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HomeMy WebLinkAboutReso 2011-162RESOLUTION N0.201 ] -162 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE EXECUTION AND DELIVERY OF A TAXABLE QUALIFIED ENERGY CONSERVATION BOND EQUIPMENT LEASE/PURCHASE AGREEMENT (DIRECT SUBSIDY) WITH RESPECT TO THE ACQUISITION, PURCHASE, FINANCING AND LEASING OF CERTAIN ENERGY CONSERVATION EQUIPMENT; AUTHORIZING THE EXECUTION AND DELIVERY OF A PURCHASE CONTRACT, ACQUISITION FUND AGREEMENT AND OTHER DOCUMENTS REQUIRED IN CONNECTION THEREWITH; AND AUTHORIZING THE TAKING OF ALL OTHER ACTIONS NECESSARY TO THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS RESOLUTION WHEREAS, the City of Chula Vista (the "City"), a municipal corporation and a chartered city duly organized and existing under and pursuant to the Constitution and laws of the State of Califomia, is authorized by the laws of the State of California to purchase, acquire and lease personal property for the benefit of the City and its inhabitants and to enter into contracts with respect thereto; and WHEREAS, the City desires to lease and purchase certain equipment and other personal property with an aggregate cost not to exceed $2,256,207.58 for energy facilities (the "Energy Conservation Equipment") that constitute a qualified energy conservation project that qualifies as a "qualified conservation purpose" under Section 54D(fl of the Internal Revenue Code of 1986, as amended (the "Code"); and WHEREAS, in connection with the financing of the acquisition and installation of the Energy Conservation Equipment, Banc of America Leasing & Capital, LLC (in such capacity, the "Offeror") has submitted to the City its written offer that, upon acceptance by the City, wilt constitute a binding written contract (the "Purchase Contract") to enter into that certain Taxable QECB Equipment Lease/Purchase Agreement (Direct Subsidy) (the "Agreement") between the City and Banc of America Leasing & Capital, LLC (or one of its affiliates) (in such capacity, the "Lessor") and that certain Acquisition Fund and Account Control Agreement (the "Acquisition Fund Agreement") among the City, the Lessor and the Acquisition Fund Custodian therein identified, and the Purchase Contract executed by the Offeror and the forms of the Agreement and the Acquisition Fund Agreement have been presented to the City Council of the City at this meeting; and WHEREAS, the City desires to designate the aggregate principal component of Rental Payments under the Agreement for purposes Section 54D(a)(3) of the Code as a "qualified energy conservation bond" within the meaning of Section 54D(a) of the Code; and Resolution No. 2011-162 Page 2 WHEREAS, the City desires to receive direct cash subsidy payments from the United States Department of Treasury as provided by Section 6431 of the Code with respect to the Agreement and, in that connection, to irrevocably elect to have Section 6431(f) of the Code apply to the Agreement; and WHEREAS, the City Council of the City deems it for the benefit of the City and for the efficient and effective administration thereof to enter into the Purchase Contract, the Agreement and the Acquisition Fund Agreement (collectively, the "Financing Agreements") and the documentation related to the financing of the Energy Conservation Equipment on the terms and conditions therein provided. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby resolve as follows: SECTION 1. Defined Terms. Capitalized terms that aze used, but not defined, in this Resolution shall have the same meaning as when such terms are used in the preambles to this Resolution. SECTION 2. Approval and Authorization of Purchase Contract. The form, terms and provisions of the Purchase Contract are hereby approved and each of the Mayor, the City Manager, the Finance Director or their designees (together, the "Authorized Officers") of the City acting alone is hereby authorized and directed to accept, execute and deliver the Purchase Contract for and on behalf of the City in substantially the same form presented at this meeting and with such non-material or minor modifications as necessary to further the intent and spirit of the Purchase Contract, which modifications shall be subject to the review and approval of the City Attorney. The Purchase Contract shall be effective and binding on the City upon such acceptance, execution and delivery on behalf of the City. SECTION 3. Approval and Authorization of Agreement and Acquisition Fund Agreement. The form, terms and provisions of the Agreement and the Acquisition Fund Agreement aze hereby approved in substantially the same form presented at this meeting, with such non-material or minor modifications as necessary to further the intent and spirit of the Agreement and Acquisition Fund Agreement, which modifications shall be subject to the review and approval of the City Attomey. Each of the Authorized Officers is hereby authorized and directed to execute, and the City Clerk of the City or any Deputy City Clerk is hereby authorized and directed to attest, the Agreement (including any related Exhibits attached thereto) and the Acquisition Fund Agreement and to deliver the Agreement (including such Exhibits) and the Acquisition Fund Agreement to the respective parties thereto. SECTION 4. Designation for Purposes of Section 54D(al(31 of the Internal Revenue Code of 1986; Irrevocable Election. The City hereby designates the Agreement for purposes Section 54D(a)(3) of the Code as a "qualified energy conservation bond" within the meaning of Section 54D(a) of the Code. The City hereby further irrevocably elects to have Section 6431(f) of the Code apply to the Agreement. Resolution No. 201 l -162 Page 3 SECTION 5. Other Actions Authorized. The officers and employees of the City shall take all action necessary or reasonably required by the parties to the Financing Agreements to carry out, give effect to and consummate the transactions contemplated thereby (including the execution and delivery of Acceptance Certificates and any tax certificate and agreement, as contemplated in the Agreement) and to take all action necessary in conformity therewith, including, without limitation, the execution and delivery of any closing and other documents required to be delivered in connection with any of the Financing Agreements. SECTION 6. Appointment of Authorized Lessee Representatives. Each of the Authorized Officers is hereby designated to act as authorized representatives of the City for purposes of the Agreement and the Acquisition Fund Agreement until such time as the City Council of the City shall designate any other or different authorized representative for purposes of the Agreement and the Acquisition Fund Agreement. SECTION 7. Severability. If any section, paragraph, clause or provision of this Resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Resolution. SECTION 8. Repealer. All bylaws, orders and resolutions or parts thereof, inconsistent herewith, are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed as reviving any bylaw, order, resolution or ordinance or part thereof. SECTION 9. Effect. This Resolution shall take effect immediately upon its passage. Presented by Mari Kachadoorian Dir for of Finance/Treasurer Approved as to form by V en R. ogin ey Resolution No. 2011-162 Page 4 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 16th day of August 2011 by the following vote: AYES: Councilmembers: Aguilar, Castaneda, Ramirez and Cox NAYS: Councilmembers: None ABSENT: Councilmembers: Bensoussan Cheryl Cox, Ma r ATTEST: ~Lu-2 0 ~ Donna R. Norris, C, City Clerk STATE OF CALIFORNIA COUNTY OF SAN DIEGO CITY OF CHULA VISTA I, Donna R. Norris, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2011-162 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 16th day of August 2011. Executed this 16th day of August 2011. ~ ~~~ Donna R. Norris, CMC, City Clerk