HomeMy WebLinkAbout4.07 ACAP Amend G~~~ OF DpB~y
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19 ~ STAFF REPORT CITY CLERK
C~ CITY COUNCIL File #600-40
O~LIFOR~~
DATE: October 18, 2011
TO: Honorable Mayor and City Councilmembers
FROM: Joni Pattillo, City Manager C''~~,,..,
SUBJECT: Approval of Amended And R~\.e..JJstated Joint Powers Agreement for Associated
Community Action Program (ACAP)
Prepared by John Bakker, City Attorney and Paul Rankin, Administrative Services
Director
EXECUTIVE SUMMARY:
The Associated Community Action Program (ACAP) is a joint powers authority (JPA) with a
governing board comprised of elected officials from its member agencies. The members include
Alameda County and twelve cities within Alameda County (Alameda, Albany, Dublin, Emeryville,
Fremont, Hayward, Livermore, Newark, Piedmont, Pleasanton, San Leandro, and Union City).
Over the last several months, ACAP has experienced financial and performance issues. The
ACAP Board of Directors and its members have taken numerous collective steps to wind up
ACAP affairs. The City Council will consider approval of an amended Joint Powers Agreement
which reflects the current status of ACAP. The amendments to the JPA will define ACAP's
responsibilities in winding up its affairs and change the Board representation to the City and
County Managers rather than the elected officials.
FINANCIAL IMPACT:
Approval of the Joint Powers Agreement does not result in any additional financial contribution
at this time. In Fiscal Year 2010/2011, the City Council previously authorized a City contribution
up to $146,539 of which the City has contributed $100,385. The remaining $46,154 is available
for appropriation in Fiscal Year 2011/2012 if required as part of the close-out activities. The City
will incur apro-rata share of the on-going costs.
RECOMMENDATION:
Staff recommends that the City Council adopt the Resolution Authorizing the Mayor to Execute
an Amended and Restated Joint Powers Agreement of the Associated Community Action
Program. r
Submitted By Submitted By Reviewed y
City Attorney Administrative Services Assistant City Manager
Director
Page 1 of 3 ITEM NO. 4.7
DESCRIPTION:
The purpose of the Associated Community Action Program (ACAP) Joint Powers Agreement
was to administer programs and services for the low-income population through a variety of
public and private funding sources. These programs included housing assistance, jobs training
and education, and youth development services.
In February 2011, the Staff of ACAP presented a number of concerns about management of the
agency to the ACAP Governing Board. Significant financial and performance issues have given
rise to the termination and layoff of ACAP staff. Management Partners Inc. was engaged to
manage and implement a close out of ACAP. The general intention is to close out ACAP with a
minimum of expense while minimizing the ACAP members' liabilities from various sources such
as disallowed grant costs.
During the close-out process the City of Dublin has acted as the Fiscal Agent, which was
comprised of collecting contributions from the members, processing payments on behalf of
ACAP, and issuing financial reports.
All known grant obligations have been or will be closed out by September 30, 2011 or very soon
thereafter. Current invoices are being processed and older invoices are being cleared in the
system or paid. An audit for 2010 is underway. Management Partners is in the process of
identifying athird-party administrator to manage ongoing obligations. A recommendation will be
forthcoming for approval by the new ACAP Governing Board.
Joint Powers Agreement (JPA)
The JPA was last amended in 1995 and states that the members are liable for repayment of any
misspent funds in the event that ACAP is unable to meet those obligations. An Ad Hoc
Committee comprised of two city managers and three city attorneys have been guiding this work
and the process. This has included Joni Pattillo, City Manager of Dublin and John Bakker, City
Attorney.
There are several continuing obligations that ACAP cannot avoid, such as records retention,
responding to lawsuits and claims, and paying for disallowed grant costs. At the Interim
Executive Director's direction, John Bakker of Meyers/Nave prepared a JPA amendment that
will limit future exposure for member agencies by delineating insurance ACAP must maintain
and circumscribing ACAP's role simply to winding up its affairs.
Additionally, the JPA amendments will delegate oversight to the County and City Managers of
the member agencies rather than the elected officials. It will also delete requirements associated
with grant programs and ACAP original purposes, such as the Community Action Board.
Specifically, the amendment will:
1. Restructure ACAP's powers to be consistent with its current "wind up" task (see Section I.C).
This deletes all program activities and describes ACAP as a caretaker/close out
organization.
2. Specifies that by entering into the agreement none of the members are admitting that they
were parties to the original JPA. (See Section VI.G).
Page 2 of 3
3. Eliminates the Community Action Board and related actions. Without this change, the
Governing Board would be required to continue appointing members to the CAB and for the
CAB to hold quarterly meetings
4. Reconstitutes the governing board to be made up of the CEO of each member (i.e. the
County Administrator and City Managers); authorizes the CEO to send an alternate to
meetings (See Section II. A.1 The changes are recommended since the remaining close
out activities will be administrative in nature.
The ACAP Board met September 15, 2011 and voted to recommend to their respective
governing bodies that they approve the amendment to the ACAP Joint Powers Authority. The
amendment has been reviewed by the legal counsels of all the member agencies. Staff has
prepared a Resolution (Attachment 1), which would authorize the Mayor to execute the JPA.
The recommended JPA amendment is attached to the Resolution as Exhibit A. The JPA
requires that all members approve the amendment to the JPA for it to take effect.
Approval of the Resolution (Attachment 1) will authorize the Mayor to execute the agreement as
it may be revised in the course of being reviewed by other parties. Execution of a revised
agreement would only occur provided that the City Manager and City Attorney reviewed the
revisions, and determined that the changes were insubstantial and consistent with the
expeditious winding up of ACAP's business affairs.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None
ATTACHMENTS: 1. Resolution Approving Amended And Restated Joint Powers Agreement
Page 3 of 3
RESOLUTION NO. xx - 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 A).
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 18t" day of October, 2011, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
ATTACHMENT 1
AMENDED AND RESTATED JOINT POWERS AGREEMENT
of the
ASSOCIATED COMMUNITY ACTION PROGRAM
THIS AMENDED AND RESTATED JOINT POWERS AGREEMENT is made and
entered into this _ day of 2011 by and among the County of Alameda, 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 JPA"), 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 JPA 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 ACAP's affairs as soon as possible.
7. In accordance with ACAP management's proposal, the parties now wish to amend and
restate the Original JPA without affecting the continuing existence of ACAP.
AGREEMENT
L 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.
-I- EXHIBIT A
C. Powers of ACAP. 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, Article 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 purposes 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. To manage, maintain, hold or dispose of equipment, material,
supplies and property;
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.
IL 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 Member'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 determined 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. uorum. 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 each 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 Joint Powers Agreement, and, as such, shall be vested with the powers 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.
IIL 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 Employer'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 Insurance. ACAP 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, Members, officials, officers, directors, employees, and agents, from claims which
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
-3- 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
changed 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 with at least thirty (30) days' notice.
D. Depositors' Forgery Coverage. ACAP shall also purchase depositors
Forgery 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 nonfederal
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 parties 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 section 6508.1, the debts, liabilities and
obligations of ACAP shall be the debts, liabilities and obligations of the signatories 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. FISCAL 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 offices of auditor and treasurer maybe held by separate
officers or employees or 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 maybe required by good accounting practice or by law. The books and records of
ACAP 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 Money. Upon termination of this
agreement all costs, expenses and charges legally incurred by ACAP 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 and/or the State of California such property and
funds as are lawfully required, the balance 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
termination.
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
construed 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 the Original JPA 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 Secretary of State. Upon receipt of a fully
executed copy of this agreement, ACAP shall prepare and file the notices with the Secretary of
State and the State Controller required by Government Code sections 6503.5 and 6503.6.
[Execution Page Follows]
-6- EXHIBIT A
IN WITNESS 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 ALAMEDA CITY OF ALAMEDA
By: By:
Its: Its:
CITY OF ALBANY CITY OF DUBLIN
By: By:
Its: Its:
CITY OF EMERYVILLE CITY OF FREMONT
By: By:
Its: Its:
CITY OF HAYWARD CITY OF LIVERMORE
By: By:
Its: Its:
CITY OF NEWARK CITY OF PIEDMONT
By: By:
Its: Its:
CITY OF PLEASANTON CITY OF SAN LEANDRO
By: By:
Its: Its:
CITY OF UNION CITY
By:
Its:
1723721.1
EXHIBIT A