HomeMy WebLinkAboutr 10559 Public Financing Authority RESOLUTION NO. 10559 (2011 Series)
A RESOLUTION OF THE CiTY COUNCIL OF THE CITY OF SAN LUIS OBISPO,
CALIFORNIA, APPROVING A ,iO1NT EXERCISE OF POWERS AGREEMENT
CREATING THE SAN LUIS OBISPO PUBLIC FINANCING AUTHORITY, AND
AUTHORIZING CERTAIN OTHER RELATED ACTIONS
WHEREAS, the Joint Exercise of Powers Act (Government Code section 6500 and
following) (the "Act") authorizes two or more public agencies to enter into an agreement to
jointly exercise any power common to them. The Act also authorizes the public agencies to
provide in the agreement for the creation of a separate joint-powers authority that has the power
to exercise any powers common to the agencies as specified in the agreement and to exercise the
additional powers granted to the joint-powers authority by the Act or other applicable law; and
WHEREAS, The City and the Parkins Authority of the City of San Luis Obispo are
public agencies under the Act; and they desire to create ajoint-powers authority. to be known as
the San Luis Obispo Public Financing Authority (the "Financing Authority"), for the purposes of
assisting any member agency of the Financing Authority (each a "Member") with the following:
acquiring, constructing, improving, rehabilitating, or financing capital improvements or other
assets: financing working capital and addressing other cash now needs; refinancing any
outstanding- obligations; and making loans to or otherwise assisting with financings for entities
(public or private) that are not Members but are either controlled by a Member or determined by
a Nlember to be of benefit to the Member: and
WHEREAS, the City desires to enter into ajoint-exercise-of-powers agreement that is
substantially in the form on file with the City Clerk, a copy of which is attached to this resolution
(the "Agreement`); for the purposes set forth in the Agreement and described above and to
exercise the powers provided in the Agreement and under the Act and other applicable law.
NOW, THEREFORE BE 1T RESOLVED by the Council of the City of San Luis
Obispo, as follows:
SECTION 1. The statements in paragraphs A. B, and C of the Background are true.
SECTION 2. The proposed form of the Agreement on file with the City Clerk is hereby
approved. The Mayor, Vice Mayor, the City Manager, and the City Finance Director. or the
designee of any of them (each an "Authorized Officer'), are each hereby authorized and directed,
on the City's behalf, to sign and deliver the Agreement. which must be substantially in the form
on file with the City Clerk. with such changes as the signing Authorized Officer may require or
approve with the concurrence of the City Attorney or his or her designee, such approval to be
conclusively evidenced by the execution and delivery of the Agreement.
SECTION 3. The City Clerk or his or her designee is hereby authorized to attest the
signature of the Authorized Officer who signs the Agreement.
Each Authorized Officer acting alone is hereby authorized and directed to do any and all
things and to sign and deliver any documents they deem necessary or desirable to implement the
Agreement and otherwise carry out, give effect to; and comply with this resolution; and all such
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actions previously taken by an Authorized Officer are hereby ratified. This resolution takes effect
when adopted.
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i Upon motion of Mayor Mars, seconded by Council Member Ashbaugh; and on the
following roll call vote:
AYES: Council Members Ashbaugh and Carpenter. Vice Mayor Christianson and
Mayor Mars
NOES: Council Member Smith
ABSENT: None
The foregoing resolution was adopted this 2nd day of September 2014.
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MayoraI Mars
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Resolution No. 10559 (2014 Series)
Page ') EXHIBIT A
JOINT EXERCISE OF POWERS AGREEMENT
between the
CITY OF SAN LUIS OBISPO
and the
PARKING AUTHORITY OF THE CITY OF SAN LUIS OBISPO
creating the
SAN LUIS OBISPO PUBLIC FINANCING AUTHORITY
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JOINT EXERCISE OF PONVERS AGREEMENT
This Joint Exercise of Powers Agreement is between the CITY OF SAN LUIS OBISPO. a
California municipal corporation (the "City"), and the PARKING AUTHORITY OF THE CITY
OF SAN LUIS OBISPO, a public body corporate and politic organized and existing under and
by virtue of the laws of the State of California (the "Parking Authority"). The City. the Parking
Authority, and any other public agency added to this Agreement under Section 17 are
individually referred to as a "Member" and are collectively referred to as the "Members."
Capitalized terns used in this agreement have the meanings given them in Section 2 unless
otherwise defined.
Background
Under the Act, two or more public agencies may by agreement jointly exercise any power
common to them. Each Member is a "public agency' as that term is defined in section 6500 of
the Act; and each is empowered by law to issue debt and to acquire and dispose of real property.
The Act authorizes the Members to create a joint-powers authority with the authority to
exercise any powers common to the Members and to exercise the additional powers granted to it
by the Act or other applicable law. By this Agreement, each Member desires to create and
establish the San Luis Obispo Public Financing Authority for the purposes set forth below and to
exercise the powers provided below.
111th these backgrorn d facts in mind, the 9lembers agree urs follows:
1. Purpose. This Agreement is made pursuant to the Act relating to the joint exercise of
powers common to public agencies. Each Member possesses the common power referred
to in the Background above. This Agreement is entered into by each Member in order to
provide for the exercise by the Authority of such common powers and to provide for the
exercise of all additional powers given to a joint-powers authority under the Act, the
Marks-Roos Act, or any other applicable law for purposes of assisting any Member in
acquiring, constructing, improving, rehabilitating; or financing capital improvements or
other assets; financing working capital and addressing other cash-flow needs: refinancing
any outstanding obligations; and making loans to or otherwise assisting with financings for
entities (public or private) that are not Members but are either controlled by a Member or
determined by a Member to be of benefit to the Member.
2. Definitions.
(a) "Act" means the Joint Exercise of Powers Act (California Government Code section
6500 and following); as amended from time to time.
(b) "Agreement" means this Joint Exercise of Powers Agreement as it may, from time
to time, be amended.
(c) "Authority" means the San Luis Obispo Public Financing Authority created by this
Agreement.
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(d) "Board" means the board of directors that serves as the governing body of the
Authority.
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(e) "Bonds" has the meaning given to such term in the Marks-Roos Act.
(t) "Effective Date" means the date identified in Section 21 below.
(g) "Marks-[Zoos Act` means the Marks-Roos Local Bond Pooling Act of 1985
(California Government Code section 6584 and following), as amended from time to
time.
3. Term. This Agreement is effective as of the Effective Date and will continue in full force
and effect for 50 years after the Effective Date or until it is terminated in writing by all the
Members, subject to the following: in no event will 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 by
which the Bonds are issued or other obligations are incurred. The 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 years
following tennination of the Authority or final payment of any Bonds issued by the
Authority, whichever is later.
4. Authority
(a) Creation of Authority. As authorized by the Act, there is hereby created an agency
and public entity to be known as the San Luis Obispo Public Financing Authority,
which is a public entity separate and apart from the Members. The debts, liabilities,
and obligations of the Authority will not constitute debts, liabilities, or obligations of
the Members. individually or collectively.
(1) Within 30 days after the Effective Date or the date of any amendment to this
Agreement, the Authority shall cause a notice of this Agreement or amendment
to be prepared and filed with the office of the California Secretary of State in
the manner set forth in section 6503.5 of the Act.
(2) Within 70 days after the Effective Date, and within 10 days after any change of
facts required by section 53051(6) of the California Government Code to be
stated, the Authority shall cause a notice to be prepared and filed with the
office of the California Secretary of State and with the County Clerk of each
county in which the Authority maintains an office. in the manner set forth in
section 53051 of the California Government Code.
(b) Board. The Authority will be administered by the board of directors consisting of
the members of the San Luis Obispo City Council. The tern of office of a director is
equivalent to the director's term of office on the San Luis Obispo City Council.
Directors are not entitled to any compensation for serving on the Board but are
entitled to reimbursement for any expenses actually incurred in connection with that
service if the Board approves reimbursement and unencumbered funds are
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appropriated for that purpose.
(c) Meetings of the Board
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(1) Legal Notice. The Board shall call; notice, hold. and conduct its meetings
subject to the Ralph M. Brown Act (California Government Code sections
54950 through 54962) or any successor legislation (the "Brown Act").
(2) Regular Meelings. The Board shall hold its regular meetings concurrently with
the regular meetings of the San Luis Obispo Cite Council unless the Board
provides by resolution for the holding of regular meetings upon a different
schedule. To the extent permitted by the Brown Act. the Board's regular
meetings may be held by teleconference.
(3) Special iL/eeiings. The Board may call special meetings as authorized by
section 54956 of the California Government Code. To the extent permitted by
the Brown Act; the Board's special meetings may be held by teleconference.
(4) dlinures. The Secretary of the Authority shall cause minutes of all meetings of
the Board to be kept and shall cause a copy of the minutes to be forwarded to
each member of the Board and to the Members as soon as possible after each
meeting.
(5) Quorum. A majority of the members of the Board constitutes a quorum for the
transaction of business, except that less than a quorum may adjourn meetings
from time to time.
(6) Bylaivs. The Board may adopt such bylaws, rules, and regulations as are
necessary for the purposes of this Agreement.
(d) Officers and their Duties
(1) The following City officers will serve ex officio as the officers of the
Authority:
City Officer Es Officio Authoritv Officer
Mayor . . . . . . . Chair
Vice Mayor . . . . . Vice Chair
City Clerk . . . . . . Secretary
City Treasurer . . . . Treasurer
Director of Finance . . . Controller
(2) Subject to the applicable provisions of' any indenture, trust agreement, or
resolution providing for a trustee or other fiscal agent, and except as may
otherwise be specified by resolution of the Authority, the Treasurer is hereby
designated as the depositary of the Authority to have custody of all the money
of the Authority, from whatever source. and has the powers, duties, and
responsibilities of the treasurer of the Authority specified in sections 6505.5
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and 65095 of the Act. The Treasurer shall draw checks to pay demands
against the Authority when the demands have been approved by the Board.
(3) Subject to the applicable provisions of any indenture, trust agreement, or
resolution providing for a trustee or other fiscal agent, and except as may
otherwise be specified by resolution of the Authority, the Controller is
designated as the auditor and controller of the Authority and has the powers,
duties, and responsibilities of the auditor or controller of the Authority
specified in sections 6505 and 65055 of the Act.
(4) The Board shall determine the charges to be made against the Authority for the
services of the Treasurer and the Controller.
(5) The Treasurer is hereby designated as the public officer or person who has
charge of, handles, or has access to any property of the Authority, and the
Treasurer shall file an official bond in the amount of$25,000 as required by
section 6505.1 of the Act, except as lollows: a bond is not 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).
(6) The Controller is hereby authorized and directed to prepare or cause to be
prepared a special audit as required by section 6505 of the Act every year
during the term of this Agreement unless the Board elects otherwise in
accordance with the Act. The Controller is hereby directed to report in writing-
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ritingon the first day of July. October, January, and April of each year to the Board
and the Members. The report must describe the amount of money held by the
Treasurer for the Authority, the amount of receipts since the last such report,
and the amount paid out since the last report (which may exclude amounts held
by a trustee or other fiduciary in connection with any Bonds to the extent that
such trustee or other fiduciary provides regular reports covering such
amounts).
(7) The San Luis Obispo City Attorney shall sere as Legal Counsel to the
Authority. The City Attorney shall receive no additional compensation beyond
that provided by the City of San Luis Obispo pursuant to contract between the
City Attorney and the City.
California Rules of' Professional Conduct, Rule 3-310 (C)(1) and (C)(2)
proscribe that "[a] member shall not, without the informed written consent of
each client...[a]ccept representation of more than one client in a matter in
which the interests of the clients potentially conflict...[or] accept or continue
representation of more than one client in the same matter in which the interests
of the client actually conflict."
While the parties hereto and the City Attorney believe the interests of the
parties to be aligned in forming the Authority and facilitating the financing of
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municipal projects; as deemed appropriate by the City Council and the
Authority, the parties acknowledge that disagreements regarding rights and
obligations of the respective parties can arise between separate legal entities in
the implementation of the objectives of the Agreement and/or in the course of
individual transactions pursuant hereto. The Parties further understand and
acknowledge that that the City Attorneys joint representation of the Parties
means that there is not an individual attorney-client privilege within the joint
client relationship and the City Attorney will disclose to all joint clients
significant developments and information in the representation. With the
foregoing understandings and acknowledgements, the Parties hereby accept
and consent to the City Attorney's joint representation of the parties. In the
event that any actual dispute or conflict should arise between the Parties, the
Parties further agree that the City Attorney shall withdraw from the
representation of the Authority and that the Parties agree and consent to the
City Attorney's continued representation of the City of San Luis Obispo and its
Council.
(8) The Board is authorized to appoint such other officers and employees as it
deems necessary and to retain special counsel, consultants, administrators, and
accountants.
(9) All of the privileges and immunities from liability; all exemptions from laws,
ordinances, and rules; and all pension, relief, disability, workers'
compensation, and other benefits that apply to the activities of officers, agents,
or employees of the Members when performing their functions within the
territorial limits of the respective Members will apply to them to the same
degree and extent while they are performing any of their functions and duties
extraterritorially under this Agreement.
(10) A person directly employed by the Authority will not be deemed because of
that employment to be employed by any Member or to be subject to any
requirements of any Member.
(11) The Members hereby confirm that, as provided in the Act and in Section 4(a)
of this Agreement, the debts, liabilities, and obligations of the Authority will
not constitute debts, liabilities, or obligations of the Members, and the
Members do not intend by paragraphs (A), (B), and (C) of this section to
impair this provision. r
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(A) The Members are jointly and severally liable upon any liability imposed
for injury caused by a negligent or wrongful act or omission occurring in
the performance of this Agreement, as provided in section 895.2 of the
California Government Code.
(B) The Members may agree to provide for contribution or indemnification
by any of the Members upon any liability arising out of the performance
of this Agreement.
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(C) Unless the Members agree otherwise, each party has a right to
contribution, as provided in section 895.6 of the California Government
Code, from an}, of the other Members.
5. Authority Powers.
(a) The Authority has the power, in its own name. to exercise the common powers of the
Members described above in Section 1 and to exercise all additional powers given to
ajoint-powers authority by the Act, the Marks-Roos Act, or any other applicable law
for any purpose authorized under this Agreement. Without limiting the generality of
the preceding sentence, the Authority has the power to make and enter into contracts;
to employ agents and employees; to acquire, construct, manage, maintain, or operate
any building, works, or improvements: to acquire, hold, or dispose of property; to
incur debts, liabilities, or obligations; and to site and be sued in its own name.
(b) The Authority is authorized, in its own name, to do all acts necessary for the exercise
of its powers for its authorized purposes.
(c) The Authority's exercise of its powers is subject only to the restrictions upon the
manner of exercising those powers that are imposed upon the City in the exercise of
its similar powers, as provided in section 6509 of the Act, except that nothing in this
Agreement limits the powers of the Authority under the Marks-Roos Act or other
applicable law.
(d) Notwithstanding the foregoing, the Authority has any additional powers conferred
under the Act, the Marks-Roos Act, or other applicable law insofar as the additional
powers may be necessary to accomplish the purposes set forth above in Section I.
6. Termination of Powers. The Authority will continue to exercise the powers conferred
upon it until this Agreement is terminated under Section 3 above.
7. Fiscal Year. Unless changed by resolution of the Board, the fiscal year of the Authority is
the period from July 1 of each year to and including the following June 30, except for the
first fiscal year, which is the period from the Effective Date to the following June 30.
8. Disposition of Assets. After termination of this Agreement, any surplus money in
possession of the Authority or on deposit in any fund or account of the Authority must be
returned in proportion to any contributions made, as required by section 6512 of the Act,
and all property of the Authority, both real and personal, is to be divided among the
Members in the manner determined by the Board. The Board is vested with all powers of
the Authority for the purpose of concluding and dissolving the business affairs of the
Authority.
9. Contributions and Advances. The Members may contribute or advance public funds and
personnel, equipment, and property to the Authority for any of the purposes of this
Agreement. Payment of public finds may be made to defray the cost of any such
purposes. Any advance must be made subject to repayment, and must be repaid, in the
manner agreed upon by the contributing Member and the Authority at the time of the
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advance. No Member is obligated to make contributions or advances to the Authority for
the costs and expenses of administration of the Authority, even though any Member may
do so. The Members may allow the use of personnel, equipment, or other items in lieu of
other contributions or advances to the Authority.
10. Agreement Not Exclusive. This Agreement is not exclusive and does not amend or alter
the terns of other agreements between the Members. except as follows: if a conflict exists
between this Agreement and any other agreement between the Members, then this
Agreement will control.
11. Accounts and Reports. The Authority shall establish and maintain funds and accounts as
required by good accounting practice and shall strictly account for all funds and reports of
all receipts and disbursements. The books and records of the Authority will be open to
inspection at all reasonable times by the Members and their representatives.
12. Conflict of Interest Code. The Authority shall adopt a Conflict of Interest Code as
required by law.
13. Breach. If a Member defaults on any covenant in this Agreement, then the default will not
excuse the Member from fulfilling its obligations under this Agreement, and the Members
will continue to be liable for the performance of all conditions in this Agreement. The
Members hereby declare that this Agreement is entered into for the benefit of the Authority
created hereby, and the Members hereby grant to the Authority the right to enforce, by
whatever lawful means the Board deems appropriate, all of the obligations of each of the
Members under this Agreement. Each of the remedies given to the Authority by this
Agreement or by any law in effect on or after the Effective Date are cumulative, and the
exercise of one right or remedy will not impair the right of the Authority to any other
remedies. This Agreement does not create any indebtedness of any Member, and neither
the tax revenues nor the faith and credit of any Member are pledged or encumbered by this
Agreement.
14. Successors and Assignment. This Agreement binds and inures to the benefit of the
successors of the Members. Except to the extent expressly provided herein, a Member
may not assign any right or obligation under this Agreement without the consent of the
other Members
15. Amendments. This Agreement may be amended only by another written agreement
executed by the Members, subject to the following: the Members may terminate this
Agreement only in accordance with Section 3 above.
16. Form of Approvals. Unless the context specifies otherwise, if this Agreement requires an
approval, then, in the case of a Member, approval must be given by a resolution duly and
regularly adopted by the governing body of the Member. and, in the case of the Authority,
approval must be given by a resolution duly and regularly adopted by the Board.
Whenever in this Agreement any consent or approval is required, the consent or approval
may not be unreasonably withheld or conditioned.
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17. Withdrawal and Addition of Members. A Member may withdraw from this Agreement
by giving written notice to the Board, but a withdrawal will not result in dissolution of the
Authority 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 by which the Bonds are issued or other obligations are incurred. Any
withdrawal will be effective only when the Board receives written notice of the
withdrawal, and the Board shall acknowledge receipt of the notice in writing and file the
notice as an amendment to this Agreement effective upon filing with the California
Secretary of State in accordance with Section 4 above. Additional public agencies may be
added to this Agreement and become Members, subject to the terns and conditions
imposed by the then-existing Members, upon both of the following: the filing by the public
agency of an executed counterpart of this Agreement, together with a certified copy of the
resolution of the public agency's governing body approving this Agreement and the
execution and delivery of it; and the adoption of a resolution of the Board approving the
addition of the public agency as a Member. Upon satisfaction of these conditions, the
Board shall file the executed counterpart as an amendment to this Agreement, effective
upon filing with the office of the California Secretary of State in accordance with Section 4
above.
18. Waiver of Personal Liability. No member, officer, or employee of the Authority or of any
Member will 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
Authority or the actions undertaken under 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 director on 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 director on the Board or an officer, employee, or
other agent of the Authority, against expenses, judgments, tines, settlements, and other
amounts actually and reasonably incurred in connection with the proceeding, if the 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 may provide for indemnification and
defense of a director on the Board or an officer, employee, or other agent of the Authority
to the extent permitted by law.
19. Section Headings. All section headings are for convenience of reference only and are not
intended to define or limit the scope of any provision of this Agreement.
20. Counterparts. The Members may execute this Agreement in any number of counterparts,
each of which will be considered an original, but all of which will together constitute the
same Agreement.
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21. Effective Date. This Agreement becomes effective on the day immediately before the day '
on which the notice of this Agreement is filed with the California Secretary of State.
22. Severability if any court determines that any part, term, or provision of this Agreement is
illegal or in conflict with any law of the State of California, or if any part, term or
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provision of this Agreement is otherwise rendered unenforceable or ineffectual, then the
validity of the remaining parts, terms or provisions of this Agreement will not be affected.
21 Entire Agreement. This Agreement sets forth the Members' entire understanding
regarding the matters set forth above and is intended to be their final. complete, and
exclusive expression of those matters.
(Signature Page Follotvs)
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City of Sun Luis Obispo Parking Authority of the City of San Luis
Obispo //�� _ �/��
By: By: 1 Xi— 1 v ta,
Jan Marx Jan Marx
Mayor Chaive
prson
Date: . 2014 Date 2014
Attest
San Luis Obispo City Clerk
By:
Anthony J. Mejia, MMC
Approved as to Form
San Luis Obispo City Atto v
f
By:
J. istine Dietrick
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