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20030211 r-03-6RESOLUTION NO. R-03-6 RESOLUTION AUTHORIZING THE ISSUANCE AND SALE OF A GENERAL OBLIGATION PUBLIC IMPROVEMENT REFUNDING BOND, SERIES 2003, OF THE CITY OF FAIRFAX, VIRGINIA, IN A PRINCIPAL AMOUNT NOT TO EXCEED $3,500,000, PROVDING FOR THE FORM, DETAILS AND PAYMENT THEREOF, AND PROVIDING FOR THE REFUNDING OF THE CITY'S GENERAL OBLIGATION WATER REFUNDING BONDS, SERIES OF 1993 WHEREAS, on December 15, 1993, the City of Fairfax, Virginia (the "City"), issued its $7,405,000 General Obligation Water Refunding Bonds, Series of 1993 (the "1993 Bonds"); and WHEREAS, the City can effect considerable savings by issuing its general obligation water refunding bonds to (a) refund the outstanding 1993 Bonds maturing on June 1 in the years 2004 through 2007 in the aggregate principal amount of $3,065,000 (the "Refunded Bonds"), and (b) pay the costs of refunding the Refunded Bonds and the costs of issuing refunding bonds; and WHEREAS, the City's administration and a representative of Davenport & Company LLC, acting in the role as the City's financial advisor (the "Financial Advisor"), have recommended to the Council of the City (the "City Council") that the City issue and sell a single series of general obligation water refunding bonds through a private placement; WHEREAS, pursuant to Section 15.2-2601 of the Public Finance Act of 1991, Title 15.2, Chapter 26 of the Code of Virginia of 1950, as amended (the "Public Finance Act of 1991"), the governing body of a locality may elect to issue bonds under the provisions of the Public Finance Act without regard to the requirements, restrictions or other provisions contained in its charter, and the City Council has elected to issue its general obligation water refunding bonds under the Public Finance Act; BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAIRFAX, VIRGINIA: 1. Issuance of Bonds. Pursuant to the Constitution and statutes of the Commonwealth of Virginia, including the Public Finance Act of 1991, there shall be issued and sold a general obligation water refunding bond of the City (the "Bond") to provide funds, together with other funds contributed by the City, to refund the Refunded Bonds, including funds to pay principal of and premium and interest on the Refunded Bonds until their earliest redemption date and to pay costs incurred in connection with refunding the Refunded Bonds and the costs of issuing the Bond. The City Manager, in collaboration with the Financial Advisor, is hereby authorized and directed to prepare and distribute a request for proposals to qualified banking or financial institutions for the purchase of the Bond on mutually agreeable terms subject to the terms of this Resolution. 2. Bond Details. The Bond shall be in the form of a single, typewritten bond, designated "General Obligation Water Refunding Bond, Series 2003," shall be in registered form, shall be dated the date of its delivery and shall be numbered R-1. The principal amount of the Bond shall be determined by the City Manager, in collaboration with the Financial Advisor, provided, however, that the principal amount shall not exceed $3,500,000. The Bond shall be sold to the banking or financial institution which provides a proposal containing terms that the City Manager, in collaboration with the Financial Advisor, determines to be in the best interest of the City; provided, however, that (a) the Bond shall have a "true" or "Canadian" interest cost not to exceed 3.0%, (b) shall be sold to the purchaser at a price not less than 100% of the original principal amount thereof and (c) shall mature no later than December 31, 2007. Principal of and interest on the Bond shall be payable on dates determined by the City Manager. If the date on which any payment is due with respect to the Bond is not a Business Day (as hereinafter defined), the payment shall be made on the next succeeding Business Day. "Business Day" shall mean a day on which banking business is transacted, but not including a Saturday, Sunday or legal holiday, or any other day on which banking institutions are authorized by law to close in the Commonwealth of Virginia. Principal and interest shall be payable by the Registrar (as hereinafter defined) by check or draft mailed to the registered owners at their addresses as they appear on the registration books kept by the Registrar on the last Business Day of the month preceding each interest payment date. Principal and interest shall be payable in lawful money of the United States of America. o maturity. Prepayment Provisions. The Bond is not subject to redemption prior to 4. Execution and Form of Bond. The Bond shall be signed by the manual signature of the Mayor or Vice Mayor and the City's seal shall be affixed thereon and attested by the City Clerk or any Deputy City Clerk. The Bond shall be issued as a typewritten bond in substantially the form of Exhibit A attached hereto, with such completions, omissions, insertions and changes not inconsistent with this Resolution as may be approved by the Mayor, whose approval shall be evidenced conclusively by the execution and delivery of the Bond. 5. Pledge of Full Faith and Credit. The full faith and credit of the City are irrevocably pledged for the payment of principal of and interest on the Bond. Unless other funds are lawfully available and appropriated for timely payment of the Bond, the City Council shall levy and collect an annual ad valorem tax, over and above all other taxes authorized or limited by law and without limitation as to rate or amount, on all locally taxable property in the City sufficient to pay when due the principal of and interest on the Bond. 6. Registration, Transfer and Owners of Bond. The Bond shall be issued in registered form without coupons, payable to the registered holders or registered assigns. The City Treasurer is hereby appointed paying agent and registrar for the Bond (the "Registrar"). The City may in its discretion appoint at any time a qualified bank or trust company as successor Registrar. The Registrar shall maintain registration books for the registration and registration of transfers of Bond. Upon presentation and surrender of the Bond at the office of the Registrar, together with an assignment duly executed by the registered owner or his duly authorized attorney or legal representative in such form as shall be satisfactory to the Registrar, the City shall execute and deliver in exchange, a new Bond or Bonds having an equal aggregate principal amount, in authorized denominations, of the same form and maturity, beating interest at the same rate, and registered in names as requested by the then registered owner or his duly authorized attorney or legal representative. Any such exchange shall be at the expense of the City, except that the Registrar may charge the person requesting such exchange the amount of any tax or other governmental charge required to be paid with respect thereto. The Registrar shall treat the registered owner as the person exclusively entitled to payment of principal and interest and the exercise of all other rights and powers of the owner, except that interest payments shall be made to the person shown as owner on the registration books on the last Business Day of the month preceding each interest payment date. 7. Preparation and Delivery of Bond. Subject to the provisions of paragraphs 1 and 2, the officers of the City are authorized and directed to take all proper steps to have the Bond prepared and executed in accordance with its terms and to deliver the Bond to the purchaser upon payment therefor. 8. Redemption of Refunded Bonds. The City Manager is authorized and directed to determine which maturities of the Refunded Bonds, if any, shall be refunded. If any maturities are to be refunded, such maturities are hereby irrevocably called for redemption on June 1, 2003 (the "Redemption Date"). The City shall cause notice of redemption to be given in accordance with the resolution providing for the issuance of the Refunded Bonds to the registered owners of the Refunded Bonds. If the City Manager determines, with the assistance of the Financial Advisor, that it is not in the City's best interests to refund any maturities of the Refunded Bonds, then no Bonds shall be issued pursuant to this Resolution. 9. Escrow Deposit Agreement. The City Manager is hereby authorized to execute an escrow deposit agreement (the "Escrow Agreement") between the City and an escrow agent to be appointed by the City Manager (the "Escrow Agent"), if the City Manager deems it advisable to have such an agreement. The Escrow Agreement shall be in the form approved by the City Manager, in collaboration with the City Attorney and the City's bond counsel, the execution thereof by the City Manager to constitute conclusive evidence of approval of the Escrow Agreement. The Escrow Agreement shall provide for the irrevocable deposit of a portion of the Bond proceeds (the "Refunding Portion"), together with other legally available funds, in an escrow fund which shall be sufficient to provide for payment of principal of and premium, if any, and interest on the Refunded Bonds; provided, however, that such Bond proceeds shall be invested in such manner that the Bond will not be an "arbitrage bond" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended (the "Code"), and regulations issued pursuant thereto. 10. Deposit of Bond Proceeds. The Director of Finance is authorized and directed (a) to provide for the delivery of the Refunding Portion for deposit in an escrow fund, in an amount that will be sufficient, together with the interest thereon (i) to pay when due the interest on the Refunded Bonds to the first date on which they may be redeemed at the option of the City and (ii) to pay upon the earlier of maturity or redemption the principal of the Refunded Bonds, plus the applicable redemption premium, and (b) to provide for the deposit of the remaining proceeds of the Bond in a special account of the City to be used to pay the costs of refunding the Refunded Bonds and issuing the Bond. The Director of Finance is further authorized and directed to take all such further action as may be necessary or desirable in connection with the payment and refunding of the Refunded Bonds. 11. Arbitrage Covenants. (a) The City represents that there have not been issued, and covenants that there will not be issued, any obligations that will be treated as part of the same issue of obligations as the Bond within the meaning of Treasury Regulations Section 1.150-1(c). (b) The City covenants that it shall not take or omit to take any action the taking or omission of which will cause the Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code, or otherwise cause interest on the Bond to be includable in the gross income of the registered owners thereof under existing law. Without limiting the generality of the foregoing, the City shall comply with any provision of law which may require the City at any time to rebate to the United States any part of the earnings derived from the investment of the gross proceeds of the Bond, unless the City receives an opinion of nationally recognized bond counsel that such compliance is not required to prevent interest on the Bond from being includable in the gross income of the registered owners thereof under existing law. The City shall pay any such required rebate from its legally available funds. 12. Non-Arbitrage Certificate and Elections. Such officers of the City as may be requested are authorized and directed to execute an appropriate certificate setting forth the expected use and investment of the proceeds of the Bond in order to show that such expected use and investment will not violate the provisions of Section 148 of the Code, and any elections such officers deem desirable regarding rebate of earnings to the United States for purposes of complying with Section 148 of the Code. Such certificate and elections shall be in such form as may be requested by bond counsel for the City. 13. Limitation on Private Use. The City covenants that it shall not permit the proceeds of the Bond or the facilities refinanced with the proceeds of the Bond to be used in any manner that would result in (a) 5% or more of such proceeds or the facilities refinanced with such proceeds being used in a trade or business carded on by any person other than a governmental unit, as provided in Section 141(b) of the Code, (b) 5% or more of such proceeds or the facilities refinanced with such proceeds being used with respect to any output facility (other than a facility for the furnishing of water), within the meaning of Section 141(b)(4) of the Code, or (c) 5% or more of such proceeds being used directly or indirectly to make or finance loans to any persons other than a governmental unit, as provided in Section 141(c) of the Code; provided, however, that if the City receives an opinion of nationally recognized bond counsel that any such covenants need not be complied with to prevent the interest on the Bond from being includable in the gross income for federal income tax purposes of the registered owners thereof under existing law, the City need not comply with such covenants. 14. Qualified Tax-Exempt Obligations. By operation of Section 265(b)(3)(D)(ii), the City intends for the Bond to be designated a "qualified tax-exempt obligation." 15. Other Actions. All other actions of officers of the City in conformity with the purposes and intent of this Resolution and in furtherance of the issuance and sale of the Bond are approved and confirmed. The officers of the City are authorized and directed to execute and deliver all certificates and instruments and to take all such further action as may be considered necessary or desirable in connection with the issuance, sale and delivery of the Bond. 16. Repeal of Conflicting Resolutions. All resolutions or parts of resolutions in conflict herewith are repealed. 17. Effective Date. This Resolution shall take effect immediately. Adopted this 11th day of Feburary, 2003. Mayor Date ATTEST: The roll call vote on the motion to adopt the resolution was recorded as follows: Councilwoman Cross Councilman Greenfield Councilwoman Lyon Councilman Rasmussen Councilman Silverthome Councilwoman Winter Vote Aye Aye Aye Aye Aye Aye