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HomeMy WebLinkAbout08-02 TPFA Resolution' RESOLUTION NO. TPFA 08-02 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE TEMECULA PUBLIC FINANCING AUTHORITY AUTHORIZING AND DIRECTING VARIOUS ACTIONS WITH RESPECT TO THE TEMECULA PUBLIC FINANCING AUTHORITY COMMUNITY FACILITIES DISTRICT NO. 03-02 (RORIPAUGH RANCH) THE BOARD OF DIRECTORS OF THE TEMECULA PUBLIC FINANCING AUTHORITY DOES HEREBY RESOLVE AS FOLLOWS: Section 1. On January 11, 2005, this Board of Directors formed the Temecula Public Financing Authority Community Facilities District No. 03-02 (Roripaugh Ranch) (the "District") in order to finance various public improvements (the "Facilities") necessitated by the development of the area known as Roripaugh Ranch in the City of Temecula (the "City"). Section 2. In connection with the formation of the District and the financing and construction of the Facilities, the Temecula Public Financing Authority (the "Authority") (a) entered into an Acquisition Agreement, dated as of March 1, 2006 (the "Acquisition Agreement") with Ashby USA, LLC (the "Developer"), pursuant to which the ' Developer was to construct most of the Facilities; (b) entered into a Joint Community Facilities Agreement -City, dated as of January 1, 2005 (the "City JCFA") with the City, pursuant to which the City agreed to accept certain Facilities upon their completion and to assist the Authority in administering the Acquisition Agreement; (c) entered into a Joint Community Facilities Agreement (Street Improvements), dated as of November 1, 2004 (the "County JCFA") with the County of Riverside (the "County"), the City and the Developer, pursuant to which, among other matters, the County agreed to accept certain of the Facilities upon their completion; (d) entered into a Joint Community Facilities Agreement (Flood Control Improvements), dated as of November 1, 2004 (the "Flood Control JCFA"), with the Riverside County Flood Control and Water Conservation District (the "Flood Control District"), the County, the City and the Developer, pursuant to which, among other matters, the Flood Control District agreed to accept certain of the Facilities upon their completion; and (e) entered into a Joint Community Facilities Agreement, dated as of January 1, 2005 (the "EMWD JCFA" and, together with the County JCFA and the Flood Control JCFA, the "Other Public Agency JCFAs"), with the Eastern Municipal Water District ("EMWD"), and the Developer, pursuant to which, among other matters, EMWD agreed to accept certain of the Facilities upon their completion. Section 3. On April 27, 2006, the Authority issued, for and on behalf of the District, $51,250,000 principal amount of Temecula Public Financing Authority ' Community Facilities District No. 03-02 (Roripaugh Ranch) 2006 Special Tax Bonds (the "Bonds'), and entered into a Fiscal Agent Agreement, dated as of March 1, 2006 (the "Fiscal Agent Agreement") with U.S. Bank National Association, as fiscal agent (the R:/TPFA Resos 2008/TPFA 08-02 ' "Fiscal Agent"), in order to provide funds to finance the Facilities, and a portion of the proceeds of the Bonds were deposited to an Acquisition Account established under the Fiscal Agent Agreement (the "Acquisition Account") to be used to acquire certain of the Facilities, upon their completion, from the Developer. Section 4. Subsequent to the issuance of the Bonds, the Authority was advised that some of the information regarding the Developer, and its members and their principals, used in connection with the marketing of the Bonds was inaccurate and incomplete, and the Authority then advised the Developer that various actions might need to be taken to correct the deficiencies in the offering materials for the Bonds. Section 5. In December, 2006, the Authority and the Developer entered into a Deposit Agreement (the "Deposit Agreement") pursuant to which the Developer agreed to deposit funds with the Authority as needed to pay costs related to remedial actions with respect to the Bonds, and on March 6, 2007, the Authority and the Developer entered into a Supplement No. 1 to Acquisition Agreement (the Acquisition Agreement, as amended and supplemented by Supplement No. 1 to Acquisition Agreement, is referred to below as the "Revised Acquisition Agreement"), amending and supplementing the Acquisition Agreement in contemplation of a remarketing or other restructuring of the Bonds in light of the deficiencies in the information used in the offering materials for the Bonds. ' Section 6. Following the issuance of the Bonds, the Developer began construction of some of the Facilities, but has failed to complete some of the Facilities for which construction had commenced and has failed to commence construction of other Facilities that need to be completed in order for residential home construction in the District to proceed. Section 7. The City has indicated a willingness to take over and complete the construction of some of the Facilities that have not been completed, and to undertake the construction of some of the other Facilities (collectively, the "Priority Public Improvements"), if Bond proceeds and other amounts held under the Fiscal Agent Agreement can be made available to pay the costs related thereto, including all associated administrative, legal and other costs incident to the City moving forward with such construction (collectively, the "Priority Public Improvement Costs"). Section 8. In order for the Bond funds to be available to pay Priority Public Improvement Costs, and for the City to otherwise move forward with the Priority Public Improvements (i) the Fiscal Agent Agreement needs to be amended, and bond counsel to the Authority has drafted a Supplemental Agreement No. 1 to Fiscal Agent Agreement (the "Supplement") that sets forth the necessary amendment, (ii) the City JCFA needs to be amended and supplemented, and bond counsel to the Authority has drafted an Amended and Restated Joint Community Facilities Agreement -City (the "Amended City JCFA") that sets forth the necessary amendments and supplements, ' and (iii) the Authority needs to terminate the Acquisition Agreement and/or enter into alternative arrangements with the Developer with regard to certain matters addressed R:/TPFA Resos 2008/rPFA 08-02 2 by the Acquisition Agreement; and the Board of Directors now desires to approve the Supplement and the Amended City JCFA, and to authorize the Executive Director to execute such agreements and to terminate the Acquisition Agreement and/or enter into alternative arrangements with respect thereto with the Developer, all as necessary or desirable for the City to undertake the construction and completion of the Priority Public Improvements and for the Authority to fund (with amounts held under the Fiscal Agent Agreement) the Priority Public Improvement Costs. Section 9. In order for the City to move forward with the construction and completion of the Priority Public Improvements subject to the Other Public Agency JCFAs, the Authority also needs to amend one or more of the Other Public Agency JCFAs and/or enter into alternative arrangements with the County, the Flood Control District and/or EMWD, and the Board of Directors now desires to authorize the Executive Director to enter into amendments to one or more of the Other Public Agency JCFAs and/or to enter into alternative arrangements with respect thereto, all as necessary or desirable for the City to undertake the construction and completion of the Priority Public Improvements and for the Authority to fund (with amounts held under the Fiscal Agent Agreement) the Priority Public Improvement Costs. Section 10. The Board of Directors hereby approves the Supplement and the Amended Ciry JCFA, in the respective forms presented to the Board of Directors at this meeting, and hereby authorizes the Executive Director to enter into such agreements in ' said forms, together with such changes therein as the Executive Director, following consultation with Authority Counsel and bond counsel, shall approve, the approval of such changes to be conclusively evidenced by the execution by the Authority of the Supplement and the Amended City JCFA. Section 11. The Board of Directors hereby authorizes the Executive Director, for and on behalf of the Authority, to terminate the Acquisition Agreement and/or to enter into alternative arrangements with the Developer with respect thereto, following consultation with Authority Counsel and bond counsel, as he determines will best enable the City to move forward with the construction and completion of the Priority Public Improvements and for the Authority to fund those activities with amounts held in the Acquisition Account established under the Fiscal Agent Agreement or the proceeds of special taxes levied in the District. Section 12. The Board of Directors hereby authorizes the Executive Director to negotiate with the County, the Flood Control District, the City and EMWD, for and on behalf of the Authority and the District, amendments to the Other Public Agency JCFAs and/or alternative arrangements thereto as necessary or desirable, following consultation with Authority Counsel and bond counsel, to best facilitate the construction and completion of the Priority Public Improvements. The Board of Directors hereby authorizes and directs the Executive Director to execute, for and on behalf of the ' Authority and the District, and the Secretary to attest, any such amendments or alternative arrangements as negotiated by the Executive Director and approved as to form by Authority Counsel, so long as all obligations of the Authority thereunder are R:lrPFA Resos 2008lrPFA OB-02 3 ' payable solely from amounts held under the Fiscal Agent Agreement or the proceeds of special taxes levied in the District. Section 13. The Board of Directors hereby authorizes the Executive Director, working with the City, to make offers of settlement with contractors that have constructed portions of the Priority Public Improvements on behalf of the Developer seeking payment for work performed on such improvements, such settlements to be funded from amounts in the Acquisition Account established under the Fiscal Agent Agreement, subject to the Authority and the City receiving full releases of liability and the release of any liens on the related Facilities. Section 14. The Board of Directors hereby authorizes the Executive Director, and confirms the authority of the Executive Director, to enter into or amend such agreements with the Authority's financial advisor, Fieldman, Rolapp & Associates, the Authority's disclosure counsel, McFarlin & Anderson LLP, the Authority's special disclosure counsel, Nixon Peabody LLP and the Authority's bond counsel, Quint & Thimmig LLP, and Nevada bankruptcy counsel, the Sidhu Law Firm for work related to the prior efforts with respect to the proposed restructuring of the Bonds, the drafting and the dissemination of information regarding the District and the Bonds provided to the bond market, the collection of Special Taxes, protection of Authority and City actions concerning the Bonds, and the agreements and alternative arrangements described in this Resolution. ' Section 15. The Board of Directors hereby authorizes the Treasurer to pay, from any lawfully available funds of the District and/or the proceeds of special taxes levied in the District, all costs of the Authority and the District related to the prior efforts with respect to the proposed restructuring of the Bonds, the drafting and the dissemination of information regarding the District and the Bonds provided to the Bond market, the collection of Special Taxes, protection of Authority and City actions with respect to the Bonds and the agreements and alternative arrangements described in this Resolution, including any fees and expenses of the Authority's financial advisor, Fieldman, Rolapp & Associates, the Authority's disclosure counsel, McFarlin & Anderson LLP, the Authority's special disclosure counsel, Nixon Peabody LLP and the Authority's bond counsel, Quint &Thimmig LLP. Section 16. This Resolution shall take effect upon its adoption. R:/TPFA Resos 2008RPFA 08-02 4 ' PASSED, APPROVED, AND ADOPTED by the Board of Directors of the Temecula Public Financing Authority this 13th day of May, 2008. ~- „~ Mich el S. Naggar, airperson ATTEST: [SEAL] STATE OF CALIFORNIA ) ' COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Susan W. Jones, MMC, City Clerk/Board Secretary of the Temecula Public Financing Authority, do hereby certify that the foregoing Resolution No. TPFA 08-02 was duly and regularly adopted by the Board of Directors of the Temecula Public Financing Authority at a meeting thereof held on the 13th day of May, 2008, by the following vote: AYES: 5 BOARD MEMBERS: Comerchero, Edwards, Roberts, Washington, Naggar NOES: 0 BOARD MEMBERS: None ABSENT: 0 BOARD MEMBERS: None ABSTAIN: 0 BOARD MEMBERS: None W/ ' Susan W. Jones, MMC City Cler Board Secretary R:/rPFA Resos 2008/TPFA 08-02 5