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HomeMy WebLinkAboutPFC2020-2 - Approving the Execution and Delivery of Documents in Connection with the Sale and Delivery of Not to Exceed $10,000,000 Principal Amount of Certificates Of Participation and Authorizing Certain Actions in Connection TherewithRESOLUTION NO. PFC2020-2 A 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 $10,000,000 PRINCIPAL AMOUNT OF CERTIFICATES OF PARTICIPATION AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION THEREWITH WHEREAS, the City of Newport Beach ("City") and the Newport Beach Public Facilities Corporation ("Corporation"), desire to enter into a Site Lease dated as of December 1, 2020 ("Site Lease") and a Lease/Purchase Agreement, dated as of December 1, 2020 ("Lease"), whereby the City, as agent of the Corporation, shall cause the acquisition, improvement and equipping of a new Fire Station No. 2, as described therein ("Project"), and the City has agreed to lease the leased property identified in Exhibit A to the Lease from the Corporation WHEREAS, in order to finance the Project, the City and the Corporation desire to authorize the sale of the City of Newport Beach Certificates of Participation 2020A (Fire Station No. 2) (the "Certificates") evidencing fractional interests in the Lease Payments made by the City under the Lease; 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 December 1, 2020, by and among The Bank of New York Mellon Trust Company, N.A., as trustee ("Trustee"), the City and the Corporation ("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; Resolution No. PFC2020-2 Page 2 of 4 WHEREAS, the Board of Directors of the Newport Beach Public Facilities Corporation ("Board of Directors") desire 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 December 1, 2020 ("Assignment Agreement"), the form of which together with the form of the Trust Agreement are attached hereto and incorporated herein; WHEREAS, the Board of Directors desire to approve the form of an Agency Agreement between the City and the Corporation, the form of which is attached hereto and incorporated herein; and WHEREAS, the Board of Directors desires to approve the form of the Purchase Agreement ("Purchase Agreement"), by and among, the Corporation, the City and Stifel, Nicolaus & Company, Incorporated ("Purchaser"), pursuant to which the Purchaser will agree to buy the Certificates on the terms and conditions set forth therein, the form of which is attached hereto and incorporated herein. NOW, THEREFORE, the Board of Directors of the Newport Beach Public Facilities Corporation resolves as follows: Section 1: This Board of Directors hereby consents to the preparation, sale and delivery of the Certificates in an aggregate amount of not to exceed $10,000,000 in accordance with the terms and provisions of the Trust Agreement, with the exact principal amount of the Certificates to be that determined necessary by the City Manager to pay the costs of the Project and to pay all associated costs. The proceeds of the Certificates shall be expended to finance the costs of the Project, to provide for a reserve fund, if any, and the costs of the preparation, sale and delivery of the Certificates. Resolution No. PFC2020-2 Page 3 of 4 Section 2: The forms of the Site Lease, the Lease Agreement, the Trust Agreement, the Agency Agreement, the Purchase Agreement and the Assignment Agreement attached hereto as Exhibit A, B, C, D, E and F, and incorporated herein by this reference, are hereby approved. The Chairman of the Board of Directors and the President(each an "Authorized Officer") is hereby authorized for and in the name of the Corporation to execute the Site Lease, the Lease Agreement, the Assignment Agreement, the Agency Agreement, the Purchase Agreement and the Trust Agreement in substantially the forms hereby approved, with such additions thereto and changes therein as are recommended or approved by the City Attorney. 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 3: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 4: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 5: The Board of Directors finds the adoption of this resolution 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, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Resolution No. PFC2020-2 Page 4 of 4 Section 6: 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) 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. Section 7: This resolution shall take effect immediately upon its adoption by the Board of Directors, and the Secretary shall certify the vote adopting the resolution. ADOPTED this 10th day of November, 2020. C Chairman of the Board of Directors Newport Beach Public Facilities Corporation APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE ,,, C ff Gw-- Aaron C. Harp City Attorney Attachments: Exhibit A - Site Lease Exhibit B - Lease Agreement Exhibit C - Trust Agreement Exhibit D - Agency Agreement Exhibit E - Purchase Agreement Exhibit F - Assignment Agreement