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HomeMy WebLinkAbout92-21 - Formation of the Newport Beach Public Facilities Corporation and Approving the Terms of its CharterRESOLUTION NO. 92 -21 _.. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING THE FORMATION OF THE NEWPORT BEACH PUBLIC FACILITIES CORPORATION AND APPROVING THE TERMS OF ITS CHARTER WHEREAS, this City Council is desirous to create a non - profit corporation pursuant to the California Nonprofit Corporation Law for the purpose of assisting the City of Newport Beach in the financing of public improvements, including a public library; WHEREAS, there has been presented to and considered by this City Council a proposed charter and by -laws for the proposed Newport Beach Public Facilities Corporation; NOW, THEREFORE, the city Council of the City of Newport Beach resolves as follows: Section 1. The creation of the Newport. Beach Public Facilities Corporation pursuant to the proposed charter is hereby approved. Section 2, The City Manager, City Treasurer and such other officers and agents of the City of Newport Beach as are necessary or convenient are hereby authorized and directed to cause the charter of the Newport Beach Public Facilities Corporation to be filed with the Secretary of State and to take such further action as may be necessary to lawfully create and empower the corporation pursuant to the terms of said charter. PASSED, APPROVED and ADOPTED by the City Council of the City of Newport Beach at its regular meeting held this 9th day of March , 1942 .. a r =Mayor :. ARTICLES OF INCORPORATION OF NEWPORT BEACH PUBLIC FACILITIES CORPORATION I. The name of this corporation is: NEWPORT BEACH PUBLIC FACILITIES CORPORATION. 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 public purposes for which the corporation is organized include the following. (a) To render financial assistance to the City of Newport Beach, California ( "City ") by financing, acquiring; constructing, improving, leasing and selling buildings, building improvements, equipment, electrical, water, sewer, road and other public improvements, lands and any other real or personal property, tangible and intangible, for the benefit of residents of the City and surrounding areas; (b) To acquire by lease, purchase or otherwise, real or personal property, tangible or intangible, 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, leaseback, gift or otherwise) make any part of all or any such real or personal property available to or for the benefit of the public, the City, or any` one or more 1 C departments, commissions, or agencies of the City; (c) To promote the common good and general welfare of the City and the inhabitants thereof, and the governmental, commercial, industrial or other enterprises in the City and surrounding areas by financing the acquisition of the real and personal property, tangible and intangible, as hereinabove described; (d) To borrow the necessary funds to pay the cost of financing, 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. (e) 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. The general purposes and powers for which the corporation is organized are to have and exercise all rights and powers now or hereafter conferred on nonprofit corporations under the laws of the State of California; provided, however, that this corporation shall 2 4. not, except to an insubstantial degree, engage in any activities or exercise any powers that are not in furtherance of the specific and primary purposes of this corporation as set forth above. 0**4q This Corporation is organized and operated exclusively for civic purposes within the meaning of Section 501(c ) (4) of the Internal Revenue Code of 1986, and under the direction of a group of public spirited citizens for the sole purpose of acquiring and constructing or providing for the construction of public improvements as a civic venture for and on behalf of the City. This corporation shall never engage in any business or activity other than that necessary or convenient for or incidental to the carrying out of the purposes set forth in Article II hereof. It! No part of the net earnings, if any, of this corporation, either during its existence or upon its dissolution, shall ever inure to the benefit of any private individual, or any director, officer or member thereof, or any person, firm or corporation excepting only the City. No substantial part of the activities or this corporation shall consist of carrying on propaganda, or otherwise attempting to influence legislation; nor shall it participate in, or intervene in (including the publishing or distributing of statements) any political campaign on behalf of any candidate for public office. The property, assets, profits and net revenues of this corporation are irrevocably dedicated to the City; provided, however, that until all indebtedness of this s3 corporation shall have been paid, such net revenues may be used for the purpose of paying, prepaying, or calling for redemption any bonds, debentures, notes or other evidences of indebtedness issued to finance public improvements. Upon the dissolution, liquidation or winding up of this corporation, or -upon abandonment, the assets of this corporation remaining after payment of all or provision for all debts or liabilities of this corporation and after compliance with Chapters 15, 16 and 17 of the California Nonprofit Public Benefit Corporation Law shall be distributed to the City. V. The name and address in this state of the corporation's initial agent for service of process is: Dennis Danner, City Treasurer City of Newport Beach P.O. Box 1768 3300 Newport Boulevard Newport Beach, California 92659 -1768 VI. The number of directors of this corporation may be fixed by its bylaws. The persons who are directors of this corporation, from time to time, shall be its only members, and upon ceasing to be a director of this corporation any such person shall cease to be a member thereof. The members and directors of this corporation shall have no liability for dues or assessments. 4 k- IN WITNESS WHEREOF, for the purpose of forming the Corporation under the law of the State of California, the undersigned has executed these Articles of Incorporation this _ / lday of 1992. MEMO DECLARATION I declare that I am the person who executed the above Articles of Incorporation, and that this instrument is my act and deed. Executed one /O , 1992 at Newport Beach, California. I declare under penalty or perjury that the foregoing is true and correct. DEN14ISDANNER, Incorporator 5 BYLAWS OF NEWPORT BEACH PUBLIC FACILITIES CORPORATION ARTICLE I. Name, Organization. Purpose and Principal Office SECTION 1.01. Name. The name of this corporation is CITY OF NEWPORT BEACH PUBLIC FACILITIES CORPORATION (hereinafter referred to as the "Corporation "). SECTION 1.02. Organization, Purpose and Use of Funds. The Corporation is a nonprofit public benefit corporation organized under the Nonprofit Corporation Law of the State of California to provide assistance to the City of Newport Beach, California, by, among other methods, acquiring, leasing, constructing or financing various public facilities, land, equipment and other improvements and property for the use, benefit and enjoyment of the public z (herein referred to as "public improvements "). The activities of the Corporation shall be limited to the activities described in its Articles of Incorporation. No gains, profits or dividends shall be distributed to any of the members of the Corporation; no part of the net earnings, funds or assets of the Corporation shall inure to the benefit of any member, shareholder, individual person, firm or corporation, excepting only the City of Newport Beach. SECTION 1.03. Principal Office. The principal office of the Corporation is hereby fixed and located at 3300 Newport Boulevard, 1 Newport Beach, California, City Manager's Office. The Board of Directors is hereby granted full power and authority to change said principal office from one location to another in the City of Newport Beach. Any such change shall be noted by the Secretary opposite this section, but shall not be considered an amendment to these Bylaws. ARTICLE II. Members SECTION 2.01. Members. Pursuant to Section 5310 of the Government Code, the bylaws of a nonprofit corporation may provide that the corporation shall have no members. The Corporation shall have,no members other than the Directors as specified by Article V of the Articles of Incorporation. ARTICLE III. Directors SECTION 3.01. Powers. Subject to limitation of the Articles of Incorporation, or the Bylaws, and of the California Nonprofit b Corporation Law, and subject to the duties of Directors as prescribed by the Bylaws, all powers of the Corporation shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be controlled by, the Board of Directors. No Director shall be responsible for any error in judgment or for anything that he or she may do or refrain from doing in good faith. Without prejudice to such general powers, but subject to the same limitations, it is hereby expressly declared that the Directors shall have all of the powers permitted by law, including, but not limited to, the following powers, to wit: First - To select and remove all the other officers, agents and employees of the Corporation, prescribe such powers and duties for them as may not be inconsistent with law or the Articles of Incorporation or Bylaws, fix their compensation and require from them security for faithful service; Second - To conduct, manage and control the affairs and business of the Corporation ' and to make such rules and regulations therefor not inconsistent with law or the Articles of Incorporation or Bylaws, as they may deem best; Third - To borrow money and incur indebtedness for the purposes of the Corporation, and to cause to be executed and z delivered therefor, in the name of the Corporation, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations or other evidences of debt and securities therefor; Fourth - To purchase, rent or otherwise acquire, hold, maintain, lease, sell or otherwise dispose any real or personal property for the purposes of the Corporation. K3 r 1 i Z { property for the purposes of the Corporation. SECTION 3.02. Number and Qualifications of Directors. The authorized number of Directors shall be seven (7) until changed by amendment of the Articles of Incorporation or by amendment of the Bylaws. SECTION 3.03. Selection and Term of Office. Directors of he Corporation shall be the members of the City Council of the City of Newport Beach or persons designated by the City Council, and no person shall be eligible to serve as a Director of the Corporation except a person initially approved by a resolution of 'the City Council. Unless a vacancy in the office occurs as herein provided, each Director shall hold office for the same term as the member of the City Council of the City of Newport Beach nominating that Director or until a successor has been designated and has accepted the office. The member of the City Council of the City of Newport Beach nominating a Director of the Corporation may, with or without cause, remove that Director of the Corporation from office. SECTION 3.04. Vacancies. Subject to the provisions of Section 5226 of the California Nonprofit Corporation .Law, any Director may resign effective upon giving written notice to the President, the Secretary, or the Board, unless the notice specifies a later time for the effectiveness of such resignation. If the resignation is effective at a future time, a successor may be selected before such time, to take office when the resignation becomes effective. The Board of Directors may remove a Director for failing to 0 attend three consecutive meetings of the Board of Directors. A vacancy or vacancies in the Board of Directors shall be deemed to exist in case of the death, resignation, or removal of any Director, or if the authorized number of Directors is increased. Vacancies in the Board shall be filed in the same manner as the Director whose office is vacant was selected. Each Director so selected shall hold office until the expiration of the term of the replaced Director and until a successor has been selected and has accepted the office. SECTION 3.05. Organization and Annual Meeting. The Board of Directors shall hold an annual meeting for the purpose of organization, selection of Directors and officers, and the transaction of other business. Annual meetings of the Board shall be held without call or notice on the second Monday of July at 2:00 o'clock p.m., local time; provided, however, should any said day fall upon a holiday observed by the Corporation at its principal office, then said meeting shall be held at the same time on the next day thereafter ensuing which is a full business day. SECTION 3.06. Regular Meetings. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the time and place of holding such meetings. Notice of regular meetings need not be given. SECTION 3.07. Special Meetings Notice Waiver. A special meeting of the Board of Directors shall be held whenever called by the President, or by a majority of the Directors. Written notice 5 of each such meeting shall be delivered personally or by mail to each Director to be received at least twenty -four (24) hours before the time of such meeting. The call and notice shall be posted at least twenty -four (24) hours prior to the special meeting in a location that is freely accessible to.the members of the public. Notice shall also be given to the City Council of the City of Newport Beach if the Directors or any of them are not members of the City Council. The call and notice shall signify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by the'Board of Directors. Notice of Adjournment of a meeting need not be given to abseAt Directors if the time and place are fixed at the meeting adjourned. The transactions of any meeting of the Board of Directors, however called and noticed and wherever held, shall be as valid as though had at a meeting held after regular call and notice, if a quorum be present; provided, however, that before the meeting, each of the Directors not present signs a written waiver of notice and files said written waiver of notice with the Secretary; and provided further, that notice be given to each local newspaper of general circulation, radio or television station requesting notice in writing pursuant to Government Code Section 54456. All waivers, shall be filed with the corporate records and made a part of the minutes of the meeting. 2 SECTION 3.48. Adjourned Meetings,_ Notice of Adjournment. The Board of Directors may adjourn any regular, adjourned regular, special or adjourned special meeting to a time and place specified in the order of adjournment. Less than a quorum may so adjourn from time to time. A copy of the order or notice of adjournment shall be conspicuously posted on or near the door of the place where the regular, adjourned regular, special or adjourned special meeting was held within twenty four hours after the time of adjournment. When a regular or adjourned regular meeting is adjourned as provided in this section, the resulting adjourned regular meeting is a regular meeting for all purposes. ,SECTION 3.09. Quorum. A majority of the authorized number of Directors shall be necessary to constitute a quorum for the transaction of business. 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 regarded as the act of the Board�of Directors unless a greater number be required by law or by the Articles of Incorporation. SECTION 3.10. Fees and Compensation. Directors shall receive no compensation or expenses for their services as Directors. SECTION 3.11. Ralph M. Brown Act. Notwithstanding any of the provisions of these Bylaws to the contrary, all meetings of Directors shall be subject to the Ralph M. Brown Act, commencing at Section 54940 of the Government Code of the State of California. 7 c SECTION 3.12. Conduct of Meetings. The President or, in his absence, the Vice President, or a Chairman chosen by a majority of the Directors present, shall preside. Articles Iv. Officers SECTION 4.01. Officers. The officers of the Corporation shall be the Chairman of the Board, a President, and a Chief Financial Officer. The Corporation may also have, at the discretion of the Board of Directors, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers as may be appointed by the Board of Directors. One person may hold two or more offices, except that the offices of President and Secretary or President and Chief Financial Officer may not be combined. SECTION 4.02. Election. The Chairman of the Board and any Vice - Presidents shall be chosen annually by the Board of Directors and each shall hold office until the officer shall resign, be :. removed, or otherwise disqualified to serve, or the officer's successor shall be elected and qualified. SECTION 4.03. Removal and Resignation. Vice - Presidents may resign, or may be removed, with or without cause, by the Board of Directors at any time. Vacancies caused by death, resignation or removal of any Vice - Presidents may be filled by appointment by the Board of Directors, or by the President until such appointment by the Board of Directors. R3 c 7 f SECTION 4.04. President. The City Manager of the City of Newport Beach shall be the President of the Corporation and, subject to the control of the Board of Directors, shall be responsible for the management, supervision, direction and control of the affairs of the Corporation. SECTION 4.05. Vice- President. In the absence or disability of the President, the Vice Presidents in order of their rank 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 the restrictions upon, the President. The Vice President shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors or'by the Bylaws. SECTION 4.06. Secretary. The Secretary shall be the City Clerk of the City of Newport Beach. The Secretary shall keep Iat the principal office of the Corporation a book of minutes of all meetings of Directors and members, with the time and place of holding, how called or authorized, the notice thereof given, the names of those present or represented at member's meetings, and the proceedings thereof. SECTION 4.07. Chief Financial Officer. The Chief Financial Officer shall be the City Treasurer of the City of Newport Beach. The Chief Financial Officer shall keep and maintain adequate and correct books of account showing the receipts and disbursements of the Corporation, and an account of its cash and other assets, if E any. Such books of account shall at all reasonable times be open to inspection by any member or Director. The Chief Financial Officer shall deposit all moneys of the Corporation with such depositories as are designated by the Board of Directors, and shall disburse the funds of the Corporation as may be ordered by the Board of Directors, and shall render to the President or the Board of Directors, upon request, statements of the financial condition of the Corporation. SECTION 4.08. Subordinate officers. Subordinate officers shall perform such duties as shall be prescribed from time to time by the Board of Directors or the President. Articles V. Miscellaneous SECTION 5.01. Execution of Documents. The Board of Directors may authorize any officer, agent or both to enter into 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; unless so authorized by the Board of Directors, no officer, agent or other person 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 to any amount. SECTION 5.02. Inspection of Bylaws. The Corporation shall keep in its principal office the original or a copy of these Bylaws, as amended or otherwise altered to date, certified by the Secretary, which shall be open to inspection by the members at all reasonable times during office hours. WN I SECTION 5.03. Annual Report. The annual report referred to in Section 6321 of the Government Code of the State of California is expressly dispensed with. SECTION 5.03. Fiscal Year. The fiscal year of the Corporation shall begin July 1 and end June 30 of each year, except the first fiscal year which shall run from the date of incorporation to June 30, 1992. SECTION 5.05. Dissolution. In the event of dissolution of the Corporation in any manner and for any cause, after the payment or adequate provision for the payment of all of its debts and liabilities, all of the remaining funds, assets and properties of the Corporation shall be paid or distributed to the City of Newport Beach, California. SECTION 5.06. Construction and Definitions: Unless the context otherwise requires, the general provisions, rules of construction and definitions contained in the Nonprofit Corporation Law of the State of California shall govern the construction of these Bylaws. If any section, subsection, sentence, clause or phrase of these Bylaws, or the application thereof, is contrary to the Nonprofit Corporation Law of the State of California the provisions of that law shall prevail. Without limiting the generality of the foregoing the masculine gender includes the feminine and neuter, the singular number includes the plural and the plural number includes the singular, and the term "person" includes a corporation as well as a natural person. owl Articles VI. Amendments t SECTION 6.01. Power of Directors. New Bylaws may be adopted or these Bylaws may be amended or repealed by a majority vote of the Board of Directors. a MA