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HomeMy WebLinkAboutPFC2010-1 - Approving the Execution and Sale of Certificates of ParticipationRESOLUTION NO. PFC2010 -1 RESOLUTION OF THE BOARD OF DIRECTORS OF THE NEWPORT BEACH PUBLIC FACILITIES CORPORATION APPROVING THE EXECUTION AND DELIVERY OF DOCUMENTS IN CONNECTION WITH THE SALE AND DELIVERY OF NOT TO EXCEED $128 MILLION PRINCIPAL AMOUNT OF CERTIFICATES OF PARTICIPATION AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION THEREWITH WHEREAS, the City of Newport Beach (the "City ") and the Newport Beach Public Facilities Corporation (the "Corporation "), have previously entered into a Project Lease dated as of July 1, 1998 (the "1998 Lease ") relating to $7,330,000 City of Newport Beach Refunding Certificates of Participation, Series 1998 (Central Library Building Project) (the "1998 Certificates "), the proceeds of which refunded certain certificates of participation, the proceeds of which financed the acquisition and construction of the City's Central Library (the "Central Library Project"); and WHEREAS, the City and the Corporation desires to enter into a Site Lease dated as of November 1, 2010 (the "Site Lease ") and a Lease /Purchase Agreement, dated as of November 1, 2010 (the "Lease "), whereby the City, as agent of the Corporation, shall cause the acquisition, improvement and equipping of a new Civic Center, as described therein (collectively, the "Civic Center Project" and together with the Central Library Project, the "Project ") and whereby the City shall refinance the Central Library Project, and the City has agreed to lease the Leased Premises (defined below) from the Corporation; and WHEREAS, in order to finance the Project, the City and the Corporation desires to authorize the sale of the City of Newport Beach Certificates of Participation 2010A (Tax Exempt) (Civic Center Project/Central Library Refunding) (the "2010A Certificates ") evidencing fractional interests in the 2010A Lease Payments made by the City under the Lease, and the City of Newport Beach Certificates of Participation 2010B (Federally Taxable Direct Pay Build America Bonds) (Civic Center Project) (the "2010B Certificates" and together with the Series 2010A Certificates, the "Certificates ") each evidencing fractional interests in the 2010B Lease Payments made by the City under the Lease; and WHEREAS, Section 5450 et seq. of the California Government Code (the "Government Code ") provides statutory authority for pledging collateral for the payment of principal or prepayment price of, and interest on, any agreement, including certificates of participation, and the Government Code creates a continuing perfected security interest which shall attach immediately to such collateral irrespective of whether the parties to the pledge document have notice of the pledge and without the need for any physical delivery, recordation, filing or further act, and, therefore, the City and the Corporation hereby warrant and represent that pursuant to the Lease, the Trust Agreement, to be dated as of November 1, 2010, by and among The Bank of New York Mellon Trust Company, N.A., as trustee (the "Trustee "), the City and the Corporation (the "Trust Agreement"), and the Government Code, the Trustee will have a first priority perfected security interest in the Lease Payments described in the Lease represented by the Certificates pursuant to the Government Code. WHEREAS, the Board of Directors desires to consent to the assignment of certain of the Corporation'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 DOCSOC/ 1432089v4/022459 -0014 Agreement, between the Corporation and the Trustee, to be dated as of November 1, 2010 (the "Assignment Agreement "), the form of which together with the form of the Trust Agreement have been presented to this Board of Directors at the meeting at which this Resolution has been adopted; and WHEREAS, the Board of Directors desires to approve the form of an Agency Agreement between the City and the Corporation, the form of which has been presented to this Board of Directors at the meeting at which the Resolution has been adopted. WHEREAS, the Board of Directors desires to approve the form of the Letter of Representations (the "Letter of Representations ") attached as Exhibit B to the Purchase Agreement (the "Purchase Agreement"), by and between the City and Stone & Youngberg LLC, as representative of itself and E.J. Del Rosa & Co., Inc., Merrill Lynch, Pierce Fenner & Smith Incorporated and Raymond James (collectively, 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 Board of Directors at the meeting at which this Resolution has been adopted. NOW THEREFORE, the Board of Directors of the Newport Beach Public Facilities Corporation does hereby RESOLVE, DETERMINE AND ORDER as follows: Section 1. The above recitals are all true and correct. Section 2. This Board of Directors hereby consents to the preparation, sale and delivery of the Certificates in an aggregate amount of not to exceed $128 million in accordance with the terms and provisions of the Trust Agreement, with the exact principal amount of each series of Certificates to be that determined necessary by the City Manager or the Administrative Director of the City to refund and defease the Prior Certificates, to pay the costs of the Projects and to pay all associated costs. The proceeds of the Certificates shall be expended to finance the costs of the Project and to refund and defease the Prior Certificates and to provide for a reserve fund, if any, and the costs of the preparation, sale and delivery of the Certificates. Section 3. The forms of the Letter of Representations, the Site Lease, the Lease Agreement, the Trust Agreement, the Agency Agreement and the Assignment Agreement presented at this meeting are hereby approved. Each of the Chairman of the Board of Directors, the President, Chief Financial Officer and the Secretary (each an "Authorized Officer ") is hereby authorized for and in the name of the City to execute the Site Lease, the Lease Agreement, the Disclosure Agreement, the Agency 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, a Professional Corporation, as Special Counsel to the City ( "Special Counsel "), or the City Attorney and the officer or 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 one or more of the authorized officers. Each Authorized Officer is hereby authorized to execute, acknowledge and deliver any and all documents required to consummate the transactions contemplated by the Site Lease, the Lease Agreement, Purchase Agreement, the Trust Agreement, the Agency Agreement and the Assignment Agreement. Section 4. Each of the Authorized Officers is 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 (including but not limited to the execution and delivery of any consents or agreements to remove encumbrances to title with respect to the real property identified in Exhibit A to the Lease and to substitute, remove or add property to Exhibit A to the Lease, the Site Lease and the Assignment Agreement that is determined by the President to be in the best interests of the Corporation), including the refunding and defeasance of the Prior Certificates, and such actions previously taken by such officers are hereby ratified and confirmed. In the event the Chairman of the Board of Directors is unavailable or unable to execute and deliver any of the above - referenced documents, any other Director of the Board of Directors may validly execute and deliver such document, and, in the event the Secretary is unavailable or unable to execute and deliver any of the above - referenced documents, any Assistant Secretary may validly execute and deliver such document in her place. Section 5. This Resolution shall take effect upon adoption. 3 vote: PASSED, APPROVED AND ADOPTED this 9th day of November, 2010 by the following AYES: Selich, Rosansky, Henn, Mayor Curry, Webb, Gardner, Daigle NOES: None ABSENT: None ABSTENTIONS: None ATTEST: Secretary APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: C�� r' n, David R. Hunt, City Attorney APPROVED AS TO FORM: SPECIAL COUNSEL: Brian Forbath, Stradling Yocca Carlson & Rauth, a Professional Corporation 4 President of the JV6ard of Directors STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF NEWPORT BEACH) I, I eilaxi I Brawn, Secretary of the Newport Beach Public Facilities Corporation, do hereby certify that the foregoing resolution was duly adopted by the Board of Directors of said Corporation at a regular meeting held on the 9th day of November, 2010 and that it was so adopted by the following vote: AYES: DIRECTORS: Selich, Rosansky, Henn, Mayor Curry, Webb, Gardner, Daigle NOES: DIRECTORS: None ABSENT: DIRECTORS: None ABSTAIN: DIRECTORS: None Sec ofthe�Newport'Bdach Public Facilities Corporation 5 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF NEWPORT BEACH) David A.k A-v I, T� ate. n, Secretary of the Newport Beach Public Facilities Corporation, do hereby certify that the above and foregoing is a full, true and correct copy of RESOLUTION NO. PFC2010 -1 of said Board, and that the same has not been amended or replaced. DATED: November 10, 2010 Secretary of the Newport B ch Public Facilities Corporation