HomeMy WebLinkAboutResolution 2004-066 N.C.S. 05/03/2004 Resolution No. 2004-066 N.C.S.
of the City of Petaluma, California
AUTHORIZING ISSUANCE OF
LIMITED OBLIGATION REFUNDING IMPROVEMENTS BONDS
CONSOLIDATED REASSESSMENT AND REFUNDING DISTRICT OF 2004
(ASSESSMENT DISTRICTS NOS. 24 AND 25)
WHEREAS, the City Council (the "Council") of the City of Petaluma (the "City"),
County of Sonoma (the "County"), California, has heretofore conducted special assessment and
assessment bond proceedings in and for the assessment districts (the "Prior Districts") and,
through the adoption of resolutions of issuance (the "Prior Resolutions"), has provided for the
issuance of special assessment bonds (the "Prior Bonds") in and for the Prior Districts, all as set
forth in Exhibit A attached hereto and hereby made a part hereof; and,
WHEREAS, on May 3, 2004, the Council adopted its Resolution of Intention to Levy
Reassessments and to Issue Limited Obligation Refunding Improvement Bonds Upon the
Security Thereof, (the "Resolution of Intention") relating to the levy of reassessments and
issuance of refunding bonds pursuant to the Refunding Act of 1984 for 1915 Improvement
Bonds, Division 11.5 (commencing with Section 9500) of the Streets and Highways Code of
California (the "Act") in and for the City's Consolidated Reassessment and Refunding District of
2004 (Assessment Districts Nos. 24 and 25) (the "Reassessment District"); and,
WHEREAS, by the Resolution of Intention, the Council provided that refunding
. improvement bonds (the "Bonds"), as more particularly described herein would be issued in the
proceedings under the Resolution of Intention and reference to the Resolution of Intention is
hereby expressly made for further particulars; and,
WHEREAS, this Council has completed its proceedings under the Resolution of
Intention for the levy of reassessments, has caused all recordings and filings to be completed in
accordance with the requirements of the Act and by this Resolution intends to provide for the
issuance of the Bonds; and,
WHEREAS, as provided in the proceedings under the Resolution of Intention, the
proceeds of the Bonds shall be used to retire the Prior Bonds, in advance of their scheduled
maturities, and to pay the costs of issuance of the Bonds; and,
WHEREAS, this Council now intends to provide for the issuance of the Bonds upon the
security of the unpaid reassessments, all as hereinafter provided.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Petaluma as
follows:
Resolution No. 2004-066 N.C.S.
ARTICLE I
DEFINITIONS; GENERAL
Section 1.01. DEFINITIONS. Unless the context otherwise requires, the terms defined
in this Section shall, for all purposes of this Resolution and of any Supplemental Resolution and
of the Bonds and of any certificate, opinion, request or other document herein mentioned, have
the meanings herein specified. All references in this Resolution to "Articles," "Sections," and
other subdivisions are to the corresponding Articles, Sections or subdivisions of this Resolution;
and the words "herein," hereof," "hereunder" and other words of similar import refer to this
Resolution as a whole and not to any particular Article, Section or subdivision hereof. Words of
the masculine gender shall be deemed and construed to include correlative words of the feminine
and neuter genders. Unless the context shall otherwise indicate, words importing the singular
number shall include the plural number and vice versa, and words importing persons shall
include corporations and associations, including public bodies, as well as natural persons.
"Act" means the Refunding Act of 1984 for 1915 Improvement Act Bonds, Division 11.5
of the Streets and Highways Code of California.
"Agent" means Finance Director, designated in Section 2.01 hereof to perform the duties
of authentication, registration, transfer and payment of the Bonds and the Agent's assigns or any
corporation or association which may at any time be substituted in the Agent's place.
"Auditor" means the auditor/controller or tax collector of the County, or such other
official of the County who is responsible for preparing real property tax bills.
"Authorized Officer" means the Mayor, City Manager, Finance Director, Interim or
Acting Finance Director, Director of Public Works, City Engineer, Treasurer, Interim or Acting
Treasurer, City Clerk, City Attorney or any other officer or employee authorized by the City
Council of the City or by an Authorized Officer to undertake the action referenced in this
Resolution as required to be undertaken by an Authorized Officer.
"Available Surplus Funds" means any surplus moneys held by the City at the end of
each Fiscal Year in excess of the amounts required to pay lawful municipal obligations incurred
in that Fiscal Year.
"Bond" or "Bonds "means "Limited Obligation Refunding Improvement Bonds, City of
Petaluma, Consolidated Reassessment and Refunding District of 2004 (Assessment Districts
Nos. 24 and 25)" issued under this Resolution, the Act and the Bond Law and at any time
Outstanding, in substantially the form of Exhibit C attached.
"Bond CounseP' means Jones Hall, A Professional Law Corporation, or any attorney or
firm of attorneys of nationally recognized expertise with respect to legal matters relating to
obligations the interest on which is excludable from gross income under Section 103 of the Tax
Code.
Resolution No. 2004-066 N.C.S. Page 2
"Bond Date" means the dated date of the Bonds specified in Exhibit B attached hereto
and made a part hereof.
"Bond Denomination" means the amount of $5,000 or any integral multiple thereof,
which is the minimum amount in which the Bonds may be issued, except that one Bond may
contain any odd amount.
"Bo~zd Law" means the Improvement Bond Act of 1915, Division 10 of the California
Streets and Highways Code.
"Bo~zd Purchase Agreement" means the agreement between the City and the Original
Purchaser for the sale and purchase of the Bonds.
"Bond Register" means the books maintained by the Agent pursuant to Section 2.07 for
the registration and transfer of ownership of the Bonds.
"Bond Year" means the twelve-month period beginning on September 2 in each year and
ending on the day prior to September 2 in the following year except that (i) the first Bond Year
shall begin on the Closing Date and end on the day prior to the next September 2, and (ii) the last
Bond Year may end on a prior redemption date.
"Business Day" means any day other than (i) a Saturday or a Sunday or (ii) a day on
which banking institutions in the state in which the Agent has its Principal Office are authorized
or obligated by law or executive order to be closed.
"City" means the City of Petaluma a municipal corporation and chartered city of the State
of
California duly organized and validly existing under and by virtue of the Constitution and the
laws of the State of California.
"City Attorney" means the duly appointed or retained attorney or firm of attorneys to the
City for purposes of rendering advice in the conduct of its general municipal affairs.
"City Manager" means the City Manager or the Assistant City Manager of the City.
"Clerk" means the City Clerk of the City or Deputy City Clerk or designee thereof.
"Closing Date" means the date upon which there is an exchange of any of the Bonds for
the proceeds representing the purchase price of such Bonds by the Original Purchaser thereof.
"Continuing Disclosure Certificate" means any such certificate provided under Section
5.13 hereof.
"Costs of Issuance" means all expenses incurred in connection with the authorization,
issuance, sale and delivery of the Bonds, including but not limited to compensation, fees and
expenses of the City and the Agent and their respective counsel, compensation to any financial
consultants and underwriters (other than those taken as discount on the Closing Date), legal fees
and expenses, filing and recording costs, costs of preparation and reproduction of documents,
Resolution No. 2004-066 N.C.S. Page 3
costs of compliance with the Tax Code relating to any rebate to the United States and continuing
disclosures and the costs of printing, mailing and publication of notices with respect to the City.
"Costs of Issuance Fund" means the fund designated "City of Petaluma, Limited
.Obligation Refunding Improvement Bonds, Consolidated Reassessment and Refunding District
of 2004 (Assessment Districts Nos. 24 and 25), Costs of Issuance Fund established under Section
4.02 hereof.
"CounciP' means the City Council as the legislative body of the City.
"Cou~rty" means the County of Sonoma, State of California.
"Debt Service" means, for each Bond Year, the sum of (i) the interest due on the
Outstanding Bonds in such Bond Year, assuming that the Outstanding Bonds are retired as
scheduled, and (ii) the principal amount of the Outstanding Bonds due in such Bond Year.
"Depository or Securities Depositories" means The Depository Trust Company, 711
Stewart Avenue, Garden City, New York 11530, Fax - (516) 227-4171 or 4190; Philadelphia
Depository Trust Company, Reorganization Division, 1900 Market Street, Philadelphia,
Pennsylvania 19103, Attention: Bond Department, Fax - (215) 496-5058; and, in accordance
with then current guidelines of the Securities and Exchange Commission, such other addresses
and/or such other securities depositories as the City may designate in an Officer's Certificate
delivered to the Agent
"DTC" means the Depository Trust Company, New York, New York and its successors
and assigns.
"Escrow Agreement" means the Escrow Agreement dated as of the Closing Date, by and
between the City and the Escrow Holder, by which the Escrow Fund is established and
administered.
"Escrow Fund" means the fund designated "Limited Obligation Refunding Improvement
Bonds, City of Petaluma, Consolidated Reassessment and Refunding District of 2004
(Assessment Districts Nos. 24 and 25), Prior Bonds Escrow Fund established and administered
under Section 4.05 hereof.
"Escrow Holder" means JP Morgan Chase Bank acting as Escrow Holder under the
Escrow Agreement.
"Fair Market Value" means the price at which a willing buyer would purchase the
investment from a willing seller in a bona fide, arm's length transaction (determined as of the
date the contract to purchase or sell the investment becomes binding) if the investment is traded
on an established securities market (within the meaning of section 1273 of the Tax Code) and,
otherwise, the term "Fair Market Value" means the acquisition price in a bona fide arm's length
transaction (as referenced above) if (i) the investment is a certificate of deposit that is acquired in
accordance with applicable regulations under the Tax Code, (ii) the investment is an agreement
with specifically negotiated withdrawal or reinvestment provisions and a specifically negotiated
Resolution No. 2004-066 N.C.S. Page 4
interest rate (for example, a guaranteed investment contract, a forward supply contract or other
investment agreement) that is acquired in accordance with applicable regulations under the Tax
Code, (iii) the investment is a United States Treasury Security--State and Local Government
Series that is acquired in accordance with applicable regulations of the United States Bureau of
Public Debt, or (iv) any commingled investment fund in which the City and related parties do not
own more than a ten percent (10%) beneficial interest if the return paid by such fund is without
regard to the source of the investment.
"Federal Securities" means any of the following which at the time of investment are
legal investments under the laws of the State for the moneys proposed to be invested therein:
(a) direct general obligations of the United States of America (including
obligations issued or held in book entry form on the books of the. Department of the
Treasury of the United States of America); and
(b) obligations of any department, agency or instrumentality of the United
States of America the timely payment of principal of and interest on which are
unconditionally and fully guaranteed by the United States of America.
"Finance Director" means the chief financial officer of the City or designee thereof,
including any interim or acting finance director or any deputy thereof or assistant.
"Fiscal Year" means the period commencing on July 1 of each year and ending on the
next succeeding June 30.
"Information Services" means Financial Information, Inc.'s "Daily Called Bond
Service," 30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302, Attention: Editor;
Kenny Information Services' "Called Bond Service," 65 Broadway, 16th Floor, New York, New
York 10006; Mergent/FIS, 5250 77 Center Drive, Suite 150, Charlotte, North Carolina, 28217,
Attn: Called Bond .Dept.; Standard & Poor's Corporation "Called Bond Record," 25 Broadway,
3rd Floor, New York, New York 10004; .and, in accordance with then current guidelines of the
Securities and Exchange Commission, such other addresses and/or such services providing
information with respect to called bonds as the City may designate in an Officer's Certificate
delivered to the Agent.
"Interest Payment Date" means each date upon which interest on the Bonds is payable
semiannually on each March 2 and September 2 until maturity and beginning on the date
specified in Exhibit B.
"Officer's Certificate" means a written certificate or similar document executed by an
Authorized Officer on behalf of the City.
"Official Statement" or "Preliminary Official Statement" means the final or preliminary
versions of the official statement for the Bonds approved under Section 3.08.
"Original Purchaser" means City National Bank as the first purchaser of the Bonds from
the City under the Bond Purchase Agreement.
Resolution No. 2004-066 N.C.S.. Page 5
"Outstanding," when used as of any particular time with reference to Bonds, means all
Bonds theretofore executed, issued and delivered by the City and authenticated by the Agent
under this Resolution except:
(a) Bonds theretofore canceled by the Agent or surrendered to the Agent for
cancellation;
(b) Bonds paid or deemed to have been paid within the meaning of Section
2.03; and
(c) Bonds in lieu of or in substitution for which other Bonds shall have been
executed, issued and delivered by the City pursuant to this Resolution or any
Supplemental Resolution.
"Owner" or "Registered Owner," when used with respect to any Outstanding Bond,
means the person in whose name the ownership of such Bond shall be registered on the Bond
Register.
"Participating Underwriter" means an underwriter or purchaser of the Bonds under the
Continuing Disclosure Certificate.
"Permitted Iirvestments" means the following, but only to the extent that the same are
acquired at Fair Market Value:
(a) Federal Securities;
(b) securities (other than those identified in paragraphs (a) and (d) of Section
53601 of the Government Code of the State) in which the City may legally invest funds
subject to its control, pursuant to Article 1, commencing with Section 53600, of Chapter
4 of Part 1 of Division 2 of Title 5 of the Government Code of the State, as now or
hereafter amended;
(c) shares in a California common law trust established pursuant to Title 1,
Division 7, Chapter 5 of the California Government Code which invests exclusively in
investments permitted by Section 53635 of Title 5, Division 2, Chapter 4 of the
California Government Code, as it may be amended, including but not limited to the
California Asset Management Program (CAMP);
(d) the Local Agency Investment Fund of the State of California, created
pursuant to Section 16429.1 of the California Government Code, to the extent the Finance
Director is authorized to register such investment in the City's name;
(e) investment agreements or guaranteed investment contracts, with or
guaranteed by a financial entity whose long-term unsecured obligations are rated "AA" or
better by Moody's Investor's Service ("Moody's) and Standard and Poor's Ratings Group
("S&P"), and whose short term debt is rated no lower than the corresponding level of
Resolution No. 2004-066 N.C.S. Page 6
rating category for such debt and such agreement or contract shall provide that the
financial entity shall deposit collateral with a third party in accordance with criteria
established by Moody's and S&P in the event that the rating of short or long-term debt of
the entity is downgraded below then-current requirements of Moody's and S&P for such
agreements or contracts;
(f) money market funds which are rated Am or better by S&P;
(g) any of the following direct or indirect obligations of the following
agencies of the United States of America: (i) direct obligations of the Export-Import
Bank; (ii) certificates of beneficial ownership issued by the Farmers Home
Administration; (iii) participation certificates issued by the General Services
Administration; (iv) mortgage-backed bonds or pass-through obligations issued and
guaranteed by the Government National Mortgage Association, the Federal National
Mortgage Association, the Federal Home Loan Mortgage Corporation or the Federal
Housing Administration; (v) project notes issued by the United States Department of
Housing and Urban Development; and (vi) public housing notes and bonds guaranteed by
the United States of America;
(h) interest-bearing demand or time deposits (including certificates of deposit)
in federal or state chartered savings and loan associations or in federal or State of
California banks (including the Agent), provided that (i) the unsecured short-term
obligations of such commercial bank or savings and loan association shall be rated Al or
better by S&P, or (ii) such demand or time deposits shall be fully insured by the Federal
Deposit Insurance Corporation;
(i) commercial paper rated in the highest short-term rating category by S&P,
issued by corporations which are organized and operating within the United States of
America, and which matures not more than 180 days following the date of investment
therein;
(j) bankers acceptances, consisting of bills of exchange or time drafts drawn
on and accepted by a commercial bank whose short-term obligations are rated in the
highest short-term rating category by S&P, which mature not more than 270 days
following the date of investment therein;
(k) obligations the interest on which is excludable from gross income pursuant
to Section 103 of the Tax Code and which are rated A or better by S&P.
"Prepayment Account" means the account of that name within the Redemption Fund.
"Principal Amount" means the aggregate principal amount of the Bonds as set forth in
Exhibit B.
"Principal Office" means the office of the Agent in Petaluma, California, or such other
office as shall be designated by the Agent in writing to the City, or such other office of the Agent
designated by the Agent for payment, transfer or exchange of the Bonds.
Resolution No. 2004-066 N.C.S. Page 7
"Prior Bonds" means the bonds of the City for the Prior Districts described in Exhibit A.
"Prior Bonds Resolutions" means the resolutions of issuance for the Prior Bonds as
described in Exhibit A.
"Project" means, collectively, the acquisitions and improvements funded with all or a
portion of the proceeds of the Prior Bonds.
"Reassessment or Reassessments" means the unpaid amounts of the special
reassessments levied against all taxable real property within the boundaries of the Reassessment
District pursuant to the Act and the proceedings of the Council under the Resolution of Intention,
for the purpose of paying Debt Service on the Bonds.
"Reassessment District" means the City's Consolidated Reassessment and Refunding
District of 2004 (Assessment Districts Nos. 24 and 25) established by the Council in proceedings
under the Act and the Resolution of Intention.
"Record Date" means, the fifteenth (15th) day of the calendar month immediately
preceding an Interest Payment Date.
"Redemption Fund" means the fund designated "City of Petaluma, Limited Obligation
Refunding Improvement Bonds, Consolidated Reassessment and Refunding District of 2004
(Assessment Districts Nos. 24 and 25), Redemption Fund" established under Section 4.03 hereof.
"Redemption Premium" means the percentage of the principal amount of the Bonds
payable upon redemption of the Bonds, as set forth in Exhibit B hereto.
"Refunding Date" means September 2, 2011 being the date before which the Bonds are
not subject to refunding under Section 3.06.
"Reserve Fu~rd" means the fund designated "City of Petaluma, Limited Obligation
Refunding Improvement Bonds, Consolidated Reassessment and Refunding District of 2004
(Assessment Districts Nos. 24 and 25), Reserve Fund" established under Section 4.04 hereof.
"Reserve Requirement" means an amount of not to exceed 6.35% of the Principal
Amount of the Bonds.
"Resolution" or "Resolution of Issuance" means this Resolution, as originally adopted
or as it may from time to time be supplemented, modified or amended by any Supplemental
Resolution pursuant to the provisions hereof.
"Resolution of Intention" means the resolution entitled "Resolution of Intention to Levy
Reassessments and. to Issue Limited Obligation Refunding Improvement Bonds Upon the
Security Thereof," adopted by the Council on May 3, 2004.
"State" means the State of California.
Resolution No. 2004-066 N.C.S. Page 8
"Supplemental Resolution" means any resolution, agreement, resolution or other
instrument hereafter duly adopted or executed by the City in accordance with the provisions of
this Resolution.
"Tax Code" means the Internal Revenue Code of 1986 as in effect on the date of issuance
of the Bonds or (except as otherwise referenced herein) as it may be amended to apply to
obligations issued on the date of issuance of the Bonds, together with applicable proposed,
temporary and final regulations promulgated, and applicable official public guidance published,
under the Tax Code.
"Term Bonds" means any of the Bonds defined as such under Section 2.02.
"Treasurer" means the official who is the elected City treasurer, or the deputy or
designee thereof, or which official maybe the Finance Director.
Section 1.02. UNPAID REASSESSMENTS. The Reassessments are as shown on the
list of unpaid reassessments on file with the Finance Director which list is hereby approved and
which is incorporated herein by this reference and made a part .hereof. For a particular description
of the lots or parcels of land bearing the respective assessment numbers set forth in the list,
reference is hereby made to the reassessment and to the diagram, and any amendments thereto,
recorded in the office of the Officer of the City who is the Superintendent of Streets of the City
after confirmation thereof by the Council.
Section 1.03. EQUAL SECURITY. In consideration of the acceptance of the Bonds by
the Owners thereof, this Resolution shall be deemed to be and shall constitute a contract between
the City and the Owners from time to time of the Bonds,; and the covenants and agreements
herein set forth to be performed on behalf of the City shall be for the equal and proportionate
benefit, security and protection of all Owners of the Bonds without preference, priority or
distinction as to security or otherwise of any of the Bonds over any of the others by reason of the
number or date thereof or the time of sale, execution or delivery thereof, or otherwise for any
cause whatsoever, except as expressly provided therein or herein.
Resolution No. 2004-066, N.C.S. Page 9
ARTICLE II
THE BONDS
Section 2.01. BONDS AUTHORIZED. All acts, conditions and things required by law
to exist, happen and be performed precedent to and in the issuance of the Bonds have existed,
happened and been performed in due time, form and manner as required by law, and the Council
is now authorized pursuant to each and every requirement of law to issue the Bonds in the
manner and form as provided in this Resolution. The Bonds in the Principal Amount are hereby
authorized and will be issued as serial and/or term bonds as set forth in the Bond Purchase
Agreement and Exhibit B hereto. The Agent, at the Principal Office, is hereby designated as the
Agent to perform the actions and duties required under this Resolution for the authentication,
transfer, registration, and payment of the Bonds.
Section 2.02. TERMS OF BONDS.
(A) Denominations. The Bonds shall be issued as fully registered Bonds without
coupons in the Bond Denomination or any integral multiple thereof, except that the first maturity
may contain any odd amount. Bonds shall be lettered and numbered in a customary manner as
determined by the Agent.
(B) Date of Bonds. The Bonds shall be dated the Closing Date.
(C) CUSIP. "CUSIP" identification numbers shall be imprinted on the Bonds, but
such numbers shall not constitute a part of the contract evidenced by the Bonds and any error or
omission with respect thereto shall not constitute cause for refusal of any purchaser to accept
delivery of and pay for the Bonds. Failure of the City or the Agent to use such CUSIP numbers in
any notice to Owners shall not constitute an event of default or any violation of the City's
contract with such Owners and shall not impair the effectiveness of any such notice.
(D) Series and Maturities. The Bonds shall mature and be payable in the amounts
and at the times as provided in Exhibit B.
(E) Interest. The Bonds shall bear interest at the rates set forth in Exhibit B payable
on the Interest Payment Dates in each year. Interest shall be calculated on the basis of a 360-day
year composed of twelve 30-day months. Each Bond shall bear interest from the Interest
Payment Date next preceding the date of authentication and registration thereof unless it is
authenticated and registered (i) prior to an Interest Payment Date and after the close of business
of the Record Date, in which event it shall bear interest from such Interest Payment Date, or (ii)
prior to the close of business on the Record Date preceding the first Interest Payment Date, in
which event it shall bear interest from the Dated Date.
(F) Method of Payment. Both the principal of and interest and premium (if any) on
the Bonds shall be payable in lawful money of the United States of America. Interest on the
Bonds (including the final interest payment upon maturity or earlier redemption) is payable by
check of the Agent mailed by first class mail to the registered Owner thereof at such registered
Owner's address as it appears on the registration books maintained by the Agent at the close of
Resolution No. 2004-066 N.C.S. Page 10
business on the Record Date preceding the Interest Payment Date, or by wire transfer made on
such Interest Payment Date upon written instructions of any Owner of $1,000,000 or more in
aggregate principal amount of Bonds delivered to the Agent prior to the applicable Record Date.
The principal of the Bonds and any premium on the Bonds are payable in lawful money of the
United States of America upon surrender of the Bonds at the Principal Office of the Agent. All
Bonds paid by the Agent pursuant this Section shall be canceled by the Agent. The Agent shall
destroy the canceled Bonds and, upon request of the City, issue a certificate of destruction of
such Bonds to the City.
Section 2.03. REDEMPTION.
(A) General.
(i) Mandatory Prepayment Account Redemption. Each Outstanding
Bond, or any portion of the principal thereof, in the principal amount of $5,000 or any
integral multiple of $5,000, will be redeemed and paid in advance of maturity using any
funds available therefor in the Prepayment Account, on any Interest Payment Date in any
year by giving notice as provided in (C) below and by paying the principal amount
thereof, plus any applicable Redemption Premium (as set forth on Exhibit B), plus
interest to the date of redemption unless sooner surrendered, in which event interest will
be paid to the date of payment, all in the manner and as provided in the Bond Law. The
provisions of Part 11.1 of the Bond Law are applicable to the advance payment of
Reassessments and to the calling of the Bonds.
(ii) Optional Redemption The Bonds are subject to redemption from sources
of moneys other than payments, including the proceeds of refunding bonds, on the
Redemption Dates and at the Redemption Premiums set forth in Exhibit B by giving
notice as provided in herein and by paying the principal amount thereof, plus interest to
the date of redemption unless sooner surrendered, in which event interest will be paid to
the date of payment.
(iii) Mandatory Sinking Fund Redemption. The Term Bonds are subject to
mandatory redemption in part by lot, from Sinking Fund Payments made by the .Agent
from the Redemption Fund, at a redemption price equal to the principal amount thereof to
be redeemed, without premium, in the aggregate respective principal amounts set forth in
the table in Exhibit B; provided, however, if some but not all of the Term Bonds of a
given maturity have been redeemed through a mandatory prepayment redemption under
subsection (A)(i) above or through an optional redemption under subsection (A)(ii)
above, the total amount of all future Sinking Fund Payments relating to such maturity
shall be reduced by the aggregate principal amount of Term Bonds of such maturity so
redeemed, to be allocated among such Sinking Fund Payments on a pro rata basis in
integral multiples of $5,000 as determined by the Agent.
(B) Notice to Agent. In the event it is transmitting moneys for deposit in the
Prepayment Account of the Redemption Fund, the City shall give the Agent written notice of the
aggregate amount of Bonds expected to be redeemed pursuant to subsection (A) not less than
sixty (60) days prior to the applicable redemption date.
Resolution No. 2004-066 N.C.S. Page I 1
(C) Redemption Procedure by Agent. Under subsections (A) (i) or (ii) above, the
Agent shall select Bonds for retirement in such a way that the ratio of Outstanding Bonds to
issued Bonds shall be approximately the same in each annual series insofar as possible. Within
each annual series the Agent shall select Bonds for retirement by lot. The Agent shall cause
written notice of any redemption to be given by registered or certified mail or by personal service
to the respective registered Owners of any Bonds designated for redemption, at their addresses
.appearing on the Bond Register in the Principal Office of the Agent at least 30 days before the
applicable Interest Payment Date. The Agent shall also cause notice of redemption to be sent to
the Securities Depositories and to one or more of the Information Services at least one day earlier
than the giving of notice to the Owners as aforesaid; provided, however, such mailing to the
Securities Depositories and Information Services shall not be a condition precedent to such
redemption. Failure to so mail any notice of redemption, or of any person or entity to receive any
such notice, or any defect in any notice of redemption, shall not affect the validity of the
proceeding for the redemption of such Bonds.
Such notice shall state the redemption date and the redemption price and, if less than all
of the then Outstanding Bonds are to be called for redemption, shall designate the CUSIl'
numbers (if applicable) and Bond numbers of the Bonds to be redeemed by giving the individual
CUSIP number and Bond number of each Bond to be redeemed or shall state that all Bonds
between two stated Bond numbers, both inclusive, are to be redeemed or that all of the Bonds of
one or more maturities have been called for redemption, shall state as to any Bond called in part
the principal amount thereof to be redeemed, and shall require that such Bonds be then
surrendered at the Principal Office of the Agent for redemption at the said redemption price, and
shall state that further interest on such Bonds, or the portion thereof to be redeemed, will not
accrue from and after the redemption date.
Upon the payment of the redemption price of Bonds being redeemed, each check or other
transfer of .funds issued for such purpose shall, to the extent practicable, bear the CUSIP number
identifying, by issue and maturity, the Bonds being redeemed with the proceeds of such check or
other transfer.
Upon surrender of Bonds redeemed in part only, the City shall execute and the Agent
shall authenticate and deliver to the registered Owner, at the expense of the City, a new Bond or
. Bonds, of the same series and maturity, of authorized denominations in aggregate principal
amount equal to the unredeemed portion of the Bond or Bonds.
(D) Effect of Redemption. From and after the date fixed for redemption, if funds
available for the payment of the principal of, and interest and any premium on, the Bonds so
called for redemption shall have been deposited in the Redemption Fund on the date fixed for
redemption, such Bonds so called shall cease to be entitled to any benefit under this Resolution
other than the right to receive payment of the redemption price, and no interest shall accrue
thereon on or after the redemption date specified in such notice. All Bonds redeemed by the
Agent pursuant to this Section 2.03 shall be canceled by the Agent. The Agent shall destroy the
canceled Bonds and, upon request of the Authority, issue a certificate of destruction of such
Bonds to the City.
Resolution No. 2004-066 N.C.S. Page 12
Section 2.04. FORM OF BONDS. The Bonds, the Agent's certificate of authentication
and the assignment, to appear thereon, shall be substantially in the forms, respectively, set forth
in Exhibit C attached hereto and by this reference incorporated herein, with necessary or
appropriate variations, omissions and insertions, as permitted or required by this Resolution and
the Act. The Bonds are being issued in fully registered form as physical certificates and, when
issued, will be eligible for registration with the DTC; however, at closing, unless issued as a
temporary Bond hereunder, the Bonds will not be issued in "book-entry-only" form.
Section 2.05. EXECUTION AND AUTHENTICATION OF BONDS. The Bonds shall
be executed in the name and on behalf of the City with the manual or facsimile signatures of the
Treasurer and attested by the manual or facsimile signature of the Clerk. The Bonds shall then be
delivered to the Agent for authentication. In case any officer who shall have signed any of the
Bonds shall cease to be such officer before the Bonds so signed shall have been authenticated or
delivered by the Agent or issued by the City, such Bonds may nevertheless be authenticated,
delivered and issued and, upon such authentication, delivery and issue, shall be as binding upon
the City as though the individual who signed the same had continued to be such officer of the
City. Also, any Bond may be signed on behalf of the City by any individual who on the actual
date of the execution of such Bond shall be the proper officer although on the nominal date of
such Bond such individual shall not have been such officer.
Only such of the Bonds as shall bear thereon a certificate of authentication in
substantially the form set forth in Exhibit C, manually executed by the Agent, shall be valid or
obligatory for any purpose or entitled to the benefits of this Resolution, and such certificate of the
Agent shall be conclusive evidence that the Bonds so authenticated have been duly authenticated
and delivered hereunder and are entitled to the benefits of this Resolution. The Agent's
certificate of authentication on any Bonds shall be deemed to be executed by it if signed by the
Agent or by an authorized officer or signatory of the Agent, but it shall not be necessary that the
same officer or signatory sign the certificate of authentication on all of the Bonds issued
hereunder.
Section 2.06. TRANSFER OR EXCHANGE OF BONDS. Any Bond may, in
accordance with its terms, be transferred upon the Bond Register by the registered Owner, in
person or by such Owner's duly authorized attorney, upon surrender of such Bond for
cancellation, accompanied by delivery of a written instrument of transfer in a form approved by
the Agent, duly executed. Whenever any Bond shall be surrendered for transfer, the Agent shall
thereupon authenticate and deliver to the transferee a new Bond or Bonds of like tenor, maturity
and aggregate principal amount. Bonds may be exchanged at the Principal Office of the Agent,
for Bonds of the same tenor and maturity and of other authorized denominations. No Bonds the
notice of redemption of which has been given under Section 2.03 shall be subject to transfer or
exchange pursuant to this Section. Neither the City nor the Agent shall be required to make such
exchange or registration or transfer of Bonds on or after the Record Date or after a Bond has been
selected for redemption. For any transfer or exchange under this Section, the City and the Agent
may require the payment of a reasonable fee to cover the costs and expenses of the City and the
Agent.
Section 2.07. BOND REGISTER. The Agent will keep or cause to be kept at its
Principal Office a sufficient Bond Register for the registration and transfer of the Bonds, which
Resolution No. 2004-066 N.C.S. Page 13
shall at all times during regular business hours be open to inspection by the City; and, upon
presentation for such purpose, the Agent shall, under such reasonable regulations as it may
prescribe, register or transfer or cause to be registered or transferred, on the Bond Register,
Bonds as hereinbefore provided.
Section 2.08. TEMPORARY BONDS. The Bonds may be issued initially in temporary
form exchangeable for definitive Bonds when ready for delivery. The temporary Bonds may be
printed, lithographed or typewritten, shall be of such denominations as maybe determined by the
Council and may contain such reference to any of the provisions of this Resolution as may be
appropriate. Every temporary Bond shall be executed by the officers designated and in the
manner provided in Section 2.05 hereof and be registered and authenticated by the Agent upon
the same conditions and in substantially the same manner as the definitive Bonds. If the City
issues temporary Bonds, it will execute and furnish definitive Bonds without delay, and
thereupon the temporary Bonds maybe surrendered, for cancellation, in exchange therefor at the
..Principal Office of the Agent, and the Agent shall authenticate and deliver in exchange for such
temporary Bonds an equal aggregate principal amount of definitive Bonds of authorized
denominations. Until so exchanged, the temporary Bonds shall be entitled to the same benefits
under this Resolution as definitive Bonds authenticated and delivered hereunder.
Section 2.09. BONDS MUTILATED, LOST, DESTROYED OR STOLEN. If any
Bond shall become mutilated, the Agent shall thereupon authenticate and deliver, a new (Bond of
like maturity and principal amount in exchange and substitution for the Bond so mutilated, but
only upon surrender to the Agent of the Bond so mutilated. Every mutilated Bond so surrendered
to the Agent shall be canceled by it and delivered to, or upon the order of, the City. If any Bond
issued hereunder shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may
be submitted to the City and the Agent and, if such evidence be satisfactory to them and
indemnity satisfactory to them shall be given, the Agent shall thereupon authenticate and deliver,
a new Bond of like maturity and principal amount in lieu of and in substitution for the Bond so
lost, destroyed or stolen (or if any such Bond shall have matured or shall have been called for
redemption, instead of issuing a substitute Bond the Agent may pay the same without surrender
thereof upon receipt of indemnity satisfactory to the Agent). The City and the Agent may require
payment of a reasonable fee for each new Bond issued under this Section and of the expenses
which maybe incurred by the City and the Agent. Any Bond issued under the provisions of this
Section in lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original
contractual obligation on the part of the City whether or not the Bond alleged to be Lost,
destroyed or stolen be at any time enforceable by anyone, and shall be equally and
proportionately entitled to the benefits of this Resolution with all other Bonds secured by this
Resolution and any Supplemental.Resolution.
Resolution No. 2004-066 N.C.S. Page 14
ARTICLE III
ISSUANCE OF BONDS
Section 3.01. ISSUANCE AND SALE OF BONDS. At any time after the adoption of
this Resolution, the City may issue the Bonds and sell and deliver them to the Original Purchaser
under the Bond Purchase Agreement between the City and Original Purchaser. The Authorized
Officers, and each of them, are hereby authorized to negotiate and execute the Bond Purchase
Agreement with the Original Purchaser for the sale of the Bonds, subject to such conditions as
shall be as hereafter provided.
Section 3.02. VALIDITY OF BONDS. The validity of the authorization and issuance of
the Bonds shall not be dependent upon the completion of the Project or upon the performance by
any person or such person's obligation with respect to the Project.
Section 3.03. PLEDGE OF REASSESSMENTS AND FUNDS. The Bonds shall be
secured by a first pledge (which pledge shall be effected in the manner and to the extent herein
provided) of all of the Reassessments and all moneys deposited in the Redemption Fund (and the
Prepayment Account therein) and the Reserve Fund. The Reassessments and all moneys
deposited into said funds (except as otherwise provided herein) are hereby dedicated to the
payment of the principal of (including any Sinking Fund Payments), and interest and any
premium on, the Bonds as provided herein and in the Bond Law until all of the Bonds have been
paid and retired or until moneys or Federal Securities have been set aside irrevocably for that
purpose in under Section 8.03 hereof.
Section 3.04. LIMITED OBLIGATIONS. All obligations of the City under this
Resolution and the Bonds shall not be general obligations of the City, but shall be limited
obligations, payable solely from the Reassessments and the funds pledged therefore hereunder.
Neither the faith and credit of the City nor of the State of California or any political subdivision
thereof is pledged to the payment of the Bonds. The Bonds are "Limited Obligation Refunding
Improvement Bonds" under section 8769 of the Bond Law and are payable solely from and
secured solely by the Reassessments and the amounts in the Redemption Fund and the Reserve
Fund created hereunder. Notwithstanding any other provision of this Resolution, the City is not
obligated to advance available surplus funds from the City treasury to cure any deficiency in the
Redemption Fund; provided, however, the City is not prevented, in its sole discretion, from so
advancing funds.
Section 3.05. NO ACCELERATION. The principal of the Bonds shall not be subject to
acceleration hereunder. Nothing in this Section 3.05 shall in any way prohibit the prepayment or
redemption of Bonds under Section 2.03 hereof, or the defeasance of the Bonds and discharge of
this Resolution under Section 8.03 hereof.
Section 3.06. REFUNDING OF BONDS. The Bonds may be refunded by the City
pursuant to Divisions 11 or 11.5 of the California Streets and Highways Code upon the
conditions as set forth in appropriate proceedings on or after the Refunding Date. This Section
shall not apply to or in any manner limit advancement of the maturity of any of the Bonds as
Resolution No. 2004-066 N.C.S. Page 15
provided in Parts 8, 9, 11, or 11.1 of the Bond Law, nor shall this Section 3.06 apply to or in any
manner limit the redemption and payment of any Bond pursuant to subsequent proceedings
providing for the payment of amounts to eliminate previously imposed fixed lien assessments,
including the Reassessments.
Section 3.07. AUTHORITIES. The Authorized Officers are hereby authorized and
directed to cause the various documents herein mentioned to be completed and executed with
such changes, modifications, deletions or additions as maybe approval by the Authorized Officer
in consultation with the City's staff and consultants with respect to these reassessment
proceedings, such approval to be conclusively evidenced by the execution of the such documents
by the Authorized Officer. The foregoing authorization is expressly conditioned upon the
satisfaction of the following: (i) the total principal amount of the Bonds shall not exceed
$3,600,000; (ii) the true interest cost of the Bonds shall not exceed 5.75% per annum and the
discount shall not exceed 1.75% of the principal amount of the Bonds. The Clerk is authorized
to complete and to approve changes in any provisions of this Resolution and Exhibit B hereto in
order to accomplish the delivery of any of the Bonds on schedule; such changes may be
accomplished by attachment of a certificate, executed by the Clerk, to this Resolution on file in
the office of the Clerk.
Section 3.08. OFFICIAL STATEMENT. The Council hereby approves the Official
Statement describing the financing for the Bonds, in substantially the form on file with the City
Clerk together with any changes therein or additions thereto deemed advisable by the Authorized
Officer. The Council approves and authorizes the distribution by the Original Purchaser (as
underwriter) of the Preliminary Official Statement to prospective purchasers of the Bonds, and
authorizes and directs the Authorized Officer on behalf of the City to deem "final," pursuant to
Rule 15c2-12 under the Securities Exchange Act of 1934 (the "Rule"), the Preliminary Official
Statement prior to its distribution to prospective purchasers of the Bonds. The execution of the
final Official Statement, which shall include such changes and additions to the Preliminary
Official Statement as may be permitted by the Rule and deemed advisable by the Authorized
Officer and such information permitted to be excluded from the Preliminary Official Statement
pursuant to the Rule shall be conclusive evidence of the approval of the Official Statement by the
City.
Section 3.09. CONTINUING DISCLOSURE DOCUMENT(S). The Council hereby
approves the form of the City's Continuing Disclosure Certificate with respect to the Bonds in
substantially the forms thereof attached to the Preliminary Official Statement. The Authorized
Officer is hereby authorized and directed to complete and execute the Certificate on behalf of the
City with such changes, additions, deletions as may be approved by the Authorized Officer in
consultation with the City's bond counsel.
Section 3.10. BOND SALE AND DELIVERY. The Bond Purchase Agreement in
substantially the form on file with the city is hereby approved and the Authorized Officer is
hereby authorized and directed to complete and execute the Bond Purchase Agreement on behalf
of the City with such changes, additions, deletions and revisions as may be approved by the
Authorized Officer in consultation with the City's financial advisor, the Original Purchaser and
Bond Counsel. Upon execution of the Bond Purchase Agreement by the City, the Bonds shall be
prepared, authenticated and delivered, all in accordance with the applicable terms of this
Resolution No. 2004-066 N.C.S. Page 16
Resolution and the Bond Purchase Agreement. The Authorized Officer and other responsible
City officials are hereby authorized and directed to take such actions as are required under the
Bond Purchase Agreement to complete all actions required to evidence the delivery of the Bonds
and the receipt of the purchase price thereof from the purchaser of the Bonds.
Section 3.11. ACTIONS APPROVED. All actions heretofore taken by each Authorized
Officer and other officials and agents of the City with respect to the establishment of the
Reassessment District and the sale and issuance of the Bonds are hereby approved, confirmed
and ratified, and each Authorized Officer is hereby authorized and directed to do any and ,all
things and take any and all actions and execute any and all certificates, agreements, contracts, and
other documents, including, but limited to the Escrow Agreement, the form of which is hereby
approved, which each Authorized Officer may deem necessary or advisable in order to
consummate the lawful issuance and delivery of the Bonds in accordance with this resolution and
any certificate, agreement, contract, and other document described in the documents herein
approved. Each Authorized Officer is further authorized and directed to complete Exhibit B
hereto and make such changes, amendments and corrections to this resolution as may be required
to provide for the timely issuance, sale and delivery of the Bonds and to certify to such actions,
as required.
Resolution No. 2004-066 N.C.S. Page 17
ARTICLE IV
FUNDS AND ACCOUNTS
Section 4.01. APPLICATION OF PROCEEDS OF SALE OF BONDS. Upon receipt
of the proceeds of sale of the Bonds on the Closing Date, the proceeds thereof shall be forthwith
set aside, paid over and deposited by the Finance Director, as set forth in the Bond Purchase
Agreement, appropriate Officer's Certificate(s), Article IV hereof and Exhibit B hereto.
Section 4.02. COSTS OF ISSUANCE FUND.
(A) Establishment of Costs of Issuance Fund. The Costs of Issuance Fund shall be
established and held by the Finance Director and receive a deposit as provided in Exhibit B. The
moneys in the Costs of Issuance Fund shall be held by the Finance Director for the benefit of the
City and shall be disbursed as provided in subsection (B) of this Section 4.02 for the payment or
reimbursement of the Costs of Issuance.
(B) Disbursement. Amounts in the Costs of Issuance Fund shall be disbursed from
time to time to pay Costs of Issuance as set forth in a requisition therefor containing respective
amounts to be paid to the designated payees and delivered to the Finance Director concurrently
with the delivery of the Bonds. The Finance Director shall pay all Costs of Issuance upon receipt
of an invoice from any such payee which requests payment in an amount which is less than or
equal to the amount set forth with respect to such payee in such requisition, or upon receipt of an
Officer's Certificate requesting payment of a Cost of Issuance not listed on the initial requisition
delivered to the Finance Director on the Closing Date.
(C) Investment. Moneys in the Costs of Issuance Fund shall be invested and
deposited under Section 6.01 hereof. Pending its closing under Subsection (B) above, Interest
earnings and profits resulting from said investment shall be retained by the Finance Director in
the Costs of Issuance Fund to be used for the purposes of such fund.
(D) Closing of Fund. The Finance Director shall maintain the Costs of Issuance Fund
for a period of 90 days from the Closing Date or until the last known Costs of Issuance have been
paid, whichever is earlier, and then shall transfer any moneys remaining therein, including any
investment earnings thereon, to the Redemption Fund and the Costs of Issuance Fund shall be
closed.
Section 4.03. REDEMPTION FUND.
(A) Establishment of Redemption Fund and Prepayment Account. The
Redemption Fund is hereby established as a separate fund to be held by the Finance Director to
the credit of which deposits shall be made as required by Section 4.01 and any other amounts
required to be deposited therein by this Resolution or the Bond Law. Moneys in the Redemption
Fund shall be held by the Finance Director for the benefit of the City and the Owners of the
Bonds, shall be disbursed for the payment of the principal of, and interest and any premium on,
the Bonds as provided below. Within the Redemption Fund, the Finance Director shall establish
Resolution No. 2004-066 N.C.S. Page 18
the Prepayment Account into which shall be placed the proceeds of the prepayment of any
Reassessment or portion thereof.
(B) Disbursements.
(i) From Redemption Fund. On or before each Interest Payment Date, the
Finance Director shall withdraw from the Redemption Fund and forward to the Agent for
payment to the Owners of the Bonds, amounts sufficient to pay the principal of, and
interest and any premium, then due and payable on the Bonds. Five (5) Business Days
prior to each Interest Payment Date, the Finance Director shall determine if the amounts
then on deposit in the Redemption Fund are sufficient to pay the Debt Service due on the
Bonds on such Interest Payment Date. In the event that amounts in the Redemption Fund
are insufficient for such purpose, the Finance Director shall cause appropriate
withdrawals to be made from the Reserve Fund, to the extent of any funds therein, in the
amount of such insufficiency, and shall transfer any amounts so withdrawn to the
Redemption Fund. Amounts so withdrawn from the Reserve Fund and deposited in the
Redemption Fund shall be applied to the payment of the Bonds. If, after the foregoing
transfers, there are insufficient .funds in the Redemption Fund to make the payments
provided for in the first sentence of this Section 4.03(B), the Finance Director shall apply
the available funds first to the payment of interest on the Bonds, then to the payment of
principal due on the Bonds, and then to payment of principal due on the Bonds by reason
of Bonds called for redemption pursuant to Section 2.03 hereof.
(ii) From Prepayment Account. Moneys in the he Prepayment Account shall
be withdrawn for the redemption of Bonds as provided herein and shall administered
according to section 8767 of the Bond Law.
(C) Investment. Moneys in the Redemption Fund and the Prepayment Account
therein shall be invested and deposited in accordance with Section 6.01. Interest earnings and
profits resulting from such investment and deposit shall be retained in the Redemption Fund and
the account therein.
(D) Closing of Fund. The Redemption Fund (and the Prepayment Account therein)
shall be closed when all of the principal of and interest on the Bonds has been paid.
Section 4.04. RESERVE FUND.
(A) Establishment of Reserve Fund. The Reserve Fund is hereby established as a
separate fund to be held by the Finance Director to the credit of which a deposit shall be made as
required by Section 4.01, and deposits shall be made as provided in the Bond Law. Moneys in
the Reserve Fund shall be held by the Finance Director for the benefit of the City and the Bond
Owners as a reserve for the payment of principal of, and interest and any premium on, the Bonds.
The City shall cause the Reserve Fund to be administered in accordance with Part 16 of the Bond
Law; provided that proceeds from redemption or sale of properties with respect to which
payment of delinquent Reassessments and interest thereon was made from the Reserve Fund,
shall be credited to the Reserve Fund.
Resolution No. 2004-066 N.C.S. Page 19
(B) Use of Fund. Except as otherwise provided in this Section 4.04 all amounts
deposited in the Reserve Fund shall be used and withdrawn by the Finance Director solely for the
purpose of making transfers to the Redemption Fund in the event of any deficiency at any time in
the Redemption Fund of the amount then required for payment of the principal of, and interest
and any premium on, the Bonds or, in accordance with the provisions of this Section 4.04, for the
purpose of redeeming Bonds from the Redemption Fund.
(C) Transfer Due to Deficiency in Redemption Fund. Transfers shall be made
from the Reserve Fund to the Redemption Fund in the event of a deficiency in the Redemption
Fund, in accordance with Section 4.04(B) hereof.
(D) Prepayment of Reassessments. Whenever, after the issuance of the Bonds, a
Reassessment is pre-paid, in whole or in part, as provided in the Bond Law, the Finance Director
shall transfer from the Reserve Fund to the Redemption Fund an amount equal to the product of
the ratio of the original amount of the Assessment securing any Bonds so paid to the original
amount of all Reassessments securing any Bonds, times the initial deposit to the Reserve Fund
under Section 4.01.
(E) Transfer of Excess of Reserve Requirement. Whenever, on any Interest
Payment Date, or on any other date as determined by the Finance Director, the amount in the
Reserve Fund exceeds the Reserve Requirement, the Finance Director shall, except as otherwise
provided in Section 5.09 hereof for purposes of rebate and as evidenced by an appropriate
Officer's Certificate, transfer on or before such Interest Payment Date an amount equal to the
excess from the Reserve Fund to the Redemption Fund to be used in accordance with Part 16 of
the Bond Law.
(F) Transfer When Balance Exceeds Outstanding Bonds. Whenever the balance
in the Reserve Fund is sufficient to retire all the Outstanding Bonds, whether by advance
retirement or otherwise, collection of the principal and interest on the Reassessments shall be
discontinued and the Reserve Fund liquidated by the Finance Director in retirement of the
Outstanding Bonds, as directed by an Officer's Certificate. In the event that the balance in the
Reserve Fund at the time of liquidation exceeds the amount required to retire all of the
Outstanding Bonds, the excess shall be transferred to the City to be used in accordance with the
Act and the Bond Law.
(G) Investment. Moneys in the Reserve Fund shall be invested and deposited in
accordance with Section 6.01. Interest earnings and profits resulting from said investment shall
be retained in the Reserve Fund subject to the provisions of Section 4.04(E) hereof.
Section 4.05. ESCROW FUND. On the Closing Date, the Escrow Fund shall be
established by the Finance Director with the Escrow Holder under the Escrow Agreement with
deposits as provided under Exhibit B. The purpose of the establishment of the Escrow Fund
shall be to assure the timely advance retirement of the Prior Bonds, using a portion of the
proceeds of the Bonds and other funds held by the City with respect to the Prior Bonds and
investment earnings thereon, all as to be specified by appropriate Certificates of the City.
Resolution No. 2004-066 N.C.S. Page 20
ARTICLE V
COVENANTS
Section 5.01.. COLLECTION OF REASSESSMENTS. The City shall comply with all
requirements of the Act, the Bond Law and this Resolution to assure the timely collection of the
Reassessments, including, without limitation, the enforcement of delinquent Reassessments. To
that end, the following shall apply:
(A) Tax Roll Collection. The Reassessments as set forth on the list thereof on file
with the Finance Director together with the interest thereto, shall be payable in annual series
corresponding in number and proportionate amount to the number of installments and principal
amounts of the Bonds maturing or becoming subject to mandatory prior redemption under
Section 2.03 hereof. An annual proportion of each Reassessment shall be payable in each Fiscal
Year preceding the date of maturity or mandatory prior redemption date of each of the Bonds
issued sufficient to pay the Bonds when due and such proportion of each Reassessment coming
due in any year, together with the annual interest thereon, shall be payable in the same manner
and at the same time and in the same installments as the general taxes on real property are
payable, and become delinquent. at the same times and in the same proportionate amounts and
bear the same proportionate penalties and interests after delinquency as do the general taxes on
real property. All sums received from the collection of the Reassessments and of the interest and
penalties thereon shall be placed in the Redemption Fund.
(B) Auditor Record. The Finance Director shall, before the final date on which the
Auditor will accept the transmission of the Reassessments for the parcels within the
Reassessment District for inclusion on the next tax roll, prepare or cause to be prepared, and shall
transmit to the Auditor, such data as the Auditor requires to include the installments of the
Reassessments on the next secured tax roll. The Finance Director is hereby authorized to employ
consultants to assist in computing the installments of the Reassessments hereunder and in
reconciling Reassessments billed to amounts received as provided in the subsection (C) of this
Section 5.01.
(C) Administrative Costs. In addition to any amounts authorized pursuant to section
8682 of the Bond Law to be included with the annual amounts of installments as aforesaid, the
City, pursuant to section 8682.1 of the Bond Law may cause to be entered on the assessment roll
on which taxes will next become due, opposite each lot or parcel of land within the Reassessment
District in the manner set forth in said section 8682, each lot's pro rata share of the estimated
annual expenses of the City in connection with the administrative duties thereof for the Bonds,
including, but not limited to, the costs of registration, authentication, transfer and compliance
with the provisions of this Article V. Delinquent Reassessments shall be subject to foreclosure
pursuant to Section 5.02 hereof.
Section 5.02. FORECLOSURE.
(A) General. The City hereby covenants with and for the benefit of the Owners of the
Bonds that it will order, and cause to be commenced, and thereafter diligently prosecute an action
Resolution No. 2004-066 N.C.S. Page 21
in the superior court to foreclose the lien of any Reassessment or installment thereof which has
been billed, but has not been paid, pursuant to and as provided in sections 8830 and 8835,
inclusive of the Bond Law and the conditions specified in this Section 5.02. The Finance
Director shall determine if any of the conditions in (B) below exist and shall notify the City
Attorney of any such delinquencies. The City Attorney shall commence, or cause to be
commenced, such foreclosure proceedings, including collection actions preparatory to the filing
of any complaint. The City Attorney is hereby authorized to employ outside counsel to conduct
any such foreclosure proceedings.
(B) Foreclosure Conditions. Within 30 Business Days of October 1 of each Fiscal
Year, the City shall cause the commencement of foreclosure of delinquent Reassessments on any
parcel in the Reassessment District i£
(i) The parcel has a Reassessment delinquency of $5,000 or more for the prior
Fiscal Year or Years, notwithstanding the percentage of total delinquencies in the entire
Reassessment District
(ii) The parcel has Reassessment delinquency of $3,000 or more for the prior
Fiscal Year or Years and the delinquencies for the entire Reassessment District, less the
total delinquencies under subsection (i) above, exceeds three percent (3%) of the total
Reassessments due and payable in the prior Fiscal Year.
(iii) The parcel has any amount of Reassessment delinquency for the prior
Fiscal Year or Years and the delinquencies for the entire Reassessment District, less the
total delinquencies under subsections (i) and (ii) above, exceed five percent (5%) of the
total Reassessments due and payable for the prior Fiscal Year.
Section 5.03. PUNCTUAL PAYMENT; COMPLIANCE WITH DOCUMENTS. The
City shall punctually pay or cause to be paid the interest and principal to become due with respect
to all of the Bonds in strict conformity with the terms of the Bonds and of this Resolution, and
will faithfully observe and perform all of the conditions, covenants and requirements of this
Resolution and all Supplemental Resolutions.
Section 5.04. NO PRIORITY FOR ADDITIONAL OBLIGATIONS. The City
covenants that no additional bonds or other obligations shall be issued or incurred having any
priority over the Bonds in payment of principal or interest out of the Reassessments. Nothing in
this Resolution shall prohibit the City from issuing bonds or other obligations on a parity with or
subordinate to the Bonds and secured by and payable from the Reassessments upon such terms as
the City may determine.
Section 5.05. FURTHER ASSURANCES. The City will adopt, make, execute and
deliver any and all such further resolutions, instruments and assurances as may be reasonably
necessary or proper to carry out the intention or to facilitate the performance of this Resolution,
and for the better assuring and confirming unto the Owners of the Bonds the rights and benefits
provided in this Resolution.
Resolution No. 2004-066 N.C.S. Page 22
Section 5.06. PRIVATE ACTIVITY BOND LIMITATION. The City shall assure that
the proceeds of the Bonds are not so used as to cause the Bonds to satisfy the private business
tests of section 141(b) of the Tax Code or the private loan financing test of section 141(c) of the
Tax Code.
Section 5.07. FEDERAL GUARANTEE PROHIBITION. The City shall not take any
action or permit or suffer any action to be taken if the result of the same would be to cause any of
the Bonds to be "federally guaranteed" within the meaning of section 149(b) of the Tax Code.
Section 5.08. NO ARBITRAGE.. The City shall not take, or permit or suffer to be taken
by the Finance Director or otherwise, any action with respect to the proceeds of the Bonds which,
if such action had been reasonably expected to have been taken, or had been deliberately and
intentionally taken, on the date of issuance of the Bonds would have caused the Bonds to be
"arbitrage bonds" within the meaning of section 148 of the Tax Code.
Section 5.09. REBATE REQUIREMENT. The. City shall take any and all actions
necessary to assure compliance with section 148(f) of the Tax. Code, relating to the rebate of
excess investment earnings, if any, to the federal government, to the extent that such section is
applicable to the Bonds. Earnings on any reserve fund established under this Resolution shall be
used. for rebate purposes before any application thereof as credits to the Redemption Fund under
Section 4.03(E).
Section 5.10. YIELD OF THE BONDS. In determining the yield of the Bonds to
comply with Sections 5.08 and 5.09 hereof, the City will take into account redemption (including
premium, if any) in advance of maturity based on the reasonable expectations of the City, as of
the Closing Date, regarding prepayments of Reassessments and use of prepayments for
redemption of the Bonds, without regard to whether or not prepayments are received or Bonds
redeemed.
Section 5.11. AMENDMENT. Without the consent of the Owners of the Bonds, the City
may amend this Resolution to add, modify or delete provisions if necessary or desirable to assure
compliance with Section 148(f) of the Tax Code, or as otherwise required, to assure the
exemption from federal income taxation of interest on the Bonds.
Section 5.12. MAINTENANCE OF TAX-EXEMPTION. The City shall take all
actions necessary to assure the exclusion of interest on the Bonds from the gross income of the
Owners of the Bonds to the same extent as such interest is permitted to be excluded from gross
income under the Tax Code as in effect on the date of issuance of the Bonds.
Section 5.13. CONTINUING DISCLOSURE. The City hereby covenants and agrees
that it will comply with and carry out all of the provisions of any continuing disclosure relating to
the Bonds. Notwithstanding any other provision of this Resolution, failure of the City to comply
with any continuing disclosure shall not be considered an event of default.
Section 5.14. SMALL ISSUER EXEMPTION FROM BANI{
NONDEDUCTIBILITY RESTRICTION. The City hereby designates the Bonds for purposes
of paragraph (3) of section 265(b) of the Tax Code and represents that not more than
Resolution No. 2004-066 N.C.S. Page 23
$10,000,000 aggregate principal amount of obligations the interest on which is excludable (under
section 103(a) of the Tax Code) from gross income for federal income tax purposes (excluding
(i) private activity bonds, as defined in section 141 of the Tax Code, except qualified 501(c)(3)
bonds as defined in section 145 of the Tax Code and (ii) current refunding obligations to the
extent the amount of the refunding obligation does not exceed the outstanding amount of the
refunded obligation), including the Installment Sale Agreement, has been or will be issued by the
City, including all subordinate entities of the City, during the calendar year 2004.
Resolution No. 2004-066 N.C.S. Page 24
ARTICLE VI
INVESTMENT OF FUNDS
Section 6.01. DEPOSIT AND INVESTMENT OF MONEYS IN FUNDS. Subject in
all respects to the provisions of Section 6.02, moneys in any fund or account created or
established by this Resolution and held by the Finance Director shall be invested by the Finance
Director in Permitted Investments. The following shall apply to such investments:
(A) Unless otherwise specified, the Finance Director shall invest any such moneys in
Permitted Investments described as Federal Securities which by their terms mature prior to the
date on which such moneys are required to be paid out hereunder. Obligations purchased as an
investment of moneys in any fund shall be deemed to be part of such fund or account, subject,
.however, to the requirements of this Resolution for transfer of interest earnings and profits
resulting from investment of amounts in funds and accounts;
(B) The Finance Director may act as principal or agent in the acquisition or
disposition of any investment. The Finance Director shall incur no liability for losses arising
from any investments made pursuant to this Section;
(C) Subject in all respects to the provisions of Section 5.09, investments in any and all
funds and accounts may, at the discretion of the Finance Director, be commingled in a separate
fund or funds for purposes of making, holding and disposing of investments, notwithstanding
provisions herein for transfer to or holding in or to the credit of particular funds or accounts of
amounts received or held by the Finance Director hereunder; provided that the Finance Director
shall at all times account for such investments strictly in accordance with the funds and accounts
to which they are credited and otherwise as provided in this Resolution;
(D) The Finance Director shall sell at the highest price reasonably obtainable, or
present for redemption, any investment security whenever it shall be necessary to provide
.moneys to meet any required payment, transfer, withdrawal or disbursement from the fund or
account to which such investment security is credited and the Finance Director shall not be liable
or responsible for any loss resulting from the acquisition or disposition of such investment
security in accordance herewith; and
(E) For any funds held by the Finance Director, the foregoing provisions of this
Section 6.01 shall also apply, except that an Officer's Certificate shall not be required. For such
funds the Finance Director shall keep records or accounts of all expenditures or disbursements
therefrom which records shall be available for inspection during business hours on any Business
Day upon prior written request.
Section 6.02. ACQUISITION, DISPOSITION AND VALUATION OF
INVESTMENTS.
(A) Except as otherwise provided in subsection (B) of this Section, the City covenants
that all. investments of amounts deposited in any fund or account under this Resolution, or
Resolution No. 2004-066 N.C.S. Page 25
otherwise containing gross proceeds of the Bonds (under section 148 of the Tax Code) shall be
acquired, disposed of and valued (as of the date that valuation is required by this Resolution or
the Tax Code) at Fair Market Value.
(B) Investments in funds or accounts (or portions thereof) that are subject to a yield
restriction under applicable provisions of the Tax Code, and (unless valuation is undertaken at
least annually) investments in any reserve fund, shall be valued at their present value (within the
meaning of section 1.48 of the Tax Code).
Section 6.03. LIABILITY OF CITY. The City shall not incur any responsibility in
respect of the Bonds or this Resolution other than in connection with the duties or obligations
explicitly provided herein or in the Bonds. The City shall not be liable to any Owner in
connection with the performance of its duties hereunder, except for its own negligence or willful
default. The City shall not be bound to ascertain or inquire as to the performance or observance
of any of the terms, conditions, covenants or agreements of the Agent herein or of any of the ;
documents executed by the Agent in connection with the Bonds, or as to the existence of a
default thereunder. Under this Resolution, the following shall apply to the City:
(A) In the absence of bad faith, the City, including the Finance Director, may
conclusively rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon certif Cates or opinions furnished to the City and conforming to the requirements of
this Resolution. The City, including the Finance Director, shall not be liable for any error of
judgment made in good faith unless it shall be proved that it was negligent in ascertaining the
pertinent facts;
(B) No provision of this Resolution shall require the City to expend or risk its own
general funds or otherwise incur any financial liability (other than with respect to the foreclosure
proceedings for delinquent Reassessments and the payment of fees and costs of the Agent) in the
performance of any of its obligations hereunder or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it;
(C) The City may rely and shall be protected in acting or refraining from acting upon
any notice, resolution, request, consent, order, certificate, report, warrant, bond or other paper or
document believed by it to be genuine and to have been signed or presented by the proper party
or proper parties. The City may consult with counsel, who may be the City Attorney, with regard
to legal questions, and the opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered by it hereunder in good faith and in
accordance therewith;
(D) The City shall not be bound to recognize any person as the Owner of a Bond
unless duly registered and until such Bond is submitted for inspection, if required, and his title
thereto satisfactorily established, if disputed; and
(E) Whenever in the administration of its duties under this Resolution the City shall
deem it necessary or desirable that a matter be proved or established prior to taking or suffering
any action hereunder, such matter (unless other evidence in respect thereof be herein specifically
Resolution No. 2004-066 N.C.S. Page 26
prescribed) may, in the absence of willful misconduct on the part of the City, be deemed to be
conclusively proved and established by a certificate of the Agent or other expert retained by the
City for the purposes hereof, and such certificate shall be full warrant to the City for any action
taken or suffered under the provisions of this Resolution or any Supplemental Resolution upon
the faith thereof, but in its discretion the City may, in lieu thereof, accept other evidence of such
matter or may require such additional evidence as to it may deem reasonable.
Section 6.04. EMPLOYMENT OF AGENTS BY CITY. The City may employ such
persons or entities as it deems necessary or advisable to perform its duties and obligations
hereunder. The City shall not be liable for any of the acts or omissions of such persons or entities
employed by it with reasonable care and in good faith hereunder, and shall be entitled to rely, and
shall be fully protected in doing so, upon the opinions, calculations, determinations and
directions of such persons or entities.
Resolution No. 2004-066 N.G.S. Page 27
ARTICLE VII
MODIFICATION OR AMENDMENT
Section 7.01. AMENDMENTS PERMITTED. The provisions of this Resolution may
be amended only as provided in this Section 7.01 and any such amendment may not modify any
of the rights or obligations of the Agent without its written consent.
(A) With Consent. This Resolution and the rights and obligations of the City and of
the Owners of the Bonds maybe modified or amended at any time by a Supplemental Resolution.
pursuant to the affirmative vote at a meeting of Owners, or with the written consent without a
meeting, of the Owners of at least sixty percent (60%) in aggregate principal amount of the
Bonds then Outstanding, exclusive of Bonds disqualified as provided in Section 7.04. No such
modification or amendment shall:
(i) extend the maturity of any Bond or reduce the interest rate thereon, or
otherwise alter or impair the obligation of the City to pay the principal of, and the interest
and any premium on, any Bond, without the express consent of the Owner of such Bond;
(ii) permit the creation by the City of any pledge or lien upon the Reassessments
superior to or on a parity with the pledge and lien created for the benefit of the Bonds
(except as otherwise permitted by the Act, this Resolution, the laws of the State of
California); or
(iii) reduce the percentage of Bonds required for the amendment hereof, or to
amend this Section 7.01.
(B) Without Consent. This Resolution and the rights and obligations of the City and
of the Owners may also be modified or amended at any time by a Supplemental Resolution,
without the consent of any Owners, only to the extent permitted by law and only for any one or
more of the following purposes:
(i) to add to the covenants and agreements of the City in this Resolution
contained, other covenants and agreements thereafter to be observed, or to limit or
surrender any right or power herein reserved to or conferred upon the City;
(ii) to make modifications not adversely affecting any outstanding series of
Bonds of the City in any material respect;
(iii) to make such provisions for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective provision contained in this Resolution,
or in regard to questions arising under this Resolution, as the City may deem necessary or
desirable and not inconsistent with this Resolution, and which shall not adversely affect
the rights of the Owners of the Bonds; or
Resolution No. 2004-066 N.C.S. Page 28
(iv) to make such additions, deletions or modifications as maybe necessary or
desirable to assure exemption from federal income taxation of interest on the Bonds.
Section 7.02. OWNERS' MEETINGS. The City may at any time call a meeting of the
Owners. In such event the City is authorized to fix the time and place of said meeting and to
provide for the giving of notice thereof and to fix and adopt rules and regulations for the conduct
of said meeting.
Section 7.03. PROCEDURE FOR. AMENDMENT WITH WRITTEN CONSENT
OF OWNERS. The City may at any time adopt a Supplemental Resolution amending the
provisions of the Bonds or of this Resolution or any Supplemental Resolution, to the extent that
such amendment is permitted by Section 7.01 hereof, to take effect when and as provided in this
Section 7.03. With respect to such Supplemental Resolution under this Section 7.03, the
following shall apply:
(A) A copy of such Supplemental Resolution, together with a request to Owners for
their consent thereto, shall be mailed by first class mail, by the Finance Director to each Owner
of Bonds Outstanding, but failure to mail copies of such Supplemental Resolution and request
shall not affect. the validity of the Supplemental Resolution when assented to as in this Section
provided;
(B) Such Supplemental Resolution shall not become effective unless there shall be
filed with the Agent the written consents of the Owners of at least sixty percent (60%) in
aggregate principal amount of the Bonds then Outstanding (exclusive of Bonds disqualified as
provided in Section 7.04) and a notice shall have been mailed as hereinafter in this Section
provided. Each such consent shall be effective only if accompanied by proof of ownership of the
Bonds for which such consent is given, which proof shall be such as is permitted by Section 8.04.
Any such consent shall be binding upon the Owner of the Bonds giving such consent and on any
subsequent Owner (whether or not such subsequent Owner has notice thereof) unless such
consent is revoked in writing by the Owner giving such consent or a subsequent Owner by filing
such revocation with the Agent prior to the date when the notice hereinafter in this Section
provided for has been mailed; and
(C) After the Owners of the required percentage of Bonds shall have filed their
consents to the Supplemental Resolution, the City shall mail a notice to the Owners in the
manner hereinbefore provided in this Sectiori for the mailing of the Supplemental Resolution,
stating in substance that the Supplemental Resolution has been consented to by the Owners of the
required percentage of Bonds and will be effective as provided in this Section but failure to mail
copies of said notice shall not affect the validity of the Supplemental Resolution or consents
thereto). Proof of the mailing of such notice shall be filed with the Agent. A record, consisting of
the papers required by this Section 7.03 to be filed with the Agent, shall be proof of the matters
therein stated until the contrary is proved. The Supplemental Resolution shall become effective
upon the filing with the Agent of the proof of matters therein of such notice, and the
Supplemental Resolution shall be deemed conclusively binding (except as otherwise hereinabove
specifically provided in this Article) upon the City and the Owners of all Bonds at the expiration
of sixty (60) days after such filing, except in the event of a final decree of a court of competent
Resolution No. 2004-066 N.C.S. Page 29
jurisdiction setting aside such consent in a legal action or equitable proceeding for such purpose
commenced within such sixty-day period.
Section 7.04. DISQUALIFIED BONDS. Bonds owned or held for the account of the
City, excepting any pension or retirement fund, shall not be deemed Outstanding for the purpose
of any vote, consent or other action or any calculation of Outstanding Bonds provided for in this
Article VII, and shall not be entitled to vote upon, consent to, or take any other action provided
for in this Article VII.
Section 7.05. EFFECT OF SUPPLEMENTAL RESOLUTION. From and after the
time any Supplemental Resolution becomes effective pursuant to this Article VII, this Resolution
shall be deemed to be modified and amended in accordance therewith, the respective rights,
duties and obligations under this Resolution of the City and all Owners of Bonds Outstanding
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such Supplemental
Resolution shall be deemed to be part of the terms and conditions of this Resolution for any and
all purposes.
Section 7.06. ENDORSEMENT OR REPLACEMENT OF BONDS ISSUED
AFTER AMENDMENT. The City may determine that .Bonds issued and delivered after the
effective date of any action taken as provided in this Article VII shall bear a notation, by
endorsement or otherwise, in form approved by the City, as to such action. In that case, upon
request of the Owner of any Bond Outstanding at such effective date and presentation. of his
Bond for that purpose at the Principal Office of the Agent or at such other office as the City may
select and designate for that purpose, a suitable notation shall be made on such Bond. The City
may determine that new Bonds, so modified as in the opinion of the City is necessary to conform
to such Owners' action, shall be prepared, executed and delivered. In that case, upon request of
the Owner of any Bonds then Outstanding, such new Bonds shall be exchanged: at the Principal
Office of the Agent without cost to any Owner, for Bonds then Outstanding, upon surrender of
such Bonds.
Section 7.07. AMENDATORY ENDORSEMENT OF BONDS. The provisions of this i
Article VII shall not prevent any Owner from accepting any amendment as to the particular
Bonds held by such Owner, provided that due notation thereof is made on such Bonds. '
Resolution No. 2004-066 N.C.S. Page 30 i
ARTICLE VIII
MISCELLANEOUS
Section 8.01. BENEFITS OF AGREEMENT LIMITED TO PARITIES. Nothing in
this Resolution, expressed or implied, is intended to give to any person other than the City, the
Agent and the Owners, any right, remedy or claim under or by reason of this Resolution. Any
covenants, stipulations, promises or agreements in this Resolution contained by and on behalf of
the City shall be for the sole and exclusive benefit of the Owners and the Agent.
Section 8.02. SUCCESSOR AND PREDECESSOR. Whenever in this Resolution or
any Supplemental Resolution either the City or the Agent is named or referred to, such reference
shall be deemed to include the successors or assigns thereof, and all the covenants and
agreements in this Resolution contained by or on behalf of the City shall bind and inure to the
benefit of the respective successors and assigns thereof whether so expressed or not.
Section 8.03. DISCHARGE OF RESOLUTION.
(A) General. Subject to the provisions of Section 2.03 hereof, if the City shall pay
and discharge the entire indebtedness on all Bonds Outstanding in any one or more of the
following ways:
(i) by paying or causing to be paid the principal of (including any Sinking
Fund Payments) and interest and any premium on all Bonds Outstanding, as and when the
same become due and payable;
(ii) by depositing with the Agent, in trust, at or before maturity, money which,
together with the amounts then on deposit in the Redemption Fund is fully sufficient to
pay all Bonds Outstanding, including all principal, interest and any applicable redemption
premiums; or
(iii) by irrevocably depositing with the Agent, in trust, cash and Federal
Securities in such amount as the City shall determine, as confirmed by an independent
certified public accountant, which will, together with the interest to accrue thereon and
moneys then on deposit in the Redemption Fund be fully sufficient to pay and discharge
the indebtedness on all Bonds, including all principal, interest and any applicable
redemption premiums, at or before their respective maturity dates.
(B) Requirements. If such Bonds are to be redeemed prior to the maturity thereof
notice of such redemption shall have been given as in this Resolution provided or provision
satisfactory to the Agent shall have been made for the giving of such notice, then, at the election
of the City, and notwithstanding that any Bonds shall not have been surrendered for payment, the
pledge of the Reassessments and other funds provided for in this Resolution and all other
obligations of the City under this Resolution with respect to all Bonds Outstanding shall cease
and terminate, except only the obligation of the City to pay or cause to be paid to the Owners of
the Bonds not so surrendered and paid all sums due thereon, the obligation of the City to assure
Resolution No. 2004-066 N.C.S. Page 31
that no action is taken or failed to be taken if such action or failure adversely affects the
exclusion of interest on the Bonds from gross income for federal income tax purposes, and all
amounts owing to the Agent pursuant to Section 7.05 hereof; and thereafter Reassessments shall
not be payable to the Agent. Notice of such election shall be filed with the Agent. Any funds
thereafter held by the Agent upon payments of all fees and expenses of the Agent, which are not
required for said purpose, shall be paid over to the City to be used by the City as provided in the
Act and the Bond Law.
Section 8.04. EXECUTION OF DOCUMENTS AND PROOF OF OWNERSHIP.
Any request, declaration or other instrument which this Resolution may require or permit to be
executed by Owners maybe in one or more instruments of similar tenor, and shall be executed by
Owners in person or by their attorneys appointed in writing. Except as otherwise herein expressly
provided, the fact and date of the execution by any Owner or his attorney of such request,
declaration or other instrument, or of such writing appointing such attorney, may be proved by
the certificate of any notary public or other officer authorized to take acknowledgments of deeds
to be recorded in the state in which he purports to act, that the person signing such request,
declaration or other instrument or writing acknowledged to him the execution thereof, or by an
affidavit of a witness of such execution, duly sworn to before such notary public or other officer.
The ownership of registered bonds and the amount, maturity, number and date of holding the
same shall be proved by the registry books. Any consent, request, declaration or other instrument
or writing of the then registered Owner of any Bond shall bind all future Owners of such Bond in
respect of anything done or suffered to be done by the City or the Agent in good faith and in
accordance therewith.
Section 8.05. WAIVER OF PERSONAL LIADILITY. No member, officer, agent or
employee of the City shall be individually or personally liable for the payment of the principal of,
or interest or any premium on, the Bonds; but nothing herein contained shall relieve any such
member, officer, agent or employee from the performance of any official duty provided by law.
Section 8.06. NOTICES AND DEMANDS. Any notice or demand which by any
provision of this Resolution is required or permitted to be given or served by the Agent to or on
the City may be given or served by being deposited postage prepaid in a post office letter box
addressed (until another address is filed by the City with the Agent) as follows:
CITY OF PETALUMA
11 English Street
Petaluma, CA 94953
Attention: Finance Director
Section 8.07. PARTIAL INVALIDITY. If any Section, paragraph, sentence, clause or
phrase of this Resolution shall. for any reason be held illegal or unenforceable, such holding shall
not affect the validity of the remaining portions of this Resolution. The City hereby declares that
it would have adopted this Resolution and each and every other Section, paragraph, sentence,
clause or phrase hereof and authorized the issue of the Bonds pursuant thereto irrespective of the
fact that any one or more Sections, paragraphs, sentences, clauses, or phrases of this Resolution
maybe held illegal; invalid or unenforceable.
Resolution No. 2004-066 N.C.S. Page 32
Section 8.08. UNCLAIMED MONEYS. Anything contained herein to the contrary
notwithstanding, any moneys held by the Finance Director in trust for the payment and discharge
of the principal of, and the interest and any premium on, the Bonds which remains unclaimed for
two (2) years after the date when payments of principal, interest and any premium have become
payable, shall be repaid by the Finance Director to the City as its absolute property free from any
trust, and the Finance Director shall thereupon be released and discharged with respect thereto
and the Bond Owners shall look only to the City for the payment of the principal of, and interest
and any premium on, such Bonds.
Section 8.09. APPLICABLE LAW. This Resolution shall be governed by and enforced
in accordance with the laws of the State of California applicable to contracts made and performed
in the State of California.
Section 8.10. CONFLICT WITH ACT. In the event of a conflict between any provision
of this Resolution with any provision of the Act, the provision of the Act shall prevail over the
conflicting provision of this Resolution.
Section 8.11. CONCLUSIVE EVIDENCE OF REGULARITY; VALIDITY. Bonds
issued pursuant to this Resolution shall constitute conclusive evidence of the regularity of all
proceedings under the Act relative to their issuance and the levy of the Reassessments. The
validity of the authorization and issuance of the Bonds shall not be dependent upon the
completion and/or acquisition of the Project or any part thereof or the performance by any person
or such person's obligation(s) with respect to the Project.
Section 8.12. PAYMENT ON BUSINESS DAY. in any case where the date of the
maturity of interest or of principal, (and premium, if any) of the Bonds or the date fixed for
redemption of any Bonds or the date any action is to be taken pursuant to this Resolution is other
than a Business Day, the payment of interest or principal, (including Sinking Fund Payments)
and any redemption premium, or the action need not be made on such date but may be made on
the next succeeding day which is a Business Day with the same force and effect as if made on the
date required and no additional interest shall accrue .from such Interest Payment Date until such
Business Day.
Section 8.13. REPEAL OF INCONSISTENT RESOLUTIONS. Any resolution of the
Council, and any part of such resolution, inconsistent with this Resolution, is hereby repealed to
the extent of such inconsistency.
Section 8.14. AUTHORITY OF FINANCE DIRECTOR. All actions mandated by this
Resolution to be performed by the Finance Director maybe performed by the designee thereof or
such other official of the City or independent contractor, consultant or trustee duly authorized by
the City to perform such action or actions in furtherance of all or a specific portion of the
requirements hereof.
Section 8.15. CERTIFIED COPIES. The Clerk shall cause to be furnished a certified
copy of this resolution to the Finance Director, to the Agent, and to the Auditor of the County.
Resolution No. 2004-066 N.C.S. Page 33
j
1
• Section 8.16. EFFECTIVE DATE OF THE RESOLUTION. This Resolution shall
become effective upon the date of its adoption.
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Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Approved as to
Council of the City of Petaluma at a (Regular) (Adjourned) (Special) meeting orm
on the ........3:d day of .......Ik1a3r......................................., 20:014., by the
f following vote:
C ty Attorney
E
r AYES: Mayor Glass, Harris, Healy, Vice Mayor Moynihan, O'Brien, Thompson, Torliatt
NOES: None
ABSENT: N
` ATTEST:
Cit Clerk Mayor
Council File
Res. No.......2004-066.........N.CS.
e
EXHIBIT A
CITY OF PETALUMA
Consolidated Reassessment and Refunding District of 2004
(Assessment Districts Nos. 24 and 25)
DESCRIPTION OF PRIOR DISTRICTS ANDPRIOR BONDS
Prior Districts & Bonds Prior Bonds Terms
Assessment Bond Bond Original Scheduled
District/ Res Res Bonds Redemption Principal Principal Final
x Bonds No. Date Dated Premium Amount Remaining Maturity
0
o~ Limited Obligation Improvement Bonds
o City of Petaluma
N Assessment District No. 24
Lakeville Highway Road Improvements
Seriesl996-2 96-202NCS 7/15/96 8/7/96 3% $2,572,611 $2,215,000 9/2/2021
z
Limited Obligation Improvement Bonds
City of Petaluma
McNear Landing
Assessment District No. 25 97-290NCS 10/20/97 10/30/97 3% $1,800,000 $1,520,000 9/2/2018
b
W
EXHIBIT B
CITY OF PETALUMA
Consolidated Reassessment and Refunding District of 2004
(Assessment Districts Nos. 24 and 25)
SPECIFIC BOND TERMS AND CONDITIONS
The following terms and conditions shall be part of the within Resolution of Issuance as
if set forth in the text thereof:
Principal Amount: Under Section 2.01, the Principal Amount is $3,472,200 and the
Bond Date is July 1, 2004.
The first Interest Payment Date is March 2, 2005.
Principal. Maturities and Interest: Under Section 2.02, the Bonds are issued in the form
of a single, fully registered Term Bond in the Principal Amount, bearing interest at the rate of
4.750 % per annum and maturing on September 2, 2021 and is subject to mandatory redemption,
in part by lot, on September 2 in each year, commencing September 2, 2005, from sinking fund
payments from the Redemption Fund at a redemption price equal to the principal amount thereof
to be redeemed, without premium, as follows:
Sinking Fund
Redemption Date Principal Amount
(September ~ To Be Redeemed
2005 $128,300
2006 164,200
2007 168,100
2008 176,700
2009 185,000
2010 193,100
2011 205,700
2012 217,900
2013 224,600
2014 230,800
2015 246,400
2016 261,500
2017 271,100
2018 284,900
2019 164,800
2020 171,400
2021 (Maturity) 177,700
Resolution No. 2004-066 N.C.S. Page 36
Bond Redemption:
Under Section 2.03 (A) (i) and (ii}, the Redemption provisions are as follows:
Mandatory Prepayment Account Redemption. The Bond, or any portion of the principal
thereof, in the principal amount of $5,000 or any integral multiple of $5,000, will be redeemed
and paid in advance of maturity using any funds available therefore fin the Prepayment Account
and derived from any prepayments of Reassessments, on any Interest Payment Date and. by
paying the principal amount thereof, plus a redemption premium equal to 3% of the principal
amount being redeemed, plus interest to the date of redemption unless sooner surrendered, in
which event interest will be paid to the date of payment.
Optional Redemption. The Bond is subject to optional redemption from sources of
moneys, other than prepayments, including the proceeds of refunding bonds only on the
following dates and upon payment of the following Premiums:
Interest Pa~rnent Dates Premium
September 2, 2011 through September 2, 2013 3%
March 2, 2014 through September 2, 2015 2%
March 2, 2016 through September 2, 2017 1%
March 2, 2018 and thereafter 0%
Deposits to Funds: Under Section 4.01 hereof, on or before the Closing Date, the
following transfers and deposits shall be made:
1. The City shall cause to be transferred to the Escrow Holder for deposit in the
Escrow Fund, the following amounts:
(a) $3,144,718.52 from Bond proceeds;
(b) $373,080.00 from the Prior Bonds' reserve accounts;
(c) $28,618.81 from the Prior Bonds investment earnings accounts;
and
(d) $406,434.39 from the Prior Bonds' redemption accounts.
2. City shall cause the following amounts to be deposited from Bond proceeds:
(a) $106,996.78 to the Costs of Issuance Fund; and
(b) $220,484.70 to the Reserve Fund;
Any further tax roll collections for the Prior Bonds received by the City from the County,
shall be deposited to the Reserve Fund for the Bonds.
Resolution No. 2004-066 N.C.S. Page 37
EXIIIBIT C
FORM OF BOND
United States of America
State of California
County of Sonoma
County of Registered Registered
Number A-
LIMITED OBLIGATION
REFUNDING IMPROVEMENT BOND
CITY OF PETALUMA
Consolidated Reassessment and Refunding District of 2004
(Assessment Districts Nos. 24 and 25)
INTEREST RATE MATURITY DATE DATED DATE
4.750% September 2, 2021 July 1, 2004
REGISTERED OWNER:
PRINCIPAL AMOUNT: ***Three Million Four Hundred Seventy Two Thousand Two Hundred
($3;472,200.00) DOLLARS***
Under and by virtue of the Refunding Act of 1984 for 1915 Improvement Act Bonds of,
Division 11.5 (commencing with Section 9500) of the Streets and Highways Code (the "Act"),
the City of Petaluma (the City) County of Sonoma, State of California, will, out of the
redemption fund for the payment of the bonds issued upon the unpaid portion of reassessments
made for the acquisition, work and improvements more fully described. in proceedings taken
pursuant to Resolution of Intention No. 2004-065 adopted by the City Council of the City on
May 3, 2004, pay to the registered owner named above or registered assigns, on the maturity date
stated above, the principal amount stated above, in lawful money of the United States of America
and in like manner will pay interest at the rate per annum stated above, payable semiannually on
March 2 and September 2 (each an "Interest Payment Date") in each year commencing on March
2, 2005.
This Bond bears interest from the Interest Payment Date next preceding its date of
authentication and registration unless it is authenticated and registered (i) prior to an Interest
Payment Date and after the close of business of the fifteen day preceding such Interest Payment
Date, in which event it shall bear interest from such Interest Payment Date, or (ii) prior to the
close of business on the fifteenth day of the calendar month preceding March 2, 2005, in which
event it shall bear interest from its date, until payment of such principal sum shall have been
discharged.
This Bond is issued as a single, fully registered bond that matures on September 2, 2021
and is subject to mandatory redemption, in part by lot, on .September 2 in each year, commencing
Resolution No. 2004-066 N.C.S. Page 38
September 2, 2005, from sinking fund payments from the redemption fund at a redemption price
equal to the principal amount thereof to be redeemed, without premium, as follows:
Sinking Fund
Redemption Date Principal Amount
(September 2) To Be Redeemed
2005 $128,300
2006 164,200
2007 168,100
2008 176,700
2009 185,000
2010 193,100
2011 205,700
2012 217,900
2013 224,600
2014 230,800
2015 246,400
2016 261,500
2017 271,100
2018 284,900
2019 164,800
2020 ~ 171,400
2021 (Maturity) 177,700
Both principal hereof and redemption premium hereon are payable at the office of the
Finance Director of the City as the Transfer Agent, Registrar and Paying Agent (the "Agent") in
Petaluma, California, and the interest here on is payable by check or draft mailed to the registered
owner hereof at such owner's address as it appears on the record. of the Agent or at an address
that has been filed with the Agent for that purpose, as of the 15th day of the calendar month
immediately preceding each Interest Payment Date.
This bond will continue to bear interest after maturity at the rate above stated; provided it
is presented at maturity and payment thereof is refused upon the sole ground that there are not
sufficient moneys in said redemption fund with which to pay same. If it is not presented at
maturity, interest thereon will run until maturity.
This bond shall not be entitled to any benefit under the Act and the Resolution
Authorizing of Issuance of Refunding Bonds (the "Resolution of Issuance") or become valid or
obligatory for any purpose, until the certificate of authentication and registration hereon endorsed
shall have been dated and signed by the Agent.
This bond is subject to mandatory sinking fund redemption as set forth below and is
issued by the City under the Act and the Resolution of Issuance for the purpose of providing
means for paying for the reassessment bonds described in the proceedings, and is secured by the
moneys in the redemption fund and by the unpaid portion of assessments made for the payment
of those improvements, and, including principal and interest, is payable exclusively out of the
redemption fund.
Resolution No. 2004-066 N.C.S. Page 39
This bond is transferable by the registered owner hereof, in person or by the owner's
attorney duly authorized in writing, at the office of the Agent, subject to the terms and conditions
provided in the Resolution of Issuance, including the payment of certain charges, if any, upon
surrender and cancellation of this bond. Upon transfer; a new registered bond or bonds, of any
authorized denomination or denominations, of the same maturity, and for the same aggregate
principal amount, will be issued to the transferee in exchange therefor.
Neither the City nor the Agent shall be required to exchange or to register the transfer of
bonds during the 15 days immediately preceding any Interest Payment Date.
The City and the Agent may treat the registered owner hereof as the absolute owner for all
purposes, and the City and the Agent shall not be affected by any notice to the contrary.
This Bond, or any portion of the principal thereof, in the principal amount of $5,000 or
any integral multiple of $5,000, will be redeemed and paid in advance of maturity using any
funds available therefore from any prepayments of assessments, on any Interest Payment Date in
any year by giving at least 30 days' notice by registered or certified mail or personal service to
the registered owner and by paying the principal amount thereof, plus a redemption premium
equal to 3% of the principal amount being redeemed, plus interest to the date of redemption
unless sooner surrendered, in which event interest will be paid to the date of payment.
The Bond is subject to optional redemption from sources of moneys, other than
prepayments, including the proceeds of refunding bonds only on the following dates and upon
payment of the following Premiums:
Interest Payment Dates Premium
September 2, 2011 through September 2, 2013 3%
March 2, 2014 through September 2, 2015 2%
March 2, 2016 through September 2, 2017 1
March 2, 2018 and thereafter 0%
This Bond is a Limited Obligation Refunding Improvement Bond because, under the
Resolution of Issuance, the City is not obligated to advance funds from the City treasury to cover
any deficiency which may occur in the redemption fund for the bonds; however, the City is not
prevented, in its sole discretion, from so advancing funds.
This Bond is not subject to refunding pursuant to the procedures of Division 11
(commencing with Section 9000 or Division 11.5 (commencing with Section 9500) of the Streets
and Highways Code prior to September 2, 2011.
Resolution No. 2004-066 N.C.S. Page 40
IN WITNESS WHERE®F, the City of Petaluma has caused this bond to be signed in
facsimile by the Treasurer of the City and by its City Clerk, and has cause its corporate seal to be
reproduced in facsimile hereon all as of the lst day of July, 2004.
CITY OF PETALUMA
Treasurer City Clerk
[SEAL]
Resolution No. 2004-066 N.C.S. Page 41
CERTIFICATE OF AUTHENTICATION ANI~ REGISTRATION
This is one of the bonds described in the within mentioned Resolution of Issuance.
Dated: , 2004
JPMorgan Chase,
as Agent
By:
Authorized Officer
' Resolution No. 2004-066 N.C:S. Page 42
ABBREVIATIONS
The following abbreviations, when. used in the inscription on the face of this bond, shall
be construed as though they were written out in .full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT - Custodian
(Gust) (Minor)
under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list
ASSIGNMENT
For value received, the undersigned do(es) hereby sell, assign and transfer unto
(Name, Address and Tax Identification or .Social Security Number of Assignee)
the within mentioned Bond and hereby irrevocably constitute(s) and appoint(s)
attorney, to transfer the same on the registration books of the Agent, with full
power of substitution in the premises.
Dated:
Signature Guaranteed:
Resolution No. 2004-066 N.C.S. Page 43
NOTICE: The signature(s) on this
assignment must correspond with the
name(s) as written on the face of the
registered Bond in every particular without
alteration or enlargement or any change
whatsoever.
Resolution No. 2004-066 N.C.S. Page 44