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HomeMy WebLinkAboutAgreement A-16-074 with City of Selma.pdfEXHIBIT "A" NORTH SELMA SEWER FINANCING AUTHORITY JOINT EXERCISE OF POWERS AGREEMENT This JOINT EXERCISE OF POWERS AGREEMENT (this "Agreement") dated as of 2016, is between the CITY OF SELMA, a public body, corporate and politic, organized and existing under the laws of the State of California (the "City''), and the COUNTY OF FRESNO, a political subdivision of the State of California (the "County"); WITNESSETH: WHEREAS, agencies formed under Article 1 (commencing with Section 6500) of Chapter 5, Division 7, Title 1 of the Government Code of the State of California (collectively, Articles 1, 2, 3 and 4 of such Chapter, the "Joint Powers law") are permitted to provide financing for any oftheir members in connection with the acquisition, construction and improvement of public capital improvements and other programs of such members; and WHEREAS, the City is a general law city, organized and existing under the laws of the State of California; and WHEREAS, the County is a political subdivision of the State of California organized and existing under the laws and Constitution of the State of California; and WHEREAS, the City and the County wish to form an agency under the Joint Powers law for the purpose of creating an entity which can form a Community Facilities District under the Mello-Roos Community Facilities Act of 1982, (Government Code Title 5, Division 2, Part 1, Chapter 2.5) (the "Mello-Roos Law"), particularly as provided in Government Code section 53316.2, to levy special taxes in that district to secure repayment of bonds issued by newly-created entity. NOW, THEREFORE, in consideration of the above premises and of the mutual promises herein contained, the City and the County do hereby agree as follows: ARTICLE I GENERAL PROVISIONS Section 1.01. Purpose. This Agreement is entered into pursuant to the Joint Powers Law. The purpose of this Agreement is to provide assistance to the City and the County (collectively, the "Members") to form a Community Facilities District under the Mello-Roos law, particularly as provided in Government Code section 53316.2, to levy special taxes in that district to secure repayment of bonds authorized under Article 4 of the Joint Powers law (commencing with Section 6584) (the "Bond Act''). In accordance with Section 6503.5 of the Joint Powers Law, within 30 days after the effective date of this Agreement or Page 1 of 10 any amendment hereto, the Financing Authority will cause a notice of this Agreement or such amendment to be prepared and filed with the office of the Secretary of State of the State of California and shall furnish an additional copy of such notice for forwarding to the Controller of the State of California. Section 1.02. Creation of Financing Authority. Pursuant to the Joint Powers law, there is hereby created a joint powers agency to be known as the "North Selma Sewer Financing Authority" (the "Financing Authority"). The Financing Authority shall be a public entity separate and apart from the Members, and shall administer this Agreement. The debts, liabilities and obligations of the Financing Authority shall not constitute debts, liabilities or obligations of the City or the County. The Financing Authority shall be deemed to be created and to exist as an entity which is authorized to transact business and exercise its powers from and after the date of this Agreement and for the term set forth in Section 4.01. The Financing Authority is authorized, in its own name, to do all acts necessary for the exercise of said powers for said purposes, including but not limited to any or all ofthe following: to make and enter into contracts; to employ agents and employees; and to sue and be sued in its own name. Notwithstanding the foregoing, the Financing Authority has any additional powers conferred under the Joint Powers Law or other applicable law, insofar as such additional powers may be necessary to accomplish the purpose of this Agreement, including but not limited to the power to establish a Community Facilities District under the Mello-Roos law, particularly as provided in Government Code section 53316.2, and to levy special taxes in that district. Section 1.03. Board of Directors. (a) Composition of Board. The Financing Authority shall be governed by a Board of Directors (the "Board") consisting of five directors. Each member of the City Council of the City shall be a director on the Board by virtue of being a member of the City Council of the City. The term of office of each director on the Board will terminate when such director ceases to be a member of the City Council of the City, and the successor to such person as a member of the City Council of the City will become a director on the Board upon assuming such City Council office. (b) Powers and Compensation of the Board. All voting power of the Financing Authority shall reside in the Board. Directors shall not receive any compensation for serving as such, but will be entitled to reimbursement for any expenses actually incurred in connection with serving on the Board, if the Board determines that such expenses will be reimbursed and unencumbered funds are available for that purpose. (c) Call, Notice and Conduct of Meetings. All meetings of the Board, including without limitation, regular, adjourned regular and special meetings, shall be called, noticed, held and conducted in accordance with the provisions of the Ralph M. Brown Act of the State of California (constituting Chapter 9 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California). (d) Quorum; Voting. A majority of the directors on the Board shall constitute a quorum for the transaction of business, except that less than a quorum may adjourn from time to time. The affirmative votes of at least a majority of the directors of the Board present at any meeting at which a quorum is present shall be required to take any action by the Board. Page 2 of 10 (e) Time and Place of Regular Meetings. The Board shall hold regular meetings concurrently with City Council meetings of the City, which are presently held on the first (1st) and third (3rd) Monday of each month, with the first such regular meeting being held , 2016, in the Council Chambers, City Hall, 1710 Tucker Street, Selma, California 93662. In the event an agenda for a regular meeting of the Financing Authority is not posted timely in accordance with the provisions of Section 54954.2 of the Government Code, such regular meeting is cancelled without any further action of the any Member, the Board or any officer of the Authority. The time, date and place established for regular meetings of the Board may be changed from time to time by resolution of the Board or by action of the Board duly recorded in the minutes. The Board may hold special meetings at any time and from time to time in accordance with law. (f) Minutes. The Board will cause minutes of all meetings ofthe Board to be kept and shall, as soon as possible after each meeting, cause a copy of the minutes to be forwarded to each director on the Board and to each Member. Section 1.04. Chief Financial Officer. (a) Designation. Pursuant to Section 6505.5 of the Joint Powers Law, the Finance Director of the City is hereby designated as the initial Chief Financial Officer of the Financing Authority and, as such, shall perform the functions of the treasurer of the Financing Authority and the functions of the auditor of the Financing Authority, as such functions are set forth in Section 6505.5 of the Joint Powers Law. The Executive Director of the Financing Authority shall have the right to remove the person who is acting as the Chief Financial Officer and to appoint any other person to serve as such, whether or not such other person is the treasurer of the City. Pursuant to Section 6505.1 of the Joint Powers Law, the Chief Financial Officer shall have charge of, handle and have access to all accounts, funds and money of the Financing Authority and all records of the Financing Authority relating thereto. As treasurer of the Financing Authority, the Chief Financial Officer shall have custody of all of the accounts, funds and money of the Financing Authority from whatever source. (b) Quarterly Reports. In the event, but only in the event, that the Chief Financial Officer holds moneys for the account of the Financing Authority or the Members, the Chief Financial Officer shall verify and report in writing at least quarterly to the Financing Authority and the Members the amount of money so held, the amount of receipts since the last such report, and the amount paid out since the last such report. (c) Audits. As auditor of the Financing Authority, the Chief Financial Officer shall draw warrants to pay demands against the Financing Authority when the demands have been approved by the Board and shall assure that there shall be strict accountability of all funds and reporting of all receipts and disbursements of the Financing Authority. So long as required by Section 6505 and Section 6505.5 of the Joint Powers Law, the Chief Financial Officer of the Financing Authority shall prepare or cause to be prepared a special audit as required under Section 6505 of the Joint Powers Law every year during the term of this Agreement. Section 1.05. Other Officers of the Financing Authority. In addition to the Chief Financial Officer, the officers of the Financing Authority shall consist of a Chairperson, Executive Director, Finance Director and Secretary, who shall consist of the Mayor, City Manager, Finance Director and City Clerk of the City, respectively. Said officers shall perform such functions as shall be customary in the exercise of such positions, and as may be more specifically provided by the Board from time to time. The Executive Page 3 of 10 Director shall have charge of the day-to-day administration of the Financing Authority and shall execute the directives of the Board. The Executive Director may sign all contracts on behalf of the Financing Authority. The Finance Director shall have the authority to perform all the functions, acts, duties and responsibilities of the Chief Financial Officer. The Secretary shall have charge of the records of the Financing Authority (to the extent not held by the Chief Financial Officer pursuant to Section 1.04} and shall be responsible for recording the minutes of all meetings of the Board. The Board shall be represented by an attorney to act as the legal advisor of the Financing Authority, who shall be the individual acting as City Attorney of the City; such attorney shall perform such duties as may be prescribed by the Board. Section 1.06. Bonding of Officers. In accordance with Section 6505.1 of the Joint Powers law, as the public officer who has charge of, handles, or has access to property of the Financing Authority, the Chief Financial Officer shall file an official bond in the amount of $25,000; provided, that such bond shall not be required if the Financing 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). In the event that the Chief Financial Officer (or any other officer of the Financing Authority} is required to be bonded pursuant to this Section 1.06 or applicable law, such bond may be maintained as a part of, or in conjunction with, any other bond maintained on such person by any Member, it being the intent of this Section 1.06 not to require duplicate or over-lapping bonding requirements from those bonding requirements which are otherwise applicable to the Members. Section 1.07. Agents. In addition the officers set forth in Section 1.05, the Board shall have the power to appoint such other employees and agents as it deems necessary or appropriate, and to retain outside counsel, consultants and accountants. ARTICLE II POWERS; NON-LIABILITY Section 2.01. General Powers. The Financing Authority shall exercise the powers granted to it under the Joint Powers law, including but not limited to the powers set forth in the Bond Act and the powers common to each of the Members, as may be necessary to the accomplishment of the purposes of this Agreement. As provided in the Joint Powers law, the Financing Authority shall be a public entity separate and apart from the Members. Section 2.02. Non-Liability of Members and Others For Obligations of Financing Authority. (a) Debts, liabilities and Obligations of Financing Authority. The debts, liabilities and obligations of the Financing Authority shall not be the debts, liabilities and obligations of any of the Members. In addition, no Member shall assume any liability or responsibility for any debts, liabilities or obligations which may be incurred by the other Member in connection with the issuance of any bonds or other evidence of indebtedness of the Financing Authority authorized and issued under the Bond Act (collectively, "Bonds") or other obligations of the Financing Authority for the benefit of such other Member. Page 4of 10 (b) No Personal liability. No Member, director, officer or employee of the Financing Authority shall be individually or personally liable for any claims, losses, damages, costs, injury and liability of any kind, nature and description arising from the actions of the Financing Authority or the actions undertaken under this Agreement. Without limiting the generality of the foregoing, no Member, director, officer, agent or employee of the Financing Authority shall be individually or personally liable for the payment of the principal of or premium or interest on any Bonds or other obligations of the Financing Authority or be subject to any personal liability or accountability by reason of any Bonds or other obligations of the Financing Authority; but nothing herein contained shall relieve any such Member, director, officer, agent or employee from the performance of any official duty provided by law or by the instruments authorizing the issuance of any Bonds. (c) Privileges and Immunities. In accordance with Section 6513 of the Joint Powers Law, all of the privileges and immunities from liability, exemptions from laws, ordinances and rules, all pension, relief, disability, worker's compensation and other benefits which apply to the activities of officers, agents or employees of the Members when performing their respective functions within the territorial limits 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. (d) Indemnification. To the fullest extent permitted by law, the Board shall provide for indemnification by the Financing Authority of any person who is or was a director, officer, employee or agent of the Financing Authority, and who was or is a party or is threatened to be made a party to a proceeding by reason of the fact that such person is or was such a director, officer, employee or agent of the Financing 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 the course and scope of his or her office, employment or agency. (e) Employment Status. None of the officers, agents or employees, if any, directly employed by the Financing Authority shall be deemed, by reason of their employment by the Financing Authority, to be employed by any Member or, by reason of their employment by the Financing Authority, to be subject to any of the requirements of any Member. Section 2.03. Conflict of Interest Code. The Board shall adopt a Conflict of Interest Code to the extent required by law. Section 2.04. City Indemnification of County. (a) lndemnifiable losses. For purposes of this section, "losses" includes all claims, causes of action, demands, liabilities, damages, costs, expenses (including attorney fees and costs), and losses of any kind to the County (including its officers, agents, and employees). (b) Indemnity. The City shall indemnify the County (including its officers, agents, and employees) against any losses that arise from or relate to the performance or failure to perform by the City (or any of its officers, agents, or employees) under this Agreement. The City shall also indemnify the County (including its officers, agents, and employees) against any losses that arise from or relate to the operations of the Financing Authority (or any of its officers, agents, or employees), including but not limited to the issuance of bonds or other evidences of indebtedness and the levy of taxes, assessments, fees, or charges of any kind. The City shall also indemnify the County (including its officers, agents, and Page 5 of 10 employees) against any losses that arise from or relate to the bidding, construction, or operation of any public capital improvements contemplated by or financed, bid, constructed, or operated as a result of this Agreement. (c) Defense. If requested by the County, the City shall defend claims, actions, demands, or proceedings brought against the County (including its officers, agents, and employees) for any losses. The County may conduct or participate in its own defense without affecting the City's obligation to indemnify the County. (d) Survival. The City's obligations under this article survive the termination of this Agreement. ARTICLE Ill FINANCIAL MATTERS Section 3.01. Contributions. The Members may, but are not required to: (a) make contributions from their treasuries for any of the purposes set forth herein, (b) make payments of public funds to defray the cost of such purposes, (c) make advances of public funds for such purposes, such advances to be repaid as provided herein, or (d) use their personnel, equipment or property in lieu of other contributions or advances. Section 3.02. Accounts and Reports. To the extent not covered by the duties assigned to a trustee, fiscal agent or paying agent chosen by the Financing Authority, the Chief Financial Officer shall establish and maintain such funds and accounts as may be required by good accounting practice or by any provision of any trust instrument or similar agreement entered into with respect to the proceeds of any Bonds issued by the Financing Authority. The books and records of the Financing Authority in the hands of a trustee, fiscal agent, paying agent or the Chief Financial Officer shall be open to inspection at all reasonable times by representatives of any of the Members. The trustee, fiscal agent, paying agent appointed under any trust instrument or similar agreement shall establish suitable funds, furnish financial reports and provide suitable accounting procedures to carry out the provisions of said trust instrument or other agreement. Said person may be given such duties in said trust instrument or agreement as may be desirable to carry out any of the provisions or purposes of this Agreement. Section 3.03. Funds. Subject to the applicable provisions of any instrument or agreement which the Financing Authority may enter into, which may provide for a trustee, fiscal agent or paying agent to receive, have custody of and disburse Financing Authority funds, the Chief Financial Officer shall receive, have the custody of and disburse Financing Authority funds as nearly as possible in accordance with generally accepted accounting practices, shall make the disbursements required by this Agreement or to carry out any of the provisions or purposes of this Agreement. Section 3.04 Fiscal Year. Unless and until changed by resolution of the Board, the fiscal year of the Financing Authority is the period from July 1 of each year to and including the following June 30, except that the first fiscal year shall be the period from the effective date of this Agreement to June 30, 2016. Page 6 of 10 ARTICLE IV MISCELLANEOUS PROVISIONS Section 4.01. Term. This Agreement shall become effective, and the Financing Authority shall come into existence, upon the adoption of resolutions of each of the Members approving this Agreement, and this Agreement and the Financing Authority shall thereafter continue in full force and effect so long as either (a) any Bonds issued by the Financing Authority remain outstanding or any material contracts to which the Financing Authority is a party remain in effect, or (b) the Financing Authority shall own any interest in any real or personal property. The Financing Authority shall cause all records regarding its formation, existence, any Bonds issued by it, obligations incurred by it and proceedings pertaining to its termination to be retained for at least six (6) years following termination of the Financing Authority or final payment of any Bonds, whichever is later. Section 4.02. Disposition of Assets. (a) Disposition of Financing Fees. In connection with providing financial assistance to any Member or for any other financing purposes authorized under the Bond Act, the Financing Authority may charge a reasonable administrative fee. Any such fees shall, upon receipt by the Financing Authority, be divided equally between the Members and promptly paid to the Members. (b) Disposition of Assets Upon Termination. Upon termination ofthis Agreement, any surplus money in possession of the Financing Authority or on deposit in any fund or account of the Financing Authority, and all other property ofthe Financing Authority, both real and personal, will be returned in proportion to any contributions made as required by Section 6512 of the Joint Powers Law, and otherwise will be divided equally between the Members. The Board is vested with all powers of the Financing Authority for the purpose of concluding and dissolving the affairs of the Financing Authority. Section 4.03. Notices. Notices hereunder shall be in writing and shall be sufficient if delivered to: City of Selma City Hall 1710 Tucker Street Selma, CA 93662 Attention: City Manager Public Works and Planning Department 2220 Tulare Street, Sixth Floor Fresno, CA 93721 Attention: Public Works and Planning Director Section 4.04. Section Headings. All section headings in this Agreement are for convenience of reference only and are not to be construed as modifying or governing the language in the section referred to or to define or limit the scope of any provision of this Agreement. Section 4.05. Law Governing. This Agreement is made in the State of California under the Constitution and Jaws of the State of California, and is to be so construed. Section 4.06. Amendments. This Agreement may be amended at any time, or from time to time, except as limited by contract with the owners of any Bonds issued by the Financing Authority or by applicable regulations or laws of any jurisdiction having authority, by one or more supplemental agreements executed by all of the parties to this Agreement either as required in order to carry out any of the provisions of this Agreement or for any other purpose, including without limitation addition of Page 7 of 10 new parties (including any legal entities or taxing areas heretofore or hereafter created) in furtherance of the purposes of this Agreement. Section 4.07. Enforcement by Financing Authority. If either Member defaults in any covenant contained in this Agreement, such default will not excuse such Member from fulfilling its obligations under this Agreement and the Members will continue to be liable for the payment of contributions and the performance of all conditions herein contained. The Members hereby declare that this Agreement is entered into for the benefit of the Financing Authority and the Members hereby grant to the Financing Authority the right to enforce by whatever lawful means the Financing Authority deems appropriate all of the obligations of each of the parties hereunder. Each and all of the remedies given to the Financing 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 Financing Authority to any other remedies. Section 4.08. Severability. Should any part, term or provision of this Agreement be decided by any court of competent jurisdiction to be illegal or in conflict with the Constitution or any Jaw of the State of California, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining portions or provisions shall not be affected thereby. Section 4.09. Agreement Not Exclusive. This Agreement is not exclusive and does not amend or alter the terms of other agreements between or among the Members, except as the terms of this Agreement conflict therewith, in which case the terms of this Agreement will prevail. Section 4.10. Form of Approvals. Whenever an approval is required under this Agreement, unless the context specifies otherwise, it shall be given by resolution duly adopted by the governing body of the affected Member, and, in the case of the Financing Authority, by resolution duly adopted by the Board. Whenever in this Agreement any consent or approval is required, the same shall not be unreasonably withheld. Section 4.11. Successors; Assignment. This Agreement shall be binding upon and shall inure to the benefit of the successors of the respective Members. No Member may assign any right or obligation hereunder without the written consent of the other Member. Section 4.12. Amendment of Agreement. 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 4.01 hereof and, provided further, that such supplemental agreement shall be subject to any restrictions contained in any Bonds or documents related to any Bonds to which the Financing Authority is a party. Section 4.13. Execution in Counterparts. 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. ************ [Signature page to follow] Page 8 of 10 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by their proper officers thereunto duly authorized, effective as of the day and year first above written. COUNlY OF FRESNO, a Political Subdivision of the State of California ("County") CllY OF SELMA, a Municipal Corporation of the State of California ("City") By:~~~ By:, _________ _ Ernest Buddy Mendes, Chairman Board of Supervisors ATTEST: Bernice E. Seidel Clerk to the Board of Supervisors Clerk to the Board of Supervisors REVIEWED AND RECOMMENDED FOR APPROVAL: JEAN M. ROUSSEAU County Administrative Officer Jean M. Rousseau County Administrative Officer APPROVED AS TO LEGAL FORM: DANIEL CEDERBORG, Mayor, City of Clovis ATTEST: REYNA RIVERA City Clerk, City of Selma By: ______________ _ Reyna Rivera, City Clerk REVIEWED AND RECOMMENDED FOR APPROVAL: KENNETH GREY City Manager, City of Selma By: --------------------Kenneth Grey, City Manager APPROVED AS TO LEGAL FORM: NEAL COSTANZO, City Attorney, City of Selma By: ______________ _ Neal Costanzo, City Attorney Page 9 of 10 APPROVED AS TO ACCOUNTING FORM: VICKI CROW, C.P.A. Auditor-Controller /Treasurer-Tax Collector By: ' ~ ' /) ·-f.;{c!.L L~n~ Vicki Crow, C.P .A Page 10 of 10