Title
A RESOLUTION APPROVING FINANCING DOCUMENTS BY THE CITY OF FOLEY, ALABAMA, THE PUBLIC CULTURAL AND ENTERTAINMENT FACILITIES BOARD
OF THE CITY OF FOLEY, ALABAMA AND REGIONS BANK, AS TRUSTEE
Summary
Description of Topic: (who, what, where, when, why and how much)
Budgetary Impact:
Non-Capital Item:
____ Budgeted under account #_______________ (discussion item)
____ Not budgeted, requesting transfer of $__________ from Account #______________ to Account #_____________.
____ Not budgeted requiring increase to account #___________ in the amount of $____________.
Capital - Departmental
____ Budgeted under account #______________ for $___________ and described in budget as __________________________________.
Additional amount needed, if any: Increase in budget of $_____________ OR, transfer of $___________ from Account #____________ to Account #_______________
____ Not Budgeted - account #____________ requires budget increase of $_____________.
Capital Project - **THE PRE-PROJECT CHECKLIST AND BUDGET CHECKLIST MUST BE ATTACHED TO THIS FILE**
In current year Capital Projects Plan:
_____ Yes, planned amount $___________, requesting $_________ as total project estimate, including contingencies, under account #_________________
_____ No, requesting $___________ as total project estimate, including contingencies, under account #____________________
Body
BE IT RESOLVED BY THE CITY COUNCIL OF CITY OF FOLEY, ALABAMA, (the “City”) as follows:
Section 1. Representations and Definitions of Capitalized Terms.
The City has heretofore, upon evidence duly presented to and considered by it, found and determined, and does hereby find, determine and declare that:
(a) Pursuant to Chapter 99B of Title 11 of the Code of Alabama 1975 (the “Enabling Law”), the City, and The Public Park and Recreation Board of the City of Foley, Alabama, have authorized the incorporation of The Public Cultural and Entertainment Facilities Cooperative District of the City of Foley, Alabama (the “District”), and the certificate of incorporation of the District is recorded as instrument No. 1428916 in the Office of the Judge of Probate of Baldwin County, Alabama.
(b) The District proposes to issue Cultural and Entertainment Facilities Revenue Bonds (Federally Taxable), Series 2015, in a maximum principal amount not exceeding $17,500,000 (the “Bonds”) for the purposes of financing a portion of the costs of “projects” (as described in the certificate of incorporation thereof and as permitted by the Enabling Law; herein collectively the “Project”) to be located within the City and to be issued and operated by the City.
(c) The Bonds shall be regular, limited obligations of the District payable solely from moneys provided by the City pursuant to a Funding Agreement with respect to the Bonds by the City, the District, and Regions Bank, as trustee for the registered owners of the Bonds, to be delivered by the City simultaneously with the issuance of the Bonds.
(d) Pursuant to Amendment No. 772 to the Constitution of Alabama of 1901, as amended (“Amendment No. 772”), the City has caused the Notice attached hereto as Exhibit A (the “Notice”) to be published on October 21, 2015 in The Foley Onlooker with respect to certain actions proposed to be taken, and certain agreements proposed to be made and delivered, by the City, to provide for the financing of a portion of the costs of the Project and the economic development of the City thereby.
(e) There has been prepared for and delivered to the City, and made available for public inspection, the following agreements, contracts, documents and instruments with respect to the transactions described in the Notice and the undertakings by the City in connection therewith (collectively the “Financing Documents”):
(i) Trust Indenture, to be dated December 1, 2015, by the District and Regions Bank, as trustee (the “Trustee”) with respect to the Bonds;
(ii) Funding Agreement, to be dated December 1, 2015, by the City and the District and the Trustee with respect to the Bonds.
(f) The expenditure of public funds for the purposes specified in the Notice and the Financing Documents will serve a valid and sufficient public purpose, notwithstanding any incidental benefit accruing to any private entity or entities.
(g) It is necessary, desirable, and in the best interests of the taxpayers and citizens of the City for the City to deliver and perform the agreements and undertakings of the City set forth in the Financing Documents to which the City is a party.
Section 2. Approval of Notice.
The City does hereby approve, ratify and confirm (i) the form and content of, and the statements set forth in, the Notice and (ii) the publication of the Notice as set forth in Section 1 of this resolution.
Section 3. Approval of Financing Documents.
(a) The City does hereby approve, adopt, authorize, direct, ratify and confirm the representations, warranties, agreements and covenants of the City set forth in, and the transactions to be undertaken by the City pursuant to, the Financing Documents.
(b) The Financing Documents are approved in substantially the form and of substantially the content as presented to and considered by the City Council, with such changes or additions thereto or deletions therefrom as the officer of the City executing those of the Financing Documents to which the City is a party signatory thereto (herein collectively the “City Documents”) shall approve, which approval shall be conclusively evidenced by execution of the City Documents by such officer as hereinafter provided.
(c) The Financing Documents presented to, considered and adopted by the City Council shall be filed in the permanent records of the City.
Section 4. Authorizations.
(a) The Mayor of the City is hereby authorized and directed to execute, acknowledge and deliver the City Documents (as defined in Section 3(b)) for and on behalf of and in the name of the City. The City Clerk and Assistant City Clerk of the City are each hereby authorized and directed to attest the same.
(b) Prior to delivery of the Funding Agreement referenced in Section 1(e)(ii), the Council shall approve the final principal amounts, interest rates, sale prices, redemption prices and terms, and costs of issuance of the Bonds.
(c) The City hereby approves the engagement by the District of Stifel, Nicolaus & Company, Incorporated (the “Underwriter”) to provide all investment banking services and underwriting services with respect to the issuance and sale of the Bonds and Maynard, Cooper & Gale, P.C. to act as bond counsel to the District in connection with the issuance of the Bonds.
(d) For purposes of the Financing Documents, the Mayor and City Administrator are each authorized and directed to act as an Authorized City Representative under and as defined therein.
(e) The officers of the City, or any one or more of them, are hereby authorized and directed to do and perform or cause to be done or performed in the name and on behalf of the City such other acts, and execute, deliver, file and record such other instruments, documents, certificates, notifications and related documents, all as shall be required by law or necessary or desirable to carry out the provisions and purposes of this Resolution and the Financing Documents.
(f) Any prior actions taken or agreements made or documents executed by any officers of the City in connection with the Financing Documents and the transactions therein authorized and approved are hereby ratified and confirmed.
(g) If requested by the Underwriter defined in Section 4(c) and subject to Section 4(b), the Mayor is hereby authorized and directed to execute and deliver, in the name of the City, a bond purchase agreement with respect to the purchase of the Bonds by the Underwriter.
Section 5. Approval of Official Statement.
The Official Statement with respect to the Bonds (the "Official Statement") in substantially the form and of substantially the content as the form of Official Statement presented to and considered by the City is hereby approved and adopted. The City does hereby find and determine that the Official Statement, with respect to the City, is correct and does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under with they were made, not misleading. The Mayor of the City is hereby authorized to execute and deliver the Official Statement for and on behalf of and in the name of the City, with such changes or additions thereto or deletions therefrom with respect to the City as the Mayor and the Finance Director of the City may deem necessary or desirable in order to state fully and correctly the pertinent facts concerning the City and the documents delivered thereby. Any prior execution and/or delivery of the Official Statement or any preliminary Official Statement is hereby ratified and confirmed.
Section 6. Reimbursement.
In the event it becomes necessary for the District or the City to expend any funds for the Project prior to the issuance of the Bonds as tax-exempt obligations therefor, as described above, the City hereby declares its official intent that (i) proceeds of such tax-exempt obligations be used to reimburse the District and the City, as the case may be, for capital expenditures made by the District or the City for the Project in amounts not exceeding the lesser of the amounts spent therefor which are eligible for reimbursement under Treas. Reg. 1.150-2 or the total cost of the Project, and (ii) any such reimbursement be made in accordance with Treas. Reg. 1.150-2.
Section 7. Approval of Validation.
(a) The City hereby approves and authorizes the validation of the legality of all the Financing Documents, and all proceedings had or taken in connection therewith, and the validity of the means of payment provided for any financings incurred by the District or the City in connection therewith, in the Circuit Court of Baldwin County, Alabama, in accordance with the applicable laws of the State of Alabama (including without limitation Article 17 of Chapter 6 of Title 6, and Article 7 of Chapter 81 of Title 11, of the Code of Alabama 1975).
(b) To enable the commencement of such validation proceedings, the City hereby approves the form and content of the Funding Agreement attached hereto as Exhibit B, which shall set forth the general obligation of the City to pay the principal of and interest on the Bonds to finance the Project, upon final approval by the City of the principal amounts, terms to maturity, offering prices, net interest cost, redemption terms, and use of proceeds of such obligations, and the City hereby approves the filing of this Resolution and such Funding Agreement in such validation proceedings.
(c) The attorneys for the City, and Bond Counsel for the District and the City, are authorized to take such actions as shall be necessary to complete such validation proceedings.
Section 8. General.
(a) All ordinances, resolutions, orders, or parts thereof in conflict or inconsistent with any provision herein hereby are, to the extent of such conflict or inconsistency, repealed.
(b) This resolution shall take effect immediately.