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Res 91-116RESOLUTION NO. 91-116 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY APPROVING THE JOINT EXERCISE OF POWERS AGREEMENT BETWEEN THE CITY OF POWAY AND THE POWAY REDEVELOPMENT AGENCY CREATING THE POWAY PUBLIC FINANCING AUTHORITY WHEREAS, the City of Poway (the "City") has established the Poway Redevelopment Agency (the "Agency") pursuant to the Community Redevelopment Law (Health and Safety Code Section 33000 et seq.); and WHEREAS, the City and the Agency believe that the purposes of the Agency will be served by undertaking the proposed issuance of bonds through a financing authority created pursuant to the Marks-Roos Local Bond Pooling Act of 1985. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES HEREBY RESOLVE AS FOLLOWS: Section 1. The Joint Exercise of Powers Agreement (in the form attached hereto as Exhibit A) creating the Poway Public Financing Authority, is hereby approved. Section 2. The Mayor and the City Clerk are hereby authorized and directed to execute and attest the agreement, respectively, and to execute such other documents as may be necessary to complete the formation of the authority created by the agreement. Section 3. The City Manager is hereby authorized and directed to file such notice or documents and to take such other actions as are necessary to complete the formation of the authority created by the agreement. Section 4. There shall be held a special meeting of the Authority at the time and place at which this resolution is adopted and the prior giving of notice of such meeting by staff is hereby ratified, confirmed and approved. Resolution No. 91-116 Page 2 PASSED, ADOPTED AND APPROVED by the City Council of Poway, california, at a regular meeting thereof this 8th ~y of October, 1991. ATTEST: Marjorie'\K. Wahlsten, Secretary ~ Goldsmith, chairman STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN DIEGO ) I, Marjorie K. Wahlsten, city Clerk of the City of Poway, do hereby certify the foregoing Resolution No. 91-116 was duly adopted by the City Council at a meeting of said City Council on the 8th day of October, 1991 and that it was so adopted by the following vote: AYES: EMERY, SNESK0, G0kDSMIIH NOES: NONE ABSTAIN: MC INIYRE ABSENT: HIG~IN$0N Marjorie ~. Wahlsten, city Clerk city of Poway EXHIBIT A Resolution No. 91-116 Page 3 JOINT EXERCISE OF POWERS AGREEMENT THE CITY OF POWAY AND POWAY REDEVELOPMENT AGENCY THIS AGREEMENT (the "Joint Exercise of Powers Agreement") is dated as of October 8, 1991, by and between the City of Poway (the "City") and the Poway Redevelopment Agency (the "Agency"), each duly organized and existing under the laws of the State of California; WI TNESSETH WHEREAS, the City and the Agency from time to time undertake the financing of public capital improvements and other projects for revitalization of the City and the City and the Agency wish to form a joint powers authority under the Joint Exercise of Powers Law of the State of California (constituting Chapter 5 of Division 7 of Title 1 of the California Government Code) (hereinafter defined as the "Act") for the purpose of establishing a vehicle which may reduce local borrowing costs and promote the greater use of existing and new financial instruments and mechanisms; WHEREAS, the Marks-Roos Local Bond Pooling Act of 1985 (constituting Article 4 of the Act) (hereinafter defined as the "Bond Law") authorizes agencies formed under the Act to assist in the financing of public capital improvements to be owned by any of its members. NOW, THEREFORE, in consideration of the above premises and of the mutual promises herein contained, the City and the Agency do hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01. Definitions. Unless the context otherwise requires, the words and terms defined in this Article I shall, for the purpose hereof, have the meanings herein specffied. "Act" means Articles 1 through 4 (commencing with. section 6500) of Chapter 5, Division 7, Title 1 of the California Government Code. Resolution No. 91-116 Page 4 "Agreement" means this Joint Exercise of Powers Agreement. "Authority" means the Poway Public Financing Authority established pursuant to Section 2.02 of this Agreement. "Board" means the Board of Directors of the Authority referred to in Section 2.03, which shall be the governing body of the Authority. "Bond Purchase Agreement" means an agreement between the Authority and the City or the Agency, pursuant to which the Authority agrees to purchase Obligations from the City or the Agency, as the case may be. "Bonds" means the bonds of the Authority issued pursuant to the Bond Law. "Directors" means the representatives of the City and the Agency appointed to the Board pursuant to Section 2.03. "Fiscal Year" means the period from July 1st to and including the following June 30th. "Members" means the City and the Agency. "Obligations" means "Bonds" as such term is defined in Section 6585(c) of the Bond Law. "Public Capital Improvement" has the meaning given to such term in section 6585(g) of the Bond Law. "Secretary" means the Secretary of the Authority appointed pursuant to Section 3.01. "State" means the State of California. "Treasurer" means the Treasurer of the Authority appointed pursuant to Section 3.02. ARTICLE II GENERAL PROVISIONS Section 2.01. Purpose. This Agreement is made pursuant to the Act providing for the joint exercise of powers common to the City and the Agency and for other purposes as permitted under the Act and as ~greed by one or more of the parties hereto. The purpose of this Agreement is to provide for the financing of Public Capital Improvements for a Member through 4384u/2345/037 -2- Resolution No. 91-116 Page 5 the purchase by the Authority of Obligations of a Member pursuant to Bond Purchase Agreements, and/or the loan of funds to a Member. Section 2.02. Creation of Authority. Pursuant to the Act, there is hereby created a public entity to be known as the "Poway Public Financing Authority". The Authority shall be a public entity separate and apart from the Members, and shall administer this Agreement. Section 2.03. Board of Directors. The Authority shall be administered by a Board of Directors consisting of five (5) Directors, unless and until such number is changed by amendment of this Agreement. The members of the City Council of the City, as such members may change from time to time, shall constitute the Directors of the Authority. The Board shall be called the "Board of Directors of the Poway Public Financing Authority". All voting power of the Authority shall reside in the Board. Section 2.04. Meetings of the Board. (a) Regular Meetings. The Board shall provide for its regular meetings; provided, however, that at least one regular meeting shall be held each year unless otherwise waived by a resolution of the Authority. The date, hour and place of the holding of regular meetings shall be fixed by resolution of the Board and a copy of such resolution shall be filed with each of the Members. (b) Special Meetings. Special meetings of the Board may be called in accordance with the provisions of section 54956 of the California Government Code. (c) Call, Notice and Conduct of Meetings. All meetings of the Board, including without limitation, regular, adjourned regular and special meetings, shall be called, noticed, held and conducted in accordance with the provisions of the Ralph M. Brown Act (section 54950 et seq. of the California Government Code). Section 2.04. Minutes. The Secretary shall cause to be kept minutes of the meetings of the Board and shall, as soon as possible after each meeting, cause a copy of the minutes to be forwarded to each Director and to the Members. Section 2.05. Voting. Each Director shall have one vote. Section 2.06. Quorum; Required Votes; Approvals. Directors holding a majority of the votes shall constitute a quorum for the transaction of business, except that less than a quorum may adjourn from time to time. The affirmative votes of 4384u/2345/037 -3- Resolution No. 91-116 Page 6 at least a majority of the Directors present at any meeting at which a quorum is present shall be required to take any action by the Board. Section 2.07. Bylaws. The Board may adopt, from time to time, such bylaws, rules and regulations for the conduct of its meetings as are necessary for the purposes hereof. ARTICLE III OFFICERS AND EMPLOYEES Section 3.01. Chairman, Vice-Chairman, Secretary and Executive Director. The Mayor of the City shall be Chairman of the Board. The Vice Mayor of the City shall be Vice Chairman of the Board. The City Clerk shall be Secretary of the Board. The City Manager shall be Executive Director of the Authority. The officers shall perform the duties normal to said offices. The Chairman shall sign all contracts on behalf of the Authority, unless a resolution of the Board shall provide otherwise, and shall perform such other duties as may be imposed by the Board. The Vice-Chairman shall sign contracts and perform all of the Chairman's duties in the absence of the Chairman. The Secretary shall countersign all contracts signed by the Chairman or Vice-Chairman on behalf of the Authority, unless a resolution of the Board shall provide otherwise, perform such other duties as may be imposed by the Board and cause a copy of this Agreement to be filed with the Secretary of State of the State pursuant to the Act. The Executive Director shall administer the day-to-day operations of the Authority. Section 3.02. Treasurer. Pursuant to section 6505.6 of the Act, the Finance Director of the City is hereby designated as the Treasurer of the Authority. The Treasurer shall be the depositary, shall have custody of all of the accounts, funds and money of the Authority from whatever source, 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. As provided in sections 6505 and 6505.6 of the Act, the Treasurer shall make arrangements with a certified public accountant or firm of certified public accountants for the annual audit of accounts and records of the Authority. Section 3.03. Officers in Charge of Records, Funds and Accounts. 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 4384u/2345/037 -4- Resolution No. 91-116 Page 7 the Authority relating thereto; and the Secretary shall have charge of, handle and have access to all other records of the Authority. Section 3.04. Bonding Persons Having Access to Public Capital Improvements. From time to time, the Board may designate persons, in addition to the Secretary and the Treasurer, having charge of, handling or having access to any records, funds of accounts or any Public Capital Improvement of the Authority, and the respective amounts of the official bonds of the Secretary and the Treasurer and such other persons pursuant to section 6505.1 of the Act. Section 3.05. Legal Advisor. The Board shall have the power to appoint the legal advisor of the Authority who shall perform such duties as may be prescribed by the Board. Section 3.06. Other Employees. The Board shall have the power by resolution to appoint and employ such other employees, consultants and independent contractors as may be necessary for the purposes of this Agreement. All of the privileges and immunities from liability, exemption from laws, ordinances and rules, all pension, relief, disability, workers' compensation and other benefits which apply to the activities of officers, agents, or employees of a public agency when performing their respective functions shall apply to the officers, agents or employees of the Authority to the same degree and extent while engaged in the performance of any of the functions and other duties of such officers, agents or employees under this Agreement. None of the officers, agents, or employees directly employed by the Board shall be deemed, by reason of their employment by the Board to be employed by the City or the Agency or, by reason of their employment by the Board, to be subject to any of the requirements of the Members. Section 3.07. Assistant Officers. The Board may by resolution appoint such assistants to act in the place of the Secretary or other officers of the Authority (other than any Director), and may by resolution provide for the appointment of additional officers of the Authority who may or may not be directors, as the Board shall from time to time deem appropriate. 4384u/2345/037 -5- ARTICLE IV POWERS Resolution No. 91-116 Page 8 Section 4.01. General Powers. The Authority shall exercise, in the manner herein provided, the powers which are common to each of the Members, or as otherwise permitted under the Act, and necessary to the accomplishment of the purposes of this Agreement, subject to the restrictions set forth in Section 4.04. As provided in the Act, the Authority shall be a public entity separate from the Members. The Authority shall have the power to acquire and to finance the acquisition of Public Capital Improvements necessary or convenient for the operation of a Member and to acquire Bonds of a Member. Section 4.02. Power to Issue Revenue Bonds. The Authority shall have all of the powers provided in the Act, including but not limited to Article 1 of the Act (commencing with section 6584), and including the power to issue Bonds thereunder. Section 4.03. Specific Powers. The Authority is hereby authorized, in its own name, to do all acts necessary for the exercise of the foregoing powers, including but not limited to, any or all of the following: to make and enter into contracts; (a) (b) to employ agents or employees; (c) to acquire, construct, manage, maintain or operate any Public Capital Improvement including the common powers of the Members to acquire any Public Capital Improvement by the Power of eminent domain; (d) to sue and be sued in its own name; (e) to issue Bonds and otherwise to incur debts, liabilities or obligations, provided that no such Bond, debt, liability or obligation shall constitute a debt, liability or obligation of the Members; (f) t© apply for, accept, receive and disburse grants, loans and other aids from any agency of the United States of America or of the State; (g) to invest any money in the treasury pursuant to section 6505.5 of the Act which is not required for the immediate necessities of the Authority, as the Authority 4384u/2345/037 -6- Resolution No. 91-116 Page 9 determines is advisable, in the same manner and upon the same conditions as local agencies, pursuant to section 53601 of the California Government Code; (h) to apply for letters of credit or other form of financial guarantees in order to secure the repayment of Bonds and enter into agreements in connection therewith; (i) to carry out and enforce all the provisions of this Agreement; (j) to make and enter into Bond Purchase Agreements; (k) purchase Obligations of any Member; and (1) to exercise any and all other powers as may be provided in the Act or in the Bond Law. Section 4.04. Restrictions on Exercise of Powers. The powers of the Authority shall be exercised in the manner provided in the Act and in the Bond Law, and, except for those powers set forth in the Bond Law, shall be subject (in accordance with section 6509 of the Act) to the restrictions upon the manner of exercising such powers that are imposed upon the City in the exercise of similar powers. Section 4.05. Obligations of Authority. The debts, liabilities and obligations of the Authority shall not be the debts, liabilities and obligations of the Members. ARTICLE V METHODS OF PROCEDURE; CREDIT TO MEMBERS Section 5.01. Assumption of Responsibilities By the Authority. As soon as practicable after the date of execution of this Agreement, the Directors shall hold the organizational meeting of the Board. At said meeting the Board shall provide for its regular meetings as required by Section 2.04 and elect a chairman and Vice-Chairman, and appoint the Secretary. Section 5.02. Delegation of Powers. The Members hereby delegate to the Authority the power and duty to acquire, by lease, lease-purchase, installment sale agreements, ok otherwise, such Public Capital Improvements as may be necessary or convenient for the operation of any Member. 4384u/2345/037 -7- Resolution No. 91-116 Page 10 Section 5.03. Credit to Members. All accounts or funds created and established pursuant to any instrument or agreement to which the Authority is a party, and any interest earned or accrued thereon, shall inure to the benefit of the Members in the respective proportions for which such funds or accounts were created. ARTICLE VI CONTRIBUTION: ACCOUNTS AND REPORTS; FUNDS Section 6.01. Contributions. The Members may in the appropriate circumstance, when required hereunder: (a) make contributions form their treasuries for the purposes set forth herein, (b) make payments of public funds to defray the cost of such purposes, (c) make advances of public funds for such purposes, such advances to be repaid as provided herein, or (d) use its personnel, equipment or property in lieu of other contributions or advances. The provisions of section 6513 of the Act are hereby incorporated into this Agreement by reference. Section 6.02. Accounts and Reports. To the extent not covered by the duties assigned to a trustee chosen by the Authority, the Treasurer shall establish and maintain such funds and accounts as may be required by good accounting practice or by any provision of any trust indenture or trust agreement entered into with respect to the proceeds of any Bonds issued by the Authority. The books and records of the Authority in the hands of a trustee or the Treasurer shall be open to inspection at all reasonable times by representatives of the Members. The Treasurer, within 180 days after the close of each Fiscal Year, shall give a complete written report of all financial activities for such Fiscal Year to the Members to the extent such activities are not covered by the report of such trustee. The trustee appointed under any trust indenture or trust agreement shall establish suitable funds, furnish financial reports and provide suitable accounting procedures to carry out the provisions of said trust indenture or trust agreement. Said trustee may be given such duties in said trust indenture or trust agreement as may be desirable to carry out this Agreement. Section 6.03. Funds. Subject to the applicable provisions of any instruments or agreement which the Authority may enter into, which may provide for a trustee to receive, have custody of and disburse Authority funds, the Treasurer of the Authority shall receive, have custody of and disburse Authority funds as nearly as possible in accordance with 4384u/2345/037 -8- Resolution No. 91-116 Page 11 generally accepted accounting practices, and shall make the disbursements required by this Agreement or to carry out any of the provisions or purposes of this Agreement. Section 6.04. Annual Budget and Administrative Expenses. The Board shall adopt a budget for administrative expenses, which shall include all expenses not included in any financing issue of the Authority, annually prior to July 1st of each year. The estimated annual administrative expenses of the Authority shall be allocated by the Authority to the Members equally. ARTICLE VII TERM Section 7.01. Term. This Agreement shall become effective, and the Authority shall come into existence, on the date hereof, and this Agreement and the Authority shall thereafter continue in full force and effect so long as either (a) any Bonds remain outstanding or (b) the Authority shall own or hold any interest in a Public Capital Improvement. Section 7.02. Disposition of Assets. Upon termination of this Agreement, all property of the Authority, both real and personal, shall be divided among the Members in such manner as shall be agreed upon by the Members. ARTICLE VIII MISCELLANEOUS PROVISIONS Section 8.01. Notices. Notices hereunder shall be in writing and shall be sufficient if delivered to: City of Poway 13325 Civic Center Drive Poway, California 92064 Attention: City Manager Poway Redevelopment Agency 13325 Civic Center Drive Poway, California 92064 Attentkon: Executive Director 4384u/2345/037 -9- Resolution No. 91--116 Page 12 Section 8.02. Section Headings. All section headings in this Agreement are for convenience of reference only and are not to be construed as modifying or governing the language in the section referred to or to define or limit the scope of any provision of this Agreement. Section 8.03. Consent. Whenever in this Agreement any consent or approval is required, the same shall not be unreasonably withheld. Section 8.04. Law Governing. This Agreement is made in the State under the constitution and laws of the State, and is to be so construed. Section 8.05. Amendments. This Agreement may be amended at any time, or from time to time, except as limited by contract with the owners of Bonds issued by the Authority or certificates of participation in payments to be made by the Authority or a Member or by applicable regulations or laws of any jurisdiction having authority, by one or more supplemental agreements executed by both of the parties to this Agreement either as required in order to carry out any of the provisions of this Agreement or for any other purpose, including, without limitation, addition of new parties (including any legal entities or taxing areas heretofore or hereafter created) in pursuance of the purposes of this Agreement. Section 8.06. Enforcement by Authority. The Authority is hereby authorized to take any or all legal or equitable actions, including, but not limited to, injunction and specific performance, necessary or permitted by law to enforce this Agreement. Section 8.07. Severability. Should any part, term or provision of this Agreement be decided by any court of competent jurisdiction to be illegal or in conflict with any law of the State, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining portions or provisions shall not be affected thereby. Section 8.08. Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors of the Members, respectively. Neither Member may assign any right or obligation hereunder without the written consent of the other. 4384u/2345/037 -10- Resolution No. 91~ 116 Page 13 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by their proper officers thereunto duly authorized and their official seals to be hereto affixed, on the day and year set opposite the name of each of the parties. Dated: CITY OF POWAY By: Mayor ATTEST: City Clerk (SEAL) Dated: POWAY REDEVELOPMENT AGENCY By: Chairman ATTEST: Secretary (SEAL) 4384u/2345/037 -11-