A new public entity may be admitted as a Member Entity only
upon a two-thirds (2\3) vote of the Board of Directors.
Each applicant for membership shall pay all fees and
expenses set by the Board.
ARTICLE XIX
WITHDRAWAL
Member Entities may withdraw at any time on thirty (30)
days written notice subject to the -following exceptions_
1) the restrictions of Article XXI; and
2) a Member Entity may not withdraw prior to the
closing of a financing for which it has provided
authorization as set forth in the Bylaws.
ARTICLE XX
EXPULSION
Subject to the restrictions of Article XXI, the Authority may
expel a Member Entity from the Authority by a two-thirds (2/3)
vote of the Board of Directors for a breach of this Agreement or
the Bylaws determined by the Board to be a material breach. The
procedure for hearing and notice of expulsion of a Member Entity
shall be as provided in.the Bylaws.
ARTICLE XXI
TERMINATION AND DISTRIBUTION
• This Agreement shall continue until terminated. However, it
cannot be terminated until such time as all principal of and
interest on revenue bonds and other evidences of indebtedness
issued by the Authority shall have been paid in full. Thereafter,
this Agreement may be terminated by the written consent of two-
thirds of the Member Entities; provided, however, that this
Agreement and the Authority shall continue to exist after
termination for.the purpose of disposing of all claims,
distribution of assets and all other functions necessary to
conclude the obligations and 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 financing for a
nonprofit corporation or the payment to the Authority of amounts
due with respect to any obligations of a nonprofit corporation,
such surplus shall be distributed as provided in the applicable
trust agreement. The Board is vested with all powers of the
Authority for the purpose of concluding and dissolving the
business affairs of the Authority.
ARTICLE XXII
NOTICES
Notices to each Member Entity under this Agreement is
sufficient if mailed to its respective address on file with the
Authority. _
ARTICLE XXIII
PROHIBITION AGAINST ASSIGNMENT
No Member Entity may assign a right, claim, or. interest it
may have under this Agreement.. No creditor, assignee or third
party beneficiary of a Member Entity has a right, claim or title
to any part, share, interest, fund or asset of the Authority.
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ARTICLE XXIV
This Agreement may be amended by a unanimous vote of the
Member Entities of the Authority acting through their governing
bodies. A proposed amendment must be submitted to each Member
Entity at least thirty (30) days. in advance of the date when the
Member Entity considers it. An amendment is to be effective
immediately unless otherwise designated. Appendix A to the •
Agreement may be amended to correctly list current Member Entities
without separate action by the Member Entities or the Board.
ARTICLE XXV
SEVERABILITY
If a portion, term, condition or provision of this
Agreement is determined' -by a court to be illegal or in conflict
with a law of the State of California, or is otherwise rendered
unenforceable or ineffectual, the validity of the remaining
portions, terms, conditions and provisions is -not affected.
ARTICLE XXVI
LIABILITY OF THE ALPI'HORITY
Subject to limitations thereon contained in any trust
agreement or other documents pursuant to which financings of the
Authority are implemented, funds of the Authority may be used to
defend, indemnify, and hold harmless the Authority, any Member
Entity, any member of the Board 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 XXVII
AGREEMENT COMPLETE
The foregoing constitutes the full and complete Agreement of
the Member Entities. There are no oral understandings or
agreements not set forth in writing herein.
ARTICLE XXVIII
GOVERNING LAW
This Agreement shall be governed by and construed in
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Accordance with the laws of the State of California
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year written below.
APPROVED AS TO LEGAL FORM
By 84� OI.CAA-� i4g Cf Y 2
C-Ay Attorney
CITY OF FAST COVINA
Dated: .2 �l0 97 By
Richa a endez
Mayor
ATTEST:
By
City Clerk—`_
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Receipt Acknowledged
and Designation as
Administrative Agency
Accepted:
Dated:
ASSOCIATION OF BAY AREA
GOVERNMENTS
12 .
By
Eugene Y. Leong
Executive Director
E
s�40
MEMBER ENTITIES
County of Alameda
County of Contra Costa
County of Santa Clara
County of Marin
County of Sonoma
City and County of San Francisco
City of•Novato
City of Rohnert Park
City of Oxnard
City of Lincoln
City of Union City
City of Sacramento
City of Roseville
City of Rocklin
City of San Mateo
City of Petaluma
City of San Carlos
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