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HomeMy WebLinkAboutReso 179-11 ACAP Amend Agmt RESOLUTION NO. 179 -11 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* AUTHORIZING THE MAYOR TO EXECUTE AN AMENDED AND RESTATED JOINT POWERS AGREEMENT of the ASSOCIATED COMMUNITY ACTION PROGRAM WHEREAS, the City of Dublin along with Alameda County and twelve cities is a participating member of the Associated Community Action Program (ACAP); and WHEREAS, Over the last several months, ACAP has experienced financial and performance issues; and WHEREAS, The ACAP Board of Directors and its members have taken numerous collective steps to wind up ACAP affairs; and WHEREAS, The representatives of the members and the ACAP Board of Directors have determined that the existing joint powers agreement that created ACAP should be amended to reflect the current status of ACAP; and WHEREAS, all of the member agencies have been presented with an amended and restated Joint Powers Agreement. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby authorize the Mayor to execute the Amended and Restated Joint Powers Agreement of the Associated Community Action Program (attached hereto as Exhibit AI. . BE IT FURTHER RESOLVED in the event that there is clarifying or amended language included as a part of the review by member agencies, provided that the City Manager and the City Attorney find the revision to be insubstantial and consistent with expeditiously winding up ACAP's affairs, the Mayor shall be authorized to execute the revision without further action by the City Council. PASSED, APPROVED AND ADOPTED this 18th day of October, 2011, by the following vote: AYES: Councilmembers Biddle, Hart, Hildenbrand, Swalwell, and Mayor Sbranti NOES: None ABSENT: None ABSTAIN: None ~ JJnd~ Mayor ATTE~ [. (J~ City Clerk Reso No. 179-11, Adopted 10-18-11, Item 4.7 Page 1 of 1 AMENDED AND RESTATED JOINT POWERS l\GREEMENT of the l\SSOCIATED COMMUNITY ACTION PROGRAM THIS AMENDED AND IlliSTA TED JOINT POWERS AGREEMENT is made and entered into this _ day of _ 2011 by and among the County of l\lameda, a political subdivision of the State of California ("County"), and the cities of Alameda, Albany, Dublin, Emeryville, Fremont, Hayward, Livermore, Newark, Piedmont, Pleasanton, San Leandro, and Union City, all of which are municipal corporations (collectively "Cities"). County and Cities are collectively referred to herein as the "Members." RECITALS 1. County and Cities are apparent parties to that certain Joint Powers Agreement, dated July 12, 1994 (the "Original JP A"), which created the reformed joint powers agency designated as Associated Community Action Program, or ACAP. 2. The purpose of the reformed ACAP was to plan, develop, and administer programs under the federal Community Services Block Grant program (42 U.S.c. 9901 et seq.) and implementing state law. 3. For such purposes, ACAP had been designated as a Community Action Agency. 4. Due to significant financial issues, the Board of Directors of ACAP in the Spring of 2011 chose to terminate its participation in various state and federal program and to effectively "go out of business," 5. Since that time, ACAP's management, County, and Cities have been engaged in winding up its affairs, and the parties have found the current ACAP governance structure cumbersome for such purposes. 6. ACAP's management proposed that the Original JP A be amended to streamline the governance of ACAP so as to reflect the current need of ACAP's member agencies (i.e. County and Cities) to wind up l\CAP's affairs as soon as possible. 7. In accordancc with ACAP management's proposal, the parties now wish to amend and restate the Original JP A without affecting the continuing existence of ACAP. AGREEMENT I. ORGANIZATION A. Name of Agency. The Agency continued for the purpose of administering this agreement shall be designated as the Associated Community Action Program. B. Purpose of Agreement. The purpose of this agreement is to continue the existence of ACAP for the sole purpose of winding up its affairs. -1- EXHIBIT A C. Powers of t\CAP. In furtherance of its purpose, ACAP is authorized. to do all acts necessary for the exercise of-its authority, including but not limited to any or all of the following: 1. To the extent necessary or appropriate for achieving the' stated purposes of this agreement, consistent with Government Code Division 6, Chapter 5, l\rticle 1, section 6500 et seq. and the provisions of this agreement, to exercise any power which is common to both Cities and County. All powers shall be exercised subject to such restrictions upon the manner of exercising such powers as are set forth in this agreement and as are imposed upon County in its exercise of similar powers, as provided in, and for the purpos'es of, Section 6509 of the Government Code of the State of California. 2. To wind up the affairs of ACAP; 3. To perform any contractual obligations of ACAP existing on September 30, 2011; 4. To make and enter contracts in its own name for the purposes of winding up ACAP's affairs; 5. To employ agents, including legal counsel, and employees for the purposes of winding up its affairs; provided, however, that effective October 1, 2011, ACAP shall have no employees; 6. supplies and property; To manage, maintain, hold or dispose of equipment, material, 7. To receive gifts, contributions, and donations of-property, funds, services, and other forms of assistance from persons, firms, corporations, and any governmental entity. 8. To sue or be sued in its own name. II. GOVERNANCE A Governing Board. 1. Membership. The governing body of ACAP shall consist of a representative from each of the jurisdictions that are parties to this agreement ("the.Governing Board"). The representative shall be the Member's chief executive officer. The Membci's representative may, . from time to time, appoint in writing an alternate to attend, participate and vote at any meeting of the Governing Board. The alternate shall serve at the pleasure of and in the manner determii1ed by the Member's representative. 2. Voting. Each Member shall have one (1) vote. An action must receive a majority of votes from Members present in order to be passed. Actions of the Governing Board shall be by motion or resolution. -2- EXHIBIT A 3. Quorum. The presence of representatives, or their alternates, representing a majority of the Members shall constitute a quorum for the transaction of business by the Governing Board, except that less than a quorum may adjourn from time to time. Votes shall be cast only in person and may not be cast by proxy. 4. Officers. The Governing Board shall elect a Chairperson, Vice Chairperson, and Secretary from among its members. The terms of office shall each be one (1) year, beginning.in .April of ea~h year. The Chairperson shall 'preside at meetings of the Governing Board and perform such other duties as the Governing Board shall instruct. The duties of the Vice Chair and the Secretary shall be the usual and customary duties of such officers. 5. Meetings. All meetings of the Governing Board shall be held subject to the provisions of the California Public Meetings Law (the "Brown Act"), California Government Code Section 54950 et seq. B. Powers of Board. The Governing Board shall be the administering agency of this] oint Powers Agreement, and, as such, shall be vested with the pO\1rers set forth, and shall execute and administer this Agreement in accordance with the purposes and functions provided, herein. Without in any way limiting the generality of the foregoing, the Governing Board may appoint an executive director to administer ACAP. C. Community Action Board. As ACAP is not longer designated as a Community Action Agency under the Community Services Block Grant program, the Community Action Board is hereby dissolved. III. INSURANCE A. Insurance Requirements. ACAP shall maintain the insurance required by this Article in full force and effect at all times during the prosecution of the work and until the final completion and acceptance thereof. B. Workers' Compensation and Emplover's Liability Insurance. ACAP shall take out and maintain during the life of the Agreement Workers' Compensation and Employer's Liability Insurance for all of its employees engaged in work under the agreement. Should any work be sublet, the ACAP shall require the subcontractor similarly to provide Workers' Compensation and Employer's Liability Insurance, all in strict compliance with federal and state laws and to fully protect the Members from any and all claims arising out of occurrences on the work. C. Public Liability Insuranc.e. AC1\P shall take out and maintain in the name of ACAP and Members during the life of the agreement, such Public Liability Insurance as shall protect itself, IVIembers, officials, officers, directors, employees, and agents, from claims whicli may arise from operations under this Agreement, whether such operations be by itself, by Members, its officials, officers, directors, employees, and agents, and contractors, or by anyone directly or indirectly employed by any of them. This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to o -~- EXHIBIT A property, resulting from Members' or subcontractor's operations, use of owned or non-owned automobiles, products, and completed operations. The amount of insurance shall not be less than the following: Single Limit Coverage applying to Bodily and Personal Injury Liability and Property Damage: $1,400,000.00. The following endorsements must be attached to the policy: 1. If the insurance policy covers on an "accident" basis, it must be h d" " c ange to occurrence. 2. The policy must cover personal injury as well as bodily injury. 3. The policy must cover complete contractual liability. Exclusions of contractual liability as to bodily injuries, personal injuries and property MUST BE ELIMINATED from the basic policy endorsements. 4. The policy must include a gross liability or severability of interests clause. 5. The Members must be named as additional insured under the coverage afforded. with respect to the work being performed under the amended agreement 6. An endorsement shall be provided which states that the coverage is PRIMARY INSURANCE and that no other insurance effected by the ACAP members will be called upon to contribute to a loss under this coverage. 7. Cancellation, non-renewal, or reduction in limits shall be sent to the ACAP members ,vith at least thirty (30) days' notice. D. Depositors' Forgerv Coverage. ACAP shall also purchase depositors Forgety coverage in the amount of$100,000.00. E. Official Bond. The Executive Director is hereby required to file an Official bond in the amount of $100,000.00. IV LIABILITY A In the event that judgment is rendered against ACAP by a court of competent jurisdiction or an administrative tribunal which orders repayment from non federal sources of federal funds determined to have been misspent, all means of further legal recourse have been exhausted or the time limits thereon have expired, and AcAp is unable to pay the judgment, then the parties to this amended agreement shall pay such judgment equally in proportion to their ACAP vote. However, if a party is found to be individually liable on any contract which it held with ACAP, by a court of competent jurisdiction or administrative tribunal and all means of further legal recourse have been exhausted or the time limits thereon -4- EXHIBIT A have expired, then that member is individually liable and responsible for payment of that debt unless it has been declared bankrupt or is otherwise prohibited by law from paying such debt in which case the remaining patties shall pay the debt, in accordance with the formula in the first sentence of this paragraph. The signatories to this agreement are not liable for any funds misspent under CSBG B. Pursuant to Government Code secrion 6508.1, the debts, liabilities and obligations of ACAP shall be the debts, liabilities and obligations of the signat01'ies to this agreement, to be shared equally. C. ACAP agrees to hold harmless, indemnify, and to defend the ACAP members and their officers, employees and agents from any and all claims for injury or damage of whatever type brought by or on behalf of any third party, including, but not limited to, ACAP's officers, employees, and agents, arising from or connected with any acts or omissions in the performance of this agreement by ACAP except from any such claims arising solely out of acts or omissions attributable to the ACAP member or its officers, employees; or agents. V. FISCJ\L CONTROL A Depository: Controller. Pursuant to Section 6505.6 of the California Government Code, the Board shall appoint one of its officers or employees to serve as either or both the treasurer and the auditor. The offlCes of auditor and treasurer may be held by separate officers or employees Ot combined and held by one officer or employee. Such person or persons shall comply with the duties and responsibilities of the treasurer and auditor as set forth in subdivisions (a) to (d), inclusive, of California Government Code Section 6505.5 and shall cause an independent audit to be made by a certified public accountant, or public accountant, in compliance with Section 6505. B. Records and Reports. ACAP shall establish and maintain such funds and accounts as may be required by good accounting practice or by law. The books and records of 1\CA1' shall be open to inspection at all reasonable times by representatives of any signatory to this agreement. C. Inspection and Audit. Representatives of any of the signatories to this agreement shall at all times have access for the purpose of audit or inspection to any and all' books, documents, papers, records, property, and premises of ACAP. D. Disposition of Assets: Surplus Monev. Upon termination of this agreement all costs, expenses and charges legally incurred by AC1\]> shall be paid and discharged; and ACAP shall sell such property as may be necessary therefor and shall be distributed to the United States Government andlor the State of California such property and funds as are' lawfully required, the balnnce of such property and any surplus money on hand shall be distributed or returned in proportion to contributions made by the effected parties except to the extent otherwise agreed upon by the affected parties. . . . -5- EXHIBIT A E. Fiscal Year. Unless otherwise required by federal or state law, the fiscal year for ACAP shall be from January 1, to and including December 31. VI. MISCELLANEOUS PROVISIONS A. Indefinite Term. This agreement shall become effective upon execution by the signatories hereto and shall continue in full force and effect until terminated pursuant to this section. B. Withdrawal Not Permitted. As ACAP's current purpose is to expeditiously wind up its affairs, the Members are not permitted to withdraw. C. Termination. This Agreement shall terminate on the happening of either of the following events: 1. The governing boards of each of the Members approve the ternunatlon. 2. The entire Governing Board of ACAP unanimously adopts a resolution of termination stating: (a) that ACAP has been completely wound up; (b) that its known debts and liabilities have been actually paid or adequately provided for; (c) that the known assets of ACAP have been distributed to the persons entitled thereto after payment of known debts and liabilities; and (d) that ACAP is dissolved. D. Amendments. This agreement may be amended at any time by the written agreement of the Members, as long as the amendment is not in conflict with applicable law. E. Limitation of Power. Nothing contained in this agreement shall be consrrued to authorize any action which any signatory is not authorized by law to undertake. F. Severability. Should any part, term, or provision of this agreement be decided by a court of competent jurisdiction 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 portions or provisions shall not be affected thereby. G. Reservation of Rights. By entering into this agreement, the purpose of . which is to facilitate the orderly winding up of ACAP's affairs, none of the Members shall be deemed to be parties to tl,e Original JP j\ nor shall any of the Members be deemed to have admitted responsibility for the debts, liabilities, and obligations of ACAP. H. Submission of Notice to Secretmy of State. Upon receipt of a fully executed copy of this agreement, ACAP shall prepare and flie the notices with the Secretary of State and the State Controller required by Government Code sections 6503.5 and 6503.6. lExecution Page Follows] -6- EXHIBIT A IN \'VITNESS WHEREOF, the parties have duly executed this Agreement by their duly authorized signatories effective on or as of the date written at the commencement of this Agreement. COUNTY OF ALAlVIEDA CITY OF ALAlVIEDA By: Its: By: . Its: CITY OF ALBANY CITY OF DUBLIN By: Its: By: Its: CITY OF EMERYV1LLE cny OF FREMONT By: Its: By: Its: CITY OF HAY\VARD CITY OF LIVERtvIORE By: Its: By: Its: CITY OF NEWARK CITY OF PIEDMONT By: Its: By: Its: CITY OF PLEASANTON . CITY OF SAN LEANDRO By: Its: By: Its: CITY OF UNION CITY By: Its: 1723721.1 -7- EXHIBIT A