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HomeMy WebLinkAboutResolution 99-104 1st amendment to town lease & series 1992RESOLUTION NO. 99 -104 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF MARANA, ARIZONA, AUTHORIZING THE EXECUTION AND DELIVERY OF A FIRST AMENDMENT TO AMENDED AND RESTATED TOWN LEASE AND SERIES 1992 TOWN LEASE AND, THEREAFTER AND SUBSEQUENT THERETO, A FIRST SUPPLEMENT TO AMENDED AND RESTATED TOWN LEASE AND SERIES 1992 TOWN LEASE, A LET- TER OF REPRESENTATION TO BOND PURCHASE CON- TRACT AND A SERIES 1999 CONTINUING DISCLOSURE AGREEMENT; APPROVING THE EXECUTION AND DELIV- ERY BY TOWN OF MARANA MUNICIPAL PROPERTY COR- PORATION OF A FIRST AMENDMENT TO AMENDED AND RESTATED TOWN LEASE AND SERIES 1992 TOWN LEASE AND, THEREAFTER AND SUBSEQUENT THERETO, A FIRST SUPPLEMENT TO AMENDED AND RESTATED TOWN LEASE AND SERIES 1992 TOWN LEASE, A SERIES 1999 SUPPLEMENTAL TRUST INDENTURE, A FINANCIAL GUARANTY OR RELATED AGREEMENT NEC- ESSARY FOR CREDIT ENHANCEMENT AND A BOND PUR- CHASE CONTRACT; APPROVING AN OFFICIAL STATE- MENT; APPROVING THE ISSUANCE OF NOT TO EXCEED $10,000,000 AGGREGATE PRINCIPAL AMOUNT OF TOWN OF MARANA MUNICIPAL PROPERTY CORPORATION MUNICIPAL FACILITIES REVENUE BONDS, SERIES 1997; DELEGATING TO THE MANAGER OF THE TOWN OF MARANA, ARIZONA, AND, IN HIS ABSENCE, THE FINANCE DIRECTOR OF THE TOWN OF MARANA, ARIZONA, THE AUTHORITY TO DETERMINE VARIOUS TERMS WITH RESPECT TO THE BONDS; PROVIDING FOR THE TRANSFER OF CERTAIN MONEYS FOR THE PAYMENT THEREOF AND MAKING CERTAIN COVENANTS AND AGREEMENTS WITH RESPECT THERETO; AUTHOR- IZING THE TAKING OF ALL OTHER ACTIONS NECES- SARY TO THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS RESOLUTION AND DECLARING AN EMERGENCY WHEREAS, the Town of Marana Municipal Property Corpora- tion, a nonprofit corporation incorporated and existing pursuant to the laws of the State of Arizona (the "Corporation ") , was formed to transact any or all lawful business for which nonprofit corporations may be incorporated under the laws of the State of Arizona, including, without limiting the generality of the fore- going, any civic or charitable purpose such as financing the cost of acquiring, constructing, reconstructing or improving build- ings, equipment or other real and personal properties suitable for use by and for leasing to the Town of Marana, Arizona (the "Town "), or its agencies or instrumentalities; and WHEREAS, the Town heretofore determined that it was beneficial to its citizens (i) to acquire the water system owned by Clifford Ray Honea and Ethel Wynema Honea, husband and wife, doing business as Honea Water Company (the "First Water System "), consisting of certain real property and certain personal property (the "Initial First Water System Improvements ") with respect to the First Water System and (ii) to acquire the facility presently being used as the municipal complex for the Town (the "Municipal Complex "), consisting of certain other real property (the "Municipal Complex Real Property ") and to make certain necessary improvements to the First Water System (the "New First Water Sys- tem Improvements" and collectively, with the Initial First Water System Improvements, the "First Water System Improvements" and the acquisition of the First Water System, the acquisition of the Municipal Complex and the making of the New First Water System Improvements, collectively, the "First Project "); and WHEREAS, the Corporation assisted the Town in financing the First Project; and WHEREAS, in order to finance the costs of the First Project, the Corporation issued its $280,000 aggregate principal amount of Town of Marana Municipal Property Corporation Municipal Facilities Revenue Bonds, Series 1990, dated as of March 1, 1990 its $315,000 aggregate principal amount of Town of Marana Munici- pal Property Corporation Municipal Facilities Revenue Bonds, Series 1992, dated as of June 1, 1992 (collectively, the "Out- standing Bonds "); and WHEREAS, the Town further heretofore determined that it was beneficial to its citizens (i) to refinance the Outstanding Bonds and (ii) (A) to acquire the water systems known as "Cortaro Marana," " Marana Water Service," "Tucson Water," "Lynn Lee" and "KLOS" (collectively, the "Second Water Systems "), consisting of certain real property and certain personal property (the "Second Water Systems Improvements" and collectively, with the First Water System Improvements, the "Water System Improvements ") with respect to the Second Water Systems and (B) to (I) make certain improvements to the Water System Improvements, (II) make certain road and related improvements, (III) acquire certain real prop- erty upon which to construct a town hall (the "Town Hall Prop- erty") and (IV) acquire a modular building (the "Modular Build- ing") , the property described in clauses (B)(I), (II) and (IV) being as described on Exhibit E attached to the hereinafter described Base Town Lease and collectively, with the acquisition of the Second Water Systems and the project described in clause (B)(II), being referred to herein as the "Second Project "; and 2 WHEREAS, the Corporation desires to assist the Town in refinancing the Outstanding Bonds and in financing the Second Project; and WHEREAS, in order to refinance the Outstanding Bonds and to finance the Project, the Corporation issued its $8,175,000 Town of Marana Municipal Property Corporation Municipal Facili- ties Revenue Bonds, Series 1997, dated as of October 1, 1997 (the "Series 1997 Bonds "); and WHEREAS, the Series 1997 Bonds and any additional obli- gations on a parity therewith shall be secured by a Trust Inden- ture, dated as of October 1, 1997 (the "Indenture ") , from the Corporation to Norwest Bank Arizona, N.A., as trustee (the "Trus- tee") , pursuant to which is pledged, among other things, rental payments made pursuant to an Amended and Restated Town Lease and Series 1992 Town Lease, dated as of October 1, 1997 (the "Base Town Lease ") , by and between the Corporation, as lessor, and the Town, as lessee; and WHEREAS, pursuant to Section 11.08 of the Indenture, the Corporation will not, without written consent of the Trustee and, if the Financial Guaranty Agreement (as such term is defined in the Indenture) or the Municipal Bond Insurance Policy (as such term is defined in the Indenture) remains in effect and MBIA (as such term is defined in the Indenture) is not in default there- under, of MBIA, alter, modify or cancel, or agree or consent to alter, modify or cancel the Base Town Lease or any other agree- ments theretofore or thereafter entered into by the Corporation which relate to or affect the security of the Series 1997 Bonds; with the written consent of the Trustee and, if the Financial Guaranty Agreement of the Municipal Bond Insurance Policy remains in effect and MBIA is not in default thereunder, of MBIA, the Corporation may consent to alterations and modifications thereof, provided that no such alterations or modifications will decrease the amounts available for payment of the Series 1997 Bonds or will render the income of the Corporation or the interest on the Series 1997 Bonds taxable to the recipient, and provided further that prior to giving its consent with respect to an alteration or modification of the Base Town Lease, the Trustee shall obtain an opinion of counsel or financial consultant selected by the Trus- tee that the proposed alteration or modification will not be materially adverse to the interests of the owners of the Series 1997 Bonds, will not decrease the amounts of available for pay- ment of the Series 1997 Bonds and will not render the income of the Corporation or the interest on the Series 1997 Bonds taxable under the income tax laws of the United States of America; not- withstanding the foregoing, the Base Town Lease may be amended without the hereinabove described consents or opinion to add the legal description to Exhibits C and D therein as provided by Sec- tion 1.09 thereof and Additional Bonds (as such term is defined in the Indenture) secured by Revenues (as such term is defined in the Indenture) within the limitations of Section 3.05 of the Base 3 Town Lease (including the hereafter described Series 1999 Bonds) shall not be deemed to have decreased the amounts available for payment of the Series 1997 Bonds, nor shall agreements supplemen- tal to or independent of the Base Town Lease, under which such Additional Bonds are to be issued, be deemed alterations or modi- fications of the Base Town Lease so as to require consent of the Trustee or MBIA; and WHEREAS, pursuant to a First Amendment to Amended and Restated Town Lease and Series 1992 Town Lease, to be dated as of the date established as the dated date of the hereinafter described Series 1999 Bonds as provided herein (the "First Amend- ment to Base Town Lease "), by and between the Corporation, as lessor, and the Town, as lessee, the legal description to Exhibit D to the Base Town Lease is being added and certain amendments are being made to the Base Town Lease; and WHEREAS, thereafter and subsequent thereto, the Town has now determined that it will be beneficial to its citizens to design, acquire, construct and equip a town hall on the Town Hall Property as described in Exhibit B attached to the hereinafter described Series 1999 Town Lease (the "Third Project "); and WHEREAS, the Corporation desires to assist the Town in financing the Third Project; and WHEREAS, in order to finance the costs of the Third Project, the Corporation and the Town deem it necessary and desirable for the Corporation to issue its Town of Marana Munici- pal Property Corporation Municipal Facilities Revenue Bonds, Series 1999, to be dated as of the date established as the dated date of the Series 1999 Bonds as provided herein (the "Series 1999 Bonds "); and WHEREAS, in connection with the issuance of the Series 1999 Bonds, the Corporation shall enter into a First Supplement to Amended and Restated Town Lease and Series 1992 Town Lease, to be dated as of the date established as the dated date of the Series 1999 Bonds as provided herein (the "First Supplement to Base Town Lease ") , with the Town pursuant to which (i) the Cor- poration will extend the lease of the Town Hall Property to the Town and lease improvements with respect to the Third Project (the "Town Hall Improvements ") to the Town and (ii) the Town shall (A) extend the lease of the Town Hall Property from the Corporation and lease the Town Hall Improvements for the Corpora- tion and (B) as agent for the Corporation, agree to design, ac- quire, construct and equip, as the case may be, the Third Proj- ect; and WHEREAS, the Series 1999 Bonds shall be secured by the Indenture, as supplemented by a Series 1999 Supplemental Trust Indenture, to be dated as of the date established as the dated date of the Series 1999 Bonds as provided herein (the "Series 4 1999 Supplemental Indenture ") , from the Corporation to the Trus- tee; and WHEREAS, the Corporation has not made and does not intend to make any profit by reason of any business or venture in which it may engage or by reason of the assistance it renders the Town in financing the Third Project, and no part of the net earn- ings of the Corporation, if any, shall ever inure to the benefit of any person, firm or corporation except the Town; and WHEREAS, there have been placed on file with the Clerk of the Town and presented at the meeting at which this Resolution was adopted (1) the proposed form of the First Amendment to Base Town Lease, (2) the proposed form of the Series 1999 Supplemental Indenture, (3) the proposed form of the First Supplement to Base Town Lease, (4) the proposed form of a Series 1999 Continuing Disclosure Agreement, to be dated the date of delivery of the Series 1999 Bonds (the "Undertaking ") , by and between the Town and the Trustee necessary for purposes of Securities and Exchange Commission Rule 15c2 -12, (5) the proposed form of the Bond Pur- chase Contract, to be dated the date of the sale of the Series 1999 Bonds (the "Purchase Contract "), by and between the Corpora- tion and Peacock, Hislop, Staley & Given, Inc. (the "Purchaser ") for the purchase of the Series 1999 Bonds, including the Letter of Representations, dated the date of adoption hereof (the "Let- ter of Representations "), from the Town and (6) the proposed form of the Preliminary Official Statement, to be dated the date of the mailing thereof (the "Preliminary Official Statement ") , re- lating to the Bonds, which, with certain additions thereto, shall constitute the Official Statement, dated the date of adoption hereof (the "Official Statement "), relating to the Series 1999 Bonds; NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, THAT: fiectinn 1 . The Mayor and Council of the Town hereby find and determine that the approval and authorization of the execution and delivery of the First Amendment to Base Town Lease and the financing of the Third Project and the issuance of the Series 1999 Bonds pursuant to the terms of the First Supplement to Base Town Lease and the Series 1999 Supplemental Indenture is in furtherance of the purposes of the Town and in the public in- terest. Section 2 . The forms, terms and provisions of the First Amendment to Base Town Lease, the First Supplement to Base Town Lease, the Undertaking and the Letter of Representations, in the form of such documents (including the exhibits thereto) pre- sented at the meeting at which this Resolution was adopted are hereby approved, with such insertions, omissions and changes as shall be approved by the Mayor of the Town, the execution of such documents being conclusive evidence of such approval, and the k, Mayor and Clerk of the Town are hereby authorized and directed, for and on behalf of the Town, to execute and deliver and attest, respectively, the First Amendment to Base Town Lease and, there- after and subsequent thereto, the First Supplement to Base Town Lease, the Undertaking and the Letter of Representations as well as any other documents necessary in connection therewith to pro- vide for the issuance of the Series 1999 Bonds. Section 3 . The forms, terms and provisions of the Series 1999 Supplemental Indenture and the Purchase Contract in the form of such documents (including exhibits thereto) presented at the meeting at which this Resolution was adopted are also hereby approved, with such insertions, omissions and changes as shall be approved by the President of the Corporation, the execu- tion of such documents (as well as of the First Amendment to Base Town Lease and, thereafter and subsequent thereto, the First Sup- plement to Base Town Lease) being conclusive evidence of such approval, and the President and Secretary of the Corporation are hereby authorized and directed, for and on behalf of the Corpo- ration, to execute and deliver and attest, respectively, the First Amendment to Base Town Lease and, thereafter and subsequent thereto, the First Supplement to Base Town Lease, the Series 1999 Supplemental Indenture and the Purchase Contract as well as any other documents necessary in connection therewith to provide for the issuance of the Series 1999 Bonds including any financial guaranty or related agreement necessary with respect to credit enhancement for the Series 1999 Bonds. Section 4 . The use of ment and the Official Statement the Series 1999 Bonds is hereby Corporation is hereby authorized of the Corporation, to sign the ized. the Preliminary Official State - in connection with the sale of approved. The President of the and directed, for and on behalf Official Statement when final- Section S . The Town hereby requests the Corporation to take any and all action necessary in connection with the issuance and sale of the Series 1999 Bonds and covenants that it shall do all things necessary to assist the Corporation therein. S__.'on 6 . (A) The Town hereby approves the issuance and delivery of the Series 1999 Bonds, as hereinafter described, by the Corporation. The Series 1999 Bonds shall be designated "Town of Marana Municipal Property Corporation Municipal Facili- ties Revenue Bonds, Series 1999 "; shall be issued in an aggregate principal amount of not to exceed $10,000,000; shall be in the denomination of $5,000 of principal amount or any integral multi- ple thereof and shall be fully registered bonds without coupons as provided in the Indenture. (B) The Manager of the Town and, in his absence, the Finance Director of the Town are hereby authorized to deter- mine on behalf of the Town and the Corporation the date the R Series 1999 Bonds are to be sold to the Purchaser; the total aggregate principal amount of the Series 1999 Bonds which are to be issued; the date the Series 1999 Bonds are to be dated; the dates on which interest on the Series 1999 Bonds is to be pay- able; the rates per annum the Series 1999 Bonds are to bear; the dates the Series 1999 Bonds are to mature, the principal amounts to mature on such dates and the provisions for redemption of the Series 1999 Bonds in advance of such dates; the terms upon which the Series 1999 Bonds are to be sold to the Purchaser (including determinations of price, original issue discount and premium and underwriting compensation); and the provisions pursuant to which the Series 1999 Bonds are to be credit enhanced (including deter- minations with respect to bond insurance and any surety bond or other instrument replacing the need for depositing cash to the reserve fund for the Series 1999 Bonds); provided, however, that the foregoing determinations shall not result in the yield on the Series 1999 Bonds, calculated for federal income tax purposes, exceeding seven percent. (C) The form, terms and provisions of the Series 1999 Bonds and the provisions for the signatures, authentication, payment, registration, transfer, exchange and number shall be as set forth in the Series 1999 Supplemental Indenture and are hereby approved. Section 7 . The Town hereby requests the Corporation to sell the Series 1999 Bonds to the Purchaser in accordance with the terms of the Purchase Contract as such terms are to be deter- mined as provided herein. Section s . (A) For the payment of the principal of and premium, if any, and interest on the Series 1999 Bonds, the Town shall pay and transfer to the Trustee the rental payments pro- vided for in Article I of the First Supplement to Base Town Lease. (B) To secure the payment of the rental payments provided for in Article I of the First Supplement to Base Town Lease and then any other amounts required to be paid by the Town pursuant to the provisions of the First Supplement to Base Town Lease, the Town hereby pledges for the payment of the rental pay- ments thereunder Town sales taxes, State shared revenues, license and permit fees and fines and forfeitures which the Town now col- lects, which the Town may collect in the future or which are allocated or apportioned to the Town by the State of Arizona, any political subdivision thereof or any other governmental unit or agency, EXCEPT the share of the Town of any taxes which by State of Arizona law, rule or regulation must be expended for other purposes, such as the motor vehicle fuel tax (collectively, the "Excise Taxes ") . The Town intends that this pledge shall be a first lien upon the Excise Taxes as will be sufficient to make the rental payments pursuant thereto. To the extent permitted by applicable law, the Excise Taxes shall be retained and maintained VA so that the amount received from the Excise Taxes all within and for the next preceding fiscal year shall be equal to at least two (2) times the total of rental payments payable thereunder in any current fiscal year. If at any time the Excise Taxes will not be sufficient to pay all current rental payments required pursuant to the First Supplement to Base Town Lease or if such amounts will not equal at least two (2) times the rental payments in any current fiscal year, the Town shall impose new exactions of the type of the Excise Taxes which shall be part of the Excise Taxes or increase the rates for the Excise Taxes currently imposed in order that (i) the Excise Taxes will be sufficient to pay all current rental payments and (ii) such amounts will be reasonably calculated to attain the level required as described hereinabove. (C) So long as any of the Series 1999 Bonds remain outstanding and the principal and interest thereon shall be unpaid or unprovided for, the Town shall not further encumber the Excise Taxes pledged pursuant to Article III of the First Supplement to Base Town Lease on a basis equal to the first lien pledge unless the Excise Taxes in the next preceding fiscal year shall have amounted to at least three (3) times the highest com- bined interest and principal requirements for any succeeding twelve (12) months' period for all of the Series 1997 Bonds and the Series 1999 Bonds then outstanding and any obligations issued on a parity of lien therewith which may include any Additional Bonds (as such term is defined in the Indenture) proposed to be secured by a pledge of the Excise Taxes. (D) The obligation of the Town to make the rental payments provided for in Article I of the First Supplement to Base Town Lease is limited to payment from the Excise Taxes, and the obligations of the Town under the First Supplement to Base Town Lease shall not constitute nor give rise to a general obli- gation of the Town or any claim against its ad valorem taxing powers, or constitute an indebtedness within the meaning of any statutory or constitutional debt limitation applicable to the Town. Sac 'on 9 . After any of the Series 1999 Bonds are delivered by the Trustee to the Purchaser thereof upon receipt of payment therefor, this Resolution shall be and remain irrepeal- able until the Series 1997 Bonds and the Series 1999 Bonds and the interest thereon shall have been fully paid, cancelled and discharged. Section 10 . If any section, paragraph, clause or pro- vision of this Resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Resolution. Sect; on I I . All orders and resolutions or parts thereof, inconsistent herewith, are hereby waived to the extent only of such inconsistency. This waiver shall not be construed as reviving any order or resolution or any part thereof. section 12. The immediate operation of this Resolution is necessary for the financing of the Third Project on the most attractive terms available to the Town and the preservation of the public health and welfare; an emergency is hereby declared to exist; this Resolution shall be in full force and effect from and after its passage and approval by the mayor and council of the Town as required by law and this Resolution is hereby exempt from the referendum provisions of the constitution and laws of the State of Arizona. 0 APPROVED AND ADOPTED BY THE MAYOR AND TOWN COUNCIL OF THE TOWN OF MARANA, ARIZONA, THIS 2ND DAY OF NOVEMBER, 1999. SIGNED AND ATTESTED THIS 2ND DAY OF NOVEMBER, 1999. Bobby ut on, Jr., Mayor, Town of Marana, Arizona ATTEST: Clerk oceliy C. Entz, clerk own of Marana, Arizona APPROVED AS TO FORM: � . . . . . . Daniel J. Hochuli, Esq., Town Attorney, Town of Marana, Arizona 751149.2-1/19/00 10 F ra 7J 6 L L�