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HomeMy WebLinkAbout1989-331 ". . " SBE00097-22/3070S/sf 08/10/89 1115 RESOLUTION NO. RQ_~11 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AUTHORIZING THE FORMATION OF THE SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY, APPROVING THE FORM OF THAT CERTAIN JOINT EXERCISE OF POWERS AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND THE CITY OF SAN BERNARDINO AND AUTHORIZING AND DIRECTING THE EXECUTION THEREOF WHEREAS, the Redevelopment Agency of the City of San Bernardino (- Agency-) and the City of San Bernardino (-City-) desire :to form a joint exercise of powers authority which shall be designated the San Bernardino Joint Powers Financing Authority. (-Authority-) pursuant to the Joint Exercise of Powers Law, codified at Section 6500, ~ Aeg., of the California Government Code (-Law-), and the Marks-Roos Local Bond Pooling Act of 1985, codified at ~ection 6584, ~ Aeg., of the California Government Code (-Act-), for the purpose of issuing Obligations of the Authority to make loans to the Ci ty and/or to the Agency in connection with the financing of public capital improvements, working capital or liability or other insurance needs and/or the refinancing of indebtedness incurred by the Agency or by the City in connection with public capital improvements undertaken and completed; and WHEREAS, a Joint Exercise of Powers Agreement (-Agreement-) providing for the formation of the Authority has been prepared and is attached hereto as Exhibit -A;- and -1- , I . WHEREAS, the Authority is authorized pursuant to the Act to issue its obligations for the purpose of making loans to local agencies to the eztent any such public agency is authorized to borrow moneys and the loan proceeds will be used to pay for public capital improvements, working capital, insurance programs or to refinance indebtedness incurred by such local agency in connection with public capital improvements undertaken and completed; and WHEREAS, the City is authorized to borrow moneys pursuant to the California Constitution, the Charter of the City of San Berflardino and the California Government Code, and the proceeds of any loan made by the Authority to the City would be used for public capital improvements, working capital or insurance programs and/or to refinance indebtedness incurred by the City in connection with Public Capital improvements undertaken and completed; and WHEREAS, the Community Development Commission of the City of San Bernardino ("Commission"), on behalf of the Agency, has determined or will determine that the formation of the Authority is in the best interests of the Agency and is needed to assist in the financing of public capital improvements, working capital, liability and other insurance needs and/or in the refinancing of indebtedness incurred by the Agency in connection with public capital improvements undertaken and completed; and WHEREAS, the Mayor and Common Council of the City of San Bernardino ("Mayor and Common Council") have duly considered the -2- . , . formation of the Authority and wish to cause the City to form the same in the public interests of the City. NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, 00 HEREBY FIND, RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. Determinations. The Mayor and Common Council hereby find and determines that the formation of the Authority is in the best interest of the Community and is needed to assist -in the reduction of borrowing costs, help accelerate the construction, repair, and maintenance of pUblic capital improvements, and promote greater use of ezisting and new financial instruments and mechanisms, such as bond pooling. The Mayor and Common Council further find and determine that the formation of the Authority shall assist the City in financing public capital improvements, working capital, liability and other insurance needs, and/or in refinancing indebtedness incurred by the City in connection with public capital improvements undertaken and completed, whenever there are significant pUblic benefits for such financing or refinancing inCluding any or all of the fOllowing: (a) demonstrable savings in effective interest rate, bond preparation, bond underwriting or bond insurance costs; (b) significant reductions in effective user charges levied by a local agency; (c) employment benefits from undertaki~g the project in a timely fashion; and (d) more efficient delivery of local agency services to residential and commercial development. -3- I . Section 2. Authorization of Formation of Authoritv. The Mayor and Common Council hereby authorize and approve the formation of the Authority pursuant to the Law and to the Act; . provided, however, that the Commission authorize and approve the formation of the Authority on behalf of the Agency prior to or contemporaneous with the adoption of this Resolution. Section 3. ADDroval of Joint: Exercise of Powers Aareement. The Mayor and Common Council hereby approve the Agreement in sUbstantially the form as is attached hereto as Exhibit. -A- together with any changes therein or additions thereto approved by the Mayor, whose execution thereof shall be conclusive' evidence of such approval. The Mayor is hereby authorized and directed to execute, and the Ci ty Clerk of the Ci ty of San Bernardino is hereby authorized to attest to, the Agreement for and in the name of the City. Section 4. Effective Date. This Resolution shall take effect upon adoption. -4- I HEREBY CERTIFY that the foregoing adopted by the Mayor and Common Council San Bernardino at a Re2Ular held on the _2ht: day of Au2USt: the fOllowing vote, to wit: resolution of the meeting was dUly Ci ty of thereof, 1989, by , AYES: Council Members Reillv. Flores. Maudselv. Minor. Pnpp--Ludl~. M:f..l1e'r NAYS: )Jnn~ ABSENT: RC!:t-'PAnA ~""~/ Cify Clerk ~~~~egOing day of ," resolution is hereby approved this I 1989. ~ . Approved as to form and legal content: By: ~~) .,,/City Atto ey . , STAT$ OF CALIFORNIA ) COUNTY OF SAN BERNARDINO) ss CITY OF SAN BERNARDINO ) . I, SHAUNA CLARK, City Clerk in and for the San Bernardino, no HEREBY CERTIFY that the foregoing and copy of San Bernardino City Resolution No. is true and correct copy of that now on file in this office. IN WITNESS WHEREOF, I have hereunto set my hand the official seal of the City of San Bernardino this , 1989. ~. City of attached a full, and affixed day of City Clerk SBEOOO~7-22/3070S . , I j. ,'" JOINT EXERCISE OF POWERS AGREEMENT BY AND BETWEEN ... CITY OF SAN BERNARDINO AND REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO SBE00097-3/3049S/1w 08/17/89 JOINT EXERCISE OF POWERS AGREEMENT , THIS JOINT EXERCISE OF POWERS AGREEMENT, dated August 21. 1989 (herein called this "Agreement"), by and between the CITY OF SAN BERNARDINO (the "City"), a municipal corporation duly organized and existing in the State of California, under and by virtue of its Charter and the Constitution and the laws of the State of California, and the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO (the "Agency"), a pUblic body, corporate and politic, - duly organized and existing under and by virtue of the laws of the' State of California. W 1. 1: ~ ~ ~ ~ ~ 1: !:!: WHEREAS, Article 1 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the "Joint Exercise of Powers Act"), authorizes the City and Agency by agreement to jointly exercise any powers common to the City and the Agency; and WHEREAS, the City and the Agency are each empowered by law to undertake certain projects and programs; and WHEREAS, the City and Agency are each authorized by law to exercise broad governmenta 1 functions and authori ty to accomp 1 ish their respective purposes, including, but not limited to, the right - 1 - . . of eminent domain. the proceeds and the right administer property; and right to to issue bonds and expend their acquire, sell. develop,: lease or WHEREAS, by this Agreement, the City and the Agency desire to create and establish the San Bernardino Joint Powers Financing Authority for the purposes set forth herein and to exercise the powers described herein; and WHEREAS. Article 4 of Chapter 5 of Division 7 of Title 1 of. the Government Code of the State of California (the "Marks-Roos Local Bond Pooling Act of 1985") authorizes and empowers the Authority to, among other things, issue bonds to provide funds for the financing of public capital improvements, working capital. liability and other insurance needs, or projects whenever there are significant public benefits, make secured and unsecured loans to the City and the Agency to refinance indebtedness of the City and the Agency incurred in connection with public capital improvements undertaken by the City and the Agency; and WHEREAS, the Marks-Roos Local Bond Pooling Act of 1985 further authorizes and empowers the Authority to sell such bonds to public or private purchasers at public or negotiated sale. NOW, THEREFORE, the consideration of the mutual contained. do agree as follows: Ci ty and promises the Agency, for and agreements and in herein :; - SECTION 1. DEFINITIONS. Unless the context otherwise requires, the terms defined in this Section 1 shall for all purposes of this Agreement have the meanings herein specified. Aqency The term "Agency" shall mean th~ Redevelopment Agency of the City of San Bernardino, a public corporation, duly organized and :: existing under and by virtue of the laws of the State of California. Authority The term "Authority" shall mean the San Bernardino Joint Powers Financing Authority created by this Agreement. Board The term "Board" shall mean the governing board of the Authori ty. City The term "City" shall mean the existing municipal corporation known as the City of San Bernardino, a city duly organized and existing under and by virtue its Charter and of the Constitution and laws of the State of California. Law The term "Law" shall mean Articles 1, 2, 3 and 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the - 3 - State of California (Sections 6500-6599), including the Marks-Roos Local Bond Pooling Act of 1985, as amended. , SECTION 2. PURPOSE. This Agreement is made pursuant to the Law to provide for the joint exercise of powers common to the City and the Agency for the purpose of financing and refinancing public capital improvements of the City and Agency by exercising the powers referred to in the recitals hereof and described in Section 5 herein. The City and the Agency desire and are willing to assist in the financing and refinancing of public improvement costs associated with public capital improvements of the City and Agency. The City and the Agency are empowered by the laws of the State of California to own, purchase. lease. sell, exchange or dispose of any rea 1 or persona 1 property or any interest in it and to enter into contracts for public capital improvements. The Authority will fulfill the purposes of this Agreement by undertaking the sale and issuance of notes and bonds in accordance with the Marks-Roos Local Bond Pooling Act of 1985. Pursuant to the Law, the proceeds of any such notes and bonds issued by the Authority shall be used for those purposes permitted under the Law, including but not limited to. the purpose of making secured and unsecured loans to the City and the Agency to refinance - 4 - indebtedness incurred by the City and the Agency incurred in connection with public capi ta I improvements undertaken by the City and the Agency. The City and the Agency hereby agree that any such notes and bonds issued by the Authority shall not constitute general obligations of the Authority but shall be payable solely from the moneys pledged to the repayment of principal of or interest on such notes and bonds under the terms of the resolution. indenture, trust agreement or other instrument pursuant to which the notes or bonds are issued. SECTION 3. rnY1. This Agreement shall become effective as of the date hereof and shall continue in full force and effect until January 1. 2029; provided, however. that in no event shall this Agreement terminate while any notes or bonds of the Authority remain outstanding under the terms of the reSOlution. indenture. trust agreement or other instrument pursuant to which such notes or bonds are issued. In any event. the Authority shall cause all records regarding its formation. existence. any notes or bonds issued 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 issued by the Authority, whichever is later. - I) - SECTION 4. AUTHORITY. A. Creation of Authority There is hereby created pursuant to the Law an agency and public entity to be known as the "San Bernardino Joint Powers Financing Authority." As provided in the Law, the Authority shall be a public entity separate from the City and the Agency. The debts, liabilities and obligations of the Authority shall not consti'tute debts, liabilities or obligations of the City:r the Agency. Within 30 days after the effective date of this Agree!TIent or any amendment hereto, the Authority will cause a notice of this Agreement or amendment to be prepared and filed with the office of the Secretary of State of the State of California in the ~anner set forth in Section 6503.5 of the Law. B. GoverninQ Board The Authority shall be administered by the Board, which shall consist of the members of the City Council of the City. The term of office of any member of the Board shall be equivalent to such member's term of office on the City Council. Members of the Board shall not receive any compensation for serving as such, but shall be entitled to reimbursement for any - (, - .. expenses actually incurred in connection with serving as a member if the Board and the City shall determine that such expenses shall be reimbursed and there are unencumbered funds available for such purpose. C. Meetinqs of Board (1) Reqular Meetinqs. The Board shall hold at least one regular meeting each year, and, by resolution, may provide for the hoiding of regular meetings at more frequent intervals. The date upon which, and the hour and place at which, each such regular ~eeting shall be held shall be fixed by resolution of the Board. (2) Leqal Notice. All meetings of the Board shall be called, noticed, held and conducted subject to the provisions of 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 (Sections 54950-54961)) or any successor legislation hereinafter enacted. (3) Minutes. The secretary of the Authority shall cause minutes of all meetings of the Board 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 and to the-" City and the Agency. - 7 - (4) Quorum. A majority of the members of the Board, shall constitute a quorum for the transaction of business, except that less than a quorum may adjourn meetings from time to time. D. Officers; Duties (1) The Mayor of the City shall serve as chairperson of the Authority and the Vice-Chairman of the City shall serve as vice-chai rperson of the Authority. appoint a Secretary of the Authority. The Board shall by resolution (2) The City Treasurer is hereby designated as Treasurer of the Authority. Subject to the applicable provisions of , any indenture, trust agreement or resolution providing for a trustee from whatever source, and, as such, shall have the powers, duties of the Authority to have custody of all the money of the Authority, or other fiscal agent, the Treasurer is designated as the depositary and responsibilities specified in Section 6505.5 of the Law. (3) The City Finance Director, who performs the functions of auditor and controller for the City, is hereby designated as Controller of the Authority, and, as such, shall have the powers, duties and responsibilities specified in Section 6505.5 of the Law. The Controller shall draw checks to payaemands against the Authority when the demands have been approved by the Authority. - fl - against the Controller. (4) The City shall determine the charges to be made Authority for the services of the Treasurer and (5) The Treasurer of the Authority is designated as the public off icer or person who has charge of, handles, or has access to any property of the Authority, and such officer shall file an official bond in the amount of $25,000 as required by Section 6505.1 of the Law; provided that such bond sha 11 not be requireti if the Authority does not POssess or own property or funds with an aggregate value of greater than $500.00. (6) The Controller of the Authority is hereby authorized and directed to prepare or cause to be prepared: (a) a special audit as required pursuant to Section 6505 of the Government Code of the State of California every year during the term of this Agreement; and (b) a report in writing on the first day of, July, October, January, and April of each year to the Board, the City and the Agency which report shall describe the amount of money held by the Treasurer and Controller of the Authority for the Board, the amount of receipts since the last such report, and the amount paid out since the first such report. - q - (7) The Board shall have the power to appoint such other officers and employees as it may deem necessary and to retain independent counsel, consultants and accountants. SECTION 5. POWERS. The Authority shall have the power to finance and refinance public capital improvements through the issuance of notes and bonds ior the purposes set forth in Section 2 hereof, all in accordance ~~i th tbe Law. The 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 of the follo\~ing: to :nake and enter into contracts; to employ agents and employees; and to sue and be sued in its own name. Such power shall be exercised subject only to such restrictions upon the manner of exercising such power as are imposed upon the City in the exercise of similar powers, as provided in Section 6509 of the Law, except, however, nothing herein shall limit the powers of the Authority under the Marks-Roos Local Bond Pooling Act of 1985. Notwithstanding the foregoing, the Authority shall have any additional powers conferred under the Law, insofar as such - 10 - additional powers may be necessary to accomplish the purposes set forth in Section 2 hereof. SECTION 6. TERMINATION OF POWERS. The Authority shall continue to exercise the powers herein conferred upon it until the termination of this Agreement as provided in Section 3 or until the City and the Agency shall have :nutually rescinded this Agreement; provided, however, that in no event '1ihall this Agreement be terminated or rescinded while any bonds of the Authority remain outstanding under the terms of the Trust Agreement or other instrument pursuant to which the bonds are issued. SECTION 7. FISCAL YEAR. Unless and until changed by resolution of the Board, the fiscal year of the Authority shall be the period from July 1 of each year to and inClUding the following June 30. SECTION 8. DISPOSITION OF ASSETS. At the end of the term hereof or upon the earlier termination of this Agreement as set forth in Section'.6 hereof, all assets of the Authority shall be distributed to the City, sUbject to the provisions of Section 9 hereof. - 11 - SECTION 9. CONTRIBUTIONS AND ADVANCES. Contributions or advances of public funds and of personnel, equipment or property may be made to the Authority by the City and the Agency 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 shall be made subject to repayment, and shall be repaid. in the ~anner agreed upon by the City or the Agency. as the case may be. and the Authority at the t"ime of making . such advance. It is mutually understood and agreed that neither the City nor the Agency 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 either may do so. The City or the Agency may allow the use of personnel. equipment or property in lieu of other contributions or advances to the Authority. After termination of this Agreement pursuant to Section 3. any surplus money in possession of the Authority shall be returned to the City and the Agency in proportion to the unreimbursed contributions each has made. SECTION 10. AGREEMENT NOT EXCLUSIVE. This Agreement shall not be exclusive and shall not be deemed to amend or alter the terms of other agreements between the Ci ty and the Agency. except as the terms of this Agreement may conflict therewith. in which case the terms of this Agreement shall '-- prevail. - 12 - SECTION 11. ACCOUNTS AND REPORTS. The Authority shall establish and maintain such funds and accounts as may be required by good accounting practice. The books and records of the Authority shall be open to inspection at all reasonable times by the City and the Agency and their representatives. The Authority shall give an audited written report of all financial activities for each fiscal year to the City and to the Agency within 150 days after the close of each fiscal year. . So long as required by Section 6505 of the Government Code of the State of California. the Controller of the Authority shall either make. or contract with a certified public accountant or pUblic accountant to make. an annual audit of the accounts and records of the Authority. In each case the minimum requirements of the audit shall be those prescribed by the State Controller for special districts under Section 26909 of the Government Code of the State of California and shall conform to generally accepted aUditing standards. When such an audit of an account and records is made by a certified public accountant or public accountant. a report thereof shall be filed as public records with the City. the Agency and. if required by Section 6505 of the Government Code of the State of California. with the County Auditor/Controller of the County of San Bernardino. Such report shall be filed within li- month's of the end of the fiscal year or years under examination. - 13 - Any costs of the audit. including contracts with. or employment of. certified public accountants or public a'ccountants. in making an audit pursuant to this section shall be borne by the Authority and shall be a charge against any unencumbered funds of the Authority available for the purpose. In any year the Authority may, by unanimous request of the Board. replace the annual special audit with an audit covering a two-year period. SECTION 12. CONFLICT OF INTEREST CODE. The Authority by resolution shall adopt a Conflict of Interest Code as required by law. SECTION 13. BREACH. If default shall be made by the City or the Agency in any covenant contained in this Agreement. such default shall not excuse either the,City or the Agency from fUlfilling its obligations under this Agreement and the City and the Agency shall continue to be liable for the performance of all conditions herein contained. The City and the Agency hereby declare that this Agreement is entered into for the benefit of the Authority created hereby' and the City and the Agency hereby grant to the Authority the right to enforce by whatever lawful means the Authority deems appropriate all of the obl~gations of each of the parties hereunder. Each and all of the - 1.; - remedies given to the Author i ty hereunder or by any law now or hereafter enacted are cumulative and the exercise of one right or remedy shall not impair the right of the Authority to any or all other remedies. SECTION 14. SEVERABILITY. Should any part, term, or provision of this Agreement be decided by the courts 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 shall not be affected thereby. SECTION 15. SUCCESSORS; ASSIGNMENT. This Agreement shall be binding upon and shall inure to the benefit of the successors of the parties. Except to the extent expressly provided herein, neither party may assign any right or obligation hereunder without the consent of the other. SECTION 16. AMENDMENT OF AGREEMENT. This Agreement may be amended by supplemental agreement executed by the City and the Agency at any time to p"iovide for the financing of pUblic capital improvements, working capital, liability and other insurance needs, or projects whenever there are significant public benefits, as determined by the City and the , < . J Agency in accordance with the Law or for any other purpose; provided, however, that in no event shall this Agreemen!: terminate whi Ie any notes or bonds of the Authority remain outstanding under any instrument pursuant to which such notes or bonds are issued. SECTION 17. FORM OF APPROVALS. Whenever an approval is required }n this Agreement, unless the context specifies otherwise, it shall be given, in. the case of the Ag1!ncy, by resolution or motion duly and regularly adopted by the members of the Agency, and, in the case of the City, by resolution duly and regularly adopted by the City Council of the City, and, in the case of the Authority, by resolution duly and regularly adopted by the Board. Whenever in this Agreement any consent or approval is required, the same shall not be unreasonably withheld. SECTION 18. SECTION HEADINGS. 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. - l~ - . IN WITNESS WHEREOF. the parties hereto have caused this agreement to be executed and attested by their prop&r officers thereunto duly authorized. and their official seals to be hereto affixed. as of the day and year first above written. ATTEST;.. ~$hW<~~ City Cler APPROVED AS TO FORM AND LEGAL CONTENT: JAl4ES F. PENMAN. CITY ATTORNEY BY~J REDEVELOPMENT AGENCY OF THE C TY OF SAN BERNARDINO APPROVED AS TO FORM ,AND LEGAL CONTENT: ~) - 17 -