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HomeMy WebLinkAboutCity Council - 98-64 RESOLUTION NO. 98-64 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH, CALIFORNIA PROVIDING FOR THE ISSUANCE AND SALE OF 1998-99 TAX AND REVENUE ANTICIPATION NOTES THEREFOR WHEREAS, pursuant to Section 53850, et sect of the Government Code of the State of California (the "Act"), the City Council of the City of Huntington Beach (the "Council") has found and determined that the sum of up to $18,750,000 is needed for the requirements of the City of Huntington Beach, California (the "City") to satisfy obligations payable from the General Fund of the City, and that it is necessary that an amount up to said sum be borrowed for such purpose at this time by the issuance of notes therefor in anticipation of the receipt of taxes, income, revenue, cash receipts and other moneys to be received by the City for the General Fund of the City during or allocable to Fiscal Year 1998-99; and NOW, THEREFORE, the City Council of the City of Huntington Beach hereby finds, determines, declares and resolves as follows: Section 1. Recitals True and Correct. All of the recitals herein set forth are true and correct, and the Council so finds and determines. Section 2. Limitation on Maximum Amount. The principal amount of notes issued pursuant hereto, when added to the interest payable thereon, shall not exceed eighty-five percent (85%) of the estimated amount of the uncollected taxes, income, revenue, cash receipts and other moneys of the City for the General Fund of the City attributable to Fiscal Year 1998-99, and available for the payment of said notes and interest thereon. Section 3. Authorization of Notes; Terms. Solely for the purpose of anticipating taxes, income, revenues, cash receipts and other moneys to be received by the City for the General Fund of the City during or allocable to Fiscal Year 1998-99, and not pursuant to any common plan of financing, the City hereby determines to and shall borrow the aggregate principal sum of not to exceed $18,750,000. Such borrowing shall be in effect by issuance of notes under Section 53850, e_t seg. of the Government Code of the State of California, designated "City of Huntington Beach 1998-99 Tax and Revenue Anticipation Notes" (the "Notes"), to be numbered from 1 consecutively upward in order of issuance, to be in denominations of Five Thousand Dollars ($5,000) and multiples thereof, to be dated their date of issue, to mature (without option of prior redemption) no later than twelve (12) months from said date of issue as set forth in the Notice Inviting Bids and to bear interest, payable at maturity and computed on a 30-day monthl360-day year basis, at the rate or rates determined in accordance with the Notice Inviting Bids referred to below. Both the principal of and interest on the Notes shall be payable, only upon surrender thereof, in lawful money of the United States of America, at the office of the Treasurer of the City of Huntington Beach in Huntington Beach, California (the "Paying Agent"). Section 4. Form of Notes: Book Entry Only S, stem. The Notes shall be issued without coupons and shall be substantially in the form,ian substance set forth in Exhibit A attached hereto and by reference incorporated herein, the balance in said form to be filled in with appropriate words and figures. 1 sfflkiresoltaxnoteslOR12719$ Ices. 98-64 Except as provided below, the owner of all of the Notes shall be The Depository Trust Company, New York, New York ("DTC") and the Notes shall be registered in the name of CEDE& Co., as nominee for DTC. The Notes shall be initially executed and delivered in the form of a single fully registered Note in the full aggregate principal amount of the Notes. The City may treat DTC (or its nominee) as the sole and exclusive owner of the Notes registered in its name for all purposes of this Resolution, and the City shall not be affected by any notice to the contrary. The City shall not have any responsibility or obligation to any participant of DTC (a "Participant"), any person claiming a beneficial ownership interest in the Notes under or through DTC or any Participant, or any other person which is not shown on the register of the Paying Agent as being an owner, with respect to the accuracy of any records maintained by DTC or any Participant or the payment or failure to pay by DTC or any Participant of any amount in respect of the principal or interest with respect to the Notes. The Paying Agent shall pay all principal and interest with respect to the Notes only to DTC, and all such payments shall be valid and effective to fully satisfy and discharge the City's obligations with respect to the principal and interest with respect to the Notes to the extent of the sum or sums so paid. Except under the conditions noted below, no person other than DTC shall receive a Note. Upon delivery by DTC to the Paying Agent of written notice to the effect that DTC has determined to substitute a new nominee in place of CEDE & Co., the term "CEDE & Co." in this Resolution shall refer to such new nominee of DTC. If the City determines that it is in the best interest of the beneficial owners that they be able to obtain Notes and delivers a written certificate to DTC to that effect, DTC shall notify the Participants of the availability through DTC of Notes. In such event, the City shall issue, transfer and exchange Notes as requested by DTC and any other owners in appropriate amounts. DTC may determine to discontinue providing its services with respect to the Notes at any time by giving notice to the City and discharging its responsibilities with respect thereto under applicable law. Under such circumstances (if there is no successor securities depository), the City shall provide for the printing of definitive Notes and shall use its best efforts to deliver definitive Notes to the Participants for redistribution to the beneficial owners. Whenever DTC requests the City to do so, the City will cooperate with DTC in taking appropriate action after reasonable notice to (a) make available one or more separate Notes evidencing the Notes to any Participant having Notes credited to its DTC account or (b) arrange for another securities depository to maintain custody of certificates evidencing the Notes. Notwithstanding any other provision of this Resolution to the contrary, so long as any Note is registered in the name of CEDE & Co., as nominee of DTC, all payments with respect to the principal and interest with respect to such Note and all notices with respect to such Note shall be made and given, respectively, to DTC as provided in the Representation Letter delivered on the date of issuance of the Notes. Section 5. Approval of Notice Inviting Bids. The Notes shall be sold at a public sale upon the direction of the Deputy City Administrator/Administrative Services; said.public sale to be at the time and place and upon the terms provided in the Official Notice Inviting Bids for the Notes, which Notice Inviting Bids shall be substantially in the form set forth as Exhibit B hereto and by reference incorporated herein (the "Notice Inviting Bids"). Sealed bids for the purchase of the Notes shall be received by the Treasurer at the time and place set forth in said Notice Inviting Bids. The Deputy City Administrator/Administrative Services is authorized to distribute copies of said Notice Inviting Bids. The City hereby authorizes publication in THE BOND BUYER of a Notice of Intention To Sell (the "Notice of Intention to Sell") in substantially the form attached hereto as Exhibit C and made a part hereof by this reference, said Notice of Intention to Sell being required to be made in a financial publication generally circulated throughout the State at least 15 2 sffW1-es0/taxn0tes/08/27/98 Res. 98-64 days prior to the award of the Notes at competitive bid pursuant to Section 53692 of the Government Code. The Deputy City Administrator/Administrative Services is hereby authorized to award the Notes in an aggregate principal amount not exceeding the aforesaid sum to the bidder for the Notes providing the lowest net interest rate as noticed in the Notice Inviting Bids, provided that the interest rate on the Notes shall not exceed five percent (5%) per annum. Upon award of the Notes to the successful bidder, (a) the Deputy City Administrator/Administrative Services is hereby authorized and directed to attach to this Resolution a certificate stating the principal amount of the Notes, the maturity date of the Notes and the interest rate on the Notes, and (b) the City officials identified in Section 9 herein are authorized and directed to execute and deliver the Notes to the successful bidder. In the event two or more bids setting forth identical net interest rates are received and aggregating in excess of the principal amount of the Notes, the Deputy City Administrator/Administrative Services shall offer the Notes to such bidders on a pro-rata basis, to the extent practicable. Section 6. Use of Note Proceeds. The moneys so borrowed shall be deposited in the General Fund of the City and used and expended by the City for any purpose for which it is authorized to use and expend funds from the General Fund of the City. Section 7. Pledged Moneys. The principal amount of the Notes, together with the interest thereon, shall be payable from taxes, income, revenue, cash receipts and other moneys which are received by the City for the General Fund of the City for the Fiscal-Year 1998-99. As security for the payment of the principal of and interest on the Notes the City hereby pledges: an amount not to exceed the first $9,375,000.00 (or such amended amount as provided in the executed Note) of unrestricted moneys to be received by the City in the month ending April 30, 1999, an amount not to exceed the first $4,690,000.00 of unrestricted moneys to be received by the City in the month ending July 31, 1999, and an amount not to exceed the first $4,685,000.00 of unrestricted moneys to be received by the City in the month ending August 31, 1999, (or such amended amounts as set forth in the executed Note provided the aggregated amounts do not exceed $18,750,000), and an amount equal to the interest payable on the Notes at maturity, from unrestricted moneys to be received by the City in the month ending September 30, 1999 (such pledged amounts being hereinafter called the "Pledged Revenues"), and the principal of the Notes and the interest thereon shall constitute a first lien and charge thereon and shall.be payable from the Pledged Revenues, and to the extent not so paid shall be paid from any other moneys of the City lawfully available therefor. In the event there are insufficient unrestricted moneys received by the City to permit the deposit into the Repayment Fund, (as hereinafter defined) of the full amount of the Pledged Revenues to be deposited into such Repayment Fund during any accounting period used by the City, by the next to last businEss day of such accounting period, then the amount of any deficiency shall be satisfied and made up from any other moneys of the City lawfully available for the repayment of the Notes and interest thereon. The term "unrestricted moneys" shall mean taxes, income, revenue, cash receipts and other moneys, intended as receipts for the General Fund of the City and which are generally available for the payment of current expenses, capital expenditures and other obligations or indebtedness of the City. 3 9f WresoAtaxnoies/09/27/9& Res. 98-64 Section 8. Deposit of Pledged Revenues in Repayment Fund. There is hereby created a special fund to be held by the Treasurer of the City, as Paying Agent, designated the "City of Huntington Beach 1998-99 Tax and Revenue Anticipation Notes Repayment Fund" (hereinafter referred to as the "Repayment Fund"). Any moneys placed in the Repayment Fund shall be applied as directed in this Resolution and shall be held solely for the benefit of the owners of the Notes until the Notes and all interest thereon are paid or until provision has been made for the payment of the Notes at maturity with interest to maturity; provided however, that any interest earned on amounts deposited in the Repayment Fund may periodically be transferred to the City's General Fund. From the date this Resolution takes effect, all Pledged Revenues shall, during the months in which received, be deposited in the Repayment Fund. On the date of maturity of the Notes, the moneys in the Repayment Fund shall be used, to the extent necessary, to pay the principal of and interest on the Notes. Any moneys remaining in the Repayment Fund after the Notes and the interest thereon have been paid, or provision for such payment has been made, shall be transferred to the City's General Fund. Moneys in the Repayment Fund shall, to the greatest extent possible, be invested as permitted by California Government Code Section 53601 except that no such investment shall have a maturity date later than the maturity date of the Notes. The proceeds of any such investment shall be deposited by the Paying Agent in the Repayment Fund. Section 9. Execution of Notes. The Mayor, City Administrator or the Deputy City Administrator/Administrative Services of the City are hereby authorized to sign the Notes by manual or facsimile signature, and the City Clerk of the City is hereby authorized to countersign the same by manual or facsimile signature and to affix the seal of the City thereto, and such signing and sealing shall constitute a valid and sufficient execution of the Notes. Said officers are hereby authorized to cause the blank spaces thereof to be filled in as may be appropriate, and to deliver the Notes to the successful bidder in accordance with the Notice of Sale. Section 10. Covenant as_t_a_Representations. It is hereby covenanted and warranted by the City that all representations and recitals contained in this Resolution are true and correct, and that the City and its appropriate officials have duly taken all proceedings necessary to be taken by them, and will take any additional proceedings necessary to be taken by them, for the levy, collection and enforcement of the taxes, income, revenue, cash receipts and other moneys pledged hereunder in accordance with law and for carrying out the provisions of this Resolution. Section 11. Transfer of Notes. If the City determines to no longer maintain the book entry only status of the Notes, if DTC determines to discontinue providing such services and no successor securities depository is named or if DTC requests the City to deliver Note certificates to particular DTC Participants, any Note may, in accordance with its terms, be transferred, upon the books required to be kept pursuant to the provisions of Section 13 hereof, by the person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Note for cancellation at the office of the City, accompanied by delivery of a written instrument of transfer in a form approved by the City, duly executed. Whenever any Note or Notes shall be surrendered for transfer, the City shall execute and deliver a new Note or Notes, for like aggregate principal amount. Section 12, Exchange of Notes. Notes may be exchanged at the office of the City for a 4 stfk'resu/taanotes/0 9/27/98 Res. 98-64 like aggregate principal amount of Notes of authorized denominations and of the same maturity. Section 13. Note Register.ster. The City shall keep or cause to be kept sufficient books for the registration and transfer of the Notes if the book entry only system is no longer in effect and, in such case, the City shall register or transfer or cause to be registered or transferred, on said }nooks, Notes as herein before provided. While the book entry only system is in effect, such books need not be kept as the Notes will be represented by one Note registered in the name of Cede & Co., as nominee for DTC. Section 14. Temporary Notes. The Notes may be initially issued in temporary form exchangeable for definitive Notes when ready for delivery. The temporary Notes may be printed, lithographed or typewritten, shall be of such denominations as may be determined by the City, and may contain such reference to any of the provisions of this Resolution as may be appropriate. Every temporary Note shall be executed by the City upon the same conditions and in substantially the same manner as the definitive Notes. If the City issues temporary Notes, it will execute and furnish definitive Notes without delay, and thereupon the temporary Notes may be surrendered, for cancellation, in exchange therefor at the office of the City and the City shall deliver in exchange for such temporary Notes an equal aggregate principal amount of definitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall be entitled to the same benefits pursuant to this Resolution as definitive Notes executed and delivered hereunder. Section 15, Notes Mutilated, Lost Destroyed or Stolen. If any Note shall become mutilated, the City, at the expense of the registered owner of said Note, shall execute and deliver, a new Note of like maturity and principal amount in exchange and substitution for the Note so mutilated, but only upon surrender to the City of the Note so mutilated. Every mutilated Note so surrendered to the City shall be canceled by it and delivered to, or upon the order of, the City. if any Note shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the City and, if such evidence be satisfactory to the City and indemnity satisfactory to it shall be given, the City, at the expense of the registered owner, shall execute and deliver a new Note of like maturity and principal amount in lieu of and in substitution for the Note so lost, destroyed or stolen. The City may require payment of a sum not exceeding the actual cost of preparing each new Note issued under this Section 15 and of the expenses which may be incurred by the City in the premises. Any Note issued under the provisions of this Section 15 in lieu of any Note alleged to be lost, destroyed or stolen shall constitute an original additional contractual obligation on the part of the City whether or not the Note so alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be equally and proportionately entitled to the benefits of this Resolution with all other Notes issued pursuant to this Resolution. ' Section 16. Tax Covenants. (a) No Arbitrage. The City shall not take, nor permit nor suffer to be taken any action with respect to the proceeds of the Notes, which, if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken, on the date of issuance of the Notes (the "Closing Date") would have caused the Notes to be "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended (the "Code"). 3 sffWresoAmotes/0 8/27/98 Res. 98-64 (b) Rebate Requirement. The City shall take any and all actions necessary to assure compliance with Section 148(f) of the Code, relating to the rebate of excess investment earnings, if any, to the federal government to the extent that such section is applicable to the Notes. (c) Private Activity Bond Limitation. The City shall assure that proceeds of the Notes are not so used as to cause the Notes to satisfy the private business tests of Section 141(b) of the Code or the private loan financing test of Section 141(c) of the Code. (d) Federal Guarantee Prohibition. The City shall not take any action or permit or suffer any action to be taken if the result of the same would be to cause any of the Notes to be "federally guaranteed" within the meaning of Section 149(b) of the Code. (e) Maintenance of Tax-Exemption. The City shall take all actions necessary to assure the exclusion of interest on the Notes from the gross income of the owners of the Notes to the same extent as such interest is permitted to be excluded from gross income under the Code as in effect on the Closing Date. Section 17. Preliminary Official Statement and Official Statement. The Preliminary Official Statement, in substantially the form presented at this Council meeting at which this Resolution is adopted, is incorporated into this Resolution by reference and is hereby approved for distribution and use in connection with the offering and sale of the Notes. The Mayor, City Administrator or Deputy City Administrator/Administrative Services is hereby authorized to execute an appropriate certificate stating his determination that the Preliminary Official Statement has been deemed nearly final within the meaning of Rule 15c2-12 of the Securities Exchange Act of 1934. The facts contained in the Preliminary Official Statement are true and correct in all material respects and the Preliminary Official Statement omits no statement of a material fact necessary to make the Preliminary Official Statement not misleading in light of the circumstances under which it was made, provided, however, that the Preliminary Official Statement does not contain final interest rates with respect to the Notes and that amounts set forth therein are subject to change. The Mayor, City Administrator or Deputy City Administrator/Administrative Services or other qualified officer of the City is authorized to approve corrections and additions to the Preliminary Official Statement, acting with the advice of the Financing Consultant and Bond Counsel, by supplement or amendment thereto, or otherwise as may be appropriate, provided either that any such corrections or additions shall be necessary to cause the information contained in the Preliminary Official Statement to conform with facts material to the Notes or to requirements of proceedings of this City, or that such corrections or additions are of form rather than of substance. The Mayor, City Administrator or Deputy City Administrator/Administrative Services is hereby authorized to execute the final form of the Official Statement, including as it may be modified by such additions thereto and changes therein as the Mayor, City Administrator or Deputy City Administrator/Administrative Services, acting with the advice of the Financing Consultant and Bond Counsel, shall deem necessary, desirable or appropriate, and the execution of the final Official Statement by the Mayor, City Administrator or Deputy City Administrator/Administrative Services shall be conclusive evidence of the approval of any of such additions and changes. The City hereby authorizes the distribution of the Official Statement. The final Official Statement shall be executed in the name and on behalf of the City by the Mayor, City Administrator or Deputy City Administrator/Administrative Services. 6 sf&Jreso/tAXnoies/08/27/98 Res. 98-64 Section 18. Continuinq Disclosure. The City hereby covenants and agrees that it will comply with and carry out all of the provisions of that certain Continuing Disclosure Certificate substantially in the form set forth as Exhibit D hereto and by reference incorporated herein, executed by the City and dated the date of issuance and delivery of the Notes, as originally executed and as it may be amended from time to time in accordance with the terms thereof. Any Noteholder may take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the City to comply with its obligations under this Section. Noncompliance with this Section shall not result in acceleration of the Notes Section 19, Other Actions. All actions heretofore taken by the officers and agents of the City with respect to the sale and issuance of the Notes are hereby approved, confirmed and ratified, and the officers of the City are hereby authorized and directed, for and in the name and on behalf of the City, to do any and all things and take any and all actions and execute and deliver 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 Notes in accordance with this Resolution. Section 20. Effectiveness. This Resolution shall be effective immediately upon its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the Sth day of September , 1998. Mayor APPROVED AS TO FORM: ATTEST: t City AttorneyJ' f City Clerk i i REVIEWED AND APPROVED: INITIATED D A PR J ff... City Administrator ep ty dmini ration Admini ative S rvices 7 sffWreso/taxnotes109/27/98 Res. No. 98-64 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, CONNIE BROCKWAY, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven;that the foregoing resolution was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council at a regular meeting thereof held on the 8th day of September, 1998 by the following vote: AYES: Julien,Harman,Dettloff,Bauer NOES: None ABSENT: Green (Garafalo and Sullivan Out Of The Room) 40� City Clerk and ex-officio Clerk of the City Council of the City of Huntington Beach, California G/resol Wresbkpg/97-80