Resolution 11076RESOLUTION NO. 11076
A RESOLUTION AUTHORIZING THE ISSUANCE OF
INDUSTRIAL DEVELOPMENT REVENUE BONDS, ESTABLISHING
THEIR TERMS AND PROVIDING FOR THEIR SECURITY, AND
PROVIDING COVENANTS FOR THEIR PROTECTION, AUTHORIZING
THEIR SALE AT PRIVATE SALE, AUTHORIZING THE EXECUTION
OF A PURCHASE CONTRACT, FINANCING AGREEMENT
INTERCREDITOR AGREEMENT AND TRUST INDENTURE AND
APPOINTING A TRUSTEE THEREUNDER, AUTHORIZING APPROVAL OF
A FORM OF AN OFFICIAL STATEMENT AND
AUTHORIZING ITS EXECUTION, AND AUTHORIZING THE FINANCING OF
THE PROJECT AND OTHER MATTERS IN CONNECTION THEREWITH
$2,250,000
CITY OF ALAMEDA
INDUSTRIAL DEVELOPMENT REVENUE BONDS
(Park Street Landing Project)
SERIES 1986-A
RESOLVED, by the Council of the City of Alameda, that,
WHEREAS, pursuant to the Charter of the City of Alameda,
adopted April 29, 1937, as amended, and by its Ordinance No. 2057,
New Series, entitled "Ordinance of the City of Alameda Relating To
The Financing of Industrial and Commercial Development Within Said
City In the Interests of the Public Health, Safety and Welfare",
adopted by the Council of the City on July 9, 1981 (the "Bond
Law"), the City has provided for the financing of certain
industrial or commercial projects by the issuance of industrial
development revenue bonds;
WHEREAS, the Bond Law determines that the encouragement of
industrial and commercial development within the City serves a
vital and compelling public interest of the City and promotes the
public health, safety and welfare of the City by increasing the
employment of residents of the City, increasing the tax and revenue
base and thereby enhancing the financial resources of the City, and
preventing physical deterioration and abandonment of industrial and
commercial areas within the City, and by other means;
WHEREAS, the Bond Law authorizes the City to issue its
revenue bonds upon the approval by the Council of an application by
a person, corporation, partnership, firm or other entity or group
of entities requiring financing for the acquisition (inclusive of
construction, improvment, reconstruction and certain other
activities) of industrial or commercial real property located
within the City and certain other related property, including
equipment and furnishings;
WHEREAS, under the Bond Law financing is provided to
applicants pursuant to agreements with respect to the financing,
the terms of which may include the lending of moneys by the City
for the purpose of paying or otherwise providing for or assisting
the payment of any or all costs of property acquisition, the
repayment of such moneys, the providing for and securing of the
repayment of such moneys by deeds of trust, mortgages and other
means, and other matters;
WHEREAS, pursuant to application received from Park Street
Landing, a California limited partnership (the "Participating Party"),
for financing for a commercial development along the Alameda
Estuary in the City (the "Project"), the Council, by its
Resolution No. 11057, adopted on November 18, 1986, approved the
Project and the financing of the Project by the issuance pursuant
to the Bond Law of its revenue bonds therefor;
WHEREAS, the Council has determined that the Project
qualifies for financing under the Bond Law and that the financing
of the Project is in furtherance of the purposes of the Bond Law,
and proposes to assist in financing the costs of the Project by the
issuance of City of Alameda Industrial Development Revenue Bonds
(Park Street Landing Project); Series 1986-A, in an aggregate
principal amount of not to exceed $2,250,000 (the "Bonds") and to
secure the Bonds pursuant to a Trust Indenture (the "Trust
Indenture") dated as of December 1, 1986, to be entered into with
Pacific Trust Company, as trustee (the "Trustee");
WHEREAS, the City proposes to apply the proceeds of the sale
of the Bonds to the financing of the Project pursuant to a
Financing Agreement between the City and the Participating Party
(the "Financing Agreement") providing, in part, for payments by the
Participating Party sufficient to meet installments of interest and
principal of the Bonds;
WHEREAS, to fund the Financing Agreement, the City proposes
to enter into a Purchase Contract (the "Purchase Contract") with
First California Regional Securities, Inc. (the "Purchaser") which
includes a schedule of maturities of the Bonds and
pursuant to which the Purchaser proposes to purchase all of
the Bonds;
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WHEREAS, the Purchaser has caused a Preliminary Official
Statement(the "Preliminary Official Statement") relating to the
Bonds to be submitted to the City for approval of the distribution
thereof to prospective purchasers of the Bonds;
WHEREAS, further to secure the payment of the Bonds, as
provided by the Purchase Contract, the Participating Party proposes
to cause Union Bank (the "Credit Bank") to issue to the Trustee the
Bank's irrevocable standby letter of credit (the "Letter of
Credit") in such amount and drawable at such times as will secure
the interest on and principal of the Bonds as such come due,
pursuant to a Reimbursement Agreement (the "Reimbursement
Agreement") between the Participating Party and the Credit Bank;
WHEREAS, as a condition to the issuance of the Letter of
Credit, the Credit Bank requires that the City and the Trustee
enter into an Intercreditor Agreement with it (the "Intercreditor
Agreement") limiting the amendment of certain other agreements
without the consent of the Credit Bank, providing for certain
notices to the Bank upon the occurrence of certain defaults and
providing the Credit Bank with an opportunity to cure such defaults
and become substituted as the Participating Party;
WHEREAS, as additional security for the obligations of the
Participating Party under the Financing Agreement, the
Participating Party will execute a Deed of Trust (the "Deed of
Trust") in favor of the Trustee and the Credit Bank as
beneficiaries, which Deed of Trust together with all rights (with
certain exceptions therein specified) of the City under the
Financing Agreement and with certain payments to be received by or
on behalf of the City under either of such instruments, as well as
certain other property, is proposed by the Trust Indenture to be
pledged and assigned, and a security interest therein granted, to
the Trustee, as security for the Bonds;
WHEREAS, the City has stated its intention to undertake the
financing of the Project by resolution of intention duly adopted on
August 19, 1986; and has subsequently caused a notice of public
hearing on approval of the provision of financing to be published
in the Alameda Times Star on November 4, 1986 which notice stated
that Park Street Landing, a California limited partnership, would
be the initial owner, operator or manager of the Project, the
estimated maximum financing to be provided and a brief summary of
the Project and of the time, not less than 14 days thence, and
place of a public hearing to be held by the Council on the
financing of the acquisition of the Project, and at the appointed
time and place the public hearing was held and thereafter, on
November 18, 1986, the City approved the Project and the financing
of the Project;
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NOW, THEREFORE, IT IS DETERMINED AND ORDERED as follows:
Section 1. To accomplish the purposes of the Bond Law, the
City hereby determines that the Project shall be acquired as
constituted in the preambles hereto, and that the Bonds are being
issued in exercise of the powers granted by the Bond Law. In order
to pay the cost of the financing of the Project, Bonds of the City
are hereby authorized to be issued in a principal amount equal to
the amount to be purchased pursuant to the Purchase Contract, but
in any event not to exceed $2,250,000, pursuant to and
substantially in the form as set forth in the Trust Indenture,
which form is by this reference incorporated herein. The Bonds
shall mature and be subject to redemption and to mandatory tender
to the Trustee as provided by the Trust Indenture, and shall bear
interest upon original issuance as provided by the Purchase
Contract. The Bonds shall be issued in fully registered form and
shall have such other details and provisions as prescribed by the
Trust Indenture.
Section 2. The Bonds shall be special obligations of the
City, payable solely out of the revenues or other receipts, funds
or moneys provided therefor by the Financing Agreement, and
shall be further secured by certain other property and rights as
provided by the Financing Agreement, and all of such revenues or
other receipts, funds or moneys from which the Bonds are payable
and such property and other rights further securing the Bonds are
hereby irrevocably pledged to-the security of and punctual payment
of the interest on, redemption premium, if any, and principal of
the Bonds. This pledge shall constitute a lien on such amounts for
the security and payment of the Bonds, valid and binding from the
date of issuance of the Bonds until the revenues or other receipts,
funds or moneys are paid out or otherwise disbursed pursuant to the
Trust Indenture, and the revenues and receipts or property or
interests in property pledged hereby and afterwards received by the
City or a trustee or custodian shall immediately be subject to such
lien without any physical delivery thereof or further act, and the
lien shall be valid and binding as against all parties having
claims of any kind in tort, contract or otherwise against the City,
or trustee or custodian, irrespective of whether the parties have
notice thereof. The payment of the principal of, redemption
premium, if any and interest on the Bonds shall also be secured by
the Trust Indenture, the Letter of Credit and the Deed of Trust.
Neither the members of the City Council, nor any official or
employee of the City, nor any person executing the Bonds issued
pursuant to the Bond Law shall in any event be subject to any
personal liability or accountability by reason of the issuance
thereof. No holder of any Bonds has the right to compel any
exercise of the taxing power of the City to pay the Bonds or the
interest or redemption premium, if any, thereon, and the Bonds
shall not constitute an indebtedness of the City or a loan of
credit thereof within the meaning of any constitutional or
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statutory provision, nor shall the Bonds be construed to create any
moral obligation on the part of the City or any agency or
subdivision thereof with respect to the payment of such Bonds.
Section 3. The Bonds shall be executed on behalf of the
City by the manual or facsimile signature of the Mayor, with the
official seal of the City affixed or imprinted thereon and attested
by the manual or facsimile signature of the City Clerk. The Bonds
shall become valid and obligatory upon the authentication thereof
by the manual signature of the Trustee and delivery after
registration in the registration records of the City as elsewhere
in this resolution provided. Said officers are hereby also
authorized on behalf of the City to approve changes, insertions and
omissions, such approval to be conclusively evidenced by the Bonds
so altered or completed, fully- executed. A temporary Bond may be
issued pending issuance of definitive Bonds as provided for by the
Trust Indenture. Such temporary Bond may contain such additional
terms as may be provided for in the Trust Indenture.
Section 4. The Purchase Contract for purchase of the Bonds
in substantially the form submitted to the City is hereby approved
and the City Manager of the City is authorized and directed to
execute the'Purchase Contract on behalf of the City, and to receive
on behalf of the City the execution thereof by the other parties
thereto, provided that each of the following conditions are met:
(a) the purchase price to be received by the City for
the Bonds shall be not'less than 100% of the aggregate
principal amount of the Bonds, plus accrued interest, if any
(which purchase price shall not preclude the payment of a
fee to the Purchaser by the Participating Party not in
excess of 3 %); and
(b) the interest rate to be paid on any of the Bonds
shall not exceed 9% per annum;
and the Bonds are hereby sold and shall be delivered by the City to
or upon the order of the Purchaser, upon payment therefor by the
Purchaser and compliance with the other terms and conditions as
provided by the Purchase Contract.
Section 5. In case any officer who shall have signed,
sealed or attested any of the Bonds shall cease to be such officer
before the Bonds so signed, sealed or attested shall have been
delivered by the City to the Purchaser, such Bonds may nevertheless
be delivered as herein provided as if the person who so signed,
sealed or attested such Bonds had not ceased to be such officer.
Any Bond may be signed, sealed or attested on behalf of the City by
any person who, on the date of such act, shall hold the proper
office, notwithstanding that at the date of such Bond such person
may not have held such office.
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Section 6. A. Trust funds of the City are hereby
authorized to be established and maintained with the Trustee under
such designations as shall be sufficient to identify said trust
funds as follows:
(a) Construction Fund;
(b) Cost of Issuance Fund;
(c) Revenue Fund;
(d) Bond Fund; and
(e) General Fund.
B. All amounts credited or transferred to
said trust funds, including the proceeds received by the City from
sale of the Bonds and certain other sources in the amounts
determined pursuant to the Trust Indenture, shall be credited to
the respective funds and shall be held for the purposes, may be
invested or reinvested and shall be disbursed as provided by the
Trust Indenture.
Section 7. The City shall keep at the principal corporate
trust office of the Trustee in San Jose, California, a bond
register (the "Bond Register") for the registration and transfer of
the Bonds, and, upon presentation thereof for such purpose at such
office, the Trustee, as Registrar, shall register or cause to be
registered therein the name and address of the registered owner or
transferee and cancel the surrendered Bond, under such reasonable
regulations as the Registrar may prescribe.
Section 8. A. The Bonds shall be transferable only upon
the Bond Register by or for the registered owner thereof as
provided by the Trust Indenture. No transfer of the Bonds shall be
valid unless made in the Bond Register, the Bond being surrendered
and cancelled on behalf of the City, and a new Bond being
authenticated by the Trustee and registered in the name o-f the
transferee.
B. The Bonds otherwise shall be transferable
and exchangeable pursuant to the Trust Indenture.
Section 9. The ownership of the Bonds shall be proved by
the Bond Register. Any request or consent by the owner of a Bond
shall bind all future owners of such Bond in respect of anything
done or suffered to be done by the City or the Participating Party
in accordance therewith.
Section 10. When a Bond has been paid or redeemed, or
cancelled, or if mutilated has been replaced, the Bond shall be
destroyed by or upon the instructions of the City and certificates
thereof shall be delivered to the Participating Party and filed in
the records of the City.
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Section 11. The Preliminary Official Statement is hereby
approved and the distribution thereof to broker/dealers, banking
institutions and other persons who may be interested in purchasing
the Bonds is hereby ratified, and the Mayor of the City or the Vice
Mayor of the Council, or any other officer of the City designated
by the Mayor or the Vice Mayor, shall review, and the Mayor, Vice
Mayor, or any other officer of the City designated by the Mayor or
Vice Mayor is authorized to approve and execute on behalf of the
City (which approval shall be conclusively evidenced by the
execution thereof) a final Official Statement (the "Official
Statement") relating to the Bonds, setting forth such amendments,
supplements and other changes to the Preliminary Official Statement
as shall be necessary or appropriate to accurately describe the
Bonds in accordance with this resolution, the Trust Indenture, the
Purchase Contract and the other agreements and documents.
Section 12., The Trust Indenture between the City and the
Trustee substantially in the form submitted to the City is hereby
approved, and the Trustee is hereby appointed "Trustee" thereunder.
Section 13. The Trustee is hereby appointed Registrar with
full power and authority to maintain the Bond Register and to
administer the system of registration authorized hereby.
Section 14. The Financing Agreement between the City and
the Participating Party, substantially in the form submitted to the
City, is hereby approved.
Section 15. The Intercreditor Agreement among the City, the
Trustee and the Credit Bank, substantially in the form submitted to
the City, is hereby approved.
Section 16. The Financing Agreement, the Intercreditor
Agreement and the Trust Indenture shall be executed on behalf of
the City by a signing by the Mayor of the City, or the Vice Mayor
of the Council or by any other officer of the city designated by
the Mayor or the Vice Mayor, by authentication by the signature of
the City Clerk or a Deputy Clerk and affixation of the City's seal,
and by delivery to the other party or parties thereto.
Section 17. The officers of the City authorized hereby to
execute on behalf of the City the Financing Agreement, the
Intercreditor Agreement and the Trust Indenture shall receive on
behalf of the City the execution of such documents by the other
parties thereto.
Section 18. The officers of the City referred to in the
preceding Section are hereby also authorized on behalf of the City
to approve changes, insertions or omissions in the Purchase
Contract and in any of the documents referred to in the preceding
Section and to execute or receive execution on behalf of the City
of any such documents so altered, such approval, execution and
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reception to be conclusively evidenced by the documents so altered
or completed, fully-executed. Such changes may include, without
limitation, appointment of a different initial Trustee under the
Trust Indenture that fully qualifies as such pursuant to the Trust
Indenture, approval of the omission of or of different agents as
provided by the Trust Indenture, and the omission of any one or
more of the funds described by Section 6.
Section 19. The undertaking, carrying out and completing of
the financing of the Project by the City is hereby authorized.
Section 20. In case any one or more of the provisions of
this resolution (the "Bond Resolution") or the Trust Indenture, the
Financing Agreement, the Intercreditor Agreement, the Purchase
Contract or of the Bonds issued hereunder shall for any reason be
held to be illegal or invalid, such illegality or invalidity shall
not affect any other provision of this Bond Resolution or of the
Trust Indenture, the Purchase Contract, the Financing Agreement,
the Intercreditor Agreement or the Bonds and each of such
instruments shall be construed and enforced as if such illegal or
invalid provision had not been contained therein. Invalidity of
the Trust Indenture shall not affect the pledge of revenues or
other receipts, funds, or moneys pursuant to this Bond Resolution,
the establishment and maintenance of the various funds described by
Section 6 hereof, and the handling of the proceeds derived from the
sale of Bonds and other receipts, funds or moneys as provided by
the Purchase Contract, it being the intention hereof that such
commitments on the part of the City are binding separate and apart
from the Trust Indenture.
Section 21. Upon execution of the Purchase Contract, the
Mayor, City Clerk and other City officers are hereby authorized and
directed, for and on behalf of the City, to do any and all things
and take any and all actions which they, or any of them, may deem
necessary or advisable in order to consummate the lawful issuance
of the Bonds in accordance with the Purchase Contract, the Trust
Indenture, the Official Statement, this Bond Resolution and the
other agreements and documents, including the execution of any and
all certificates, requisitions and agreements (which agreements may
include, without limitation, agreements with bond counsel, the
Trustee and agencies of the City), and the approval of any and all
of the same to be executed by others.
Section 22. The City Manager is hereby appointed Authorized
Representative of the City, with the power and authority to
designate and remove, from time to time, an Authorized
Representative to act in his stead, by filing such designation or
removal with the City Clerk, and the Authorized Representative at
the time, as certified by the City Clerk, is hereby authorized to
execute or authenticate any and all other instruments,
certificates, and documents, and to do and cause to be done any and
all acts and things necessary or proper, in his judgment, in the
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undertaking, carryina out and completing of the financing of the
Project authorized by this Bond Resolution, and the performance and
exercise of derivative obligations and powers, which are not
contrary to any of the agreements or other documents executed by
the Mayor, City Clerk or other City officers, including the
approval of any changes, insertions or omissions to any of such
other instruments, certificates and documents.
Section 23. Pursuant to the Bond Law, the provisions
thereof, the provisions hereof, and the provisions of any mortgage,
pledge, assignment, security interest, insurance, financing or
credit agreement, or indenture of trust securing the payment of the
interest on, redemption premium, if any, and principal of the
Bonds, shall unless otherwise provided therein constitute a
contract with the holder or holders of Bonds which shall continue
in effect until the principal of, the interest on, and the
redemption premium, if any, on the Bonds have been fully paid or
provision made therefor, and the duties of the City and its
agencies and officers under the Bond Law and under this Bond
Resolution and each such other instrument shall be enforceable as
provided therein.
Section 24. Notwithstanding anything herein or in any of
the agreements or other documents authorized hereby to the
contrary, the City shall incur no liability by reason hereof or by
reason of the execution of any of such agreements or documents,
pending the issuance and delivery of Bonds, and in the event for
any reason Bonds are not issued and delivered, fees, costs or
expenses shall be the responsibility of others, not the City, as
provided by the Preliminary Agreement between the City and the
Participating Party.
Section 25. All orders, resolutions, or proceedings in
conflict with the provisions of this Bond Resolution are hereby
repealed, rescinded and set aside, to the extent of such conflict.
Section 26. This Bond Resolution shall take effect
immediately.
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I, the undersigned, hereby certify that the foregoing resolution
was duly and regularly adopted and passed by the Council of the
City of Alameda in regular meeting assembled on the 16th of
December 1986, by the following vote to wit:
AYES: Councilmembers Corica, Hanna, Lucas, Monsef and
President Diament - 5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the official seal of said City thisl7th day of December, 1986.
(SEAL)
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City ierk of the City of A a eda
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