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HomeMy WebLinkAboutRES NO 150-87RESOLUTION NO. 150-87 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BAKERSFIELD REGARDING SUBMITTAL OF AN APPLICATION FOR THE EXPANSION OF WASTEWATER TREATMENT PLANT NO. 3 WHEREAS, this City Council of the City of Bakersfield (the "City") has been authorized to submit an application to the Economic Development Administration; and WHEREAS, the grant, if awarded, will provide for improvements to existing facilities owned by the City of Bakersfield Public Facilities Corporation (the "Corporation") on land leased from the City improved by the Corporation and leased to the City for operation; and WHEREAS, such improvements will be a benefit to the City; and WHEREAS, Economic Development Administration grant guidelines require that all parties receiving benefits grant submit a resolution of authorization. from the NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City hereby authorizes the City staff to submit an application for the expansion of Wastewater Treatment Plant No. 3 on behalf of the Corporation and the City. BE IT FURTHER RESOLVED, that the City approves the Joint Agreement regarding the expansion of Wastewater Treatment Plant No. 3 and authorizes The ~a¥or to sign the Agreement. CITY OF BAKERSFIELD Mayo r ATTEST: City Clerk AYES: COUNCILMEMRERS: CHILDS, CHRISTENSEN, SMI~fH, RAI~'Y, ,',~O,9,q'-, DICKERSON, SALVAGGIO ABSTAtNI~'.'G: CC. UHCiLMEMB~RS: '~'~'~7~Z..~ _ 6587k/2160/008 JOINT AGREEMENT REGARDING THE EXPANSION OF WASTEWATER TREATMENT PLANT NO. City Contract NO. 87 -19;> 3 This Agreement dated as of August 1, 1987 by and between the City of Bakersfield, a municipal corporation and charter City organized and existing under the laws of the State of California (the "City"), and the City of Bakersfield Public Facilities Corporation, a public benefit corporation organized and existing under the laws of the State of California (the "Corporation"). RECITALS WHEREAS, the City of Bakersfield has received authorization to submit an application to the Economic Development Administration to fund a portion of the cost of the expansion of the City's Wastewater Treatment Plant No. 3 (the "Plant"); and WHEREAS, the Corporation was formed for the sole purpose of assisting the City by financing improvements to the Plant and in 1985, the Corporation issued $15,010,000 of its 1985 Leasehold Mortgage Revenue Bonds (the "1985 Bonds") to provide for the funding of improvements to the Plant; and WHEREAS, the 1985 Bonds were secured by an Indenture of Mortgage and Deed of Trust by and between the Corporation and Security Pacific National Bank, as Trustee; and WHEREAS, in connection with the expansion of the Plant, the Corporation proposes to issue additional Bonds or other evidence of indebtedness to obtain money, which, together with the money to be received from the Economic Development Administration, will pay the total project cost to expand the Plant; and WHEREAS, the parties wish to formalize an agreement by which the financing, construction, maintenance, ownership and operation of the Plant shall take place. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, the parties agree as follows: 1. This Agreement shall have no force and effect unless the City receives Economic Development Administration Grant funds for the Plant. 2. Upon the award of funds, a master construction and improvement plan will be established for the Plant by the City. Such master' plan shall be developed with the cooperation and assistance of each party. 3. The City agrees to provide the engineering, construction and maintenance of all improvements to the Plant consistent with those policies and procedures governing the City's activities, as may be periodically adopted by the City Council. The City will own the site on which the Plant is located, and will operate and maintain the Plant for the useful life of the Plant. 4. The Corporation will issue its 1988 Bonds to provide the moneys for that portion of the Plant expansion improvements not constructed with grant funds. The Bonds will be secured by an indenture or supplemental indenture, which will provide that the 1988 Bonds will be on a parity with the 1985 Bonds, and that the lease payments to be made by the City to the Corporation pursuant to the 1985 Bakersfield Facilities Site Lease and Project Lease'by and between the City and the Corporation (the "1985 Lease") and a supplemental lease to cover the improvements to be constructed to expand the Plant will be sufficient to pay the principal and interest on the 1985 Bonds and the 1988 Bonds. The supplemental indenture will also authorize the Trustee to relet the leasehold estate created by the 1985 Lease and the supplemental lease in the event the City does not make its lease payments. The parties and the Bondholders recognize that the Plant is a unique public facility which can only serve the City, and therefore, it is highly unlikely that the Trustee would exercise the right to remove the City and attempt to relet the Plant to another party. In no event will the City lose title to the Plant even in the event of a default, as the Trustee can only relet the Corporation's leasehold interest in the Plant, and on December 31, 2020 the site and Plant will revert to the City free and clear of any encumbrance. 5. The parties agree to adhere to each other's policies, procedures and requirements where there is no apparent conflict with another party's policies, procedures or requirements, or if there is no conflict with existing laws or regulations regarding the specific matter. Where a conflict occurs, the parties agree to meet to resolve the conflict. If a resolution cannot be achieved, the matter shall be submitted to the City Council of the City for final resolution. 6. The grant funds shall either be held by the City or deposited in a separate fund held by the Trustee. The 1988 Bond funds will be deposited in a separate fund with the Trustee. No expenditures shall be made or cost incurred from moneys in said funds without prior authorization by the City. Payment shall be in accordance with established City procedures and the provisions of the supplemental indenture. Nothing in this Agreement shall obligate any party to expend their own funds for engineering and construction costs associated with this project. 6581k/2160/008 -2- 7. Nothing in this section shall preclude a party from sub-contracting all or any portion of work required under this Agreement provided acceptable standards are met. 8. The parties agree to be bound by: (A) the terms of the grant award, (B) the Public Works Application (ED-101P and ED-101-A), (C) the grant budget (ED-508), (D) the special conditions and standard terms and conditions for public works and development facilities, (E) the publication "Requirements for Approved Projects," Eighth Edition, June 1984, (F) the Administration regulation, and (G) any Federal Register announcement applicable to Economic Development Administration Public Works Projects. In addition, the parties agree to adhere to the assurances required by the Economic Development Administration, provided as Attachment 1 and by reference hereto is incorporated herein. 9. This Agreement may be amended only by a written agreement executed by all parties. 10. The parties agree that they are bound by the application forms and grant documents executed and accepted by the City. The parties further agree to execute and submit Exhibit 2, Civil Rights Status Report, and Exhibit 3, "Current and Projected Employee and Payroll Data: (Form ED-612) and by reference hereto is incorporated herein. 11. The City, as lead agency on the Plant, shall be responsible for the following: filing Plant reports, receiving and distributing funds, filing required financial reports, and supervising, with the assistance of the other parties, the bidding, award and management of the construction contracts. 12. This Agreement shall become effective on the date the Economic Development Administration Grant is awarded to the City. It shall remain in effect for a period of twenty-five (25) years from the above-mentioned award date. 13. Except for the supplemental lease and such supplemental documentation to be entered into between the parties to secure the 1988 Bonds, this instrument constitutes the sole and only agreement of the parties hereto relating to the Plant and directly sets forth the rights, duties and obligations of each to the others as of its date. 14. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall reimain in full force and effect and shall in no way be affected, impaired, or invalidated. 6581k/2160/008 -3- 15. Captions of the sections of this Agreement are for convenience of reference only and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction, or meaning of the provisions of this Agreement. 16. This Agreement shall inure to the benefit of and bind the successors and assigns of each party hereto. 17. If any legal action is necessary to enforce the terms of this Agreement, the prevailing party(ies) shall be entitled to reasonable attorneys' fees, in addition to any other relief to which that party may be entitled. 18. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original and all of which, when taken together, shall constitute a single Agreement. 19. The parties acknowledge and agree that neither of them has made any representations with respect to the subject matter of this Agreement or any representations including the execution and delivery thereof except representations as are specifically set forth herein. 20. No waiver or modification of this Agreement or of any covenant, condition or limitation herein contained shall be valid unless in writing and duly executed by the parties to be charged therewith. This Agreement, however, may be extended by mutual written consent of the parties. 21. This Agreement and performance hereunder and all suits and special proceedings hereunder shall be construed in accordance with the laws of the State of Calfornia in any action, special proceeding, or other proceeding that may be brought arising out of, in connection with, or by reason of this Agreement, the laws of the State of California shall be applicable and so govern to the exclusion of the laws of any other forum without regard to the jurisdiction in which the action or special proceeding may be instituted. 22. This Agreement shall be binding on and inure to the benefit of the respective parties. 23. It is understood and agreed by the parties hereto that while engaged in complying with any of the terms of this Agreement, each party is an independent legal entity. It is further understood and agreed that each party, their officers, agents and employees, shall not be liable or responsible for any injury or damage to person or property resulting from the operations or activities of any of the parties to this 6581k/2160/008 -4- Agreement while engaged in complying with any of the terms of this Agreement. Each party agrees to indemnify and hold harmless all other parties to this Agreement and its officers, agents, and employees, from and against all claims and liability for damage or injury to persons or property resulting from the activities described in this Agreement. 24. Each party further agrees to carry at all times, at its own expense, with responsible companies authorized to do business in the State of California, liability insurance, or in lieu thereof, to be self-insured in a manner as may be provided in an indenture for the sale of the additional bonds. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date hereinabove set forth. CITY OF BAKERSFIELD THOMAS A, PAYNE ( .MAYOR ATTEST: RI~CH~D 0BERHDLZEt%~ CITY ATTORNEY' CITY OF BAKERSFIELD PUBLIC FACILITIES CORPORATION 6581k/2160/008 -5-