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HomeMy WebLinkAboutRES NO 285-05 RESOLUTION NO. 2 8 5 - 0 5 A RESOLUTION APPROVING THE EXECUTION, SALE AND DELIVERY OF NOT TO EXCEED $26.0 MILLION OF THE 2005 REFUNDING CERTIFICATES OF PARTICIPATION TO PROVIDE FOR THE PARTIAL REFUNDING OF THE 1997 CERTIFICATES OF PARTICIPATION (CONVENTION CENTER EXPANSION - ARENA PROJECT); AUTHORIZING AND DIRECTING EXECUTION OF CERTAIN AMENDED AND RESTATED LEASE FINANCING DOCUMENTS; APPROVING A PRELIMINARY OFFICIAL STATEMENT AND AUTHORIZING THE PREPARATION, EXECUTION, DELIVERY AND DISTRIBUTION OF A FINAL OFFICIAL STATEMENT TO BE DERIVED FROM THE PRELIMINARY OFFICIAL STATEMENT; APPROVING AND AUTHORIZING EXECUTION OF PURCHASE CONTRACT; APPROVING AND AUTHORIZING EXECUTION OF A CONTINUING DISCLOSURE CERTIFICATE; APPROVING AND AUTHORIZING EXECUTION OF A REFUNDING ESCROW AGREEMENT; AND AUTHORIZING AND DIRECTING ADDITIONAL ACTIONS TO IMPLEMENT THE PROPOSED REFUNDING PROGRAM WHEREAS, the City has determined that it is in the best interest of the City and its inhabitants at this time to provide for the partial refunding on an advance refunding basis of the remaining outstanding 1997 Certificates of Participation (Convention Center Expansion - Arena Project) (the "1997 Certificates") of the City (the "Refunding Program"), together with associated costs and expenses of the Refunding Program, including but not limited to legal and financial advisors, underwriter's discount, certificate insurance premium, debt service reserve surety premium, title and other insurance premiums and other costs associated with the execution and delivery of the Refunding Certificates (as defined below); and WHEREAS, in connection with the 1997 Certificates, the following agreements, each dated as of April 1, 1997, were entered into among the parties indicated: a, a Property Lease (the "1997 Property Lease"), between the City as site lessor and the Agency as site lessee, pursuant to which the City leased the Site (as defined in the next paragraph) to the Agency; b, a Lease Agreement (the "1997 Lease Agreement"), between the Agency as Lessor and the City as Lessee, respecting the City's Convention Center Complex and the Arena (collectively, the "Leased Facilities"), together with the respective parcels ofland on which the Leased Facilities are situated and a non- exclusive right to use certain additional parking facilities and parcels ofland for parking purposes (collectively, the "Site"), and pursuant to which the Agency leased the Site and the Leased Facilities to the City in exchange for the payment DOCSSFlo848993.2 40213-39 SS4 by the City of Lease Payments in the amounts and on the dates provided by the 1997 Lease Agreement; c. a Trust Agreement (the "1997 Trust Agreement"), by and among the City, the Agency and First Trust of California, National Association, as Trustee (the "Original Trustee") (since succeeded by U.S. Bank National Association, as trustee; hereafter the "Trustee"), pursuant to which the 1997 Certificates were executed and delivered to George K. Baum & Company, as the original purchaser thereof, in accordance with instructions of the City, and the proceeds of sale ofthe 1997 Certificates were applied for the authorized purposes thereof, including payment of a portion of the cost and expense of improvements to the City's Convention Center and Arena; and d, an Assignment Agreement (the "1997 Assignment Agreement"), between the Agency and the Original Trustee, pursuant to which the Agency assigned all of its right, title and interest under the 1997 Property Lease and the 1997 Lease Agreement to the Original Trustee; and WHEREAS, the 1997 Certificates cannot be optionally prepaid in advance of maturity until April I, 2007, which necessitates conducting the Refunding Program as an advance refunding; and due to limitations of federal income tax law, only a portion of the 1997 Certificates is eligible for advance refunding on a federally tax-exempt basis; and WHEREAS, in order to provide, among other things, for the execution, sale and delivery of the Refunding Certificates and to modify the schedule of Lease Payments due and payable under the 1997 Lease Agreement to reflect the savings made possible by the Refunding Program, it is necessary (I) to provide for the amendment and restatement of the 1997 Lease Agreement, the 1997 Trust Agreement and the 1997 Assignment Agreement and (2) to approve the form and substance of (i) a Preliminary Official Statement (the "Preliminary Official Statement") pertaining to the Refunding Certificates and the Refunding Program, (ii) a Purchase Contract (the "Purchase Contract") providing the terms and conditions of sale by the City and purchase by George K, Baum & Company (the "Underwriter") of the Refunding Certificates, (iii) a Continuing Disclosure Certificate of the City (the "Continuing Disclosure Certificate") by which the City will enable the Underwriter to comply with certain requirements of Rule 15c2-12 of the Securities and Exchange Commission, and (iv) a Refunding Escrow Agreement, dated as of December I, 2005 (the "Refunding Escrow Agreement") providing for the establishment and application of a refunding escrow for the Refunding Program, including but not limited to the payment of current interest on April 1 and October 1, 2006 and on April I, 2007, the payment of the principal becoming due and payable on April I, 2006, and the prepayment of the principal on April I, 2007, together with a prepayment premium, of the prescribed portion of the 1997 Certificates; and WHEREAS, there have been prepared and submitted to the City Clerk for consideration by this City Council (this "Council") forms of the following, each in connection with the implementation of the Refunding Program: DOCSSF1,848993.2 40213-39 SS4 -~, .._-~-~_.__.._-_.,._.----_._-- a. an Amended and Restated Lease Agreement, dated as of December 1, 2005 (the "Amended and Restated Lease Agreement"), between the City and the Agency, in substance the same as the 1997 Lease Agreement but providing for a modified schedule of Lease Payments to reflect the saving achieved by the Refunding Program; b. an Amended and Restated Trust Agreement, dated as of December 1,2005 (the "Amended and Restated Trust Agreement"), by and among the City, the Agency and the Trustee, providing in part for (i) the execution, sale and delivery of the Refunding Certificates, which together with that portion of the 1997 Certificates which are not included in the Refunding Program and will therefore remain outstanding (collectively, the non-refunded 1997 Certificates and the Refunding Certificates being referred to hereinafter in this resolution as the "Certificates"), evidence an undivided fractional interest in the Lease Payments to be made by the City pursuant to the Amended and Restated Lease Agreement, (ii) the administration of the proceeds of sale of the Refunding Certificates to establish the refunding escrow and to pay the financing costs associated with the implementation of the Refunding Program, and (iii) the administration of the Lease Payments to pay the principal of the interest on the Certificates; c, an Amended and Restated Assignment Agreement, dated as of December 1, 2005 (the "Amended and Restated Assignment Agreement"), between the Agency and the Trustee, by which the Agency assigns to the Trustee all of its right, title and interest in the 1997 Property Lease and the Amended and Restated Lease Agreement; d. the Preliminary Official Statement; e. the Purchase Contract; f. the Continuing Disclosure Certificate; and g. the Refunding Escrow Agreement; and WHEREAS, this Council has determined that it is in the best interest of the City and for the public benefit that this Council approve the form and substance of each of the seven documents listed in the foregoing recital clause, to authorize modifications to each prior to execution, and (except for the Amended and Restated Assignment Agreement, to which the City is not a party) to authorize and direct execution, distribution and delivery of each of them, as modified, and certain other financing documents in connection therewith to implement the Refunding Program, including execution, sale and delivery of the Refunding Certificates; DOCSSFL84899J.2 402i3-J9 SS4 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Bakersfield as follows: SECTION 1. The documents enumerated below are hereby approved as to fonn and substance, and (except for the Amended and Restated Assignment Agreement, to which the City is not a party) the Mayor, the Finance Director, the City Attorney and such other officers as are specified by each of the respective documents (together with any designee in writing of any such officer; all references hereinafter in this resolution to any officer of the City shall be deemed to include any designee in writing of such officer) are and each of them is hereby authorized and directed to execute said documents, with such changes and modifications as may be approved by the Finance Director, which approval shall be conclusively established by such execution: (A) the Amended and Restated Lease Agreement; (B) the Amended and Restated Trust Agreement; (C) the Amended and Restated Assignment Agreement; (D) the Preliminary Official Statement; (E) the Purchase Contract; (F) the Continuing Disclosure Certificate; and (G) the Refunding Escrow Agreement. SECTION 2. The Finance Director is authorized and directed to cause the Preliminary Official Statement to be brought into the fonn of a final official statement (the "Final Official Statement") and to execute said Final Official Statement, dated as of the date of sale of the Refunding Certificates, and the Finance Director is authorized and directed to execute a statement that the facts contained in the Final Official Statement, and any supplement or amendment thereto (which shall be deemed an original part thereof for the purpose of such statement) were, at the time of sale of the Certificates, true and correct in all material respects and that the Final Official Statement did not, on the date of sale of the Refunding Certificates, and does not, as of the date of delivery of the Refunding Certificates, contain any untrue statement of a material fact with respect to the City or omit to state material facts with respect to the City required to be stated where necessary to make any statement made therein not misleading in light of the circumstances under which it was made, The Finance Director shall take such further actions prior to the signing of the Final Official Statement as are deemed necessary or appropriate to verifY the accuracy thereof. DOCSSF1,848993.2 40213-39 SS4 The Final Official Statement, when prepared, is approved for distribution In connection with the offering and sale of the Refunding Certificates. SECTION 3. The Finance Director is authorized to (a) approve the purchase price to be set forth in Section I of the Purchase Contract, (b) approve a maturity schedule, interest rates and initial offering prices or yields to be set forth in Appendix A of the Purchase Contract, provided that the principal amount of the Refunding Certificates shall not exceed $26,0 million, the purchase price (exclusive of original issue discount, if any) shall not be less than 99,0% of par, and the average interest rate shall not exceed 6.00% per annum, and (c) approve a closing date to be set forth in Section 5 of the Purchase Contract. Upon completion of the Purchase Contract in said manner, the officers of the City specified therein are authorized to execute the Purchase Contract. SECTION 4. The Finance Director IS authorized to execute the Continuing Disclosure Certificate, SECTION 5. The Mayor, the City Manager, the Finance Director, the City Clerk, the City Attorney, the City Risk Manager, the Public Works Director and any other officer or employee of the City necessary for the purpose are authorized to execute any additional documents and agreements and to take any additional actions as may be necessary or appropriate, as detennined by special legal counsel to the City for the Refunding Program, to accomplish execution, sale and delivery of the Refunding Certificates and to otherwise implement the Refunding Program. SECTION 6. This resolution shall take effect immediately upon its passage. DOCSSFl :848993.2 40213-39 SS4 I HEREBY CERTIFY that the foregoing Resolution was passed and adopted by the City Council of the City of Bakersfield at a regular meeting thereof held on November 30, 2005, by the following vote: .,,/ v 0/ v .-/ v v CARSON, BENHAM, MAGGARD, COUCH, HANSON, SULLIVAN, SCRIVNER (~ NOES: ABSTAIN: ABSENT: COUNCILMEMBER COUNCILMEMBER COUNCILMEMBER COUNCILMEMBER ~ [1. rflL~ City Clerk and Ex OfficIO Clerk of the Council ofthe City of Bakersfield APPROVED this 30th day of November, 2005 HARVEY L. HALL Mayor oft Ci of Bakers fie d APPROVED AS TO FORM: ORRICK, HERRINGTON & SUTCLIFFE LLP Special Leg Counsel By APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney By ;;d/g¡¡!tt. þ- DOCSSFI :848993.2 40213-39 SS4