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R-07-06 RESOLUTION NO. R-07-06 RESOLUTION AlVI:ENDING A RESOLUTION ADOPTED lVI:AY 25, 2004, TO APPRO,,"E THE DETAILS OF LEASE FINANCING FOR. OPEN SPACE, PARI<>:S, RECREATION AND HISTORIC PRESER,,"ATION PURPOSES AND TO AUTHORIZE THE EXECUTION AND DELI,,"ER"Y OF RELATED DOCUlVI:ENTS ~HEREAS, J\I1ay 25, 2004, the City Council (the <<Council") or the City or Fairrax. Virginia (the "''"'City'''),. adopted a resolution to authorize a financing for the acquisition" construction" renovation, improvement and equipping, as applicable, of one or more of the rollovving projects (the <<Prior Resolution"): (a) the properties located at (i) 10735 v.7est Drive (rererred to as the Jester Property), (ii) 10090 - 10120 Lee Flighvvay (rererred to as the Starrord Property), (iii) 9910 Barbara Arme Lane. 9990 J\I1osby Road, and 4143 Evergreen Drive (collectively, rererred to as the Grere Property), (iv) 9817 Ashby Road (rererred to as the Ashby Road Property), (v) 10421-25 North Street (rererred to as the "v.7eight v.7atchers Property), and (vi) 10610 J\I1oore Street (rererred to as the Ratcli rre Cemetery), all located """,ithirr the City limits,. for the purposes of open space preservation,. parks and recreation,. and (b) the property located at 3610 Old Lee Highvvay (rererred to as the Blenheim Property). located vvithin the City limits, for the purposes of historic preservation and a nev.r museum,. all in the aggregate amount of $15,000,000 (collectively, such real property to be referred to herein as the .....Property,." and such projects to be referred to herein as the ....Original Projects'''''); VVI-IEREAS, to accomplish the financing of the Original Projects", the Council entered into (a) a Ground Lease dated as of July 26,. 2004, as amended by a First Amendment to Ground Lease dated as of August 27,. 2004,. a Second Amendment to Ground Lease dated as of November 10" 2004", and a Third Amendment to Ground Lease dated as of August IS" 2005 (collectively, the <<Ground Lease"), all betvveen the City and SnnTrust Bank (the <<Bank"). pursuant to VV"hich the City conveyed to SunTrust Bank a leasehold interest in the Property and (b) a Financing Lease Agreement dated as or July 26, 2004, as amended by a First Amendment to Financing Lease Agreement dated as of August 27" 2004" a Second Amendment to Financing Lease Agreement dated as of November 20" 2004" and a Third Amendment to Financing Lease Agreement dated as of August 15,. 2005 (collectively" the ""Financing Lease"''')" all betV\Teen the City and SunTrust Bank" pu.rsuant to VV'"hich SunTrust Ban..k leased the Original Projects back to the City" in retu.m for vvhich the City has undertaken to make payments of basic rent (the ""Basic Rent"") to SunTrust Ba.n..k; "'V\1HER..EAS, the Council desires to amend the Prior Resolution to finance the acquisition" construction and equipping of additional projects under the Financing Lease and secured by the Ground Lease" such projects to include the construction of ball fields at Providence Park" Providence Elementary" VV"estmore Elementary a..nd Green Acres Elementary Schools and on the Stafford Property in the aggregate principal amount of $5,.800,,000 (together vvith the Original Projects" the '''Projects''''); V\7HEREAS, the Bank has offered to provide the fin.ancing for such additional projects pursuant to the terms of its proposal dated J\...1:arch 5" 2007", attached hereto as Exhibit A; and V\7HEREAS, there has been presented at this meeting a draft Fourth Amendment to Financing Lease Agreemen~ (the "'Fourth Amendment"''').. pursuant ~o V\Thich the Bank and the City shall provide for the increased financing amount of the additional projects; NO~, THEREFORE, BE IT RESOL,,"ED B"Y CITY COUNCIL OF THE CITY OF FAIRFAX, ,,"IRGINIA: I. The Council approves amending the Prior Resolution to authorize the finar1cing of the additional projects provided that: (a) the aggregate total of principal components of the Basic Rent payable under the Financing Lease shall not exceed $20,800,000, vvhich includes a rourth advance in the amount or $5,800.000 (the <<Fourth AdvanceU)", (b) the interest component of payments of Basic Rent under the Fourth Advance shall have an interest coupon rate equal to 4.29<?'O" and (c) payments of Basic Rent" constituting both principal and interest components or the Fourth Advance" sha.ll be payable in amounts and on dates,. as determined by the City :M:anager,. ending no later than January 15" 2027. The Bank shall have the option of requiring the City to prepay all outstanding principal components on the tenth anniversary date of the date of the Fourth Advance. The Bank shall notify the City at least 90 days prior to such anniversary date. 2. The Mayor and the City Manager, either of whom may act, are authorized and directed to execute the Fourth Amendment, the form of which submitted to this meeting is hereby approved, with such completions, omissions, insertions and changes not inconsistent with this resolution as may be approved by the officer executing the Fourth Amendment, such execution to constitute conclusive evidence of his approval of any such completions, omissions, insertions and changes. 3. Such officers of the City as requested by the City Manager are authorized and directed to execute and deliver all certificates and instruments and to take all actions necessary or desirable in connection with the execution and delivery of the Fourth Amendment and the completion of the financing. 4. The City designates the principal components of the Fourth Advance of Basic Rent as "qualified tax-exempt obligations" for the purpose of Section 265(b )(3) of the Code. The City represents and covenants as follows: (a) The City will in no event designate more than $10,000,000 of obligations as qualified tax-exempt obligations in calendar year 2007, including the principal components of the Fourth Advance, for the purpose such Section 265(b)(3); (b) The City, all its "subordinate entities," within the meaning of such Section 265(b)(3), and all entities which issue tax-exempt obligations on behalf of the City and its subordinate entities have not issued, in the aggregate, more than $10,000,000 of tax- exempt obligations in calendar year 2007 (not including "private activity bonds," within the meaning of Section 141 of the Code, other than "qualified 501(c)(3) bonds," within the meaning of Section 145 of the Code), including the principal components of the Fourth Advance; (c) Barring circumstances unforeseen as of the date of delivery of the Fourth Amendment, the City will not issue tax-exempt obligations itself or approve the issuance of tax-exempt obligations of any of such other entities if the issuance of such tax- exempt obligations would, when aggregated with all other tax-exempt obligations theretofore issued by the City and such other entities in calendar year 2007, result in the City and such other entities having issued a total of more than $10,000,000 of tax-exempt obligations in calendar year 2007 (not including private activity bonds other than qualified 501(c)(3) bonds), including the principal components of the Fourth Advance; and (d) The City has no reason to believe that the City and such other entities will issue tax-exempt obligations in calendar year 2007 in an aggregate amount that will exceed such $10,000,000 limit; provided, however, that if the City receives an opinion of nationally recognized bond counsel that compliance with any covenant set forth in (a) or (c) above is not required for the principal components of the Fourth Advance to be qualified tax-exempt obligations, the City need not comply with such covenant. 5. Any authorization herein to execute a document shall include authorization to deliver it to the other parties thereto and to record such document where appropriate. 6. All other acts of the officers of the City that are in conformity with the purposes and intent of this resolution and in furtherance of this financing and the undertaking of the Projects are approved and ratified. 7. Except as amended by the terms of this resolution, the Prior Resolution is hereby ratified and affirmed. 8. This resolution shall take effect immediately. Introduced: February 27,2007 2 Adopted: March 13, 2007 ~:\~~ Mayor ATTEST: ~~ Clt Clerk The vote on the motion to approve was recorded as follows: Vote Councilwoman Cross Councilman Greenfield Councilwoman Lyon Councilman Rasmussen Councilman Silverthorne Councilwoman Winter Aye Absent Aye Nay Absent Aye 3 37832. 0018 RICHMOND 1958730v7 " EXHIBIT A [See Attached copy of SunTrust's Proposal] 4