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Res 98-046RESOLUTION NO. 98- 046 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 88-1 OF TI-IE CITY OF POWAY (PARKWAY BUSINESS CENTRE) AU'I~ORIZING THE ISSUANCE OF ITS SPECIAL TAX REFLrNDING BONDS IN A PRINCIPAL AMOUNT NOT TO EXCEED THIRTY-EIGHT MIl.LION DOLLARS ($38,000,000) 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. 88-1 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 l, Division 2, Title 5 of the Govemment Code of the State of California (the "Act"); and WHEREAS, pursuant to Resolution No. 88-122 adopted by the legislative body of the District on October 18, 1988, 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. 88-122 and the election, the Dislrict was 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 City of Poway Community Facilities District No. 88-1 Special Tax Bonds, Series 1989 (the "1989 Bonds") and its $8,000,000 City of Poway Community Facilities District No. 88-1 Special Tax Bonds, Series 1990 (the "1990 Bonds") (collectively, the 1989 Bonds and the 1990 Bonds are referred to herein as the "Prior Bonds") which the District now desires to refund through the issuance of bonds in an aggregate principal amount not to exceed $38,000,000 designated as the "Community Facilities District No. 88-1 of the City of Poway (Parkway Business Centre) Series 1998 Special Tax Refunding Bonds" (the "Series 1998 Bonds"); and WHEREAS, in order to effect the issn_~_~ce of the Series 1998 Bonds and the refunding of the Prior Bonds, the District desires to enter into various agreements in substantially the forms presented herein; and WHEREAS, pursuant to Section 53312.7 of the Act, the legislative body of the District has determined that it is necessary and desirable to state 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 Disifict to reduce the amount of 545314.2L22468.0014 Resolution No. 98- 046 Page 2 authorized but unissued bonded indebtedness to the amount needed to refund the Prior Bonds and pay related costs, and to covenant to levy special taxes of the District at lower special tax rates accordingly; and WHEREAS, pursuant to Section C of the Formula For Rate and Method of Apportionment of Special Tax (the "Special Tax Formula"), acreage of a parcel shall be determined by reference to the most current parcel map, or other subdivision tract map recorded in the office of the County Recorder for San Diego County, or by another reliable means established by the District. Since formation of the District, the City Council, acting in its capacity as the legislative body of the District has applied the Special Tax Formula based on the net useable acres of each parcel, which excludes undevelopable portions of such property, such as slopes. As the Special Tax Formula does not specify the method of determining parcel acreage, the City has determined to utilize the net useable acre method for the District. NOW, THEREFORE, the City Council of the City of Poway acting as the legislative body of Community Facilities District No. 88-1 of the City of Poway DOES HEREBY RESOLVE, FIND, DETERMINE AND ORDER AS FOLLOWS: Section 1. Each of the above recitals is tree and correct. Section 2. The issuance of the Series 1998 Bonds is hereby authorized in an aggregate principal amount not to exceed $38,000,000 with the exact principal amount of the Series 1998 Bonds to be determined by the official signing the Bond Purchase Agreement in accordance with Section 6 below. The legislative body of the District hereby determines that it is prudent in the management of its fiscal affairs to issue the Series 1998 Bonds. The Series 1998 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 1998 Bonds shall be govemed by the terms and conditions of the bond indenture (the "Bond Indenture"), and any one 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 1998 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 phces 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 1998 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 1998 Bonds will occur on or about May 20, 1998, (2) the Series 1998 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 fomi specified in the Bond Indenture, (3) the Series 1998 Bonds will bear interest at the mimmum rate of 2.5% per annum, and (4) the designated cost of issuing the Series 1998 Bonds, as defined by Section 53363.8 of the Act, shall include all of the costs specified in Section 53363.8(a), (I>)(2) and (c) of the Act. 545314.2X22468.0014 -2- Resolution No. 98-046 Page 3 Section 3. The Series 1998 Bonds shall be executed on behalf of the District by the manual or facsimile signature of any one 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. Dai-Ichi Kangyo Bank of Califomia is hereby appointed to act as Fiscal Agent, registrar and transfer agent for the Series 1998 Bonds and U.S. Bank Trust National Association 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 1998 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 1998 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, mounts and interest rates applicable to the Series 1998 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 1998 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 2.25% of the principal amount of the Series 1998 Bonds and (iii) the net interest cost to maturity on that portion of the Series 1998 Bonds issued to defease the 1989 Bonds plus the principal amount of such portion of the Series 1998 Bonds does not exceed the net interest cost to maturity on the 1989 Bonds to be refunded plus the principal amount of the 1989 Bonds to be refunded and the net interest cost to maturity on that portion of the Series 1998 Bonds issued to defease the 1990 Bonds plus the principal amount of such portion of the Series 1998 Bonds does not exceed the net interest cost to maturity on the 1990 Bonds to be refunded plus the principal amount of the 1990 Bonds to be refunded. Each of the City Manager and Director of Admimstrative Services is authorized to determine the day on which the Series 1998 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 Sen, ices 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. 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 545314.2X22468.0014 -3 - Resolution No. 98-046 Page 4 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 any one 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 1998 Bonds is at least three times the principal amount of the Series 1998 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 MAI appraiser on a basis consistent with the policies adopted by the City in this Resolution. Section 9. Pursuant to Section 53312.7 of the Act, the legislative body of the District has considered that certain City of Poway Statement of Local Goals and Policies Concerning the Use of the Mello-Roos Community Facilities Act of 1982, as Amended (the "Policy Statement"), in the form presented at this meeting, and hereby adopts such Policy Statement. Section 10. The legislative body hereby finds that the authorized facilities of the District are complete and, therefore, hereby reduces the total amount of authorized bonded indebtedness of the District to the initial principal amount of the Series 1998 Bonds and, further, hereby provides pursuant to Section 53340 of the Act for the levy of the special tax of the District for future tax years at a lower rate than the rate provided by Ordinance No. 289 of this City Council. The actual rate at which special taxes are to be levied in each fiscal year shall be determined for each such year by resolution, provided that such rate will in no circumstance exceed the maximum rate, subject to escalation, determined by the District based upon projections of the Underwriter to be sufficient, absent delinquencies, to provide 120% of the amounts required in each year for the timely retirement of the Bonds where such amounts include the principal amount on deposit in the Reserve Account of the Special Tax Fund in the final year (notwithstanding the foregoing, the projected maximum special tax must equal 100% of debt service in the final year). The foregoing maximum special tax rate, which shall in no event exceed $17,500 per net usable acre, shall be determined by the District based upon the actual price at which the 1998 Bonds are sold to the Underwriter and shall be irrevocably established in the Bond Indenture. Such determination shall be conclusively evidenced by the execution and delivery by the District of the Bond Indenture. Section 11. For the purpose of determining the special tax obligation for each taxable assessor's parcel in the District in each fiscal year, the legislative body acting on behalf of the District hereby establishes, pursuant to Section C of the Rate and Method, net usable acreage as the acreage of an assessor's parcel in the District subject to taxation by the District. Net usable acreage is that portion of each assessor's parcel heretofore identified by the District as taxable, provided that as lot line adjustments are made to accommodate property sales in the District from time to time, an updated engineer's report shall be reviewed by the City Engineering Depm'tment and the net useable acres shall be adjusted accordingly. The foregoing determination is declarative of the existing method of apportionment of District special taxes. 545314.2X22468.0014 -4- Resolution No. 98-046 Page 5 Section 12. Stradling Yocca Carlson & Rauth, a Professional Corporation shall act as bond counsel with respect to the issuance of the Series 1998 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. The City Manager and Director of Administrative Services and their written designees each is authorized to execute and deliver the foregoing contract and to pay for the cost of such 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 Unde~vriter's discount) shall not exceed 1.5% of the principal amount of the Series 1998 Bonds. Section 13. 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 1998 Bonds in accordance with the provisions of this Resolution and the fulfillment of the purposes of the Series 1998 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 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, California, at a regular meeting held on the 28th day of ^pti 1 ,1998. Don Higginson, Mayor ATTEST: Marjori~,~K~Wahlsten, City Clerk 545314.2~2468.0014 -5- Resolution No. 98-046 Page 6 STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN DIEGO ) I, Marjorie K. Wahlsten, City Clerk of the City of Poway, do hereby certify under penalty of perjury that the foregoing Resolution No. 98- 046 was duly adopted by the City Council at a meeting of said City Council held on the 28th day of April, 1998, and that it was so adopted by the following vote: AYES: EMERY, GOLDBY, REXFORD, HIGGINSON NOES: NONE ABSTAIN: NONE ABSENT: CAFAGNA lsten, City Clerk