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HomeMy WebLinkAboutCC Resolution 6935 (Phoenix American Inc Project)RESOLUTION NO. 6935 A RESOLUTION AUTHORIZING THE ISSUANCE AND SALE OF CITY OF SAN RAFAEL, CALIFORNIA FLEXIBLE DEMAND INDUSTRIAL REVENUE BONDS (PHOENIX AMERICAN INCOR- PORATED PROJECT), SERIES 1984, IN THE AGGREGATE PRINCIPAL AMOUNT OF $5,000,000, TO PROVIDE FINANCING FOR AN OFFICE BUILDING FOR PHOENIX AMERICAN INCOR- PORATED; THE EXECUTION AND DELIVERY OF AN INDENTURE OF TRUST TO SECURE SAID BONDS; THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT BETWEEN PHOENIX AMERICAN INCORPORATED AND SAID CITY PROVIDING FOR THE REPAYMENT OF THE LOAN OF THE PROCEEDS OF SAID BONDS; THE EXECUTION OF A CONTRACT OF PURCHASE IN CONNECTION THEREWITH PROVIDING FOR THE SALE OF SUCH BONDS; AND RELATED MATTERS. WHEREAS, the Council of the City of San Rafael (the "Issuer") has, by Ordinance No. 1441 adopted by the Council on October 4, 1982, enacted the City of San Rafael Economic Development Revenue Bond Law (the "Act"), adding Chapter 3.30 to Title 3 of the San Rafael Municipal Code, authorizing and establish- ing a procedure for the sale and issuance of revenue bonds for the purpose of providing financing to participating parties for economic development purposes; and WHEREAS, the Issuer has heretofore approved the applica- tion of Phoenix American Incorporated, a California corporation (the "Participating Party"), for financial assistance in the acquisition, construction and equipping of a commercial office building to be located within the City of San Rafael, California (as further described in the Participating Party's application for such approval, the "Project"), and by Resolution No. 8721 of the Council adopted on January 3, 1984 (as now in full force and effect) has authorized the issuance of revenue bonds to provide such financial assistance; and WHEREAS, notice of a public hearing with respect to the proposed issuance of the hereinafter defined Bonds was published on September 15, 1984, in the Independent -Journal, a newspaper of general circulation in the City of San Rafael; and WHEREAS, on October 1, 1984, said public hearing was held before this Council, and an opportunity was provided _403 for interested persons to present arguments for and against the issuance of the Bonds and the nature and location of the Project; and WHEREAS, the interest on such Bonds may qualify for tax exemption under Section 103(b) of the Internal Revenue Code of 1954, as amended (the "Code"), only if such Bonds are approved in accordance with Section 103(k) of the Internal Revenue Code of 1954, as supplemented and amended (the "Code"); and WHEREAS, the Project is located wholly within the geographic jurisdiction of the City of San Rafael; and WHEREAS, this Council is the elected legislative body of the City of San Rafael, and is the applicable elected representative required to approve the issuance of the Bonds within the meaning of Section 103(k) of the Code; and WHEREAS, it is now proposed to provide financing for the Project through the issuance of the Issuer's Flexible Demand Industrial Revenue Bonds (Phoenix American Incorporated Project), Series 1984 in the aggregate principal amount of $5,000,000 (the "Bonds") and the loan of the proceeds thereof to the Participating Party for such purpose; and WHEREAS, a Loan Agreement, to be dated as of October 1, 1984 (the "Agreement"), with respect to the Project will be executed by and between the Company and the Participating Party, whereby the Participating Party will covenant and agree (i) to make payments thereunder sufficient to provide for the payment of principal of, and premium, if any, and interest on, the Bonds, as and when the same become due and payable and (ii) to make such other payments and satisfy such other obliga- tions as may be required by the Agreement; and WHEREAS, the Bonds will be issued under and pursuant to, and are to be secured by, an Indenture of Trust, to be dated as of October 1, 1984 (the "Indenture"), by and between -2- the Issuer and Chemical Bank of New York, New York, who is hereby appointed to act as Trustee on behalf of the owners of the Bonds (the "Trustee"); and WHEREAS, the Issuer will enter into a Contract of Purchase with respect to the Bonds (the "Contract of Purchase"), to be dated the date of execution thereof, with Dean Witter Reynolds Inc. (the "Underwriter"), pursuant to which the Issuer will sell the Bonds to the Underwriter; and WHEREAS, the Issuer has reviewed a draft of the proposed forms of Preliminary Official Statement (the "Pre- liminary Official Statement") and final Official Statement (the "Official Statement") to be circulated in connection with the sale of the Bonds and considers it necessary and desirable to authorize the distribution of the Preliminary Official Statement and the Official Statement; NOW, THEREFORE, the Council of the City of San Rafael, California, do resolve as follows: Section 1. That, in order to provide for the financing of the Project, the Bonds in the aggregate principal amount of $5,000,000 be and the same are hereby authorized and ordered to be issued pursuant to the Indenture in substantially the form presented to this meeting and on file with the City Clerk of the Issuer and containing substantially the terms and provisions set forth therein, and the form, terms and provisions of the Indenture are hereby approved, and the City Manager or the Mayor of the Issuer is hereby authorized to execute and deliver, and the City Clerk of the Issuer is hereby authorized and directed to attest and seal, the Indenture in substantially the form hereby approved or with such changes, not inconsistent with this Resolution, as such officers with the approval of their counsel shall approve, -3- their execution of the Indenture to constitute conclusive evidence of such approval. Section 2. That the Issuer lend the proceeds of the Bonds to the Participating Party to be used for the purpose of financing the Project pursuant to the Agreement in substantially the form presented to this meeting and on file with the City Clerk of the Issuer and containing substantially the terms and provisions set forth therein, and the form, terms and provisions of the Agreement are hereby approved, and the City Manager or Mayor of the Issuer is hereby authorized and directed to execute and deliver, and the City Clerk of the Issuer is hereby authorized and directed to attest and seal, the Agreement in substantially the form hereby approved or with such changes, not inconsistent with this Resolution, as such officers with the appproval of their counsel shall approve, their execution of the Agreement to constitute conclusive evidence of such approval. Section 3. That the Contract of Purchase in sub- stantially the form presented to this meeting and on file with the City Clerk of the Issuer and containing substantially the terms and provisions set forth therein, and the form, terms and provisions of such Contract of Purchase are hereby approved, and the City Manager or the Mayor of the Issuer is hereby authorized and directed to execute and deliver such Contract of Purchase in substantially the form hereby approved or with such changes, not inconsistent with this Resolution, as such officer with the approval of his counsel shall approve, his execution of such Contract of Purchase to constitute conclusive evidence of such approval. Section 4. That the City Manager or the Mayor of the Issuer, is hereby authorized to sell the Bonds to the Underwriter pursuant to the Contract of Purchase at a price -4- of 97.75% of par, and the City Manager or the Mayor of the Issuer is hereby authorized and directed to execute (by his manual or facsimile signature) and deliver, and the City Clerk is hereby authorized and directed to attest (by her manual or facsimile signature) and seal (or to cause a facsimile of the seal to be placed on), the Bond, in substantially the form contained in the Indenture and hereby approved or with such changes, not inconsistent with this Resolution, as such officers with the approval of their counsel shall approve, their execution of the Bonds to constitute conclusive evidence of such approval. The City Manager or the Mayor of the Issuer is hereby authorized and directed to deliver the Bonds approved as provided above to the Trustee for authentication and delivery to, or to the order of, the Underwriter in accordance with the provisions of the Indenture. Section 5. That the Preliminary Official Statement and the Official Statement for the Bonds in substantially the forms presented to this meeting and on file with the City Clerk of the Issuer and containing substantially the terms and provisions set forth therein, and the form, terms and provisions of such Preliminary Offical Statement and Official Statement are hereby approved, and the distribution of such Preliminary Official Statement and Official Statement is hereby authorized; provided, however, that this approval and authorization does not apply to the information with respect to the Participating Party or Wells Fargo Bank, N.A. contained or incorporated by reference in the Appendices to said Preliminary Official Statement and Official Statement, but nothing herein shall be construed as prohibiting the Underwriter from including such information pursuant to authorization from the Participating Party or Wells Fargo Bank, N.A. -5- Section 6. The Bonds shall mature on October 1, 2004, subject to prior redemption as provided for in the Indenture, and shall bear interest at the rate or rates determined as pro- vided for in the Indenture, the provisions of which are incor- porated in and made a part of this Resolution. The Remarketing Agent (described below in Section 7 hereof) shall determine the initial interest rate on the Bonds substantially in accordance with such provisions, except that it shall not be necessary to refer to an Interest Index (as defined in the Indenture); provided, that the initial interest rate for the Bonds shall not exceed 8%. In no event shall the interest rate borne by the Bonds at any time exceed the rate of thirteen percent (13%) per annum. Section 7. That Dean Witter Reynolds Inc. is hereby appointed the Remarketing Agent for the Bonds, in accordance with the provisions of Section 915 of the Indenture. Section 8. That Dean Witter Reynolds Inc. is hereby appointed the Indexing Agent for the Bonds, in accordance with the provisions of Section 922 of the Indenture. Section 9. That the Council of the Issuer hereby finds and determines that the financing of the Project will be in furtherance of the public purposes set forth in the Act by promoting the full and gainful employment of residents of the Issuer; the full and efficient utilization and moderni- zation of existing industrial, commercial and business facilities; the growth of the Issuer's tax base through increased property values and consumer purchasing; and the enhancement of the general economic prosperity, health, safety and welfare of the residents of the Issuer; and that it is necessary and essential and a proper public purpose that the Project be financed at the earliest practicable date. Section 10. That the City Manager, the Mayor or the City Clerk of the Issuer are hereby authorized and directed to execute, attest, seal and deliver any and all documents, including an appropriate certificate or certificates to substantiate the conclusion that the Bonds are not arbitrage bonds within the meaning of Section 103(c) of the Code and regulations promulgated or proposed thereunder, and including an Information Return for Private Activity Bond Issues (Form 8038) as required by Section 103(1) of the Code to be filed with the Internal Revenue Service, and to do any and all things deemed necesary to effect the issuance and sale of the Bonds and the execution and delivery of the Agreement, the Indenture and the Contract of Purchase and the financing of the Project and to carry out the intent and purposes of this Resolution, including the preambles hereto. Section 11. It is the purpose and intent of this Council that this Resolution constitute approval of the Project and the approval of the Bonds by the appropriate applicable elected representative in accordance with Section 103 (k ) of the Code. Section 12. That all officers and employees of the Issuer are hereby authorized to do any and all things, including without limitation, the execution of any certificates, financing statements, proceedings or statements deemed necessary or desirable to carry into effect the provisions of this Resolution and to comply with and perform the obligations of the Issuer under the Agreement, the Indenture, the Contract of Purchase and the Bonds. Section 13. That the City Clerk of the Issuer is hereby authorized and directed to record this Resolution and copies of the forms of Indenture, Agreement, Contract of Purchase, -7- Prel-iminary Official Statement and Official Statement in the records of the Council of the Issuer. Section 14. That the provisions of this Resolution are hereby declared to be separable, and if any section, phrase or provision shall for any reason be declared to be invalid, such declaration shall not affect the validity of the remainder of the sections, phrases and provisions hereof. Section 15. That this Resolution shall become effective immediately upon adoption. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City held on Monday, the first day of October, 1984, by the following vote, to wit: AYES: COUNCILMEMBERS:Breiner, Frugoli, Nave, Russom & Mayor NOES: COUNCILMEMBERS: None Mulryan ABSENT: COUNCILMEMBERS: None J M. LEONC I, City Clerk