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HomeMy WebLinkAbout1994-227 1 2 3 4 5 6 7 8 RESOLUTION NO. 94-227 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $3,500,000 COMMUNITY FACILITIES DISTRICT NO. 995 OF THE CITY OF SAN BERNARDINO (VERDEMONT AREA) SPECIAL TAX REFUNDING BONDS, APPROVING THE FORM OF LEGAL DOCUMENTS RELATED THERETO AND AUTHORIZING AND DIRECTING PREPARATION, EXECUTION AND DELIVERY OF THE FINAL FORMS THEREOF WHEREAS, the City of San Bernardino (the "City") is a 9 charter city and municipal corporation organized and existing 10 under and pursuant to California law; and 11 12 WHEREAS, the City issued its $7,440,000 Community 13 Facilities District No. 995 (Verdemont Area) Special Tax Bonds 14 (the "Prior Bonds") in order to finance the acquisition and 15 construction of certain facilities within its Community 16 Facilities District No, 995; and 17 18 WHEREAS, the Prior Bonds are dated November 15, 1990, 19 and the last scheduled maturity of the Prior Bonds is 20 September 1, 2015; and 21 22 23 24 25 26 27 28 WHEREAS, the City desires to refund the Prior Bonds and therefore proposes at this time to issue bonds in the approximate amount of $3,300,000, and in any event not to exceed $3,500,000, entitled Community Facilities District No. 995 of the City of San Bernardino (Verdemont Area) Special Tax Refunding Bonds (the codified at the Mello-Roos Act, "Bonds" ) pursuant to Section 53311, et sea., of the California Government Code (the - 1 - 94-227 1 "Act"), and pursuant to that certain Indenture of Trust dated as 2 of August 1, 1994 (the "Indenture"), by and between the City and 3 Bank of America National Trust and Savings Association, as 4 trustee (the "Trustee"), a form of which is presently on file 5 with the City Clerk; and 6 7 WHEREAS, the proceeds of the Bonds will be used (in 8 addition to a portion of the proceeds of the Prior Bonds) to 9 (i) pay interest and principal coming due on the Prior Bonds on 10 September 1, 1994; (ii) defease a portion of the Prior Bonds to 11 callan September 1, 1998; (iii) defease the remainder of the 12 Prior Bonds to call at maturity; and (iv) provide for a reserve 13 fund and costs of issuance of the Bonds; and 14 15 WHEREAS, the Prior Bonds shall be paid at the principal 16 trust office of First Interstate Bank, Ltd., in Los Angeles, 17 California; and 18 19 WHEREAS, Miller & Schroeder Financial, Inc., as 20 prospective underwriter of the Bonds (the "Underwriter") has 21 informed the City that it intends to submit an offer to purchase 22 the Bonds and shall cause to be prepared a preliminary Official 23 Statement and an Official Statement relating to such Bonds, as 24 may be necessary in the sale and marketing of the Bonds, a form 25 of which is presently on file with the City Clerk; and 26 I I I 27 I I I 28 III - 2 - 94-227 WHEREAS, the City has duly considered such transactions and desires at this time to approve said transactions in the public interests of the City, 1 2 3 4 5 6 7 8 9 10 11 12 Section 2. Findinqs and Determinations. Pursuant 13 to the Act, the Mayor and Common Council hereby find and 14 determine that the issuance of the Bonds will result in 15 (i) savings in effective interest rates, bond preparation, bond 16 underwriting and/or bond issuance costs, (ii) significant public 17 benefits to the City, and (iii) pursuant to Section 53363 of the 18 Act, it is prudent in the management of City affairs to issue 19 refunding bonds at this time. 20 21 22 23 24 25 26 27 28 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, DO HEREBY FIND, RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. Recitals. The above mentioned recitals are incorporated herein as if fully set forth. Section 3. Issuance of the Bonds; Approval of Form of Indenture: Authorization and Direction to Prepare Final Forms Thereof. The Mayor and Common Council hereby authorize the issuance of special tax refunding bonds under and pursuant to the Act and the Indenture in the principal amount not to exceed $3,500,000 and the preparation of certain financing documents related thereto which are necessary to carry out the issuance of the Bonds. The Mayor and Common Council hereby approve the form - 3 - 94-227 1 of Indenture as presently on file with the City Clerk with such 2 changes thereto as may be approved by the Mayor and as necessary 3 to incorporate the principal amount, interest rate, maturity and 4 redemption dates and such other terms and conditions with respect 5 to the Bonds when such terms and conditions have been 6 ascertained. The Mayor and Common Council hereby further 7 authorize and direct that the form of Indenture presently on file 8 with the City Clerk be converted into the final form of 9 Indenture, authorizing the issuance of the Bonds together with 10 such changes or modifications as deemed necessary or desirable by 11 the Mayor upon the recommendation of Sabo & Green, a Professional 12 Corporation ("Bond Counsel"), The Mayor, City Administrator or 13 such other authorized officer of the City is hereby authorized 14 and directed to execute and deliver, and the City Clerk is hereby 15 authorized and directed to attest to, the final form of each 16 Indenture when the same has been prepared for and in the name of 17 the City, and such execution and delivery shall be deemed to be 18 conclusive evidence of the approval thereof. The Mayor and 19 Common Council hereby authorize the delivery and performance of 20 the Indenture. 21 22 Section 4. Aooroval of Escrow Aqreement. The Mayor 23 and Common Council hereby approve the Escrow Agreement and 24 further authorize and direct that the form of Escrow Agreement 25 presently on file with the City Clerk be converted into the final 26 form of Escrow Agreement, together with such changes or 27 modifications as deemed necessary or desirable by the Mayor upon 28 the recommendation of Sabo & Green, a Professional Corporation - 4 - 94-227 1 2 3 4 5 6 7 8 9 10 11 Section 5. Terms of Bonds. The Mayor and Common 12 Council hereby determine that the Bonds shall be dated on or 13 about August 24, 1994, shall be in denominations of $5,000 and 14 shall have an interest rate not to exceed 8.5%. The Bonds shall 15 mature on or before September 1, 2015, which date is the final 16 maturity date of the Prior Bonds. Interest on the Bonds shall be 17 payable on March 1 and September 1 of each year until paid in 18 full. Principal shall be payable as provided in the Indenture on 19 September 1 of each year beginning September 1, 1995, until paid 20 in full. The Bonds shall be payable at the principal office of 21 Bank of America National Trust and Savings Association, as 22 Trustee for the Bonds. The costs of issuance of the Bonds shall 23 not exceed $100,000. 24 25 26 27 28 ("Bond Counsel"). The Mayor, City Administrator or such other authorized officer of the City is hereby authorized and directed to execute and deliver, and the City Clerk is hereby authorized and directed to attest to, the final form of each Escrow Agreement when the same has been prepared for and in the name of the City, and such execution and delivery shall be deemed to be conclusive evidence of the approval thereof. The Mayor and Common Council hereby authorize the delivery and performance of the Escrow Agreement. Section 6. Sale of the Bonds. The Mayor and Common Council hereby approve the sale of the Bonds by negotiated purchase with the Underwriter, pursuant to Government Code Section 53360.4 and that certain Bond Purchase Agreement to be - 5 - 94-227 1 prepared and as shall be provided by the Underwriter prior to the 2 time of purchase of the Bonds (the "Purchase Agreement"). The 3 Mayor and Common Council hereby further authorize a form of 4 Purchase Agreement as presently on file with the City Clerk, 5 together with any changes therein or additions thereto approved 6 by the Mayor or any authorized representative of the Mayor, and 7 as necessary to incorporate the principal amount, the interest 8 rate, the purchase price and such other terms and conditions when 9 such terms and conditions have been ascertained. The Mayor and 10 Common Council hereby authorize and direct the Underwriter to 11 cause the preparation of the final Purchase Agreement of which 12 such terms are a part, and the Mayor, City Administrator or such 13 other authorized officer of the City is hereby authorized and 14 directed to evidence the City's acceptance of the offer made by 15 the Purchase Agreement by executing and delivering the Purchase 16 Agreement in said form as on file with such changes therein as 17 the officer or the officers executing the same may approve, such 18 approval to be conclusively evidenced by the execution and 19 delivery thereof. 20 21 Section 7. Official Statement. The Mayor and 22 Common Council hereby approve the form of the Preliminary 23 Official Statement presently on file with the City Clerk. The 24 Mayor and Common Council further authorize the preparation and 25 distribution of a Preliminary Official Statement as shall be 26 necessary or required in connection with the sale of the Bonds to 27 prospective purchasers thereof. The Mayor and Common Council 28 hereby authorize and direct that the Preliminary Official - 6 - 94-227 1 Statement be converted to a final Official Statement together 2 with such changes or modifications as deemed desirable or 3 necessary in the sale and marketing of the Bonds and as approved 4 by the Mayor, upon the recommendation of Bond Counsel and the 5 Underwriter. The Mayor and Common Council hereby authorize 6 distribution of the Preliminary Official Statement and the final 7 Official Statement by the Underwriter when the same have been 8 prepared. The Mayor is hereby authorized and directed to execute 9 the final form of said Official Statement in the name and on 10 behalf of the Authority and to deliver the same to the 11 Underwriter upon execution thereof, together with the changes or 12 modifications approved by the Mayor. Execution of said final 13 Official Statement shall be conclusive evidence of approval 14 thereof, including any such changes and additions. 15 16 Section 8. Official Action. The Mayor, the City 17 Administrator, City Clerk, Bond Counsel and any and all other 18 officers of the City are hereby authorized and directed, for and 19 in the name and on behalf of the City, to do any and all things 20 and take any and all actions, including execution and delivery of 21 any and all assignments, certificates, requisitions, agreements, 22 notices, consents, instruments of conveyance, warrants and other 23 documents, which they, or any of them, may deem necessary or 24 advisable in order to consummate the lawful issuance and sale of 25 the Bonds as described herein, including, but not limited to, the 26 distribution of the Preliminary Official Statement to any 27 prospective purchasers when the same shall become available for 28 distribution. Whenever in this Resolution any officer of the - 7 - 94-227 1 City is authorized to execute or countersign any document or take 2 any action, such execution, countersigning or action may be taken 3 on behalf of such officer by any person designated by such 4 officer to act on his or her behalf in the case such officer 5 shall be absent or unavailable. The Mayor and Common Council 6 hereby appoints the Mayor as agent of the City for purposes of 7 executing any and all documents and instruments which any officer 8 of the City is authorized to execute hereunder. 9 10 The Mayor and Common Council hereby authorize the 11 payment of all costs of issuance in connection with the issuance 12 of the Bonds including all legal fees of Bond Counsel, special 13 tax counsel, bond printing and Trustee fees. Invoices for all 14 such items shall be submitted to and approved by the City 15 Administrator. 16 III 17 III 18 III 19 III 20 III 21 III 22 III 23 III 24 III 25 III 26 III 27 III 28 III - 8 - 94-227 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $3,500,000 COMMUNITY FACILITIES DISTRICT NO. 995 OF THE CITY OF SAN BERNARDINO (VERDEMONT AREA) SPECIAL TAX REFUNDING BONDS, APPROVING THE FORM OF LEGAL DOCUMENTS RELATED THERETO AND AUTHORIZING AND DIRECTING PREPARATION, EXECUTION AND DELIVERY OF THE FINAL FORMS THEREOF Section 9. Effective Date. This Resolution shall take effect from and after its passage and adoption, I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a reaular meeting thereof, held on the day of 1st Auqust 1994, by the following vote, to wit: AYES: Council Members Neqrete, Curlin, Hernandez. Oberhelman, Devlin, Pope-Ludlam and Miller NAYS: ABSENT: ~,~ ~-~^'~ -City Clerk 19 20 21 22 Approved as to form and legal 23 JAMES F. PENMAN City Attorney By://JV}(~/hJ:(/ The foregoing resolution is approved this hereby 4Th day of August , 1994. ~/" . /~ )lIu~ Mayor of the City of San Bernardino content: 24 25 26 27 28 SBEO\012S\DOC\11 - 9 - 94-227 CITY OF SAN BERNARDINO and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, Escrow Agent ESCROW AGREEMENT Dated as of 1, 1994 $3,500,000 COMMUNITY FACILITIES DISTRICT NO. 995 OF THE CITY OF SAN BERNARDINO (VERDEMONT AREA) SPECIAL TAX REFUNDING BONDS 94-227 ESCROW AGREEMENT THIS ESCROW AGREEMENT dated as of 1, 1994, by and between the City of San Bernardino (the "City") and Bank of America National Trust and Savings Association, as escrow agent (the "Escrow Agent"), a national banking association organized and existing under the laws of the United States of America, with its principal corporate trust office in Los Angeles, California: WHEREAS, the City has previously issued its $7,440,000 City of San Bernardino Community Facilities District No. 994 (Verdemont Area) Special Tax Bonds (the "Prior Bonds") pursuant to Resolution No. 90-248 (the "Prior Resolution"); and WHEREAS, First Interstate Bank, Ltd. has been appointed and is acting as fiscal agent for the Prior Bonds (referred to herein as the "Prior Bond Fiscal Agent"); and WHEREAS, Section 9.01 of the Prior Resolution provides that the Prior Bonds shall be deemed paid thereunder when federal securities, as defined in such Prior Resolution, together with interest to accrue thereon and moneys on deposit in the Special Tax Fund, the Bond Fund and the Redemption Fund shall be fully sufficient to pay and discharge the principal, premium and interest on all outstanding Prior Bonds; and WHEREAS, the City has determined to issue its $3,500,000 Community Facilities District No. 995 of the City of San Bernardino (Verdemont Area) Special Tax Refunding Bonds (the "Bonds"), under and pursuant to the provisions of the Indenture of Trust (the "Indenture") dated as of , 1994 by and between the City and Bank of America National Trust and Savings Association, as Trustee, the proceeds of which are to be used to pay, when due or redeemable, the Prior Bonds; and WHEREAS, there are amounts currently held in the Prior Bond Fund totalling $ (the "Prior Bond Proceeds") which amounts shall be used to pay the Prior Bonds, when due or redeemable; and WHEREAS, the City represents shall be sufficient to defease $ maturity; and that the Prior Bond Proceeds of the Prior Bonds to WHEREAS, the City represents that the Bond proceeds shall be sufficient to redeem $ of the Prior Bonds at par on September 1, 1994 and defease $ to September 1, 1998 at 102%. -1- 94 ?,,?'7 NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto agree as follows: 1. There is hereby created and established with the Escrow Agent a special and irrevocable trust fund designated the "Community Facilities District No. 995 of the City of San Bernardino (Verdemont Area) Escrow Account" (the "Escrow Account") to be held in the custody of the Escrow Agent separate and apart from other funds of the City. The deposit of moneys or securities in such Escrow Account shall constitute an irrevocable deposit of said moneys or securities in trust for, and such moneys or securities and the investments thereof shall be applied as provided herein to the payment at maturity or redemption of, as applicable, the principal of, premium, if any, and interest on, the Prior Bonds. 2. Concurrently with the execution of this Escrow Agreement, the City shall cause to be paid to the Escrow Agent for deposit in the Escrow Account (i) Prior Bond Proceeds in the amount of $ to be used to purchase securities (as provided in Exhibit "A") in an amount sufficient plus interest thereon to defease $ of the Prior Bonds to maturity pursuant to the schedule provided in Exhibit "B" hereto; (ii) Bond proceeds in the amount of $ to be deposited into the Redemption Fund to redeem $ of the Prior Bonds on September 1, 1994, at par; and (iii) Bond proceeds in the amount of $ to purchase securities (as provided in Exhibit "C") in an amount plus interest sufficient to defease $ of the Prior Bonds to their first call date on September 1, 1998, at 102%. Upon such deposit, the Prior Bond Fiscal Agent, shall execute and deliver to the City all such instruments as may be desirable to evidence the satisfaction and discharge of the Prior Bond Resolution, 3. At the written request of the City and upon compliance with the following conditions, the Escrow Agent shall have the power to sell, transfer, request the redemption of or otherwise dispose of some or all of the Escrow Investments in the Escrow Account and to substitute in their place other federal securities. The foregoing may only be effected if the Escrow Agent receives from the City the following: (a) Written instructions from the City to effect the substitution of securities in that Escrow Account; (b) Certification from an independent certified public accountant that, immediately following the substitution, the principal of and interest on the securities in that Escrow Account will be sufficient to pay the principal of, premium, if any, and interest on the Prior Bonds as the same shall become due and payable at their maturity or redemption. Such certification may be in the form of a letter from an independent certified public accountant reflecting -2- 94 221 such substitution and confirming the sufficiency of the Escrow Account; and (c) A written opinion of bond counsel that such substitution will not adversely affect the exemption from federal income taxation of interest on the Prior Bonds or the Bonds. 4. Except as provided above, the Escrow Agent shall have no power or duty to invest any moneys held hereunder or to make substitutions of the obligations held hereunder or to sell, transfer or otherwise dispose of the obligations acquired hereunder. 5. Following the deposit of the Escrow Investments into the Escrow Account as provided in Paragraph 2 of this Agreement, the Escrow Agent shall cause a notice of defeasance to be mailed as provided in Sections 4.03 and 9.01 of the Prior Bond Fiscal Agreement. The redemption date for the Prior Bonds shall be 1, 1994 and 1, 1998. The Issuer hereby gives notice to the Escrow Agent of instructions and directions to mail notice of said redemption in accordance with Sections 4.03 and 9.01 of the Prior Fiscal Agreement, as appropriate. The Escrow Agent by the execution of this Escrow Agreement hereby acknowledges receipt from the City of such direction and hereby agrees to mail said notice of redemption, as appropriate. 6. The holders of the Prior Bonds shall have an express lien on all moneys and the principal of and interest on all securities in the Escrow Account until paid out, used and applied in accordance with this Escrow Agreement. 7. In consideration of all services rendered and to be rendered by the Escrow Agent under this Escrow Agreement, the City and the Escrow Agent agree that the Escrow Agent shall receive payment for its proper fees and expenses. The Escrow Agent shall not have any lien whatsoever upon any of the moneys in the Escrow Account, or otherwise deposited in accordance with this Agreement for payment of fees and expenses for services rendered by it hereunder. 8. The Escrow Agent shall have no responsibility in respect of the validity or sufficiency of this Escrow Agreement, or in respect of the validity of any of the Prior Bonds. The Escrow Agent shall not be liable or responsible because of the failure of the City to perform any act required of it by this Escrow Agreement or because of the loss of any moneys arising through the insolvency or the act or default or omission of any depository, other than itself, in which such moneys shall have been deposited. The liability of the Escrow Agent hereunder to make the payments as provided herein is limited to the availability of amounts on deposit in the Escrow Account. The City agrees to indemnify the -3- 94 227 Escrow Agent for any loss or liability incurred in the performance of its duties hereunder other than due to the Escrow Agent's own negligence or willful misconduct. The Escrow Agent shall have no duties or obligations other than as expressly set forth herein. 9. The Escrow Agent may consult with counsel of its own choice (which may be counsel to the City) and the opinion of such counsel shall be full and complete authorization to take or suffer in good faith any action in accordance with such opinion of counsel. 10. The Escrow Agent shall not be responsible for any of the recitals or representations contained herein. 11. The Escrow Agent shall not be liable for the accuracy of any calculations provided as to the sufficiency of the moneys or investments deposited with it to pay the principal, interest, or premiums, if any, on the Prior Bonds. 12. The Escrow Agent shall not be liable for any action or omission of the City under this Agreement or the Prior Bond Resolution. 13. Whenever in the administration of this Agreement the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the Escrow Agent, be deemed to be conclusively proved and established by a certificate of an authorized representative of the City, and such certificate shall, in the absence of negligence or willful misconduct on the part of the Escrow Agent, be full warrant to the Escrow Agent for any action taken or suffered by it under the provisions of this Agreement upon the faith thereof. 14. The Escrow Agent may conclusively rely, as to the truth and accuracy of the statements and correctness of the opinions and the calculations provided, and shall be protected and indemnified, in acting or refraining from acting, upon any written notice, instruction, request, certificate, document or opinion furnished to the Escrow Agent signed or presented by the proper party, and it need not investigate any fact or matter stated in such notice, instruction, request, certificate or opinion. 15. The Escrow Agent may at any time resign by giving written notice to the City of such resignation. The City shall promptly appoint a successor Escrow Agent by the designated resignation date which shall not be less than fifteen (15) days from the date of such notice, Resignation of the Escrow Agent will be effective upon acceptance of appointment by a successor Escrow Agent. If the City does not appoint a successor, the Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor Escrow Agent, which court may thereupon, -4- 94 227 after such notice, if any, as it may deem proper and prescribe and as may be required by law, appoint a successor Escrow Agent. After receiving a notice of resignation of an Escrow Agent, the City may appoint a temporary Escrow Agent to replace the resigning Escrow Agent until the City appoints a successor Escrow Agent. Any such temporary Escrow Agent so appointed by the City shall immediately and without further act be superseded by the successor Escrow Agent so appointed. 16. This Escrow Agreement shall terminate when the principal of, redemption premium, and interest on the Prior Bonds have been paid and discharged in accordance with their terms and the Prior Bond Resolution under which they were issued. Any moneys and Escrow Investments remaining in the Escrow Account upon final payment of the Prior Bonds, the interest thereon and all fees and expenses of the Escrow Agent and the City, shall thereupon be transferred to the City. 17. If anyone or more of the covenants or agreements provided in this Escrow Agreement on the part of the City or the Escrow Agent to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreement shall be deemed and construed to be severable from the remaining covenants and agreement herein contained and shall in no way affect the validity of the remaining provisions of this Escrow Agreement. 18. Certain duties, rights and obligations provided for in the Prior Bond Resolution (including but not limited to replacement of lost, mutilated, stolen or destroyed bonds or coupons, the payment of interest and principal on the due dates thereof, the transfer and interchange and registration of bonds from time to time) must, by their nature, be performed after the defeasance of the Prior Bonds and, accordingly, the Escrow Agent agrees to be bound by and to comply with those provisions of the Prior Bond Resolution, The Prior Bond Resolution and the estates and rights granted thereunder are hereby otherwise ceased, determined and become null and void and the Prior Bond Resolution and the liens thereof are discharged. 19. This Agreement shall be governed by the laws of the State of California. 20. This Agreement may be executed in counterparts. -5- 94~227 IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by their duly authorized officers as of the date first above written, CITY OF SAN BERNARDINO By: Mayor (SEAL) ATTEST: City Clerk BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Escrow Agent By Authorized Officer SBEO\0125\DOC\12 7\26\94 445 law -6- , EXHIBIT "A" 94 227 94 227 EXHIBIT "B" 94 ~ ," " 94 227 EXHIBIT "e" 94-227 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA COUNTY OF On before me, (here insert name and title of the officer), personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal)