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Res 02-124RESOLUTION NO. 02-124 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY AUTHORIZING THE PREPARATION, SALE AND DELIVERY OF NOT TO EXCEED $20,000,000 PRINCIPAL AMOUNT OF 2002 CERTIFICATES OF PARTICIPATION (CITY OFFICE PROJECT) AND APPROVING CERTAIN DOCUMENTS AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION THEREWITH AND RESCINDING RESOLUTION NO. 02~109 WHEREAS, the Poway Public Financing Authority is a joint powers authority duly organized and existing under the laws of the State of California (the "Authority") with the authority to assist in the financing of capital facilities on behalf of the City of Poway, a municipal corporation (the "City"); and WHEREAS, on October 8, 2002, the City adopted Resolution No. 02-109 approving the execution and delivery of 2002 Certificates of Participation in an aggregate principal amount not to exceed $15,000,000; and WHEREAS, the Authority and the City have determined that it is necessary and desirable to increase the maximum permitted principal amount of the Certificates (defined below) to not to exceed $20,000,000, and to adopt this resolution to supercede and replace Resolution No. 02-109 to accomplish such purpose; and WHEREAS, the City now desires to execute and deliver the Certificates of Participation (as defined below) for the purpose of financing certain acquisition, site improvement and construction costs of public capital facilities, including, but not limited to, a City Office facility serving the City (collectively, the "Project"); and WHEREAS, in order to accomplish the financing of the Project, the City and the Authority further desire to enter into that certain Site and Facilities Lease by and between the City and the Authority to be dated as of the first day of the month in which the Purchase Agreement is executed (the "Site Lease") and that certain Lease Agreement, by and between the City and the Authority (the "Lease Agreement") to be dated as of the first day of the month in which the Purchase Agreement is executed, the forms of which have been approved by this City Council at the October 8, 2002, meeting, pursuant to which Site Lease the City will lease the Property (defined below) to the Authority and pursuant to which Lease Agreement the City will agree to lease certain real property and improvements constituting the City Office Project to be constructed with proceeds of the Certificates (collectively, the "Property") from the Authority and to pay certain lease payments in connection therewith which will be pledged by the Authority to the owners of the 2002 Certificates of Participation (City Office Project) (the "Certificates") to be executed and delivered pursuant to a Trust Agreement, to be dated as of the first day of the month in which the Purchase Agreement is executed, by and among U.S. Bank, N.A., as trustee (the "Trustee"), the City and the Authority (the "Trust Agreement"), the form of which has been presented to this City Council at the October 8, 2002, meeting and approved; and Resolution No. 02-124 Page 2 WHEREAS, the Authority and the City have determined that it would be in the best interests of the Authority, the City and the residents of the City to authorize the preparation, sale and delivery of the Certificates in an aggregate principal amount not to exceed $20,000,000, which Certificates evidence proportionate interests in certain rights under the Lease Agreement, including the right to receive certain lease payments to be made by the City thereunder, including, but not limited to, certain sublease payments to the extent made by the County under the Sublease; and WHEREAS, the City Council desires to consent to the assignment of certain of the Authority's rights, title and interest in and to the Site Lease and the Lease Agreement, including the right to receive such lease payments from the City, to the Trustee pursuant to an Assignment Agreement, between the Authority and the Trustee, to be dated as of the first day of the month in which the Purchase Agreement is executed (the "Assignment Agreement"), the form of which has been approved by this City Council at the October 8, 2002, meeting; and WHEREAS, the City Council desires to approve the form of a Purchase Agreement (the "Purchase Agreement"), by and between the City and Wedbush Morgan Securities (the "Purchaser"), pursuant to which the Purchaser will agree to buy the Certificates on the terms and conditions set forth therein, the form of which has been presented to this City Council at the October 8, 2002, meeting and approved, and to approve the form of Special Counsel Agreement by and between the City and Stradling Yocca Carlson & Rauth, a Professional Corporation presented to this City Council at the same meeting (the "Special Counsel Agreement"); and WHEREAS, the City Council desires to approve the form of a Preliminary Official Statement relating to the Certificates (the "Preliminary Official Statement") to be distributed to potential investors, for the purposes of facilitating the sale of the Certificates at the lowest feasible interest rate, the form of which was presented to this City Council at the October 8, 2002, meeting and was adopted; and WHEREAS, the City Council approved the form of a Continuing Disclosure Agreement to be entered into by the City and a dissemination agent in order to assist the Underwriter in complying with S.E.C. Rule 15c2-12(b)(5) and to provide continuing disclosure with respect to the Certificates. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as follows: Section 1. Each of the foregoing recitals is true and correct. Section 2. This City Council hereby consents to the preparation, sale and delivery of the Certificates in an aggregate amount of not to exceed $20,000,000 in accordance with the terms and provisions of the Trust Agreement, with the exact principal amount to be that determined necessary by the City Manager to finance the Project. The purposes for which the proceeds of the Certificates shall be expended are Resolution No. 02- :~24 Page 3 to finance the Project and to provide for a reserve fund, if any, and the costs of the preparation, sale and delivery of the Certificates. Section 3. U.S. Bank, N.A. is hereby appointed as Trustee on behalf of the owners of the Certificates, with the duties and powers of such Trustee as set forth in the Trust Agreement. Section 4. The forms of the Lease Agreement, the Trust Agreement, Site Lease, Continuing Disclosure Agreement and the Assignment Agreement presented at the October 8, 2002, meeting were approved. Each of the Mayor of the City of Poway, the City Manager or his designee (the "City Manager") and the City Clerk is hereby authorized for and in the name of the City to execute the Lease Agreement, Site Lease, Continuing Disclosure Agreement, and the Trust Agreement in substantially the forms hereby approved, with such additions thereto and changes therein as are recommended or approved by Stradling Yocca Carlson & Rauth, as Special Counsel to the City ("Special Counsel"), or City Manager and the officers executing the same, including all changes necessary to reflect the purchase of bond insurance as described in Section 5 below. Approval of such changes shall be conclusively evidenced by the execution and delivery of the foregoing documents by such officers. The Mayor of the City, the City Manager and the City Clerk are hereby authorized to execute, acknowledge and deliver any and all documents required to consummate the transactions contemplated by the Lease Agreement, the Assignment Agreement and the Trust Agreement. Section 5. The form of the Purchase Agreement was presented at the October 8, 2002, meeting and the sale of the Certificates pursuant thereto was approved, and each of the Mayor of the City and the City Manager is hereby authorized to evidence the City's acceptance of the terms and provisions of the Purchase Agreement by executing and delivering the Purchase Agreement in the form presented to the City at that meeting, with such additions thereto and changes therein as are recommended or approved by Special Counsel and the officers executing the same. Approval of such additions and changes shall be conclusively evidenced by the execution and delivery of the Purchase Agreement; provided, however, that the Purchase Agreement shall be signed only if the aggregate principal amount of the Certificates does not exceed $20,000,000, and the Purchaser's discount (exclusive of original issue discount and any bond insurance premium) with respect to the Certificates does not exceed 0.50% of the aggregate principal amount of the Certificates. The City Manager is authorized to determine the day on which the Certificates are to be priced in order to produce the lowest financing cost for the Certificates, which determination shall be conclusively evidenced by the execution and delivery of the Purchase Agreement by one of the aforesaid officers, provided, however, that the net interest cost thereof shall not exceed 6.00%. The City Manager, or his designee, is authorized to reject any terms presented by the Purchaser if determined not to be in the best interest of the City and is further authorized to evaluate whether the purchase of municipal bond insurance for the Certificates will result in a net savings to the City and if so to purchase such municipal bond insurance. Resolution No. 02-124 Page 4 Section 6. The form of the Certificates as set forth in the Trust Agreement (as the Trust Agreement may be modified pursuant to Section 4 hereof) was approved on October 8, 2002. Section 7. The form of the Preliminary Official Statement presented at the October 8, 2002, meeting was approved, and the Preliminary Official Statement may be distributed to prospective purchasers in the form so approved, together with such additions thereto and changes therein as are determined necessary by the City Manager, or his designee, to include municipal bond insurance, if deemed economically advantageous by the Director of Administrative Services, and to make such Preliminary Official Statement final as of its date for purposes of Rule 15c2-12 of the Securities and Exchange Commission. Each of the Mayor of the City and the City Manager is hereby authorized to execute a final Official Statement in the form of the Preliminary Official Statement, together with such changes as are determined necessary by the City Manager, or his designee, to make such Official Statement complete and accurate as of its date. The Purchaser is further authorized to distribute the final Official Statement for the Certificates to the purchasers thereof upon its execution by an officer of the City as described above. The City Manager, Director of Administrative Services and a written designee thereof, and acting singly, are hereby authorized and directed to take whatever steps are necessary to comply with the requirements of Rule 15c2-12 applicable to the Certificates following their execution and delivery, including without limitation the execution and delivery of a continuing disclosure agreement in a form and substance acceptable to the Mayor, which acceptance shall be conclusively evidenced by the execution thereof as authorized above. Section 8. The form of Special Counsel Agreement presented at the October 8, 2002, meeting was approved and the City Manager is authorized to execute such Agreement and deliver such to Special Counsel. Section 9. The Mayor of the City, the City Manager, Director of Administrative Services or a written designee thereof, and the City Clerk are hereby authorized, jointly and severally, to do any and all things and to execute and deliver any and all documents which they may deem necessary and advisable in order to consummate the sale and delivery of the Certificates and otherwise effectuate the purposes of this Resolution, and such actions previously taken by such officers are hereby ratified and confirmed, including without limitation the selection by Director of Administrative Services of a municipal bond insurance provider, if such insurance is deemed economically advisable by such City officer, and execution of documents necessary to obtain such insurance. In the event the Mayor of the City is unavailable or unable to execute and deliver any of the above-referenced documents, any other member of the City Council may validly execute and deliver such document, and, in the event the City Clerk is unavailable or unable to execute and deliver any of the above-referenced documents, any deputy clerk may validly execute and deliver such document in her place. Section 10. This Resolution shall take effect from and after its date of adoption. Resolution No. 02-124 Page 5 PASSED, ADOPTED, AND APPROVED by the City Council of the City of Poway, California, at a regular meeting this 10th day of December 2002. Michael P. ATTEST: L~'~i ~'~ne Pe~I~I~s, C~ity C~l~k F - STATE OF CALIFORNIA ) ) SS, COUNTY OF SAN DIEGO ) I, Lori Anne Peoples, City Clerk of the City of Poway, do hereby certify under penalty of perjury that the above and foregoing Resolution No. 02-].24 was duly adopted by the City Council at a meeting of said City Council held on the lOth day of December 2002, and that it was so adopted by the following vote: AYES: NOES: REXFORD ABSTAIN: NONE ABSENT: NONE EMERY, GOLDBY, HIGGINSON, CAFAGNA L0ri ~nne Peoples, City Ci~'r~- F - City Of Poway