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HomeMy WebLinkAboutRes 2001-32XiiJi^pX TOWN RESOLUTION RESOLUTION NO.2001-32 RESOLUTION APPROVING THE ISSUANCE AND SALE OF NOT TO EXCEED $9,000,000 AGGREGATE PRINCIPAL AMOUNT OF THE TOWN OF FOUNTAIN HILLS,ARIZONA MUNICIPAL PROPERTY CORPORATION MUNICIPAL FACILITIES REVENUE BONDS,SERIES 2001;AUTHORIZING THE EXECUTION AND DELIVERY OF A FIRST AMENDMENT TO LEASE-PURCHASE AGREEMENT, A FIRST SUPPLEMENT TO TRUST INDENTURE,A BOND PURCHASE CONTRACT, A LETTER OF REPRESENTATIONS,A CONTINUING DISCLOSURE CERTIFICATE, AN ASSIGNMENT AGREEMENT AND ANCILLARY DOCUMENTS PERTAINING TO THE ISSUANCE OF THE BONDS;AUTHORIZING THE DELEGATION OF DUTIES TO CERTAIN OFFICERS;RATIFYING THE PREPARATION AND DISTRIBUTION OF A PRELIMINARY OFFICIAL STATEMENT AND AUTHORIZING THE FINALIZATION,EXECUTION AND DISTRIBUTION OF AN OFFICIAL STATEMENT; AUTHORIZING THE TAKING OF ALL OTHER ACTIONS NECESSARY TO THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THIS RESOLUTION AND DECLARING AN EMERGENCY. WHEREAS,the Town of Fountain Hills,Arizona (the "Town")isin process of negotiating the purchase of certain real property (the "Real Property")tobe utilized as open space and mountain preserve (the acquisition of such Real Property together with the payment of the costs of issuance related tothe bonds is sometimes referred to herein asthe "Project")',and WHEREAS,the Town intends to cause the purchase price of theReal Property to be paid in part with the proceeds fromthesale of the Town's general obligation bonds andin part withthe proceeds of the Bonds (as defined hereafter);and WHEREAS,the Town of Fountain Hills,Arizona Municipal Property Corporation (the "Corporation")has been incorporated to facilitate financing of a portion of thecost of the RealPropertythroughthe issuance andsale of nottoexceed $9,000,000 aggregateprincipal amount of the Corporation's Municipal Facilities Revenue Bonds,Series 2001(the "Bonds"),tobe datedas provided herein,the Bonds tobe issued pursuant toa First Supplement.,datedas of July1, 2001(the "FirstSupplement")tothe Trust Indenture,dated as of July 1,2000 (asso supplemented,the "Trust Indenture"),theFirst Supplement tobeenteredintobyand between a trusteetobe designated (the "Trustee")andthe Corporation;and WHEREAS,the Town willlease (with an option to purchase)that portion of the Real Property tobeownedbythe Corporation pursuant totheterms of aFirstAmendment,dated as of July 1,2001(the "First Amendment")tothe Lease-Purchase Agreement,dated as of July1, 2000(asso amended,the "Lease"),the First Amendment tobe entered intobyand between the Corporation andthe Town;and WHEREAS,therental payments madebythe Town tothe Corporation pursuant to theLeaseare secured bythe Town's pledge of its Excise Taxes (as defined intheLease)and, further,the Corporation has pledged therental payments asthe source of payment fortheBonds; and SWR.jmp 392374.04 06/15/01 c NiiB^X WHEREAS,forthe security of the owners of the Bonds and pursuant totheterms of an Assignment Agreement,dated as of July1,2001(the "Assignment Agreement"),byand between the Corporation andthe Trustee,the Corporation will assign tothe Trustee its interests in the Lease andtheReal Property;and WHEREAS,Peacock,Hislop,Staley &Given,Inc.(the "Original Purchaser")has offered to purchase the Bonds pursuant toa Bond Purchase Contract tobe dated thedate of sale of the Bonds (the "Purchase Contract"),byand between the Corporation andthe Original Purchaser which provides fora Letter of Representations tobedatedthesamedatefromtheTown(the "Letter ofRepresentations")tothe Original Purchaser,andthe Town desiresthatthe Corporation sellthe Bonds through negotiation tothe Original Purchaser on such termsasmay hereafter be determined and set forth in the Purchase Contract;and WHEREAS,there have been placed onfile with the Town and presented atthis meetingthe proposed forms of thefollowingdocuments:(i)Lease;(ii)TrustIndenture;(iii) PurchaseContract,including the Letter of Representations;(iv)Assignment Agreement;(v) Preliminary Official Statement (the "Preliminary Official Statement")with respect tothe Bonds; and(vi)a Continuing Disclosure Certificate tobedatedthedate of delivery of the Bonds (the "Continuing Disclosure Certificate")fromtheTown; NOW,THEREFORE,BE IT RESOLVED BY THE MAYOR AND COUNCIL OF TOWN OF FOUNTAIN HILLS,ARIZONA,THAT: Section 1.The Mayor and Council findand determine thatthe financing of the costs of acquisition of a portion of the Real Property pursuant tothe terms of the Lease,the Trust Indenture andthe Continuing Disclosure Certificate isin furtherance of the purposes of theTown andinthe public interest andthatthe Project andthe manner of financing will enhance the standard and quality of living within the Town. Section 2.The Town hereby approves the issuance andsalebythe Corporation of the Bonds.The Bonds shall be issued inthe aggregate principal amount of not to exceed $9,000,000.The Bonds shallbeinthe denomination of $5,000 orany integral multiple thereof, shallbe dated as of July 1,2001,or such later dateasthe President of the Corporation shall determine,and authenticated the date of initial delivery tothe Original Purchaser,and shall bear interest fromsuch dated date payable semiannually eachyear,commencing no earlier than January 1,2002,andshallbefully registered book-entry-only Bonds without coupons as provided inthe Trust Indenture.The Bonds shall bear interest atthe rates per annum and shall mature on thedates,inthe years and principal amounts asare approved bythe Mayor orany other member of the Council andsetforthinthe Purchase Contract,the execution and delivery of the Letter of Representations tobe conclusive proof of such approval.No Bond shall mature later than 2021. The yield onthe Bonds,calculated forfederaltax purposes,shall not exceed 5.9%per annum. The Mayor orany other member of the Council is hereby authorized and directed to approvethefinal principal amount,maturity schedule,interest rates,redemption provisions and other terms of the Bonds and cause them to be set forth in the Purchase Contract and the other documents.Inall other respects theforms,terms and provisions of the Bonds andthe provisions SWR.jmp 392374.04 06/14/01 -2- forthesignatures,authentication,payment,registration,transfer,exchange,redemptionand numbershallbeassetforthintheTrust Indenture andare hereby approved. The Mayor andeach member of theCouncil,theTown Manager andthe AccountingSupervisor,actingalone,areauthorizedtotakesuchactionsasarenecessarytosatisfy each condition of the transaction. Section 3.Theform,terms and provisions of the Lease,the Trust Indenture,the Assignment Agreement,the Purchase Contract andthe Continuing Disclosure Certificate,in substantially theform of such documents (including the exhibits thereto)onfilewiththeTownare herebyapproved,withsuchinsertions,omissions andchangesasshallbeapprovedbytheMayor, any member of the Council orthe Town Manager,the execution and delivery of such documents being conclusive evidence of such approval andthe performance bytheTown of theobligations containedinsuch agreements andthe Bonds is hereby authorized andapproved.TheMayor,any member of the Council or the Town Manager are hereby authorized and directed to execute and delivertheLease,the Continuing Disclosure Certificateandany instruments andreceiptsto complete the transactions contemplated by such agreements. Section 4.Theform,terms and provisions of the Letter of Representations,in substantially the proposed form of such document onfilewiththeTownisherebyapproved. Upon completion of the Letter of Representations with thefinal terms of the Bonds,theMayor, any member of the Council orthe Town Manager is hereby authorized and directed,forandinthe (.name and on behalf of the Town,to execute and deliver to the Original Purchaser the Letter of Representations,with such changes therein assuch officer may require orapprove,suchapproval tobe conclusively evidenced by the execution and delivery thereof. Section 5.The Town hereby requests the Corporation to take anyandall actions necessary to cause the execution and delivery of the Lease,the Trust Indenture,the Assignment Agreement andthe Purchase Contract.The Accounting Supervisor is directed to obtain proposals from prospective trustees andto designate a trustee toactas Trustee forthe Bonds.The Trustee is hereby requested totakeanyandall action necessary in connection with the execution and delivery of the Trust Indenture andthe Assignment Agreement and the issuance andsale of the Bonds. Section 6.(a)(i)Theform of the Preliminary Official Statement is hereby approved.The distribution bythe Original Purchaser of the Preliminary Official Statement is hereby authorized and approved.The Mayor,any member of the Council orthe Town Manager are each authorized and directed to deem the Preliminary Official Statement finalas of itsdate within the meaning of Rule 15c2-12 of the Securities and Exchange Commission (the "Rule"). (ii)The Accounting Supervisor is authorized to prepare or cause tobeprepared,andtheMayor,any member of theCouncilortheTown Manager isauthorizedand directedtoapprove,deliver andexecute,on behalf of theTown,afinalOfficialStatementtobe datedthedate of the Purchase Contract (the "Official Statement"),in substantially theform of the Preliminary Official Statement with changes effected bythesale of the Bonds forusein connection with the offering andsale of the Bonds.The execution of the Official Statement bythe Mayor,any member of the Council orthe Town Manager shallbe conclusively deemedto SWR:jmp 392374.04 06/14/01 -3- \^/evidencetheapproval of thestatus,formandcontents thereof bytheTownandthattheOfficial Statementisfinalforallpurposes.TheMayor,anymember of theCouncilortheTownManager ortheAccountingSupervisormayexecuteanddeliversuchcertificatesasmayberequested pertaining tothe accuracy and truthfulness of the Official Statement. (b)(i)TheTown hereby agreesthatitisthe"ObligatedPerson" (asdefinedintheRule)withrespecttotheBondsand,therefore,theTownshallcomplywithand carryoutallthe provisions of the Continuing Disclosure Certificate withrespecttotheBondsfor purposes of theRule(anycosts associated with compliance withtheRuleshallbepaidfrom Excise Taxes). (ii)This Subsection 6(b)shall constitute a contract between the Town and certain owners of the Bonds as described inthe Continuing Disclosure Certificate. (iii)Intheevent of afailure of the Town to comply withthe provisions of this Section,certain owners of the Bonds described inthe Continuing Disclosure Certificatemaytakesuchactionsasmaybe necessary and appropriate,includingseeking mandamus or specific performance bycourtorder,to cause the Town to comply withits obligations under this Section.A default under this Section shall not be deemed an event of default for other purposes of this resolution,theLeaseorthe Trust Indenture,andthesole remedy under this Section inthe event of anyfailure of the Town to comply with the terms of the Continuing Disclosure Certificate shall bean action to compel performance. C Section 7.In addition to other security provided forinthe Trust Indenture,to secure the payment of the rental payments provided forinthe Lease andthe other amounts required tobe paid bythe Town pursuant tothe provisions of theLease,the Town hereby pledges forthe payment of the rental payments thereunder,subject toall present andfuture rights of owners of bonds or other obligations payable from Excise Taxes (as defined inthe Lease)which enjoyalien,pledge or claim to Excise Taxes on parity with the claim of the Corporation,all ExciseTaxes.The obligation to make rental payments willnot constitute an obligation of the Town for which the Town is obligated tolevyor pledge anyform of ad valorem taxation nordoes the obligation to make rental payments under the Lease constitute an indebtedness of the Town or of the State of Arizona orany of its political subdivisions within the meaning of the Constitution of the State of Arizona or otherwise. The Mayor and Council findand determine thatthe consideration provided bythe Corporation tothe Town pursuant tothe Lease represents fairrental value of suchleased property. Section 8.After any of the Bonds are delivered by the Trustee tothe Original Purchaser hereof upon receipt of payment therefor,this resolution shallbeand remain irrepealable untilthe Bonds andthe interest thereon shall have been fully paid,cancelled and discharged. Section 9.The Mayor,any member of the Council,the Town Manager orthe AccountingSupervisor,on behalf of theTownorthe Corporation,orboth,andthePresidentor anymember of theBoard of Directors of the Corporation,on behalf of theCorporation,may (expend Bond proceeds to purchase bond insurance or other credit enhancements for all or part of theBondsandtoapprove,executeand deliver any agreements to reimburse any provider of credit enhancements for amounts drawn thereunder.The Accounting Supervisor andthe Trustee are SWR:jmp 392374.04 06/14/01 -4- 4 < \^g0/ authorizedanddirectedtopayorcausetobepaidsuchpremiums,feesorcosts,togetherwithall otherfees,costsand expenses of issuance,from Bond proceeds. Section10.(a)Inconsideration of thepurchaseandacceptance of theBondsby theowners of theBonds thereof fromtimetotimeand of retainingtheexclusionfromgross incomeforfederalincometaxes of theinterestincomeontheBonds,itisherebycovenanted,and theappropriateofficials of theTownareherebydirected,totakeallactionrequired,ortorefrain from taking any action prohibited,bythe Internal Revenue Code of 1986,as amended andas supplementedbyallapplicableTreasuryRegulationspromulgatedinconnectionwithany applicablesectionthereof(collectivelythe "Code"),whichwouldadverselyaffectinanyrespect such exclusion,including,particularly,butnotbyway of limitation,(i)tocausetheBondstonot be"privateactivity"bondswithinthemeaning of theCode(Section141(a)of theCode),(ii)to causetheBondstonotbe "arbitrage bonds"within the meaning of theCode(Section148(a)of the Code)ortobevalid "reimbursement bonds"for purposes of theCode if proceeds of thesale of the Bonds aretobe allocated to reimburse an expenditure thatwas paid prior tothedate of issue of the Bonds(Section 1.103.18 of the Treasury Regulations),(iii)to comply withthe provisions of the Coderelatingtorebate (Section 148(f)of theCode),(iv)tocausetheBondsnottobe"federally guaranteed"withinthe meaning of theCode (Section 149(b)of theCode),(v)tomaketherequired information filing pursuant totheCode(Section149(e)of theCode),and(vi)tomaketherequired expenditures sothatthe Bonds shallnotbe deemed tobe "hedge bonds"within the meaning of the Code (Section 149(g)of the Code). (b)The Town hereby represents and warrants that (i)the Town has general taxing powers,(ii)the Bonds arenot private activity bonds within the meaning of the Code,and(iii)ninety-five percent (95%)or more of thenet proceeds of the Bonds shallbeused for governmental activities of the Town. Section 11.All actions of the officers and agents of the Town which conform to the purposes and intent of this resolution and which further the issuance of the Bonds andthe lease-purchase transaction between the Corporation andthe Town as contemplated bythis resolution andthe Official Statement,whether heretofore or hereafter taken are hereby ratified, confirmed and approved.The proper officers and agents of the Town are hereby authorized and directed todoall such actsand things andto execute and deliver all such documents on behalf of the Town asmaybe necessary to carry outthe terms and intent of this resolution andtheOfficial Statement. Section 12.(a)The Town approves Gust Rosenfeld P.L.C.as counsel forboth theCorporationandtheTownandwaivesany conflict of interest. (b)If any section,paragraph,clause or provision of this resolution shallforanyreasonbeheldtobeinvalidor unenforceable,the invalidity or unenforceability of suchsection,paragraph,clauseor provision shallnotaffectany of the remaining provisions of this resolution. (c)All orders,resolutions and ordinances orparts thereof incon sistent herewith are hereby waived totheextentonly of such inconsistency.This waiver shallnot be construed as reviving anyorder,resolution or ordinance oranypart thereof. SWR:jmp 392374.04 06/14/01 -5- Section 13.The immediate operation of the provisions hereof isnecessaryforthe preservation of thepublicpeace,healthandsafetyandanemergencyisherebydeclaredtoexist, andthisresolutionwillbeinfullforceandeffectfromandafteritspassagebytheMayorand Councilanditishereby excepted fromthe referendum provisions of the Constitution. PASSEDANDADOPTEDon June^'2001. ATTEST: Clerk APPROVED AS TO FORM: Special (ftSpecialCounsel CERTIFICATION I,the Clerk of Town of Fountain Hills,Arizona,do hereby certify thattheabove andforegoing Resolution wasduly passed bythe Mayor and Council of theTownataregular meeting held on June^J,2001,and the vote was JT aye's and «3-nay's and that *7 Council Members were present thereat. DATED:(s>-3)~-C I Clerk,Town of Fountain Hills,Arizona SWR:jmp 392374.04 06/14/01