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HomeMy WebLinkAbout02 - Central Library / Civic Center ProjectCITY OF NEWPORT BEACH PUBLIC FACILITIES CORPORATION STAFF REPORT Agenda Item No. NsPFC -2 November 9, 2010 TO: CHAIRMAN AND BOARD OF DIRECTORS OF THE NEWPORT BEACH PUBLIC FACILITIES CORPORATION FROM: Administrative Services Department Tracy McCraner, Administrative Services Director (949) 644 -3123 or tmccraner @newportbeachca.gov Dan Matusiewicz, Deputy Administrative Services Director (949) 644 -3126 or dmatusiewicz @newportbeachca.gov SUBJECT: Newport Beach Public Facilities Corporation: Refinance 1998 Central Library COPs and Finance Civic Center Project ISSUE: Authorize the execution of a Lease - Purchase agreement and certain other documents between the City of Newport Beach and the Newport Beach Public Facilities Corporation in order to refinance the 1998 Central Library COPs and finance the Civic Center Project. RECOMMENDATION: Adopt Resolution No. 2010- authorizing the Board of Directors of the Newport Beach Public Facilities Corporation (Corporation) to enter into a Lease Purchase Agreement and certain other documents with the City of Newport Beach (City), in connection with the execution and delivery of the 2010 Certificates of Participation in order to refinance the 1998 Central Library COPS and to finance the Civic Center project. DISCUSSION: The Corporation previously entered into a Lease Purchase Agreement dated as of July 1, 1998 relating to $7,330,000 City of Newport Beach Refunding Certificates of Participation, Series 1998 (Central Library Building Project), 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 "). Newport Beach Public Facilities Corporation November 9, 2010 Page 2 The Corporation and the City now wish to refinance the 1998 Central Library COPs and also provide financing for the acquisition, improving and equipping of a new Civic Center (which includes a new City Hall, an expansion to the Central Library, civic park, and a parking structure) by entering into this Lease /Purchase Agreement. Also, authorize and direct the execution and delivery of the City of Newport Beach Certificates of Participation 2010A (Tax Exempt) (Civic Center Project) (the "2010A Certificates ") evidencing fractional interests in 2010A Lease Payments to be made by the City under this Lease and the City of Newport Beach Certificates of Participation 2010B (Taxable) (Civic Center Project) (the "20108 Certificates" and together with the 2010A Certificates, the "Certificates ") evidencing fractional interests in 2010B Lease Payments to be made by the City under this Lease. The Corporation and the City also desire to enter into a Site Lease wherein the City will lease certain real property, including the existing improvements from project, to the Corporation. The Corporation then intends to lease back to the City the Leased Premises pursuant to a Lease /Purchase Agreement mentioned above. The Site Lease provides that the title to the Leased Premises shall vest in the City at the expiration of the Site Lease. In consideration of the Lease Payments to be paid by the City to the Corporation, the Corporation will cause the Project to be constructed, and will grant to the City a right to purchase the Corporation's interest in the Leased Premises. Upon expiration of the Lease Purchase Agreement, all right, title and interest of the Corporation in and to all of the Leased Premises shall be transferred to and vest in the City, without the necessity of any additional document of transfer. Adoption of Resolution No. 2010- approves the forms of certain other documents on file with the City Clerk and authorizes the Chairman, the Secretary and the Treasurer to execute certain other documents and to take certain other action necessary to complete the financing. In particular, adoption of Resolution No. 2010 -_ approves the form of the Preliminary Official Statement which is the offering document or prospectus pursuant to which the Certificates are offered to investors. The Preliminary Official Statement contains certain financial and operating information related to the City and is drafted to comply with federal securities law Environmental Review: This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Newport Beach Public Facilities Corporation November 9, 2010 Page 3 Public Notice: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Funding Availability: There is no funding requirement to the Corporation by this action. Alternatives: Prepared by: Submitted by: f f � t cC/ LlA/I v l/ an Matusiewicz Tracy Mc ner Deputy Director Director Administrative Services Administrative Services Attachments: Site Lease (See City Council Meeting of 111212010 Agenda Item S16) Lease /Purchase Agreement (See City Council Meeting of 11/2/2010 Agenda Item S16) Assignment Agreement Agency Agreement Resolution Authorizing Sale of Certificates of Participation 201 OA (Tax Exempt) (Civic Center Project/Central Library Refunding) and related documents Trust Agreement (See City Council Meeting of 11/2/2010 Agenda Item S16) Bond Purchase Agreement (See City Council Meeting of 111212010 Agenda Item S16) RECORDING REQUESTED BY: City of Newport Beach AND WHEN RECORDED MAIL TO: Stradling Yocca Carlson & Rauth 660 Newport Center Drive, Suite 1600 Newport Beach, California 92660 Attn: David R. McEwen, Esq. Stradling Yocca Carlson & Routh Draft of 10/27/10 [Space above for Recorder's use.] This document is recorded for the benefit of the City of Newport Beach and recording is fee- exempt under §27383 of the Government Code. ASSIGNMENT AGREEMENT by and between NEWPORT BEACH PUBLIC FACILITIES CORPORATION and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee Dated as of November 1, 2010 Relating to CITY OF NEWPORT BEACH CERTIFICATES OF PARTICIPATION 2010A (TAX EXEMPT) (CIVIC CENTER PROJECT /CENTRAL LIBRARY REFUNDING) and CITY OF NEWPORT BEACH CERTIFICATES OF PARTICIPATION 2010B (FEDERALLY TAXABLE DIRECT PAY BUILD AMERICA BONDS) (CIVIC CENTER PROJECT) DOCSOC/ 1423556v5/022459 -0014 ASSIGNMENT AGREEMENT This ASSIGNMENT AGREEMENT, dated as of November 1, 2010, by the NEWPORT BEACH PUBLIC FACILITIES CORPORATION, a 501(c)(4) nonprofit public benefit corporation duly organized and existing under and by virtue of the laws of the State of California (the "Corporation "), and accepted by The Bank of New York Mellon Trust Company, N.A., a national banking association organized under the laws of the United States of America, as trustee under the Trust Agreement (defined below) (the "Trustee "); WITNESSETH: WHEREAS, the Corporation and the City of Newport Beach, a chartered city duly organized and existing under and by virtue of the Constitution and laws of the State of California (the "City"), have executed and entered into a Site Lease (the "Site Lease ") and a Lease/Purchase Agreement (the "Lease "), each dated as of the date hereof and recorded concurrently herewith, whereby, respectively, the City has agreed to lease certain real property of the City described in Exhibit A to the Site Lease and in Exhibit A hereto, including the existing improvements thereon (the "Leased Premises "), to the Corporation and the Corporation has agreed to lease back the Leased Premises to the City, as provided therein; and WHEREAS, under and pursuant to the Lease, the City is obligated to make Lease Payments, as defined in the Trust Agreement (defined below), to the Corporation for the lease of the Leased Premises; and WHEREAS, the Corporation desires to assign absolutely, without recourse, all of its rights to receive the Lease Payments scheduled to be paid by the City under and pursuant to the Lease to the Trustee and certain of its other rights, title and interest under the Lease as described herein; and WHEREAS, the Corporation desires to assign absolutely, without recourse, all of its rights to, under and pursuant to the Site Lease to the Trustee; and WHEREAS, in consideration of such absolute assignment and the execution and entering into of a Trust Agreement (the "Trust Agreement ") dated as of the date hereof, by and among the Trustee, the Corporation and the City, the Trustee has agreed to execute and deliver certificates of participation designated as the City of Newport Beach Certificates of Participation 2010A (Tax Exempt) (Civic Center Project/Central Library Refunding) (the "2010A Certificates ") in an aggregate principal amount equal to the aggregate principal components of such 2010A Lease Payments 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 ") in an aggregate principal amount equal to the aggregate principal component of such 2010B Lease Payments; and WHEREAS, all acts conditions and things required by law to exist, to have happened and to have been performed precedent to and in connection with its execution and entering into of this Assignment Agreement (this "Assignment Agreement ") do exist, have happened and have been performed in regular and due time, form and manner as required by law and it is now duly authorized to execute and enter into the Assignment Agreement. DOCSOC/ 1423556v5/022459 -0014 NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR OTHER VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE AS FOLLOWS: Section 1. Assignment. (a) Site Lease. The Corporation hereby transfers, assigns absolutely and sets over to the Trustee, for the benefit of the Owners (as defined in the Trust Agreement) of the Certificates and any Additional Certificates executed and delivered under the Trust Agreement, all of the Corporation's rights, title, and interest (but none of its obligations) under the Site Lease except for its rights to give consents and approvals thereunder. (b) Lease. The Corporation hereby transfers, assigns absolutely and sets over to the Trustee, for the benefit of the owners of the Certificates and any Additional Certificates executed and delivered under the Trust Agreement, all of the Corporation's rights, title and interest (but none of its obligations) under the Lease (excepting only the Corporation's rights to indemnity and the payment of its fees and expenses under Sections 2.1(e), 4.11, 7.9, 7.14 and 9.4 of the Lease), including, without limitation, (1) the right to receive and collect all of the Lease Payments, Prepayments and Additional Payments (except to the extent payable to the Corporation) (as such terms are defined in the Trust Agreement) from the City under the Lease or the Trust Agreement, as applicable, (2) the right to receive and collect any proceeds of any insurance maintained thereunder, or any condemnation award rendered with respect to the Leased Premises, or of any lease of the Leased Premises in the event of a default by the City under the Lease, (3) the right to take all actions and give all consents under Section 9.2 (regarding defaults) of the Lease, but not the right to give other consents or approvals under the Lease, (4) the right to exercise such rights and remedies conferred on the Corporation pursuant to the Lease as may be necessary or convenient (i) to enforce payment of the Lease Payments, Prepayments and Additional Payments and any other amounts required to be deposited in the Lease Payment Fund, the Prepayment Fund, the Reserve Fund or the Net Proceeds Fund established under the Trust Agreement, or (ii) otherwise to protect the interests of the Corporation in the event of a default by the City under the Lease, and (5) the right of the Corporation to receive rental in excess of Lease Payments as compensation for re- leasing the Leased Premises upon events of default under the Lease, as provided in Section 9.2(a) and (b) of the Lease. Notwithstanding the foregoing, in addition to the Trustee, only owners of 2010A Certificates and Additional Certificates secured by 2010A Lease Payments (as set forth in a Supplemental Agreement) shall have any right, interest and security in the 2010A Lease Payments and 2010A Prepayments and only owners of 2010B Certificates and Additional Certificates secured by 2010B Lease Payments (as set forth in a Supplemental Agreement) shall have any right, interest and security in the 2010E Lease Payments and 2010B Prepayments. (c) Assignment for Owners of Certificates. All rights assigned by the Corporation shall be administered by the Trustee as assignee thereof according to the provisions of the Trust Agreement and for the equal and proportionate benefits of the Owners of the Certificates and any Additional Certificates. Section 2. Acceptance. The Trustee hereby accepts the foregoing assignment for the benefit of the Owners of the Certificates and any Additional Certificates, subject to the conditions and terms of the Trust Agreement and this Assignment Agreement, and all such Lease Payments 2 DOCSOC/ 1423556v5/022459 -0014 shall be applied and all such rights so assigned shall be exercised by the Trustee under and pursuant to the Trust Agreement. Section 3. Conditions. The Assignment Agreement shall confer no rights and shall impose no obligations upon the Trustee beyond those expressly provided in the Trust Agreement. The Trustee does not warrant the accuracy of the recitals hereto. The Trustee shall not be responsible for any representations, covenants or warranties of the Corporation. The assignment hereunder is to the Trustee solely in its capacity as Trustee under the Trust Agreement and not in its individual or personal capacity. The Trustee is not responsible for any representations, warranties or covenants made by the assignor under the Lease or the Site Lease. Section 4. No Other Claim. The Corporation hereby represents and warrants that there are no present and outstanding claims on Lease Payments or any other moneys assigned by the Corporation to the Trustee hereunder. Section 5. Counterparts. This Assignment Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 6. Applicable Law. This Assignment Agreement shall be governed by and construed in accordance with the laws of the State of California. Section 7. Definitions. Capitalized terms not otherwise defined herein shall have the definitions set forth in the Trust Agreement. [REMAINDER OF PAGE INTENTIONALLYLEFT BLANK.] 3 DOCSOC/ 1423556v5/022459 -0014 IN WITNESS WHEREOF, the parties hereto have executed and entered into the Assignment Agreement by their officers thereunto duly authorized as of the day and year first above written. NEWPORT BEACH PUBLIC FACILITIES CORPORATION [SEAL] ATTEST: By: Secretary By: Its: President Accepted by: THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee Bv: Its: Authorized Officer S -1 DOCSOC/ 1423556v5/022459 -0014 APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: IN David R. Hunt, City Attorney APPROVED AS TO FORM: SPECIAL COUNSEL: In Stradling Yocca Carlson & Rauth, a Professional Corporation S -2 DOCSOC/1423556v5/022459 -0014 STATE OF CALIFORNIA COUNTY OF ORANGE On , 2010, before me, the undersigned, personally appeared personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacities, and that by his signature(s) on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. [SEAL] City Clerk of the City of Newport Beach DOCSOC/ 1423556v5/022459 -0014 STATE OF CALIFORNIA COUNTY OF ORANGE On , 2010, before me, Notary Public, personally appeared ' who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal [SEAL] SIGNATURE OF NOTARY PUBLIC DOC SOC/ 1423556v5/022459 -0014 EXHIBIT A DESCRIPTION OF THE LEASED PREMISES Real property and improvements thereon in the City of Newport Beach, County of Orange, State of California, described as follows: Newport Coast Community Center: Mariner's Library: Fire Station 7 (Santa Ana Heights): Fire Station 8 (Newport Coast): Central Library: Oasis Senior Center: Fire Station 3 (Newport Center): Fire Station 4 (Balboa Island): Police Station: Civic Center: A -1 DOCSOC/ 1423556v5/022459 -0014 Stradling Yocca Carlson & Rauth Draft of 10/27/10 AGENCY AGREEMENT by and between NEWPORT BEACH PUBLIC FACILITIES CORPORATION and CITY OF NEWPORT BEACH Relating to CITY OF NEWPORT BEACH CERTIFICATES OF PARTICIPATION 2010A (TAX EXEMPT) (CIVIC CENTER PROJECT /CENTRAL LIBRARY REFUNDING) and CITY OF NEWPORT BEACH CERTIFICATES OF PARTICIPATION 2010B (FEDERALLY TAXABLE DIRECT PAY BUILD AMERICA BONDS) (CIVIC CENTER PROJECT) Dated as of November 1, 2010 DOC SOC/ 1423567v4/022459 -0014 AGENCY AGREEMENT THIS AGENCY AGREEMENT (the "Agency Agreement'), dated as of November 1, 2010, is entered into by and between NEWPORT BEACH PUBLIC FACILITIES CORPORATION, a 501(c)(4) nonprofit public benefit corporation duly organized and existing under and by virtue of the Constitution and laws of the State of California (the "Corporation "), and the CITY OF NEWPORT BEACH, a chartered city duly organized and existing under and by virtue of the Constitution and laws of the State of California (the "City "); WITNESSETH: WHEREAS, the Corporation and the City have entered into a Lease/Purchase Agreement, dated as of November 1, 2010 (the "Lease "), whereby the Corporation has leased to the City certain real property and the existing improvements thereon (the "Leased Premises ") in connection with the execution and delivery of the $ City of Newport Beach Certificates of Participation 2010A (Tax Exempt) (Civic Center Project/Central Library Refunding) (the "2010A Certificates ") 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 2010A Certificates, the "Certificates "); and WHEREAS, the Corporation desires to appoint the City as its agent for the purposes of the acquisition, construction, delivery and installation of the improvements to be constructed with the proceeds of the Certificates (collectively, the "Project'); and WHEREAS, all acts, conditions and things required by law to exist, to have happened and to have been performed precedent to and in connection with the execution and entering into of this Agency Agreement do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the parties hereto are now duly authorized to execute and enter into this Agency Agreement; NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR OTHER VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE AS FOLLOWS: Section 1. City to Act as Agent for the Corporation. The Corporation hereby appoints the City as its agent in connection with the acquisition, construction, delivery and installation of the Project. The City, as the agent of the Corporation for the foregoing purpose, shall cause the acquisition, construction, delivery and installation of the Project to be completed on or before the dates set forth in Section 3 of this Agency Agreement and otherwise in accordance with the Lease and all other laws applicable to the Project. The appointment by the Corporation of the City as its agent as provided in this Section and the acceptance by the City of such appointment results in the assumption by the City of duties, responsibilities and liabilities which are separate and apart from its duties, responsibilities and liabilities under the Lease, and such assignment does not include or transfer to the City any of the rights of the Corporation under the Lease which have been assigned by the Corporation to the Trustee pursuant to the Assignment Agreement. It is recognized by the parties that the Corporation has appointed the City for the purposes specified in this Agency Agreement, rather than appoint DOCSOC/ 1423567v4/022459 -0014 another firm or entity for said purposes, based upon the Corporation's and the City's determination that the City is suitable to perform the duties, responsibilities and liabilities delegated to and assumed by it pursuant to this Agreement due to the expertise, knowledge and ability of the City's personnel with respect to similar undertakings. Section 2. Acceptance. The City, for one dollar ($1.00) and other good and valuable consideration in hand received, does hereby accept the foregoing appointment as agent of the Corporation for the purposes set forth in Section 1 hereof. Section 3. Time of Completion. The construction and equipping of the Project shall be completed on or prior to [December 1, 20131. Each construction contractor hired by the City shall be required to provide payment and performance bonds in amounts equal to the maximum price under its contract. Section 4. Construction and Acquisition of the Project. The City agrees to oversee the construction, acquisition, delivery and installation of the Project in accordance with the following terms: (a) Construction and Completion. The City agrees to proceed with all due diligence to complete the construction, acquisition, delivery and installation of the Project. The City shall comply with all statutes and laws applicable to the performance of its obligations hereunder, including all public laws applicable thereto and all laws regarding the approval, acquisition and construction of public projects by cities in the State of California. The City shall make certain that each contract relating to the Project is awarded in accordance with applicable law and contains a scheduled completion date which requires completion on or before the scheduled completion date referred to in Section 3 above; (b) Change Orders. Subject to any other restrictions imposed upon the City, the City may approve any changes to the Project so long as any change does not, and all such changes as a whole do not, (i) substantially alter the nature of the Project, (ii) delay the completion of the Project beyond its scheduled completion date, or (iii) increase the total Project Costs to an amount in excess of the amount in the 2010A Account or the 2010B Account of the Project Fund unless the City has sufficient reserves in an amount equal to such excess or unless there has been deposited with the City a certificate of a City Representative, together with a revised construction budget demonstrating that the total amount on deposit to pay for the Project is adequate to allow the completion of the Project as planned; (c) Payment of Project Costs. Payment of the portion of the Project Costs being financed by the City shall be made from moneys deposited in the 2010A Certificates Account or in the 2010B Certificates Account of the Project Fund and from moneys on deposit in certain City reserves, and shall be disbursed for such purpose in accordance and upon compliance with the Trust Agreement. Neither the Corporation nor the City shall be liable for the payment of Costs of the Project other than from amounts on deposit in the 2010A Certificates Account or the 2010B Certificates Account of the Project Fund; (d) Unexpended Monies. The City agrees that unexpended moneys remaining in the 2010A Certificates Account or in the 2010B Certificates Account of the Project Fund shall, upon 2 DOCSOC/ 1423567v4/022459 -0014 payment in full of all Costs of the Project, be applied solely in accordance with the provisions of the Trust Agreement; and (e) Partial Invalidity. If any one or more of the terms, provisions, covenants or conditions of this Agency Agreement shall to any extent be declared invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, the finding or order or decree of which becomes final, none of the remaining terms, provisions, covenants and conditions of this Agency Agreement shall be affected thereby, and each provision of this Agency Agreement shall be valid and enforceable to the fullest extent permitted by law. Section 5. Applicable Law. This Agency Agreement shall be governed by and construed in accordance with the laws of the State. Section 6. Representatives. Whenever under the provisions of this Agency Agreement the approval of the Corporation or the City is required, or the Corporation or the City is required to take some action at the request of the other, such approval or such request shall be given for the Corporation by an Authorized Representative of the Corporation and for the City by an Authorized Representative of the City and any party hereto shall be authorized to rely upon any such approval or request. Section 7. Notices. All notices or other communications hereunder shall be sufficiently given and shall be deemed to have been received five days after deposit in the United States mail in registered or certified form, postage prepaid: If to the City: City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 Attention: City Manager If to the Corporation: Newport Beach Public Facilities Corporation c/o City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 Attention: President If to the Trustee: The Bank of New York Mellon Trust Company, N.A. 700 South Flower Street, Suite 500 Los Angeles, California 90017 Attention: Corporate Trust Department The Corporation, the City and the Trustee, by notice given hereunder, may designate different addresses to which subsequent notices or other communications will be sent. Section 8. Captions. The captions or headings in this Agency Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provision or section of this Agency Agreement. DOCSOC/ 1423567v4/022459 -0014 Section 9. Execution in Counterparts. This Agency Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original but all together shall constitute but one and the same instrument. Section 10. Amendment. The terms of this Agency Agreement shall not be waived, altered, modified, supplemented or amended in any manner whatsoever, except by written instrument signed by the Corporation and the City, with the prior written consent of the Trustee for the Certificates. The City hereby irrevocably appoints the Authorized Representative of the City to act as its attorney -in -fact for purposes of providing the foregoing consent. Section 11. Definitions. Capitalized terms not otherwise defined herein shall have the definitions set forth in the Trust Agreement or the Lease. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 4 DOCSOC/ 1423567v4/022459 -0014 IN WITNESS WHEREOF, the parties hereto have executed this Agency Agreement as of the day and year first written above. CITY OF NEWPORT BEACH By: City Manager ATTEST: By: City Clerk NEWPORT BEACH PUBLIC FACILITIES CORPORATION By: President ATTEST: By: Secretary S -1 DOCSOC/ 1423567v4/022459 -0014 APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: 0 David R. Hunt, City Attorney APPROVED AS TO FORM: SPECIAL COUNSEL: Lm , Stradling Yocca Carlson & Rauth, a Professional Corporation S -2 DOCSOC/ 1423567v4/022459 -0014 Stradling Yocca Carlson & Rauth Draft of 10128110 RESOLUTION NO. 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 $ 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. DOCSOC/ 1432089v4/022459 -0014 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 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 $ 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. 2 DOCSOC/ 1432089v4/022459 -0014 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. DOCSOC/ 1432089v4/022459 -0014 vote: PASSED, APPROVED AND ADOPTED this 9th day of November, 2010 by the following AYES: NOES: ABSENT: ABSTENTIONS: President of the Board of Directors ATTEST: Secretary APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: David R. Hunt, City Attorney APPROVED AS TO FORM: SPECIAL COUNSEL: By: Brian Forbath, Stradling Yocca Carlson & Rauth, a Professional Corporation 4 DOCSOC/ 1432089v4/022459 -0014 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF NEWPORT BEACH) I, Leilani I. Brown, 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: NOES: DIRECTORS: ABSENT: DIRECTORS: ABSTAIN: DIRECTORS: Secretary of the Newport Beach Public N'acilities Corporation 5 DOCSOC/ 1432089v4/022459 -0014 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF NEWPORT BEACH) I, Leilani I. Brown, 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. of said Board, and that the same has not been amended or replaced. DATED: .2010 Secretary of the Newport Beach Public Facilities Corporation 6 DOCSOC/ 1432089v4/022459 -0014