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HomeMy WebLinkAbout2009-65 - Limited Obligation Improvement Bonds, AD 103RESOLUTION NO. 2009 -_( __ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING THE ISSUANCE AND SALE OF LIMITED OBLIGATION IMPROVEMENT BONDS OF THE CITY WITH RESPECT TO ASSESSMENT DISTRICT NO. 103 (G STREET/EAST BALBOA BOULEVARD /CHANNEL ROAD /OCEAN BOULEVARD); APPROVING THE FORM OF THE BOND INDENTURE PROVIDING FOR THE FORM, EXECUTION AND ISSUANCE OF SAID BONDS; APPROVING THE FORM OF THE BOND PURCHASE CONTRACT, THE PRELIMINARY OFFICIAL STATEMENT, AND THE DISCLOSURE DISSEMINATION AGENT AGREEMENT, ALL PERTAINING TO SAID BONDS; AND AUTHORIZING RELATED ACTIONS AND EXECUTION OF RELATED DOCUMENTS IN RESPECT OF THE ISSUANCE, SALE AND DELIVERY OF SAID BONDS The City Council of the City of Newport Beach determines, orders and resolves as follows: SECTION 1. RECITALS. a. This City Council (this "Council ") of the City of Newport Beach (the "City "), by proceedings duly had and taken, previously provided for the formation of its Assessment District No. 103 (G Street/East Balboa Boulevard/Channel Road/Ocean Boulevard) (the "Assessment District"), under and pursuant to the provisions of the Municipal Improvement Act of 1913 (Division 12 of the California Streets and Highways Code), and indicated its intention to provide for the issuance of limited obligation improvement bonds under and pursuant to the provisions of the Improvement Bond Act of 1915 (Division 10 of said Streets and Highways Code; hereafter the "Act ") in a principal amount equal to the unpaid assessments of the Assessment District. b. On July 28, 2009, this Council adopted its resolution approving the Final Engineer's Report, as identified in said resolution (the "Final Engineer's Report"), and among other things approving and ordering implementation of the undergrounding of the existing overhead and ground -level utility facilities (the " Undergrounding Project ") within the Assessment District, and levying the assessments on the parcels determined to be specially benefited by the Undergrounding Project, in the amounts set forth in the Final Engineer's Report. C. The assessment diagram and the Notice of Assessment respecting the Assessment District were thereafter recorded in the official records of the County Recorder of the County of Orange, thereby establishing liens upon the respective parcels upon which the individual assessments were levied to secure payment of said assessments as provided by the Act. d. The period of time within which property owners could, if they wished to do so, prepay all or any portion of the assessment levied upon the parcel or parcels owned by such property owners within the Assessment District expired on August 31, 2009, and the Administrative Services Director of the City has executed and submitted to this Council at its September 8 meeting a Certificate Respecting Paid and Unpaid Assessments, certifying to this Council that the amount of unpaid assessments is $3,335,546, and this Council, by separate resolution adopted this same date, has determined on the basis of said Certificate Respecting Paid and Unpaid Assessments, that the amount of unpaid assessments is $3,335,546. e. The City is empowered under the provisions of the Act to provide for the issuance, sale and delivery of limited obligation improvement bonds upon the security of the unpaid assessments and in a principal amount which as nearly as practicable is equal to the amount of the unpaid assessments. f This Council wishes by this resolution to authorize the issuance of a series of bonds, under and pursuant to the Act, to be designated the "City of Newport Beach Assessment District No. 103 (G St/East Balboa Blvd/Channel Rd/Ocean Blvd) Limited Obligation Improvement Bonds (the "Bonds "), in a principal amount equal to the amount of the unpaid assessments, rounded down to the nearest $100, to complete the funding for the Undergrounding, to fund a reserve fund and to pay incidental costs of the Assessment District proceedings and the costs of issuance for the Bonds. g. The City has determined that all things necessary to make the Bonds, when authenticated and issued as provided in that certain Bond Indenture (the "Bond Indenture "), dated as of September 1, 2009, between the City and U.S. Bank National Association, as paying agent (the "Paying Agent'), the valid, binding and legal obligations of the City according to the import thereof and hereof have been done and performed. h. In furtherance of implementing the financing, there have been filed with the City Clerk and presented to this meeting for consideration and approval by this Council the following documents: (1) a Bond Indenture, under the terms and provisions of which the Bonds are to be issued and administered; (2) a Bond Purchase Contract, under the terms of which, among other things, the City agrees to sell and Southwest Securities, Inc. (the "Underwriter ") agrees to purchase the Bonds; (3) a Preliminary Official Statement, describing the Bonds, the Assessment District, the Undergrounding Project and related matters; and (4) a Disclosure Dissemination Agent Agreement for the purpose of making undertakings to provide certain annual financial information and notice of certain 2 prescribed events, if deemed material, as required for compliance with Rule 15c2 -12 of the United States Securities and Exchange Commission. i. Being fully advised in the matter of the financing, this Council wishes to proceed with implementation of said financing. SECTION 2. ISSUANCE OF BONDS AUTHORIZED. Pursuant to the Act, the Bonds shall be issued in the aggregate principal amount equal to the unpaid assessments, rounded down to the nearest $100; provided, however, that (a) the bond discount, consisting of the net amount of Underwriter's discount, less original issue discount, if any, plus original issue premium, if any, shall not exceed the amount set forth in the Final Engineer's Report, as adjusted to reflect the discounted cash payments made on account of assessments during the cash payment period, (b) the maximum net interest rate on any maturity shall not exceed 7.00 %, and (d) the last maturity shall not extend beyond the year 2024. The Bonds may be issued as either (1) traditional tax- exempt Bonds or (2) direct payment Build America Bonds ("Direct Payment BABs "), to be structured and issued as authorized by and pursuant to the American Reinvestment and Recovery Act of 2009 (the "Recovery Act"), or any combination of the two, as shall be determined by the Finance Director of the City (the "Finance Director ") in consultation with the Underwriter to be in the best interest of the City. As used in the foregoing paragraph, the term "net interest rate" shall mean, with respect to Direct Payment BABs, if issued as authorized by this resolution, the interest rate payable to holders of the Bonds less the rate at which the direct payment to the City, as issuer of the Bonds, is determined. SECTION 3. FORM OF BOND INDENTURE APPROVED. The form and substance of the Bond Indenture is hereby approved. The Administrative Services Director or designee thereof (all references hereafter to the "Administrative Services Director" shall be deemed to include any designee thereof, including but not limited to the Finance Officer of the City) is hereby authorized and directed to execute and deliver the Bond Indenture on behalf of the City in substantially said form, with such changes therein as the Administrative Services Director may require or approve in consultation with Meyers, Nave, Riback, Silver & Wilson, a Professional Law Corporation, Bond Counsel to the City for the Assessment District and the Bonds ( "Bond Counsel "), such approval to be conclusively evidenced by the execution and delivery thereof. SECTION 4. FORM OF BOND PURCHASE CONTRACT APPROVED. The form and substance of the Bond Purchase Contract is hereby approved. The Administrative Services Director is hereby authorized and directed to execute and deliver the Bond Purchase Contract on behalf of the City in substantially said form, with such changes therein as the Administrative Services Director may require or approve in consultation with McFarlin & Anderson LLP, Disclosure Counsel to the City for the Bonds ( "Disclosure Counsel "), such approval to be conclusively evidenced by the execution and delivery thereof. SECTION 5. FORM OF PRELIMINARY OFFICIAL STATEMENT APPROVED; OTHER ACTIONS RESPECTING THE PRELIMINARY OFFICIAL STATEMENT AND FINAL OFFICIAL STATEMENT AUTHORIZED. a. The form and substance of the Preliminary Official Statement is hereby approved. The Mayor or designee thereof (all references hereafter to the "Mayor" shall be deemed to include any designee thereof, including but not limited to the Mayor Pro Tern and the Administrative Services Director) is authorized to execute a certificate respecting the finality of the Preliminary Official Statement and to execute the final Official Statement to be derived therefrom. b. The Mayor is authorized to approve corrections and additions to the Preliminary Official Statement by supplement or amendment thereto, by appropriate insertions, or otherwise as appropriate, provided that such corrections or additions shall be regarded by the Mayor in consultation with Disclosure Counsel as necessary to cause the information contained therein to conform to facts material to an informed investment decision respecting the Bonds or to the proceedings of this Council or that such corrections or additions are in form rather than in substance. C. The Underwriter is authorized to distribute said Preliminary Official Statement and the final Official Statement to be derived therefrom in connection with sale and delivery of the Bonds. SECTION 6. FORM OF DISCLOSURE DISSEMINATION AGENT AGREEMENT APPROVED. The form and substance of the Disclosure Dissemination Agent Agreement is hereby approved. The Administrative Services Director is hereby authorized and directed to execute and deliver the Disclosure Dissemination Agent Agreement on behalf of the City in substantially said form, with such changes as may be approved by the Administrative Services Director in consultation with Disclosure Counsel, such approval to be conclusively evidenced by such execution and delivery. SECTION 7. GENERAL AUTHORIZATION RESPECTING OTHER ACTIONS. The officers of the City are hereby authorized and directed, jointly and severally, to do any and all things, to take such actions, and to execute and deliver any and all documents, including but not limited to agreements, certificates and opinions which they may deem necessary or advisable in consultation with Bond Counsel and Disclosure Counsel in order to carry out, give effect to and comply with the terms and intent of this resolution in general and the Bond Purchase Contract in particular. Any such actions heretofore taken by such officers are hereby ratified, confirmed and approved. SECTION 8. EFFECTIVE DATE OF RESOLUTION. This resolution shall be effective immediately upon adoption. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Newport Beach held on the 8a' day of Sgptember, 294�. r74011M dt r V'v City Clerk 1278111.1 STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2009 -65 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 8th day of September, 2009, and that the same was so passed and adopted by the following vote, to wit: Ayes: Curry, Henn, Webb, Gardner, Daigle, Mayor Selich Noes: None Absent: Rosansky Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 9th day of September, 2009. o 1,V.Q City Clerk Newport Beach, California (Seal)