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Res 09-067 RESOLUTION NO. 09-067 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA, ACTING FOR ITSELF AND AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 88-1 OF THE CITY OF POWAY (PARKWAY BUSINESS CENTER) TO AUTHORIZE THE ISSUANCE OF ITS SPECIAL TAX REFUNDING BONDS, SERIES 2009, IN A PRINCIPAL AMOUNT NOT TO EXCEED $17 MILLION DOLLARS ($17,000,000) AND APPROVING CERTAIN DOCUMENTS AND TAKING CERTAIN OTHER ACTIONS IN CONNECTION THEREWITf;t . WHEREAS, the City Council of the City of Poway, located in San Diego County, California (the "City Council", and hereinafter sometimes referred to also as the "legislative body of the District"), has heretofore undertaken proceedings and declared the necessity of Community Facilities District No. 88-1 of the City of Poway (Parkway Business Center) (the "District") to issue bonds 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, based upon Resolution Nos. 88-122 and 88-123 adopted by the legislative body of the District on October 18, 1988 and an election held November 1, 1988 authorizing the levy of a special tax and the issuance of bonds by the District, the District is authorized to issue bonds in one or more series, pursuant to the Act, in an aggregate principal amount not to exceed $45,000,000; and WHEREAS, the District has previously issued its $30,000,000 aggregate initial principal amount Special Tax Bonds, Series 1989 (the "1989 Bonds"); and WHEREAS, the District has previously issued its $8,000,000 aggregate initial principal amount Special Tax Bonds, Series 1990 (the "1990 Bonds"); and WHEREAS, on May 21,1998, the District issued its $35,445,000 aggregate initial principal amount Special Tax Refunding Bonds, Series 1998 (the "1998 Bonds"), which refinanced the 1989 Bonds and the 1990 Bonds; and WHEREAS, in connection with the issuance of the 1998 Bonds, the legislative body of the District, pursuant to Resolution No. 98-046 adopted on April 28, 1998, determined to reduce the total amount of authorized bonded indebtedness of the District from $45,000,000 to the initial principal amount of the 1998 Bonds ($35,445,000); and WHEREAS, at this time, the legislative body of the District intends to refinance the 1998 Bonds through the issuance of refunding bonds in an aggregate principal amount not to exceed $17,000,000, designated as the "Community Facilities District No. 88-1 of the City of Poway (Parkway Business Center) Special Tax Refunding Bonds, Series 2009" (the "Series 2009 Bonds"); and 1]86761.3 Resolution No. 09-067 Page 2 WHEREAS, the legislative body of the District has determined that it is prudent in the management of its fiscal affairs to issue the Series 2009 Bonds; and WHEREAS, the value of the real property in the District subject to the special tax to pay debt service on the Series 2009 Bonds is not less than three times the principal amount of the Series 2009 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, which fact is required as a precondition to the issuance of the Series 2009 Bonds; and WHEREAS, in order to effect the issuance of the Series 2009 Bonds, the City Council, for itself and as the legislative body of the District, desires to approve the form of a Preliminary Official Statement for the Series 2009 Bonds and to approve the forms of, and authorize the execution and delivery of, a Bond Indenture, an Escrow Agreement, a Bond Purchase Agreement, and a Continuing Disclosure Certificate for the Series 2009 Bonds, the forms of which are on file with the City Clerk. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY, ACTING FOR ITSELF AND AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 88-1 OF THE CITY OF POWAY (PARKWAY BUSINESS CENTER), DOES HEREBY RESOLVE AS FOLLOWS: 1. Each of the above recitals is true and correct and is adopted by the City Council, acting for itself and as the legislative body of the District. 2. The legislative body of the District hereby finds and determines that, as determined in accordance with Section 53345.8 of the Act, the value of the real property in the District subject to the special tax to pay debt service on the Series 2009 Bonds is not less than three times the principal amount of the Series 2009 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 full cash value of the real property within the District as shown on the ad valorem assessment roll. 3. The issuance of the Series 2009 Bonds in an aggregate principal amount not to exceed $17,000,000 is hereby authorized, with the exact principal amount of the Series 2009 Bonds to be determined by the official signing the Bond Purchase Agreement in accordance with Section 7 below. In that regard, the City and the District hereby appoint Public Financial Management, Inc., to act as financial advisor in connection with the issuance of such bonds; Southwest Securities, Inc. to act as underwriter of the bonds (the "Underwriter"); Best Best & Krieger LLP to act as disclosure counsel ("Disclosure Counsel"); and Richards, Watson & Gershon, A Professional Corporation, to act as bond counsel ("Bond Counsel"). The legislative body of the District hereby determines that it is prudent in the management of its fiscal affairs to issue the Series 2009 Bonds. The Series 2009 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 7 hereof. The Series 2009 Bonds shall 2 1 ]86761.3 Resolution No. 09-067 Page 3 be governed by the terms and conditions of the Bond Indenture presented at this meeting, on file with the City Clerk and incorporated herein by reference (the "Indenture"). The Indenture shall be executed by the Mayor of the City of Poway (the "Mayor") or the City Manager of the City of Poway (the "City Manager", and together with the Mayor, the "Authorized Officers") in substantially the form presented at this meeting, with such additions thereto and changes therein as may be approved by such officer upon consultation with Bond Counsel. Approval of such changes shall be conclusively evidenced by the execution and delivery of the Indenture by anyone of the Authorized Officers. The date or dates, maturity or maturities, pledge or assignment of any revenues of the District to the repayment of the Series 2009 Bonds, the manner of investment of any bond proceeds and other revenues, manner of payment, interest rate or rates, interest payment dates, denominations, form, registration privileges, manner of execution, place of payment, terms of redemption, rebate provisions, funds designated to pay the costs of issuance the Series 2009 Bonds, and other terms of the Series 2009 Bonds shall be as provided in the Indenture as finally executed and shall be in conformance with any such terms set forth in the Bond Purchase Agreement described in Section 7 below and Official Statement described in Section 8 below and delivered to the purchasers of the Series 2009 Bonds. Capitalized terms used in this Resolution which are not defined herein have the meanings ascribed to them in the Indenture. 4. The Series 2009 Bonds shall be executed on behalf of the District by the manual or facsimile signature of the Mayor of the City and attested with the manual or facsimile signature of the City Clerk. The appointment of The Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee (the "Trustee") under the Indenture and as escrow agent (the "Escrow Agent") under the Escrow Agreement described in Section 6 is hereby approved. 5. Pursuant to Section 53356.1 of the Act, the legislative body of the District hereby covenants, for the benefit of the Bondowners, to commence and diligently pursue any foreclosure action regarding delinquent installments of any amount levied as a special tax for the payment of interest or principal of the Series 2009 Bonds, such foreclosure action to be commenced and pursued as more completely set forth in the Indenture. 6. The Escrow Agreement (the "Escrow Agreement"), proposed to be entered into by and among the District, the City, and the Escrow Agent, in the form presented and on file in the office of the City Clerk, is hereby approved. Each Authorized Officer, acting singly, is hereby authorized and directed, for and in the name and on behalf of the District, to execute and deliver the Escrow Agreement in substantially said form, with such changes therein as the Authorized Officer executing the same may approve (such approval to be conclusively evidenced by such officer's execution and delivery thereof). The date on which the 1998 Bonds shall be defeased and no longer deemed to be outstanding shall be as provided in the Escrow Agreement as finally executed. 7. The form of the Bond Purchase Agreement by and among the City (on behalf of the District) and the Underwriter presented at this meeting, on file with the City Clerk and incorporated herein by reference (the "Bond Purchase Agreement"), is hereby 3 1186761.3 Resolution No. 09-067 Page 4 approved, and anyone of the Authorized Officers is hereby authorized to execute the Bond Purchase Agreement in substantially the form hereby approved, with such additions thereto and changes therein as may be approved by such officer upon consultation with Bond Counsel. Approval of such additions and changes shall be conclusively evidenced by the execution and delivery of the Bond Purchase Agreement; provided, however, that the Bond Purchase Agreement shall be signed only if the Series 2009 Bonds are purchased by the Underwriter at an overall interest rate that does not exceed 5.00% per annum for the issue as a whole (calculated utilizing the true interest cost method) and the discount paid to the Underwriter (exclusive of original issue discount) does not exceed 0.75% of the principal amount of the Series 2009 Bonds. The legislative body of the District hereby finds and determines, pursuant to Section 53360.4 of the Act, that the sale of the Series 2009 Bonds at negotiated sale to the Underwriter, as contemplated by the Bond Purchase Agreement, will result in a lower overall cost than a public sale. Each of the Authorized Officers is authorized to determine the day on which the Series 2009 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. 8. The form of the Preliminary Official Statement presented at this meeting, on file with the City Clerk and incorporated herein by reference (the "Preliminary Official Statement") is hereby approved, and the Underwriter is hereby authorized to distribute the Preliminary Official Statement to prospective purchasers of the Series 2009 Bonds in substantially the form hereby approved, together with such additions thereto and changes therein as are determined necessary by anyone of the Authorized Officers, upon consultation with Disclosure Counsel, to make the Preliminary Official Statement final as of its date for purposes of Rule 15c2-12 promulgated under the Securities Exchange Act of 1934 of the Securities and Exchange Commission, including, but not limited to, such additions and changes as are necessary to make all information set forth therein accurate and not misleading. Each of the Authorized Officers is hereby authorized to execute a final Official Statement in substantially the form of the Preliminary Official Statement, together with such changes as are determined necessary by the Authorized Officer executing the Official Statement, upon consultation with Disclosure Counsel, to make such Official Statement complete and accurate as of its date. The Underwriter is further authorized to distribute the final Official Statement for the Series 2009 Bonds and any supplement thereto to the purchasers thereof upon its execution on behalf of the District as described above. 9. The form of the Continuing Disclosure Certificate presented at this meeting, on file with the City Clerk as appended to the Preliminary Official Statement and incorporated herein by reference (the "Continuing Disclosure Certificate"), is hereby approved, and anyone of the Authorized Officers is hereby authorized and directed to execute the Continuing Disclosure Certificate in substantially the form hereby approved, with such additions therein and changes thereto as the Authorized Officer or Authorized Officers executing the same deem necessary to cure any defect or ambiguity therein if such change does not materially alter the substance or content thereof, with such approval to be conclusively evidenced by the execution and delivery of the Continuing Disclosure Certificate. 4 1180701.3 Resolution No. 09-067 Page 5 10. All actions heretofore taken by the officers and agents of the City and the District with respect to the establishment of the District, the issuance and sale of the Series 2009 Bonds, or in connection with or related to any of the agreements or documents referenced herein are hereby approved, confirmed, and ratified. The Mayor, each of the Authorized Officers, and the 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 (a) the issuance, sale and delivery of the Series 2009 Bonds in accordance with the provisions of this Resolution; (b) the transactions contemplated by the Indenture, the Bond Purchase Agreement, and the Continuing Disclosure Certificate; and (c) the fulfillment of the purposes of the Series 2009 Bonds as described in the Indenture, including, but not limited to, providing certificates as to the accuracy of any information. relating to the District which is included in the Official Statement. In the event that the Mayor is unavailable to sign any document authorized for execution herein, any Authorized Officer may sign such document. Any document authorized herein to be signed by the City Clerk may be signed by a duly appointed deputy clerk. 11. This Resolution shall take effect upon its adoption. The City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions. PASSED AND ADOPTED this 1st day of December, 2009. - - Don Higginson, Mayor ATTEST: . ~ 5 1186761.3 Resolution No. 09-067 Page 6 STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO) I, Linda A. Troyan, City Clerk of the City of Poway, do hereby certify under penalty of perjury that the foregoing Resolution No. 09-067 was duly adopted by the City Council at a meeting of said City Council held on the 151 day of December 2009, and that it was so adopted by the following vote: AYES: BOYACK, CUNNINGHAM, REXFORD, KRUSE, HIGGINSON NOES: NONE ABSENT: NONE DISQUALIFIED: NONE /'- 6 1186761.3