Loading...
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; IDA0045.ALAMEDA -2- 12/10/86 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; IDA0045.ALAMEDA -3- 12/10/86 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 IDA0045.ALAMEDA -4- 12/10/86 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. IDA0045.ALAMEDA -5- 12/10/86 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. IDA0045.ALAMEDA -6- 12/10/86 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 IDA0045.ALAMEDA -7- 12/10/86 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 IDA0045.ALAMEDA -8- 12/10/86 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. IDA0045.ALAMEDA -9- 12/10/86 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) IDA0045.ALAMEDA City ierk of the City of A a eda -10- 12/10/86