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HomeMy WebLinkAboutResolution No. 4560 RESOLUTION NO. 4560 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY APPROVING THE JOINT EXERCISE OF POWERS AGREEMENT BETWEEN THE CITY OF EL MONTE, THE CITY OF DOWNEY AND THE CITY OF SAN JACINTO CREATING THE EL MONTE - DOWNEY -SAN JACINTO HOUSING FINANCE AGENCY WHEREAS, the City of Downey has received an allocation from the Mortgage Bond Allocation Committee; and WHEREAS, the City believes that the purpose of the City will be better served by undertaking the proposed bond issue in conjunction with a similar proposed bond issue of the City of El Monte and the City of San Jacinto; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The Joint Exercise of Powers Agreement, in the form attached hereto as Exhibit "A ", is hereby approved. SECTION 2. The City Manager 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 or his deputy 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. The City Clerk shall certify to the adoption of this Resolution. APPROVED AND ADOPTED this 26th day of March 1985. Mayor ATTEST: '/4411* •7. City Clerk STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) SS. CITY OF DOWNEY ) I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the City Council of the City of Downey at a regular meeting hereof, held on the 26th day of March 193,' by the following vote, to wit: AYES: 5 COUNCIL MEMBERS: Davila, Santangelo, Boggs, Cormack, Barb NOES: 0 COUNCIL MEMBERS: None ABSENT:0 COUNCIL MEMBERS: None if a t City C1-rk JOINT EXERCISE OF POWERS AGREEMENT BETWEEN THE CITY OF EL MONTE AND THE CITY OF DOWNEY CREATING THE EL MONTE- DOWNEY HOUSING FINANCE AGENCY This Agreement, dated for convenience as of March 1, 1985 is made by and between the City of El Monte ( "El Monte ") a general law city and municipal corporation and the City of Downey ( "Downey ") a general law city and municipal corporation both duly organized and existing under the Constitution and laws of the State of California: WITNESSETH: WHEREAS, Downey and El Monte are each empowered by Part 5 of Division 31 of the Health & Safety Code of the State of California (the "Act ") to incur indebtedness for the purpose of financing the construction of residences as authorized by the Act; and WHEREAS, Downey and El Monte have determined that a joint exercise of powers agency should be formed to exercise their respective powers pursuant to the Act for the purpose of financing the purchase of home mortgages made to persons and families of low and moderate income within the boundaries of said Cities; NOW, THEREFORE, Downey and El Monte for and in consideration of the mutual promises and agreements herein contained, do agree as follows: 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. Act The term "Act" shall mean Part 5 of Division 31 of the Health & Safety Code of the State of California commencing at Section 52000, as now in effect or as it may from time to time hereafter be amended or supplemented. Agency The term "Agency" shall mean the El Monte - Downey Housing Finance Agency created by this Agreement. EXHIBIT "A" 1 1 . Agreement The term "Agreement" shall mean this Agreement as the same now exists or may from time to time be amended by any supplemental agreement entered into and pursuant to the provisions hereof. Board The term "Board" shall mean the governing board of the Agency as described in Section 10. Bonds The term "Bonds" shall mean revenue bonds of the Agency authorized and issued pursuant to the Act, including each and all series of revenue bonds, and shall also include, except where the context shall require otherwise, any other limited obligations or evidences of indebtedness of the Agency authorized and issued pursuant to the Act. Joint Powers Law The term "Joint Powers Law" shall mean Article 1 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California, being Sections 6500 -6516 thereof. Program The term "Program" means the Agency's program of purchasing home mortgages pursuant to the Act. SECTION 2. Purpose This Agreement is made pursuant to the Joint Powers Law to provide for the joint exercise of certain powers common to Downey and El Monte. Downey and El Monte are each empowered by the laws of the State of California to exercise powers specified in the recitals herein including the financing of the construction of residences pursuant to the Act, for the benefit of the residents of the communities. These common powers will be jointly exercised in the manner hereinafter set forth. SECTION 3. Creation of Authority There is hereby created pursuant to the Joint Powers Law an authority and public entity to be known as "El Monte - Downey Housing Finance Agency." As provided in the Joint Powers Law, the Agency shall be a public entity separate from Downey and El Monte. 3783p/2050/08 -2- SECTION 4. Term This Agreement shall be effective as of the date hereof and shall continue in full force and effect until July 1, 2030, or until such time as the Bonds and the interest thereon shall have been paid in full., or provisions for such payment shall have been made, whichever is shorter; provided, however, that • unless extended by an agreement supplemental hereto executed by Downey and El Monte, this Agreement shall terminate on December 31, 1985 in the event that none of the Bonds shall have been issued and sold on or before such date. SECTION 5. Powers; Restriction Upon Exercise (a). Each participating City agrees that the Agency may make or acquire home mortgages under the Agency's program all as more specifically set forth in the Act with respect to property located within the respective geographic boundaries of such City and that any and all of its powers for the purpose of financing residential construction pursuant to the Act with respect to such property may be exercised by the Agency. This grant of authority shall not be deemed to limit the power of any participating City to proceed independently under the Act or other housing statutes except as provided by Section 7. (b) Each City reserves the right to review each mortgage application from within its own geographic area for conformance with its general plan and other land use requirements; provided that such review shall be limited to establishing priorities between applicants in case there is a surplus of qualified applicants. (c) The Agency is authorized on its own to do all acts necessary for the exercise of said powers for said purposes including, but not limited to any or all of the following: to make and enter into contracts; to accept the assignment of contracts entered into by either Downey or El Monte prior to the establishment of the Agency which relate to the purposes of this Agreement; to reimburse the participating City for prior expenses incurred in developing this program pursuant to the Act; to employ agents and employees; to acquire, construct, manage, maintain and operate any building, works or improvements; to acquire, hold or dispose of property, including property subject to home mortgages; to incur debts, liabilities or obligations which do not constitute debts, liabilities or obligations of Downey or El Monte; and to sue and be sued in its own name. 3783p/2050/08 -3- (d) Such power shall be exercised subject only to such restrictions upon the manner of exercising such power as are imposed upon the City of Downey in the exercise of similar powers, as provided in Section 6509 of the Joint Powers Law. (e) Subject to the applicable provisions of any indenture or resolution providing for the investment of moneys held thereunder, the Agency shall have the power to invest any money in the treasury pursuant to Section 11(b) hereof that is not required for the immediate necessities of the Agency, as the Agency determines is advisable, in the same manner and upon the same conditions as local agencies pursuant to Section 53601 of the Government Code of the State of California. SECTION 6. Cooperation Each City agrees to undertake such further proceedings or actions as may be necessary in order to carry out the terms and the intent of this Agreement; and each City further agrees to refrain from taking any actions which would, to its knowledge, tend to adversely affect the rating on the Bonds. SECTION 7. Allocation (a) The City of El Monte hereby assigns to the Agency said City's allocation of qualified mortgage bonds for the calendar year 1985, pursuant to Health and Safety Code Section 50193. (b) The City of Downey hereby assigns to the Agency a portion of the the City's allocation of qualified mortgage bonds for the Calendar year 1985 in an amount equal to $2,000,000, pursuant to Code Section 50193. (c) The division of available allocations among qualified developers located within the respective cities shall be determined by the Board, except that the parties understand and agree that qualified developers in the geographic area of Downey shall have first priority as to the Downey allocation and that developers within El Monte shall have first priority as to said El Monte allocation. SECTION 8. Termination of Powers The Agency shall continue to exercise the powers herein conferred upon it until the termination of the Agreement or until Downey and El Monte shall have mutually rescinded this Agreement, except that if any Bonds are issued and delivered, then in no event shall the exercise of powers herein granted be terminated until all Bonds so issued and delivered and the • interest theron shall have been paid or provision for such payment shall have been made. 3783p/2050/08 - III SECTION 9. Governing Board (a) The Agency shall be administered by the Board which shall consist of five members, each serving in his or her individual capacity as a member of the Board. (b) Three members and three alternate members of the Board shall be appointed by the City of El Monte. Two members and two alternate members of the Board shall be appointed by the City of Downey. (c) Initial members and alternate members of the Board shall serve for a term of 3 years. Successors to such members shall be selected in the manner in which the respective initial member was selected and shall serve a term of 3 years. Any appointment to fill an unexpired term, however, shall be for such unexpired term. The term of office of any member or alternate member of the Board may be terminated at any time with or without justification by a majority vote of the City Council which appointed such member. (d) Board members and alternates shall be officials or employees of the appointing City. (e) When the Board member is not present at a Board meeting, then an alternate member appointed by that City may serve in his or her place with full authority. (f) Members of the Board shall not receive any compensation for serving as such, but shall be entitled to reimbusement for any expenses actually incurred in connection with serving as a member of the Board if the Board shall determine that such expenses shall be reimbursed and there are funds available for such purpose. SECTION 10. Meetings of the Board (a) The Board shall hold at least one regular meeting each year, and by resolution, may provide for the holding of regular meetings at more frequent intervals. The regular meeting of the Board shall be held in the offices of the City of El Monte or at such other place and upon such date and at such hour as may be fixed from time to time by resolution of the Board. (b) The first Board meeting shall be held within ten days from the effective date of this Agreement. (c) Special meetings of the Board may be called in accordance with the provisions of Section 54956 of the Government Code of the State of California. 3783p/2050/08 -5- - (d) 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 the Government Code of the State of California, being Sections 54950 -54961 thereof). (e) The secretary of the Agency 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 Downey and El Monte. (f) The attendance of three members of the Board shall constitute a quorum for the transaction of business, and three affirmative votes shall be necessary to take any Board action, except that less than a quorum may adjourn from time to time. SECTION 11. Officers; Duties; Official Bonds (a) The Board shall elect a chairman of the Agency and a vice - chairman of the Agency from among its members, and shall appoint a secretary of the Agency, who shall also serve as Administrative Officer to carry out the day -to -day responsibilities of the Agency and who may, but need not, be a member of the Board. It is the intention of the parties hereto that the Board shall designate a staff member to assume the responsibility for carrying out the administrative functions of the Agency and shall provide for City providing such staff member to be reimbursed for its costs and expenses from available revenues. (b) Subject to the applicable provisions of any indenture or resolution providing for a trustee or other fiscal agent, the treasurer /controller is designated as the depositary of the Agency, to have custody of all the money of the Agency, from whatever source, and, as such, shall have the powers, duties and responsibilities specified in Section 6505.5 of the Joint Powers Law. (c) The treasurer /controller of the Agency is designated as the public officer or person who has charge of, handles, or has access to any property of the Agency, and such officer shall file an official bond with the secretary of the Agency in the amount of $100,000. To the extent permitted by law, such officer may satisfy this requirement by filing an official bond in at least said amount, obtained in connection with another public office. (d) 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. 3783p/2050/08 -6- SECTION 12. Budget (a) The Agency shall prepare an annual budget fro revenues and expense in each fisc also h show s the revenues and July 1 to June 30. Such budget shall expenses anticipated in connection with each project or revenue bonds, notes or other evidences of indebtedness outstanding. All expenses of the Agency shall be paid from Revenues deposited in the Operating Fund created under any indenture approved in connection with the issuance of the Bonds. (b) Unless and until changed by the from Board, the fiscal year of the shall be the followingp period 30, July 1 of each year to and including except for the first fiscal year, which shall be the period from the date of this Agreement to June 30, 1985. SECTION 13. Disposition of Assets (a) In the event that Bonds are issued dea pr or upon Section 15 hereof, then at these term all other assets of the earlier termination of this Agreement, the Agency including all home mortgages and property acquired as a result of the joint exercise of powers under this Agreement, shall be distributed to Downey and El Monte, in proportion to the principal amount of home mortgages originally made in each city. (b) In the event that Bonds are not issued, then all assets of the Agency shall be distributed to the respective grantors or assignors thereof. After the completion shall be purpose of this Agreement, any surplus money on returned to Downey and E1 Monte in proportion to their respective contributions made. SECTION 14. Bonds The Agency shall have the power to issue Bonds, at any time, in accordance with the provisions of the Act for the purpose of raising funds necessary to carr y outt its this Agreement and shall ho = °zedhave b t the p Act in accordance with forms of indebtedness aut Y the provisions of the Act for such purposes. SECTION 15. Agreement Not Exclusive This Agreement shall not be exclusive and Downey and El Monte expressly reserve their respective Act rights and to issue other other home financing programs under for such purposes except as provided by Section 7. 3783p/2050/O8 -7- This Agreement shall not be deemed to mend except of other Agreements between Downey and Monte, P as expressly provided herein. SECTION 16. Contribution, Advances and Prior Expenses; Assignment of Contracts (a) On a voluntary basis, contributions or advances of public funds and of personnel, services, equipment or property may be made to the Agency by Downey and El Monte, for any of the purposes of this Agreement. Payment of public funds or the use of funds collected from participating developers may be made to defray the cost of any such contribution. Any such advance may be made subject to repayment, and in such cases shall be repaid in the manner agreed upon by Downey and El Monte, as the case may be, and the Agency, at the time of making such advance. (b) Expenses incurred prior to Bond sale, such as the cost of Bond rating and the printing of, the official statement, shall be allocated between the parties to this Agreement in accordance with the proportion of Bond proceeds earmarked for each respective jurisdiction based upon signed developer agreements. The cost of the market and feasibility studies prepared for the respective project shall be allocated based on the actual cost of each such study. (c) The parties hereby assign, transfer and convey any and all of their right, title and interest in any and all contracts and agreements, in which they are a party, relating to the iss uance , s ale delivery and deliver of the Bonds, including, without limitation, contracts with bond counsel, consultants, trustees, underwriter and bond un der printer. P SECTION 17. Accounts and Reports (a) The Agency shall establish and maintain such funds and accounts as may be required by good accounting practice and by any provision of any resolution or indenture of the Agency securing the Bonds. The books and records of the Agency shall be open to inspection at all reasonable times by Downey and El Monte and their respresentatives. The Agency shall give an independent audited written report of all financial activities for each fiscal year to Downey and El Monte within 120 days after the close of each fiscal year. (b) The treasurer /controller of the Agency 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 Ae Agency. In each case the minimum requirements of Y he State Controller for those prescribed b the audit shall be p by the 3783p/2050/08 -8- special districts under Section 26909 of the Government Code of the State of California or its successor statute, and shall conform as closely as possible to generally accepted auditing standards. When such an audit of accounts and records is made by a certified public accountant or public accounts and records is thereof shall be filed as a public record with Downey and El Monte and also with the County Auditor of the County of Los Angeles. Such report shall be filed within 12 months of the end of the fiscal year under examination. (c) Any cost of the audit, including contracts with, or employment of, certified public accountants or public accountants in making an audit pursuant to this Section, shall be borne by the Agency and shall be a charge against any unencumbered funds of the Agency available for said purpose. (d) In any year in which the annual budget of the Agency does not exceed five hundred dollars ($500), the Board may, by unanimous vote and with the approval of Downey and El Monte, replace the annual special audit with an audit coverning a two -year period. (e) All the books, records, accounts and files referred to in this Section shall be open to the inspection of holders of the Bonds to the extent and in the manner provided in any resolution or indenture providing for the issuance of Bonds. SECTION 18. Breach If default shall be made by Downey and El Monte, in any covenant contained in this Agreement, such default shall not excuse the defaulting party from fulfilling its obligations under this Agreement and all parties shall continue to be liable for the performance of all conditions herein contained. Downey and El Monte hereby declare that this Agreement is entered into for the benefit of the Agency created hereby, and Downey and El Monte hereby grant to the Agency the right to enforce by whatever lawful means the Agency deems appropriate all of the obligations of each of the parties hereunder. Each and all of the remedies given to the Agency 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 Agency to any or all other remedies. SECTION 19. Liability Indemnification and Insurance (a) The debts, liabilities and obligations of the Agency shall not constitute debts, liabilities or obligations of Downey or El Monte. No member shall be liable for any indebtedness of the Agency except that which is expressly 3783p/2050/08 -9- consented to by the City Council. All persons dealing with the Agency shall be hereby notified that no party to this Agreement shall be liable for the debts of the Agency. (b) El Monte agrees to and shall defend, indemnify and hold Downey harmless from and against all liability, claims, loss, damage, costs or expenses (including without limitation reasonable attorney's fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss, or damage whatsoever caused to any person or to the property of any person which shall be directly or indirectly caused or contributed to by any acts done or any errors or omissions of El Monte or its officers, agents, servants, employees or contractors during the course of carrying out this Agreement. Downey agrees to and shall defend, indemnify and hold El Monte harmless from and against all liability, claims, g Y loss, damage, costs or expenses (including without limitation reasonable attorney's fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss or damage whatsoever caused to any person or to the property of any person which shall be directly or indirectly caused or contributed to by any acts done or any errors or omissions of Downey or its officers, agents, servants, employees or contractors during the course of carrying out this Agreement. (c) The Board shall obtain and carry appropriate insurance coverage in an amount not less than $1,000,000, which sum shall be increased from time to time in accordance with prudent insurance coverage practice. SECTION 20. 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 21. 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, the parties may not assign any right or obligation hereunder without the consent of both other parties. 3783p/2050/08 -10- SECTION 22. Amendment of Agreement This Agreement may be amended by supplemental agreement executed by Downey and El Monte (a) at any time prior to the issuance of Bonds or (b) at any time after the issuance of Bonds subject to the conditions and restrictions set forth in the resolution or resolutions of indenture or indentures authorizing the issuance of Bonds. SECTION 23. Form of Approvals Whenever an approval is required in this Agreement, unless the context specifies otherwise, it shall be given by resolution duly and regularly adopted by the City whose consent is required, and in the case of the Agency by resolution duly and regularly adopted by the Board. Whenever in this Agreement any consent or approval is required, the same shall not be unreasonalby withheld. SECTION 24. Section Headings All section headings contained herein are for convenience or reference only and are not intended to define or limit the scope of any provision of this Agreement. 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, as of the day and year first above written. Attest: City of Downey V '//2 City Clerk By ,��,� • di- Mayo' Approve• as to form: 41110611° Ar y Atto ney Attest: City of El Monte City Clerk By Mayor 3783p/2050/08 -11- Approved as to form: City Attorney Approved as to form and content: David R. McEwen, Bond Counsel Stradling, Yocca, Carlson & Rauth A Professional Corporation Newport Beach, California 3783p/2050/08 -12-