19-0507_ORANGE, COUNTY OF_Joint Exercise of Powers AgreementJOINT EXERCISE OF POWERS AGREEMENT
THIS JOINT EXERCISE OF POWERS AGREEMENT (the "Agreement") is made
this 7th day of May, 2019 (the "Effective Date"), by and between the following public
entities (collectively, the "Parties"): City of San Juan Capistrano, and
(collectively, the "Cities") and the COUNTY OF ORANGE (the "County").
RECITALS
A. The Parties are responsible for the health and safety of the residents within
their geographic boundaries.
B. Each Party has the individual power to implement affordable housing
projects and programs generated within its jurisdictional boundaries, as well as to create
and issue development agreements for such activities.
C. The parties find it in their mutual economic interest to address work force
housing, affordable housing, and supportive housing issues on a regional level.
D. A countywide adequate supply of housing will provide social and economic
benefits to residents and taxpayers of the parties.
E. The Parties desire to act in the public interest to lessen the burden of
government by reducing the need for each party to act individually, and to provide
charitable support for affordable housing in Orange County.
F. California Government Code section 6500 et seq. ("Joint Exercise of
Powers Act" or "Act") permits two or more public agencies to create joint powers
authorities for the purposes cited herein, and permits the agencies to exercise jointly any
power that the public agencies could exercise separately, and further grants certain
additional powers to such joint powers authorities.
G. California Government Code section 6539.5 authorizes the County of
Orange and any of the cities within the County of Orange to create a joint powers agency
known as the Orange County Housing Finance Trust ("OCHFT"), which may do any of
the following: (1) fund the planning and construction of housing of all types and tenures
for the homeless population and persons and families of extremely low, very low, and low
income, as defined in Section 50093 of the Health and Safety Code, including, but not
limited to, permanent supportive housing; and (2) receive public and private financing and
funds.
H. California Government Code section 6539.5 also authorizes the parties to
a joint powers agreement, which is executed pursuant to its provisions, to grant OCHFT
the power to authorize and issue bonds, certificates of participation, or any other debt
instrument repayable from funds and financing received and pledged by OCHFT.
However, at this point in time, it is the consensus of the Parties to the Agreement not to
grant OCHFT the power to authorize and issue bonds or other debt instruments. This
Agreement may be amended in the future to grant OCHFT the power to issue bonds or
other debt instruments.
I. Local land -use decisions remain solely with each party. Nothing in this
Agreement deprives any party of its sovereign powers with respect to land -use or
transfers such powers to the joint powers authority.
NOW, THEREFORE, in consideration of the mutual promises set forth below, the
parties agree as follows:
Section 1. Creation and Purpose.
(a) Creation of OCHFT. Pursuant to the Joint Exercise of Powers Act, including
Section 6539.5 of the Government Code, there is hereby created a public entity to be
known as the "Orange County Housing Finance Trust." OCHFT shall be a public entity
separate and apart from the Parties, and shall administer this Agreement.
(b) Purpose. This Agreement is made pursuant to the Joint Powers Act for the
purpose of creating OCFHT as a public entity separate from the Parties to: (i) exercise
Common Powers with respect to providing funding for the planning and construction of
housing of all types and tenures for the homeless population and persons and families of
extremely low, very low, and low income, as defined in Section 50093 of the Health and
Safety Code, including, but not limited to, permanent supportive housing; and (ii) receive
public and private financing and funds. The purpose of this Agreement shall be
accomplished and common powers exercised in the manner set forth in the Agreement.
Nothing contained in this Agreement shall preclude the Parties from establishing,
maintaining or providing social programs or services to its residents as it deems proper
and necessary.
Section 2. Term and Termination.
(a) Term. This Agreement shall become effective, and OCHFT shall come into
existence, on the Effective Date, and this Agreement shall thereafter continue in full force
and effect until terminated pursuant to subdivision (b) of this section.
(b) Termination. This Agreement may be terminated by agreement of the
Parties. Upon termination of this Agreement, OCHFT shall be dissolved and, after
payment or provision for payment of all liabilities, the assets of OCHFT shall be distributed
to the Parties in proportion to the contributions of each Party to OCHFT and the amounts
paid by each Party in connection with OCHFT's activities.
Section 3. Powers and Duties of OCHFT.
(a) General Powers. OCHFT shall have all the powers common to the Parties
to this Agreement necessary or convenient, specified or implied, to accomplish the
purpose of this Agreement as set forth in Section 1, subject to the restrictions set forth in
Section 3, subdivision (c) below. Said powers shall be exercised in the manner provided
in the Joint Exercise of Powers Act and, except as expressly set forth herein, subject only
to such restrictions upon the manner of exercising such powers as are imposed upon the
Parties in the exercise of similar powers.
(b) Specific Powers. Without limiting the generality of the powers conferred in
subdivision (a) of this Section 3, OCHFT is hereby authorized, in its own name, to do all
of the acts necessary or convenient to the accomplishment of the purposes of this
Agreement and the full exercise of the powers conferred in subdivision (a) of this Section
3, including but not limited to the following:
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(1) to make and enter into contracts;
(2) to contract for staff assistance;
(3) to sue and be sued in its own name;
(4) to apply for, accept, receive and disburse grants, loans and other
aids from any agency of the United States of America or of the State of California;
(5) to invest any money in the treasury pursuant to Section 6505.5 of the
Joint Powers Act that is not required for the immediate necessities of OCHFT, as OCHFT
determines is advisable, in the same manner and upon the same conditions as local
agencies, pursuant to Section 53601 of the California Government Code;
(6) to apply for letters of credit or other forms of financial guarantees in
order to enter into agreements in connection therewith;
(7) to carry out all the provisions of this Agreement;
(8) to purchase obligations of any Party;
(9) to engage the services of private consultants to render professional
and technical assistance and advice in carrying out the purposes of this Agreement;
(10) to employ and compensate counsel including bond counsel, financial
consultants, and other advisers determined appropriate by OCHFT in the
accomplishment of the purposes of this Agreement;
(11) to contract for engineering, construction, architectural, accounting,
environmental, land use, or other services determined necessary or convenient by
OCHFT in connection with the accomplishment of the purposes of this Agreement;
(12) for the purposes of enforcing affordable housing covenants or
holding security interests for loans, to take title to, and transfer, sell by installment sale or
otherwise, lands, structures, real or personal property, rights, rights-of-way, franchises,
easements, and other interests in real or personal property which OCHFT determines are
necessary or convenient in connection with the accomplishment of the purposes of this
Agreement;
(13) for the purposes of renting space for OCHFT to operate, to lease to,
and to lease from, a Party or any other person or entity lands, structures, real or personal
property, rights, rights-of-way, franchises, easements, and other interests in real or
personal property which OCHFT determines are necessary or convenient in connection
with the accomplishment of the purposes of this Agreement;
(14) to solicit charitable contributions from private sources;
(15) to propose amendments to this Agreement, including amendments
that would allow OCHFT to authorize and issue bonds, certificates of participation, or any
other debt instrument repayable from funds and financing received and pledged by
OCHFT; and
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(16) to exercise any and all other powers as maybe provided for OCHFT
in the Joint Powers Act or any other applicable law.
(c) Limitation on Powers. Neither this Agreement nor section 6539.5 of the
Government Code authorize OCHFT do any of the following:
(1) regulate land use in Cities or in the unincorporated area of the
County;
(2) serve as an owner or operator of housing units;
(3) levy, or advocate or incentivize the levying of, an exaction, including
an impact fee, charge, dedication, reservation or tax assessment, as a condition for
approval of a development project;
(4) require or incentivize inclusionary zoning requirements,
(5) require the Parties to this Agreement to dedicate or assign funding
for any OCHFT obligations or programs;
(6) approve a housing project or program that is not supported by the
governing body of the jurisdiction (a City or the County) in which the project is proposed
to be sited; or
(7) require the Parties to this Agreement to accept or provide any
number of housing units as a prerequisite to joining or remaining a member of OCHFT.
Section 4. Members
The members of OCHFT shall be the parties to this Agreement who have not
withdrawn from OCHFT, and such other parties as may join OCHFT after execution of
this Agreement. New members may join on the terms and conditions set forth in Section
10 hereof. Only the County of Orange and cities within the County of Orange may be a
party to this Agreement and a member of OCHFT.
Section 5. Board of Directors
(a) Selection of Directors. OCHFT shall be governed by a Board of Directors
consisting of nine Directors selected as follows:
(1) Two members of the Board of Supervisors of the County of Orange
selected by the Board of Supervisors.
(2) Two countywide elected officials selected from the following six
Orange County elected officials: Assessor, Auditor -Controller, Clerk -Recorder, District
Attorney -Public Administrator, Sheriff -Coroner, and the Treasurer Tax -Collector by the
Board of Supervisors of the County of Orange.
(3) One city council member for the city member with the greatest
population in the North Region Service Planning Area as depicted in Exhibit A.
(4) One city council member for the city member with the greatest
population in the Central Region Service Planning Area as depicted in Exhibit A.
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(5) One city council member for the city member with the greatest
population in the South Region Service Planning Area as depicted in Exhibit A.
(6) Two city council members who are each selected from member
cities, which are not already represented on the Board of Directors. The selection of
these Directors shall be made by a City Selection Committee from votes cast on a one -
city -one -vote basis by representatives of the city members that are not already
represented pursuant to Section 5, subdivisions (a)(3), (a)(4) and (a)(5).
(b) Board Powers. Subject to the limitations of this Agreement and the laws of
the State of California, the powers of OCHFT shall be vested in and exercised by and its
property controlled and its affairs conducted by the Board of Directors.
(c) Advisory Board. In accordance with OCHFT's bylaws, the Board of
Directors may convene an ex officio advisory board that may include a public member,
city managers or assistant city managers, the County Executive Officer, a representative
from law enforcement, and a representative from a housing authority.
(d) Compensation. Members of the Board shall serve without compensation but
shall be entitled to reimbursement for any expenses actually incurred in connection with
serving as a Director. Any obligation to pay expenses pursuant to this paragraph shall be
a charge against any unencumbered funds of OCHFT available for the purpose.
(e) Meetings of the Board of Directors.
(1) Call, Notice and _Conduct _of Meetings. All meetings of the Board of
Directors, including without limitation, regular, adjourned regular, special meetings and
adjourned special meetings, shall be called, noticed, held and conducted in accordance
with the provisions of the Ralph M. Brown Act.
(2) Regular Meetings. Regular meetings of the Board of Directors shall
be held at such dates and times as the Board may fix by resolution from time to time. If
any day so fixed for a regular meeting shall fall upon a legal holiday, then such regular
meeting shall be held on the next succeeding business day at the same hour. No notice
of any regular meeting of the Board of Directors need be given to the individual Directors.
(3) Special Meetings. Special meetings of the Board of Directors shall
be held whenever called by the Chairperson of the Board or by a majority of the Directo.rs.
(4) Quorum. A majority of the seated members of the Board of Directors
shall constitute a quorum at any meeting of the Board except that less than a quorum
may adjourn a meeting to another time and place. Every act or decision done or made by
a majority of the Directors present at any meeting at which a quorum is present shall be
the act of the Board of Directors.
(5) Minutes. The Board of Directors shall keep minutes of all regular,
adjourned regular, and special meetings, and shall, as soon as possible after each
meeting, cause a copy of the minutes to be forwarded to each Director and to the Parties.
(6) Officers. The Board of Directors shall elect a chairperson and a vice
chairperson from among its members at the first meeting held in each fiscal year. In the
event that the chairperson or vice chairperson so elected ceases to be a Director, the
resulting vacancy shall be filled at the next regular meeting of the Board of Directors held
after such vacancy occurs or at a special meeting called for that purpose. In the absence
or inability of the chairperson to act, the vice chairperson shall act as chairperson. The
chairperson, or in the chairperson's absence, the vice chairperson, shall preside at and
conduct all Board of Director's meetings.
(7) Rules and Reguiations. The Board of Directors may adopt, from time
to time, by resolution, such rules, regulations and bylaws for the conduct of its meetings
and affairs as the Board determines is necessary or convenient.
Section 6. Additional Officers and Employees
(a)
Officers and Contract Staff.
(1) OCHFT may contract with a Party to this Agreement for officers and
staff pursuant to Section 6, subdivision (d), or retain independent contractors, agents, or
volunteers as the Board of Directors may deem necessary to carry out any of OCHFT's
powers, upon such terms and conditions as the Board may require, including the retaining
of professional and technical assistance, provided that adequate funds are available in
OCHFT's budget and are appropriated by OCHFT therefore.
(2) None of the officers, agents or staff, if any, directly contracted by
OCHFT shall be deemed, by reason of their roles or duties or contracted status, to be
employed by the Parties.
(b) Treasurer and Auditor/Controller. Pursuant to Government Code Sections
6505.5 and 6505.8, the Board of Directors shall appoint an officer or employee of OCHFT,
an officer or employee of a public agency that is a Party to this Agreement or a certified
public accountant to hold the offices of treasurer and auditor for OCHFT. Such person or
persons shall possess the powers of and shall perform the treasurer and auditor functions
for OCHFT required by Sections 6505, 6505.5 and 6505.6 of the Government Code,
including any subsequent amendments thereto. Pursuant to Government Code Section
6505.1, the auditor and treasurer shall have charge of certain property of OCHFT. The
treasurer and auditor shall assure that there shall be strict accountability of all funds and
reporting of all receipts and disbursements of OCHFT. The treasurer and auditor of
OCHFT shall be required to file an official bond with the Board of Directors in an amount,
which shall be established by the Board. Should the existing bond or bonds of any such
officer be extended to cover the obligations provided herein, said bond shall be the official
bond required herein. The premiums on any such bonds attributable to the coverage
required herein shall be an appropriate expense of OCHFT.
(c) Attorney. The Board of Directors shall have the power to appoint one or
more legal advisors to OCHFT who shall perform such duties as may be prescribed by
the Board. The County Counsel of the County shall be OCHFT's counsel unless and until
the Board of Directors appoints other counsel to serve such function.
(d) Administrative Services and Reimbursement of
(1) The Board of Directors may contract with a Party to this Agreement
to provide necessary administrative services to OCHFT, including the services described
in Section 6, subdivisions (a), (b) and (c). The amount charged by the Party to provide
such services to OCHFT shall be fixed by agreement between the Board of Directors and
the governing board of the Party providing such services. In the absence of an agreement
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on costs, the Party providing services to OCHFT under this Section 6 may charge OCHFT
the amounts necessary to recover the direct and indirect costs of such services.
(2) If OCHFT contracts with a Party to this Agreement to provide OCHFT
with administrative services through persons who are employees and officers of the Party,
then any retirement liabilities associated with that Party's employees and officers shall
not constitute a liability of OCHFT or any other Party to this Agreement. This Section 6,
subdivision (d)(2), shall not preclude a Party providing administrative services to OCHFT
pursuant to a contract with OCHFT from accounting for such salary and benefit costs
when negotiating the rates that the Party will charge OCHFT for providing such services.
Section 7. Financial Provisions
(a) Fiscal Year. The Fiscal Year of OCHFT shall, unless and until changed by
the Board of Directors, commence on the 1st day of July of each year and shall end on
the 30th day of June of the next succeeding year except that the initial Fiscal Year of
OCHFT shall commence on the effective date of this Agreement and end on the
immediately following 30th day of June.
(b) Budget.
(1) General Budd. Within one hundred and twenty days (120) after the
first meeting of the Board of Directors, a general budget for the first fiscal year shall be
adopted by the vote of a majority of all of the Directors. The budget shall distinguish
between administrative costs (i.e., the cost of operating OCHFT) and Program costs (i.e.,
the financing of the programs funded or sponsored by OCHFT). Thereafter, at or prior to
the last meeting of the Board of Directors for each fiscal year, a general budget shall be
adopted for the ensuing fiscal year or years by a vote of at least a majority of all of the
Directors of the Board.
(2) Expenditures for the Approved Budge . The payment of all OCHFT
obligations is limited to the amount of appropriations allowed in OCHFT's approved
budget, except as it may be revised with the approval of a majority of all of the Directors
of the Board of Directors.
(c) Contributions by the Parties.
(1) Administrative Cost Contributions. The County shall be responsible
for OCHFT's administrative costs for one year following the creation of OCHFT. After this
initial year, and in consideration of the mutual promises contained herein, the Parties
agree that they shall make annual contributions towards the budgeted administrative
costs of OCHFT in accordance with a cost allocation formula to be approved by the Board
of Directors. By unanimous vote, the Board of Directors may waive a parties' contribution
toward OCHFT's administrative costs. A Party's contribution to OCHFT's administrative
costs shall be in the form of money, unless the Board approves another form of
contribution such as services, personal property or use of real or personal property, or
other in-kind contributions. The acceptance and valuation of any such non -monetary
contributions shall be as determined by the Board.
(2) Program Cost Contributions. The particular programs and program
budget, funded, sponsored or operated by OCHFT, as well as the level of, and
mechanisms for, the involvement of OCHFT and each Party, in such programs and
program budget, shall be determined and approved by the Board of Directors. A Party's
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individual contribution, involvement and role in any particular program or the budgeted
program costs shall be as may be mutually agreed between the Party and OCHFT.
(d) Accounts and Reports.
(1) Books and Records. There shall be strict accountability of all OCHFT
funds and accounts and report of all OCHFT receipts and disbursements. Without limiting
the generality of the foregoing, OCHFT shall establish and maintain such funds and
accounts as may be required by good accounting practice. The books and records of
OCHFT shall be open to inspection at all reasonable times by each Party and its duly
authorized representatives.
(2) Annual Audit. The person appointed by the Board of Directors to
perform the auditor function for OCHFT shall cause an annual independent audit of the
accounts and records of OCHFT and records to be made by a certified public accountant
or firm of certified public accountants in accordance with Government Code section 6505.
Such audits shall be delivered to each Party and shall be made available to the public.
(3) Annual Financial Report. Pursuant to section 6539.5 of the
Government Code, OCHFT shall publish an Annual Financial Report that shall describe
the funds received by OCHFT and the use of such funds by OCHFT. The Annual
Financial Report shall describe how the funds received by OCHFT have furthered the
purpose of OCHFT.
(e) Funds. Subject to the applicable provisions of any instrument or agreement
which OCHFT may enter into, which may provide for a trustee or other fiscal agent to
receive, have custody of and disburse OCHFT funds, the person appointed by the Board
of Directors to perform the treasurer function for OCHFT shall receive, have the custody
of and disburse OCHFT funds as nearly as possible in accordance with generally
accepted accounting practices, shall make the disbursements required by this Agreement
or to carry out any of the provisions or purposes of this Agreement.
Section 8. Amendments and Additional Parties.
(a) This Agreement may not be amended or modified except by a vote of two-
thirds of all of the Parties through formal action approving such an amendment by the
Parties' respective governing bodies.
(b) No addition to, or alteration of, the terms of this Agreement, whether by
written or oral understanding of the parties, their officers, employees or agents, shall be
valid or effective unless made in the form of a written amendment which is formally
adopted and executed by the Parties in the same manner as this Agreement.
Section 9. Non -Liability for Obligations of OCHFT.
The debts, liabilities and obligations of OCHFT shall not be the debts, liabilities
and obligations of any of the Parties or personal debts, liabilities and obligations of the
Directors, officers or employees of OCHFT; provided that a Party may, by an agreement
separate from this Agreement, contract for, or assume responsibility for, specific debts,
liabilities, or obligations of OCHFT.
Section 10. Admission and Withdrawal of Parties.
(a) Admission of New Parties. It is recognized that additional parties other than
the original parties, may wish to join OCHFT. The County of Orange and any Orange
County city may become a party to OCHFT upon such terms and conditions as
established by the Board of Directors. An Orange County city shall become a party to
OCHFT by the adoption by the city council of this Agreement and the execution of a
written addendum thereto agreeing to the terms of this Agreement and agreeing to any
additional terms and conditions that may be established by the Board of Directors.
(b) Withdrawal from OCHFT. Parties may withdraw from OCHFT at any time
upon their governing board's adoption of a resolution that so states the party's intent to
leave OCHFT. The withdrawal of any party, either voluntary or involuntary, unless
otherwise provided by the Board of Directors, shall be conditioned as follows:
(1) In the case of a voluntary withdrawal, written notice shall be given to
OCHFT six months prior to the effective date of withdrawal; and
(2) Unless otherwise provided by a unanimous vote of the Board of
Directors, withdrawal shall result in the forfeiture of that party's rights and claims relating
to distribution of property and funds upon termination of OCHFT as set forth in Section 2
above.
Section 11. Notices.
Notices required or permitted hereunder shall be sufficiently given if made in
writing and delivered either personally or by registered or certified mail, postage prepaid,
to the persons and entities listed herein at the following addresses, or to such other
address as may be designated to OCHFT for formal notice:
(a) County of Orange:
OC Community Resources
Mary Beth Anderson
1770 N. Broadway, 4th Floor
Santa Ana, California 92706
(b) City of San Juan Capistrano:
Benjamin Siegel, City Manager
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Section 12. Miscellaneous.
(a) Section Headings. The section headings herein are for convenience only
and are not to be construed as modifying or governing or in any manner affecting the
scope, meaning or intent of the provisions or language of this Agreement.
(b) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all together shall
constitute but one and the same Agreement.
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(c) Laws _Go_v_erninq. This Agreement is made in the State of California under
the Constitution and laws of such State and shall be construed and enforced in
accordance with the laws of California.
(d) Severability. Should any part, term, portion or provision of this Agreement,
or the application thereof to any person or circumstance, be held to be illegal or in conflict
with any law of the State of California, or otherwise be rendered unenforceable or
ineffectual, it shall be deemed severable, and the remainder of this Agreement or the
application thereof to other persons or circumstances shall continue to constitute the
agreement the Parties intended to enter into in the first instance.
(e) Successors. This Agreement shall be binding upon and shall inure to the
benefit of the successors of the respective Parties hereto. No party may assign any right
or obligation hereunder without the written consent of a majority of the other Parties.
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be
executed and attested by their duly authorized officers as of the date first above written.
Dated
SIGNED AND CERTIFIED THAT A COPY
OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF THE
BOARD
Clerk of the Board of Supervisors
County of Orange, California
NOTICE TO COUNTY OF ORANGE
TO BE GIVEN TO:
FRANK KIM
COUNTY EXECUTIVE OFFICER
10 Civic Center Plaza
SANTA ANA, CA 92702-4062
APPROVED AS TO FORM:
LEON PAGE
COUNTY COUNSEL
Dated:
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COUNTY OF ORANGE, a political
subdivision of the State of California
Chairman of the Board of Supervisors
CITY OF SAN JUAN CAPISTRANO
Dated: :5-17-11
y: Benjamin Si gel, City Manager
ATTEST:
Cky Clerk
NOTICE TO CITY TO BE GIVEN TO:
City Manager: Benjamin Siegel
City of San Juan Capistrano
Street Address: 32400 Paseo Adelanto,
San Juan Capistrano, CA 92675
Phone: (949) 493-1172
Fax: (949) 493-1053
APPROVED AS TO FORM:
Orange County Housing Finance Trust — Joint Powers Agreement Signature Page