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HomeMy WebLinkAboutTC Res 2016-06-01 (2)RESOLUTION NO. 14-2016 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF TIBURON AUTHORIZING THE EXECUTION OF A JOINT EXERCISE OF POWERS AGREEMENT ESTABLISHING THE TIBURON PUBLIC FINANCING AUTHORITY WHEREAS, the Town of Tiburon (the "Town") and the Tiburon Parking Authority (the "Parking Authority") desire to establish a joint exercise of powers agency under Articles 1, 2 and 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the "Act") to be known as the "Tiburon Public Financing Authority" (the "JPA"); WHEREAS, there has been presented to this meeting a form of a Joint Exercise of Powers Agreement (the "JPA Agreement"), by and between the Parking Authority and the Town establishing the JPA; and WHEREAS, under the Act and as provided in the JPA Agreement, the JPA will be a public entity separate and apart from its members, and the debts, liabilities and obligations of the JPA will not be the debts, liabilities or obligations of its members. NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of Tiburon as follows: 1. Approval of JPA Agreement. The JPA Agreement, in the form placed on file with the Town Clerk, is hereby approved. The Mayor and the Town Manager (each, a "Designated Officer"), each acting alone, are hereby authorized and directed, for and on behalf of the Town, to execute, and the Town Clerk is hereby authorized to attest and deliver, the JPA Agreement in said form, together with such changes thereto that the Designated Officer executing the JPA Agreement, with the advice of counsel, may approve, such approval to be conclusively evidenced by the execution and delivery of the JPA Agreement by a Designated Officer. 2. Official Actions and Filings. The Designated Officers, as well as the Town Finance Director, are hereby authorized and directed, for and on behalf of the Town, to take any and all other actions related to the establishment of the JPA and the JPA Agreement consistent with the purposes of this Resolution, including but not limited to the filing of a notice with the Secretary of State as required by Sections 6503.5 and 6503.7 of the Act. 3. Effective. This Resolution shall be effective upon its adoption by the Town Council. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Tiburon on June 1, 2016, by the following vote: AYES: COUNCILMEMBERS: Doyle, Fraser, Fredericks, O'Donnell NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Tollini JIM FRA ICE MAYOR Town of'Iiib{iron ATTEST: Diane Crane Iacopi, Town Clerk 2 JOINT EXERCISE OF POWERS AGREEMENT TIBURON PUBLIC FINANCING AUTHORITY THIS JOINT EXERCISE OF POWERS AGREEMENT (the "Agreement"), dated as of June 1, 2016, is between the TOWN OF TIBURON, a municipal corporation and political subdivision duly organized and existing under the Constitution and laws of the State of California (the "Town"), and the TIBURON PARKING AUTHORITY, a public, corporate instrumentality duly organized and existing under the laws of the State of California (the "Parking Authority"). BACKGROUND: The Town and the Parking Authority desire to enter into this Agreement to establish a joint exercise of powers authority under Articles 1, 2 and 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the "Act"), in order to assist in the financing and refinancing of certain public programs (including but not limited to the undergrounding assessment district program of the Town) and projects, and assist in the financing and refinancing of public capital improvements, as defined in the Act, for the benefit of the Town and the Parking Authority. AGREEMENT: For and in consideration of the premises and the material covenants hereinafter contained, the parties hereto hereby formally covenant, agree and bind themselves as follows: Section 1. Definitions. Unless the context otherwise requires, the terms defined in this Section 1 have the meanings herein specified. "Act" means Articles 1, 2 and 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California, as amended. "Agreement" means this Joint Exercise of Powers Agreement establishing the Authority, as originally executed by the Town and the Parking Authority and as it thereafter may be amended from time to time by the Members. "Authority" means the Tiburon Public Financing Authority established by this Agreement. "Board of Directors" means the governing board of the Authority. "Bonds" means bonds and any other evidence of indebtedness of the Authority duly authorized and issued by the Authority. "Brown Act" means the Ralph M. Brown Act (Chapter 9 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California), or any successor legislation hereinafter enacted. "Town" means the Town of Tiburon, a municipal corporation and political subdivision duly organized and existing under the Constitution and laws of the State of California. "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 sole Members are the Town and the Parking Authority. 20034.01:J14067 "Parking Authority" means the Tiburon Parking Authority, a public, corporate instrumentality duly organized and existing under the laws of the State of California. Section 2. Purpose. This Agreement is entered into under the Act for the purpose of assisting in the financing and refinancing of certain public programs (including but not limited to the undergrounding assessment district program of the Town) and projects of the Members, and assisting in the financing and refinancing of public capital improvements, as defined in the Act, for the benefit of the Members by exercising the powers of the Authority described in Section 5 and otherwise conferred by the Act. Section 3. Term. This Agreement shall effect upon its execution by the Town and the Parking Authority and shall remain in full force and effect until terminated by the Members, as evidenced by a resolution adopted by the governing board of each respective Member. However, in no event shall this Agreement terminate while any Bonds or other obligations of the Authority remain outstanding under the terms of any indenture, trust agreement, contract, agreement, lease, sublease or other instrument under which such Bonds are issued or other obligations are incurred. The Authority shall administer this Agreement and 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 years following termination of the Authority or final payment of any Bonds, whichever is later. Section 4. The Authority. (a) Status of Authority. There is hereby established under the Act an agency and public entity to be known as the "Tiburon Public Financing Authority." As provided in the Act, the Authority is a public entity separate and apart from the Members. The debts, liabilities and obligations of the Authority do not and shall not constitute debts, liabilities or obligations of the Members. Within 30 days after the effective date of this Agreement, and of any further amendment hereto in the future, the Authority, or the Town on behalf of the Authority, will cause a notice of this Agreement or any future amendment to be prepared and filed with the office of the California Secretary of State in the manner required by Section 6503.5 of the Act, as amended. (b) Governing Board. The Authority shall be administered by the Board of Directors whose members shall be, at all times, the members of the Town Council of the Town from time to time. The term of office as a member of the Board of Directors will terminate when such member of the Board of Directors ceases to be a member of the Town Council of the Town; and the successor to such member of the Town Council of the Town will become a member of the Board of Directors upon assuming such office. Members of the Board of Directors will not receive any compensation for serving as such, but are entitled to reimbursement for any expenses actually incurred in connection with serving as a member if the Board of Directors determines that such expenses will be reimbursed, and unencumbered funds are available for that purpose. 2 (c) Meetings of the Board of Directors. (i) Time and Place. The time and place for holding Board of Directors meetings shall be established, and may be changed at any time, by resolution of the Board of Directors. Initially, meetings shall be held as follows: (1) The Board of Directors shall conduct regular meetings on the same date, at the same time and at the same location as the regular meetings of the Town Council of the Town. Such regular meetings may occur either during or after the regular meetings of the Town Council of the Town, but may not commence earlier than the starting time for the regular meetings of the Town Council of the Town. If the Secretary does not post an agenda for a regular meeting pursuant to the Brown Act, then such failure to post shall be deemed to be a determination by the Chair that no items required discussion and, therefore, that the regular meeting of the Board of Directors has been cancelled, except as otherwise provided in the Brown Act. (2) The Board of Directors may hold special meetings at any time and from time to time in accordance with law. (ii) Legal Notice. All meetings of the Board of Directors will be called, noticed, held and conducted in accordance with the provisions of the Brown Act. (iii) Minutes. The Board of Directors will cause minutes of all meetings of the Board of Directors to be kept and shall, as soon as possible after each meeting, cause a copy of the minutes to be forwarded to each member of the Board of Directors and to the Members. (iv) Quorum. A majority of the members of the Board constitute a quorum for the transaction of business, except that less than a quorum may adjourn meetings from time to time. (v) Voting. Each Director shall have one vote. The affirmative vote of the Directors at a meeting at which a quorum is present shall be required to take any action by the Board of Directors. (d) Officers; Duties; Bonds. The Officers of the Authority shall be the Chair, Vice -Chair, Executive Director, Secretary and Treasurer. (1) The Chair shall be the person serving as the mayor of the Town; the Vice -Chair shall be the person serving as the vice -mayor of the Town; the Executive Director shall be the person serving as the Town Manager of the Town; and the Secretary shall be the person serving as the Town Clerk. The officers shall perform the duties normal to their respective offices. The Chair or the Executive Director shall sign all contracts on behalf of the Authority, and shall perform such other duties as may be imposed by the Board of Directors. The Vice Chair shall act, sign contracts, and perform 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 of Directors 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 of Directors from time to time by resolution. 3 (11) Pursuant to Section 6505.6 of the Act, the chief financial officer of the Town (currently the Director of Administrative Services of the Town) is hereby designated as the Treasurer of the Authority. The Treasurer shall be the depositary, shall have the duties and obligations set forth in sections 6505 and 6505.5 of the Act and shall assure that there shall be strict accountability of all funds and reporting of all receipts and disbursements of the Authority. Pursuant to section 6505.1 of the Act, the Treasurer shall have charge of, handle and have access to all accounts, funds, and money of the Authority and all records of the Authority relating thereto; and the Secretary shall have charge of, handle and have access to all other records of the Authority. (iii) So long as required by Section 6505 and Section 6505.5 of the Act, the Treasurer shall prepare or cause to be prepared a special audit as required under Section 6505 of the Act every year during the term of this Agreement, which may be incorporated into the audited financial statements of the Town. (iv) The Town shall determine the charges, if any, to be made against the Authority for the services of the Treasurer and the other officers of the Authority. (v) The Board of Directors shall have the power to appoint such other officers and employees as it may deem necessary and to retain independent counsel, consultants and accountants. (vi) 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. (vii) None of the officers, agents or employees directly 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. Section 5. Powers. The Authority shall have the following powers: (a) all powers separately conferred upon joint exercise of powers authorities under California law, including without limitation the Act, and (b) any and all powers that are common powers of the Members. All such powers, whether separately conferred by law or common to the Members, are specified as powers of the Authority except any such powers that are specifically prohibited to the Authority by law. The Authority's exercise of its powers is subject to the restrictions upon the manner of exercising the powers of the Town. The Authority is authorized, in its own name, to do all acts necessary for the exercise of its powers. Notwithstanding the foregoing, the Authority has any additional powers conferred under the Act or under applicable law, insofar as such additional powers may be necessary to accomplish the purposes described in Section 2. Section 6. Fiscal Year. Unless and until changed by resolution of the Board of Directors, the fiscal year of the Authority is the period from July 1 of each year to and including the following June 30. 4 Section 7. Disposition of Assets. Upon termination of this Agreement under Section 3, any surplus money in possession of the Authority or on deposit in any fund or account of the Authority will be returned in proportion to any contributions made to the Authority as required by Section 6512 of the Act. The Board of Directors 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 under Section 3, all property of the Authority, both real and personal, shall be distributed to the Town, subject to Section 8. Section 8. Contributions and Advances. Contributions or advances of public 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. Any such advance made in respect of a revenue-producing facility shall be made subject to repayment,, and will be repaid, in the manner agreed upon by the respective Member making the contribution and the Authority as provided by 6512.1 of the Act. It is mutually understood and agreed that no Member has any obligation to make advances or contributions to the Authority to provide for the costs and expenses of administration of the Authority, even though a member may do so. Any Member may allow the use of personnel, equipment or property in lieu of other contributions or advances to the Authority. Section 9. Conflict of Interest Code. The Authority hereby adopts the conflict of interest code of the Town, as it may exist from time to time, as the conflict of interest code governing the Authority. Section 10. Notices. Notices and other communications hereunder to the Members shall be sufficient if delivered to the clerk or secretary of each Member. Section 11. Addition of Member. (a) Any public agency may be added as a party to this Agreement, and become a Member, by filing with the Board of Directors a certified copy of a resolution of the governing body of such public agency whereby it agrees to the provisions of this Agreement and requests to become a Member. The Board of Directors may accept or reject any such proposal in its sole and absolute 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 of Directors voting on the matter and (ii) such public agency deposits or agrees to deposit with the Authority an amount equal to such share of the costs and expenses incurred by the Authority prior to the date of admission of such public agency as a Member, as determined by the Board of Directors in its discretion. (b) Upon satisfaction of the provisions of subsection (a) above, 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 12. Withdrawal or Exclusion of a Member. (a) Any Member may withdraw from the Authority by filing with the Board of Directors a certified copy of a resolution of the governing body of the Member expressing its desire to so withdraw, whereupon the withdrawing Member shall no longer be considered a Member for any reason or purpose under this Agreement and its rights and obligations under this Agreement shall terminate. Any Member that is dissolved or ceases to exist for any reason shall be deemed to have withdrawn from this Agreement as of the date of such Member's dissolution. 5 The withdrawal of a Member shall not affect any obligations of such Member under any contract between the withdrawing Member and the Authority. (b) No withdrawal from membership shall constitute an amendment or modification of this Agreement. (c) Notwithstanding the foregoing, no Member may withdraw from the Authority so long as there are only two members of the Authority. Section 13. Severability. If any part, term, or provision of this Agreement is decided by a court of competent jurisdiction to be illegal or in conflict with any law of the State of California, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining parts, terms or provisions hereof will not be affected thereby. Section 14. Successors; Assignment. This Agreement is binding on and inures to the benefit of the successors of the Members. No Member may assign any right or obligation hereunder without the written consent of the other Members. Section 15. Amendment. This Agreement may be amended at any time by supplemental agreement executed by all of the Members. However, any such supplemental agreement is subject to any restrictions contained in any documents related to outstanding Bonds or other obligations of the Authority. Section 16. Waiver of Personal Liability. No member of the Board of Directors, officer or employee of the Authority or any Member is individually or personally liable for any Bonds or any claims, losses, damages, costs, injury or liability of any kind, nature or description arising from the actions of the Authority or the actions undertaken under or pursuant to this Agreement. To the full extent permitted by law, the Board of Directors shall provide for indemnification by the Authority of any person who is or was a member of the Board of Directors, 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 of Directors, or an officer, employee or other agent of the Authority, against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with such proceeding, if such person acted in good faith and in the course and scope of his or her office, employment or agency. In the case of a criminal proceeding, the Board of Directors may provide for indemnification and defense of a member of the Board of Directors, or an officer, employee, or other agent of the Authority to the extent permitted by law. Section 17. Miscellaneous. 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. 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 through the officers, staff or employees of that Member in the manner provided by law. 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 Agreement. 6 IN WITNESS WHEREOF, the parities hereto have caused this Agreement to be executed by their respective duly authorized officers as of the day and year first above written. Attest: By / Diane Crane Iacopi, Town Clerk Attest: By Diane Crane Iacopi, Secretary 7 TOWN OF TABtJRON By 1,', klijf‘ JIM ERASER, Vice Mayor TIBURON PKING AUTHORITY By 7(11) J(IM4 FRASER, Vice Chair