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HomeMy WebLinkAboutResolution 2004-096 marana municipal property corporation series 2004 revenue bond issuanceRESOLUTION NO. 2004-96 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF MARANA, ARIZONA, AUTHORIZING THE EXECUTION AND DELIVERY OF A THIRD SUPPLEMENT TO AMENDED AND RESTATED TOWN LEASE AND SERIES 1992 TOWN LEASE, A LETTER OF REPRESENTATION TO BOND PURCHASE CON- TRACT AND A SERIES 2004 CONTINUING DISCLOSURE AGREEMENT; APPROVING THE EXECUTION AND DELIVERY BY TOWN OF MARANA MUNICIPAL PROPERTY CORPORATION OF SUCH THIRD SUPPLEMENT TO AMENDED AND RESTATED TOWN LEASE AND SERIES 1992 TOWN LEASE, A SERIES 2004 SUPPLEMENTAL TRUST INDENTURE, AN ESCROW TRUST AGREEMENT, A FINANCIAL GUARANTY OR RELATED AGREEMENT NECESSARY FOR CREDIT ENHANCEMENT AND A BOND PURCHASE CONTRACT; APPROVING AN OFFICIAL STATEMENT; 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 2004; DELEGATING TO THE MANAGER OF THE TOWN OF MARANA, ARIZONA, AND, IN HIS ABSENCE, THE FINANCE DIREC- TOR OF THE TOWN OF MARANA, ARIZONA, THE AUTHORITY TO DETERMINE VARIOUS TERMS WITH RESPECT TO THE BONDS AND CERTAIN MATTERS WITH RESPECT TO CERTAIN BONDS TO BE REFUNDED WITH THE PROCEEDS OF THE SALE THEREOF; PROVIDING FOR THE TRANSFER OF CER- TAIN MONEYS FOR THE PAYMENT THEREOF AND MAKING CERTAIN COVENANTS AND AGREEMENTS WITH RESPECT THERETO; AUTHORIZING THE TAKING OF ALL OTHER ACTIONS NECESSARY TO THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS RESOLUTION AND DECLARING AN EMERGENCY WHEREAS, the Town of Marana Municipal Property Corporation, 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, with- out limiting the generality of the foregoing, any civic or charitable purpose such as financing the cost of acquiring, constructing, recon- structing or improving buildings, 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 benefi- cial 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 and to make certain necessary improvements to the First Water System (the "New First Water System 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 Proj- ect, 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 Municipal Property Corpo- ration Municipal Facilities Revenue Bonds, Series 1992, dated as of June 1, 1992 (collectively, the "Outstanding 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" and "Marana Water Service" (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 re- spect to the Second Water Systems and (B) to (I) make certain improve- ments to the Water System Improvements, (II) make certain road and related improvements and construct improvements to increase traffic capacity on certain other roads, (III) acquire certain real property upon which to construct a new municipal complex (the "Town Hall Prop- erty'') and (IV) make tenant improvements to certain office space leased to the Town (the "Tenant Improvements"), 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 collec- tively, with the acquisition of the Second Water Systems and the proj- ect described in clause (B) (II), being referred to herein as the "Second Project"; and WHEREAS, the Corporation assisted 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 costs of the Second Project, the Corporation issued its $8,175,000 aggregate principal amount of Town of Marana Municipal Property Corporation Municipal Facilities Revenue Bonds, Series 1997, dated as of October 1, 1997 (the "Series 1997 Bonds"); and WHEREAS,. the Series 1997 Bonds and certain additional bonds on a parity therewith have been as hereinafter described and shall be secured by a Trust Indenture, dated as of October 1, 1997 (as supple- mented, the "Indenture"), from the Corporation to Wells Fargo Bank, National Association (formerly Norwest Bank Arizona, N.A.), as trustee (the "Trustee"), 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 (as amended and supplemented, the "Base Town Lease"), by and between the Corpora- tion, as lessor, and the Town, as lessee; and WHEREAS, the Town also heretofore determined that it was beneficial to its citizens to design, acquire, construct and equip the new municipal complex on the Town Hall Property (the "Third Project"); provided, however, that pursuant to the Second Amendment to Amended and Restated Town Lease and Series 1992 Town Lease, dated as of April 1, 2002, by and between the Corporation, as lessor, and the Town, as lessee, certain additional property (the "Operations Center Property") has been ground leased by the Town to the Corporation and leased back by the Corporation to the Town, the Operations Center Property thereafter being considered part of the Town Hall Property for all purposes of the First Supplement to Amended and Restated Town Lease and Series 1992 Town Lease, dated as of February 1, 2000 (the "First Supplement to Base Town Lease"), by and between the Corporation and the Town and certain changes have been made to the description of the Town Hall Improvements to include a town operations center to house public works, police, water, vehicle asset management and information systems; and WHEREAS, the Corporation assisted the Town in financing the Third Project; and WHEREAS, in order to finance the costs of the Third Proj- ect, the Corporation issued its $10,000,000 aggregate principal amount of Town of Marana Municipal Property Corporation Municipal Facilities Revenue Bonds, Series 2000, dated as of February 1, 2000 (the "Series 2000 Bonds"), which are secured by the First Supplement to Base Town Lease; and WHEREAS, pursuant to a Third Amendment to Amended and Restated Town Lease and Series 1992 Town Lease, dated as of September 1, 2003, by and between the Corporation, as lessor, and the Town, as lessee, a portion of the Operations Center Property has been released from the provisions of the First Supplement to Base Town Lease and certain other changes made for all purposes of the First Supplement to Base Town Lease; and WHEREAS, the Town also heretofore determined that it was beneficial to its citizens to design, acquire, construct and equip, as the case may be, additional parts of the new municipal complex on the Town Hall Property (the "Fourth Project"); and WHEREAS,~the Corporation assisted the Town in financing the Fourth Project; and WHEREAS, in order to finance the costs of the Fourth Project, the Corporation issued its $19,700,000 aggregate principal amount of Town of Marana Municipal Property Corporation Municipal Facilities Revenue Bonds, Series 2003," dated as of the September 1, 2003 (the "Series 2003 Bonds"); and WHEREAS, the Town has now determined that it will be beneficial to its citizens to design, acquire, construct and equip, as the case may be, final parts of the new municipal complex on the Town Hall Property as described in Exhibit B attached to the hereinafter described Series 2004 Town Lease (the "Fifth Project") and to refinance a portion of the bonds heretofore issued by the Corporation (the "Bonds Being Refunded"); and WHEREAS, the Corporation desires to assist the Town in financing the Fifth Project and refinancing the Bonds Being Refunded (the "Second Refunding"); and WHEREAS, in order to finance the costs of the Fifth Project and the Second Refunding, the Corporation and the Town deem it neces- sary and desirable for the Corporation to issue its not to exceed $10,000,000 aggregate principal amount of Town of Marana Municipal Property Corporation Municipal Facilities Revenue Bonds, Series 2004, to be dated as of the date established as the dated date for such bonds as provided herein (the "Series 2004 Bonds"); and WHEREAS, in connection with the issuance of the Series 2004 Bonds, the Corporation shall enter into a Third 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 2004 Bonds as provided herein (the "Third Supplement to Base Town Lease"), with the Town pursuant to which, among other things (i) the Corporation will extend the lease of the Town Hall Property to the Town and lease improvements with respect to the Fifth Project (the "Final 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 Final Town Hall Improvements from the Corporation and (B) as agent for the Corporation, agree to design, acquire, construct and equip, as the case may be, the Fifth Project and provide for matters related to the Second Refunding; and WHEREAS, the Series 2004 Bonds shall be secured by the Indenture, as supplemented by a Series 2004 Supplemental Trust Inden- ture, to be dated as of the date established as the dated date of the Series 2004 Bonds as provided herein (the "Series 2004 Supplemental Indenture"), from the Corporation to the Trustee; and 4 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 Fifth Project and the Second Refunding, and no part of the net earnings 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 Series 2004 Supplemental Inden- ture, (2) the proposed form of the Third Supplement to Base Town Lease, (3) the proposed form of the Escrow Trust Agreement, to be dated as of the date established as the dated date of the Series 2004 Bonds as provided herein (the "Escrow Trust Agreement"), by and between the Corporation and Wells Fargo Bank, National Association, as escrow trustee (the "Escrow Trustee"), (4) the proposed form of a Series 2004 Continuing Disclosure Agreement, to be dated the date of delivery of the Series 2004 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 Purchase Contract, to be dated the date of the sale of the Series 2004 Bonds (the "Purchase Contract"), by and between the Corporation and Stone & Youngberg LLC (the "Purchaser") for the purchase of the Series 2004 Bonds, including the Letter of Representations, to be dated the date of the sale of the Series 2004 Bonds (the "Letter of Representa- tions''), 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"), relating 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 2004 Bonds; NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, THAT: Section 1. The Mayor and Council of the Town hereby find and determine that the approval and authorization of the financing of the Fifth Project ~and the Second Refunding and the issuance of the Series 2004 Bonds pursuant to the terms of the Third Supplement to Base Town Lease and the Series 2004 Supplemental Indenture is in fur- therance of the purposes of the Town and in the public interest. Section 2. The forms, terms and provisions of the Third Supplement to Base Town Lease, the Undertaking and the Letter of Representations, in the form of such documents (including the exhibits thereto) presented 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 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 Third Supplement to Base Town Lease, the Undertaking and the Letter of Representations as well as any other documents necessary in 5 connection therewith to provide for the issuance of the Series 2004 Bonds. Section ~3. The forms, terms and provisions of the Series 2004 Supplemental Indenture, the Escrow Trust Agreement and the Pur- chase 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 or Vice President of the Corpo- ration, the execution of such documents (as well as of the Third Sup- plement to Base Town Lease) being conclusive evidence of such approval, and the President or Vice President and Secretary of the Corporation are hereby authorized and directed, for and on behalf of the Corporation, to execute and deliver and attest, respectively, the Third Supplement to Base Town Lease, the Series 2004 Supplemental Indenture and the Purchase Contract as well as any other documents necessary in connection therewith to provide for the issuance of the Series 2004 Bonds including any financial guaranty or related agree- ment necessary with respect to credit enhancement for the Series 2004 Bonds. Section 4. The use of the Preliminary Official Statement and the Official Statement in connection with the sale of the Series 2004 Bonds is hereby approved. The President and Vice President of the Corporation are hereby authorized and directed, for and on behalf of the Corporation, to sign the Official Statement when finalized. Section 5. The Town hereby requests the Corporation to take any and all action necessary in connection with the issuance and sale of the Series 2004 Bonds and covenants that it shall do all things necessary to assist the Corporation therein. Section 6. (A) The Town hereby approves the issuance and delivery of the Series 2004 Bonds, as hereinafter described, by the Corporation. The Series 2004 Bonds shall be designated "Town of Marana Municipal Property Corporation Municipal Facilities Revenue Bonds, Series 2004"; 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 multiple 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 determine on behalf of the Town and the Corporation the date the Series 2004 Bonds are to be sold to the Purchaser; the total aggregate principal amount of the Series 2004 Bonds which are to be issued (but not in excess of the amount indicated hereinabove); the date the Series 2004 Bonds are to be dated; the dates on which interest on the Series 2004 Bonds is to be payable; the rates per annum the Series 2004 Bonds are to bear; the dates the Series 2004 Bonds are to mature, the principal amounts to mature on such dates and the provisions for redemption of the Series 2004 Bonds in advance of such dates; the series designations, maturity dates and principal amounts of the Bonds Being Refunded and the determination of exercise of redemption provisions with respect to the Bonds Being Refunding; the terms upon which the Series 2004 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 2004 Bonds are to be credit enhanced (including determinations with respect to bond insur- ance and any surety bond or other instrument replacing the need for depositing cash to the reserve fund for the Series 2004 Bonds); pro- vided, however, that the foregoing determinations shall not result in the yield on the Series 2004 Bonds, calculated for federal income tax purposes, exceeding six percent. (C) The form, terms and provisions of the Series 2004 Bonds and the provisions for the signatures, authentication, payment, registration, transfer, exchange and number shall be as set forth in the Series 2004 Supplemental Indenture and are hereby approved. Section 7. The Town hereby requests the Corporation to sell the Series 2004 Bonds to the Purchaser in accordance with the terms of the Purchase Contract as such terms are to be determined as provided herein. Section 8. (A) For the payment of the principal of and premium, if any, and interest on the Series 2004 Bonds, the Town shall pay and transfer to the Trustee the rental payments provided for in Article I of the Third Supplement to Base Town Lease. (B) To secure the payment of the rental payments provided for in Article I of the Third Supplement to Base Town Lease and then any other amounts required to be paid by the Town pursuant to the provisions of the Third Supplement to Base Town Lease, the Town hereby pledges for the payment of the rental payments thereunder Town sales taxes, State shared revenues, license and permit fees and fines and forfeitures which the Town now collects, 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 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 Third 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 suffi- cient 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 2004 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 Third 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 combined interest and principal requirements for any succeeding twelve (12) months' period for all of the Series 1997 Bonds, the Series 2000 Bonds, the Series 2003 Bonds and the Series 2004 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 Second Supplement to Base Town Lease is limited to payment from the Excise Taxes, and the obligations of the Town under the Third Supplement to Base Town Lease shall not constitute nor give rise'to a general obligation 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. Section 9. After any of the Series 2004 Bonds are deliv- ered by the Trustee to the Purchaser thereof upon receipt of payment therefor, this Resolution shall be and remain irrepealable until the Series 1997 Bonds, the Series 2000 Bonds, the Series 2003 Bonds and the Series 2004 Bonds and the interest thereon shall have been fully paid, cancelled and discharged. Section 10. If any section, paragraph, clause or provision 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. Section 11. Ail 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 Fifth Project and the Second Refunding 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 8 the referendum provisions of the constitution and laws of the State of Arizona. 9 APPROVED AND ADOPTED BY THE MAYOR AND TOWN COUNCIL OF THE TOWN OF MARANA, ARIZONA, THIS 6TH DAY OF JULY, 2004. SIGNED AND ATTESTED THIS 6TH DAY OF JULY, 2004. B bby S~t~n,~r , Mayor, Town of Marana, Arizona ATTEST: APPROVED AS TO FORM: ~n of ~rana, Ari~ 1448366.1-6/30/04 10