HomeMy WebLinkAboutCC RES 2010-05RESOLUTION NO. 2010-5
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT AUTHORIZING JUDICIAL VALIDATION PROCEEDINGS
RELATING TO ITS ENERGY INDEPENDENCE PROGRAM, LIMITED
OBLIGATION IMPROVEMENT BONDS, AND A NO -ACTION LETTER
REQUEST TO THE U.S. SECURITIES AND EXCHANGE COMMISSION,
APPROPRIATING MONEYS FROM THE GENERAL FUND TO
ADDITIONALLY FUND THE PROGRAM, AND APPROVING
ADDITIONAL ACTIONS RELATED THERETO
WHEREAS, the City Council of the City of Palm Desert, California (the "City") by
its Resolution No. 08-75 ("Resolution 08-75") declared its intention to establish the City
of Palm Desert Energy Independence Program (the "EIP") to finance the acquisition and
construction or installation of distributed generation renewable energy sources and
energy efficiency improvements (the "Improvements") on or in properties in the City
through contractual assessments pursuant to Chapter 29 of Part 3 of Division 7 of the
California Streets and Highways Code, commencing with Section 5898.10, ("Chapter
29") and ordered the preparation and filing of a report (the "Report") with the City
Council and provided that bonds may be issued under Resolution 08-75 pursuant to the
provisions of Chapter 29 or, as Resolution 08-75 has heretofore been amended by
Resolution No. 08-89 (adopted on August 28, 2008) and Resolution No. 09-2 (adopted
on January 22, 2009) (Resolution 08-75, as so amended is referred to herein as the
"Resolution of Intention"), pursuant to the provisions of Title 17 (the "Municipal Code") of
the Palm Desert Municipal Code as it may be amended from time to time;
WHEREAS, following notice duly given in accordance with law, the City Council
held a public hearing regarding the EIP as described in the Report;
WHEREAS, following the public hearing, pursuant to its Resolution No. 08-89,
the City Council established the EIP and confirmed contractual assessments to be
levied against properties in the City within the parameters of the Report;
WHEREAS, pursuant to Chapter 29 and the EIP, the City may enter into, and
has entered into, contractual assessment agreements (each, an "Assessment
Contract") with property owners whereby the City will extend financing to such property
owners for the construction and/or installation of the Improvements on or in the owners'
properties;
WHEREAS, pursuant to the Assessment Contracts, the property owners who are
parties to such agreements have agreed, or will agree, to repay the amount disbursed
to the owners under the Assessment Contracts through the levy of assessments by the
City against the property owners' properties pursuant to Section 5898.30 of Chapter 29
(each, an "Assessment");
RESOLUTION NO. 2010-5
WHEREAS, in accordance with Resolution No. 08-89, the City advanced $2.5
million of its own General Fund monies to the "Energy Independence Fund," a special
trust fund established and held by the City for the purpose of extending loans to
property owners to finance Improvements to the owners' properties (each, a "Loan");
WHEREAS, to additionally fund the EIP, on January 29, 2009 the City issued on
a private placement basis to the Palm Desert Redevelopment Agency (the "Agency") its
not -to -exceed $2,500,000 initial principal amount Energy Independence Program
Limited Obligation Improvement Bond, Series 2009A (Taxable) (the "2009A Bond"),
pursuant to Resolution No. 09-3 of the City Council, adopted on January 22, 2009 (the
"2009A Bond Resolution") and in the form of a draw -down bond up to the actual
aggregate principal amount of assessments securing such 2009A Bond, and such
actual principal amount of such assessments and such since been determined to be
$2,015,000;
WHEREAS, also to additionally fund the EIP, on September 22, 2009 the City
issued on a private placement basis to the Agency its $1,136,000 initial principal
amount Energy Independence Program Limited Obligation Improvement Bond, Series
2009B (Taxable) (the "2009B Bond"), pursuant to Resolution No. 09-63 of the City
Council, adopted on August 27, 2009 (the "2009B Bond Resolution");
WHEREAS, in furtherance of the EIP financial strategy and to provide additional
funding to the EIP, on January 14, 2010, the City Council approved and adopted its
resolution entitled "A Resolution of the City Council of the City of Palm Desert Providing
for the Issuance and Sale of Its Energy Independence Program Limited Obligation
Improvement Bonds (Taxable), in One or More Series and In Aggregate Principal
Amount Not to Exceed Five Million Dollars ($5,000,000), Approving as to Form and
Authorizing the Execution and Delivery of One or More Bond Purchase Agreements in
Connection Therewith, and Authorizing Certain Other Matters Relating Thereto" (the
"2010 Bond Resolution"), pursuant to which additional limited obligation improvement
bonds will be issued in one or more series in an aggregate initial principal amount not to
exceed $5,000,000, on a private placement basis to the Agency (the "2010 Bonds");
WHEREAS, in furtherance of the EIP financial strategy and to provide additional
funding to the EIP, the City desires to authorize an additional General Fund advance in
the amount of $4.349 million to the Energy Independence Fund, as an investment with a
rate of return of 4.00% per annum;
WHEREAS, the City expects that the need may arise in the future, for the
purpose of providing additional financing for the EIP and to meet the City's five-year
energy usage reduction goal of 30%, to authorize or enter into additional bond
resolutions, bond indentures, or similar instruments (each, an "Additional Bond
Resolution"), providing for the issuance and sale of additional series of limited obligation
improvement bonds (the "Additional Series of Bonds") secured by and payable solely
from revenues received by the City from the payment of Assessments pursuant to
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RESOLUTION NO. 2010-5
Chapter 29 and the Assessment Contracts, on a private placement basis or through
public offering:
WHEREAS, the City has determined the advisability of filing an action to
determine the validity of the Assessments, the Assessment Contracts, the 2010 Bonds,
the Additional Series of Bonds, the 2010 Bond Resolution, and the Additional Bond
Resolutions, and the actions proposed to be taken in connection therewith;
WHEREAS. the City has determined the advisability of filing a request with the
U.S. Securities and Exchange Commission (the "S.E.C.") for a "no -action letter"
confirming that any Additional Series of Bonds may be issued by the City at a public
offering without registration of such bonds or Assessment Contracts securing the
repayment therefor, in accordance with exceptions to registration provided by Rule 131
under the Securities Act of 1933 and Rule 3b-5 of the Securities Exchange Act of 1934;
NOW, THEREFORE, the City Council of the City of Palm Desert does resolve as
follows:
Section 1. Recitals True and Correct. The City Council does hereby find and
declare that the above recitals are true and correct.
Section 2. General Fund Advance - Terms. The City Council hereby
authorizes and directs the Director of Finance of the City to transfer from the City
General Fund to the Energy Independence Fund the amount of Four Million Three
Hundred Forty -Nine Thousand Dollars ($4,349,000) (the "General Fund Advance"), for
the purpose of making additional Assessment Contracts and Loans to additional
property owners pursuant to the EIP and Chapter 29. The General Fund Advance shall
be repayable solely from contractual assessment revenues deposited in the Energy
Independence Fund. to the extent not pledged to (or released from the pledge of) any
limited obligation improvement bonds issued by the City to fund the EIP, with interest at
a rate of 4.00% per annum. The principal amount of the General Fund Advance shall
be repayable to the General Fund from such revenues in annual installments, with each
installment due and payable on June 30 of each year, commencing June 30, 2010,
together with interest on the principal amount of each installment accrued to the date of
repayment, and with the amount of each annual installment to be determined by the
Finance Director. The final installment, consisting of the remaining principal amount to
be repaid, together with accrued interest thereon to the date of repayment, shall be due
and payable on June 30, 2035.
Section 3. Findings; Specific Investment Authorization. The City Council
hereby finds and determines that the General Fund Advance, subject to the terms and
conditions set forth in Section 2 of this Resolution, are prudent under the general
economic conditions and the anticipated needs of the City. In accordance with
Government Code Section 53601, the City Council hereby grants express authority for
the City to make the General Fund Advance as an investment, with a term remaining to
maturity in excess of 5 years (i.e., June 30, 2035).
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RESOLUTION NO. 2010-5
Section 4. Additional Series of Bonds; Nature of Obligation. The City hereby
authorizes and approves the Issuance of Additional Series of Bonds to provide
additional funding for the EIP, under additional bond resolutions, bond indentures, or
similar instruments to be approved at such time of issuance by the City Council (each,
an "Additional Bond Resolution"), from time to time; provided, that similarly to the 2009A
Bond, the 2009B Bond, and the 2010 Bonds, each Additional Series of Bonds
authorized hereunder shall be limited obligation improvement bonds, and each
Additional Bond Resolution authorized hereunder shall provide that the applicable
Additional Series of Bonds shall be secured by, and repayable solely from, contractual
assessment revenues derived from Assessment Contracts entered into pursuant to
Chapter 29 and the EIP, without recourse to the City's General Fund.
Section 5. Validation Action. In order to determine the validity of the
Assessments, the Assessment Contracts, the 2010 Bonds, the Additional Series of
Bonds, the 2010 Bond Resolution, and the Additional Bond Resolutions, and the actions
authorized hereby to be taken in connection therewith, the City Council hereby
authorizes Richards, Watson & Gershon, A Professional Corporation, Bond Counsel
("Bond Counsel") to prepare and cause to be filed and prosecuted to completion all
proceedings required for the judicial validation of the Assessments, the Assessment
Contracts, the 2010 Bonds. the Additional Series of Bonds, the 2010 Bond Resolution,
and the Additional Bond Resolutions in the Superior Court of Riverside County, under
and pursuant to the provisions of Sections 860 et seq. of the California Code of Civil
Procedure. The City Council further authorizes the Mayor and the City Manager of the
City (the "Authorized Officers"), and all other officers, employees and agents of the City
to take any and all actions, including the execution and delivery or appropriate
documentation, as may be required to conclude such judicial validation proceedings.
Section 12. S.E.C. No -Action Letter Request. In order to confirm that any
Additional Series of Bonds may be issued by the City by public offering without
registration of such bonds or the Assessment Contracts securing the repayment
therefor, in accordance with exceptions to registration provided by the federal securities
laws, the City Council hereby authorizes Bond Counsel to prepare and cause to be filed
with the S.E.C. a no -action letter request and to diligently pursue to completion the
request.
Section 13. Additional Authority. The Authorized Officers and any other
officers. employees or agents of the City are. and each of them hereby is, authorized
and directed to execute and deliver any and all documents and instruments and to do
and cause to be done any and all acts and things necessary or proper for carrying out
the transactions contemplated hereby, including, but not limited to, the execution and
delivery of any documents required in connection therewith.
Section 14. Ratification of Prior Action. All actions heretofore taken by the
Authorized Officers and by any other officers, employees or agents of the City with
respect to the incurrence of the Loan and the issuance of the Note, or in connection with
or related to any of the agreements or documents referenced herein, are hereby
approved. confirmed and ratified.
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RESOLUTION NO. 2010-5
Section 15. Effective Date. This Resolution shall take effect from and after the
date of approval and adoption hereof.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Palm
Desert, California, this 14th day of January 2010, by the following vote to wit:
AYES: BENSON, FERGUSON, KELLY, SPIEGEL, and FINERTY
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
CINDY FINERY, MAYOR
ATTEST:
RA HE LE D. KLASSEN,1Y CLERK
CITY OF PALM DESERT, CALIFORNIA
(
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