Loading...
HomeMy WebLinkAboutMINUTES - 04281992 - 1.47 (2) 47 Execution Copy JOINT POWERS AGREEMENT CREATING THE ABAG FINANCE AUTHORITY FOR NONPROFIT CORPORATIONS Dated as of April 1, 1990 Revised as of July 26, 1990 April 1992 JOINT POWERS AGREEMENT TABLE OF CONTENTS Page ARTICLE I CREATION OF THE ABAG FINANCE AUTHORITY FOR NONPROFIT CORPORATIONS . . . . . . . . . . 1 ARTICLE II PURPOSES . . . . . . . . . . . . . . . 2 ARTICLE III DEFINITIONS . . . . . . 2 ARTICLE IV PARTIES TO AGREEMENT . . . . . . . 2 ARTICLE V TERM OF AGREEMENT . . . . . . . . . . . . . . 3 ARTICLE VI POWERS OF THE AUTHORITY . . . . . . . . . . . 3 ARTICLE VII MEMBER ENTITY RESPONSIBILITIES . . . . . . . . 4 ARTICLE VIII MEMBERSHIP . . . . . . . . . . . . . . . . . . 4 ARTICLE IX BOARD OF- DIRECTORS . . . . . . . . . . . . . 5 ARTICLE X COMMITTEES . . . . . . . . . . . . . . . . . . 5 ARTICLE XI BOARD AND COMMITTEE MEETINGS . . . . . . . . . 5 ARTICLE XII OFFICERS AND EMPLOYEES . . . . . . . . . . . . 6 ARTICLE XIII FISCAL YEAR . . . . . . . . . . . . . . . . . 7 ARTICLEXIV BUDGET . . . . . . . . . . . . . . . . . . . 7 ARTICLE XV ANNUAL AUDIT AND AUDIT REPORTS . . . . . . . . 7 ARTICLE XVI ESTABLISHMENT AND ADMINISTRATION OF FUNDS . .. . . . . . . . . . . . . . . . . . . . 7 ARTICLE XVII ADMINISTRATIVE COST . . . . . . . . . . 8 ARTICLE XVIII NEW MEMBERS . . . . . . . . . . . . . . . . 8 ARTICLE XIX WITHDRAWAL . . . . . 8 ARTICLE XX EXPULSION . . . . . . . . . 8 ARTICLE. XXI TERMINATION AND DISTRIBUTION 9 i Page ARTICLE XII NOTICES . . . . . . . . . . . . . . . 9 ARTICLE XXIII PROHIBITION AGAINST ASSIGNMENT . . . . . 9 ARTICLEXXIV AMENDMENTS . . . . . . . . . . . . . . . . . . 9 ARTICLE XXV SEVERABILITY . . . . . . . . . . . . . . . . . 10 ARTICLE XXVI LIABILITY OF THE AUTHORITY . . . . . . . . . . 10 ARTICLE XXVII AGREEMENT COMPLETE . . . . . . . . . . . . . . 10 ARTICLE XXVIII GOVERNING LAW . . . . . . . . . . . . . . . . 10 ii ABAG FINANCE AUTHORITY FOR NONPROFIT CORPORATIONS JOINT POWERS AGREEMENT This Agreement is made by and among the public entities, listed ' in Appendix A ("Member Entities") , all of which are public entities organized and operating under the laws of the State of California and each of which is a public agency as. defined in California Government Code Section 6500. RECITALS I. Government Code Sections 6500-6515; permitting two or more local public entities by agreement- to jointly exercise any power common to them, authorizes the Member Entities to enter in this ABAG Finance Authority For Nonprofit Corporations Joint .Powers Agreement ("Agreement") . II. Each Member Entity desires to join together with the other Member Entities for the primary purpose of assisting nonprofit corporations located within the jurisdiction or, furthering the public purposes of the Member Entities to obtain tax-exempt financing for appropriate projects and purposes. III. The governing board of each Member Entity has determined that it is in the Member Entity's best interest and in the public interest that this Agreement be executed and ,that it is participating as a member of the public entity created by. this Agreement. Now therefore, the Member Entities, by, between and among themselves, in consideration of the mutual benefits, promises and agreements set forth below, hereby agree as follows: ARTICLE I CREATION OF THE ABAG FINANCE AUTHORITY FOR NONPROFIT CORPORATIONS Pursuant to Chapter 5, Division 7, Title 1 of the Government Code of the State of California (commencing with Section 6500) (as amended from time to time, the "JPA Law") , the Member Entities, create a public agency, separate and apart, from the Member Entities to be known as the ABAG Finance Authority For Nonprofit Corporations (the "Authority") . Pursuant to Government Code Section 6508.1, the debts, liabilities, and obligations of the Authority shall not constitute debts, liabilities, or obligations of any party to this Agreement. A Member Entity may separately contract for or assume responsibility for specific debts, liabilities, or obligations of the Authority. The JPA t -1- l ' shall require indemnification on behalf of itself and its members as determined by its Board of Directors from nonprofit corporations and other entities with which it enters into agreements. For purposes of, and to the extent required by, Government Code Section 6509, in exercising its powers the , Authority shall be subject to the restrictions upon the manner of exercising the powers of the city or county Member Entity specified in the Bylaws, except as otherwise authorized or permitted by the JPA Law. ARTICLE II PURPOSES This Agreement is entered into by Member Entities under the JPA Law in order to assist nonprofit corporations and other entities to obtain financing for projects and purposes serving the public interest. ' ARTICLE III DEFINITIONS In this Agreement unless the context otherwise requires:_ "ABAG" means the Association of Bay Area Governments. "Administrative Cost" means the amount charged to each Member Entity by the Authority for the Authority's general operating costs and expenses. "Authority" shall mean the ABAG Finance .Authority For Nonprofit Corporations. "Board" or "Board of Directors" is the governing body of the Authority constituted as set forth in Article IX of this Agreement. "Bylaws" means the bylaws adopted by the Board of the Authority, as amended from time to time. "JPA Law" shall mean Chapter 5 of Division 7 of Title 1 (commencing with Section 6500) of the California Government Code, as amended from time to time. "Member Entity" includes each public agency (as defined in Section 6500 of the JPA Law) which is a party to this Agreement. ARTICLE IV PARTIES TO AGREEMENT Each Member Entity certifies that it intends to and does -2- contract. with every other Member Entity which is a signatory to this Agreement and, in addition, with such other Member Entity as may later be added as a Member Entity under ARTICLE XVIII. Each Member Entity also certifies that the deletion of any Member Entity from this Agreement does not affect this Agreement nor each Member Entity's intent to contract with the Member Entities then remaining. ARTICLE V TERM OF AGREEMENT 'thisAgreement became effective as of April 1, 1990, and continues in full force until terminated in accordance with ARTICLE XXI. ARTICLE VI POWERS OF THE AUTHORITY The Authority through its Board of Directors is authorized, in its own name, to do all acts necessary to fulfill the purposes of this Agreement referred to in ARTICLE II including, but not limited to, each of the following: A. Make and enter into contracts; B. Incur debts, liabilities and obligations; provided that no debt, liability or obligation of the Authority shall be a debt, liability or obligation of a Member Entity except as separately agreed to by a Member Entity; C. Acquire, hold or sell or otherwise dispose of real and personal property by eminent domain or other appropriate means; D. Receive contributions and donations' of property, funds, services and other. forms of assistance from any source; E. Sue and be sued in its own name; F. Employ agents and employees; G. Acquire, construct, manage. and maintain buildings; H. Lease real or personal property as lessee and .as lessor; I. Receive, collect, invest and disburse monies; J. Issue revenue bonds or .other forms of indebtedness, as provided by law; -3- F ' K. Carry out other duties as required to accomplish other responsibilities as set forth in this Agreement; L. Assign, delegate or contract with a Member Entity or third party to perform any of the duties of the Board, including but not limited to, acting as administrator for the Authority; and M. Exercise all other powers necessary and proper to carry out the provisions of this Agreement. These powers shall be exercised in the manner provided by applicable law and as expressly set forth in this Agreement. ARTICLE VII MEMBER ENTITY RESPONSIBILITIES Each Member Entity is, and shall remain throughout the term of its membership in this Authority, a member or cooperating member of the Association of Bay Area Governments ("ABAG") , and further has the obligations and responsibilities set forth in this Agreement and the Bylaws. ARTICLE VIII MEMBERSHIP A. Voting Members. All public agencies in the State shall be eligible to join the Authority as Voting Members subject to the approval of the Board of Directors. B. Associate Membership. 1. Those public agencies located outside of the nine (9) San Francisco Bay Area Counties shall be eligible to join the Authority as Associate Members, subject to the approval of the Board of Directors. 2. Associate Members shall be entitled to attend all meetings of the Board of Directors but shall not be entitled to vote or participate in debate. Further, no representative of an Associate Member may become an officer or director of the Authority. 3. Eligible nonprofit corporations located within the jurisdictional limits of an Associate Member shall be entitled to apply to the Authority for assistance in obtaining tax-exempt financing for their projects and purposes serving the public interest which qualify for financing under the Authority's Financing Guidelines. -4- C. For the purposes of this Agreement, both Voting Members and, Associate Members shall be referred to as "Member Entities. " ARTICLE IX BOARD OF DIRECTORS There shall be a Board of Directors to govern the affairs of the Authority. The Board shall be comprised of one director, and two alternate directors, from each Member Entity. Each director has one vote. One alternate director may cast a vote as a member of the Board of Directors only in the absence of the director. Each director shall be an elected official of the Member Entity. Each director shall be designated by the governing board of the respective Member Entity. The alternate directors shall be appointed by the director. Directors and alternate directors are not entitled to compensation. The Board may authorize reimbursement of expenses incurred by directors or alternate directors. - The powers of the Board are each of the powers. of the Authority not specifically reserved to the Member Entities by this Agreement. The Member .Entities retain the following powers: A. The designation of the Board of Directors as specified in ARTICLE IX; and B. Approval of an amendment to this Agreement as specified in ARTICLE XXIV. ARTICLE X COMMITTEES Executive Committee. The Board may create an Executive Committee comprised of members of the Board and delegate one or more of its powers to the Executive Committee. An appointment to the Executive Committee is as set forth in the Bylaws. Other Committees. The Board may create other committees, as desired, pursuant to the requirements of the Bylaws. ARTICLE XI BOARD AND COMMITTEE MEETINGS The Board shall hold at least one regular meeting each year, at which time the Board shall elect its officers as appropriate to 'comply with ARTICLE XII. The Board shall fix the date, hour -5- and place at which each regular meeting is to be held. To the extent practicable, each Board meeting shall be held in Alameda County. The Chair presides at all meetings. A special meeting may be called upon written request by the Chair or at least one- third of the Member Entities. Each regular, adjourned regular, and special meeting of the Board and all committees shall be called, noticed, held and conducted in accordance with the Ralph M. Brown Act (Sections 54950, et sea. of the Government Code) . The Secretary shall keep or have kept minutes of each regular meeting of the Board and each committee. As soon as possible after each meeting, the Secretary shall have a copy of those minutes forwarded to each member of the Board and relevant committee. . As soon as practicable after the first meeting of the Board or within such time as fixed or extended by the Board, the Board shall approve Authority Bylaws and administrative policies and procedures for the transaction of its business to govern the day- to-day operations of the Authority. The adoption of Authority Bylaws and administrative policies and procedures requires a vote of two-thirds (2/3) of all Member Entities. No business may be transacted by the Board without a quorum of members of the Board being present except that less than a quorum may adjourn from time to time. A quorum consists of a majority of the members of the Board. ARTICLE XII OFFICERS AND EMPLOYEES The Officers of the Authority are the Chair, Vice-Chair, President, Chief Financial Officer and Secretary. The officers shall be elected or appointed by the Board at its first meeting. The term of office for Chair, Vice-Chair and Secretary is one year. The President and Chief Financial Officer shall serve as set forth in the Bylaws. The duties of the officers shall be as provided in the Bylaws. The officers shall assume the duties of their offices upon formation of the authority or as appropriate. If either the Chair, Vice-Chair or Secretary ceases to be a member of the Board, the resulting vacancy shall be filled at the next regular meeting of the Board held after. the vacancy occurs. Officers are not entitled to compensation. The Board may authorize reimbursement of expenses incurred by officers." The Board may appoint such officers and employees and may -6- contract with such persons or firms as it -considers necessary to carry out the purposes of this Agreement. ABAG is hereby designated to. act as the administrative agency. The Member Entities acknowledge that this designation may cause potential conflicts to arise and waive any liability on the part of ABAG except for its fraud, gross negligence or mismanagement. ABAG may not be removed as the administrative agency except by reason of its fraud, gross negligence or mismanagement or by unanimous vote of the Board. ABAG shall be reimbursed by the Authority for services rendered on the Authority's behalf. ARTICLE XIII FISCAL YEAR The first fiscal year of the Authority is the period from the date of this Agreement through June 30, 1990. Each subsequent fiscal year of the Authority shall end on June 30. ARTICLE XIV BUDGET The Board shall adopt an annual budget not later than sixty (60) days before the beginning of each fiscal year. ARTICLE XV ANNUAL AUDIT AND AUDIT REPORTS The Chief Financial Officer shall cause an annual financial audit to be made by an independent certified public accountant with respect to all Authority receipts, disbursements, other transactions and entries into the books. A report of the financial audit shall be filed as a public record with each Member Entity. The audit shall be filed no later than required by State law. The Authority shall pay the cost of the financial audit and charge the cost against the Member Entities in the same manner as other administrative costs. _ ARTICLE XVI ESTABLISHMENT AND ADMINISTRATION OF FUNDS The Authority is responsible for the strict accountability of all funds and reports of all receipts and disbursements. It shall comply with every provision of law relating to the establishment and administration of funds, particularly Section 6505 of the California Government Code. -7- The funds shall be accounted for on a full accrual basis. The Chief Financial officer shall receive, invest, and disburse funds only in accordance with procedures established by '1 the Board and in conformity with applicable law. The Authority shall require the Chief Financial Officer to procure errors ' and omissions insurance or' a fidelity bond. ARTICLE XVII ADMINISTRATIVE COST The Board may establish the Administrative Costs of the Authority, if any, for each fiscal year and may approve a formula for allocating these Administrative Costs among Member Entities for each fiscal year. The Board may in its discretion impose fees in connection with financings, which fees will be applied against Administrative Costs of the Member Entities in the manner the Board shall determine proper. ARTICLE XVIII NEW MEMBERS A new public entity may be admitted as a Member Entity only upon a two-thirds (2/3) vote of the Board of Directors. Each applicant for membership shall pay all fees and expenses set by the Board. ARTICLE XIX WITHDRAWAL Member Entities may withdraw at any time on thirty (30) days written notice subject to the following exceptions: 1) the restrictions of Article XXI; and 2) a Member Entity may not withdraw prior to the closing of a financing for which it has provided authorization as set forth in the Bylaws. ARTICLE XX EXPULSION Subject to the restrictions of Article XXI, the Authority may expel a Member Entity from the Authority by a two-thirds (2/3) vote of the Board of Directors for a breach of this Agreement or the Bylaws determined by the Board to be a material breach. The procedure for hearing and notice of expulsion of a -8- Member Entity shall be as provided in the Bylaws. ARTICLE .XXI TERMINATION AND DISTRIBUTION . This Agreement shall continue until terminated. However, it cannot be terminated until such time as all principal of and interest on revenue bonds and other evidences of indebtedness issued by the Authority shall have been paid in full. Thereafter, this Agreement may be terminated by the written consent of two-thirds of the Member Entities; provided, however, that this Agreement and the Authority shall continue to exist after termination for the purpose .of disposing of all claims, distribution of assets and all other functions necessary to conclude the .obligations and affairs of the Authority. After completion of the Authority's purposes, any surplus money on deposit in any fund or account of the Authority shall be returned in proportion to the contributions made as required by Section 6512 of the California Government Code. In the event such surplus is generated from proceeds of any financing for a nonprofit corporation or the payment to the Authority of amounts due with respect to any obligations of a nonprofit corporation, such surplus shall be distributed as provided in the applicable trust agreement. The Board is vested with all powers of the Authority for the purpose of concluding and dissolving the business affairs of the Authority. ARTICLE XXII NOTICES Notices to each Member Entity under this Agreement are sufficient if mailed to its respective address on file with the Authority. ARTICLE XXIII PROHIBITION AGAINST ASSIGNMENT No Member Entity may assign a right, claim, or interest it may have under this Agreement. No creditor, assignee or third party beneficiary of a Member Entity has a right, claim or title to any part, share, interest, fund or asset of the Authority. ARTICLE XXIV AMENDMENTS This Agreement may be amended by a unanimous vote of the -9- Member Entities of the Authority acting through their governing bodies. A proposed amendment must be submitted to each Member Entity at least thirty (30) days in advance of the date when the Member Entity considers it. An amendment is to be effective immediately unless otherwise designated. Appendix A to the. Agreement may be amended to correctly list current Member ' Entities without separate action by the Member Entities or the Board. ARTICLE XXV SEVERABILITY If a portion, term, condition or provision of this Agreement is determined by a court to be illegal or in conflict with a law of the State of California, or is otherwise rendered unenforceable or ineffectual, the validity of the remaining portions, terms, conditions and provisions is not affected. ARTICLE XXVI LIABILITY OF THE AUTHORITY Subject to limitations thereon contained in any trust agreement or other documents pursuant to which financings of the Authority are implemented, funds of the Authority may be used to defend, indemnify, and hold harmless the Authority, any Member Entity, any member of the Board and any employee or officer of the Authority for their actions taken within the scope of their duties while acting on behalf of the Authority. ARTICLE XXVII AGREEMENT COMPLETE The foregoing constitutes the full and complete Agreement of the Member Entities. There are no oral understandings or agreements not set forth in writing herein. ARTICLE XXVIII GOVERNING LAW This Agreement shall be governed by and construed in -10- accordance with the las of the State of California. .IN WITNESS WHEREOF, the parties hereto have executed this Agreement as .of the day and year written below. APPROVED AS TO LEGAL FORM Legal Coun el. Chair. 80aW of Supervisors . Dated:- Phil ated: Phil Batchelor, Clerk of the Board of Supervisors and County Administrator Attest: By: -11- Receipt Acknowledged and Designation as Administrative Agency Accepted: Dated: ASSOCIATION OF BAY AREA GOVERNMENTS By: Revan A. F. Tranter Executive Director -12-