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HomeMy WebLinkAbout2023-07-24 23-231 OrderCITY COUNCIL ACTION Council Meeting Date: Item No: Responsible Dept: Requested Action: Summary Committee Action Meeting Date: For: Against: City Manager City Solicitor Finance Director Map/Lot: Introduced for: Order Committee: Action: Staff Comments & Approvals Date: Item No: Assigned to Councilor: 23-231,As Amended J U LY 24, 2023 THAT the Finance Director, with the approval of the Finance Committee, be and hereby is authorized, in the name of and on behalf of the City, to determine the form, dates, maturities (not to exceed the maximum term permitted by law), denominations, interest rates, place of payment, provisions for redemption prior to the stated maturity date(s), with or without a premium, as provided in Title 30-A, §5772(6) of the Maine Revised Statutes, as amended, and all other details of the bonds and notes, including the timing and provision for their sale and award, on a competitive or negotiated basis, or some combination thereof, his determination and approval thereof to be conclusively evidenced by the execution thereof. THAT in each of the years during which any of the bonds are outstanding, there shall be levied a tax in an amount that, with other revenues, if any, available for that purpose, shall be sufficient to pay the interest on said bonds, payable in such years, and the principal of such bonds maturing in such years. THAT the Finance Director be and hereby is authorized, in the name of and on behalf of the City, to do or cause to be done all such acts and things, including to approve, execute and deliver all such contracts, agreements, loan agreements (including but not limited to one or more loan agreements between the City and the Bond Bank, with such usual and customary terms and provisions, not contrary to the general tenor hereof, as the Bond Bank may require), investment agreements, financial or municipal advisory agreements, underwriting agreements, bond purchase agreements, official statements, certificates, tax certificates, instruments, a Letter of Representation or other agreement required to qualify the bonds or notes for and participate in the Depository Trust Company Book-Entry Only System and such other documents (the ��Bond Documents"), as may be necessary or advisable in order to accomplish the issuance of the bonds and notes, which Bond Documents may be in such form and contain such terms and provisions including, without limitation, the waiving of the City's sovereign or governmental immunity with respect to the enforceability of any of the forgoing, and such other details as he shall approve, his approval to be conclusively evidenced by his execution thereof. THAT if the bonds or notes (or any portion thereofi� are issued on a tax-exempt basis, the Finance Director be and hereby is authorized, in the name of and on behalf of the City, to covenant and certify that no part of the proceeds of the issue and sale of the bonds or notes shall be used directly or indirectly, in such a manner as would cause such bonds or notes to be "private activity bonds" or ��arbitrage bonds" within the meaning of Sections 141 and 148 of the Internal Revenue Code of 1986, as amended (the��Code"). THAT if the bonds or notes (or any portion thereofi� are issued on a tax-exempt basis, the Finance Director be and hereby is authorized, in the name of and on behalf of the City, to covenant and agree for the benefit of the holders of such bonds or notes, that the City will file any required reports and take any other action that may be necessary to ensure that interest on the bonds or notes will remain exempt from federal income taxation and that the City will refrain from any action that would cause interest on the bonds or notes to be subject to federal income taxation. THAT if the bonds or notes (or any portion thereofi� are issued on a tax-exempt basis, the Finance Director be and hereby is authorized to take all such action as may be necessary to designate such bonds or notes as qualified tax-exempt obligations for purposes of Section 265(b) of the Code; it being the City Council's intention that, to the e�ent permitted under the Code, the bonds or notes be Section 265(b) designated and that the Finance Director with advice of bond counsel, make the required Section 265(b) election with respect to such bonds to the e�ent that the election may be available and advisable as determined by the Finance Director. THAT the Finance Director be and hereby is authorized, in the name of and on behalf of the City, to covenant, certify, and agree for the benefit of the holders of such bonds or notes,that the City will file any required reports, make any annual financial or material event disclosure, and take any other action that may be necessary to ensure that the disclosure requirements imposed by Rule 15c2 12 of the Securities and Exchange Commission, if applicable, are met. 23-231,As Amended J U LY 24, 2023 THAT the term ��cost" or��costs" as used herein and applied to Projects, or any portion thereof, includes, but is not limited to: (1) cost of feasibility studies, surveys, environmental studies and assessments, engineering, plans and specifications, legal and other professional services associated with the Projects; (2)the cost to design, construct, renovate, refurbish, improve, acquire, replace, furnish and equip the Projects; (3) the cost of land, easements and other real property interests, landscaping and site preparation, utility e�ensions, all appurtenances and other fi�ures, facilities, buildings and structures either on, above, or under the ground which are used or usable in connection with the Projects; (4) other costs of the Projects ancillary or related to the foregoing costs, and (5) issuance costs, including premiums for insurance, capitalized interest and other financing charges, fees and expenses relating to the financing transaction. THAT the proceeds of the bonds and notes (including premium), if any, and the investment earnings thereon, if any, be and hereby are appropriated for the following purposes, to be selected by the Finance Director: 1. To the cost of the Projects; 2. If the bonds or notes are issued on a tax-exempt basis, in accordance with applicable terms and provisions of the Arbitrage and Use of Proceeds Certificate delivered in connection with the sale of the bonds or notes including, to the e�ent permitted thereunder, to the City's General Fund; 3. To pay debt service on the bonds or notes. THAT if the actual cost of any Project differs from the estimated cost, whether due to completion, delay or abandonment of such Project, or for any other reason, the Finance Director is authorized, in his sole discretion, to reallocate proceeds of the bonds or notes to any other Project or to any other project or improvement that the City Council has approved or may in the future approve as part of the City's annual capital improvement plan. THAT if the Finance Director, Chair of the City Council, or Clerk are for any reason unavailable to approve and execute the bonds or notes or any related Bond Document, the person or persons then acting in any such capacity, whether on an interim or acting basis, as an assistant, a deputy, or otherwise, is authorized to act for such official with the same force and effect as if such official had himself or herself performed such act. THAT if any of the officers or officials of the City who have signed or sealed the bonds or notes shall cease to be such officers or officials before the bonds or notes so signed and sealed shall have been actually authenticated or delivered by the City, such bonds or notes nevertheless may be authenticated, issued, and delivered with the same force and effect as though the person or persons who signed or sealed such bonds notes had not ceased to be such officer or official; and also any such bonds or notes may be signed and sealed in the name of and on behalf of the City by those persons who, at the actual date of the execution of such bonds or notes, shall be the proper officers and officials of the City, although at the nominal date of such bonds or notes any such person shall not have been such officer or official. THAT any issue of bonds may be consolidated with and issued at the same time as any other issue of bonds authorized prior to their issuance, and the bonds may be divided into multiple series and issued in separate plans of financing, with the approval of the Finance Committee. THAT the following resolutions required by Section C(4)(e) of the State of Maine Revolving Loan Fund Rules, Chapter 595, Department of Environmental Protection and Maine Municipal Bond Bank (the��SRF Regulations'�, and governing the loan to be made to the City under the State Revolving Loan Fund Program be and hereby are adopted: 23-231,As Amended J U LY 24, 2023 (1) That a Project Account shall be created for the Projects which shall be separate from all other accounts of the City. If operating revenues are to be used to retire the debt, a sub-account will be established. (2) That the Project Account shall be maintained in accordance with standards set forth by the Maine Municipal Bond Bank and in accordance with generally accepted government account standards. (3) That a final accounting shall be made to the Bank of the total cost of the Projects upon completion of the Project performance certification as set out in Section G(3) of the SRF Regulations and the City acknowledges that the Bank reserves the right at its sole discretion to be provided with a cost certification of the Projects as built. (4) That an annual audit of the City, prepared by a certified public accountant or licensed public accountant be provided to the Bank for the term of the loan. (5) That the City shall maintain insurance coverage on the Projects in an amount adequate to protect the Bank's interest for the term of the loan with the Bank named as loss payee. (6) That the City will comply with any special conditions specified by the Department of Environmental Protection's environmental determination until all financial obligations to the State have been discharged. (7) That the City certify to the Bank that it has secured all permits, licenses and approvals necessary and that it has a dedicated source of revenue for repayment. (8) That the City establish a rate, charge or assessment schedule in order to pay principal and interest. Such rate change or schedule shall provide total operations and debt service coverage at a level at which the coverage for the Bank is sufficient. (9) That the City must demonstrate the ability to pay reasonably anticipated costs of operating and maintaining the financed Projects. (10) That the City abide by the SRF Regulations, as revised and amended and relevant State statutes of the State of Maine. THAT during the term any of the bonds are outstanding, in order to obtain debt service savings, the Finance Director is hereby authorized, in the name of and on behalf of the City, to issue and deliver refunding bonds on either a current or advance refunding basis, to refund some or all of the bonds then outstanding, and to determine the date, form, interest rate, maturities (not to exceed 30 years from the date of issuance of the original bonds) and all other details of such refunding bonds, including the form and manner of their sale and award. The Finance Director is hereby further authorized to provide that any of such refunding bonds authorized hereby be made callable, with or without premium, prior to their stated date(s) of maturity, and each such refunding bond shall be signed by the Finance Director, countersigned by the Chair of the City Council, sealed with the seal of the City, attested by its Clerk. THAT if, following issuance of some but less than all of the bonds authorized hereby, the Finance Director determines, in his sole discretion, that the remaining authorized but unissued bonds will not be issued in furtherance of the Projects, then the Finance Director is authorized, in the name of and on behalf of the City, to note on the financial books and records of the City, in the form and manner as she shall determine to be appropriate, that such authorized but unissued bonds will not be issued, following which notation the remaining unissued bonds shall not thereafter be issued and the authority established pursuant to this Order to issue such remaining unissued bonds shall be e,xtinguished and of no further force and effect. 23-231,As Amended J U LY 24, 2023 THAT the City may pay certain costs of the Projects prior to the issuance of the bonds and notes authorized hereby (referred to as ��original expenditures'�; to that end, the City hereby declares its official intent to reimburse itself for such original expenditures from the proceeds of such bonds and notes, and this Order shall constitute the City's declaration of official intent pursuant to Treasury Regulation §1.150-2. CITY COUNCIL ACTION Council Meeting Date: Item No: Responsible Dept: Requested Action: Summary Committee Action Meeting Date: For: Against: City Manager City Solicitor Finance Director Map/Lot: Introduced for: Order Committee: Action: Staff Comments & Approvals Date: Item No: Assigned to Councilor: 23-231 JULY 24, 203 THAT the Finance Director, with the approval of the Finance Committee, be and hereby is authorized, in the name of and on behalf of the City, to determine the form, dates, maturities (not to exceed the maximum term permitted by law), denominations, interest rates, place of payment, provisions for redemption prior to the stated maturity date(s), with or without a premium, as provided in Title 30-A, §5772(6) of the Maine Revised Statutes, as amended, and all other details of the bonds and notes, including the timing and provision for their sale and award, on a competitive or negotiated basis, or some combination thereof, his determination and approval thereof to be conclusively evidenced by the execution thereof. THAT in each of the years during which any of the bonds are outstanding, there shall be levied a tax in an amount that, with other revenues, if any, available for that purpose, shall be sufficient to pay the interest on said bonds, payable in such years, and the principal of such bonds maturing in such years. THAT the Finance Director be and hereby is authorized, in the name of and on behalf of the City, to do or cause to be done all such acts and things, including to approve, execute and deliver all such contracts, agreements, loan agreements (including but not limited to one or more loan agreements between the City and the Bond Bank, with such usual and customary terms and provisions, not contrary to the general tenor hereof, as the Bond Bank may require), investment agreements, financial or municipal advisory agreements, underwriting agreements, bond purchase agreements, official statements, certificates, tax certificates, instruments, a Letter of Representation or other agreement required to qualify the bonds or notes for and participate in the Depository Trust Company Book-Entry Only System and such other documents (the ��Bond Documents"), as may be necessary or advisable in order to accomplish the issuance of the bonds and notes, which Bond Documents may be in such form and contain such terms and provisions including, without limitation, the waiving of the City's sovereign or governmental immunity with respect to the enforceability of any of the forgoing, and such other details as he shall approve, his approval to be conclusively evidenced by his execution thereof. THAT if the bonds or notes (or any portion thereofi� are issued on a tax-exempt basis, the Finance Director be and hereby is authorized, in the name of and on behalf of the City, to covenant and certify that no part of the proceeds of the issue and sale of the bonds or notes shall be used directly or indirectly, in such a manner as would cause such bonds or notes to be "private activity bonds" or ��arbitrage bonds" within the meaning of Sections 141 and 148 of the Internal Revenue Code of 1986, as amended (the��Code"). THAT if the bonds or notes (or any portion thereofi� are issued on a tax-exempt basis, the Finance Director be and hereby is authorized, in the name of and on behalf of the City, to covenant and agree for the benefit of the holders of such bonds or notes, that the City will file any required reports and take any other action that may be necessary to ensure that interest on the bonds or notes will remain exempt from federal income taxation and that the City will refrain from any action that would cause interest on the bonds or notes to be subject to federal income taxation. THAT if the bonds or notes (or any portion thereofi� are issued on a tax-exempt basis, the Finance Director be and hereby is authorized to take all such action as may be necessary to designate such bonds or notes as qualified tax-exempt obligations for purposes of Section 265(b) of the Code; it being the City Council's intention that, to the e�ent permitted under the Code, the bonds or notes be Section 265(b) designated and that the Finance Director with advice of bond counsel, make the required Section 265(b) election with respect to such bonds to the e�ent that the election may be available and advisable as determined by the Finance Director. THAT the Finance Director be and hereby is authorized, in the name of and on behalf of the City, to covenant, certify, and agree for the benefit of the holders of such bonds or notes,that the City will file any required reports, make any annual financial or material event disclosure, and take any other action that may be necessary to ensure that the disclosure requirements imposed by Rule 15c2 12 of the Securities and Exchange Commission, if applicable, are met. 23-231 JULY 24, 203 THAT the term ��cost" or��costs" as used herein and applied to Projects, or any portion thereof, includes, but is not limited to: (1) cost of feasibility studies, surveys, environmental studies and assessments, engineering, plans and specifications, legal and other professional services associated with the Projects; (2)the cost to design, construct, renovate, refurbish, improve, acquire, replace, furnish and equip the Projects; (3) the cost of land, easements and other real property interests, landscaping and site preparation, utility e�ensions, all appurtenances and other fi�ures, facilities, buildings and structures either on, above, or under the ground which are used or usable in connection with the Projects; (4) other costs of the Projects ancillary or related to the foregoing costs, and (5) issuance costs, including premiums for insurance, capitalized interest and other financing charges, fees and expenses relating to the financing transaction. THAT the proceeds of the bonds and notes (including premium), if any, and the investment earnings thereon, if any, be and hereby are appropriated for the following purposes, to be selected by the Finance Director: 1. To the cost of the Projects; 2. If the bonds or notes are issued on a tax-exempt basis, in accordance with applicable terms and provisions of the Arbitrage and Use of Proceeds Certificate delivered in connection with the sale of the bonds or notes including, to the e�ent permitted thereunder, to the City's General Fund; 3. To pay debt service on the bonds or notes. THAT if the actual cost of any Project differs from the estimated cost, whether due to completion, delay or abandonment of such Project, or for any other reason, the Finance Director is authorized, in his sole discretion, to reallocate proceeds of the bonds or notes to any other Project or to any other project or improvement that the City Council has approved or may in the future approve as part of the City's annual capital improvement plan. THAT if the Finance Director, Chair of the City Council, or Clerk are for any reason unavailable to approve and execute the bonds or notes or any related Bond Document, the person or persons then acting in any such capacity, whether on an interim or acting basis, as an assistant, a deputy, or otherwise, is authorized to act for such official with the same force and effect as if such official had himself or herself performed such act. THAT if any of the officers or officials of the City who have signed or sealed the bonds or notes shall cease to be such officers or officials before the bonds or notes so signed and sealed shall have been actually authenticated or delivered by the City, such bonds or notes nevertheless may be authenticated, issued, and delivered with the same force and effect as though the person or persons who signed or sealed such bonds notes had not ceased to be such officer or official; and also any such bonds or notes may be signed and sealed in the name of and on behalf of the City by those persons who, at the actual date of the execution of such bonds or notes, shall be the proper officers and officials of the City, although at the nominal date of such bonds or notes any such person shall not have been such officer or official. THAT any issue of bonds may be consolidated with and issued at the same time as any other issue of bonds authorized prior to their issuance, and the bonds may be divided into multiple series and issued in separate plans of financing, with the approval of the Finance Committee. THAT the following resolutions required by Section C(4)(e) of the State of Maine Revolving Loan Fund Rules, Chapter 595, Department of Environmental Protection and Maine Municipal Bond Bank (the��SRF Regulations'�, and governing the loan to be made to the City under the State Revolving Loan Fund Program be and hereby are adopted: 23-231 JULY 24, 203 (1) That a Project Account shall be created for the Projects which shall be separate from all other accounts of the City. If operating revenues are to be used to retire the debt, a sub-account will be established. (2) That the Project Account shall be maintained in accordance with standards set forth by the Maine Municipal Bond Bank and in accordance with generally accepted government account standards. (3) That a final accounting shall be made to the Bank of the total cost of the Projects upon completion of the Project performance certification as set out in Section G(3) of the SRF Regulations and the City acknowledges that the Bank reserves the right at its sole discretion to be provided with a cost certification of the Projects as built. (4) That an annual audit of the City, prepared by a certified public accountant or licensed public accountant be provided to the Bank for the term of the loan. (5) That the City shall maintain insurance coverage on the Projects in an amount adequate to protect the Bank's interest for the term of the loan with the Bank named as loss payee. (6) That the City will comply with any special conditions specified by the Department of Environmental Protection's environmental determination until all financial obligations to the State have been discharged. (7) That the City certify to the Bank that it has secured all permits, licenses and approvals necessary and that it has a dedicated source of revenue for repayment. (8) That the City establish a rate, charge or assessment schedule in order to pay principal and interest. Such rate change or schedule shall provide total operations and debt service coverage at a level at which the coverage for the Bank is sufficient. (9) That the City must demonstrate the ability to pay reasonably anticipated costs of operating and maintaining the financed Projects. (10) That the City abide by the SRF Regulations, as revised and amended and relevant State statutes of the State of Maine. THAT during the term any of the bonds are outstanding, in order to obtain debt service savings, the Finance Director is hereby authorized, in the name of and on behalf of the City, to issue and deliver refunding bonds on either a current or advance refunding basis, to refund some or all of the bonds then outstanding, and to determine the date, form, interest rate, maturities (not to exceed 30 years from the date of issuance of the original bonds) and all other details of such refunding bonds, including the form and manner of their sale and award. The Finance Director is hereby further authorized to provide that any of such refunding bonds authorized hereby be made callable, with or without premium, prior to their stated date(s) of maturity, and each such refunding bond shall be signed by the Finance Director, countersigned by the Chair of the City Council, sealed with the seal of the City, attested by its Clerk. THAT if, following issuance of some but less than all of the bonds authorized hereby, the Finance Director determines, in his sole discretion, that the remaining authorized but unissued bonds will not be issued in furtherance of the Projects, then the Finance Director is authorized, in the name of and on behalf of the City, to note on the financial books and records of the City, in the form and manner as she shall determine to be 23-231 JULY 24, 203 appropriate, that such authorized but unissued bonds will not be issued, following which notation the remaining unissued bonds shall not thereafter be issued and the authority established pursuant to this Order to issue such remaining unissued bonds shall be e,xtinguished and of no further force and effect. THAT the City may pay certain costs of the Projects prior to the issuance of the bonds and notes authorized hereby(referred to as��original expenditures"); to that end, the City hereby declares its official intent to reimburse itself for such original expenditures from the proceeds of such bonds and notes, and this Order shall constitute the City's declaration of official intent pursuant to Treasury Regulation §1.150-2. IN CITY COUNCIL JULY 24, 2023 COrd 23-231 Motion made and seconded for First Reading and Referral to Finance Committee Meeting on August 7, 2023 Vote: 7—0 Councilors Voting Yes: Davitt, Hawes, Pelletier, Schaefer, Sprague, Yacoubagha, Fournier Councilors Voting No: None Passed ���.�` � M,�� �������w������ � �s� CITY CLERK IN CITY COUNCIL AUGUST 14, 2023 COrd 23-231 Motion made and seconded to Open Public Hearing Public Hearing Opened Michael Beck raised concern that this item was not listed on the Agenda or discussed during the Finance Committee on August 1, 2023. Motion made and seconded to Close Public Hearing Motion made and seconded to refer back to Finance Committee Passed ���.�` � M,�� �������w������ � �s� CITY CLERK IN CITY COUNCIL AUGUST 28, 2023 COrd 23-231 Motion made and seconded for Passage Motion made and seconded to Amend by Substitution Vote: 7—0 Councilors Voting Yes: Davitt, Pelletier, Schaefer, Sprague, Tremble, Yacoubagha, Fournier Councilors Voting No: None Amendment Passed Motion made and seconded to Open Public Hearing Public Hearing Opened Motion made and seconded to Close Public Hearing Public Hearing Closed Motion made and seconded for Passage as Amended Vote: 7—0 Councilors Voting Yes: Davitt, Pelletier, Schaefer, Sprague, Tremble, Yacoubagha, Fournier Councilors Voting No: None Passed �����:,w�,��° '" .�� ��°,„�,��"���,°��*°.������ �� CITY CLERK