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Res 04-017 RESOLUTION NO. 04-017 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA ACTING AS THE LEGISLATIVE BODY OF SOUTH POWAY COMMUNITY FACILITIES DISTRICT NO.1 OF THE CITY OF POWAY (POMERADO BUSINESS PARK) AUTHORIZING THE ISSUANCE OF ITS SERIES 2004 SPECIAL TAX REFUNDING BONDS IN A PRINCIPAL AMOUNT NOT TO EXCEED FOUR MILLION ONE HUNDRED THOUSAND DOLLARS ($4,100,000) AND APPROVING CERTAIN DOCUMENTS AND TAKING CERTAIN OTHER ACTIONS IN CONNECTION THEREWITH WHEREAS, the City Council of the City of Poway (hereinafter sometimes referred to as the "legislative body of the District" or the "City Council") has heretofore undertaken proceedings and declared the necessity to issue bonds on behalf of Community Facilities District No.1 of the City of Poway (the "District") pursuant to the terms and provisions of the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act"); and WHEREAS, pursuant to Resolution No. 87-011 adopted by the legislative body of the District on January 27, 1987, a proposition authorizing the levy of a special tax within and the issuance of bonded indebtedness by the District was submitted to the qualified electors within the District, and was approved by more than two-thirds of the votes cast at the election; and WHEREAS, based upon Resolution No. 87-011 and the election, the District was authorized to issue bonds in one or more series, pursuant to the Act, in an aggregate principal amount not to exceed $40,000,000; and WHEREAS, the legislative body of the District has previously issued its $17,415,000 Special Tax Refunding Bonds, Series 1998 (First Lien Bonds) (the "1998 Series A Bonds") and its $8,675,000 Series 1998 (Second Lien Bonds) (the "1998 Series B Bonds") (the 1998 Series B Bonds being hereafter referred to as the "1998 Series B Bonds" or the "Prior Bonds"), pursuant to the terms of Resolution No. 98-101, and that certain Bond Indenture dated as of November 1, 1998, executed in connection therewith, which 1998 Series B Bonds the legislative body of the District now desires to refund; and WHEREAS, the legislative body of the District intends to accomplish the refunding of the Prior Bonds through the issuance of one series of bonds, in an aggregate principal amount not to exceed $4,100,000 designated as the "South Poway Community Facilities District No.1 (Pomerado Business Park Project) Special Tax Refunding Bonds, Series 2004" (the "2004 Bonds" or the "Bonds"); and WHEREAS, in order to effect the issuance of the Series 2004 Bonds and the refunding of the Prior Bonds, the District desires to enter into various agreements in substantially the forms presented herein; and Resolution No. 04-017 Page 2 WHEREAS, pursuant to Section 53312.7 of the Act, the legislative body of the District has stated goals and policies relative to its Mello-Roos community facilities districts; and WHEREAS, the District has determined that all authorized public facilities of the District have been acquired or constructed as of the date hereof, permitting the District to reduce the amount of authorized but unissued bonded indebtedness to the amount needed to refund the Prior Bonds and pay related costs, and to covenant not to issue additional bonds to finance additional capital improvements. NOW, THEREFORE, BE IT RESOLVED BY the City Council of the City of Poway acting as the legislative body of Community Facilities District No.1 of the City of Poway as follows; Section 1. Each of the above recitals is true and correct. Section 2. The issuance of the Series 2004 Bonds is hereby authorized in an aggregate principal amount not to exceed $4,100,000 with the exact principal amount of the Series 2004 Bonds to be determined by the official signing of the Bond Purchase Agreement in accordance with Section 5 below. The legislative body of the District hereby determines that it is prudent in the management of its fiscal affairs to issue the Series 2004 Bonds. The Series 2004 Bonds shall mature on the dates and pay interest at the rates set forth in the Bond Purchase Agreement to be executed on behalf of the District in accordance with Section 5 hereof. All other provisions of the Series 2004 Bonds shall be governed by the terms and conditions of the bond indenture (the "Bond Indenture"), and anyone of the Mayor of the City, the City Manager or either such party's written designee are authorized to execute the Bond Indenture, which Bond Indenture shall be substantially in the form on file with the Clerk of the City Council, with such additions thereto and changes therein as the officer or officers executing the same deem necessary to enhance the security for or obtain a rating or municipal bond insurance on any of the Series 2004 Bonds, to cure any ambiguity or defect therein, to insert the offering price(s), interest rate(s), selling compensation, principal amount per maturity, redemption dates and prices and such other related terms and provisions as limited by Section 5 hereof, or to conform any provisions therein to the Bond Purchase Agreement or the Official Statement delivered to the purchasers of the Series 2004 Bonds. Approval of such changes shall be conclusively evidenced by the execution and delivery of the Bond Indenture by one or more of the foregoing officers. Capitalized terms used in this Resolution which are not defined herein have the meanings ascribed to them in the Bond Indenture. In satisfaction of the requirements contained in Section 53363.2 of the Act, the City Council hereby determines that: (1) it is anticipated that the purchase of the Series 2004 Bonds will occur on or about April 14, 2004, (2) the Series 2004 Bonds shall bear the date, be in the denominations, have the maturity dates (which do not exceed the latest maturity date of the bonds being refunded), be payable at the place and be in the form specified in the Bond Indenture, (3) the Series 2004 Bonds will bear interest at the minimum rate of 1 % per annum, and (4) the designated cost of issuing the Series 2004 Bonds, as defined by Section 53363.8 of the Act, shall include all of the costs specified in Section 53363.8(a), (b)(2) and (c) of the Act. Resolution No. 04-017 Page 3 Section 3. The Series 2004 Bonds shall be executed on behalf of the District by the manual or facsimile signature of anyone of the Mayor of the City, the City Manager or either such party's written designee, and attested with the manual or facsimile signature of the Clerk of the legislative body of the District. BNY Western Trust Company is hereby appointed to act as Fiscal Agent, registrar and transfer agent for the Series 2004 Bonds and BNY Western Trust Company is hereby appointed to act as Escrow Bank and to continue in its appointment as Paying Agent with respect to the Prior Bonds. Section 4. The covenants set forth in the Bond Indenture to be executed in accordance with Section 2 above are hereby approved, shall be deemed to be covenants of the legislative body of the District and shall be complied with by the District and its officers. The Bond Indenture shall constitute a contract between the District and the Owners of the Series 2004 Bonds. Section 5. The legislative body of the District hereby determines, in accordance with Section 53360.4 of the Act, that a negotiated sale of the Series 2004 Bonds to Stone & Youngberg LLC (the "Underwriter") in accordance with the terms of the Bond Purchase Agreement approved as to form herein will result in a lower overall cost to the District than a public sale. The form of the Bond Purchase Agreement presented at this meeting is hereby approved and each of the Mayor, the City Manager and the Director of Administrative Services is hereby authorized to execute the Bond Purchase Agreement, with such additions thereto and changes therein relating to dates and numbers as are necessary to conform the Bond Purchase Agreement to the dates, amounts and interest rates applicable to the Series 2004 Bonds as of the sale date. Approval of such additions and changes shall be conclusively evidenced by the execution and delivery of the Bond Purchase Agreement by one or more of such officers; provided, however, that the Bond Purchase Agreement shall be signed only if (i) the Series 2004 Bonds are issued at a price which results in a three percent (3%) or greater net present value savings, (ii) the Underwriter's discount (not including any original issue discount) does not exceed 1 % of the principal amount of the Series 2004 Bonds and (iii) the net interest cost to maturity on that portion of the Series 2004 Bonds issued to defease the 1998 Series B plus the principal amount of such portion of the Series 2004 Bonds does not exceed the net interest cost to maturity on the 1998 Series B to be refunded plus the principal amount of the 1998 Series B to be refunded. Each of the City Manager and Director of Administrative Services is authorized to determine the day on which the Series 2004 Bonds are to be priced in order to attempt to produce the lowest borrowing cost for the District and may reject any terms presented by the Underwriter if determined not to be in the best interest of the District. Section 6. The forms of the Escrow Agreement and the Continuing Disclosure Agreement presented at this meeting are hereby approved and each of the Mayor and the City Manager and the Director of Administrative Services is hereby authorized and directed to execute the Escrow Agreement and the Continuing Disclosure Agreement in the form hereby approved, with such additions therein and changes thereto as the officer or officers executing the same deem necessary to cure any defect or ambiguity therein, with such approval to be conclusively evidenced by the execution and delivery of such agreements. Resolution No. 04-017 Page 4 Section 7. The form of Official Statement delivered herewith to the District hereby approved in substantially the form presented, with such changes therein as may be approved by the Mayor and City Manager upon the advice of bond counsel and the underwriter, the Mayor or City Manager, or either's written designee's, execution thereof to be conclusive evidence of approval of such changes. The foregoing authorized officers, or anyone of them, are hereby authorized to execute a certificate or certificates to the effect that the Official Statement and such preliminary official statement were deemed "final" as of their respective dates for purposes of Rule 15c2-12 of the Securities Exchange Act of 1934, and is authorized to so deem such statements final. Section 8. In accordance with the requirements of Section 53345.8 of the Act, the legislative body of the District hereby determines that the value of the real property in the District subject to the special tax to pay debt service on the Series 2004 Bonds is at least three times the principal amount of the Series 2004 Bonds and the principal amount of all other bonds outstanding that are secured by a special tax levied pursuant to the Act or a special assessment levied on property within the District. This determination is based on the market value of such property as determined by an appraisal performed by an independent MAl appraiser on a basis consistent with the policies adopted by the City in this Resolution. Section 9. The legislative body hereby finds that the authorized facilities of the District are complete. Therefore, covenants are included in the Bond Indenture not to issue additional bonds to finance additional capital improvements. -- Section 10. Stradling Yocca Carlson & Rauth, a Professional Corporation, shall act as bond counsel with respect to the issuance of the Series 2004 Bonds pursuant to the terms of the contract with the District on file with the City Clerk and shall be paid the fee set forth therein upon the issuance of the District Bonds. Additionally, Public Financial Management, Inc. ("PFM") shall act as financial advisor to the City and the District with respect to the issuance of the Series 2004 Bonds pursuant to the terms of that certain contract for financial advisory services heretofore executed by the City and PFM, which contract is on file with the City Clerk. The City Manager and Director of Administrative Services and their written designees each is authorized to execute and deliver the foregoing contract for bond counsel services and to pay for the cost of such bond counsel and financial advisory services, together with other Costs of Issuance, with Series 1998 Bond proceeds deposited pursuant to the Bond Indenture. Without further approval of the legislative body of the District, the total amount disbursed for any Costs of Issuance (not including Underwriter's discount) shall not exceed 5% of the principal amount of the Series 2004 Bonds. Section 11. The President and Clerk of the legislative body of the District and the other officers and staff of the City and the District responsible for the fiscal affairs of the District are hereby authorized and directed to take any actions and execute and deliver any and all documents as are necessary to accomplish the issuance, sale and .- delivery of the Series 2004 Bonds in accordance with the provisions of this Resolution and the fulfillment of the purposes of the Series 2004 Bonds as described in the Bond Indenture, including providing certificates to the Underwriter as to the accuracy of any information relating to the City and the District which is included within the Official Statement. In the event that the Mayor is unavailable to sign any document authorized for execution herein, any other member of the legislative body of the District or the City Resolution No. O4.{J17 Page 5 for execution herein, any other member of the legislative body of the District or the City Manager, or his written designee, may sign such document. Any document authorized herein to be signed by the Clerk of the legislative body of the District may be signed by a duly appointed deputy clerk. PASSED, ADOPTED, AND APPROVED by the City Council of the City of poway at a regular meeting this 23rd day of March 2004. ATTEST: ~f~ alJ.:?JJl&./J Sherrie D. orrell, Deputy City Clerk STATE OF CALIFORNIA) ) SS COUNTY OF SAN DIEGO) I, Sherrie D. Worrell, Deputy City Clerk of the City of Poway, do hereby certify under penalty of perjury, that foregoing Resolution No. 04- ~ was duly adopted by the City Council at a meeting of said City Council held on the 23rd day of March 2004, and that it was so adopted by the following vote: AYES: EMERY, GOLDBY, HIGGINSON, REXFORD, CAFAGNA NOES: NONE ABSTAIN: NONE ABSENT: NONE ~n{)/Þ}¡¡k"¡J Sherrie D. Worrell, Deputy City Clerk City of Poway 5