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HomeMy WebLinkAboutOCSD 00-06RESOLUTION NO.OCSD 00-06 RESOLUTION OF THE BOARD OF DIRECTORS OF THE ORANGE COUNTY SANITATION DISTRICT AUTHORIZING THE FORMATION OF THE ORANGE COUNTY SANITATION DISTRICT FINANCING CORPORATION AND AUTHORIZING CERTAIN RELATED ACTIONS WHEREAS,the Orange County Sanitation District (the “District”)previously financed the acquisition,construction and installation of certain improvements to its wastewater system (the “Project”)through the incurrence of certain obligations; WHEREAS,in order to refinance such obligations,the District desires to cause the formation of the Orange County Sanitation District Financing Corporation,a nonprofit public benefit corporation (the “Corporation”); WHEREAS,the Board of Directors of the District (the “Board”)has been presented with the form of the Articles of Incorporation for the Corporation (the “Articles of Incorporation”)and the Bylaws for the Corporation (the “Bylaws”),and the Board has examined and approved such documents and desires to authorize and direct the execution and filing thereof; WHEREAS,all acts,conditions and things required by the Constitution and laws of the State of California to exist,to have happened and to have been performed precedent to and in connection with the actions authorized hereby do exist,have happened and have been performed in regular and due time,form and manner as required by law,and the District is now duly authorized and empowered,pursuant to each and every requirement of law,to consummate such actions for the purpose,in the manner and upon the terms herein provided; NOW,THEREFORE,BE IT RESOLVED by the Board of Directors of the Orange County Sanitation District,as follows: Section 1.AU of the recitals herein contained are true and correct and the Board so finds. Section 2.The formation of the Corporation is hereby approved,and the Articles of Incorporation and Bylaws,in substantially the form presented to this meeting,are hereby approved. Section 3.The Director of Finance/Treasurer of the District (the “Director of FinanceTrreasure~”)~is hereby authorized and directed to act as sole incorporator of the Corporation àr4 in s9’acting,.Es hereby authorized and directed to execute,and file or cause to be filed ~~ith the ç~lifomia Secretary of State,the Articles of Incorporation in substantially the form presented to this meeting,with such changes therein as the Director of Finance/Treasurer-may require or approve,such approval to be conclusively evidenced by the exécutkin end filing thereof. Section 4.The Director of Financerrreasurer,acting as sole incorporator of the Corporation,is hereby authorized and directed to adopt as the bylaws of the Corporation the Bylaws in substantially the form presented to this meeting,with such changes therein as the Director of Finance/Treasurer may require or approve,such approval to be conclusively evidenced by the adoption thereof. Section 5.The Director of Finance/Treasurer is hereby authorized and directed to execute and file,or cause to be filed,such documents and forms with such governmental authorities as are necessary to complete the formation of the Corporation and to establish its status as a tax-exempt entity,including an Exemption Application to the State Franchise Tax Board (Form FTB 3500)and Power of Attorney relating thereto (Form FTB 3520),Federal Forms Nos.1024 (Application for Recognition of Exemption under Section 501(c)(4),2848 (Power of Attorney)and SS-4 (Application for Employer Identification Number). Section 6.The officers and employees of the District are hereby authorized and directed,jointly and severally,to do any and all things which they may deem necessary or advisable in order to consummate the actions herein authorized and otherwise to carry out,give effect to and comply with the terms and intent of this Resolution. Section 7.AU actions heretofore taken by the officers,employees and agents of the District with respect to the transactions set forth above are hereby approved, confirmed and ratified. Section 8.This Resolution shall take effect from and after its date of adoption. PASSED AND ADOPTED this 26th day of April,2000. ~ of t range County anitation District Seal]/) Secretary of th~7Board of rectors of the Orange Cthmnty Sanit t n District 1.’.1 I 2 SECRETARY’S CERTIFICATE I,Penny Kyle,Secretary of the Board of Directors of the Orange County Sanitation District,hereby certify that the foregoing is a full,true and correct copy of a resolution duly adopted at a regular meeting of the Board of Directors of said District duly and regularly held at the regular meeting place thereof on the 26th day of April,2000,of which meeting all of the members of said Board of Directors had due notice and at which a majority thereof were present; and that at said meeting said resolution was adopted by the following vOte: AYES: NOES: An agenda of said meeting was posted at least 72 hours before said meeting at 10844 Ellis Avenue,Fountain Valley,California 92708,a location freely accessible to members of the public,and a brief general description of said resolution appeared on said agenda. I further certify that I have carefully compared the same with the original minutes of said meeting on file and of record in my office;that the foregoing resolution is a full,true and correct copy of the original resolution adopted at said meeting and entered in said minutes;and that said resolution has not been amended,modified or rescinded since the date of its adoption,and the same is now in full force and effect. Dated: _____________, 2000 Secretary of the Board of Directors of the Orange County Sanitation District DOCSLA1 :338465.2 41758-7 3 ORANGE COUNTY SANITATION DISTRICT FINANCING CORPORATION ACTION BY WRITTEN CONSENT OF INCORPORATOR The undersigned,as sole incorporator of the Orange County Sanitation District Financing Corporation,a nonprofit public benefit corporation,hereby takes the following action by written consent pursuant to Section 5134 of the California Corporations Code: RESOLVED,that the Bylaws of the Orange County Sanitation District Financing Corporation,in the form hereto attached and incorporated herein by reference,are hereby adopted and approved and shall stand as the Bylaws of this Corporation until valid amendment thereof. IN WITNESS WHEREOF,the undersigned sole incorporator has taken this action by written consent as of , 2000. Gary G.Streed Incorporator DOCSLA1:338465.2 41758-7 ARTICLES OF INCORPORATION OF ORANGE COUNTY SANITATION DISTRICT FINANCING CORPORATION ARTICLE! The name of this corporation is Orange County Sanitation District Financing Corporation. ARTICLE II This corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person.It is organized under the Nonprofit Public Benefit Corporation Law for public purposes. The specific and primary purposes for which this corporation is formed are: (a)To render financial assistance to the Orange County Sanitation District (the “District”),by the financing,refinancing,acquiring,constructing,improving,leasing and selling of public facilities and real and personal property for the use and benefit of the District. (b)To acquire by lease,purchase or otherwise,real or personal property or any interest therein;to construct,reconstruct,modify,add to,improve or otherwise acquire or equip buildings,structures or improvements and (by sale,lease,sublease, lease-back,gift or otherwise)make any part or all of any such real or personal property available to or for the benefit of the District. (c)To borrow the necessary funds to pay the cost of financing,refinancing, acquiring,constructing,replacing,establishing,improving,maintaining,equipping and operating such properties and facilities for the herein described purposes,the indebtedness for which borrowed money may,but need not,be evidenced by securities of this corporation of any kind or character issued at any one or more times,which may be either unsecured or secured by any mortgage,trust deed,pledge,encumbrance or other lien upon any part or all of the properties and assets at any time then or thereafter owned or acquired by this corporation. (d)To receive limited or conditional gifts or grants in trust,inter vivos,or by way of testamentary devises,bequests or grants in trust,or otherwise,funds of all kinds including property,both real,personal and mixed,whether principal or income,tangible or intangible,present or future,vested or contingent,in order to carry on the purposes of this corporation. DOCSLA1:338465.2 4 1758-7 Incidental to and in order to carry out the foregoing purposes,this corporation shall have and possess,subject to the provisions of these Articles of Incorporation,all powers now or hereafter conferred upon nonprofit public benefit corporations by the laws of the State of California,with the following limitation:this corporation shall never engage in any activity other than such activities as may be incidental to and for the purpose of carrying out the primary purposes for which this corporation is formed as set forth above. ARTICLE III The name and address in the State of California of this corporation’s initial agent for service of process is: Gary G.Streed Director of Finance/Treasurer Orange County Sanitation District 10844 Ellis Avenue Fountain Valley,California 92708 ARTICLE IV This corporation is organized as a nonprofit public benefit corporation,without capital stock and without members.This corporation is organized and operated exclusively for social welfare purposes within the meaning of Section 501(c)(4)of the Internal Revenue Code of 1986. No gains,profits or dividends shall be distributed to any of the directors or officers of this corporation,and no part of the net earnings,funds or assets of this corporation shall inure to the benefit of any director,officer or individual,or any other person,firm or corporation excepting only the United States of America,the State of California,or any municipal corporation or political subdivision thereof,or to a nonprofit fund,foundation or corporation which is organized and operated exclusively for charitable or social welfare purposes and which has established its tax-exempt status under Section 501(c)(3)or 501(c)(4)of the Internal Revenue Code of 1986. No part of the activities of this corporation shall consist of carrying on propaganda,or otherwise attempting to influence legislation,nor shall it participate in,or intervene in,or publish or distribute statements concerning,any political campaign on behalf of any candidate for public office.The property of this corporation is irrevocably dedicated to the United States of America, the State of California,or any municipal corporation or political subdivision thereof,or to a nonprofit fund,foundation or corporation which is organized and operated exclusively for charitable or social welfare purposes and which has established its tax-exempt status under Section 501(c)(3)or 501(c)(4)of the Internal Revenue Code of 1986;provided,however,that until all debts and obligations of this corporation shall have been paid,such property and any net revenues therefrom may be used for the purpose of paying and retiring the debts and obligations of this corporation. ARTICLE V During the continuance of this corporation,it may distribute any of its assets to the United States of America,the State of California,or any political subdivision thereof,to a nonprofit fund,foundation or corporation which is organized and operated exclusively for DOCSLA1 :338465.2 41758.7 2 charitable or social welfare purposes and which has established its tax-exempt status under section 501(c)(3)or 501(c)(4)of the Internal Revenue Code of 1986. Upon the dissolution or winding up of this corporation,its assets remaining after payment of,or provision made for the payment of,all debts and liabilities of this corporation,shall be distributed to the United States of America,the State of California,or any political subdivision thereof,or to a nonprofit fund,foundation or corporation which is organized and operated exclusively,for charitable or social welfare purposes and which has established its tax-exempt status under section 501(c)(3)or 501(c)(4)of the Internal Revenue Code of 1986. IN WITNESS WHEREOF,the undersigned,being the sole incorporator of this corporation,has executed these Articles of Incorporation,as of the day of , 2000. Gary G.Streed Incorporator DOCSLA1 :338465.2 41758-7 3 BYLAWS OF ORANGE COUNTY SANITATION DISTRICT FINANCING CORPORATION ARTICLE I OFFICES AND SEAL Section 1.01 Offices The principal office of the Corporation for the transaction of business shall be 10844 Ellis Avenue,Fountain Valley,California.The Board of Directors may, however,change from time to time the principal office from one location to another by noting the change of address in the minutes of the meeting of the Board of Directors at which the address was changed.The changing of such address shall not be deemed an amendment to these Bylaws. Section 1.02 Seal.The Corporation shall have a seal,consisting of two (2)concentric circles with the words “Orange County Sanitation District Financing Corporation,”with the date of incorporation of the Corporation. ARTICLE II DIRECTORS Section 2.01 Powers Subject to the limitations of the Articles of Incorporation of the Corporation,the terms of these Bylaws,and the laws of the State of California,the powers of the Corporation shall be vested in and exercised by and its property controlled and its affairs conducted by the Board of Directors. Section 2.02 Number The Corporation shall have same number of directors as the number of directors on the District Board.Directors are collectively to be known as the Board of Directors.The number of Directors may be changed by a Bylaw or amendment thereof duly adopted by the Board of Directors. Section 2.03 Selection,Tenure of Office and Vacancies The individuals who act as the members of the Board of Directors (the “District Board”)of the Orange County Sanitation District (the “District”)shall constitute the Board of Directors of the Corporation,and each member of the District Board shall be and remain a member of the Board of Directors of the Corporation for so long as such member remains a member of the District Board. Section 2.04 Compensation Directors shall serve without compensation,but each Director may be reimbursed his or her necessary and actual expenses,including travel incident to his or her services as Director,pursuant to resolution of the Board of Directors.Any Director may elect,however,to decline said reimbursement. DOCSLAI :338465.2 41758-7 Section 2.05 Regular Meetings Regular meetings of the Board of Directors shall be held at such time as the Board may fix by resolution from time to time;provided,however,that at least one regular meeting shall be held each year.The annual regular meeting of the Board shall be held immediately following the District Board meeting in June of each year (or if there is no District Board meeting in June of a particular year,immediately following the District Board meeting in July Of such year)and shall be held at the location of such District Board meeting.The Board of Directors may,however,change from time to time the date,time or location of the annual regular meeting by noting such change in the minutes of the meeting of the Board of Directors at which such date,time or location was changed.The changing of such date, time or location shall not be deemed to be an amendment of these Bylaws. All regular meetings shall,in all respects,conform to provisions of the Ralph M.Brown Act,being sections 54950 through 54961 of the Government Code of the State of California (the “Brown Act”). Section 2.06 Special Meetings Special meetings of the Board of Directors shall be called,noticed and held in accordance with the provisions of section 54956 of the Brown Act. Section 2.07 Quorum A quorum shall consist of a majority of the members of the Board of Directors unless a greater number is expressly required by statute,by the Articles of Incorporation of the Corporation,or by these Bylaws.Every act or decision done or made by a majority of the Directors present at a meeting duly held at which a quorum is present,shall be the act of the Board of Directors. Section 2.08 Order of Business The order of business at the regular meeting of the Board of Directors and,so far as possible,at all other meetings of the Board of Directors,shall be essentially as follows,except as otherwise determined by the Directors at such meeting: (a)Report on the number of Directors present in person in order to determine the existence of a quorum. (b)Reading of the notice of the meeting and proof of the delivery or mailing thereof,or the waiver or waivers of notice of the meeting then filed,as the case may be. (c)Reading of unapproved minutes of previous meetings of the Board of Directors and the taking of action with respect to approval thereof. (d)Presentation and consideration of reports of officers and committees. (e)Unfinished business. (f)New business. (g)Adjournment. Section 2.09 Resignation of Directors Any Director of the Corporation may resign at any time by giving written notice to the President or to the Board of Directors;provided, however,in the event of such resignation,such Director’s position shall remain vacant until a DOCSLA1 :338465.2 41758-7 2 new member of the District Board is elected to fill such Director’s position on the District Board. Such resignation shall take effect at the time specified therein,and,unless otherwise specified therein,the acceptance of such resignation shall not be necessary to make it effective. Section 2.10 Nonliability for Debts The private property of the Directors shall be exempt from execution or other liability for any debts,liabilities or obligations of the Corporation and no Director shall be liable or responsible for any debts,liabilities or obligations of the Corporation. Section 2.11 Indemnity by Corporation for Litigation Expenses of Officers, Directors and Employees (a)For the purposes of this section,“agent”shall mean any person who is or was a director,officer or employee of the Corporation. (b)For the purposes of this section,“proceeding”shall mean any threatened,pending or completed action or proceeding,whether civil,criminal,administrative or investigative. (c)For the purposes of this section,“expenses”shall mean,without limitation, attorney fees and any expenses incurred in the defense of the proceeding. (d)In the event of any proceeding brought against an agent of the Corporation,either alone or with others (other than an action by or in the name of the Corporation,an action brought under section 5233 of the California Corporations Code,or an action brought by the California Attorney General for any breach of duty relating to assets held in charitable trust)by reason of the fact that person was an agent of the Corporation,the Corporation shall indemnify that person against expenses,judgments,fines,settlements and other amounts actually and reasonably incurred in connection with such proceeding,if that person acted in good faith and in a manner that person reasonably believed to be in the best interests of the Corporation and,in the case of a criminal proceeding,had no reasonable cause to believe the conduct of that person was unlawful. (e)In the event of a proceeding brought against an agent of the Corporation,either alone or with others,is brought by or in the right of the Corporation,or brought under section 5233 of the California Corporations Code,or brought by the California Attorney General for breach of any duty for any breach of duty relating to assets held in charitable trust,by reason of the fact that person was an agent of the Corporation,the Corporation shall indemnify that person against expenses actually and reasonably incurred if that person acted in good faith,in a maimer that person believed to be in the best interest of the Corporation and with such care,including reasonably inquiry,as an ordinarily prudent person in a like position would use under similar circumstances. (f)Expenses incurred in defending any proceeding may be advanced by the Corporation prior to the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the agent to repay such amount if it shall be determined ultimately that the agent is not entitled to be indemnified.The agent’s obligation to reimburse may be unsecured and no interest shall be charged thereon. DOCSLAI:338465.2 41758-7 3 C. ARTICLE III OFFICERS Section 3.01 Officers The officers of the Corporation shall be a President,a Vice President,a Secretary and a Treasurer,and such other officers as the Board of Directors may appoint. Section 3.02 Selection of Officers The Chair,or Acting Chair as the case may be,of the District Board shall be the President of the Corporation.The Vice-Chair of the District shall be the Vice President of the Corporation.The Secretary of the District Board shall be the Secretary of the Corporation.The Treasurer (or the member of the District staff holding a comparable position if a position with said title no longer exists)shall be the Treasurer of the Corporation.Each such person shall continue to serve as such officer of the Corporation for so long as such person holds the corresponding position described above with the District.Should a vacancy occur in any office as a result of death,resignation,removal,disqualification or any other cause,the Board may elect or appoint a successor for said office,who shall serve until a successor is elected or appointed to hold the corresponding position with the District. Section 3.03 Subordinate Officers The Board of Directors may elect or authorize the appointment of such other officers than those herein above mentioned as the business of the Corporation may require,each of whom shall hold office for such period,have such authority and perform such duties as are provided in these Bylaws,or as the Board of Directors from time to time may authorize or determine. Section 3.04 Removal of Officers Any officer may be removed,either with or without cause,by a majority of the Directors then in office at any regular or special meeting of the Board,or,except in the case of an officer chosen by the Board of Directors,by any officers upon whom such power of removal may be conferred by the Board of Directors.Should a vacancy occur in any office as a result of death,resignation,removal,disqualification or any other cause,the Board of Directors may delegate the powers and duties of such office to any officers or to any Directors until such time as a successor for said office has been elected and appointed. Section 3.05 President The President shall preside at all meetings of the Board of Directors and exercise and perform such other powers and duties as may be from time to time assigned to him by the Board of Directors or be prescribed by the Bylaws. The President shall also be the chief corporate officer of the Corporation and shall, subject to the control of the Board of Directors,have general supervision,direction and control of the business and officers of the Corporation.He or she shall preside at all meetings of the Board of Directors.He or she shall be ex officio member of all standing committees,and shall have the general powers and duties of management usually vested in the office of President of a corporation and shall have such other powers and duties as may be prescribed by the Board of Directors or by these Bylaws. DOCSLA1:338465.2 41758-7 4 Section 3.06 Vice President In the absence or disability of the President,the Vice President,or the Vice Presidents in order of their ranks as fixed by the Board of Directors,or if not ranked,the Vice President designated by the Board of Directors,shall perform all the duties of the President and when so acting shall have all the powers of and be subject to all of the restrictions upon the President.The Vice Presidents shall have such other powers and perform such other duties as may from time to time be prescribed for them,respectively,by the Board of Directors or by these Bylaws. Section 3.07 Secretary The Secretary shall keep or cause to be kept a book of minutes at the principal office or at such other place as the Board of Directors may order,of all meetings of the Directors,with the time and place of holding,whether regular or special,and if special, how authorized,the notice thereof given,the names of those present at Directors’meetings and the proceedings thereof.The Secretary shall give or cause to be given notice of all meetings of the Board of Directors of the Corporation,shall keep the corporate records in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or these Bylaws. Section 3.08 Treasurer The Treasurer shall keep and maintain or cause to be kept and maintained adequate and correct amounts of its assets,liabilities,receipts,disbursements,gains and losses.The books of account shall at all times be open to inspection by any Director.The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the Corporation in such depositories as may be designated by the Directors.He or she shall disburse the funds of the Corporation as shall be ordered by the Board of Directors,shall render to the President and the Directors whenever they shall request it,an account of all of his or her transactions as Treasurer and of the financial condition of the Corporation,shall take proper vouchers for all disbursements of the funds of the Corporation,and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or by these Bylaws. Section 3.09 Assistant Secretaries and Assistant Treasurers The Assistant Secretaries and the Assistant Treasurers in the order of their seniority as specified by the Directors shall,in the absence or disability of the Secretary or the Treasurer,respectively, perform the duties and exercise the powers of the Secretary or Treasurer and shall perform such duties as the Board of Directors shall prescribe. ARTICLE IV OBJECTS AND PURPOSES Section 4.01 Nature of Objects and Purposes The business of the Corporation is to be operated and conducted in the promotion of its objects and purposes as set forth in Article II of its Articles of Incorporation. Section 4.02 Dissolution The Corporation may be dissolved by vote of the Directors, or by the action of the Board of Directors in accordance with the provisions of California law. Upon the dissolution of the Corporation,and after payment or provision for payment,all debts and liabilities,the assets of the Corporation shall be distributed to the District.If for any reason DOCSLA1 :338465.2 41758-7 5 the District is unable or unwilling to accept the assets of the Corporation,said assets will be distributed to the Federal Government,to a state or local government for public purposes,or to a nonprofit fund,foundation,or corporation which is organized and operated for charitable purposes and which has established its tax-exempt status under section 501 (c)(3)or 501 (c)(4)of the Internal Revenue Code of 1986. Section 4.03 Merger The Corporation may merge with other corporations organized solely for nonprofit purposes,qualified and exempt from Federal taxation pursuant to section 501(c)(3)or 501(c)(4)of the Internal Revenue Code of 1986 and from State taxation,upon compliance with the provisions of California law relating to merger and consolidation. ARTICLE V GENERAL PROVISIONS Section 5.01 Payment of Money,Signatures All checks,drafts or other orders for payment of money,notes or other evidences of indebtedness issued in the name of or payable to the Corporation and any and all securities owned by or held by the Corporation requiring signature for transfer shall be signed or endorsed by such person or persons and in such manner as from time to time shall be determined by the Board of Directors. Section 5.02 Execution of Contracts The Board of Directors,except as in the Bylaws otherwise provided,may authorize any officer or officers,agent or agents,to enter into any contract or execute any contract or execute any instrument in the name of and on behalf of the Corporation and such authority may be general or confined to specific instances and unless so authorized by the Board of Directors,no officer,agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount. Section 5.03 Fiscal Year The fiscal year of the Corporation shall commence on the 1st day of July of each year and shall end on the 30th day of June of the next succeeding year. ARTICLE VI EXEMPT ACTIVITIES Notwithstanding any other provisions of these Bylaws,no Director,officer,employee or representative of the Corporation shall take any action or carry on any activity by or on behalf of the Corporation not permitted to be taken or carried on by an organization exempt under section 501(c)(3)or 501(c)(4)of the Internal Revenue Code of 1986,as amended,and the Regulations promulgated thereunder as they now exist or as they may hereafter be amended. DOCSLAI :338465.2 41758-7 6 ARTICLE VII AMENDMENT TO BYLAWS These Bylaws may be amended by majority vote of the Board of Directors. ADOPTED by the Incorporator of the Orange County Sanitation District Financing Corporation on ___________, 2OOO~ Gary G.Streed Incorporator DOCSLAI :338465.2 41758-7 7