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Resolution 13382CITY OF ALAMEDA RESOLUTION NO. 13382 AUTHORIZING THE ISSUANCE OF SPECIAL TAX BONDS FOR COMMUNITY FACILITIES DISTRICT NO. 4 (DEMOLITION AND BACKBONE INFRASTRUCTURE - FISC AND EAST HOUSING SITES), AND APPROVING A FISCAL AGENT AGREEMENT AND OTHER, RELATED DOCUMENTS, (INCLUDING A CONSTRUCTION REIMBURSEMENT AGREEMENT), AND ACTIONS RESOLVED, by the City Council (the "Council ") of the City of Alameda (the "City "), as follows: WHEREAS, the City and Catellus Development Corporation ( "Catellus ") have entered into a Development Agreement By And Between The City Of Alameda And Catellus Development Corporation, dated as of June 6, 2000 (the "Development Agreement "), relating to the development of 87 acres of land for residential purposes and 77 acres of land for a business park (the "Property "), constituting portions of the FISC and East Housing areas, as such terms are defined and all as more completely described in the Development Agreement; and WHEREAS, the Community Improvement Commission of the City of Alameda (the "CIC) and Catellus have entered into a Disposition and Development Agreement, dated as of June 16, 2000 (the "DDA "), which provides for, among other matters, the financing and installation of backbone infrastructure (the "Backbone Infrastructure ") and the demolition of existing improvements (the "Demolition ") on the Property by the CIC, and the purchase of the Property by Catellus or other entities permitted under the DDA, all as more particularly set forth in the DDA; and WHEREAS, the City and the CIC have entered into the Joint Implementation Agreement (as defined in the Development Agreement) in order to assure the timely and orderly development of the Property, as contemplated by the Development Agreement and the DDA; and WHEREAS, under the provisions of the DDA, the CIC has agreed that it will engage a master developer (initially being an affiliate of Catellus, but which may in the future include other entities and third party contractors permitted under the DDA), as an independent contractor to perform the Demolition and to undertake the design, permitting and construction of the Backbone Infrastructure, and the CIC has agreed to use revenues related to the project to pay project - related expenses, including among other expenses costs related to the Demolition and Backbone Infrastructure, all as more fully described in the DDA; and WHEREAS, the City desires to assist the CIC in the financing of the costs of the Demolition and Backbone Infrastructure, and to that end has conducted proceedings under and pursuant to the City of Alameda Special Tax Financing Improvement Code, constituting Section 3 -70 (Special Tax Financing Improvement Code) of Article IV (Special Tax Financing) of Chapter III (Finance and Taxation) of the Alameda Municipal Code (the "Code "), to form the City of Alameda Community Facilities District No. 4 (Demolition and Backbone Infrastructure - FISC and East Housing Sites) (the "District "), to authorize the levy of special taxes upon the land within the District, and to issue bonds secured by the special taxes the proceeds of which are to be used to finance all or a portion of the costs of the Demolition and Backbone Infrastructure, all as described in two resolutions of intention with respect to the District (collectively, the "Resolutions of Intention "), adopted by the City Council on June 19, 2001; and WHEREAS, pursuant to the Resolutions of Intention, an election was held within the District on August 21, 2001, and the then sole qualified elector of the District, being the CIC, approved the propositions of the incurrence of the bonded debt and the levy of the special tax by the City within the District; and WHEREAS, the land initially included in the District is the Property, and the bonds will be secured by a levy of special taxes on the portion of the Property not yet conveyed by the City to Catellus under the terms of the DDA, as well as by an agreement with the CIC to pledge certain tax increment revenues from the CIC's Business and Waterfront Improvement (BWIP) project area towards the payment of debt service on the Bonds; and WHEREAS, there have been submitted to this City Council certain documents providing for the issuance of bonds of the City for the District and the use of the proceeds of those bonds to finance a portion of the costs of the Demolition and Backbone Infrastructure and this City Council, with the assistance of the officers of the City and the consultants engaged by the City with respect to the District, has reviewed said documents and found them to be in proper order; and WHEREAS, this City Council now desires to authorize the issuance of the bonds for the District and approve the related documents, so that the bond- financed Demolition and installation of Backbone Infrastructure improvements on the Property can proceed as contemplated by various agreements of the City affecting development of the Property. NOW, THEREFORE, it is hereby ORDERED and DETERMINED, as follows: Section 1. Authorization of Issuance of Bonds. Pursuant to the Code, this Resolution and the Fiscal Agent Agreement (hereafter defined), special tax bonds of the City for the District designated as "City of Alameda Community Facilities District No 4 (Demolition and Backbone Infrastructure FISC and East Housing Sites) Special Tax Bonds" in an aggregate principal amount not to exceed $12,000,000 (the "Bonds") are hereby authorized to be issued and the first series of such bonds designated "Series 2001 -A" m an aggregate principal amount not to exceed $10,000,000 (the "2001 -A Bonds ") are hereby authorized to be issued and sold as provided herein. The 2001 -A Bonds shall be executed in the form set forth in and otherwise as provided in the Fiscal Agent Agreement. Jurisdiction is hereby reserved to issue the remaining authorized, but unissued portion of the Bonds. The City Council hereby finds that all conditions, things and acts required to exist, to have happened and to have been performed precedent to and in the issuance of the 2001 -A Bonds as contemplated by this Resolution and the documents referred to herein exist, have happened and have been performed in due time, form and manner as required by the laws of the State of California, including the Code. -2- Section 2. Approval of Fiscal Agent Agreement. The Fiscal Agent Agreement (the "Fiscal Agent Agreement ") with respect to the 2001 -A Bonds, in the form on file with the City Clerk, is hereby approved. The City Manager and the Director of Finance (the "Authorized Officers "), each acting alone, are hereby authorized and directed to execute and deliver the Fiscal Agent Agreement in said form, with such additions thereto or changes therein as are approved by the officer of the City executing such document, upon consultation with the City Attorney and Bond Counsel, including such additions or changes as are necessary or advisable in accordance with Section 9 hereof, the approval of such additions or changes to be conclusively evidenced by the execution and delivery of the Fiscal Agent Agreement by an Authorized Officer. The date, manner of payment, interest rate or rates, interest payment dates, denominations, form, registration privileges, manner of execution, place of payment, terms of redemption and other terms of the 2001 -A Bonds shall be as provided in the Fiscal Agent Agreement as finally executed. Section 3. Approval of Bond Purchase Contract. The bond purchase contract for the 2001 -A Bonds (the "Purchase Contract ") between the City and the Alameda Public Financing Authority (the "Authority "), in the form on file with the City Clerk, is hereby approved. The Authorized Officers, each acting alone, are hereby authorized and directed to enter into the Purchase Contract with the Authority (provided that the aggregate principal amount of the 2001 -A Bonds sold thereby is not in excess of $10,000,000, the yield on the 2001 -A Bonds is not in excess of one percent (1%) over the yield on the bonds issued by the Authority (the "Authority Bonds") the proceeds of which are being used by the Authority to purchase the 2001 -A Bonds, and to execute and deliver the Purchase Contract in said form, with such additions thereto or changes therein as are recommended or approved by the officer of the City executing such document upon consultation with the City Attorney and Bond Counsel, the approval of such additions or changes to be conclusively evidenced by the execution and delivery of the Purchase Contract by an Authorized Officer. Section 4. Approval of Official Statement. The official statement relating to the Authority Bonds (the "Official Statement "), in the form on file with the City Clerk, is hereby approved. The Authorized Officers, each acting alone, are hereby authorized and directed to execute the Official Statement in said form, with such additions thereto or changes therein as are recommended or approved by the officer of the City executing such document upon consultation with the City Attorney and Bond Counsel, the approval of such additions or changes to be conclusively evidenced by the execution and delivery of the Official Statement by an Authorized Officer. The underwriter for the Authority Bonds is hereby authorized to distribute copies of said Official Statement to persons who may be interested in the purchase of the Authority Bonds and is directed to deliver such copies to all actual purchasers of the Authority Bonds. Distribution by the underwriter for the Authority Bonds of a preliminary official statement relating to the Authority Bonds is hereby approved and authorized. The Authorized Officers, each acting alone, are hereby authorized to execute a certificate or certificates to the effect that the Official Statement and such preliminary official statement were deemed "final" as of their respective dates for purposes of Rule 15c2 -12 of the Securities Exchange Code of 1934, and are authorized to so deem such statements final. Section 5. Approval of Continuing Disclosure Certificate. The Continuing Disclosure Certificate (the "Disclosure Certificate ") of the City related to the 2001A Bonds, in the form on -3- file with the City Clerk, is hereby approved. The Authorized Officers, each acting alone, are hereby authorized and directed to execute and deliver the Disclosure Certificate in said form, with such additions thereto or changes therein as are recommended or approved by the officer of the City executing such document upon consultation with the City Attorney, and Bond Counsel (including such additions or changes therein as are necessary or advisable in accordance with Section 9 hereof), the approval of such additions or changes to be conclusively evidenced by the execution and delivery of the Disclosure Certificate by an Authorized Officer. Section 6. Approval of CIC Pledge Agreement. There has been presented to this City Council for its approval a CIC Pledge Agreement (the "Pledge Agreement "), between the City and the CIC, the form of which is on file with the City Clerk. The Pledge Agreement contemplates that the CIC will contribute to the City amounts equal to the debt service on the 2001 -A Bonds from tax increment revenues (the "BWIP Tax Increment ") from the CIC's Business and Waterfront Improvement project area (the "BWIP Project Area "), even though a portion of the area in which the Demolition and Backbone Infrastructure to be financed with 2001 -A Bond proceeds will occur . and be constructed, respectively, is in _ another CIC redevelopment project are that is outside of the BWIP Project Area. In light of the foregoing, this City Council hereby makes the following findings and determinations, based upon all of the prior proceedings of this City Council related to the Development Agreement, the Joint Implementation Agreement and the District, as well as the terms and provisions of the DDA: (a) the DDA requires that, the CIC undertake : the Demolition and the construction of the Backbone Infrastructure on the Property, which includes the design and construction of new roadway access to the Property, as well as drainage, sanitary sewer, water, natural gas and electrical system improvements; (b) the two principal means of roadway access to the portion of the Property in the BWIP Project Area run through a portion of the Property in the CIC's Alameda Point Improvement Project area (the "APIP Project Area "), and the most cost effective design for the storm drainage and sanitary sewer systems for the Property involve flows from the APIP Project Area portion of the Property into the, BWIP Project Area portion of the Property; (c) the water, natural gas and electrical distribution systems for he Property are designed as loop systems with connections within both the BWIP Project Area and the APIP Project Area; (d) existing high voltage electrical transmission lines run through both the BWIP Project Area portion of the Property and the APIP Project Area portion of the Property, and will be relocated to run through the BWIP Project Area portion of the Property; and (e) public open spaces on the Property will be designed to serve the mixed uses of land on the Property, including both the BWIP Project Area and the APIP Project Area portions of the Property. -4- Based upon the foregoing, the City Council finds and determines that (i) the Demolition and the Backbone Infrastructure to be financed with the proceeds of the 2001A Bonds the debt service on which is to be paid for with BWIP Tax Increment pursuant to the Pledge Agreement, including the work to be done outside of the BWIP Project Area portion of the Property, are of benefit to the BWIP Project Area, (ii) no other reasonable means of financing the Demolition and the Backbone Infrastructure are available to the community, (iii) the use of BWIP Tax Increment to pay the debt service on the 2001 -A Bonds, as contemplated by the Pledge Agreement, will assist in the elimination of one or more blighting conditions inside the BWIP Project Area, and is consistent with the implementation plan adopted by the CIC pursuant to Section 33490 of the California Health and Safety Code. The Pledge Agreement, in the form on file with the City Clerk, is hereby approved. The Authorized Officers, each acting alone, are hereby authorized and directed to execute and deliver the Pledge Agreement in said form, with such additions thereto or changes therein as are recommended or approved of the City by the officer executing the Pledge Agreement upon consultation with the City Attorney and Bond Counsel (including such additions or changes therein as are necessary or advisable in accordance with Section 9 hereof), the approval of such additions or changes to be conclusively evidenced by the execution and delivery of the Pledge Agreement by an Authorized Officer. Section 7. Approval of Construction Reimbursement Agreement. There has been presented to this City Counsel for its approval a Construction Reimbursement Agreement among the City, the CIC and Catellus Construction Corporation (the "Construction Agreement"), the form of which is on file with the City Clerk. The City Council hereby makes the following findings and determinations, based upon all of the prior proceedings of this City Council related to the Development Agreement, the Joint Implementation Agreement, other land use development approvals related to the Property and the proceedings related to the District: (a) the Demolition and the Backbone Infrastructure are of an integrated nature with the development to be done on the Property as described in the Development Agreement and the DDA, and 'a delay in the timely completion of the Demolition and the Backbone Infrastructure could result in a delay in the conveyance of the Property to the Developer under the DDA, a delay in the development of the Property as contemplated by the Development Agreement and the DDA, and a delay in the timely payment of the Bonds due to a shortfall in projected increases in tax increment revenues from the development of the Property; (b) because of the integrated nature of the Demolition, the construction of the Backbone Infrastructure and the development by Catellus of the Property, any public bidding of the contracts for the Demolition and construction of the Backbone Infrastructure would be incongruous and will not result in any advantage to the City or the CIC, such that the DDA provides that the Demolition and the construction of the Backbone Infrastructure will be accomplished by means of an agreement with a master developer (initially being Catellus) without any prior solicitation of bids for a master developer; (c) Section 3 -70.6 of the Code permits the City to enter into a contract to do work or construct facilities financed by the District with an entity that has entered into a disposition and development agreement with respect to two- thirds or more of the land in the District without any prior solicitation for bids under circumstances such as those described in the preceding findings (a) and (b), and, pursuant to the DDA, Catellus has entered into the DDA which pertains to all of the land to be included in the CFD; (d) the Construction Agreement is in furtherance of the provisions of the DDA and the Joint Implementation Agreement, and is in accordance with the applicable provisions of the Code, and is a proper agreement for the City to enter into in order to assure the most timely, economical and efficient completion of the Demolition and the Backbone Infrastructure; and (e) the Construction Agreement pertains to and affects the ability of the City and the CIC to finance the Demolition and the Backbone Infrastructure, for the CIC and Catellus to carry out the purposes of the DDA and for the development the Property as contemplated by the Development Agreement and the DDA, and is intended to be a contract within the meaning of California Government Code Section 53511, as well as a contract subject to the provisions of Section 3 -70.98 of the Code. The City Council acknowledges that the procedures for bidding set forth in the Construction Agreement are not fully consistent with the City's Administrative Instruction No. 5, and, in light of the foregoing determinations, a waiver is hereby granted from the requirements of Administrative Instruction No. 5 to the extent that the procedures in the Construction Agreement differ from Administrative Instruction No. 5. The Construction Agreement, in the form of file with the City Clerk, is hereby approved. The Authorized Officers, each acting alone, are hereby authorized and directed to execute and deliver the Construction Agreement in said form, with such additions thereto or changes therein as are recommended or approved of the City by the officer executing the Construction Agreement upon consultation with the City Attorney and Bond Counsel (including such additions or changes therein as are necessary or advisable in accordance with Section 9 hereof), the approval of such additions or changes to be conclusively evidenced by the execution and delivery of the Construction Agreement by an Authorized Officer. Section 8. Delivery of Bonds. The 2001 -A Bonds, when executed, shall be delivered to the Fiscal Agent for authentication. The Fiscal Agent is hereby requested and directed to authenticate the 2001 -A Bonds by executing the Fiscal Agent's certificate of authentication and registration appearing thereon, and to deliver the 2001 -A Bonds, when duly executed and authenticated, to the trustee for the Authority Bonds in accordance with written instructions executed on behalf of the City by the Director of Finance, which instructions such officer is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver to the Fiscal Agent. Section 9. Further Actions. All actions heretofore taken by the officers and agents of the City with respect to the establishment of the District and the sale and issuance of the 2001 -A Bonds are hereby approved, confirmed and ratified, and the proper officers of the City are hereby authorized and directed to do any and all things and take any and all actions and -6- execute any and all certificates, agreements and other documents, which they, or any of them, may deem necessary or advisable in order to consummate the lawful issuance and delivery of the 2001 -A Bonds in accordance with this Resolution, and any certificate, agreement, and other document described in the documents herein approved. Section 10. Effective Date. This resolution shall take effect upon its adoption. * * * * * * * * * ** 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 a Special Joint City Council, Community Improvement Commission, and Alameda Public Financing Authority meeting assembled on the 21st day of August, 2001, by the following vote to wit: AYES: Councilmembers Daysog, DeWitt, Johnson, Kerr and Mayor Appezzato - 5. NOES: None. ABSENT: None. ABSTENTIONS: None. IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this 22nd day of August, 2001. Lara Weisiger, Actin City Clerk City of Alameda