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Staff Report 5.A 02/07/2011
DATE TO: FROM: February 7, 2011 Honorable Mayor and Members of the City Council through City Manager Pamela Tuft, Department of Water Resources and ConservatiQ# hjr SUBJECT: Adoption of a Resolution of the City Council of the City of Petaluma_ Authorizing the Issuance and Sale of Wastewater Revenue, Refinancing Bonds to Refinance Outstanding Wastewater Debt Obligations of the City, and Approving Official Statement and Related Agreements and Actions RECOMMENDA'T'ION It is recommended that the City Council adopt the attached Resolution of the City Council of the City of Petaluma Authorizing the Issuance and Sale of Wastewater Revenue Refunding Bonds to Refinance Outstanding Wastewater Debt Obligations of the City, and Approving Official Statement and Related Agreements and Actions. BACKGROUND The recommended funding structure is presented to manage and repay long-term debt associated with the construction of improvements necessary for the provision of wastewater treatment services to the City of Petaluma. The debt structure recommended herein has been developed with three goals in mind: (1) to achieve the lowest overall interest cost on the City's wastewater debt, (2) to minimize, to the greatest extent possible, the burden of debt repayment on rate payers, and (3) to promote intergenerational equity, by maximizing debt consolidation with a timeframe commensurate with the 80+ year life of the Ellis Creek Water Recycling Facility and other improvements undertaken in the past through bond issuance, as discussed below. Existing Debt — Lines of Credit: In September 2005, to bridge the time gap between initiating the project and finalizing the State Revolving Loan (CWSRF) paperwork, the City ensured adequate funding for the planning, design, engineering, environmental review and construction of the Ellis Creek Water Recycling Facility by entering into Revolving Credit Agreements (e.g. loan agreements) with two banks: BNP Paribas ("BNP") and Zions First National Bank ("Zions"). These two bank loan agreements were necessary for two reasons: (1) To provide financial liquidity (e.g. cash flow) during construction of the Ellis Creek Facility, and (2) to pay certain project -related costs that were not eligible to be paid from proceeds of the CWSRF Loan. The two loans were originally approved for a combined maximum drawdown of $100 million, of which $14,746,898 remains outstanding. The City intended to refinance the total of the two loans, through issuance of municipal bonds, in 2009 immediately following the completion of construction. Agenda Review: ) City Attorney . Finance Director—A4 City Manage I of the two loans, through issuance of municipal bonds, in 2009 immediately following the completion of construction. The initiation of Measure U, however, adversely affected the opportunity to issue new bonds and pay off the Lines of Credit. As a consequence, the City was required to renegotiate both loans to defer retirement of that debt. Both banks extended the payment date until June 2011, by which time the City is legally obligated to repay the outstanding balances on its bank loans. Neither bank has indicated an interest in further deferring loan maturity or otherwise refinancing. Existing Debt — 2000 Wastewater Revenue Bonds: Proceeds from the 2011 Bonds will also be used to refinance the 2000 Bonds, issued originally for $8,895,000 and currently outstanding in the principal amount of $5,525,000 plus accrued interest. The proceeds of the 2000 Bonds were used to finance the Pond Influent Pump Station Upgrade Project, the Lindberg Lane Sewer Main Replacement Project, and preliminary efforts in support of the Ellis Creek Water Recycling Facility Project. Interest rates on the 2000 Bonds, range from 5.00% in 2012 to 5.50% in 2020. Refinancing the 2000 Bonds will not produce "economic savings" for the City; rather, refinancing the 2000 Bonds will produce only "cash flow savings". The need for such cash flow savings stems from the fact that the CWSRF Loan has a relatively short, 20 -year repayment term, with commensurately high annual debt service payments. Therefore, the 2000 Bonds are being refinanced in order to raise annual debt service coverage above the 1.25x threshold and thereby satisfy the Additional Bonds Test and the credit rating criteria, without necessitating a further increase in wastewater rates. Existing Debt - CWSRF Loan: Construction of the Ellis Creek Facility was ultimately financed, in large part, with the proceeds of the CWSRF Loan, a subsidized, below-market loan from the State of California Water Resources Control Board. Both the CWSRF Loan and the 2011 Bonds are legally secured by and payable from the same revenue source — Net Revenues of the Wastewater System. After all qualified project costs are finalized, verified and reconciled, the City estimates the total size of the CWSRF Loan, including both principal and accrued interest, will equal approximately $127.36 million. The interest rate on the CWSRF Loan is fixed at 2.40% per year and loan payments are due in equal annual installments over 20 -years, with the final loan payment due on April 9, 2029. The City estimates the annual CWSRF Loan payments due each April 9th will equal approximately $8.14 million. An analysis has been performed to establish that any conditions which are set forth in the SRF Loan agreement which much be satisfied in order to provide a parity pledge (equivalence in rank or importance) of Net Revenues for the Bonds have been or will be satisfied. The City's underwriting and bond counsel have reviewed the revenue history and the estimated combined debt service on the two obligations (the CWSRF Loan and the 2011 Bonds) and confirmed that any parity conditions have been satisfied. The CWSRF loan is currently expected to be a "parity" obligation with the 2011 Bonds, meaning both the CWSRF Loan and the 2011 Bonds will be secured on an equal basis by Wastewater System Net Revenues. However, the City financing team has requested State Water Resources Control Board staff to consider subordinating the CWSRF Loan to the 2011 issuance. Such subordination would make repayment of the 2011 more secure, and thereby more attractive to investors, which could reduce the amount of interest on the issuance by as much as 100 basis points (1 percent). CWSRF staff has indicated subordination would require a policy change on the part of the Board, and would most likely not be available prior to June 1, 2011 when the Bank loans are due. 2011 Wastewater Revenue Bond Issuance: This bond issue, entitled "City of Petaluma 2011 Wastewater Revenue Refunding Bonds" completes the final phase of the financing for the Ellis Creek Water Recycling Facility by retiring debt from the Lines of Credit. Debt service on the 2011 Bonds will be paid from Wastewater System Net Revenues. Proceeds from the 2011 Bonds will be used as follows: • To repay in full a bank loan from BNP Paribas currently outstanding in the amount of $9,106,976, plus accrued interest; ® To repay in full a bank loan from Zions First National Bank currently outstanding in the amount of $5,639,922, plus accrued interest; and, ® To refinance all $5,525,000 of currently outstanding City of Petaluma 2000 Wastewater Revenue Bonds, plus accrued interest. • Additionally, approximately $2,236,500 of the bond proceeds will be used to fund a Debt Service Reserve Fund associated with the borrowing. Approximately $287,440 of the bond proceeds will also be used to pay Transaction Costs incurred in connection with the issuance of the bonds. Debt Service Reserve Fund: Long-term municipal revenue bonds such as the 2011 Bonds typically include a Debt Service Reserve Fund that is funded from bond proceeds. The purpose of the Debt Service Reserve Fund is to pay debt service on the bonds if, for any reason, the City is temporarily unable to do so. For the 2011 Bonds, the size of the Debt Service Reserve Fund is equal to 10% of the principal amount of the bond issue. The Debt Service Reserve Fund will be held in trust and administered by the Bond Trustee, and invested by the Trustee at the direction of the City, subject to certain limitations on permitted investments. While the bonds remain outstanding, any interest that is earned from investing the Debt Service Reserve Fund will be used by the Trustee to pay debt service on the bonds, thereby reducing the amount of debt service that must be paid from user charges. The Reserve Fund will be used to offset the final debt service payment on the 2011 Bonds. City management has worked with underwriting, bond and disclosure counsel teams to investigate, select, and recommend the most advantageous and risk-free debt restructuring option for Council consideration. The recommended option provides for payment of interest on the 2011 bonds for the term of the CWSRF Loan repayment and thereafter to provide for principal and interest payments on the 2011 bonds until payment is concluded in 2036. This allow the costs associated with the construction of the Ellis Creek Water Recycling Facility 3 to be phased over a longer.period of time, 26 years, rather than burdening the full cost over a twenty-year period as is the term for the CWSRF Loan, which matures in 2029. The 2011 Bonds have the following key features: ® The par amount or principal amount of the bonds is approximately $22,365,000. ® Interest on the bonds is exempt from Federal and State of California income taxes. ® The bonds are secured by and payable from Net Wastewater System Revenues. ® The bonds will have fixed interest rates. ® The interest rates on the Bonds will be determined when the Bonds are sold, which is expected to occur during or shortly after the week of February 14, 2011. ® Bond closing is expected to occur approximately two weeks thereafter. ® The bonds have a term of 25 -years and mature in 2036. ® Interest on the bonds is payable in arrears, semi-annually on May 1 and Nov 1 beginning May 1, 2011. o Bond principal is payable annually on May 1 beginning May 1, 2030. ® Payment of bond principal is deferred until after final repayment of the CWSRF Loan, to reduce the need for further increase in wastewater user charges to cover debt. ® From fiscal year 2011/12 through fiscal year 202$/29, annual debt service payments on the bonds will equal approximately $1,366,671 per year. ® Thereafter, from fiscal year 2029/30 until final maturity in fiscal year 2035/36, annual debt service payments on the bonds will equal approximately $4,025,000 per year. ® The all-inclusive interest rate or "True Interest Cost" of the bonds is expected to equal approximately 6.16% based on current municipal bond market conditions. ® The two bank loans will be repaid from bond proceeds immediately upon closing. ® The bonds are being offered to the public via a negotiated sale through Piper Jaffray. Timing of Bond Sales: The sale of the bonds is tentatively planned from one to two weeks following Council authorization, subject to prevailing municipal bond market conditions and the ability to obtain favorable interest rates on the bonds. The City and its underwriting team are monitoring interest rates for fixed-rate bonds on a daily basis to determine the best sale dates. The attached legislation sets the parameters for the sale of the Bonds, and allows the continued monitoring of interest rates, subsequent to Council authorization, to act.at the appropriate time to obtain the best interest rate possible. Bond Ratings: As is customary for bond financings of this type, the City has applied f6r and received credit ratings on the 2011 Bonds from two rating agencies: Moody's and Standard & Poor's. Moody's assigned a credit rating of `A1' to the bonds and Standard & Poor's assigned a credit rating of `AA-' to the bonds. The purpose of these ratings is to provide investors with an independent assessment of the creditworthiness of the City's Wastewater System and its ability to repay its debts. Overall, the ratings from both Moody's and Standard & Poor's are indicative of strong creditworthiness. Included in this package are the published reports from both Moody's and Standard & Poor's describing how and why they rated the bonds as they did (Attachments 5 and 6). M In addition to evaluating a fixed rate issue, City management worked with underwriting and bond counsel members to evaluate the advantages of variable rate bonds. While variable rate bonds offer benefits there is also attendant risk. For the past 2-3 years, the interest rate on variable-rate debt has been extremely low, in the range of 0.25% to 0.50%. This compares to the interest rate on fixed-rate debt which, for agencies with ratings similar to Petaluma's, is currently in the 6.00% range. If variable interest rates remain at current low levels, the City could save approximately $1 million per year in interest expense by issuing variable-rate debt, as compared to issuing fixed-rate debt, after taking into account all of the up -front and recurring annual costs. These annual interest savings could be used for various purposes including repaying outstanding debt ahead of schedule, funding capital improvements, lowering wastewater rates and/or maintaining additional financial reserves in the wastewater fund. Issuing a variable rate loan now would also allow the City to pay off the Bank loans due in June, and still pursue subordination of the CWSRF loan. If subordination were obtained, the City might be able to re -issue fixed-rate debt at that time, at a more favorable rate. As indicated, however there are attendant risks. Historically, prior to 2-3 years ago, the interest rate on variable rate debt typically averaged in the range of 3.00% to 4.00%. If variable rates revert to their historical norm, much (but not all) of the benefit of will be lost. In order to issue variable-rate debt the City would need a letter of.credit from a highly -rated bank. A letter of credit is akin to an insurance policy and is an essential feature of variable- rate debt. Two highly rated letter of credit banks — Rabobank and JP Morgan Chase — have indicated a willingness to provide the City with a letter of credit at a reasonable cost. Although Rabobank and JP Morgan Chase are both highly rated today, it is possible that their ratings could be downgraded in the future. If that were to happen, the interest rate on the City's variable-rate debt could increase abruptly and dramatically. Without the guarantee of a permanent interest rate cap, increases could reach the 12 percent level, the maximum allowed by law. With variable-rate debt, there is also the risk of a market -wide disruption. For example, in 2008 when the investment bank Lehman Brothers unexpectedly filed for bankruptcy, the entire variable-rate debt market was temporarily disrupted, during which time the interest rate on many variable rate bonds increased to 9.00%. Further, such market conditions may preclude the city from reissuing fixed term debt, and receiving any benefit from subordination of the SRF loan, if such is granted. Accordingly, and after weighing the benefits against risks, staff recommends a fixed rate bond sale to avoid the volatility of the variable bond market and to maintain consistent debt coverage and payments for the life of the bonds. FINANCIAL IMPAC'T'S The estimated cost of this borrowing for 25 years, including principal payments of $22,365,000 and interest payments of $28,692,403 is $51,057,403. These costs are delineated on the attached "Wastewater Revenue Refinancing Bonds, Series 2011 Estimated Debt Service Payment Schedule (Attachment 7). Principal includes $2,236,500 for the Debt Service Reserve Fund. Also associated with this borrowing is $287,000 in transaction costs. Transaction costs are consistent with industry norms for a bond issue of this type and size, and will be paid from bond proceeds at closing. The attached Schedule also provides, for the, Council's information, the payment schedule for the CWSRF Loan, through maturity in 2029 and the combined principal and interest payments for both financings. ATTACHMENTS 1. Financing Resolution Pgs Al - A4 2. Draft Trust Indenture Pgs A5 - A56 3. Draft Preliminary Official Statement (POS) Draft Continuing Disclosure Certificate (Appendix E to Preliminary Official Statement) Pgs A57 - A140 4. Draft Bond Purchase Contract Pgs A141 - A157 5. Moody's Rating Report Pgs A158 - A161 6. Standard & Poor's Rating Report Pgs A162 - A166 7. Wastewater Revenue Refinancing Bonds, Series 2011 Pgs A-167 Estimated Debt Service Payment Schedule I Attachment 1 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA AUTHORIZING THE ISSUANCE AND SALE OF WASTEWATER REVENUE REFINANCING BONDS TO REFINANCE OUTSTANDING WASTEWATER DEBT OBLIGATIONS OF THE CITY, AND APPROVING OFFICIAL STATEMENT AND RELATED AGREEMENTS AND ACTIONS WHEREAS, the City of Petaluma (the "City") owns and operates a public enterprise for the collection, treatment and disposal of wastewater within the service area of the City (the "Wastewater System"); and WHEREAS, the City has heretofore authorized, issued and sold $8,895,000 principal amount of its City of Petaluma Wastewater Revenue Bonds, Series 2000 (the "2000 Bonds") pursuant to an Indenture of Trust dated as of May 1, 2000 (the "200.0 Indenture"), by and between the City and Norwest Bank Minnesota, N.A. (the "2000 Trustee"), which are presently outstanding in the principal amount of $5,525,000; and WHEREAS, the City entered into a Revolving Credit Agreement (as amended, the "BNP Credit Agreement") with BNP Paribas ("BNP Paribas"), dated as of September 1, 2005, under which BNP Paribas advanced funds to the City under a revolving line of credit (the "BNP Line of Credit") to finance improvements to the City's Wastewater System (as herein defined), and the principal balance presently owed by the City to BNP Paribas under the BNP Line of Credit is $9,106,975.50, which amount is due and payable in full by the City no later than June 1, 2011; and WHEREAS, the City entered into a Revolving Credit Agreement (as amended, the "Zions Credit Agreement") with Zions First National Bank ("Zions"), dated as of September 1, 2005, under which Zions advanced funds to the City under a revolving line of credit (the "Zions Line of Credit") to finance improvements to the City's Wastewater System, and the principal balance presently owed by the City to Zions under the Zions Line of Credit is $5,639,922.15,which amount is due and payable in full by the City no later than June 1, 2011; and WHEREAS, the BNP Credit Agreement and the Zions Credit Agreement are collectively referred to herein as the "Credit Agreements", and the BNP Line of Credit and the Zions Line of Credit are collectively referred to herein as the "Lines of Credit"; and WHEREAS, under the 2000 Indenture, the City has the right to redeem the 2000 Bonds on any date, and under both the Credit Agreements, the City has the right to prepay the Lines of Credit on any date; and WHEREAS, the 2000 Bonds and the Lines of Credit are referred to herein collectively as the "Prior Obligations"; and WHEREAS, the City wishes at this time to redeem the 2000 Bonds in accordance with the 2000 Indenture, and to prepay the Lines of Credit in full in accordance with the Credit Agreements; and WHEREAS, the City has entered into a loan agreement with the State of California on August 25, 2006 under a Revolving Fund Loan Agreement, in a principal amount of not to exceed $127,360,634 including accrued interest (the "CWSRF Loan"); and WHEREAS, the Bonds will be secured by a pledge of and lien on the Net Revenues derived by the City from the operation of its Wastewater System, on parity with the CWSRF Loan; and WHEREAS, the City Council wishes at this time to authorize the issuance and sale of City of Petaluma 2011 Wastewater Revenue Refunding Bonds (the "Refunding Bonds") under the Bond Law as herein defined) to (i) repay the BNP Line of Credit, (ii) repay the Zions Line of Credit, and (iii) refinance the 2000 Bonds, such Refunding Bonds to be secured by a pledge of the Net Revenues of the Wastewater System; and WHEREAS, the City Council of the City has duly considered such transactions and wishes at this time to approve said transactions in the public interests of the City; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma as follows: Section 1. Issuance of Refunding Bonds; Approval of Indenture. The City Council hereby authorizes the issuance of the Refunding Bonds under the provisions of Articles 10 and 11 of Chapter 3 of Part 1 of Division 2 of Title 5 of the California Government Code, commencing with Section 53570 of said Code (the "Bond Law"), in a principal amount not to exceed $25,000,000, for the purpose of providing funds to refinance the Prior Obligations. The Refunding Bonds shall be issued under an Indenture of Trust between the City and The Bank of New York Mellon Trust Company, N.A., as trustee, which is hereby 2 approved in substantially the form on file with the City Clerk together with any changes therein or additions thereto deemed advisable by the City Manager, and the execution thereof by the City Manager shall be conclusive evidence of the approval of such changes and additions. The City Council hereby authorizes and directs the City Manager to execute, and the City Clerk to attest, said form of the Indenture of Trust for and in the name of the City. The City Council hereby authorizes the delivery and performance of the Indenture of Trust. Section 2. Refinancing of the Prior Obligations. The City Council hereby authorizes and approves the refinancing of the Prior Obligations from the proceeds of the Refunding Bonds. Such refinancing shall be accomplished as provided in the Indenture. Section 3. Negotiated Sale of Refunding Bonds. In accordance with Section 53583 of the Bond Law, the City Council hereby authorizes and directs the negotiated sale of the Refunding Bonds to Piper Jaffray & Co., as underwriter (the "Underwriter") .under the Bond Purchase Contract, in substantially the form on file with the City Clerk, together with any changes therein or additions thereto deemed advisable by the City Manager,, whose execution thereof shall be conclusive evidence of the approval of any such changes or additions. The amount of Underwriter's discount for the Refunding Bonds shall be not more than 0.60% of the par amount thereof, and the true interest cost to be borne by the Refunding Bonds (taking into account any original issue discount on the sale thereof) shall not exceed 7% per annum. Section 4. Official Statement; Continuing Disclosure Certificate. The City Council hereby approves the Preliminary Official Statement describing the Refunding Bonds in the form on file with the City Clerk, and authorizes the City Manager to approve revisions to said Preliminary Official Statement. At the request of the Underwriter, the City Manager shall execute a certificate deeming the Preliminary Official Statement, as so revised, to be nearly final within the meaning of Rule 15c2-12 of the Securities Exchange Act of 1934. Distribution of the Preliminary Official Statement by the Underwriter to prospective purchasers of the Refunding Bonds is hereby approved. The City Manager is hereby authorized and directed to approve any changes in or additions to a final form of said Official Statement, and the execution thereof by the City Manager shall be conclusive evidence of approval of any such changes and additions. The City Council hereby authorizes the distribution of the final Official Statement by the Underwriter. The final Official Statement shall be executed in the name and on behalf of the City by the City Manager. In addition, the Continuing Disclosure Certificate, attached to the Preliminary Official Statement as Appendix E, is hereby approved, and the City Manager is hereby authorized to execute and deliver said Certificate on behalf of the City. Section 5. Engagement of Professional Services. In connection with the issuance and sale of the Refunding Bonds, the City Council hereby authorizes the firm of Jones Hall, A Professional Law Corporation, to act as bond counsel and disclosure counsel to the City. The City Manager is hereby authorized and directed to execute an agreement with such firm, in the forms on file with the City'Clerk. Section 6. Official Actions. The Mayor, the City Manager, the City Clerk and any and all other officers of the City are hereby authorized and directed, for and in the name and on behalf of the City, to do any and all things and take any and all actions, including execution and delivery of any -and all assignments, certificates, requisitions, agreements, notices, consents, instruments of conveyance, warrants and other documents, which they, or any of them, may deem necessary or advisable in order to consummate the transactions described herein. Whenever in this resolution any officer of the City is authorized to execute or countersign any document or take any action, such execution, countersigning or action may be taken on behalf of such officer by any person designated by such officer to act on his or her behalf if such officer is absent or unavailable. Section 7. Effective late. This Resolution shall take effect from and after the date of its passage and adoption. 0 • • Attachment 2 INDENTURE OF TRUST between the CITY OF PETALUMA and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee Dated as of February 1, 2011 Relating to $[Principal Amount] City of Petaluma 2011 Wastewater Revenue Refunding Bonds • TABLE OF CONTENTS ARTICLE IV Revenues; Flow Of Funds Section 4.01. Pledge of Net Revenues...................................................................................12 Section 4.02. Receipt, Deposit and Application of Net Revenues ................................... 12 Section 4.03. Establishment of Rate Stabilization Fund .................................................... 14 Section4.04. Investments......................................................................................................... 14 Section 4.05. Valuation and Disposition of Investments .................................................. 15 ARTICLE I Definitions; Rules of Construction Section1.01. Definitions............................................................................................................. 2 Section1.02. Authorization....................................................................................................... 2 Section1.03. Interpretation:....................................................................................................... 2 ARTICLE II Section 5.04. Issuance of Bonds Section 2.01. Authorization and Purpose of Bonds.............................................................. 3 Section2.02. Terms of the Bonds.............................................................................................. 3 Section 2.03. Redemption of Bonds............:............................................................................ 4 Section2.04. Book Entry System.............................................................................................. 7 Section 2.05. Form and Execution of Bonds........................................................................... 8 Section 2.06. Transfer and Exchange of Bonds...................................................................... 9 Section 2.07. Registration Books............................................................................................... 9 Section 2.08. Bonds Mutilated, Lost, Destroyed or Stolen .................................................. 9 ARTICLE III Issue of Bonds; Parity Debt Section 3.01. Issuance.of Bonds.............................................................................................. 10 • Section 3.02. Section 3.03. Deposit and Application of Proceeds; Transfer of Funds ......................... Costs of Issuance Fund.....................................................................................10 10 Section3.04. Reserve Fund...................................................................................................... 11 Section3.05. Escrow Fund........................................................................................................11 Section 3.06. Issuance of Parity Debt.....................................................................................11 Section3..07. State Loans...........................................................................................................12 Section3.08. Validity of Bonds....................................................:..........................................12 ARTICLE IV Revenues; Flow Of Funds Section 4.01. Pledge of Net Revenues...................................................................................12 Section 4.02. Receipt, Deposit and Application of Net Revenues ................................... 12 Section 4.03. Establishment of Rate Stabilization Fund .................................................... 14 Section4.04. Investments......................................................................................................... 14 Section 4.05. Valuation and Disposition of Investments .................................................. 15 6 ARTICLE V Financial Covenants Section 5.01. Punctual Payment; Compliance With Documents.....................................16 Section5.02. Discharge of Claims..........................................................................................16 Section 5.03. Operation of Wastewater System in Efficient and Economical .Manner.................................................................................................................16 Section 5.04. Sale or Eminent Domain of Wastewater System........................................16 Section5.05. Insurance............................................................................................................. 17 Section 5.06. Records and Accounts...................................................................................... 17 Section5.07. Rates and Charges............................................................................................. 17 Section 5.08. • Section 5.09. Superior and Subordinate Obligations......................................................... Tax Covenants Relating to Bonds..................................................................18 18 Section 5.10. Refunding of Prior Obligations...................................................................... 19 6 Section, 5. 1-1. Coh"'tinuirig Discl.osure ................ ......................................... ............... - 19 Section 51;12. Further Assurances , ....................... - .................................................................. 19 A- 7 ARTICLE VI ARTICLE VIII 'The Trustee Section 6.01., Duties, Immunities and Liabilities of Trustee. .... ........................................ 20 Section 6.02. Merger or Consolidation............................................................. ..................... 21 Section 6'.03. Rights and Liabilities�of Trustee ...................................................................... 21 Section 6.04. Right to Rely on Documents ..................... ............. I .......... - ................................ 23 Section 6.05. Preservation and.Inspection of Documents ................................................. 24 Section 6.06. Compensation andindemnificatfon ....... ................................................ 24 Section 6.07. Accounting, Records and Financial Statements .: ......................................... 25 30 'ARTICLE VII Section 8.06. Actions by Trustee as Attorney -in -Fact ........................................................ Modification and -Amendment of this Indenture Section 7.01. Ameftdi ' nehts Permitted .............................. -, ....................................... .......... 25 Section- 7.02. Effbct;df Supplemental, Indenture .................................................................. 26 Section 7.03.. Endorsement or Replacement of Bonds After Amendment .................... 27 Section 7.04. Amendment by Mutual Consent ..................................................................... 27 Section 7.05. Trustee's Reliance .................................................... .......................................... 27 A- 7 ARTICLE VIII Events of Default and Remedies of Bond Owners Section 8.01. Events of DefaultIzand Acceleration of Maturities ...................................... 27 Section 8.02. Application of Funds Upon A * cceleration .................................................... 28 Section 8.03. Power of 'Trustee to Control Proceedings:.................................................... 29 Section 8,04. Limitation on'Owners` Right to Sue ............................................................... 29 Section8.05. Non -waiver ....... :.; .............................. ........................................ I ........................ 30 Section 8.06. Actions by Trustee as Attorney -in -Fact ........................................................ 30 Section 8.07. Remedies Not Exclusive ............ ...................................................................... 30 ARTICLE IX Miscellaneous Section 9,01. Limited Liability of City ...................................................................................... 31 Section 9.02. Benefits of Indenture Limited to Parties ....................................................... 31 Section 9.03. Defeasance of Bonds . ................................ .............. ; ............... *""****** ........ 31 Section 9.0'4Execution. Executioof Documents and,Proof of Ownership by Owners ............... 32 Section 9.05. Dis-qualified'Bonds ................................................. .......................................... 33 Section 9.06. Wlai'ver-of- Personal Liability ............................................ , ............................... 33 Section; 9.07. Destruction of'Cancel I ed Bonds .................................................... .................... 33 Section 9.08. Funds and.Accounts ................................................ ....., i .................. ; .............. 33 Section9.09. Notices ........................................................................ ..... * .................................... 33 Section 9.10. Unclaimed Moneys ..................................... ................. ;.; ........................ - : , ...... 34 Section 9.11. Execution in Several Counterparts ................................ �.�; ................ ; .......... 34 Section9.413. Governing Law ............................................................................. ; .................... 34 APPENDIX A: DEFINITIONS APPENDIX B: FORM OF BOND APPENDIX C: REDEMPTION AND PREPAYMENT SCHEDULE FOR THE PRIOR OBLIGATIONS, A- 7 • INDENTURE OF TRUST This INDENTURE OF TRUST, dated as of February 1, 2011, is between the CITY OF PETALUMA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (the "City"), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association organized and existing under the laws of the United States of America, with a corporate trust office in San Francisco, California, and being qualified to accept and administer the trusts hereby created (the "Trustee"). BACKGROUND: 1. The City has heretofore authorized, issued and sold $8,895,000 principal amount of its City of Petaluma Wastewater Revenue Bonds, Series 2000 (the "2000 Bonds") pursuant to an Indenture of Trust dated as of May 1, 2000 (the "2000 Indenture"), by and between the City and Norwest Bank,. Minnesota, N.A. (the "2000 Trustee"), which are presently outstanding in the principal amount of $5,525,000. 2. The City entered into a Revolving Credit Agreement (as amended, the "BNP Credit Agreement") with BNP Paribas ("BNP Paribas"), dated as of September 1, 2005, under which BNP Paribas advanced funds to the, City under a revolving line of credit (the "BNP Line of Credit") to finance improvements to the City's Wastewater System (as herein defined),. and the balance owed by the City to BNP Paribas under the BNP Line of Credit is presently $9,106,975.50, plus accrued interest to the date of ® repayment. 3. The City entered into a Revolving Credit Agreement (as amended, the "Zion Credit Agreement") with Zions First National Bank ("Zions"), dated as of September 1, 2005, under which Zions advanced funds to.the City under a revolving line of credit (the "Zions Line of Credit") to finance improvements to the City's Wastewater System, and the balance owed by the City to Zions under the Zions Line of Credit is presently $5,639,922.15, plus accrued interest to the date of repayment. 4. The BNP Credit Agreement and the Zions Credit Agreement are collectively referred to _herein as the "Credit Agreements", and the BNP Line of Credit and the Zions Line of Credit are collectively referred to herein as the "Lines of Credit". 5. Under Section 2.02 of the 2000.Indenture, the City has the right to redeem the 2000 Bonds on anv date occurring on or after May .1, 2010, and under Section 3.2 of both Credit Agreements, the City has the right to prepay the Lines of Credit at any time. 6. The 2000 Bonds and the Lines of Credit are referred to herein collectively as the "Prior Obligations". 7. The City wishes at this time to redeem the 2000 Bonds in accordance with the 2000 Indenture, and to prepay the Lines of Credit in full in accordance, with the Credit Agreements, and in order to provide funds for that purpose, the City Council of the City has authorized the issuance of the City of Petaluma 2011 Wastewater Revenue Refunding Bonds in the aggregate principal amount of $[Principa'l Amount] (the "Bonds") under the provisions of Articles 10 and 11 of Chapter 3 of Part 1 of Division 2 of Title 5 of the California Government Code, commencing with Section 53570 of said • Code (the "Bond Law"). 8. The City has entered into an Interagency Sales Agreement (No. 05-803- 550-0) with the State of California on August 25, 2006 in the maximum principal amount of $125,964,254 (the "SRF Loan"). 9. The Bonds will be secured by a pledge of and lien on the Net Revenues derived by the City from the operation of its Wastewater System, on parity with the SRF Loan. 10. In order to provide for the authentication and delivery of the Bonds, to establish and declare the terms and conditions upon which the Bonds are to be issued and secured and to secure the payment of the principal thereof and of the interest and premium, if any, thereon, the City Council of the City has authorized the execution of this Indenture. AGREEMENT: In order to secure the payment of the principal, of and the interest on all the i Bonds under this Indenture according to their 'tenor; and to secure the performance and observance .of all' the covenants .and conditions therein and herein set forth, and to declare the 'terms and conditions upon and subject to which the Bonds are to be issued and received, and in consideration of .the premises. and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds by the Owners thereof, and for other valuable considerations, the receipt of which is hereby acknowledged, the City j and the Trustee hereby covenant and agree with one: another, -for the benefit of the respective Owners from time to time of the Bonds, as follows: ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION SECTION .1.01. Definitions. Unless the context clearly otherwise requires or unless otherwise defined herein, the capitalized terms defined in Appendix A attached to this Indenture have the respective meanings specified in Appendix A when used in this Indenture. SECTION 1.02. Authorization. Each of the parties hereby represents and warrants that it has full legal ,authority and is duly empowered to enter into this Indenture, and has taken 'all actions necessary to authorize the execution hereof by the officers and persons signing it. SECTION 1.03. Interpretation. (a) Unless the context otherwise indicates, words expressed in the singular include the plural and vice versa and the use of the neuter, masculine, or feminine gender is for convenience only and include the neuter, masculine or feminine gender, as appropriate. (b) Headings of articles and sections herein.and the table of contents hereof are solely for convenience of -reference, do not constitute a part: hereof and do not affect the • meaning, construction or effect hereof. -2- f{' 9 r(c) All references hereinao "Articles," "Sections' and other- subdivisions are to the corresponding Articles, Sections or subdivisions of this Indenture; the words "herein" "hereof," ,,"' "hereunder" and other words of similar import refer to hereby this Indenture as a whole and not to any particular Article, Section or subdivision hereof. ARTICLE II ISSUANCE OF BONDS SECTION 2.01. Authorization and Purpose of Bonds. The City has reviewed all proceedings heretofore taken and has found, as a result ,of such review, and hereby finds and determines that all things, conditions and acts.required by law to exist, happen or be performed precedent; to and, in connection with the issuance of the Bonds do exist, have happened and hale been; performed .in due time, form and manner as required by law, and the City is °now duly :empowered, under each and every requirement of law, to issue the Bonds in the manner and form provided in this Indenture. The City hereby authorizes the issuance of Bonds in the aggregate principal amount of $[Principal Amount] under the Bond Law for the purposes of providing funds to pay and prepay the Prior Obligations, and thereby discharge the City's obligations under the Credit Agreements, the Lines of Credit and the 2000 Indenture, The Bonds are authorized and issuedunder, and are subject to .the terms of, this • Indenture and the 'Bond Law. The Bonds are designated the "City of Petaluma 2011 Wastewater Revenue, Refunding Bonds". SECTION 2.02. Terms of the Bonds. The Bonds' are issuable in fully registered form without coupons in denominations of $5,000 :or any integral multiple thereof, so long as no Bond has more than one. maturity date. The Bonds will :be dated as of the Closing Date, and will matureon May.1' in the.years and in the respective principal amounts and bear interest (caleul,ahed on the basis of a 360 -day year comprised of twelve 30 -day months) at the respective rates per annum, as set forth in.the following table: Maturity Date Principal Interest (May 1) Amount Rate Interest on the Bonds is payable from the, Interest Payment Date next preceding the date of authentication thereof unless: (a) a Bond is authenticated on or before an Interest Payment Date and after the close of. business on the, preceding Record Date, in which evenHt will bear interest from such Interest: Payment Date, (b) - a Bond is authenticated on or before the first Record Date, in which • event interest thereon will be payable from the Closing Date, or -3= �� 10 _. (c) interest on any .Bond,_is in default..as'of the date of authentication thereof,' in which event interest thereon will be payable from the date: to which interest -has been' paid in full, payabl'e.on each Interest Payment'Date. Interest is payable on each Interest Payment Date to the persons in whose, names the ownership of the Bonds is registered on the R'egistrat'ion Books at the close of business on the immediately preceding Record -Date, -except as provided below.. Interest on any Bond which is not punctually paid or duly provided for on any Interest Payment Date is payable_ to the, person 'in. Whose name the ownership of such Bond is registered on the Registration Books at the close of business on a special record date for the payment:of such.defaulted interest to be fized',by the Trustee, notice of which is given to such Owner by first-class mail. not less than 10 days prior to such special record date. The Trustee will payJnterest'on the Bonds by check of the Trustee,mailed,by first class mail, postage. prepaid, on each Interest .Payment Date .to the. Owners of the Bonds at their respective addresses, shown on the Registration Books as of the close of business on the preceding Record Date. At the written request of" the Owner of Bonds in an aggregate principal 'amount of at least $1,000,000, which written request is on file with te, the Trustee will pay -interest on such Bonds on each the Trustee, as of any Record Da succeeding Interest; Payment Date by wire transfer in immediately available funds to such account of a financial institution within the United States' of America as specified in such written request, which written request, will remain in effect until rescinded_ in Writing by the Owner. The`. Trustee will pay principal of' the, Bonds in lawful money of the United States of .America by check of the Trustee upon presentation and surrender thereof at the Office 'of,the Trustee. ,SECTION 2.03. kedemption of Bonds, (a), Optional Redemption. The Bonds maturing on or before, May 1, 20_ ate. -not subject to redemption prior to their. respective stated maturities. The Bonds. maturing on or after, May 1, 20_ are ;subject to redemption prior to their respective stated maturity dates, at the option of :the City, from any source of available fund's, in whole or in part; on any date on or after May 1, 20J at a redemption ,price equal to the principal amount to .be redeemed, plus accrued interest to the date fixed forredemption, without premium. (b) Sinking. Fund Redemption. The Bonds maturing on May 1, 20_ are subject -to mandatory sinking fund redemption in part, by lot; on May 1'of each year in accordance with the schedule set forth below,. The Bonds so called for :mandatory sinking fund redemption will be: redeemed at the principal amount to be redeemed, plus accrued but unpaid.:interest, without.premium. Redemption Date Sinking Fund (May 1) Amount (maturity) (c) Notice of Redemption. Unless waived by any Owner of Bonds to be • redeemed, notice,of any redemption of Bonds shall be given, at the expense of the City, by the Trustee, by mailing a copy of a redemption notice by first class inail at least ,30 -4- �} - 11 • days and not more than 60 da, ;`s riot to'the date ;fixed for redemption to .the Owner of Y Y P, . the. Bond or Bonds to .be redeemed, at, the address ''shown on .the Bond Registration Books; provided, that neither the failure to receive,such notice nor any.immaterial defect in any notice shall affect the sufficiency of the ,proceedings for the redemption of the Bond's. (d) Contents of Notice. ,All notices of redemption shall be dated and shall state: (i) the redemption date, (ii) the redemption price of .the Bonds being redeemed (the "Redemption Price"), (iii) if: fewer than all Outstanding Bonds are to. be redeemed, :the identification (and, in the case of partial redemption; the respective principal amounts) ofahe Bonds�to be.redeemed, (iv) that on the redemption, date the Redemption Price will become due and payable with :respect to each 'such Bond or portion thereof called for redemption, and that'interest'with respect thereto; shall cease to accrue from and after said date, and (v) the place or places where such Bonds are to be surrendered for payment of the .Redemption. Price, which ,places of ,payment may include the • Office of the 'Trustee. (e), Rescission ,of Notice of Redemption, The City has .the right to rescind any notice of, the optional,redernpt'lon of Bonds given'uiid'er. $ection 2:03(c) by written notice to the Trustee on or prior, to the date, fixed for redemption, .Any notice of optional redemption shall be cancelled and annulled if for any reason funds will not be or are not avail_able:oin the date fixed for :redemption, for the payment in full of the Bonds then called for redemption, and such cancellation shall not constitute an Event of Default. The City and the Trustee have no .liability to the Bond Owners .or any other party related, to or arising -from such rescission, of notice of'redemp'tion.: The Trustee shall mail notice of such. rescission of notice of redemption in. the same manner as the original .notice of redemption was sent under Section 2.03. ('f) Deposit of Money• On .or prior to any redemption 'date, the City shall deposit with the Trustee an,amountof,"money sufficient -to gay the. Redemption Price of all the Bonds or; portions of Bonds :which are to be redeemed on that date. (g) Conseauences of Notice. Notice of redemption having been given as aforesaid; the Bonds. or' portions of Bonds so °to be redeemed, shall, on the redemption date, become due andpayable at the Redemption Price therein specified, and from and after such date (unless the City shall default in the payment of the Redeinption Price) such Bonds or portions ,of Bonds shall cease to .have interest .accrue thereon. Upon surrender of such, Bonds for .redemption in accordance with said notice, such Bonds Shall be, paid by the `Trustee at the Redemption Price. Installments of interest due on or prior to the. redempfion date shall be: payable as.herein provided for payment:of interest. Upon surrender for any partial redemption of any Bond, there, shall be ,prepared for the • Owner a inew Bond or' Bonds of .the same maturity in 'the amountof the unredeemed -5- A — 12 •P Princi al. All Bonds which have been redeemed shall be cancelled and destroyed by the - Trustee and.shall not be redelivered. (h) Additional Notice. In addition to the, foregoing notice, further notice shall be given by the Trustee as set out below; but no defect in said .further notice nor any failure to give all or any portion of such further notice shall in any manner defeat the effectiveness of a call for redemption if notice thereof is given as above prescribed: (1) Each further notice of redemption given hereunder shall contain the information required above for an official notice of redemption plus (A) the CUSIP' numbers of all Bonds being redeemed'; (B) the stated interest rate with respect to each Bond being redeemed; (C) the maturity date of each Bond being redeemed; and (D) any other descriptive information needed to identify accurately the Bonds being redeemed. (2) Each further notice of redemption shall be sent on the date notice is mailed to Bond Owners by registered or certified mail or overnight delivery service to all registered securities depositories then in the business of holding substantial amounts of instruments of types comprising the Bonds. (3) Upon the payment of the Redemption Price of the Bonds being redeemed, each check or other transfer of funds issued :for, such purpose shall bear the CUSIP number identifying, by issue and maturity, the Bonds being redeemed with the proceeds of such check or other transfer. • (i) Partial Redemption of Bonds. In the event only a portion of any Bond is called for redemption, then upon surrender of such Bond redeemed in part only, the City shall execute and the Trustee shall -authenticate and deliver to. the Owner, at the expense of the City, anew 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. • (j). Manner of Redemption: Whenever any Bonds are to, be selected for redemption, the Trustee shall determine, by lot; the numbers of the Bonds to be redeemed, and shall notify the City thereof. (k) Purchase of Bonds in lieu of Redemption., In lieu of redemption 'of any Bonds pursuant to 2.03(b), amounts on deposit in the Redemption Account may also be used and with by the City at any time for the purchase of`such Bonds, at public or private sale as' and when and at such prices (including brokerage and other charges and including accrued interest) as the City may in its discretion determine. The par amount of any of such Bonds so purchased by the City in any twelve-month period ending on March 1 in any year shall be credited towards and shall reduce the par amount of such Bonds required to be redeemed pursuant to Section 2.03(b) on the next succeeding May 1. All Bond's redeemed pursuant to this Section and all Bonds purchased by the City pursuant to this subsection (k) shall be cancelled and destroyed pursuant to Section 9.07. -6- q- D 0 SECTION 2.04. BookEntry System. (a) Original Deliverv. The Bonds will be initially delivered in the form of a separate single fully registered bond (which may be typewritten) for each maturity of the Bonds. Upon initial delivery, the Trustee shall register the ownership of each Bond onthe Registration Books in the name of the Nominee. Except as provided in subsection (c), the ownership of all of the Outstanding Bonds shall be registered in the name of the Nominee on the Registration Books. With respect to Bonds 'the ownership of which -is registered in the name of the Nominee, the City and the Trustee has no responsibility or obligation to any Depository System Participant or to any person on behalf of which the Nominee holds an interest in the Bonds. Without limiting the generality of the immediately preceding sentence, the City and the Trustee has no responsibility or obligation with respect to (i) the accuracy of the records of the Depository, the Nominee or any Depository System Participant with respect to any ownership, interest in the Bonds, (ii) the delivery to any Depository System Participant or any, other person, other than a Bond Owner as shown in the Registration Books, of any notice with respect to the Bonds, (iii) the selection by the Depository of the beneficial interests in the Bonds to be -redeemed if the City elects to redeem the Bonds in part, (iv) -the payment to any Depository System Participant or any other person, other than 'a Bond Owner as shown in the Registration Books, of any amount with respect to principal, premium, if any, or interest on the Bonds or (v) any consent given or other action taken by the Depository as Owner of the Bonds. The City and the Trustee may treat and consider the person in whose name each Bond is registered as the absolute owner of such Bond for the, purpose of payment of principal of and premium, if any, and interest on such Bond, for the purpose of giving notices of matters with respect to such Bond, for the purpose of registering transfers of ownership of such Bond, and for all other purposes whatsoever. The Trustee shall pay the principal of and the interest, and premium, if any, on the Bonds only to the respective Owners or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective'to fully satisfy and discharge all obligations with respect to payment of principal of and interest and premium, if any, on the Bonds to the extent of the sum or sums so paid. No person other than a Bond Owner shall receive a Bond evidencing the obligation of the City 'to make payments of principal, interest and premium, if any, under this Indenture. Upon delivery by the Depository to the City of written notice to the effect that the Depository has determined to substitute a new Nominee in its place, and subject to the provisions herein with respect to Record Dates, such new nominee shall be.come, the Nominee hereunder for all purposes; and upon receipt of such a notice the City shall promptly deliver a copy of the same to the Trustee. (b): Revreseritation Letter. In order to qualify the Bonds for the Depository's book -entry system, the City shall execute and deliver to such Depository a letter representing such matters as shall be necessary to so qualify theBonds. The execution and delivery of such letter shall not in any way limit the provisions of subsection (a) above or in any other way impose upon the City or the Trustee any obligation whatsoever with respect to persons having interests in the Bonds other than the Bond Owners. Upon the, written acceptance by the Trustee, the Trustee shall agree to take all action reasonably- necessary for all representations of the Trustee in such letter with respect to the Trustee to at all times be complied with. In addition to the execution and delivery of such letter, the City may take any other actions, not inconsistent with this Indenture, to qualify the Bonds for the Depository's book -entry program. -7- A- 14 (c) Transfers- Outside Book -Entry System. If either (i) the Depository determines not to continue to Act as Depository for the Bonds, or (ii) the City determines to terminate the Depository as such, then the City shall thereupon discontinue the book - entry system with such Depository. In such event, the Depository shall cooperate with the City and the Trustee in,the issuance of replacement Bonds by providing the Trustee with a list showing the interests of the Depository System Participants in the Bonds, and by surrendering the Bonds, registered in the name of the Nominee, to the Trustee on or before the date such replacement Bonds are to be issued. ssued. The Depository, by accepting delivery of the Bonds, agrees to be bound by the provisions of this subsection (c). If, prior to the termination of the Depository acting, as such, the City fails to . identify another Securities Depository to replace the Depository, then the Bonds shall no longer be required to be registered in the Registration Books in the name of the Nominee, but shall be registered in whatever name or names. the Owners transferring or exchanging Bonds shall designate, in accordance with the provisions hereof. If the City determines that it is in the best interests of the beneficial owners of the Bonds that they be able' to obtain certificated Bonds, the City may notify the Depository System Participants of the availability of such -certificated Bonds through the Depository. In such event, the Trustee will issue, transfer and exchange Bonds as required by the Depository and others in appropriate amounts; and whenever the Depository requests, the Trustee and. the City shall cooperate with the Depository in taking appropriate action (i) to make available one or more separate certificates evidencing the Bonds to any Depository System Participant having Bonds credited to its account with the Depository, or (ii) to arrange for another Securities Depository to maintain custody of a single certificate evidencing such Bonds, all at the City's expense. (d) Pavmentsto the Nominee. Notwithstanding any other provision of this Indenture to the contrary, so long as any Bond is registered in the name of the Nominee, all payments with respect to principal of and interest and premium, if any, on such Bond and all notices with respect to such Bond shall be made and given, respectively, as provided in the letter described in subsection (b) of this Section or as otherwise instructed by the Depository. SECTION 2.05. Form and Execution of Bonds. The Bonds, the form of Trustee's certificate of authentication, and the form of assignment to, appear thereon, are set forth in Appendix B attached hereto and by this reference= incorporated herein, with necessary or appropriate variations, omissions and insertions, as permitted or required by this Indenture. The City Manager of the City shall execute, and the Clerk of the, City Council shall at -test each Bond. Either or both of such signatures may be made manually or may be affixed by facsimile thereof. If any officer whose signature appears on any Bond ceases to be such officer before the Closing Date, such signature will nevertheless be as effective as if the officer had remained in office until the Closing Date. Any Bond may be signed and attested on behalf of 'the City by such persons as at the actual date of the execution of such Bond are the proper officers of the City, duly authorized to execute debt instruments on behalf of the City, although on the date of such Bond any such person was not an officer of the City. Only those Bonds bearing a certificate of authentication in the form set forth in Appendix B, manually executed and dated by the Trustee, are valid or obligatory for any purpose or entitled to the benefits of this Indenture, and such certificate of the -8- 15 • Trustee is conclusive evidence that such Bonds have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture. SECTION 2.06. Transfer and Exchange of Bonds. (a) Transfer. Any Bond may, in accordance with its terms, be transferred, upon the Registration Books, by the person in whose name it is registered, in person or by a duly authorized attorney of such person, upon surrender of such Bond to the Trustee at its Office for cancellation, accompanied by delivery of a written instrument of transfer in a form acceptable to the Trustee, duly executed. The Trustee shall collect any tax or other governmental charge on the transfer of any Bonds under this Section 2.06. Whenever any Bond or Bonds shall be surrendered for transfer, the City shall execute and the Trustee shall authenticate and deliver to the transferee a new Bond or Bonds of like series, interest rate, maturity and aggregate principal amount. The City shall pay the cost of printing Bonds and any services rendered or expenses incurred by the Trustee in connection with any transfer of Bonds. . (b) Exchange. The Bonds may be exchanged at the Office of the Trustee for a like aggregate principal amount of Bonds of other authorized denominations and of the same series, interest rate and maturity. The Trustee shall collect any -tax or other governmental charge on the exchange of any Bonds under this subsection (b). The City shall pay the cost of printing Bonds and any services rendered or expenses incurred by the Trustee in connection with any exchange of Bonds. • SECTION 2.07. Registration Books. The Trustee will keep or cause to be kept, at its Office, sufficient records for the registration and registration of transfer of the Bonds, which must at all times during normal business hours, and upon reasonable notice, be open to inspection by the City; and, upon presentation for such purpose, the Trustee shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on the Registration Books, Bonds as hereinbefore provided: SECTION 2.08. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond is mutilated, the City, at the expense of the Owner of such Bond, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like tenor in exchange and substitution for the Bond so mutilated, but only upon surrender to the Trustee of the Bond so mutilated. The Trustee shall cancel every mutilated Bond surrendered to it and deliver such mutilated Bond to, or upon the order of, the City. If any Bond is lost; destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Trustee and, if_ such evidence is satisfactory and,if indemnity satisfactory to the Trustee is given, the City, at the expense of the Owner, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like tenor in lieu of and in substitution for the Bond so lost, destroyed or stolen. The Trustee may require payment of a sum not exceeding the actual cost of preparing each new Bond issued under this Section and of the expenses which may be incurred by the Trustee in connection therewith. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen will constitute an original additional contractual obligation on the part of the City whether or not the Bond so 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 Indenture with all other Bonds issued • under this Indenture. -9- A- 16 • Notwithstanding any other provision of this Section 2.08, in lieu of delivering a new Bond for which principal has become due for a Bond which has been mutilated, lost, destroyed or stolen, the Trustee may make payment of such Bond in accordance with its terms upon receipt of indemnity satisfactory to the Trustee. ARTICLE III ISSUE OF BONDS; PARITY DEBT SECTION 3.01. Issuance of Bonds. Upon the execution and delivery of this Indenture, the City shall execute and deliver Bonds in the aggregate principal amount of $[Principal Amount] to the Trustee and the Trustee shall authenticate and deliver the Bonds to the Original Purchaser upon receipt of a Request of the City therefor. SECTION 3.02. Deposit and Application of Proceeds; Transfer of Funds. On the Closing Date, the Trustee shall,apply the proceeds of the Bonds as follows: (i) Bond Proceeds. (a) The Trustee shall deposit the amount of $ to the Costs of Issuance Fund. (b) The Trustee shall deposit the amount of $ to the • Reserve Fund, constituting the full amount of the Reserve Requirement. (c) The Trustee shall deposit the amount of $ constituting the remainder of the Bond proceeds, to the Escrow Fund. (ii) Transfer of Funds. (a) The City shall transfer to the Trustee the amount of $ for deposit to the Escrow Fund, representing $ of accrued interest on the BNP Line of Credit, and $ of accrued interest on the Zions Line of Credit. (b) In addition, the Trustee shall deposit into the Escrow Fund the amount of $ received from the 2000. Bonds Trustee, representing amounts held in the Reserve Fund under the 2000 Bonds Indenture. SECTION 3.03. Costs of Issuance Fund. There is hereby established a separate fund to be known as the "Costs of Issuance Fund", to be held by the Trustee in trust. The Trustee shall disburse moneys in the Costs of Issuance Fund from time to time to pay Costs of Issuance upon submission of a Request of the City stating (a) the person to whom payment is to be made, (b) the amounts to be paid, (c) the purpose for which the obligation was incurred, (d) that such payment is a proper charge against the Costs of Issuance Fund, and (e) that such amounts have not been the subject of a prior Request of the City; in each case together with a statement or invoice for each amount requested thereunder. On June 1, 2011, the Trustee shall transfer any amounts remaining in the Costs of Issuance Fund to the Debt Service Fund to be applied to pay a portion of the interest next coming due and payable on the Bonds. • -10- A-17 • SECTION ,3.04. Reserve Fund. There is hereby created a separate fund to be known as the "Reserve Fund", to be held in trust by the Trustee. An amount equal to the Reserve Requirement shall be maintained in the Reserve Fund at all times, subject to the, provisions of Section 4.02(b)(iii), and any deficiency therein shall be replenished from the first available Net Revenues under Section 4.02(b)(iii). The Trustee shall apply amounts in the Reserve Fund for the purposes set forth in Section 4.02(b)(iii). In connection with the issuance of any Parity Debt, the City may (but is not required to) deposit .into the Reserve Fund an amount of funds required to increase the balance in the Reserve Fund and all accounts therein to an amount equal to the Reserve Requirement on the Bonds and all outstanding issues of Parity Debt which are secured by the Reserve Fund. In that event, amounts in the Reserve Fund shall constitute a common reserve for the equal and proportionate security of the Bonds and all such issues of Parity Debt. Any deposit made under this paragraph may be made into one or more separate accounts within the Reserve Fund, all of which shall be accounted for as part of a common reserve. SECTION 3.05. Escrow Fund. There is hereby established with the Trustee as a separate fund, to be maintained distinct from all other funds of the Trustee, the Escrow Fund, to the credit of which a deposit shall be made as required by clause (c) of Section 3.02. Money in the Escrow Fund shall be held by the Trustee and disbursed for the payment of the redemption price of the Prior Obligations, which shall be paid on the dates, and in the amounts specified in Appendix C hereto. Pending disbursement to _pay the redemption price of the Prior Obligations, the • Trustee shall, at the direction of the City, invest the Escrow Fund in Federal Securities [(017o SLGS)] which mature not later than the redemption and prepayment dates set forth in Appendix C. Any funds remaining in the Escrow Fund after the payment in full of the Prior Obligations shall be transferred to the Debt Service Fund, and in any event not later than March 1, 2011. SECTION 3.06. Issuance of Parity Debt. The City may issue Parity Debt in such principal amount as it determines, subject to the following conditions precedent: (a) No Event of Default (or no event with respect to which notice has been given and which, once all notice of grace periods have passed, would constitute an Event of Default) has occurred and is continuing. (b) The amount of Net Revenues, as shown by the books of the City for the most recent completed Fiscal Year for which audited financial statements of the City are available, or for any more recent consecutive 12 -month period selected by the City, in either case verified by an Accountant or a Financial Consultant or shown in the audited financial statements of the City, plus, at the option of the City any Additional Revenues, are at least equal to 1257o of the amount of Maximum Annual Debt Service coming due and payable in the current or any future Fiscal Year with respect to the Bonds and all Parity Debt then outstanding (including the Parity Debt then proposed to be issued); and 0(c) The City shall deliver to the Trustee a Certificate of the City certifying, that the conditions precedent to the issuance of such -11- �{ — 18 • Parity Debt set forth in the foregoing subsections of this Section 3.06 have been satisfied. For purposes of calculating Net Revenues to demonstrate compliance with paragraph (b) above, Gross Revenues shall not include connection fees, transfers from the Rate Stabilization Fund, or interest income on the Wastewater Fund received during the period for which calculations of Net Revenues is being made. SECTION 3.07. State Loans. The City may borrow money from the State and incur State Loans, in addition to the SRF Loan, to finance improvements to the Wastewater System. A State Loan may be treated as a Parity Debt for purposes of this Indenture, so long as the City complies with Section 3.06 of this Indenture before incurring said State Loan. SECTION 3.08. Validity of Bonds. The recital contained in the Bonds that they are issued under the Laws of the State of California is conclusive evidence of their validity and of the regularity of their issuance. ARTICLE IV REVENUES; FLOW OF FUNDS • SECTION 4.01. Pledge of Net Revenues. The Bonds and all Parity Debt are secured by a first pledge of and lien on all of the Net Revenues. In addition, the Bonds are secured by a pledge of all of the moneys in the Debt Service Fund and the Reserve Fund, including all amounts derived from the investment of such moneys. The Bonds and any Parity Debt are equally secured by a pledge, charge and lien upon the Net Revenues, without priority for series, issue, number or date, and the payment of the interest on and principal of the Bonds and Parity Debt shall be and are secured by an exclusive pledge, charge and lien upon the Net Revenues. So long as any of the Bonds and Parity Debt are Outstanding, the Net Revenues and such moneys may 'not be used for any other purpose; except that out of the Net Revenues there may be apportioned such sums, for such purposes, as are expressly permitted by Section 4.02. • SECTION 4.02. Receipt, Deposit and Application of Net Revenues. (a) Establishment and Maintenance of Wastewater Fund. The City has previously established. the Wastewater Fund, which it will continue to hold and maintain for the purposes and uses set forth herein. The City shall deposit all Gross Revenues in the Wastewater Fund promptly upon the receipt thereof, and shall apply amounts in the Wastewater Fund solely for the uses and purposes set forth herein and for the uses and purposes set forth in any Parity Debt Documents. (b) Avvlication of Amounts in Wastewater Fund. In addition to transfers which are required to be made for repayment of any Parity Debt, the City shall withdraw amounts on deposit in the Wastewater Fund and apply such amounts at the times and for the purposes, and in the priority, as follows: -12- A— 19 (i) Operation and Maintenance Costs. The City shall apply amounts on deposit in the Wastewater Fund to pay all Operation and Maintenance Costs when due. (ii) Debt Service Fund. On or before the 3`d Business Day preceding each Interest Payment Date, so long as any Bonds remain Outstanding hereunder, the City shall withdraw from the Wastewater Fund and pay to the Trustee for deposit into the Debt Service Fund (which the Trustee shall establish and hold in trust hereunder) an amount which, together with other available amounts then on deposit in the Debt Service Fund, is at least equal to the aggregate amount of principal of and interest coming due and payable on the Bonds on such Interest Payment Date. The Trustee shall apply amounts in the Debt Service Fund solely for the purpose of (A) paying the interest on the Outstanding Bonds when due and payable (including accrued interest on any Bonds purchased, or redeemed hereunder), and (B) paying the principal of the Bonds at the maturity thereof. Upon the payment of all Outstanding Bonds, the Trustee shall transfer any moneys remaining in the Debt Service Fund to the City for deposit into the Wastewater Fund. (iii) Reserve Fund. If the amount on deposit, in the Reserve Fund at any • time falls below the Reserve Requirement due to a withdrawal of funds therefrom, or if the amount on deposit in the Reserve Fund falls below the Reserve Requirement on any annual valuation date (as specified in Section 4.05(c)) due to a decline in the market value of Permitted Investments credited thereto as provided in Section 4.05, the Trustee shall promptly notify the City of such fact and the City shall promptly (i) withdraw the amount of such insufficiency from available Net Revenues on deposit in the Wastewater Fund, and (ii) transfer such amount to the Trustee for deposit in the Reserve Fund. No deposit need be made in the Reserve Fund so long as the balance therein at least equals the Reserve Requirement. If the amount on deposit in the Reserve Fund exceeds the Reserve Requirement, the Trustee shall transfer such excess amount to the Debt Service Fund. If the amounts on deposit in the Debt Service Fund on any Interest Payment Date are insufficient to pay the principal of and interest on the. Bonds then coming due, the Trustee shall withdraw the amount of such insufficiency from the Reserve .Fund and transfer it to the Debt. Service Fund. On the date on which all Bonds are retired, any moneys then on deposit in the Reserve Fund will be withdrawn by the Trustee and paid to the City. (c) Other Uses of Wastewater Fund. The City shall manage, conserve and apply moneys in the Wastewater Fund in such a manner that all deposits required to be made under this Section and under any Parity Debt Documents will be made at the times and in the amounts so required. • -13- -20 So long as no Event of Default has occurred and is continuing, the City may at any time use and apply moneys in the Wastewater Fund for any one or more of the following purposes: (i) the payment of any subordinate obligations or any unsecured obligations; (ii) the acquisition and construction of extensions and improvements to the Wastewater System; (iii) the payment or retirement of any of the Bonds or any other obligations of the City relating to the Wastewater System; or (iv) any other lawful purpose of the City relating to the Wastewater ,System. SECTION 4.03. Establishment of Rate Stabilization Fund. The City has established a fund to be held by it and administered in accordance with this Section 4.03, for the purpose of stabilizing the rates and charges imposed by the City with respect to the Wastewater System. From time to time the City may deposit amounts in the Rate Stabilization Fund, from any source of legally available funds, including but not limited to Net Revenues which are released from the pledge and lien which secures the Bonds and any Parity Debt, as the City may determine. The City may, but is not required to, withdraw from any amounts on deposit in the Rate Stabilization Fund and deposit such amounts in the Wastewater Fund in any Fiscal Year for the purpose of paying Debt 'Service coming due and payable in such Fiscal Year. Amounts so transferred from the Rate Stabilization Fund to the Wastewater Fund shall constitute Gross Revenues for such Fiscal Year (except as otherwise provided herein), and shall be -applied for the purposes of the Wastewater Fund. Amounts on deposit in the Rate Stabilization Fund shall notbe pledged to or otherwise secure the Bonds or any Parity Debt.. The City has the right at any time to withdraw any or all amounts on deposit in the Rate Stabilization Fund and apply such amounts for any lawful purposes of the City relatin&to the Wastewater System, SECTION 4.04. Investments (a) Investment of Funds Held by City.. All moneys in the Wastewater Fund and the Rate Stabilization Fund shall be invested by the City from time to time in any securities in which the City may legally invest funds subject to its control. (b) Investment of Funds Held by Trustee. The Trustee shall invest moneys in the funds and accounts held by it hereunder in Permitted Investments specified in the Request of the City delivered to the Trustee at least two Business Days in advance of the making of such investments. In the absence of any such direction from the City, the Trustee shall invest any such moneys solely in Permitted Investments described in clause (e) of the definition thereof; provided, however, that any such investment shall be made by the Trustee only if, prior to the date on which such investment is to be made, the Trustee shall have received a Request of the City specifyiiig a specific money market fund that satisfies the requirements of said paragraph in which such investment is to be made and, if no such Request of the City is so- received, the Trustee shall hold such moneys uninvested. -14- A— 21 (c) General Investment Provisions. Obligations purchased as an investment of moneys in any fund or account shall be deemed to be part of such fund or account. Whenever in this Indenture the City is required to transfer any moneys to the Trustee, such transfer may be accomplished by transferring a like amount of Permitted Investments. All interest or gain derived from the investment of amounts in any of the funds or accounts held by the Trustee hereunder shall be retained in the respective fund or account from which such investment was made; except that the Trustee shall deposit all interest or gain from the investment of amounts in the Reserve Fund in the Debt Service Fund to the extent not required to cause the balance in the Reserve Fund to equal the Reserve Requirement. For purposes of acquiring any investments hereunder, the Trustee may commingle funds held by it hereunder upon receipt by the Trustee of the Request of the City. The Trustee or an affiliate may act as principal or agent in the acquisition or disposition of any investment and may imposeits customary charges therefor. The Trustee has no liability for losses arising from any investments made under this Section. The City acknowledges that to the extent regulations of the Comptroller of the Currency or other applicable regulatory entity grant the City the right to receive brokerage confirmations of security transactions as they occur, --the City specifically waives receipt of such confirmations to the extent permitted by law. The Trustee will furnish the City periodic transaction statements which include, detail for all investment transactions made by the Trustee hereunder. The Trustee or any of its affiliates may act as sponsor, advisor or manager in connection with any investments made by the Trustee hereunder. SECTION 4.05. Valuation and Disposition 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 created by or under this Indenture, or otherwise containing gross proceeds of the Bonds (within the meaning of Section 148 of the Tax Code) shall be acquired, disposed of and valued (as of the date that valuation is required by this Indenture or the Tax Code) at Fair Market Value as such term is defined in subsection (d) below. The Trustee has no duty in connection with the determination of Fair Market Value other than to follow the investment directions of the City in any Certificate or Request of the City. M Investments in funds or accounts (or portions thereof) that are subject to a yield-, restriction under applicable provisions of the Tax Code and investments in the Reserve Fund shall be valued at cost thereof (consisting of present value thereof within the meaning' of Section 148 of the Tax Code); provided that theCity must inform the Trustee which funds are subject to yield restriction, and must provide the Trustee with any necessary valuation criteria or formulae. (c) Except as provided in the proceeding subsection (b), for the purpose of determining the amount in any fund, the Trustee shall value Permitted Investments credited to such fund at least annually at the Fair Market Value thereof, on May I of each year. The Trustee may utilize and rely on computerized securities urities pricing services that may be available to it, including those available through its regular accounting system. If and as directed by the City in writing, the Trustee shall sell or present for redemption any Permitted Investment so purchased by the Trustee whenever it is necessary to provide moneys to meet any required payment, transfer, withdrawal or -15- 22 disbursement from the fund to which such Permitted Investment is credited, and the Trustee has no liability or responsibility for any loss resulting therefrom. (d) For purposes of this Section 4.05, the term "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 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, or (iii) the investment is a United States Treasury Security -- State and Local Government Series which is acquired in accordance with applicable regulations of the United States Bureau of Public Debt. ARTICLE V FINANCIAL COVENANTS • SECTION 5.01. 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 Indenture, and will faithfully observe and perform all of the conditions, covenants and requirements of this Indenture and all Supplemental Indentures. SECTION 5.02. Discharge of Claims. The City covenants that in order to fully preserve and protect the priority and security of the Bonds the City shall pay from the Net Revenues and discharge all lawful claims for labor, materials and supplies furnished for or in connection with the Wastewater System which, if unpaid,, may become a lien or charge upon the Net Revenues prior or superior to, the lien of the Bonds and impair the security of the Bonds. The City shall also pay, from the Net Revenues, all taxes and assessments or other governmental charges lawfully levied or assessed upon or in respect of the Wastewater System or upon any part thereof or upon any of the Net Revenues therefrom. SECTION 5.03. Operation of Wastewater System in Efficient and Economical Manner. The City covenants. and agrees to operate the Wastewater System in an efficient and economical manner and to operate, maintain and preserve the Wastewater System in good repair and working order. SECTION 5.04. Sale or Eminent Domain of Wastewater System. Except as provided herein, the City covenants that the Wastewater System will not be encumbered, sold, leased, pledged, any charge placed thereon, or otherwise disposed of, as a whole or substantially as a whole, if such encumbrance, sale, lease, pledge, charge or other disposition would materially impair the ability of the City to pay the principal of or • interest on the Bonds or any Parity Debt, or would materially adversely affect its ability to comply with the terms of this Indenture or any Parity Debt Documents. The City may not enter into. any agreement which impairs the operation of the Wastewater System or -16- fl " 23 any part of it necessary to secure adequate Net Revenues to pay the Bonds and any Parity Debt, or which otherwise would impair the rights of the Bond Owners with respect to the Net Revenues. If any substantial part of the Wastewater System is sold, the payment therefor must either (a) be used for the acquisition or construction of improvements and extensions or replacement facilities or (b) be applied on a pro rata basis to redeem the Bonds and any Parity Debt in accordance with this Indenture and the related Parity Debt Documents. Any amounts received as awards as a result of the taking of all or any part of the Wastewater System by the lawful exercise of eminent domain, if and to the extent that such right can be exercised against such property of the City, shall either (a) be used for the acquisition or construction of improvements and extension of the Wastewater System, or (b) be applied on a pro rata basis to redeem the Bonds and any Parity Debt in accordance with this Indenture and the related Parity Debt Documents. SECTION 5.05. Insurance. The City will at all times maintain with responsible insurers all such insurance on the Wastewater System as is customarily maintained with respect to works and properties of like character against accident to, loss of or damage to the Wastewater System. If any useful part of the Wastewater System is damaged or destroyed, such part must be restored to usable condition. All amounts collected from insurance against accident to or destruction of any portion of the Wastewater System shall be used to repair or rebuild such damaged or destroyed portion of the Wastewater System, and. to the extent not so .applied, shall be applied on a pro rata basis to redeem the Bonds and any Parity Debt in accordance with this Indenture and the related Parity Debt Documents. The City shall also maintain, with responsible insurers, worker's compensation insurance and insurance against public liability and property damage to the extent reasonably necessary to protect the City, the Trustee and the Owners of the Bonds. The Trustee has no liability to determine whether the City is in compliance with the provisions of this Section 5.05. SECTION 5.06. Records and Accounts. The City will keep proper books of record and accounts of the Wastewater System, separate from all other records and accounts, in which complete and correct entries shall be made of all transactions relating to the Wastewater System. Said books shall, upon reasonable request, be subject to the inspection of the Trustee and the Owners of not less than 107o of the Outstanding Bonds or their -representatives authorized in writing. The City shall cause the books and accounts of the Wastewater System to be audited annually ally by an.Independent Accountant and will make available for inspection by the Bond Owners, at the Office of the Trustee, upon reasonable request, a copy of the report of such Independent Accountant. SECTION 5.07. Rates and Charges. The City shall fix, prescribe, revise and collect rates, fees and charges for the services and facilities furnished by the Wastewater System during each Fiscal Year, which are at least sufficient, after making allowances for contingencies and error in the estimates, to yield Gross Revenues sufficient to pay the following amounts in the following order of priority: (a) All Operation and Maintenance Costs estimated by the City to become due and payable in such Fiscal Year; -17- 24 •(b) The principal of and interest on the Bonds and any Parity Debt as they become due and payable during such Fiscal Year, without preference or priority, except to the extent such interest is payable from proceeds of Parity Debt deposited for such purpose; (c) All amounts, if any, required to restore the balance in the Reserve Fund to the full amount of the Reserve Requirement; and (d) All payments required to meet any other obligations of the City which are charges, liens, encumbrances upon, or which are otherwise payable from, the Gross Revenues or the Net Revenues during such Fiscal Year. In addition, the City shall fix, prescribe, revise and collect rates, fees and charges for the services and facilities furnished by the Wastewater System during each Fiscal Year which are sufficient to yield Net Revenues which are at least equal to [1207o] of the amount described in the preceding clause (b) for such Fiscal Year. For purposes of this paragraph, the amount of Net Revenues for a Fiscal Year will be computed on the basis that (a) any transfers into the Wastewater Fund in such Fiscal Year from the Rate Stabilization Fund are included in the calculation of Net Revenues, as provided in Section 4.03; (b) any deposits into the Rate Stabilization Fund in such Fiscal Year are deducted from the amount of Net Revenues to the extent such deposits are made from Gross Revenues received by the City during that Fiscal Year, and (c) Gross Revenues shall not include connection fees or interest income expected to be received in such • Fiscal Year. SECTION 5.08. Superior and Subordinate Obligations. The City may not issue or incur any additional bonds or other obligations having any priority in payment of principal or interest out of the Net Revenues over the Bonds. Nothing herein limits or affects the ability of the City to issue or incur (a) Parity Debt, or (b) obligations which are either unsecured or which are secured by an interest in the Net Revenues which is junior and subordinate to the pledge of and lien upon the Net Revenues established hereunder. SECTION 5.09. Tax Covenants Relating to Bonds. (a) Generallv. The City shall not take any action or permit to be taken any action within its control which would cause or which, with the passage of time if not cured would cause, interest on the Bonds to become includable in gross income for federal income tax purposes. (b) Private Activitv Bond Limitation,. The City shall assure that the proceeds of the Bonds are not used in a manner which would cause the Bonds to become "private activity bonds" within the meaning of section 141(a) of the Tax Code or to meet the private loan financing test of Section 141(c) of the Tax Code. (c) 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 the Bonds to be "federally guaranteed" within the meaning of Section 149(b) of the Tax Code. (d) No Arbitrage. The City shall not take, or permit or suffer to be taken by the Trustee or otherwise, any action with respect to the Bond proceeds which, if such action • had been reasonably expected to have been taken, or had been deliberately and -18- ,4-25 18- ,4-25 intentionally taken, on the Closing Date, would have caused the Bonds to be "arbitrage bonds" within.the meaning of Section 148 of the Tax Code. (e) Rebate of Excess Investment Earnings. The City shall calculate or cause to be calculated all amounts of excess investment earnings with respect to the Bonds which are required to be rebated to the United States of America under Section 148(f) of the Tax Code, at the times and in the mariner required under the Tax Code. The City shall pay when due an amount equal to excess investment earnings to the United States of America in such amounts, at such times and in such manner as may be required under the Tax Code, such payments to be made from any source of legally available funds of the City. The City shall keep or cause to be kept, and retain or cause to be retained for a period of six years following the retirement of the Bonds, records of the determinations made under this subsection (e). The Trustee has no duty to monitor the compliance by the City with any of the covenants contained in this Section 5.09. SECTION 5.10. Refunding of Prior Obligations. The City shall cause the proceeds of the Bonds to be applied to the payment and discharge of the Prior Obligations in accordance with the provisions of the Credit Agreements and the 2000 Indenture. From and after the Closing Date, the City's obligations' under the Prior Obligations, the Credit Agreements and the 2000 Indenture shall be fully discharged, and the Prior Obligations shall no longer be secured by a pledge of or lien on the Net Revenues. SECTION 5.11. Continuing Disclosure. The City will comply with and carry out all • of the provisions of the Continuing Disclosure Certificate which has been executed and delivered by the City on the Closing Date. Notwithstanding any other provision hereof,_ failure of the City to comply with the Continuing Disclosure Certificate does not constitute an Event of Default hereunder; provided, however, that any Participating Underwriter (as such term is defined in the Continuing Disclosure Certificate) or any Owner or beneficial owner of the Bonds may take such actions as• may be necessary and appropriate, including seeking specific performance by court order, to cause the City to comply with its obligations under this Section 5.11. SECTION 5.12. 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 Indenture, and for the better assuring and confirming unto the Owners of the Bonds. and the Trustee the rights and benefits provided in this Indenture. -19- -26 E ARTICLE VI THE TRUSTEE SECTION 6.01. Duties, l7n7nunities and Liabilities of Trustee. (a) Performance of Duties. The Trustee shall, prior to the occurrence of an Event of Default, and after the curing or waiving of all Events of Default which may have occurred, perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or duties will be read into this Indenture against the Trustee. Th ' e Trustee shall, during the existence of any Event of Default (which has not been cured or waived), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a reasonable corporate trustee would exercise or use. M Removal, of Trustee. The City may remove the Trustee at any time, and shall remove the Trustee (i) if at any time requested to do so by an instrument or concurrent instruments in writing signed by the Owners of not less than a majority in aggregate principal amount of the Bonds then Outstanding (or their attorneys duly authorized in writing) -or (ii) if at any time the Trustee ceases to be eligible in accordance with subsection (e) of this Section 6.01, or becomes incapable of acting, or is adjudged a bankrupt or insolvent, or a receiver of the Trustee or its property is appointed, or any public officer takes control or charge of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation. The City may accomplish such removal by giving 30 days written notice to the Trustee, whereupon the City will appoint a successor Trustee by an instrument in writing. W Resiznation by Trustee. The Trustee may at any time resign by giving written notice of such resignation to the City, and by giving notice of such resignation by first class mail, postage prepaid, to the Bond Owners at their respective addresses shown on the Registration Books. Upon receiving such notice of resignation, the City will promptly appoint a successor Trustee by an instrument in writing. M Appointment of Successor Trustee. Any removal or resignation of the Trustee and appointment of a successor Trustee becomes effective upon acceptance of appointment by the successor Trustee. If no successor Trustee has been appointed and accepted appointment within 45 days following giving notice of removal or notice of resignation as aforesaid, the resigning Trustee, any Owner (on behalf of such Owner and all other Owners) may petition any federal or state court for the appointment of a successor. Trustee, and such court may thereupon, after such notice (if any) as it may deem proper, appoint such successor Trustee. Any successor Trustee appointed under this Indenture 'Shall signify its acceptance of such appointment by executing and delivering to the City and to its predecessor Trustee a written acceptance thereof, and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the moneys, estates, properties, rights, powers, trusts, duties and obligations of such predecessor Trustee, with like effect as if originally named Trustee herein; but, nevertheless, upon the receipt by the predecessor Trustee of the Request of the City or the request of the successor Trustee, such predecessor Trustee shall execute and deliver any and all instruments of conveyance or further assurance and do such other things as may reasonably be required for more fully and certainly vesting in and confirming to such successor Trustee all the right, title and interest of such predecessor Trustee in and to any property held by it under this Indenture and shall pay over, transfer, assign and deliver to the successor Trustee any money or other property subject -20- 27 • to the trusts and conditions herein set forth. Upon request of the successor Trustee, the City will execute and deliver any and all instruments as may be reasonably required for more fully arid certainly vesting in and confirming to such successor Trustee all such moneys, estates, properties, rights, powers, trusts, duties and obligations. Upon acceptance of appointment by a successor Trustee as provided in this subsection, the City shall mail or cause the successor Trustee to mail, by first class mail postage prepaid, a notice of the succession of such Trustee to the trusts hereunder to each rating agency which then maintains a rating on the Bonds, and to the Owners at the addresses shown on the Registration Books. If the City fails to mail such notice within 15 days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be mailed at the expense of the City. (e) Qualifications of Trustee. Any Trustee appointed under the provisions of this Section in succession to the Trustee must: (i) be a company, national banking association or bank having trust powers, (ii) have a corporate trust office in the State of California, (iii) have (or be part of a bank holding company system whose bank holding company has) a combined capital and surplus of at least $75,000,000, and • (iv) be subject to supervision or examination by federal or state authority. If such bank, national banking association or company publishes a report of condition at least annually, under law or to the requirements of any supervising or examining authority above referred to, then for the purpose of this subsection the combined capital and surplus of such bank, national banking association or company shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this subsection (e), the Trustee shall resign immediately in the manner and with the effect specified in subsection (c) of this Section. The City will maintain a Trustee which is qualified under the provisions of the foregoing provisions of this subsection (e), so long as any Bonds are Outstanding. SECTION 6.02. Merger or Consolidation. Any bank, national banking association or company into which the Trustee may be merged or converted or with which either of them may be consolidated or any bank, national banking association or company resulting from any merger, conversion or consolidation to which it shall be a party or any bank, national banking association or company to which the Trustee may sell or transfer all or substantially all of its corporate trust business, provided such bank, national banking association or company shall be eligible under subsection (e) of Section 6.01, shall be the successor to such Trustee without the execution or filing of any paper or any further act, anything herein to the contrary notwithstanding. SECTION 6.03. Riglits and Liabilities of Trustee. 40(a) The recitals of facts herein and in the Bonds contained are taken as statements of the City, and the Trustee has no responsibility for the correctness of the -21- 28 • same, nor does it have any liability whatsoever therefor, nor make any representations as to the validity or sufficiency of this Indenture or of the Bonds nor shall it incur any responsibility in respect thereof, other than as expressly stated herein. The Trustee is, however, responsible for its representations contained in its certificate of authentication on the Bonds. The Trustee is not liable in connection with the performance of its duties hereunder, except for its own negligence or willful misconduct. The Trustee is not liable for the acts of any agents of the Trustee selected by it with due care. The Trustee may become the Owner of any Bonds with the same rights it would have if it were not Trustee and, to the extent permitted by law, may act as depository for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee: formed to protect the rights of the Owners, whether or not such committee shall represent the Owners of a majority in principal amount of the Bonds then Outstanding: The Trustee, either as principal or agent, may engage in or be entrusted in any financial or other transaction with the City. (b) The Trustee has no liability with respect to any action taken or omitted to be taken by it in accordance with the direction of the Owners of a majority in aggregate principal amount of the Bonds at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture. (c) The Trustee has no liability for any action taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture, except for actions arising from the negligence or willful misconduct of the Trustee. The permissive.right of the Trustee to do things enumerated • hereunder is not construed as a mandatory duty. 0 (d) The Trustee will not be deemed to have knowledge of any Event of Default hereunder unless and until a responsible officer of the Trustee has actual knowledge thereof, or unless and until a responsible officer of the Trustee has received written notice thereof at its Office. Except as otherwise expressly provided herein, the Trustee is not bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements herein or of any of the documents executed in connection with the Bonds, or as to the existence of an Event of Default hereunder or thereunder. The Trustee is not responsible for the City's payment of principal and interest on the Bonds, the City's observance or performance of any other covenants, conditions or terms contained herein, or the validity or effectiveness of any collateral given to or held by it. Without limiting the generality of the foregoing, and notwithstanding anything herein to the contrary, the Trustee is not responsible for .reviewing the contents of any financial statements furnished to the Trustee under Section 5.06 and may rely conclusively on a Certificate of the City (if any) to establish the City's compliance with its financial covenants hereunder, including, without limitation, its covenants regarding the deposit of Gross Revenues into the Wastewater Fund and the investment and application of moneys on deposit in the Wastewater Fund (other than its covenants to transfer such moneys to the Trustee when due hereunder). (e) No provision in this Indenture requires the Trustee to risk or expend its own funds or otherwise incur any financial liability hereunder. The Trustee is entitled to receive interest on any moneys advanced by it hereunder, at the maximum rate permitted by law. -22- A - 29 . (f) The Trustee may establish additional accounts or subaccounts of the funds established hereunder as the Trustee deems necessary or prudent in furtherance of its duties under this Indenture. (g) The Trustee has no responsibility, or liability whatsoever with respect to any information, statement, or recital in any official statement, offering memorandum or any other disclosure material prepared or distributed with respect to the Bonds, nor shall the Trustee have any obligation to review any such material, and any such review by the Trustee will not be deemed to create any obligation, duty or liability on the part of the Trustee. . (h) At any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, have the right (but not the duty) fully to inspect the Wastewater System, including all books, papers and records of the City pertaining to the Wastewater System and the Bonds, and to take such memoranda from and with regard thereto as may be desired but which is not privileged by statute or by law. (i) Before taking any action under Article VIII the Trustee may require indemnity satisfactory to the Trustee be furnished to it to hold the Trustee harmless from any expenses whatsoever and to protect it against any liability it may incur hereunder. (j) The immunities extended to the Trustee also extend to its directors, officers, employees and agents. (k) The permissive right of the Trustee to do things enumerated in this Indenture is not construed as a duty. (1) The Trustee may execute any of the trusts or powers hereof and perform any of its duties through attorneys, agents and receivers and is not answerable for the conduct of the same if appointed by it with reasonable care. (M) The Trustee shall not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of enforced delay in the performance of 'such obligations due to unforeseeable causes beyond its control and without its fault or negligence, including, but not limited to, Acts of God or of the public enemy or, terrorists, acts of a government, acts of the other party, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, earthquakes, explosion, mob violence, riot, inability -to procure or general sabotage or rationing of labor, equipment, facilities, sources of energy, material or supplies in the open market, litigation or arbitration involving a party or others relating to zoning or other governmental action or inaction pertaining to the project, malicious mischief; condemnation, and unusually severe weather or delays of suppliers or subcontractors due to such causes or any similar event and/or occurrences beyond the control of'the Trustee. SECTION 6.04. Right to Rely o7i Documents. The Trustee is protected in acting upon any notice, resolution, requisition, request, consent, order, certificate, report, opinion, facsimile transmission, electronic mail or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Trustee may consult with counsel, including, without limitation, Bond Counsel or other counsel of or to the City, with regard to legal questions, and the opinion of such -23- A- 30 counsel shall be full and complete authorization and protection in respect of any action taken or suffered by the Trustee hereunder in accordance therewith. The Trustee is not bound to recognize any person as the Owner of a Bond',unless and un ' til such Bond is submitted for inspection, if required, and such person's title thereto is established to the satisfaction of the Trustee. Whenever in the administration of the trusts imposed upon it by this Indenture the Trustee deems 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 prescribed) may be deemed to be conclusively proved and established by a Certificate of the City, which shall be full warrant to the Trustee for any action taken or suffered in good faith under the provisions of this Indenture in reliance upon such Certificate, but in its discretion the Trustee may (but has no duty to), in lieu thereof, accept other evidence of such matter or may require such additional evidence as to it may deem reasonable. The Trustee may conclusively rely on any certificate or report of any Independent Accountant appointed by the City. The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, provided, however, that, the Trustee .shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a 'person is to be added or deleted from the listing. If the City elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee's understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee's reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The City agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties. The Trustee shall not be concerned with or accountable to anyone for the subsequent use or application of any moneys which shall be released or withdrawn in accordance with the provisions hereof. SECTION 6.05. Preservation and Inspection of Documents. All documents received by the, Trustee'under the provisions of this Indenture shall be retained in its possession and shall be subject during normal business hours, and upon reasonable prior written notice, to the inspection of the City and any Owner, and their agents and representatives duly authorized in writing. SECTION 6,06, Compensation and Indemnification. Absent any agreement to the contrary, the City shall pay to the Trustee from time to time compensation for all services rendered under this Indenture and also all expenses, charges, legal and consulting fees and other disbursements, and those of its attorneys (including any allocated costs of internal counsel), agents and employees, incurred in and about the performance of its powers and duties under this Indenture. The Trustee has a first lien on the Net Revenues and all funds and accounts held by the Trustee hereunder to secure the payment to the Trustee of all fees, costs and expenses, including compensation to its -24- experts, attorneys and counsel incurred in declaring such Event of Default and in exercising ,the rights and remedies set forth in Article VIII. Any such expenses incurred by the Trustee shall be deemed to constitute a substantial contribution to the trust estate which secures the Bonds. The City further covenants and agrees to indemnify and save the Trustee and its officers, directors, agents and employees, harmless againstany -loss, expense, including legal fees and expenses, and liabilities, whether or not litigated, which it may incur arising out of or in the exercise and performance of its powers and duties hereunder, including the costs and expenses of defending against any claim of liability and of enforcing any remedies hereunder and under any related documents, but excluding any and all losses, expenses and liabilities which are due to the negligence or willful misconduct of the Trustee, its officers, directors, agents or employees. The -obligations of the City under this Section 6.06 shall survive resignation or removal of the Trustee under this Indenture and payment. of the Bonds and discharge of this Indenture. SECTION 6:07. '07. Accounting.Records and Financial Statements. The Trustee shall at all times keep, or cause to be kept, proper books of record and account, prepared in accordance with corpora all trust industry standards, in which complete and accurate entries shall'be made of all transactions made by it relating to the proceeds of the Bonds and all funds and accounts established and held by the Trustee under this Indenture. Such books of record and account shall be available for inspection by the City at reasonable hours, during regular business hours, with reasonable prior notice and under reasonable circumstances. The Trustee shall furnish to the City, at least semiannually, an accounting (which may be in the form of its customary statements) of all transaction's relating to the proceeds of the Bonds and all funds and accounts held by the Trustee und*er this Indenture. ARTICLE VII MODIFICATION AND AMENDMENT OF THIS INDENTURE SECTION 7.01. Amendments Permitted. (a) Amendment With Bond Owner Consent, This Indenture and the rights and obligatiohs;of the City and of the Owners of the Bonds may be modified or amended by the. City:and the Trustee upon Request of the City at any time by the executionof a Supplemental Indenture, but only with the written consent of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding with respect to all Bonds then.Out§tandi,ng, exclusive of Bonds disqualified as provided in Section 9.05. Any such Supplemental Indenture becomes effective upon the execution and delivery thereof by the parties thereto and upon consent of the requisite Bond Owners. No such modification or amendment may: (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 thereof, or interest thereon, at the time and place and at the rate and in the currency provided therein, without the written consent of the Owner of such Bond, or -25- 32 (ii) permit the ,creation by the City of any mortgage, pledge or lien upon the Gross Revenues or Net Revenues superior to or on a parity with the pledge and lien created for the benefit of the Bonds (except as expressly permitted by this Indenture), or reduce the percentage of Bonds required for the affirmative vote or written consent to an amendment Or modification, or (iii) modify any of the rights or obligations of the Trustee without its written consent. (b) Amendment -Without Bond Owner Consent. This Indenture and the rights and obligations of the City and of the Owners of the Bonds may also be modified or amended at any time by 'a, Supplemental Indenture, without the consent of any Owners of the Bonds, for any one or more of the following purposes,: (i) to add to the covenants and agreements of the City contained in this Indenture, other covenants and agreements thereafter to be observed, or to Iii -nit or surrender any rights or power herein reserved to or conferred upon the City; (ii) to cure any ambiguity, or to'cure, correct or supplement any defective provision contained in this Indenture, or in any other respect whatsoever 'as the, City deems necessary or desirable, provided under any circumstances that such modifications or amendments do not materially adversely affect the interests of the Owners in the opinion of Bond Counsel filed with the City and the Trustee; (iii) to provide for the issuance of Parity Debt under Section 3.06, and to provide the terms and conditions under which such Parity Debt may be issued, including but not limited to the establishment of special funds and accounts relating thereto and any other provisions relating solely thereto, 'subject to and in accordance with the provisions of Section 3,06; and (iv) 'to amend any provision hereof to assure the exclusion from gross income of interest on the Bonds for federal income tax purposes under the Tax Code, in the opinion of Bond Counsel filed with the City and the Trustee. (c) Noticee-of Amendments. The City shall deliver or cause to be delivered a draft of any 5UPplemental Indenture to Moody's and S&P, at least 10 days prior to the effective date of such Supplemental Indenture under this Section 7.01. SECTION 7.02. Effect of Supplemental Indenture. From and after the time any Supplemental Indenture becomes effective under this Article VII, this Indenture shall be deemed to be modified and amended in accordance therewith, the respective rights, duties and obligations of the partie's hereto or thereto and all Owners, as the case may be, shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modification and amendment, and all the terms and conditions of any Supplemental Indenture shall be deemed to be part of the terms and conditions of this Indenture for any and all purposes. E SECTION 7:03. Endorsement or Replacement of Bonds After Amendment. After the effective date of any amendment or modification hereof under this Article V11, the City may determine that any or all of the Bonds shall bear a notation, by endorsement in form approved by the City, as to such amendment or modification and in that case upon demand of the City the Owners of such Bo ' nds shall present such Bonds for that purpose at the Office of the Trustee, and thereupon a suitable notation as to such action shall be made on such Bonds. In lieu of such notation, the City may determine that new Bonds shall be prepared. and executed in exchange for any or all of the Bonds and in that case upon demand' of the City the Owners of the Bonds shall present such Bonds for exchange at the Office of the Trustee without cost to such Owners. SECTION T04. Amendment by Mutual Consent. The provisions of this Article V11 shall not prevent any Owner from accepting any amendment as to the particular Bond held by such Owner. SECTION 7.05. Trustee's Reliance. The Trustee may conclusively rely, and is protected in relying, upon n a Certificate of the City and an opinion of counsel stating that all requirements of this Indenture relating to the amendment or modification hereof have been satisfied and that such amendments or modifications do not materially adversely affect the interests of the Owners. ARTICLE VIII EVENTS OF DEFAULT ANDREMEDIES OF BOND OWNERS SECTION 8.01. Events of Default and Acceleration of Maturities. Each of the following events constitutes an Event of Default hereunder: (a) Failure to pay any installment of the principal of any Bonds when due, whether at maturity as therein expressed, by proceedings for acceleration, or otherwise. (b) Failure to pay any installment of interest on the Bonds when due (c) Failure by the City to observe and perform any of the other covenants, agreements or conditions on its part contained in this Inden ' ture or in the Bonds, if such failure has continued for a period of 30 days after written notice thereof, specifying such failure and requiring the same to be remedied, has been given'to the `City by the Trustee; provided, however, if in the reasonable opinion of the City the failure stated in the notice can be corrected, but not within such 30 -day period, such failure shall not constitute an Event of Default if the City institutes corrective action within such 30 -day period and thereafter diligently and in good faith cures the failure within 60 days after the written notice of default thereof. (d) The City commences a voluntary case under Title 11 of the United States Code or any substitute or successor statute. -27- 34 If an Event of Default occurs and is continuing, the Trustee may, and at the written direction of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding the Trustee shall (a) for any default listed in Section 8.01(a) or (b) only, declare the principal of the Bonds, together with the accrued interest thereon, to be due and payable immediately, and upon any such declaration the same will become immediately due and payable, anything in this Indenture or in the Bonds to the contrary notwithstanding, and (b) subject to the provisions of Section 8.06, exercise any other remedies available'to the Trustee and the Bond Owners in law or at equity to enforce the rights of'the Bond Owners under this Indenture, including the right, �by action brought pursuant to the California Code of Civil Procedure, or as otherwise provided by law, to obtain the issuance of a writ of mandamus enforcing the duty of the City to take all steps necessary for the payment of principal of and interest On the Bonds, and other amounts due hereunder. Immediately upon becoming aware of the occurrence of an Event of Default, but in no event later than five Business .Days following becoming aware of such occurrence, the Trustee shall give notice of such Event of Default to the City by telephone confirmed in writing. Such notice shall also state whether the principal of the Bonds has been declared to be or have immediately become due and payable. With respect to any Event of Default described in clauses (a) or (b) above the Trustee shall, and with respect to any Event of Default described in clause (c) above the Trustee in its sole discretion may, also give such notice to the Owners, which shall include the statement that interest on the Bonds shall cease to accrue from an - d after the date, if any, on which the Trustee declares the Bonds to become due and payable under the preceding paragraph (but only to the extent that principal and any accrued, but unpaid, interest on the Bonds is actually paid on such date). This provision, however, is subject to the condition that if, at any time after the principal of the Bonds has been so declared due and payable, and before any judgment or decree for the payment of the moneys due has been obtained or entered; the City shall deposit with the Trustee a sum sufficient to pay all principal on the Bonds matured prior to such declaration and all matured installments of interest (if any) upon all the Bonds, with interest on such overdue installments of principal and interest at an interest rate of 10% per annum, and the reasonable fees and expenses of the Trustee, including fees and .expenses of its attorneys, and any and all other defaults known to the Trustee (other than in the payment of'principal of and interest on the Bonds due and payable solely by reason of such declaration) has been made good or cured to the satisfaction of the Trustee or provision on deemed by the Trustee to be adequate has been made therefor, then, :and .:in every such case, the Owners of at least a majority in aggregate principal t amount o,Uthe Bonds then Outstanding, by written notice to the City and to the Trustee, may, on behalf of the Owners of all of the Bonds, rescind and annul such declaration and its consequences. However, no such rescission and annulment" shall extend to or shall affect any subsequent default, or shall impair or exhaust any right or power consequent thereon. SECTION 8;02. Application of Funds Upon Acceleration. All amounts received by the Trustee under any right given or action taken by the Trustee under the provisions of this Indenture, shall be applied by the Trustee as follows and in the following order: (a) First, to the payment of any fees, costs and expenses incurred by the Trustee to protect the interests of the Owners of the Bonds; payment of the fees, costs and expenses of the Trustee (including fees and expenses of its counsel, including any allocated costs of internal -28- A- 35 counsel) incurred in and about the performance of its powers and duties under this Indenture and the payment of all fees, costs and expenses owing to the Trustee under Section 6.06, together with interest on all such amounts advanced by the Trustee at the maximum rate permitted by law. (b) Second, to the payment of the whole amount then owing and unpaid upon the Bonds for interest and principal, with interest on such overdue amounts at the respective ratesof interest borne by those Bonds; and in case such moneys shall be insufficient to pay in full the whole amount so owing and unpaid upon the Bonds, then to the payment of such interest, principal and interest on overdue amounts without preference or priority among such interest, principal and interest on overdue amounts ratably to the aggregate of such interest; principal and interest on overdue amounts. SECTION 8.03. Power of Trustee to Control Proceedings. If the Trustee, upon the happening of an Event of Default, takes any action, by judicial proceedings or otherwise, in the performance of its duties hereunder, whether upon its own discretion, upon the request of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding, it has full power, in the exercise of its discretion for the best interests of the Owners of the Bonds, with respect to the continuance, discontinuance, withdrawal, compromise; settlement or other disposal of such action. The Trustee may not, unless there no longer continues an Event of Default, discontinue, withdraw, compromise or settle, or otherwise dispose of any litigation pending at law or in equity, if at .the time 40 there has been filed with it a written request signed by the Owners of a majority in principal amount of the Outstanding Bonds hereunder opposing such discontinuance, withdrawal, compromise, settlement or other disposal of such litigation. SECTION 8.04. Limitation on Owners' Right to Sue. No Owner of any Bond has the right to 'institute any suit, action or proceeding at law or in equity, for any remedy under or upon this Indenture, unless: (a) said Owner has previously given to the Trustee written notice of the occurrence of an Event of Default; (b) the Owners of a majority in aggregate principal amount of all the Bonds then Outstanding have requested the Trustee in writing to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name; (c) said Owners have tendered to the Trustee indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request; and (d) the Trustee has failed to comply with such request for a period of 60 days after such written request has been received by, and said tender of indemnity has been made to, the Trustee. Such notification, request, tender of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exercise by any Owner of any remedy hereunder; it being understood and intended that no one or more Owners has any right in any manner whatever by his or their action to enforce any right -29- A- 36 under this Indenture, except in the manner herein provided, and that all proceedings at law or in equity to enforce any provision of this Indenture shall be instituted, had and maintained inthe manner herein provided and for the equal benefit of all Owners of the Outstanding Bonds. The right of any Owner of any Bond to receive payment of the principal of and premium, if any; and interest on such Bond as herein provided, shall not be impaired or affected without the written consent of such Owner, notwithstanding the foregoing provisions of this Section or any other provision of this Indenture. SECTION 8.05. Non -waiver. Nothing in this Article VIII or in any other provision of this Indenture or in the Bonds, affects or impairs the obligation of the City, which is absolute and unconditional, to pay from the Net Revenues and other amounts pledged hereunder, the principal of and interest on the Bonds to the Bond Owners when due and payable as herein provided, or affects or impairs the right of action, which is also absolute and unconditional, of the Bond Owners to institute suit to enforce such payment by virtue of the contract embodied in the Bonds. A waiver of any default by any Owner shall not affect any subsequent default or impair any rights or remedies on the subsequent default. No delay or omission of any Owner to exercise any right or power accruing upon any default shall impair any such right or power or shall 'be construed to be a waiver of any such default or an acquiescence therein, and every power and remedy conferred upon the Owners by the Bond Law or by this Article VIII may be enforced and exercised from time to time and as often as shall be deemed expedient by the Owners. ® If a suit, action or proceeding to enforce any right or exercise any remedy is abandoned or determined adversely to the Owners, the City and the Owners will be restored to their 'former positions, rights and remedies as if such suit, action or proceeding had not been brought or taken. SECTION 8.06. Actions by Trustee as Attorney -in -Fact. Any suit, action or proceeding which any Owner has the right to bring to enforce any right or remedy hereunder may be brought by the Trustee for the equal benefit and 'protection of all Owners similarly situated and the Trustee is hereby appointed (and the successive respective Owners by taking, and holding the Bonds shall be conclusively deemed so to have appointed it) the true and lawful attorney-in-fact of the respective Owners for the purpose of bringing any such suit, action or proceeding and to do and perform any and all;acts and things for and on behalf of the respective Owners as a class or classes, as may be necessary or advisable in the opinion of the Trustee as such attorney-in-fact, subject to the provisions of Article VI. Notwithstanding the foregoing provisions of this Section 8.06, the Trustee has no duty to enforce any such right or remedy unless it has been indemnified to its satisfaction for any additional fees, charges and expenses of the Trustee related thereto, including without limitation, fees and charges of its attorneys and advisors.. SECTION 8.07. Remedies Not Exclusive. No remedy herein conferred upon or reserved to the Owners is intended to be exclusive of any other remedy. Every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing, at law or in equity or by statute or otherwise, and may be exercised without exhausting and without regard to any other remedy conferred by the Bond Law or any other law. -30- A- 1 37 ARTICLE IX MISCELLANEOUS SECTION 9.01. Limited Liability of the City. Notwithstanding, anything in this Indenture contained, the City is not required to advance any moneys derived from any source of income other than the Net Revenues for the payment of the principal of or interest on the Bonds, or for the performance of any covenants herein contained (except to the extent any such covenants are expressly payable hereunder from the Net Revenues). The City may, however, advance funds for any such purpose, provided that such funds are derived from a source legally available for such purpose and may be used by the City for such purpose without incurring indebtedness. The Bonds are revenue bonds; payable exclusively from the Net Revenues and other funds as in 'this Indenture provided. The Wastewater Fund of the City is not liable, and the credit of the City is not pledged, for the payment of the interest on or principal of the Bonds. The Owners of the Bonds have no right to compel the forfeiture of any property of the City. The principal of and interest on the Bonds are not a debt of the City, or a legal or equitable pledge, charge, lien or encumbrance upon any property of the City or upon any of its income, receipts or revenues except the Net Revenues and other funds pledged to the payment thereof as provided in this Indenture. SECTION 9.02. Benefits of Indenture Limited to Parties . Nothing in this Indenture, expressed or implied, gives to any person other than the City and the Owners of the Bonds, any right, remedy or claim under or by reason of this Indenture. Any covenants, stipulations, promises or agreements in this Indenture contained by and on behalf of, the City shall be "for the sole and exclusive benefit of the Trustee and the Owners of the Bonds: SECTION 9.03. Defeasance of Bonds. (i) If the City pays and, discharges the entire indebtedness on any`Bonds in any one or more of the following ways: (a) by paying or causing to be paid the principal of and interest on such Bonds, as and when the same become due and payable; (b) subject to the conditions set forth in subsection. (ii) below, by irrevocably depositing with the Trustee or an escrow bank, in trust, at or before maturity, an amount of cash which, together with the available amounts then on deposit in the funds and accounts established under this Indenture, in the opinion or report of an Independent Accountant is fully sufficient to pay such Bonds, including all principal and interest; (c) subject to the conditions set forth in subsection (ii) below, by irrevocably depositing with the Trustee or an escrow bank, in trust, Defeasance Securities in such amount as an Independent Accountant determines will, together with the interest to accrue thereon and available' moneys then on deposit in any of the funds and accounts established under this Indenture, be fully sufficient to pay and discharge the indebtedness on such Bonds (including all principal and interest) at or before maturity; or -31- A- 38 ® (d) by purchasing such Bonds prior to maturity and tendering such Bonds to the Trustee for cancellation; then, at the election of the City, and notwithstanding_ that any such Bonds have not been surrendered for payment, the pledge of the Net Revenues and other funds provided for in this Indenture and all other obligations of the Trustee and the City under this Indenture with respect to such Bonds shall cease and terminate, except only: (a) the obligations of the City under Section 5.11, (b) the obligation of the Trustee to transfer and exchange Bonds hereunder,, (c) the obligation of the City to pay or cause to be paid to the Owners of such Bonds, from the amounts so deposited with the Trustee, all sums due thereon, and (d) the obligations of the City to compensate and indemnify the Trustee under Section 6.06. The City must file notice of such election with the Trustee. The Trustee shall pay any funds thereafter held by it, which are not required for said purpose, to the City. In the case of a defeasance or payment of. all of the Bonds Outstanding in accordance with this Section 9.03, the Trustee shall pay all amounts held by it in any funds or accounts hereunder, which are not required for said purpose or for payment of amounts due the Trustee under Section 6.06, to the City. (ii) To accomplish defeasance pursuant to paragraphs (i) (b) or (i) (c) above, the City shall cause to be delivered (i) a report of an Independent Accountant verifying the sufficiency of the escrow established to pay the Bonds in full on the maturity date ("Verification"), (ii) an Escrow Deposit'Agreement, (iii) an opinion of nationally recognized bond counsel to the effect that the Bonds are no longer "Outstanding" under this Trust Indenture and (iv) a certificate of discharge of the Trustee with respect to the Bonds; each Verification and defeasance opinion to be acceptable in form and substance, and addressed, to the City and Trustee. Bonds shall be deemed "Outstanding" under this Trust Indenture unless and until they are in fact paid and retired or the above criteria are met. SECTION 9.04. Execution of Documents and Proof of Ownership by Owners. Any request, consent, declaration or other instrument which this Indenture may require or permit to be executed by any Owner may be in one or more instruments of similar tenor, and shall be executed by such Owner 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, consent, 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, -32- 139 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 Bonds and the amount, maturity, number and date of ownership thereof are conclusively proved by the Registration Books. Any request, declaration or other instrument or writing of the Owner of any Bond binds all future Owners of such Bond in respect of anything done or suffered to be done by the City or the Trustee in good faith and in accordance therewith. SECTION 9.05. Disqualified Bonds. In determining whether the Owners of the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or waiver under this Indenture, Bonds which are owned or held by or for the account of the City (but excluding Bonds held in any employees' retirement fund) must be disregarded and deemed not to be Outstanding for the purpose of any such determination. The Trustee will not be deemed to have knowledge that any Bond is owned or held by the City unless the City is the Registered Owner or the Trustee has received written notice to that effect. SECTION 9.06. Waiver of Personal Liability. 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 9.07. Destruction of Canceled Bonds. Whenever in this Indenture provision is made for the surrender to the City of any Bonds which have been paid or canceled under the provisions of this Indenture, a certificate of destruction duly executed by the Trustee shall be deemed to be the equivalent of the surrender of such canceled Bonds and the City shall be entitled to rely upon any statement of fact contained in any certificate with respect to the destruction of any such Bonds therein referred to. The City shall pay all costs of any microfilming of Bonds to be destroyed. SECTION 9.08. Funds and Accounts. Any fund or account required by this Indenture to be established and maintained by the City or the Trustee may be established and maintained in the accounting records of the City or the Trustee, as the case may be, either as a fund or an account, and may, for the purpose of such records, any audits -the ' reof and any reports or statements with respect thereto, be treated either as a,fund or aan account. All such records with respect to all such funds and accounts held' by the City shall at all times be maintained in accordance with generally accepted accounting principles and all such records with respect to all such funds and accounts held by the Trustee shall be at all times .maintained in accordance with corporate trust industry practices; in each case with due regard for the protection of the security of the Bonds and the rights of every Owner thereof. SECTION 9.09. Notices. All written notices to be given under this Indenture shall be given by first class mail or personal delivery to the party entitled thereto at its address set forth below, or at such address as the party may provide to the other party in writing from time to time. The City or the Trustee may, by written notice to the other parties, from time to time modify the address or number to which communications are ® to be given hereunder. -33- "40 If to the City: City of Petaluma y 11 English Street Petaluma, California 94952 Attention: Finance Director Fax: (707) 778-4428 If to the Trustee: The Bank of New York Mellon Trust Company, N.A. 550 Kearny Street, Suite 600 San Francisco, California 94108 Attention: Corporate Trust SECTION 9.10. Unclaimed Moneys. Anything contained herein to the contrary notwithstanding, any:money held by the Trustee in trust for the payment and discharge of the interest or premium (if any) on or principal of the Bonds which remains unclaimed for one year after the date when the payments of such interest, premium and principal have become payable, if such money was held by the Trustee at such date, or for one year after the date of deposit of such money if deposited with the Trustee after the date when the interest and premium (if any) on and principal of such Bonds have become payable, shall be repaid by the Trustee to the City as its absolute property free from trust, and the Trustee shall thereupon be released and discharged with respect thereto and the Owners shall look only to the City for the payment of the principal of and interest on such Bonds. SECTION 9.11. Execution in Several Counterparts. This Indenture may be executed in any number of counterparts and each of such counterparts -shall for all purposes be deemed to be an original; and all such counterparts, or as many of them as the City and the Trustee shall preserve undestroyed, shall together constitute but one and the same instrument. SECTION 9.12. Governing Law. This Indenture shall be governed by and construed in accordance with the laws of the State of California. -34- 41 IN WITNESS WHEREOF, the City of Petaluma has caused this Indenture to be signed 'in its name by its City Manager, and its sea] to be affixed hereon and attested by its City Clerk, and, The Bank of New York Mellon Trust Company, N.A., in token of its acceptance of the trust created hereunder, has caused this Indenture to be signed in its corporate name by its officer identified below, all as of the day and year first above written. CITY OF PETALUMA By [SEAL} City Manager Attest: City Clerk THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee LIMA -35- Authorized Officer A— 42 • APPENDIX A DEFINITIONS "Accountant" means any certified public accountant or firm of such accountants appointed and paid by the City, and who, or each of whom - (a) is in fact independent and not under domination ofthe City; (b) does not have any substantial identity of interest, direct or indirect, with the City; and (c) is not and no member of which is connected with the City as an officer or employee of the City, but who may be regularly retained to make annual or other audits of the books of or reports to the City. "Additional Revenues" means, with respect to the issuance of any Parity Debt, any or all of the following amounts: (i) An allowance for Net Revenues from any additions or improvements to or extensions of the Wastewater System to be made from the proceeds of such Parity Debt in an amount equal to the estimated additional average annual Net Revenues to be derived from such additions, improvements and extensions for the first 36 -month period in which each addition, improvement or extension is respectively to be in operation, all as shown by the certificate or opinion of a Financial Consultant. (ii) An allowance for Net Revenues arising from any increase in the charges made for service from the Wastewater System which has been duly approved by the City Council of the City prior to the incurring of such Parity Debt, but which, during all or any part of the most recent completed Fiscal Year for which audited financial statements of the City are available, or for any more recent consecutive 12 -month period selected by the City under Section 3.06(b), was not in effect, in an amount equal to the total amount by which the Net Revenues would have been increased if such increase in charges had been in effect during the whole of such Fiscal Year or 12 -month period, all as shown by the certificate or opinion of a Financial Consultant. "Bond Counsel" means (a) Jones Hall, A Professional Law Corporation, or (b) any other attorney or firm of attorneys appointed by or acceptable to the City of nationally. -recognized experience in the issuance of obligations the interest on which is excludable from gross income for federal income tax purposes under the Tax Code. "Bond Law" means the provisions of Articles 10 and 11 of Chapter 3 of Part 1 of Division 2 of Title 5 of the California Government Code, commencing with Section 53570 of said Code, as .in effect on the Closing Date or as thereafter amended in accordance is with its terms. A-1 A— 43 11 "Bond Year" means any twelve-month period commencing on May 2 in a year and ending on. the next succeeding May 1, both dates inclusive; except that the first Bond Year commences on the Closing Date and ends on May 1, 2012. "Bonds" means the City of Petaluma 2011 Wastewater Revenue Refunding Bonds issued and at any time Outstanding hereunder. "Business Dad' means a day (other than a Saturday or a Sunday) on which banks are not required or authorized to remain closed in the " state in which the Office of the Trustee is located, and on which the Federal Reserve Bank system is not closed. "Certificate of the City" means a certificate in writing signed by the Mayor, the City Manager of the City, the Finance Director of the City, or any other officer of the City duly authorized by the City Council for that purpose. "Closing Date" means 2011, being the date of delivery of the Bonds to the Original Purchaser. "Continuimy- Disclosure Certificate" means the Continuing Disclosure Certificate described in Section 5.11 "Costs of Issuance" meansall items of expense directly or indirectly payable by or reimbursable to the City relating to the authorization, issuance, sale and delivery of the Bonds and the current refunding of the Prior Obligations, including but not limited to printing expenses, rating agency fees, filingand recording fees, initial fees, expenses and charges of the Trustee and its counsel, fees, charges and disbursements of attorneys, .financial advisors, accounting firms, consultants and other professionals, and any other cost, charge or fee in connection with the original issuance of the Bonds and the current refunding of the Prior Obligations. -Costs of Issuance Fund" means the fund by that name established and held by the Trustee under Section 3.03. "Debt Service" means, with respect to any Fiscal Year, the sum obtained by totaling the following amounts, for such Fiscal Year: (a) the aggregate amount of principal of and interest on the Outstanding Bonds coming due and payable in such Fiscal Year; (b) the principal amount of all outstanding. Parity Debt, if' any, coming due and payable by their terms in such"Fiscal Year; and (c) the amount of interest which would be due during such Fiscal Year on the aggregate principal amount of all outstanding Parity Debt, if any, which would be outstanding in such Fiscal Year if such Parity Debt are retired as scheduled; provided, however, that with respect to .any Parity Debt which bears interest at an adjustable rate, such int ' erest shall be calculated at an assumed rate equal to the average rate of interest per annum for each of the five previous whole calendar years as shown by the J. J. Kinney Index (or, if and to the extent such index is not maintained for all or any portion of such A-2 44 0 period, any similar index of variable; rate interest for tax-exempt obligations selected by the City in its sole discretion). "Debt Service Fund" means the fund by that name established and held by the Trustee under Section 4.02(b)(ii). "Defeasance Securities" means (1) cash, (2) non -callable direct obligations of the United States of America ("Treasuries"), (3) evidences of ownership of proportionate interests in future interest and principal payments on Treasuries held by a bank or trust company as custodian, under which the owner of the investment is the real party in interest and has the right to proceed directly and individually against the obligor and the underlying Treasuries are not available to any person claiming through the custodian or to whom the custodian may be obligated, (4) pre -refunded municipal obligations rated "AAA" and "Aaa" by S&P and Moody's; respectively, or (5) securities eligible for "AAA" defeasance under then existing criteria of'S & P or any combination thereof, shall be used to effect defeasance of the Bonds. "Demsitorv" means (a) initially, DTC, and (b) any other Securities Depository acting as Depository under Section 2.04. "Depository Svstem Particivant" means any participant in the Depository's book - entry system. "City„ means the City of Petaluma, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, and any successor thereto. "DTC" means The Depository Trust Company, .New York, New York, and its successors and assigns. "Escrow Fund" means the fund of that name established under Section 3.05. "Event of Default" means any of the events described in Section 8.01. "Federal Securities" means any of the following which at the time of investment are legal investments under the laws of the State of California for the funds purported 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 Statny es of America); and (b) obligations of aagency, department or .instrumentality of the United States of America the timely payment of principal of and interest on which are fully secured or guaranteed by the full faith and credit of the United States of America. "Financial Consultant" means any consultant or firm of such consultants appointed by the City and who, or each of whom: (a) is judged by the City to have experience in matters relating to the financing of wastewater systems; (b) is in fact independent and not under domination of the City; (c) does not have any substantial interest, direct or indirect, with the City; and (d) is not connected with the City as an officer or employee of the City, but who may be regularly retained to make reports to the City. A-3 /-� - 45 • "Fiscal Year" means the period commencing on July 1 of each year and terminating on the next succeeding June. 30, or such other period as may be established by the City as its official fiscal year period (written notice of which shall be given by the City to the Trustee). "Gross Revenues" .means all gross income and revenue received by the City from the ownership and/or operation of the Wastewater System, including, without limiting the generality of the foregoing: (a) all amounts levied by the City as a fee for connecting to the Wastewater System, as such fee is established from time to time under the applicable laws of the State of California; (b) all income, rents; rates, fees, capital improvement fees (including facilities capacity and pump zone fees), charges or other moneys derived from the services, facilities and commodities sold (including recycled water), furnished or supplied through the facilities of the Wastewater System, (c) the earnings on and income derived from the investment of such income, rents, rates, fees, charges or other moneys to the extent that the use of such earnings and income is limited by or under applicable law to the Wastewater System, (d) the proceeds derived by the City directly or indirectly from the sale, lease or other disposition of a part of the Wastewater System as permitted hereunder, (e) amounts transferred into the Wastewater Fund from the Rate Stabilization Fund under Section 4.03, and (f) amounts received by the City from other public agencies as the proceeds of tax revenues or other amounts payable to the City under contracts for services provided by the City to users of the Wastewater System. The term "Gross Revenues" does not include (i) customers' deposits or any other deposits subject to refund until such deposits have become the property of the. City, (ii) the proceeds of any ad valorem property taxes levied to pay general obligation bond, indebtedness of the City with respect to the Wastewater System, and (iii) special, assessments or special taxes levied upon real property within any improvement City for the purpose of paying special assessment bonds or special tax obligations of the City relating to the Wastewater System. "Indenture" means this Indenture of Trust, as originally executed or as it may from time to time be supplemented, modified or amended by any Supplemental Indenture under the provisions hereof. "Independent Accountant" means any accountant or firm of such accountants appointed and paid by the City, and who, or each of whom (a) is in fact independent and not under domination of the City; (b) does not have any substantial interest, direct ® or indirect, with the City; and (c) is not connected with the City as an officer or employee A-4. A-46 r of the City, but who may be regularly retained to make annual or other audits of the books of or reports to the City. "Interest Pavment Date" means November 1 and May 1 in each year, beginning November 1, 2011, and continuing so long as any Bonds remain Outstanding. "Maximum Annual Debt Service" means; as of the date of any calculation, the maximum amount of Debt Service on'the Outstanding Bonds and all outstanding Parity Debt for the current or any future Fiscal Year. "Moody's" means Moody's Investors Services, and its successors and assigns. "Net Revenues" means, for any period, an amount equal to all of the Gross Revenues received during such period minus the amount required to pay all Operation and Maintenance Costs becoming payable during such period. "Nominee" means (a) initially, Cede & Co. as nominee of DTC, and (b) any other nominee of the Depository designated under Section 2.04(a). "Office," means, with. respect to the Trustee, the corporate trust office of the Trustee at the address set forth in Section 9.09, or at such other or additional offices as may be specified by the Trustee in writing to the City; except that with respect to presentation of Bonds for payment or for registration of transfer and exchange, such term means the office or agency of the Trustee at which, at any particular time, its ® corporate trust agency business is conducted. "Operation and Maintenance Costs" means the reasonable and necessary costs paid or .incurred by the City :for maintaining and operating the Wastewater System, determined in accordance with generally accepted accounting principles, including but not limited to (a) all reasonable expenses of management and repair and other expenses necessary to maintain and preserve the Wastewater System in good repair and working order, and (b) all administrative costs of the City that are charged directly or apportioned to the operation of the Wastewater System, such as salaries wages and retirement benefits of employees, overhead, taxes (if any) and insurance. "Operation and Maintenance Costs" "do not include (i) administrative costs of the Bonds which the City is required to'pay hereunder, (ii) payments of debt service on bonds, notes or other obligations issued by, the City with respect to the Wastewater System, (iii) depreciation, replacement and obsolescence charges or reserves therefor, (iv) capital expenditures ,made by the City, with respect to the Wastewater System, (v) accrual of employee benefits which are not funded, and (vi)' amortization of intangibles or other bookkeeping entries ofa similar nature. "Original Purchaser" means Piper Jaffray & Co., as the original purchasers of the Bonds upon their delivery by the Trustee on the Closing Date. "Outstanding", when used as of any particular time with reference to Bonds, means all Bonds theretofore, or thereupon being, authenticated and delivered by the Trustee under this Indenture except: (a) .Bonds theretofore canceled by the Trustee or surrendered to the Trustee for cancellation; (b) Bonds with respect to which all liability of the City has been ,discharged in accordance with Section 9.03; (c) Bonds for the • transfer or exchange of or in lieu of or in substitution for which other Bonds shall have A-5 A- 47 E E been authenticated and delivered by the Trustee under this Indenture; and (d) Bonds which are required to be disregarded and not deemed Outstanding under Section 9.05. `"Owner"", when used with respect to any Bond, means the person in whose name the ownership of such Bond is registered on the Registration Books. "Parity Debt" means the SRF Loan, and all other. bonds, notes, loan agreements, installment sale agreements, leases or other obligations of the City payable from and secured by a pledge of and lien on any of the Net Revenues issued or incurred on a parity with the Bonds under Section 3.06 or 3.07. "Parity Debt Documents" means, with respect to any issue of Parity Debt, the agreement, indenture of trust, resolution or; other instrument authorizing the issuance of such-Parity Debt. "Permitted Investments" means any of the following which at the time of investment are legal investments under the laws of the State of California for the moneys proposed to be invested therein: (a) Federal Securities; M obligations of any federal agency which either (a) represent full faith and credit of the United States of America, or (b) are rated "AA" or better by S&P and "Aa" by Moody's; (c) U.S. dollar denominated deposit accounts federal funds and banker's acceptances with domestic commercial banks, which may include the Trustee, its parent holding company, if any, and their affiliates, which have a rating on their short term certificates of deposit on the date of purchase of "A" or better by S&P and Moody's, maturing no more than 360 days after the date of purchase, provided that ratings on holding companies are not considered as the rating of the bank; (d) commercial paper which is rated at the time of purchase in the single highest classification, "A" or better by S&P and Moody's, and which matures not more than 2.70 calendar days after the date of purchase; (e) investments in a money market fund, including those of an affiliate of the Trustee, rated in the highest short-term rating category by S&P and Moody's, including funds for which the Trustee, its parent holding company, if any, or any affiliates or subsidiaries of the Trustee or such holding company provide investment advisory or other management services; (f) investment agreements with financial institutions whose long-term general credit rating is A or better from S&P and Moody's, by the terms of which the Trustee may withdraw funds if such rating falls below "A"; and A-6 48 (g) the Local.Agency Investment Fund of the State of California, created under Section 1'6429.1 of the California Government Code, to the extent the Trustee is authorized to register such investment in its name. "Prior Obligations" has the meaning given to said term in the recitals hereof. "Rate Stabilization Fund" means the fund by that name established and held by the City under Section 4.03. "Record Date" means, with respect to any Interest Payment Date, the 15`h calendar day of the month preceding such Interest Payment Date. "Reizistration Books" means the books maintained by the Trustee under Section 2.07 for the registration and transfer of ownership of the Bonds. "Request of the City" means a request in writing signed by the Mayor, the City Manager of the City, or any other officer of the City duly authorized by the City Council for that purpose. "Reserve Fund" means the fund by that name established pursuant and held by the Trustee under Section 3.04, and includes all accounts established therein. "Reserve Requirement" means, as of -the date of calculation, an amount equal to the lesser of: (i) Maximum Annual Debt Service on the Bonds; (ii) ten percent (10%) of the original principal amount of the Bonds; or (iii) 125% of Average Annual Debt Service on the Bonds. "Securities Dep_ ositories" means DTC; 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 a Request of the City delivered by the City to the Trustee. "S&P" means Standard & Poor's Corporation, of New York, New York, and its successors. "State Loans" means loans secured by a pledge of Net Revenues of the Wastewater System. `and incurred by the City to finance improvements to the Wastewater''System pursuant to Section 3.07 of this Indenture. "Supplemental Indenture" means any indenture, agreement, resolution or other instrument hereafter duly adopted or executed in accordance with Section 7.01. "Tax Code" means the Internal Revenue Code of 1986 as in effect on the Closing Date or (except as otherwise referenced herein) as it may be amended to apply to obligations issued on the Closing Date, together with applicable temporary and final regulations promulgated, and applicable official public guidance published, under said Code. "Trustee" means The Bank of New York Mellon Trust Company, N.A., as Trustee hereunder, or any successor thereto appointed as Trustee under Article VI. 0. A-7 A - 49 • "2000 Bonds" has the meaning given to said term in the recitals hereto. • "2000 Bonds Indenture" means the Indenture of Trust, date as of May 1, 2000, dated as of May 1, 2000, between the City and the 2000 Bonds Trustee, under which the 2000 Bonds were issued. "2000 Bonds Trustee" means Wells Fargo National Bank, as successor trustee to Norwest Bank Minnesota, N.A., trustee under the 2000 Bonds Indenture. "Wastewater Fund" means the fund established and held by the City with respect to the Wastewater System for the deposit of Gross Revenues. "Wastewater' Svstem" means any and all facilities now existing or hereafter acquired or constructed which are owned, controlled or operated by the City for the collection, treatment, disposal, recycling or reuse of wastewater, including sewage treatment plants, intercepting and collecting sewers, outfall sewers, force mains, pumping stations, ejector stations, oxidation ponds,. pipes, valves, machinery, and all other appurtenances necessary, useful or convenient for the collection, treatment, purification, reclamation or disposal of sewage and storm drainage, and any necessary lands, rights of way and other real or personal property useful in connection therewith. A-8 A -- 50 ® APPENDIX B No. R - FORM OF BOND CITY OF PETALUMA 2011 WASTEWATER REVENUE REFUNDING FOND INTEREST RATE: MATURITY DATE: ISSUE DATE: CUSIP: May 1, 2011 REGISTERED, OWNER: CEDE & CO. PRINCIPAL AMOUNT: The City of Petaluma, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (the "City"), for value received, hereby promises to pay (but only out of the Net Revenues and other assets pledged therefor as hereinafter mentioned). to the Registered Owner stated 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 'to pay interest thereon in like lawful money from the Interest Payment Date next preceding the date of authentication of this Bond (unless this Bond is authenticated as of a day during the period commencing after the fifteenth day of the month preceding an Interest Payment Date .and ending„ on or before such Interest Payment Date, in which event it shall bear interest from such Interest Payment Date, or unless this Bond is authenticated on or before October 15, 2011, in which event it shall bear interest from the Issue Date stated above) until payment of such principal sum shall be discharged as provided in the Indenture hereinafter mentioned, at the Interest Rate per annum stated above, payable semiannually on each November 1 and May 1, commencing November 1, 2011 (each, an "Interest Payment Date"). The principal hereof is payable by check at the Office (as defined in the Indenture referred to below) of The Bank of New York Mellon Trust Company, N.A. (together with any successor trustee under the Indenture, the "Trustee"). Interest hereon is payable by check of the Trustee mailed on each Interest Payment Date to the Registered Owner as of the 15`' day of the month preceding each Interest Payment Date (except with respect to payment of defaulted interest as provided in the Indenture hereinafter referred to) at the address shown on the registration books maintained by the Trustee. Payment of interest will be made by wire transfer in immediately available funds to an account in the United States of America to any Owner of Bonds in the aggregate principal amount of B-1 �� 51 • $1,000,000 or more who shall furnish written wire instructions' to the Trustee before the 15�' day of the, month preceding the applicable Interest Payment Date. This Bond is one of a duly authorized issue of bonds of the City designated as its "City of Petaluma 2011 Wastewater Revenue Refunding Bonds" (the "Bonds"), in the aggregate principal amount of $[Principal Amount] authorized under Articles 10 and 11 of Chapter 3 of Part 1 of Division 2 of Title 5 of the California Government Code, commencing with Section 53570 of said Code (the "Bond Law"), and issued under an Indenture of Trust, dated as of February 1, 2011 (the "Indenture"), between the City and the Trustee. The Bonds have been issued for the purpose of refinancing certain obligations of the City incurred in 2000 and 2005 to finance capital improvements to its wastewater collection, treatment and disposal system (the "Wastewater System"). Reference is hereby made to the Indenture (a copy of which is on file at said Office of the Trustee) and all indentures supplemental thereto and to the Bond Law for a description of the rights thereunder of the owners of the Bonds, of the nature and extent of the security, of the rights, duties and immunities of the Trustee and of the rights and obligations of the City thereunder. The Registered Owner of this Bond, by acceptance hereof, assents and agrees to all the provisions of the Indenture. The Bonds and the interest thereon are payable from Net Revenues of the Wastewater System (as such terms are defined in the Indenture) and are secured by a pledge and assignment of said Net Revenues and by a pledge and assignment of amounts held in the Bond Fund and the Reserve Fund established under the Indenture, subject only to the provisions of'the Indenture permitting the application thereof for the purposes and on the terms and conditions set forth in the Indenture. The City has the right under the Indenture to issue additional obligations on a parity with the Bonds, subject to the specific conditions set forth in the Indenture. The Bonds .are special obligations of the City and are not a lien or charge upon the funds or property of the City, except to the extent of the aforesaid pledge and assignment. The Bonds maturing on or before May 1, 20_ are not subject to redemption prior to their respective stated maturities. The Bonds maturing .on or after May 1, 20_ are subject to redemption prior to their respective stated maturity dates, at the option of the City, from any source of available funds, in whole or in part, on any date on or after May 1, 20_, at a redemption price equal to the principal amount to be redeemed, plus accrued interest to the date fixed for redemption, without premium. The Bonds maturing on May 1, 20_ are subject to mandatory sinking fund redemption in part, by lot, on May 1 of each year in accordance with the schedule ,set forth below. The. Bonds so called for .mandatory sinking fund redemption will be redeemed at the principal amount to be redeemed, plus accrued but unpaid interest, without premium. B-2 ` 52 Redemption Date Sinking Fund (May 1) Amount (maturity) Unless waived by any Owner of Bonds to be redeemed, notice of any redemption of. Bonds shall be given,at the expense of the City, by the Trustee by mailing a copy of a redemption notice by first class mail at least 30 days and not more than 60 days prior to the date fixed for redemption to the Owner of the Bond or Bonds to be redeemed at the address shown on the Bond Registration Books; provided, that neither the failure to receive such no,tice,:nor any immaterial defect in any notice shall affect the sufficiency of the proceedings for the redemption of the Bonds. If this Bond is called for redemption and payment is duly provided therefor as specified in the Indenture, interest shall cease to accrue hereon from and after the date fixed for redemption. The Bonds are issuable as fully registered Bonds in denominations of $5,000 and any integral multiple thereof. Subject to the limitations provided in the Indenture, Bonds may be exchanged, at said Office of the Trustee, for a like aggregate principal amount of Bonds of other authorized denominations of the same maturity. aThis Bond is transferable by the Registered' Owner hereof, in person or by his attorney duly authorized in writing, at said office of the Trustee, but only in the manner, subject to the limitations provided in the Indenture, and upon surrender and cancellation of this Bond. Upon such transfer, a new Bond or Bonds, of authorized denomination or denominations, of the same maturity and for the same aggregate principal amount, will be issued to the transferee in exchange herefor. The City and the Trustee may treat the. Registered Owner hereof as the absolute owner hereof for all purposes, and the City and the Trustee shall not be affected by any notice to the contrary. The Indenture and the rights and obligations of the City and of the owners of the Bonds and of the Trustee may be modified or amended from time to time and at any time: in the manner, to the extent, and upon the terms provided in the Indenture; provided that ,no such modification or amendment shall (a) extend the maturity of or ;reduce the ;interest rate on any Bond or otherwise alter or impair the obligation of the City to pay the principal or interest at the time and place and at the rate and in the currency ,provided, therein of any Bond without the express written consent of the owner of such Bond, (b)' reduce the percentage of Bonds required for the written consent to any such amendment or modification, or (c) without its written consent thereto, modify any of the rights or obligations of the Trustee, all as more fully set forth in the Indenture. Unless this Bond is presented by an authorized representative of The Depository Trust Company, a New York Corporation ("DTC"), to the Trustee for registration or transfer, exchange or payment, and any Bond issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment .is made to Cede & Co. or to such other entity as is requested by an 0 authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE B-3 �' S') HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. It is hereby certified and recited that any and all things, conditions and acts required to exist, to have happened and to have been performed precedent to and in the issuance of this Bond do exist, have happened and have been performed in due time, form and manner as required by the Bond Law, and by the constitution and laws of the State of California, and that the amount of this Bond, together with all other indebtedness of the City, does not exceed any limit prescribed by the Bond Law and is not in excess of the amount of Bonds permitted to be issued under the Indenture. This Bond is not entitled to any benefit under the Indenture, or is not valid or obligatory for any purpose, until the certificate of authentication hereon endorsed has been signed by the Trustee. IN WITNESS WHEREOF, City of Petaluma has caused this Bond to be executed in its name and on its behalf by .the facsimile signature of the City Manager of the City and attested to by the facsimile signature of the City Clerk of the City, all as of the Issue Date stated above. 11 Attest: • City Clerk CITY OF PETALUMA 10 B-4 City Manager A- 54 • Dated: TRUSTEE'S CERTIFICATE;OFAUTHENTICATION This is one of the Bonds described in the within -mentioned Indenture. THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee M ASSIGNMENT Authorized Signatory For value received the undersigned hereby sells, assigns and transfers unto whose address and social security or other tax identifying number is , the within -mentioned Bond and hereby irrevocably constitute(s) and appoint(s) attorney, to, transfer the same on the registration books of the Trustee with full power of substitution in the premises. Dated: Signature Guaranteed: Note: Signature(s). must be guaranteed by Note: The signature(s) on this Assignment must an eligible guarantor institution. correspond with the name(s) as written on the face of the within Bond in every particular without alteration or enlargement or any change whatsoever. B-5 fi- 55 • APPENDIX C REDEMPTION AND PREPAYMENT SCHEDULE FOR THE PRIOR OBLIGATIONS A) REDEMPTION SCHEDULE FOR 2000 BONDS Payment Date Principal Redeemed Interest 2011 $5,525,000 $ B) PREPAYMENT SCHEDULE FOR BNP LINE OF CREDIT Total Payment Date Principal Prepaid Interest Total _, 2011 $ $ $ C) PREPAYMENT SCHEDULE FOR ZIONS LINE OF CREDIT Payment Date Principal Prepaid 2011 $ C-1 Interest Total A- 56 • • 26091-14 11-27-10 12-13-10 12-16-10 12-17-10 01-12-11 01-3-11 01-18-11 1-27-2011 NEW ISSUE RATINGS: Moody's: `A1' Standard & Poor's: `AA-' See "RATINGS" in this Official Statement. in the opinion of Jones Hall, A Professional Law Corporation, San Francisco, California, Bond Counsel, subject, however to certain qualifications described herein, under existing law, the interest on the Bonds is excluded from gross income for federal income tax purposes, and such interest is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations, although for the purpose of computing the alternative minimum tax imposed on certain corporations, such interest is taken into account in determining certain income and earnings. In the further opinion of Bond Counsel, such interest is exempt from California personal income taxes. See "TAX MATTERS." P CITY OF PETALUMA 2011 WASTEWATER REVENUE REFUNDING BONDS Dated: Date of Delivery Due: May 1, as shown below The captioned bonds (the "Bonds") are being issued by the City of Petaluma (the "City") under an Indenture of Trust dated as of February 1, 2011 (the "Indenture") between the City and The Bank of New York Mellon Trust Company, N.A., San Francisco; California, as trustee (the "Trustee"). Proceeds of the Bonds will be used to (i) refund certain outstanding obligations of the City that are payable from revenues of the City's wastewater and storm drainage system (as defined more completely in this Official Statement, the "Wastewater System"); (ii) fund a reserve for the Bonds; and (iii) pay the costs of issuing the Bonds. The Bonds, will be delivered as fully registered bonds, registered in the name of Cede & Co. as nominee of The Depository Trust Company, New York, New York ("DTC"), and will be available to ultimate purchasers ("Beneficial Owners") in the denomination of $5,000 or any integral multiple thereof, under the book -entry system maintained by DTC. Beneficial Owners will not be entitled to receive delivery of certificates representing their ownership interest in the Bonds. Interest on the Bonds is payable on May 1 and November 1 of each year, commencing November 1, 2011, by the Trustee to DTC for subsequent disbursement to DTC participants, so long as DTC or its nominee remains the registered owner of the Bonds. The Bonds,are subject to redemption prior to maturity, as described in this Official Statement. The -Bonds are special obligations of the City and are payable exclusively from Net Revenues (as defined in this Official Statement) of the Wastewater System and from amounts on deposit in certain funds and accounts established under the Indenture. The Bonds are secured by a pledge of and payable from Net Revenues on a parity with an outstanding loan agreement with the State of California (the "SRF Loan'). In addition, under the Indenture, the City may issue additional bonds secured by Net Revenues on a parity with the SRF Loan and the Bonds, provided that the conditions set forth in the Indenture are met. See "RISK FACTORS" and "SECURITY FOR THE BONDS — Parity Debt." THE BONDS ARE NOT A DEBT, LIABILITY OR OBLIGATION OF THE STATE OF CALIFORNIA OR ANY OF ITS POLITICAL SUBDIVISIONS OTHER THAN THE CITY, AND NEITHER THE CITY, THE STATE NOR ANY OF ITS POLITICAL SUBDIVISIONS, OTHER THAN THE CITY, IS LIABLE THEREFOR. THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS ARE PAYABLE SOLELY FROM NET ES PLEDGED BY THE CITY FROM THE CITY'S WASTEWATER SYSTEM AND AMOUNTS IN .CERTAIN FUNDS AND ACCOUNTS HELD UNDER THE INDENTURE. This cover page contains certain information for quick reference only. It is not intended to be a summary of all factors relating to an investment in the Bonds. Investors should review the entire Official Statement before making any investment decision. MATURITY SCHEDULE (See inside cover) The Bonds are offered when, as and if issued, and accepted by the Underwriter, subject to approval as to legality by Jones Hall, A Professional Law Corporation, San Francisco, California, Bond Counsel, and subject to certain other conditions. Jones Hall is also acting as Disclosure Counsel to the City. It is anticipated that the Bonds will be available for delivery in book -entry form on or about _, 2011. Preliminary; subject to change. A-57 C, • • MATURITY SCHEDULE Base CUSIPt: Maturity Date Principal CUSIpT (May 1) Amount Interest Rate Yield Number t Copyright 2011, American Bankers Association. CUSIP data are provided .by Standard & Poor's CUSIP Service Bureau, a division of The 'McGraw-Hill Companies, Inc., and are provided for convenience of reference only. Neither the City nor the Underwriter assumes any responsibility for the accuracy of these CUSIP data. A-59 GENERAL INFORMATION ABOUT THIS OFFICIAL STATEMENT No Offering May Be Made Except by this Official Statement. No dealer, broker, salesperson or other person has been authorized to give any information or to make any representations with respect to the Bonds other than as contained in this Official Statement, and if given or made, such other information or representation must not be relied • upon as having been authorized. No Unlawful Offers or Solicitations. This Official Statement does not constitute an offer to sell or the solicitation of an offer to buy in any state in which such offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to any person to whom it is unlawful to make such offer or solicitation. Effective Date. This Official Statement. speaks only as of its date, and the information and expressions of opinion contained in this Official Statement are subject to change without notice. Neither the delivery of this Official Statement nor, any sale of the Bonds will, under any circumstances, create any implication that there has been no change in the affairs of"the City or any other parties°described in this Official Statement. Use of this Official Statement. This, Official Statement is submitted in connection with the sale of the Bonds referred to in this Official Statement and may not be, reproduced or used, in whole or in part, for any other purpose. This Official Statement is nota contract with the.purchasers of the Bonds. Preparation of this Official Statement. The information contained in this Official Statement has been obtained from sources that are believed to be reliable, but this information'is not guaranteed as to accuracy or completeness. The Underwriter has provided the following sentence for inclusion in this Official Statement: The Underwriter has reviewed the information in this Official Statement in accordance with, and as part of, its responsibilities to investors under the federal securities laws as applied to the facts and circumstances of this transaction, but the Underwriter does not guarantee the accuracy or completeness of such information. Document "References and Summaries. All references to and summaries of the Indenture, the ,Installment Purchase Agreement or other documents contained in this Official Statement are subject to the provisions of those documents and do not purportto be complete statements of those documents. Bonds are Exempt from Securities Laws Registration. The issuance and sale of the Bonds. have not been registered under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, in reliance upon exemptions for the issuance and sale of municipal securities provided under Section 3(a)(2) of the Securities Act of 1933 and Section 3(a)(12) of the Securities Exchange Act of 1934. Stabilization of Prices. In connection with this offering, the Underwriter may overallot or effect transactions which stabilize or maintain the market price of the Bonds at a level above that which might otherwise prevail in the open market. Such stabilizing if commenced, may be discontinued at any time. The Underwriter may offer and sell the Bonds to certain dealers and others at prices, lower than the public offering prices set forth on the cover page hereof'and said public offering prices may be changed from time to time by the Underwriter. Estimates and Projections. Certain statements included or incorporated by reference in this Official. Statement constitute "forward-looking statements" within the meaning of the United States Private- Securities Litigation Reform Act of 1995, Section 21 E of the United States Securities Exchange Act of 1934, as amended, and Section 27A of the United States Securities Act of 1933, as amended. Such statements are generally identifiable by the terminology used such as "plan, "expect," "estimate;" "budget" or other similar words. THE ACHIEVEMENT OF CERTAIN 'RESULTS OR' OTHER EXPECTATIONS CONTAINED IN SUCH FORWARD-LOOKING STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS..W.HICH MAY CAUSE ACTUAL RESULTS, PERFORMANCE OR:.ACHIEV.EMENTS.DESCRIBED TO BE MATERIALLY DIFFERENT FROM ANY FUTURE'RESULTS, PERFORMANCE OR ACHIEVEMENTS EXPRESSED OR IMPLIED BY SUCH FORWARD-LOOKING STATEMENTS. THE CITY DOES NOT PLAN TO ISSUE ANY UPDATES" OR REVISIONS TO THOSE FORWARD-LOOKING STATEMENTS IF OR WHEN 'ITS EXPECTATIONS, OR EVENTS, CONDITIONS OR CIRCUMSTANCES ON WHICH SUCH STATEMENTS ARE BASED OCCUR. Website. The City maintains a website. However, the information presented on the website is not a part of this Official Statement and should not be relied upon in making an investment decision with respect to the Bonds. • A-60 • CITY OF PETALUMA CITY COUNCIL David Glass, Mayor Chris Albertson, Council Member Teresa Barrett, Council Member Mike Harris, Council Member . Mike Healy, Council Member Tiffany Renee, Council Member CITY OFFICIALS John C. Brown, City Manager Scott Brodhun, Assistant City Manager Eric W. DanIy, City Attorney Claire Cooper, CMC, City Clerk Susan Mahoney, Interim Finance Director Pamela Tuft, Interim Director, Dept. of Water Resources & Conservation • BOND RELATED SERVICES Trustee and Escrow Agent The Bank of New York Mellon Trust Company, N.A. San Francisco, California Bond and Disclosure Counsel Jones Hall, A Professional Law Corporation San Francisco, California Verification Agent Grant Thornton LLP Minneapolis, Minnesota • A-61 TABLE OF CONTENTS INTRODUCTION................................................................................................................................................ 65 REFINANCINGPLAN......................................................................................................................................... 66 Refinancing of the Bonds....... ..............:....................................................................................................67 Refinancing of the BNP Line o gf Credit......................................................................................................67 • Refinancing of thelions Line of Credit..............:::.......................................................::........:.................67 EstimatedSources and Uses of Funds ..............:..:......................................................................................68 DebtService Schedule.................................................................................................................................69 THEBONDS........................................................................................................................................................ 70 Description....................................................................................................................................................70 Redemption...:............................................................................:..................................:................................71 Transferand Exchange.............................................:........,........,................................................................72 SECURITY'FOR THE BONDS........................................................................................................................... 73 Pledge of Net Revenues; Net Revenues............................................................:.........................................73 Deposit and Transfer of Net Revenues.........................................................................................................74 Rate'Stabilization•Fund................... :.......,........,-.............................................................................: ............... 76 ReserveFund .................................................. :... ...... *'**"**"*.-..........''I...I",.............**"**..............................76 ParityDebt........................:.....:............:.:...............:.......:..:................................:..........................................77 Rate Covenant; Collection of Rates and Charges.......................................................... ,........................... 78 Insurance; Net Proceeds............................................................................................................................79 THECITY........................................................................................................................................................... 80 General.........................................................................................................................................................80 Governance.and Management....:..................................::.................................:..:........................:.............80 CityStaff...................:....:..................:........_..........................,..,..........................81 RetirementSystem................................................:.......................................................................................81 InsuranceCoverage............................................:.......................................................................................87 Audited Financial Statements....................................................................................................................87 THEWASTEWATER SYSTEM.................................:...................:.................................................................... 88 ServiceArea....:.:...:....::...:...........................................................................................................................88 WastewaterFacilities..................................................................................................................................88 StormDrains...............................................................................................................................................89 RecycledWater............................................:..................................................:...........................................90 Management....::.............................:..:...............:..........:.:..........,.............:.........:::........................................91 RegulatoryRequirements...........................................................................................................................92 HistoricafWastewaterFlow........................:..............................................................................................94 Customer.Base............................................................................................................................................95 Capital Improvement Programs...... ............................................................................................................ 97 REVENUES AND DEBT SERVICE- COVERAGE.............................................................................................. 98 WastewaterService Charges'......:...:......:....................................................................................................98 Connection& Capacity Fees....................................................................................................................101 Billing-and-Collection .......................................::.......................................................................................103 Historical Revenues,and Expenses..........................................................:..............................................104 OutstandingIndebtedness—......................................................:.............................................................105 Pro Forma Statement of'Revenues, Expenses Debt Service Coverage and Ending Cash Balances105 RISKFACTORS ........: ...................... :........... :......................................... ........................ ........ ............................ 108 Revenues; Rate Covenant..........................................................................................................................1b8 WastewaterSystem Expenses...................................................................................................................108 EnvironmentalRegulation.....................................................:.....................................................................108 Insurance.........:...............:...:..::.............:............:.......................................................................................109 Limitations on Remedies Available to: Bond Owners...................................................................................109 Parity Debt .............................................. :........................... ...................:..........:.............I.............................. .1,09 NaturalDisasters.......:................................................................................................................................110 Articles XIIIC and XIIID of the California Constitution........................................................:,.............:.........111 Lossof Tax=Exemption......................:.........................................................................................................113 SecondaryMarket for Bonds......................................................................................................................1,14 CONTINUINGDISCLOSURE.........................................:................................................................................. 114 LITIGATION...................................................................................................................................................... 114 RATINGS.......................................................................................................................................................... 115 TAXMATTERS:...............:.;:....................:........:.........................................................................-..................... 115 CERTAINLEGAL;MATTERS.................................................:........................................................................ 116 VERIFICATION OF MATHEMATICAL COMPUTATIONS...................................................................:........... 117 UNDERWRITING... :....... ................................................................. .................... ............................... _...,.,.....,......... 117 • .MISCELLANEOUS., ........................................................................................ . 1,17 A-62 APPENDIX A- AUDITED FINANCIAL STATEMENTS OF THE CITY FOR FISCAL YEAR ENDED, JUNE- 30', 2010 APPENDIX B- SUMMARY OF CERTAIN PROVISIONS OF THE INDENTURE APPENDIX.C- CITY OF PETALUMA GENERAL INFORMATION APPENDIX -D- - FORM ,OF BOND' COUNSEL OPINION APPENDIXTE,- _FORM OF CONTINUING DISCLOSURE CERTIFICATE APPFNDIX,.F - BOOK ENTRY ONLY SYSTEM APPENDIX G- CITY OF PETALUMA UTILITY RATE STUDY J/ A-63 ait 0 ... ........ ....... .... . .. .... . .. ....... OFFICIAL STATEMENT CITY OF PETALUMA 2011 WASTEWATER REVENUE REFUNDING BONDS INTRODUCTION This Official Statement, including the cover page and appendices, is provided to furnish information in connection with the sale by the City of Petaluma (the "City') of its 2011 Wastewater Revenue Refunding Bonds (the "Bonds'). This Introduction contains a ,brief summary of certain information ,contained in this Official Statement. It is not intended to be complete and is qualified by the more detailed information contained elsewhere in this Official Statement. Definitions of certain terms used in this Official Statement are set forth in "APPENDIX B — Summary of Certain Provisions of the Indenture". Authority for Issuance. The Bonds are .being issued under the provisions of Articles 10 and 11 of Part 1 of Division 2 of Title 5 of the California Government Code (the "Bond Law") and an Indenture of Trust (the "Indenture") dated as of February 1, 2011, between the City and The Bank of New York Mellon Trust Company, N.A:, San Francisco, California, as trustee (the "Trustee"). Use of Proceeds. Bond proceeds will be used to (i) refund certain outstanding obligations of the City (the "Prior Obligations") that are payable from revenues of the City's wastewater and storm drainage- system (as defined more completely in this Official Statement, the: "Wastewater System"); (ii) fund a debt service reserve fund for the Bonds (the "Reserve Fund."),*- and (iii) pay the costs of issuing. the Bonds. See "REFINANCING PLAN." Security for the Bonds. The Bonds are payable from and secured by Net Revenues (ass defined in this Official Statement) derived from the operation of the Wastewater System. See "SECURITY FOR THE BONDS." Existing Parity Debt. The Bonds are secured by a pledge of and payable from Net Revenues on a parity basis with the City's obligations under Interagency Sales Agreement (No. 05-803-550-0, as amended), dated August 25, 2006 with the State of California Water Resources Control Board (the "SRF Loan"). Under the terms of the SRF Loan, the City was authorized to borrow up to $125,964,254 at an interest rate of 2.40%, payable in 20 equal annual installments commencing 12 months after project completion. To date, the City has borrowed $113,237,879 under the SRF Loan. Additionally, $4,822,755.32 of interest has Preliminary; subject to change. 1 9 A-65 accrued on the outstanding principal balance, which has beenadded to the principal balance of the SRF Loan. The accrued interest does n"ot count against the $125,964,254 SRF Loan limit. The project has been completed and the City made the first of its 20 annual SRF Loan payments on April 9, 2010. The City may make one final draw on the SRF .Loan in an amount not to exceed $9,300,000. See "SECURITY FOR THE BONDS — Parity Debt." ,Future 'Debt. The City is authorized to incur additional obligations payable from Net Revenues on a parity basis with the Bonds and the SRF Loan. See "SECURITY FOR THE BONDS — Parity Debt." Rate Covenant. In the Indenture, the City covenants to fix, prescribe, revise and collect rates, fees and charges so .,that Net Revenues provide at` least 1.20% coverage of annual debt service on the Bonds, See "SECURITY FOR, THE. BONDS - Rate Covenant; Collection of Rates and Charges". Limited Obligation. Neither the Bonds nor the. obligation to pay principal of or interest thereon constitutes a debt, obligation or liability �of -the City, the State of California or -any of its political subdivisions Within the meaning of any'Constitutional limitation on indebtedness, or a pledge of the full faith and'`credit of the City. The Bonds are secured solely by'the pledge of Net Revenues by the City and certain°funds held under the .Indenture. The Bonds are not secured by a pledge of the taxing power of the City. Risk Factors. The purchase 'of 'the. Bonds involves certain risks. For a description of some of these risks, see "RISK. FACTORS." The City. The City is located in Sonoma County, approximately 40 -miles. north of the City of San Francisco. Situated along Highway 101, Petaluma is part of the San Francisco Bay metropolitan area and the entrance to California's renowned wine grape growing region. For information,relating .to the City that is relevant to the Bonds; see 'THE CITY." For selected demographic information about the City, see "APPENDIX C — City of Petaluma City .General Information." Ther City's audited financial statements for the fiscal year ended June 30, 2010 are attached as Appendix A. Wastewater System. The City's Wastewater, 'S.ystem is described in the section of this Official Statement entitled "THE WASTEWATER SYSTEM." Definitive Statement. All descriptions and summaries of various documents in this Official Statement do, not purport to be comprehensive or. definitive, and reference is made to each document for complete details of all terms :and conditions, All statements in 'this Official Statement are qualified in their entirety 'by reference to each document: Certain capitalized terms used in this Official Statement' and not defined in this Official Statement have the meaning given them in `APPENDIX B -Summary of Certain Provisions of the Indenture." REFINANCING PLAN The City, is issuing the Bonds for the purpose of refinancing the outstanding obligations of .the Wastewater System described' below (the `'Prior Obligations"). On the date of issuance of the Bonds (the, "'Closing Date"), the City will .deposit into an Escrow Fund established under the Indenture and held -by the Trustee (the "Escrow Fund"), an A-66 • amount sufficient to, prepay and defease the Prior Obligations. The Trustee will invest a portion of the amounts deposited in the Escrow Fund in State and Local Government Securities. All of the amounts held in the Escrow Fund will be applied to pay the redemption price of the Prior Obligations The amounts held and invested by the Trustee in the Escrow Fund are pledged solely to the payment of the Prior Obligations. Neither the funds deposited,in the Escrow Fund nor the interest on the invested funds will be available for the payment of debt service on the Bonds. See "VERIFICATION OF MATHEMATICAL COMPUTATIONS" below. Refinancing of -the 2000 Bonds In 2000, the City authorized, issued and sold $8,895,000 initial principal amount of its City of Petaluma Wastewater Revenue Bonds, Series 2000 (the "2000 Bonds") pursuant to an Indenture of Trust, dated as of May 1, 2000 (the "2000 Indenture"), by and between the City and Norwest Bank Minnesota, N.A. (the "2000 Trustee"). The 2000 Bonds are currently outstanding in the principal amount of $5,525,000. The 2000 Bonds are subject to redemption on any date at a redemption price equal to the principal amount of the 2000 Bonds to be redeemed, plus accrued interest thereon to the date of redemption, without premium. Refinancing of the BNP Line of Credit The City entered into a Revolving Credit Agreement (as amended, the "BNP Credit Agreement") with BNP Paribas ("BNP Paribas"), dated as of September 1, 2005, under which BNP Paribas advanced funds to the City under a revolving line of credit (the "BNP Line of Credit") to finance improvements to the Wastewater System. The balance owed by the City to BNP Paribas under the BNP Line of Credit is presently $9,106,975.50, plus accrued interest to the date of -repayment. The City has the right to prepay the BNP Line of Credit at any time, subject to compliance with all notice terms contained in the BNP Credit Agreement. Kefinan"c'ing oUthe Zions Line of Credit The City entered into a Revolving Credit Agreement (as amended, the ``lions Credit Agreement'') with Zions First National Bank ("Zions"), dated as of September 1, 2005, under which Zions advanced funds to the City under a revolving line of credit (the "Zions Line of Credit") to finance improvements to the Wastewater System. The balance owed by the City to Zions under the Zions Line of Credit is presently $5,639,922.15, plus accrued interest to the date of repayment. The City has the right to prepay the Zions Line of Credit at any time, subject to compliance with all notice terms contained in the Zions Credit Agreement. A-67 Estimated Sources and Uses of Funds The anticipated sources and uses of funds relating 'to, the Bonds are as follows: Sources: Amount: Principal Amount of the Bonds PlusJ(Less) Net Original Issue Premium../ (Discount) Plus Amounts, Available From Prior Obligations Total Sources.- Uses: ources. Uses: Transfer to Escrow Fund Deposit to Reserve Fund Costs of Issuance (1) Total Uses: 1) Includes Underwriter's fee, Trustee fees, Bond_ Counseland Disclosure Counsel -fees, printing costs, rating agency fees -and other related costs. 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The Bonds will be issued in denominations of $5,000 or any integral multiple thereof, so long as no Bond may have more than one maturity date. The Bonds will be- issued only as one fully 'registered Bond for each maturity, in the name of Cede & Co., .as nominee for The Depository. Trust Company, New York,,New York ("DTC"), as registered owner of all Bonds. See "APPENDIX F - Book -Entry Only System" below. Ownership may be changed only' upon the registration .books maintained by The Bank of New York Mellon Trust "Company, N.A., San Francisco,, California ,(the "Trustee") as provided. in the Indenture. See the discussion under "Transfer and Exchange" below. Interest on the Bonds is payable from the Interest Payment Date next preceding the date of authentication thereof unless: n (a) a Bond is authenticated between an Interest Payment Date. and the 15th calendar day of -the month immediately preceding such Interest_ Payment Date (each, a "Record Date"), in which event it will bear interest from such Interest Payment Date, (b) a Bond is authenticated on or before the first Record Date; in which event is interest thereon will be. payable from the date of original delivery of the Bonds, or (c) interest on any Bond is in default,as of the date of.authentication thereof, in which event interest thereon will be payable from the date to which interest has been paid in full, payable on each Interest Payment Date.. Interest on. the Bonds (including 'the final interest payment upon maturity or redemption) is payable when due by check or draft of the Trustee mailed to 4the Owner thereof at such Owner's address as it appears on the Registration. Books at the close of business on the preceding Record Date; provided that at the written request of the Owner of at least $1,000,000 aggregate principal amount of Bonds, which written request is on file with the Trustee as of any Record Date, 'interest on such Bonds, will be paid on the succeeding Interest Payment Date to such account in the United States as "specified in ,such, written request. While the,Bonds are held in .the book-entry.only system of DTC,, all such payments will be made to Cede & Co., as the registered Owner of the Bonds., The principal of the Bonds an'd any premium upon redemption, are payable in lawful money of the United States of America, upon presentation and surrender thereof at the principal corporate trust office of the Trustee. See "APPENDIX F — Book Entry Only System". • A-70 Redemption Optional Redemption. The Bonds maturing on or before May 1, 20_ are not subject to ,redemption prior to their respective stated maturities. The Bonds maturing on or after May 1, 20 are subject, to redemption prior to their respective stated maturity dates, at the option of 'the City,,: from any source of available funds, in whole or in part„ on any date on or after May 1, 20_, at a redemption price equal to the principal amount to be redeemed, plus accrued interest to the date fixed for redemption, without premium. Sinking Fund Redemption. The Bonds maturing on May 1, 20_ are subject to mandatory sinking fund .redemption in part, by lot, on May 1 of each year in accordance with the schedule set forth below. The Bonds called for mandatory sinking fund redemption will be redeemed at the principal amount to be redeemed, plus accrued but unpaid interest, without premium. Redemption Date Sinking Fund (May 1,) Amount (maturity) Notice of Redemption. Unless waived by any Owner of Bonds to be redeemed, notice of any redemption of Bonds will be given, at the expense of the. City, by the Trustee, by mailing a copy of a redemption notice by first class mail at least 30'd.ays and not more than 60 days prior to the date fixed for redemption to the Owner of the Bond or Bonds to be redeemed at the address ,shown on the Bond Registration Books; provided., that neither the failure to receive such notice nor any immaterial defect in any notice shall affect the sufficiency of the proceedings for the redemption of the Bonds. Contents of Notice. All notices of redemption will be dated and will state: (i) the redemption date, (ii) the redemption price of the Bonds being redeemed (the "Redemption Price"), (JJ) if fewer than all Outstanding Bonds are to be redeemed,, the identification -(and, in the case of partial redemption, the respective principal amounts) of the Bonds to be redeemed, (iv) that on the redemption date the Redemption Price will become due and payable with respect to each such Bond or portion thereof called for redemption, and that interest with respect thereto shall cease to accrue from and "after said date, and (v) the place or places where such Bonds are to be surrendered for payment of the Redemption Price, which places of payment may include the Office of the Trustee. A-71 Rescission of Notice of Redemption. The City has the right to rescind any notice of the optional redemption of Bonds,by written notice to. the Trustee on -or prior to the date fixed for redemption. Any "notice of optional .redemption will be cancelled. and annulled if for any reason funds will not be or are not available on the date fixed for redemption 'for the payment in full of fhe Bonds then called for redemption, and such cancellation will not constitute an Event of Default under the Indenture. The City and the Trustee have no liability to the Bond Owners or any other party related to 'or arising from such rescission of notice of redemption. The Trustee will mail notice of'such rescission, of notice of redemption in the same'man her as the original notice of redemption was sent. Deposit of Money. On or prior to any redemption date; the City will deposit with the Trustee an amount of money sufficient to pay the Redemption Price of all'the'Bonds or portions of Bonds which are to be redeenmed'on that date. Consequences, .of Notice. Notice of redemption having been given as required by the Indenture, the Bonds, or portions of Bonds so to be redeemed will, on the redemption date, become due .and payable at. the Redemption Price, and from and after :such date (unless the City defaults in the payment of :the Redemption ,Price): such Bonds or portions of Bonds will cease to have interest accrue thereon. Upon surrender;of Bonds for redemption in accordance with a redemption notice, the Bonds will be paid by the Trustee at the Redemption Price. Installments of interest due. on or prior to the redemption date will be payable as provided in the Indenture. Upon :surrender for any partial redemption of any Bond, there will �be prepared for the Owner a new Bond or Bonds of the same maturity in, the amount of the unredeemed principal, All Bonds which have been redeemed will be, cancelled and destroyed by the Trustee and will not be redelivered. Partial Redemption, of Bonds. In the event only.a portion of, any Bond is called for redemption, then upon surrender of such Bond -redeemed in part only, the. City will execute and the Trustee! will authenticate and deliver to the 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. Manner of Redemption. Whenever any Bonds are to be selected for redemption, the Trustee, will determine_, 'by lot, the numbers of ;the Bonds to be redeemed, and will notify the City of its determination. Purchase of Bonds, in lieuof Redemption: In lieu of any mandatory sinking fund redemption of any Bonds, amounts on deposit in the Redemption Account may, also be .used and withdrawn by the City at any time for the purchasel of such Bonds at public or.private sale as and when and 'at such prices (including brokerage ,and other charges -and including accrued interest) as the City may in its discretion dete_,r,.mine. The par amount of, any of' such Bonds so purchased by the City in any twele-month period ending on March 1 in any year will be credited towards and shall reduce the par amount of such Bonds required to be redeemed on the next succeeding May 1. Transfer and'Exchange So long,,as the Bonds are registered ;in the name. of Cede & Co., as nominee of DTC, transfers and exchanges of. Bonds will. be made in accordance with _DTC ,procedures: See "Appendix F" below. Any. Bond may; in accordance with its terms, be transferred, upon the registration books of the Trustee, upon surrender of such. Bond to the Trustee at its .Principal. Corporate Trust Office for cancellation, accompanied by delivery of a written instrument of A-72 transfer in a form acceptable to the Trustee, duly executed. Whenever any Bond or Bonds is surrendered for registration of transfer, the City will execute and the Trustee will authenticate and deliver a new Bond or Bonds, of like series, interest rate, maturity and principal amount of authorized denomination. The Trustee may refuse to transfer, either (a) any Bonds during the period 1.5 days prior to the date established by the Trustee for the selection of Bonds for redemption, or (b) any Bonds selected by°the Trustee for redemption. SECURITY FOR THE BONDS Pledge of Net Revenues; Net Revenues Pledge of Net Revenues. The Bonds, the SRF Loan and any future Parity Debt (as defined 'in "Parity Debt" below) are secured by a first pledge of all of the Net Revenues. In addition, the Bonds are secured by a pledge of all of the moneys in the Debt Service Fund and the -Reserve Fund, including all amounts derived from the investment of such moneys. So long as any of the Bonds are Outstanding, the Net Revenues and such moneys may not be used for any other purpose; except that out of the Net Revenues there may be apportioned such sums, for such purposes, as are expressly permitted by the Indenture. Definition of Net Revenues. Set forth below are the definitions of certain terms used in the Indenture: "Net Revenues" means, for any period, an amount equal to all of the Gross Revenues received during such period minus the amount required to pay all Operation and Maintenance Costs becoming payable during such period. "Gross Revenues" means all gross income and revenue received by the City from the ownership and/or operation of the Wastewater System, including, without limiting the generality of the foregoing: (a) all amounts levied by the City as a fee for connecting to the Wastewater System, as such fee is established from time to time under the applicable laws of the State of California, (b) all income, rents, rates, fees., capital improvement fees (including facilities capacity and pump zone fees), charges or other moneys derived from the services, facilities and commodities sold (including recycled water), furnished or supplied through the facilities of the Wastewater System, (c) the earnings on and income derived from the investment of such income, rents, rates, fees, charges or other moneys to the extent that the use of such earnings and income is limited by or under applicable law to the Wastewater System, (d) the proceeds derived by the City directly or indirectly from the sale, lease or other disposition of a part of the Wastewater System as permitted under the Indenture, ® (e) amounts transferred into the Wastewater Fund from a Rate Stabilization Fund, and A-73 (f) amounts received by the City from other public agencies ,as the proceeds • of tax revenues or other amounts payable to the City under contracts for services provided by the City to users of the Wastewater System. The term "Gross Revenues" does not include (i) customers' deposits or any other deposits subject to refund until such deposits have become the property of the City, (ii) the proceeds of any ad valorem property taxes levied to pay general obligation bond indebtedness of the City with .respect to the Wastewater System, and (iii) special assessments or special taxes levied upon real property within any improvement district for the purpose of paying special assessment bonds or special tax obligations of the City ,relating to the Wastewater System. "Wastewater System" means any and all facilities now existing or hereafter acquired or constructed which are owned, controlled .or operated by the City for the collection, treatment, disposal, recycling or reuse of wastewater, .including sewage treatment plants, intercepting and collecting sewers, outfall sewers, force mains, pumping stations, ejector stations, oxidation ponds, pipes, valves, machinery',, and all other appurtenances necessary, useful or convenient for the collection, treatment, purification, reclamation or disposal of sewage and storm drainage, and any necessary lands, rights of way and other real or personal property useful in connection therewith. "Operation and Maintenance Costs" means the reasonable and necessary costs paid or incurred by the City for maintaining and operating the Wastewater System, determined in accordance with generally accepted accounting principles, including but not limited to (a) all reasonable expenses of management and repair and' other expenses necessary to maintain • and preserve the Wastewater System in good repair and working order, and (b) all administrative costs of the City that are charged directly or apportioned to the operation of the Wastewater System, such as salaries wages and retirement benefits of employees, overhead, taxes (if any) and insurance. "Operation and Maintenance Costs" do not include (i) administrative costs of the Bonds which the City is required to pay 'hereunder, (ii) payments of .debt service on bonds, notes or other obligations issued by the City with respect to the Wastewater System, (iii) depreciation, replacement and obsolescence charges or reserves therefor,, (iv) capital expenditures made by the City with respect to the Wastewater System, (v) accrual of employee benefits which are not funded,, and (vi) amortization of intangibles or other bookkeeping entries of a similar nature. Deposit and Transfer of Net Revenues Flow of Funds. The City has previously established the Wastewater Fund, which it will continue to hold and maintain for the purposes and uses set forth in the Indenture. The City will deposit all Gross Revenues in the Wastewater Fund promptly upon receipt, :and will apply amounts in the Wastewater Fund solely for the uses and purposes set forth in the Indenture, for the uses. and purposes set forth in the. documents authorizing the issuance of Parity Debt. In addition to'transfers which are required to be made for repayment of any Parity Debt, the City will withdraw amounts on deposit in the Wastewater Fund and apply such amounts at the times and for the purposes, and in the priority, as follows: (i) Operation and Maintenance Costs. The, City will apply amounts on deposit in the Wastewater Fund to pay all Operation and Maintenance Costs when due. 0 A-74 (ii) Debt Service Fund. On or before the 31d Business Day preceding each Interest Payment Date, so long as any Bonds remain outstanding, the City will withdraw from the Wastewater Fund and pay to the Trustee for deposit into the Debt Service Fund (which the Trustee will establish and hold in trust pursuant to the Indenture) an' amount which, together with other available amounts then on deposit in the Debt Service Fund, is at least equal to the aggregate amount of principal of and interest coming due and payable on the Bonds on such Interest Payment Date. The Trustee will apply amounts in the Debt Service Fund solely for the purpose of (A) paying the interest on the Outstanding Bonds when due and payable (including accrued interest on any Bonds purchased or redeemed hereunder), and (B) paying the principal of the Bonds at the maturity thereof. Upon the payment of all Outstanding Bonds, the Trustee will transfer any ,moneys remaining in the Debt Service Fund to the City for deposit into the Wastewater Fund. (iii) Reserve Fund. If the amount on deposit in the Reserve Fund at 'any time falls below the Reserve Requirement (as' defined in "Reserve Fund" below) due to a withdrawal of funds from the Reserve Fund, or if the amount on deposit in the Reserve Fund falls below the Reserve Requirement on any annual valuation date due to a decline in the market value of Permitted Investments credited thereto as provided in the Indenture, the Trustee will promptly notify the City of such fact and the City will promptly (i) withdraw the amount of'such insufficiency from available Net Revenues on deposit in the Wastewater Fund, and (ii) transfer such amount to the Trustee for deposit in the. Reserve Fund. No deposit need be made in the Reserve Fund so long as the balance therein at least equals the Reserve Requirement. If the amount on deposit in the Reserve Fund exceeds the Reserve Requirement, the Trustee will transfer such excess amount to the Debt Service Fund. If the amounts on deposit in the Debt Service Fund on any Interest Payment Date are insufficient to pay the principal of and interest on the Bonds then coming due, the Trustee will withdraw the amount of such insufficiency from the Reserve Fund and transfer it to the Debt Service Fund. On the date on which all Bonds are retired, any moneys then on deposit in the Reserve Fund will be withdrawn by the Trustee and paid to the City. Other Uses of Wastewater Fund. The City will manage, conserve and apply moneys in the Wastewater Fund in such a manner that all deposits required to be made under the Indenture, and under any agreement, indenture of trust, resolution or other instrument authorizing the issuance. of Parity Debt ("Parity Debt Documents"; see "Parity Debt" below), will be made at the times and in the amounts so required. So long as no Event of Default has occurred and is continuing under the Indenture, the City may at any time use and apply moneys in the Wastewater Fund for any one or more of the following purposes: ® (i) the payment of any subordinate obligations or any unsecured obligations; A-75 (ii) the acquisition and construction of extensions and improvements to the • Wastewater System; (iii) the payment or retirement of any of the Bonds or of any of the Bonds or any other obligations of the City.relating to the Wastewater System; or (iv) any other lawful purpose of the City relating to the Wastewater System. Rate Stabilization Fund The City has established a fund to be held by it and administered in accordance with the Indenture, for the purpose of stabilizing the rates and charges imposed by the. City with respect to the Wastewater System. From time to time the City may deposit amounts in the Rate Stabilization Fund, from any source of legally available funds, including but. not limited to Net Revenues which are released from the pledge and lien which secures the Bonds and any Parity Debt, as the City may determine. The City may, but is not required to, withdraw from any amounts on deposit in the Rate Stabilization Fund and deposit such amounts, in the Wastewater Fund, in any Fiscal Year (as defined in the Indenture) for the purpose of paying any lawful expense of f the Wastewater System, including debt service on the Bonds due and payable in such Fiscal Year.. Amounts so transferred from the Rate Stabilization Fund to the Wastewater Fund will constitute Gross Revenues for such Fiscal. Year (except as otherwise provided in the Indenture), and will be applied. for the purposes of the Wastewater Fund. Amounts on deposit in the Rate Stabilization Fund will not.be pledged to or otherwise secure the Bonds or any Parity Debt. The City has the right at, any time to, withdraw any or all amounts on deposit in the -Rate Stabilization Fund and apply such amounts for any lawful purposes of the City relating to the Wastewater System. As of the date of this Official Statement, the Rate Stabilization Fund has a balance of $3,500,000: The projection of Net Revenues (See "REVENUES AND DEBT SERVICE COVERAGE - Pro Forma Statement of Revenues and Expenses" below) assumes future transfers from the Rate Stabilization Fund to meet the operational needs of the Wastewater System, satisfy the City's rate covenant„ provide cash flow for capital outlays and ensure sufficient financial liquidity and financial reserves within the Wastewater Fund. Reserve Fund Initial Deposit; Reserve Requirement. In' order to further secure the payment of principal of and interest on the Bonds, a portion of the Bond proceeds will be deposited into the Reserve Fund in an amount equal to the "Reserve Requirement." "Reserve Requirement" is defined in calculation, an amount equal to the lesser of (i) (ii) 10% of the original, principal amount of the Service on the Bonds. the Indenture to .mean, as .of the date of Maximum Annual Debt Service :on the Bonds; Bonds; or (iii) 125% of Average Annual Debt Uses of Money in the Reserve Fund. If the amounts on deposit in the Debt Service Fund on any .Interest Payment Date are insufficient to pay the principal of and interest on the Bonds then coming due, the Trustee is required under the Indenture to withdraw the amount of such insufficiency from the Reserve Fund and transfer it to the Debt Service Fund. On the date on which all Bonds are retired, any moneys then on deposit in the Reserve Fund will be Is A-76 • withdrawn by the Trustee and paid to the City. Moneys in the Reserve Fund may not be used to repay the SRF Loan. Replenishmentof the Reserve Fund. As described above, if at any time the amount on deposit in the Reserve Fund is less than the Reserve Requirement due to a withdrawal of funds from the Reserve Fund or otherwise, the City is required to pay from Net Revenues to the Trustee the amount of such deficiency as provided in the Indenture. Any amounts on deposit in the Reserve Fund at any time in excess of the Reserve Requirement will be transferred by the Trustee to the Reserve Fund. Parity Debt. In connection with the issuance of 'any Parity Debt (see "Parity Debt" below), the City may (but is not required to) deposit into the Reserve Fund an amount of funds required to increase the balance in the Reserve Fund and all accounts therein to an amount equal to the Reserve Requirement on the Bonds and all outstanding issues of Parity Debt which are secured by the Reserve Fund. In that event, amounts in the Reserve Fund will constitute a common reserve for the equal and proportionate security of the Bonds and all such issues of Parity Debt. Any deposit made underthis paragraph may be'made into one or more separate accounts within the Reserve Fund, all of which will be accounted for as part of a common reserve. However, if'Parity Debt is issued and no corresponding deposit is made to the Reserve Fund for that Parity Debt, 'then the Parity Debt holders will have not right to moneys in the Reserve Fund. Parity Debt Existing Parity Debt. The Bonds are secured by a pledge of and payable from Net • Revenues on a parity with the SRF Loan. To date, the City has borrowed $113,237,879 under the SRF Loan. Additionally, $4,822,755.32 of interest has accrued on the outstanding principal balance, which has been added to the principal balance of the SRF Loan. The accrued interest does not count against the $125,964,254 SRF Loan limit. The project has been completed and the, City made the first of its 20 annual SRF Loan payments on April 9, 2010. The City may make one final draw on the SRF Loan in an amount not to exceed $9,300,000. Future Parity Debt. The City may issue any bonds, notes or other obligations ("Parity Debt") payable from Net Revenues on a parity with the Bonds and the SRF Loan, provided that certain conditions are satisfied, including the following: (a) No Event of Default (or no event with respect to which notice has been given and which, once all notice of grace periods have passed, would constitute an ,Event of Default) has occurred and is continuing; and (b) The amount of Net Revenues as shown by the books of the City for the most recent completed Fiscal Year for which audited financial statements of the City are available or for any more recent consecutive 12 -month period selected by the City, in either case verified by an Accountant or a Financial Consultant or shown in the audited financial statements of the City, plus, at the option of the City, any Additional Revenues (as defined below), are at least equal to 125% of the amount of Maximum Annual Debt Service coming due and payable in the current or any future Fiscal Year with respect to the Bonds, the SRF Loan and all Parity Debt then outstanding (including the Parity Debt then proposed to be issued). • A-77 For purposes of calculating Net Revenues to demonstrate compliance with paragraph (b) above, Gross Revenues does not include connection fees, transfers from the Rate Stabilization Fund, or interest income on the Wastewater Fund received during the period for which calculations of Net Revenues are made. "Additional Revenues" is defined in the Indenture to mean, with respect to the issuance of any Parity Debt, any or all of the following amounts: (i) An allowance for Net' Revenues from any additions or improvements to or extensions of the Wastewater System to be made from the proceeds of such Parity Debt in an amount equal to the estimated additional average annual Net Revenues to be derived from such additions, improvements and extensions for the first 36 -month period in which each addition, improvement or extension. is respectively to be, in operation,, all as shown by the certificate or opinion of a Financial Consultant. (ii) An allowance for Net Revenues arising from any increase in the charges made for service from the 'Wastewater System which has been duly approved by the City Council of the City prior to the incurring of such Parity Debt, but which, during all or any part of the most recent completed Fiscal Year for which audited financial statements of the City are available, or for any more recent consecutive 12 -month period .selected by the City, was not in effect, in an amount equal to the total amount by which the Net Revenues would have been increased if such increase in charges had been in effect during the whole of such Fiscal Year or 12 -month period, all as shown by the certificate or opinion of a Financial Consultant. • The City is not obligated to fund a debt service -reserve fund for any.Parity Debt. State Loans. The City may borrow money from the State (a "State Loan") to finance improvements to the Wastewater System and, as security for its obligation to repay the State Loan, it may pledge Net Revenues of the Wastewater System on a parity with the pledge of Net Revenues to the Bonds and the SRF Loan, subject to compliance with the conditions for issuance of Parity Debt summarized above. Rate Covenant; Collection of Rates and Charges The City has made the following rate covenants in the Indenture. Gross Revenues. The City will fix, prescribe, revise and collect rates, fees and charges for the services and facilities furnished by the Wastewater System during each Fiscal Year which are at least sufficient, after. making allowances for contingencies and error in the estimates, to yield Gross Revenues sufficient to pay the following amounts in the following order of priority: (a) All Operation and Maintenance Costs estimated by the City to become due and payable in such Fiscal Year; (b) The principal of and interest on the Bonds and any Parity Debt as they become due and payable during such Fiscal Year, without preference or priority, except to the extent such interest is payable from proceeds of • Parity Debt deposited for such purpose; A-78 •' (c)' All amounts, if any; required to restore the balance in the Reserve Fund to the full amount of the Reserve Requirement; and • (d) All payments required to meet any other obligations of the City which are charges, liens, encumbrances upon, or which are otherwise payable from, the Gross Revenues or the Net Revenues during such Fiscal Year. Net Revenues. The City is required to fix, prescribe, revise and collect rates, fees and charges :for the services and facilities furnished by the Wastewater System during each Fiscal Year which are sufficient to yield Net Revenues which are at least equal to 120% of the amount described in the preceding clause (b) for such Fiscal Year. For purposes of this covenant, the amount of Net Revenues for a Fiscal Year will be computed on the basis that (a) any transfers into the Wastewater Fund in such Fiscal Year from the Rate Stabilization Fund are included in the calculation of Net Revenues, (b) any deposits into the Rate Stabilization Fund in such Fiscal Year are deducted from the amount of Net Revenues to the extent such deposits are made from Gross Revenues received by the City during that Fiscal Year and (c) Gross Revenues will not include connection fees or interest income expected to be received in such Fiscal Year. Insurance; Net Proceeds The City will at all times maintain with responsible insurers all such insurance on the Wastewater System as is customarily maintained with respect to works and properties of like character against accident to, loss of or damage to the Wastewater System. If any useful part of the Wastewater :System is damaged or destroyed, such part must be restored to usable condition. All amounts collected from insurance against accident to or destruction of any portion of the Wastewater 'System will be used to repair or rebuild such damaged or destroyed portion of. the Wastewater System, and to the extent not so applied, will be applied on a pro rata basis to redeem the Bonds and any Parity Debt in accordance with this Indenture and the related Parity Debt Documents. The City will also maintain, with responsible insurers, worker's compensation insurance and insurance against public liability and property damage to the extent reasonably necessary to protect the City, the Trustee and the Owners of the Bonds. All amounts collected from insurance against accident to or destruction of any portion of the Wastewater System constitute Gross Revenues and must be used to repair, rebuild or replace .such damaged or destroyed portion of the Wastewater System or otherwise as permitted by the Indenture. A-79 THE CITY General The City is located in Sonoma County, approximately 40 miles north of the City of San Francisco.,Situated along Highway 101., Petaluma is part of the San Francisco Bay metropolitan area and the entrance to California's renowned wine grape growing region. For selected demographic information .about the City, see "APPENDIX C — City of Petaluma. City General Information." Governance and Management General. The City of Petaluma was incorporated in 1858. Its first charter was granted by the State in 1947, and it continues to operate as a charter city. Municipal operations are conducted under the Council -Manager form of ,government. The seven Council .Members are elected at large for four-year, staggered terms. The Mayor presides over all Council meetings. The City manager is responsible for the operation of all municipal functions. City Council. The current City Council. members and the expiration dates -of their terms of office are set forth .below. Mayor and Citv Council Members David Glass, Mayor Chris Albertson, Council Member Teresa Barrett, Council Member Mike Harris, Council Member Mike Nealy-, Council Member Tiffany Renee, Council Member Expiration of Term December 31, 2014 December 31, 2014 December 31, 2014 December 31, 2014 December 31, 2012 December 31, 2012 A-80 • • • • City Staff The City currently employs approximately 301.5 full-time funded individuals, of whom 31.45 full-time equivalents are attributed to the Wastewater System. Employees of the City belong to either of two labor unions or any of three associations or they are unrepresented. Department directors, including directors of the Wastewater System, are unrepresented.. The current status of the City's employment agreements is set forth below: Organization Status Unit 1 - Confidential, Unit 2 -Maintenance & Memorandum of Understanding for Units 1, 2 and Unit 3 — Clerical/Technical, represented by 3 effective through June 30, 2011. American Federation of State, County and Municipal Employees Unit 4 - Professional, Unit 9 - Mid -Managers & Memorandum of Understanding for Units 4, 9 and Unit 11 — Confidential, represented by the 11 expired on June 30, 2010. Petaluma Professional and Mid -Managers Association Unit 6 — Police, represented by the Peace Memorandum of Understanding for Unit 6 expired Officers' Association of Petaluma on June 30, 2010. • Unit 7 — Fire, represented by the International Memorandum of Understanding for Unit 7 expired Association of Firefighters Local, 1415 on June 30, 2009. • Unit 10 — Petaluma Public Safety Managers, Memorandum of Understanding for Unit 10 represented by The Petaluma Public Safety expired on June 30, 2009. Mid -Managers Association The City of Petaluma and the Petaluma Professional and Mid -Manager Association, the Peace Officers' Association of Petaluma, the International Association of Firefighters Local, 1415; and the Petaluma Public Safety Mid -Management Association are aware that the applicable Memoranda of Understanding (the "MOUs") have expired. The parties will soon commence negotiatidns and continue to work, in good faith, under the terms and conditions of the existing M.OUs. [confirm: The City does not expect the negotiation of the MOUs to materially affect the costs of operating the Wastewater System.] The Wastewater System is responsible for paying a portion of the City's personnel costs. The City's Fiscal Year 2009-10 personnel costs totaled $38,660,400.00, of which $3,235,300.00 (or 8%) was allocated to the Wastewater System. Retirement System Allocation to the Wastewater System. The City allocates approximately 8% of retirement costs to the Wastewater System. A-81 Pension Plans. The City offers retirement benefits to all employees. There are two separate plans: California Public Emplovees Retirement Svstem: offered to employees who work in excess of 1,000 hours per, year. Public Aqencv Retirement Svstem: offered to employees who work less than 1,000 hours per year. California Public Employees Retirement System. The City contributes to the California Public Employees Retirement System ("PERS"), an agent multiple -employer public employee defined benefit pension plan. PERS provides retirement and disability benefits, annual cost -of -living adjustments, and death benefits to plan members and beneficiaries. PERS acts as a common investment and administrative agent for participating public entities within the State of California.. Benefit provisions and all other requirements are established by State statute and City ordinance. Fundina Policv. Active plan members are required by State statute to contribute .7% for miscellaneous and 9% for safety employees of their annual covered salary. The City employer makes the contributions required of City employees on ,their behalf and for their account, which amounted to $2,003,578 for the year ended June 30, 2010. The City deducts employee contributions from its payrolls The City employer was rrequired to contribute for Fiscal Year 2009-10 at an actuarially determined rate of 11.165% and 28.060% of annual covered payroll for miscellaneous and safety employees, respectively. Annual Pension Cost. For Fiscal Year 2009=10, the City's annual pension cost of $4,688,870 for PERS was equal to the City's required and actual contributions. The required contribution was determined as part of the June 30, 2007 actuarial valuation using the entry age normal actuarial cost method. The actuarial assumptions included (a) 7.75% investment rate of return (net of administrative expenses), (b) projected' annual salary increases ranging from 3.25% to 14.45% for miscellaneous employees and from 3.25% to 13.1,5%0. for safety employees depending on age, service, and type of employment, and (c) 3.25% per year cost - of -living adjustments. Both (a) and (b) included an inflation component :of 3.00%. The actuarial value of PERS assets was determined using techniques that smooth the effects of short-term volatility in the market value of investments over a three-year period,. Initial unfunded liabilities are amortized over a closed period that depends on the plan's date of entry into PERS. Subsequent plan amendments are amortized as a level amortized over a 30 year rolling period, which results in an amortization of about 6% of unamortized gains and losses each year. If the plan's accrued liability exceeds the actuarial value of plan assets, then the amortization payment on the total unfunded liability may not be lower than the payment calculated over a 30 years for miscellaneous employees and 30 years for safety employees. THREE-YEAR TREND INFORMATION FOR PERS Percentage of APC Net Pension Contributed Obligation 100% 0 1.00% 0 100% 0 A-82 • • • Annual Pension Cost FY (APC) 6/30/08 $5,321,234 6/30/09 5,315,811 6/30/10 4,688, 870 Percentage of APC Net Pension Contributed Obligation 100% 0 1.00% 0 100% 0 A-82 • • • Funded Status. The following table sets for the funded status of the City's PERS plans for the past three fiscal years for which information is available. (Unfunded) Overfunded *Latest information available. Public Agency .Retirement System. The City contributes to a Public Agency Retirement System/Alternative Retirement System ("PARS"), a public agency multiple -employer defined contribution pension trust. PARS provides benefits at the time of retirement, total disability or death. PARS acts as a common investment and administrative agent for participating public agencies. Benefit provisions and all other requirements are established by federal statute and city resolutions. Contributions. Participants are required to contribute 7% of their annual salary. The City is required to contribute 0.5% of the annual salary of covered participants. The contribution requirements were established on the Adoption Agreement. For Fiscal Year ended June 30, 2010, the City contributed $976 and the covered employees contributed $13,661, the total of which met the requirements of the plan. Other Post -Employment Benefits ("OPEBs"). The City of Petaluma Retiree Healthcare Plan (Plan) is a -single-employer defined benefit healthcare plan administered by the City. The plan provides healthcare benefits to eligible retirees and their dependents. Benefit provisions are established and may be amended through agreements and memorandums of understanding between the City, its management employees, and the unions representing City employees. The City provides eligible employees who retire with a monthly retiree allowance, currently provided through the California Public Employees' Retirement System (PERS) Health Benefits Program under the Public Employees' Medical and Hospital Care Act ("PEMHCA"). The monthly benefit allowance, varies by bargaining unit labor contract. The benefit allowances have been long-standing and previously ratified by labor and the City Council through the negotiation process. The dollar amount varies by bargaining units and by years of service. The range of the benefit is $75 to $156.83 per month. Currently the City's minimum benefit allowance is $75 per month. That minimum allowance increase by $5 per year until it reaches $100 per month in 2012 for Police members or 2014 for non -Police members. The City's • employer contribution for each employee shall be the minimum required by PEMHCA. The City A-83 Actuarial Underfunded Liability as Actuarial Entry Age (Overfunded) Percentage Valuatio Actual Actuarial Actuarial Funde of n Asset Accrued Accrued d Covered Covered Date* Value Liability Liability Ratio Payroll Payroll Miscellaneous 6/30/07 $56,469,750 $62,630,507 $6,160,757 90.2 $14,415,740 42.7% Employees Group 6/30/08 61,951,599 68,273,578 6,321,979 90.7 15,994,559 39.5 6/30/09 65,534,272 74,583,463 9;049,191 87.9 13,821,245 65.5 Safety 6/30/07 83,733,721 103;858,166 20,124,445 80.6 11,620,163 173.2 +Employees Group 6/30/08 90,649,420 112,806,649 22,157,229 80.4 12,462,757 177.8 6/30/09 95,254,855 123,598,289 28,343,434 77.1 11,672,603 242.8 *Latest information available. Public Agency .Retirement System. The City contributes to a Public Agency Retirement System/Alternative Retirement System ("PARS"), a public agency multiple -employer defined contribution pension trust. PARS provides benefits at the time of retirement, total disability or death. PARS acts as a common investment and administrative agent for participating public agencies. Benefit provisions and all other requirements are established by federal statute and city resolutions. Contributions. Participants are required to contribute 7% of their annual salary. The City is required to contribute 0.5% of the annual salary of covered participants. The contribution requirements were established on the Adoption Agreement. For Fiscal Year ended June 30, 2010, the City contributed $976 and the covered employees contributed $13,661, the total of which met the requirements of the plan. Other Post -Employment Benefits ("OPEBs"). The City of Petaluma Retiree Healthcare Plan (Plan) is a -single-employer defined benefit healthcare plan administered by the City. The plan provides healthcare benefits to eligible retirees and their dependents. Benefit provisions are established and may be amended through agreements and memorandums of understanding between the City, its management employees, and the unions representing City employees. The City provides eligible employees who retire with a monthly retiree allowance, currently provided through the California Public Employees' Retirement System (PERS) Health Benefits Program under the Public Employees' Medical and Hospital Care Act ("PEMHCA"). The monthly benefit allowance, varies by bargaining unit labor contract. The benefit allowances have been long-standing and previously ratified by labor and the City Council through the negotiation process. The dollar amount varies by bargaining units and by years of service. The range of the benefit is $75 to $156.83 per month. Currently the City's minimum benefit allowance is $75 per month. That minimum allowance increase by $5 per year until it reaches $100 per month in 2012 for Police members or 2014 for non -Police members. The City's • employer contribution for each employee shall be the minimum required by PEMHCA. The City A-83 pays this contribution directly to PERS. No dental, vision, or life insurance benefits are provided; except to certain retired Council Members, as described "below. In the 1990s, the City adopted various resolutions relating to a health benefit allowance for Council Members. There are seven former Council Members receiving a benefit under the resolution ranging from .$100 to $193 per month. In 1995, State law ,prohibited newly elected Council Members from receiving the benefit unless on a self -pay basis. The exception would be if a Council Member could retire into PERS and was covered under the PEMHCA. Eligibilitv..Employees are eligible for retiree health benefits if they retire from the City on or after age 50 and 5 years of PERS service or disability. The benefits .are available only to employees who ,retire from the City. Membership of the plan consisted of the following at June 30, 2006: Safety Miscellaneous Eligible active employees 125 193 Enrolled eligibleretirees 43 52 Fundinq Policv. There is 'no statutory requirement for the City to pre -fund its OPEB obligation. The City has currently chosen to pay plan benefits on'a pay-as-you-go basis. There are no employee contributions. The City fixed dollar benefit cannot be less than the PEMHCA minimum (unequal method) for PEMHCA retirees. For Fiscal Year 2009-10, the City paid $1'65,471 for retiree healthcare plan post employment benefits. This consisted of $,86,198 in direct cash payments to, individuals and a $79,273 payment to PERS for the ' City's health premium contributions under PEMHCA. PEMHCA is, for most employers, a community rated plan and is not required to value implied • subsidies for retirees under Governmental Accounting Standard Board Statement No. 45 ("GASB 45"). The Annual Required Contribution ("ARC") is an amount actuarially determined in accordance with the parameters of GASB 45. The ARC is equal to the normal cost plus a 30 - year amortization of the unfunded actuarial liability. OPEB Cost and Net OPEB Obligations. The City's annual OPEB cost (expense) is calculated based on the ARC of the employer, an amount actuarially determined in accordance with the parameters of GASB 45. The ARC represents a level of funding that, if paid on an ongoing basis, .is projected to cover the normal cost; each year and :amortize any unfunded actuarial liabilities (or funding excess) not to exceed thirty years. The following table, based on the City's actuarial valuation as of June 30, 2009, shows the components of the City's annual OPEB cost for the year, the amount actually contributed to the plan, and changes in the City's Net OPEB obligation:, Beginning Ending Balance Annual Balance FY Net OPEB Required Actual Net.OPEB Ended Obligation Contributions Contributions Obligation 2009-2010 $641,737 $833,000 $(164,471) $1,290,266 A-84 • The City's annual OPEB cost, the percentage of annual OPEB cost contributed to the plan, and the net OPEB obligation for Fiscal Year 2009-10 are as follows: Percentage of Annual OPEB FY Annual Cost Net OPEB Ended OPEB Contributed Obligation June 30, 2009 $833,000 54.9% $1,1290,266 Most Recent Actuarial Study - Schedule of Fundinq Proqress. The following table identifies the funded status of the City's OPEB plan. (Unfunded) Overfunded Actuarial (Unfunded) Liability as Entry Age Overfunded Percentage Actuarial Actuarial Actuarial Actuarial of Valuation Asset Accrued Accrued Funded Covered Covered Date Value Liability Liability Ratio Payroll Payroll 6/30/2008 - $7,002,000 . $(7,002,000) 0.00% $23,627,000 (29.64)% • Actuarial valuations of an ongoing plan involves estimates of the value of expected benefit payments and assumptions about the probability of occurrences of events far into the future. Examples include assumptions about future employment, mortality, and the healthcare .cost, trend, Amounts determined regarding the funded status of the plan and the annual required contributions of the employer are subject to continual revision as actual results are compared with past expectations and new estimates are made about the future. The schedule of funding progress, presented as required supplementary information following the notes to the financial statements, presents multi-year trend information about whether the actuarial value of plan assets is increasing or decreasing over time relative to the actuarial accrued liabilities for benefits. Actuarial Methods and Assumptions. Projections of benefits for financial reporting purposes are based on the substantive plan (the plan as understood by the employer and the plan :members) and include the types of benefits provided at the time of each valuation and the historical pattern of sharing of benefit costs between the employer and plan members to that point. The actuarial methods and assumptions used are consistent with the long-term perspective of the calculations. In the June 30, 2008 actuarial valuation, the entry age normal actuarial cost method was used. The actuarial assumptions included a 4.50% discount rate, a 3% general inflation assumption, an annual aggregate payroll increase rate of 3.25%, plus merit increases per Ca1PERS 1997-2002 experience study. PEMHCA minimum trend rate is 9.7% for each year through 2016 and decreases to 4.5% for 2017 and beyond, the benefit cap has a 0% increase, not less than PEMHCA minimum. PEMHCA is a community rated plan not required to value implied subsidies to retirees and the plan is not funded in a segregated restricted trust. The A-85 UAAL is being amortized as a level percentage of projected payroll over 30 years on a closed • basis, starting, June 30, 2008. Deferred Compensation Plan. The City offers its employees a deferred compensation plan (Plan) created: in accordance with California �Governmeht Code Section 53212 and Internal Revenue Code of 1986, Section 457. The Plan, available to all City employees, permits them to defer a portion of their salary until future years. The deferred compensation is not available to employees until termination, retirement, death or an unforeseeable emergency. In March, 1997', the City amended the Plan's documents to comply with a new federal law. The Plan's assets have been placed into a trust.for the exclusive benefit of the employees and their beneficiaries. The City is the administrator of the Plan but the assets are held by an independent investment manager and, therefore, are not recorded as assets of the City. Each employee directs the investment of the assets in his or her account. City Investments The City invests funds of the Wastewater System pursuant to its 2009-2010 / 2010-2011 Statement of Investment Policy (the "Investment Policy") and as part of its investment portfolio, which are described below. City Investment Policy. Pursuant to the Investment Policy,, the City will manage all funds under the control of the City Treasurer in a prudent manner, consistent with the following objectives: compliance with all laws of the State. of California pertaining to the investment of public funds; safeguarding the principal of funds under its control, meeting the City's daily cash flow requirements and achieving a reasonable rate of return with the maximum security. • Pursuant to the Investment Policy, .City funds may generally be, invested in those investments permitted by California Government Code Sections 53601 et. seq., and 53635, subject to further percentage, rating requirement, term remaining to maturity and other qualifications set forth in the Investment Policy. The Investment Policy contains additional amount and maturity limits. Investment Portfolio. According to the City Treasurer's most recent report for the quarter ended June 30, 2.010, the City has invested funds as set, forth in the table below. As of June 30, 2010, the cash market value of the City's investment portfolio ($101,014,604) was 100.12% of the investment portfolio's book value ($100,897,905). The weighted annual yield of the portfolio as of June 30, 2010 was [3.26]% (based on a 360 day year equivalent). The City's practice is to hold most securities to maturity. [update with September 30, 2010 information] :. 0 • Table'1 CITY OF'PETALUMA Investment Portfolio Summary (as of June 30, 2010) Tvve of'.lnvestment Fair Value* IVSD) Investments Managed by City Treasurer 38.10 Assessment District Bonds $741,602 Local Agency Investment Funds 38,456,719 CAMP Pool (CA Asset Mgmt. Program) '5,189,537' PFM Investments Securities 24;873,361 Subtotal 69,261,220 Par Value (Cost) Percent of Total USD Portfolio (%) $741,602 0.74% 38,444,980 38.10 5,189,537 5.14 24,768,402 24.55: 69,144;522 68.53 Investments Managed by Fiscal Agents CAMP Debt Issue Accounts 19,144,131 19,144,131 18:97 Trustee Money Market Accounts 29,766 29,766 0.03 Subtotal 19,173,896 19,173,896 19.00 Checking Accounts 12,579,488 12,579,488 12.47 TOTAL, 101,014,604 100,897,905 100.00 * Fair values furnishedby the State .of California, Local Agency, Investments and California Asset Management Program, and.are adjusted annually. Source.: City of Petaluma. Insurance Coverage The City currently maintains liability, workers' compensation and property insurance for the Wastewater System through the California Sanitation Risk Management Authority,, a joint; powers °authorities composed of a number of California public agencies, including the City. The Cityalso rnaintains excess liability coverage from a private insurer. The City does not commit in the Indenture to maintain its current level of insurance through the final maturity date of the Bonds. Audited Financial Statements Caporicci & Larson, Inc., a subsidiary of Marcum LLP (the "Auditor"), audited the financial statements of the City for the Fiscal Year ended June 30, 2010. The Auditor's examination was made in •accordance with generally accepted auditing standards and Governmental Auditing Standards, issued by the Comptroller General of the United States. See "APPENDIX A — Audited Financial Statements of the City for fiscal year Ended June 30, 2010." A-87 The .City has not requested nor did the City obtain permission from the,QudiItor- to include the audited financial statements as an, appendix to this Official' Statement, Accordingly, the Auditor has not performed any post -audit review of the financial `condition or operations of the City. THE'WASTEWATER. SYSTEM Service Area The Wastewater System provides 24-hour collection, treatment, disposal and reuse of domestic, commercial and industrial wastewater generated by the City and a service area within the unincorporated Sonoma County community(,of Penngrove. As of June 30, 2010, there were approximately 18,300 accounts within the borders of the City and approximately, 500 accounts within the community of Penngrove.. The Wastewater System includes the City's storm drain system and its recycled water system. The: following table shows the ten-year history 'of wastewater accounts within both, the City and the Penn grove service area. Source: City of Petaluma. Wastewater Facilities Collection System. The wastewater collection system .is the underground piping system :that transports raw wastewater from businesses and. residences to the Treatment Plant described below. The wastewater collection system 'consists !of approximately 224 ;miles of public sewer pipelines ranging in diameter, from 6 to 48 inches. The collection system also • A-88 Ta_ ble 2 CITY OF PETALUMA WASTEWATER SYSTEM Total Number of Wastewater Accounts Fiscal Years 2001-02 through 2010-11 Petaluma Penngrove Accounts Accounts Tota6Accounts FY 01-02 22,057 .468 .22,525 FY 02-03 22,156 468 22,624 FY 03-04 22,404 470 ,22,874 FY 04-05 22,559 473 23,032 FY 05-06 22,763 491 23';254 FY 06-07 22,964 510 23,474. FY 07-08 23;002 510 23,,512 FY 08-09 23,038 512 2:3,550 FY 09-10 23,0.76 512 23,588 FY 10-11 23,114 614 23,628 Source: City of Petaluma. Wastewater Facilities Collection System. The wastewater collection system .is the underground piping system :that transports raw wastewater from businesses and. residences to the Treatment Plant described below. The wastewater collection system 'consists !of approximately 224 ;miles of public sewer pipelines ranging in diameter, from 6 to 48 inches. The collection system also • A-88 includes four primary pump stations: C Street, Wilmington, Payran, and Copeland Street. These pump stations have alarms for notification of system failure and provision of emergency power. Treatment Plant. The collection system conveys wastewater to the City's 'Ellis Creek Wastewater Recycling Facility (the "Treatment Plant"), located adjacent to Lakeville Highway, where it provides .disinfected secondary treatment. Construction of the Treatment Plant was completed in 2009, at which time it replaced the City's Hopper Street Wastewater Treatment Plant, which was originally constructed in 1937 and had reached the end of its useful life. The Treatment Plant has a treatment capacity of 6.7 million gallons per day (average dry weather flow) and treats approximately 5 million gallons of wastewater each day and 2,200 million, gallons annually. Treatment Plant influent is treated by, screening and grit removal, secondary treatment using activated sludge, and secondary clarification. After secondary clarification, some of the water is pumped to the tertiary treatment system (flocculation, filtration, and UV disinfection), and subsequently recycled. Remaining flows are directed through a series of oxidation ponds (162 acres) and constructed wetlands (32 acres) for additional biological treatment. After flowing through the treatment wetlands, the wastewater is chlorinated and then flows to either polishing wetlands (31 acres)' or a chlorine contact 'chamber. Wastewater from the 'polishing wetlands is discharged' to the Petaluma River, or sent to the chlorine contact chamber. Wastewater from the chlorine contact chamber is dechlorinated and discharged to the Petaluma River, or recycled for irrigation as described below. Discharge of Treated Wastewater. In the wintertime, treated wastewater is released into the Petaluma River. During the summer, the recycled water is introduced into the City's recycled water system (see "Recycled Water" below). Oxidation Ponds. An oxidation pond system was constructed in the 1970s. The oxidation ponds are on a site located outside the urban area on Lakeville Highway, approximately 2.5 miles southeast of the existing plant. The pond system consists of one aerated lagoon, followed by an aerated pond and nine oxidation ponds, covering an area of approximately 1,65 acres. The aerated lagoon has three aerators, and Pond 1 is equipped with seven,aerators. The ponds .are approximately 10 feet deep with 2 feet of freeboard and a total capacity of approximately 500 million gallons or 1,500 acre-feet. In addition to providing wastewater treatment, the oxidation ponds also provide storage, which in conjunction with the recycling program, permits the City to avoid Petaluma River discharge from May'1 through'October 20. The available capacity of the ponds is approximately 250 million, gallons or 800 acre-feet. Biosolid Disposal. During normal operations, the Treatment Plant stabilizes and dewaters . biosolids using the following treatment processes: headworks equipment for screening and grit removal; extended -aeration oxidation ditch process; and a two-stage anaerobic digestion process. Digested sludge is stored in a biosolids storage tank prior to thickening by a rotary screen thickener, dewatered by a low -speed rotary screw press, and transferred by a progressive cavity -pump to distribution piping with automatic flow control valves into a 'haul trailer pre -positioned in a loading bay adjacent the screw press building. Storm Drains • The City clears/cleans and maintains a storm water drainage system that includes approximately 780 storm drain catch basins and related pipeline, culverts and open channels (ditches). A properly -maintained storm water system benefits .the sanitary sewer system by preventing storm water from entering_the sewer collection system. The storm .drain :system includes maintenance and operation of the City's flood alert system andstorm water pump stations. The system consists of rainsensors a, located within the Petaluma River watershed ;area and stations along the. river that monitor the river's water level. Because of increasing infrastructure maintenance needsand regulatory requirements applicable to storm drain systems, the. scope of the City's storm drain system is expected to increase. City storm 'drain pipes drain into the various, creeks in the City, the Petaluma River and, eventually, into ,San Pablo Bay. Fiscal Year,201041 will be the first year Of'the- Municipal Regional Permit (the "MRP"). The City is not ;subject to, these regulations; and, as; a result, does not expect .the MRP to materially affect. the costs of operating the Wastewater System. Recycled Water In 1984.; the City initiated an extensive ,water recycling program in, response.to the San Francisco 'Bay Regional Water Quality Control Board's order, prohibiting the City from introducing treated effluent into the Petaluma River from May 1 through October 20. The program included irrigation of 550 acres of agricultural land. Each participating landowner successfully converted their lands from dry native rangeland to irrigated permanent. pasture, primarily through cultivation and re -seeding of the lands. Landowners have installed fencing and cross -fencing to segregate fields and.manage livestock. The fencing prevents livestock and machinery from entering recently irrigatedfields before they dry. Since then,. the City has added two golf courses and a vineyard. The City plans in the • future to. use recycled water to irrigate City parks, schools ,and fields that are currently irrigated with potable water. This will save,;potable water for its: highest and best uses,. supplement the City's water�supply, and support the City's need to comply with regulatory requirements. The City recycled. approximately 780 million gallons (2,400 acre-feet)' of its wastewater in 2009. This represents approximately 48% of the wastewater it treated.. Most of this recycled water was secondary4reated and was, used for irrigation (522 milliongallons for 782 acres of pastures, 194 imillion gallons for 220 acres at golf courses, .and 1.25 million gallons for 47 acres of vineyards). In addition -to the secondary treated recycled water, the City installed in 2009 a tertiary treatment system capable, of ,treating 5.3 million gallons per day ("MGD°'). The City anticipates needing approximately 460 million gallons of tertiary -treated water annually by 2025 to offset potable water demand. The City also anticipates needing another 20.0 MGD to provide uninterrupted supply, during drought years. While., numerous 'potential customers have. requested recycled water,, the City does not currently have a storage and distribution -system to deliver 'it to them. At this..tirr e, the Treatment Plant is the': sole user of tertiary -treated water. The Treatment; Plant used 66 million gallons in 2009 for fire ,suppression systems, toilet flushing, wash water, pump seal water, and .other on-site uses. The .City proposes to construct a-2.2 million gallon; reservoir to -'store tertiary treated water and 7;600 linear feet of 20" pipeline -to fill the reservoir. Once this project is completed, the City. will begin to develop projects to deliver water to 55 parks, playing fields; schools, and golf courses. However, funding for construction has not yet been acquired. • •1 ® Management Brief biographies of key members of City staff responsible for management of the Wastewater System are set forth below: John C. Brown. Mr. Brown has held increasingly responsible management positions in local government through the past 27 years 'and has served as chief executive in a California county and cities in California and Oregon through the past 16 years. Mr. Brown has served as the City's Manager since 2008. Prior' to joining the City, Mr. Brown served as a City Administrator for the City of Woodburn, Oregon from 1998 to 2008. From 1995 to 1998, Mr. Brown was the City Manager of the City of Jackson, California. from 1987 to 1995, Mr. Brown served the County of Yuba,California in the positions of Administrative Analyst III, Assistant County Administrator, and County Administrator. Mr: Brown served as a Financial Analyst 'I and II, and 'as a Management Analyst ll for the City of Oxnard, California from 1983 to 1987. Mr. Brown holds a M.P.A. from California State University — Northridge, graduating with distinction. and holds a B.A. in political science from the University of California, Santa Barbara. Susan Mahoney. Ms. Mahoney has held various positions in local government finance through the past 29 years. Ms. Mahoney has served as a financial consultant for the City of Hanford, California and the North Tahoe Public Utility District since 2010. From 2007 to 2010, Ms. Mahoney was the Management Services Director of the City of Indio, California. From 1998 to 2007„ Ms. Mahoney served as 'the Finance Director of the City of Citrus Heights, California. From 1994 to 1998, Ms. Mahoney served as the Finance Director of the City of Lincoln, California. From 1991 to 1994, Ms. Mahoney was an Accountant for the City of Folsom, California From 1982 to '1991, Ms. Mahoney was- the Controller for the Arcade Water District of the City of Sacramento, California. Ms. Mahoney holds a B.S. in Business Administration and Accoranting from and a MRA. from Pamela Tuft.. `Ms. Tuft has held various planning and management positions in local government through the past'35 years. Ms. Tuft has served part-time as a Project Manager for the City's Water Resources- and Conservation Department since 2008. Ms. Tuft served as the CitYs Director of General Plan Administration from 1'999 to 2008. From 1991 to 1999, Ms. Tuft Was the City's Planning .Director. From 1984 to 1991, M's. Tuft was the City's Principal Planner. Ms.. Tuft served as a City Planner ,for the City of Lakeport, California from 1973' to 1984. Ms. Tuft completed her advanced studies in city, regional and urban planning at the University of California, Berkeley. Remleh. Scherzinger. 'Mr. Scherzinger has held various management positions in, the water -and wastewater -industry through the past 12 years. Mr. Scherzinger has served as the Engineering manager of the City's Water Resources and Conservation Department since 2008'. Prior to joining the City, Mr. Scherzinger served as a Water Agency Engineer for the Sonoma County Water Agency from 2000 to 2008. Prior to working for Sonoma County, Mr. Scherzinger 'was an Engineering Technician with the Metropolitan Water District of Southern California from 1,998 to `2000. From 1989 to 1995, Mr. Scherzinger was a Submarine Sonar Technician position in the United States Navy. Mr. Scherzinger anticipates completion of a M.B.A. from Sonoma State University in the Spring of 2011 and holds a B.S. in civil engineering from California Polytechnic State University — Pomona. Mr. Scherzinger further holds the following professional certifications: Professional` Engineer CA (66835), Distribution Water Operator ll and Water Treatment Operator 11. Steve Simmons. Mr. Simmons has held various positions overseeing the operation and maintenance of the City's water and sewer collection and distribution systems through the past A-91 35 years. Mr. Simmons has ;served as the City's Utility Manager, since 1998. Previously, ,Mr: • Simmons served as the City's Public Works Superintendent from 19.92 to 1998 .and he served as the City's Water Superintendent from 1988 to 1992. Mr. Simmons was the Water Supervisor for the City from 1983 to 1988 and a, Head Plant Operator from 1979 to 1983.. Mr. Simmons ,holds a B.X in management. from Sonoma State University. Mr. Simmons further 'holds the following professional certifications: Water rTreatment Operator V, Water Distribution Operator V, Collection System IV and completion of the Pipeline Assessment and Certification Program - PACP. Lena Cox. Ms. Cox. has held, various management, positions, in local government and the private sector through the past 12 years. Ms. Cox, has. .served the City as Environmental Services Supervisor since 2009. Prior.to. joining the.,City, Ms. Cox served as a. Water Quality Supervisor for the City of Eureka, California from .2003' to 2009. Ms. Cox was .a Water Quality Technician with the City of Eureka, California from 2000 to.2003. From 1$08.to 2000; Ms. Cox was a Quality Assurance. Officer for North Coast Laboratories, Ltd. of Arcafa, California. Ms. Cox holds a B.S. in :interdisciplinary studies 'combining, botany, soil science ,and :environmental ethics from Humboldt State University of California. Ms. Cox further holds the following professional certifications: Laboratory: Analyst; IV and,'Biosolids .Land Application Management Matthew Pierce. Mr. Pierce has held various positions in the wastewater industry through the past 14 years, including positions managing treatment ,facilities- through the past four years. Mr. Pierce has served' the City as Operations Supervisor since: 2009. Prior to joining the City, Mr. Pierce served as Operations Supervisor for the Las Gallinas Valley Sanitary District in San Rafael, California. from 2006 to 2009. From 2005 to 2006, Mr. Pierce was an Operator I I I with Veolia North America of Richmond;. California. From 1997 to, 2005, .Mr. Pierce was a Laboratory Analyst and Facility Operator for the. City of San. Luis -Obispo, California. From 1996 to 1'997, Mr. Pierce was a 'Laboratory Technician for the ,City of Eureka, California. From 1995 to 1,996, 'Mr. Pierce was an Intern Laboratory Analyst for the' City of San Luis Obispo, California. Mr. Pierce holds a B.A. ;in biological sciences. from the University of California; Santa Barbara. Mr. Pierce further holds the following professional certifications: Wastewater Treatment Plant Operator V, Laboratory Analyst IV and membership in the California_ Water,Environment Association. Regulatory Requirements Recycled Water. The City's recycled water operations are subject- to regulation under Section 402 of the federal Clean Water Act, implementing- regulations adopted by the United States Environmental Protection Act, the 'California Water Code. and regulations promulgated by the, California Department of Health Services. On February 3, 2009, ,the -Sta'te Water s Resource_ Control ,Board ,(" SWRCB") adopted a ,statewide Recycled Water Policy to support increased sustainable.'local water supplies' by increased production and use of recycled water. The policy also outlines recycled water quality control measures, °which, among other requirements, mandates the implementation of regional salt nutrient management plans by 2014, as well as the regular monitoring of certain constifuents in recycled water...The City expects the requirements to.increase Maintenance and Operation Expenses. The City operates 'pursuant to Ord'er..No. 96-011 of the California Regional Water Quality Control Board, San Francisco Bay Region (the "San Francisco Bay RWQCB").. Wastewater' System. Regulatory requirements applicable to the Wastewater System are contained in or imposed by regulation pursuant to'the .Federal Water Pollution Control Act, A-92 as amended, and the State of California Porter Cologne Water Quality Control Act of 1969, as amended. Both federal, and State regulations are administered through the Regional Water Board. The District is not aware of any environmental or regulatory issues that would adversely impact its ability to provide sewer service. The waste discharge requirements applicable to the Wastewater System are a product of the following: (i) Waste discharge requirements described above in "Recycled Water." (ii) 'Order No. R2-2005-0058, National Pollutant Discharge Elimination System (NPDES) Permit No. CA0037810, as amended by Order No. R2-2010-0054 (updated regional standard provisions amendment) and Order'No. R2-2010-0056 (copper and cyanide amendment). The permitted dry weather flow capacity of the Treatment Plan under this permit is 6.7. These Orders expired on October 20, 2010. The City submitted a Report of Waste Discharge on April 23, 2010, and applied for an NPDES permit reissuance to discharge treated wastewater from the Treatment Plant on that same date. These Orders remain, as per agreement between the San Francisco Bay RWQCB and the City, in full force and effect as of the date of this Official Statement and until the date that a new permit is approved by the San Francisco Bay RWQCB. A hearing to discuss a new permit is scheduled for January 12, 2011. The City anticipates that a new permit will 101 have an effective date of March 1, 2011 and will expire on February 28, 2016. (ii) Order No. R2-2007-0077 (NPDES Permit No. CA0038849), which establishes requirements regarding discharges of mercury to San Francisco Bay. This Order expires on December 31, 2012. Storm Drains. In November 1990, the U.S. EPA published regulations establishing NPDES'permit requirements for municipal and industrial stormwater discharges. Phase 1 of the pernibtting program applied to municipal discharges of stormwater in urban areas where the population., exceeded 100,000 persons, which does not include. the City. Phase 1 also applied to stormwater discharges from a large variety of industrial activities, including general construction activity if the project would disturb more than 5 acres. Phase 2 of the NPDES stormwater permit regulations, which became effective in March 2003, require that NPDES permits be issued for construction activity for projects that disturb between 1 and 5 acres. Phase 2 of the municipal permit system (known as the NPDES General Permit for Small MS4s) require small municipal areas of fewer than 100,000 persons (such as the City) to develop stormwater management programs. The regional water quality control boards in California are responsible for implementing the NPDES permit system. The San Francisco Bay RWQCB is the regulatory agency having national NPDES permit oversight authority for the City. The City's NPDES stormwater Phase II small MS4 general permit was issued on April • 30, 2003, and expired on April 30, 2008. The City's Storm Water Management Plan was adopted by the City Council in March 2003 to comply with the NPDES permit requirements. It A-93 requires the City to effectively prohibit non-stormwater discharges from, the incorporated area of the City into the City's ,Municipal Storm System (M S4) except as otherwise permitted by law. This permit. remains, as per lagreement, between the San Francisco Bay RWQCB, in full force and effect as.of the date hereof and until the date that a new replacement permit is approved by the San. Francisco Bay RWQCB. The City is currently waiting to receive the terms of a new permit proposed by the San Francisco Bay ,RWQCB and expects the permit to be approved in 2011. The Cityy will assess the potential costs associated with implementation and its impacts to the City utility budget, ;if any, upon receipt of the permit terms. The City does not require coverage under the- State Water B'oard's statewide NPDES permit for stormwater discharges associated with industrial activities (NPDES General Permit No. CAS000001") because all stormwater flows in contact with Treatment Plant equipment or sewage is directed to the headworks .for treatment. Air,.Emissions Permits. The City operates pursuant to a variety of permits from the Bay Area Air Quality Management District, including the (i)� Permit to Operate Plant #1071 at 3890 Cypress Dr., which expires on March 1., 2011, (ii) Permit to Operate Plant #1544.5 at Holly Lane and Wilmington Drive, which expires on October 1, 2012 and (iii) the Permit to Operate Plant #15444 (299 Water Street), which expires October 1, 201.'2. Mosquito Control. The 'City complies with operation and reporting requirements imposed by the Marin -Sonoma Mosquito and Vector Control �IDistrict to protect the adjacent community from mosquitoes that live in the vicinity of the Treatment Plant. Historical Wastewater Flow The following table sets forth the historical and estimated wastewater flow to the Treatment Plant (or its predecessor). Table 3 CITY OF PETALUMA WASTEWATER SYSTEM Historical and Estimated Wastewater'Flow Fiscal Years 2005=06 through 2010-11 Source: City of Petaluma. A-94 11 Total Wastewater Treated Average Dry- Weather Flow FY (MG/Year) (MGD) 2005-06 2553 4.6 2006-07 2010 4.6 2007-08 1946 4.3 2008-09 1787 4.2 2009-10 1955 4.4 Estimated 2010-11 1959 4.41 Source: City of Petaluma. A-94 11 • Customer Base Customer Accounts. The following table sets forth the historical number of accounts of the Wastewater System for the past five fiscal years. Table 4. CITY OF PETALUMA WASTEWATER SYSTEM Historical Number of Wastewater Accounts by Customer Class 'Fiscal Years 2005-06 through 2009-10 Customer classification FY 2005-06 FY 2006-07 FY 2007-08 FY 2008-09 FY 2009-10 Single family residential 17,148 17,319 17,233 17,130 17,025 Multi unit residential 4,420 4,552 4,684 4,816 5,081 Commercial & Industrial Low strength 846 850 860 870 841 Medium strength 15 15 15 16 16 High strength 121 121 130 135 147 Source: City of Petaluma. Table is projected, based upon 2004 Rate Study. [discuss] • . FY 2009-10 values are actual.[discuss] Ll A-95 Largest Wastewater Customers. The following table sets forth the Wastewater System's major users and their related revenues for Fiscal Year 2009-10. Table 5 CITY OF PETALUMA WASTEWATER SYSTEM Largest. Users of Wastewater Enterpri's_e Fiscal Year 2009-1.0 Business Name Type of Use• FY 2009-10 Revenues % of Revenues Petaluma Poultry SIU $797,647 4.22% Petaluma Creamery * SIU 251,593 1.33 Clover Stornetta SIU 240,895 1.28 Lace House Linen SIU 80;560 0.43 Petaluma Valley Hospital [IU] 45,682 0:24 ExxonMobil Refining [IlJ] 11,839 0.06 Rancho Feed IU 8,251 0.04 Mrs. Grossman's IU 7,445 0.04 Kresky Signs [IU] 2,082 0.01 Calclean [IU] 2,062 0:01 Brooks,.Automation IU 1,972 0.01 Donal Machine IU 1,972 0.01 • Total, Largest Users $1,491,015 7.90% Total, All Users $18,879,817 100% Source:.City of Petaluma. SIU: Significant Industrial User IU: Industrial User * See "REVENUES AND DEBT SERVICE COVERAGE — Billing and Collections" for information about current and historical.delinquencies by Petaluma Creamery. • A-96 ® Largest Recycled Water Customers. Historically; the City has paid customers to accept recycled water. For Fiscal Year 2009-2010, six` such customers used 1,260 acre-feet of recycled water generated by the recycled water system (approximately 59.0% of total recycled water produced by the recycled water system in Fiscal Year 2009-10), each of'whom was paid $185 per acre-foot of recycled water accepted by the City (for an aggregate payment by the City of $233,100 in Fiscal Year 2009-10 to customers to use recycled water). [The City is moving toward converting the recycled water system to paying customers. As 'of June 3.0, 2010, four paying customers that used 876 acre-feet of recycled water generated by the recycled water system (approximately 41.0% of total recycled water produced by the recycled water system in Fiscal Year 2009-10) paid the City between $_ and $_ per acre-foot of recycled water used (for an aggregate payment to the City of $_ in Fiscal Year 2009-10 by customers for recycled water). The City expects to convert the recycled water system to deliver recycled water entirely to paying customers by 2013.] [The City is moving toward converting the recycled water system to paying customers. The City rate resolution identifies a per acre foot charge of $818.93. A yearly average of 518 acre feet of sales has been sustained from 2007 to 2010. From 2006 to 2010 the City received approximately $131,900 from paying recycled water recipients. The City expects to convert the recycled water system to deliver recycled water entirely to paying customers by 2013.] The following table sets forth the customers that paid for recycled water for Fiscal Year 2009-10. Table 6 • CITY OF PETALUMA Paying Customers of Recycled Water Fiscal Year,2009-10 is (1) Consumption is calculated in acre-feet. Source: City of Petaluma Capital Improvement Program % of Total Sales 34.25% 25.11 39.95 0.68 100.00 The City has no plans to incur indebtedness for the Wastewater System during the next five years. The City plans to pay for any capital improvements during that period from excess cash flow of the Wastewater System and from moneys on deposit in the capital projects fund. A-97 Type of Estimated Customer Propertv Consumption�'� Rooster Run Golf Course Golf Course 300 Adobe Creek Golf Course Golf Course 220 Ellis Creek Wastewater Recycling Facility Industrial 350 Karren Vineyard Agricultural 6 Total 876 (1) Consumption is calculated in acre-feet. Source: City of Petaluma Capital Improvement Program % of Total Sales 34.25% 25.11 39.95 0.68 100.00 The City has no plans to incur indebtedness for the Wastewater System during the next five years. The City plans to pay for any capital improvements during that period from excess cash flow of the Wastewater System and from moneys on deposit in the capital projects fund. A-97 REVENUES.AND DEBT SERVICE COVERAGE Wastewater Service Charges Current Wastewater Service Charges. On January 22, 2007, the City Council adopted Resolution No. 2007-023 N.C.S. approving annual Wastewater .System rate; increases for calendar years 2007-2011. Resolution No. 2007-023 N.C.S. called for annual Wastewater System rate increases of approximately 13.0% per year, effective January 1, 2008, January 1, 2009, January 1, 2010 and January 1, 2011. On December 6, 2010, the City Council adopted Resolution No. 2010-212 N.C.S., which amended Resolution No. 2007-023 N.C.S. to revise -the Wastewater System rate increase for calendar year 2011. Resolution No. 2010-212 N.C.S. reduced the Wastewater System rate increase scheduled to take effect on January 1, 2011.from 13.0061, to 9.00%, based on the recommendations of the City's rate consultant, The Reed Group, Inc. (the "Rate Consultant"), as set forth in the "Water and Wastewater Financial Plan and .Rate Study" (the "Rate Study") dated October 27., 2010, attached to this Official Statement as Appendix G. The Rate Study was accepted by the City Council at its December 6, 2010 meeting. Table 8, below, summarizes the wastewater rates approved by the City Council, effective January 1, 2007 through January 1, 2011. For residential users, wastewater charges consist of a fixed monthly charge and a variable user charge based upon the, amount of wastewater discharge. All single family residential customers would pay the same fixed rate service charge, and multi -family dwelling • units would pay a slightly lower service charge, (multi -family wastewater flows on average are less than a single family). The amount of wastewater discharged is established based on the average amount of water used each month during the winter months (generally, December, January, February). The winter water usage billing method is designed to more ;fairly distribute the costs of operating the Wastewater System. Water consumed during the winter months of the year approximates wastewater because landscape irrigation should . be minimal, and, therefore,' most, if not all, water consumed during this period is returned to the Wastewater System. This approach also rewards water conservation. Fornon-residential users, .wastewater charges consist of a fixed monthly charge based on the size of the water meter and a variable charge based upon the amount of water used or discharged. Residential users outside the City limits are charged an additional $0.80 per month for each dwelling unit, and non-residential users are charged an additional $0.80 per month for each account. A-98 T � O .O 'O 0 O 0 O O O O O O O O, O O O O O O O O O O C? cd CN N N N N N N N N N D NN N m ' Q L t t t t t + t t t t t t t N Q w a) N m a) d U U ' c t O O O D) O O O O O O O O i9 U O 00 m N W O 0) 0), 0) 0) O O o) o � C Q O I-- O L- r O V O) (D O D) (D O N CO O U r (D O n O u') (D p M M L� OD M (D LO O O N c � O m N m c m . -)c c o 0 0 0 0 0 0 o-11 o 0 0 0 0C c .� m O O O O O O — O' O O O M N S N (i r r r r r r Cl) Cl) Cl) C14 N O 0 — -- a U o .m (0 O ul LO V (n V OO Lo _ V O) n N _ Ln :'- W O OD O O 00 O M � W N <n U? CO m N d w U) N V o d 00 LU v, vX m a) .` m 9 C O O O O o O O o o O O O O v'LL � m O � O e- O O O O O O O (D O L C Q F— v �% Cl) a U cn > � o .M- d L m O'O • .L-. Cl) U V Cl) 'r M O V O co (n N to O) Q C Q V N N N M O (D V' V o. o m m O E C (D eC it r p) C6 (D C6 (D M (D � (D Ll- O c) V O O a) o c p M O N CN a) J N E O 7 d C m F- y Amo LU (C o2a LL C O O O O O O O O O O O o O o a) Q m O O O O O O O O' O O. O M N (5 L. L U CY) N C -i C� vi cyi C�i cyi C6 cyi C6 a ri, 2 0 .3 o c " U � m 7 C • M O Cl) M (f) LO V M O (O V M (A L(') V M O O) O O 'V' Ma V c) �� E 00 L LO (D • OO V O O m. N O N U C O m O d U U c 7 N m C m (n a) ca o N O CL N OR N 00 O" W W V N (O M M=3 m O V O V D) O V LO L� O M O O m C CD aa) m N Lyo c N "o 3�U c Ev v L E L E o m O O O N N N 1 O p a) U c 0 E E E y E N E d c� EA 'C y Ki fA �, C7 N U L c d p O N N C Q- C 7 C O— L CE O O m y y C m (D Q y) a) N a Q) m (D w N a .. N N 0. 0) (D (D 21 Um ' N 3 N d U O _ U� U E a) (9 a) m 'o a) m a) m m m L m Q) N a) O N • m Q L ._ - O`' LCL) (D a)L L C m N CD E LL (6 L U N c m L U (D m L a) m U L N U U N NV m a-_ L G U Z '?'Z ym,. m u E yC�.n ,L N ' c mz rn(n aw m a 2 0 I Uy LI m> w > - >> Lcc �• The rate structure recommended by the Rate Consultant 7and approved by the City • Council, effective January 1, 2011, is designed to be revenue neutral, generating the same amount of revenue as the previously -approved rate structure. However, under the revised rate structure, most residential customers will have lower wastewater bills relative to the wastewater rates approved by Resolution 2007-023 N.C.S. for calendar year 2011. Many non-residential customers will also have lower bills, although some (particularly those with large water meters) could pay more with the revised rates. Most ,of the City's industrial customers will bear an increased share of utility costs under the revised rates. In all cases, the revised wastewater rates are justified based on cost of service. Historical Wastewater Service Charges. The following table shows historical levels of the City's wastewater service charge for a single-family home, assuming average usage (12 hcf). Table 9 CITY OF PETALUMA WASTEWATER SYSTEM Historical Average Monthly Charge Calendar Years 2006-2011' Source: City of Petaluma. A-100 • Average Monthly Charge, Calendar Single -Family Residential Year % Change 2006 $43.66 2007 49.33 13% 2008 55.71 13 2009 62.98 13 • 2010 71.17 13 2011 77.58 9 Source: City of Petaluma. A-100 • • Comparative Wastewater Service Charges. Set forth in the following table are the City's monthly wastewater service charges, effective January 1, 2011, and a comparison with monthly charges for surrounding communities. Table 10 CITY OF PETALUMA WASTEWATER SYSTEM Comparative Monthly Wastewater Charges (Single -Family Residential) Agency City of Santa Rosa City of. Healdsburg City of Cotati Town of Windsor City of Petaluma City of Sebastopol City of Rohnert Park Novato Sanitation District Wastewater Service Charcie (1) Assumes a discharge volume of 6, 000 gallons per month. Source: City/district websites. ' $88.90 $88.84 $71.26 $64.95 $61.94 $61.39 $44.88 $38.67 Future Wastewater Service Charges. The Net Revenue projections set forth in this Official Statement assume Wastewater System rates will increase on January 1, 2012 and annually thereafter, by the greater of 2.00% or the San Francisco CPI -U • + 1.50%, as recommended by the Rate Consultant. However, rate increases after January 1, 2011 are subject to approval by the City Council and compliance with the requirements of Article XIIID of the California Constitution. See "RISK FACTORS — Articles XIIIC and XIIID of the California Constitution." Failed Initiatives to Reduce Wastewater Service Charges. At the November 4, 2008 election, 54.6% of City voters voting on the matter rejected a ballot measure (Measure K) that would have reduced the wastewater service rate schedule established by Resolution No. 2007- 23, effective February 1, 2007, to the rates that were in effect on January 1., 2006. This ballot measure would also have reduced the then -in -effect water service rates to those rates that were in effect on January 1, 2006. At the November 2, 2010 election, 55.7% of City voters voting on the matter rejected a ballot measure (Measure U) that would .have reduced the wastewater service rate schedule established by Resolution No. 2007-23, effective February 1, 2007, to the rates that were in effect on January 1, 2006. Though the November 2, 2010 ballot measure called for a reduction of wastewater service rates only and did not call for a concurrent reduction to then -in -effect water service rates, this measure was rejected by a higher percentage of voters than was the 2008 ballot measure, which called for a reduction in both types of rates. Opponents of the November 2, 2010 ballot measure highlighted the value of the Treatment Plant to the City and the City's need to repay debts incurred in furtherance of Wastewater System improvements. • Connection & Capacity Fees A-101 Current Connection and Capacity Fees Resolution. The City's current connection and capacity fees were adopted by the City Council on June 19, 2006 pursuant to Resolution No. 2006-120 N.C.S. Current Connection and Capacity Fees. The following table summarizes the aggregate connection and capacity fees for the Wastewater System, by user type. Cateaory Single family dwelling Multi -family dwelling Residential Accessory Dwelling Non -Residential Amount $8,363 $5,576 $3,261 $8,363 plus volume charges, based_ on BOD/TSS profile Comparative Connection Fees. Set forth in the following table are the City's monthly Wastewater System [residential] connection fees for Fiscal Year 2010-11 and a comparison to surrounding communities. Table 11 CITY OF PETALUMA WASTEWATER SYSTEM Fiscal Year 2010-11 Comparative [Residential] Connection Fees 0 Citv / Agencv Connection Fee • City of Cloverdale $2,913 City of Sebastopol $6,360 City of Santa Rosa $10,216 City of Sonoma $11,195 City of Petaluma $12,029 City of Rohnert Park $12,420 City of Windsor $13,679' City of Healdsburg $14,242 City of Cotati $14,529 Source: City of Petaluma A-102 • • Billing and Collection Billing Practices. The City bills for water and wastewater services on a combined monthly bill. The City issues a notice of nonpayment of any City -issued bill relating to wastewater services after 10 days of delinquency. I'f payment is not received timely after the delivery of such notice, the City may terminate utility services through a user's water meter. Noncompliance with discharge permit requirements may lead to the City to issue an administrative order, which order may contain fines for noncompliance and additional charges for nonpayment of such fines in a timely manner. The unincorporated Sonoma County community of Penngrove is billed and pays all of its Wastewater System fees in a single, annual payment. For calendar year 2008, Penngrove paid $352;080.63 for all of its wastewater usage and fees. For calendar year 2009, Penngrove paid $398,77-1 for all of its wastewater usage and fees. Collection History. The following table describes the City's collection history for the past five fiscal years. Table 12 CITY OF PETALUMA WASTEWATER ENTERPRISE Historical Billings, Collections and Delinquencies Fiscal Years 2005-06 through 2009-10 Balance June 30 Beginninq FY Billings Pavments 2006 2007 2008 2009 2010 Souice: City of Petaluma. ,Balance % of Endinq FY Write-off Billing $ 34,518 34,637 50,228 90,056 86,861 One Wastewater System customer, Spring Hill Jersey Cheese, Inc. d/b/a Petaluma Creamery (the "Creamery"), owes a significant delinquent balance to the City, which has accumulated_ over 'a' two-year period as a result of the Creamery's transition to and discharge p"ermif compliance 'issues. The City negotiated a Repayment Agreement with the Creamery; dated as of December 15, 2010 (the "Repayment Agreement'), which addresses this outstanding balance. Since entering into the Repayment Agreement and pursuant to the terms thereof, the Creamery has made substantial payments against the outstanding balance, fines and penalties; the most recent of such payments was received by the City on January 3, 2011. The Creamery has also made timely, monthly payment for its current water and sewer discharge service usage since entering into the Repayment Agreement. A-103 Historical Revenues and Expenses 0 The following table presents :audited revenues and expenses of the Wastewater Fund for Fiscal' Years 2007-08 through 200940. Source: City of Petaluma A-104 • Table 13 CITY OF._P_ETALUMA WASTEWATER SYSTEM Wastewater Fund Historical, Revenues and Expenses 2007-08 2008-69 2009-10 OPERATING ,REVENUES: Charges forsales $15,532;642 $17,220,203' $18,844,950 Charges for services 9,007 41,443 84,200 Connection fees 1;369;241 293,992 139;441 Total operating revenues 16;9.10;890 17,555,638 19,068,591 OPERATING EXPENSES: - Cost of services 6,716,407 6,962,571 5,476,565 Claims - - General and administrative 2,416;212 1,976,124 2;975,690 Depreciation and amortization 1,396,355 1.,433,485 3,159,304 Total operating expenses 10,522,974 10,372,180 11,611,559 Operating income (loss) 6,387,916 7,183,458 7,457;032 NONOPERATING REVENUES (EXPENSES): Intergovernmental non-operating 399,248 931,767 Investment earnings and rent 824,464 605;397 213,478 Interest expense (1,249;415) (35;505) 396,581 Gain or (loss) on, disposal of assets. - (340,611) Total non-operating revenues '(expenses) (25,703) 1,501,659 269,448 • Income (l"os"s) before operating transfers 6,362,213 8,685,117 7,726,480 TRANSFERS: Transfers in - - - Transfers out Total transfers - - - Change in netassets 6,362,213 8,685,117 7,726,480 NET ASSETS: Beginning of year 59,371,582 66,933,798 75,618,915 End of year $65;733,795 $75,618,915 $83,345,395 Source: City of Petaluma A-104 • • Outstanding Indebtedness Other than the SRF Loan, the City has no outstanding obligations of the Wastewater System payable from revenues of the Wastewater System as of the date of this Official Statement. Pro Forma Statement of Revenues, Expenses, Debt Service Coverage and Ending Cash Balances Tables 14 and 15, below, are pro forma operations statements prepared for the City by the Rate Consultant. The projections in both tables reflect a number of consistent assumptions, described here. However, each table assumes a different percentage increase in the Wastewater System's rates in calendar years 2012 through 2017, as described below Number. of Wastewater Svstem Users: Tables 14 and 15 assume the number of Wastewater System users will remain unchanged from FY 2010-11 through FY 2016-17. Wastewater Svstem Rate Increases: The Rate Study conducted by the Rate Consultant, which was accepted by the City Council on December 6, 2010 (seeAppendix H), recommends annual Wastewater System rate increases, beginning January 1, 2012, equal to the greater of (i) 2.00% per year or (ii) the sum of the San Francisco CPI -U plus 1.50%. Consistent with these recommendations, Table 14 assumes a Wastewater System rate increase of 2.0.0% on January 1, 2012 and 2.00% each January 1 thereafter and Table 15 assumes a Wastewater System rate increase of 3.50% on January 1, 2012 (assuming 2% CPI) and 4.501/o (assuming 3% CPI) each January 1 thereafter. Operatinq Expenses: Tables 14 and 15 assume the Wastewater System operating expenses will increase by 2.60% during Fiscal Year 2011-12 and by approximately 3.40% per year thereafter. Capital Outlays: A list of planned Wastewater System capital improvements and the estimated timing and cost of such improvements is described in Section II and in Exhibit II -3 of the ,Rate Study. It is assumed that no Parity Debt will be issued to finance these capital improvements. Transfers In from Rate Stabilization Fund: Tables 14 and 15 assume transfers in from the Rate Stabilization Fund in annual amounts necessary to meet the operational needs of the Wastewater System, satisfy the City's rate covenant, provide cash flow for capital outlays and ensure sufficient financial liquidity and financial reserves within the Wastewater Fund. A-105 t 0 oo 00 • • e m O O O O O O O'O b lD O O O O 10 n 00' m m 0 p m 0 M 0 O O O C O O O O O O O.Q Q O.r n ,Q n r' n to O an' N N N C .•i O O_ n p N n O O to N r' m O M M O .ice lD tD O Q m M O Q m O ,y - 0 m m' N O n m O m to N N M M m M N M O O'm" m 'r-1 'm iD t0 WtD 'Q .ti O n ,O n O LL n .ti N 'N Q m ll I '-1 N H M M M N .ti_ �m V1 N 00 m lD ll1 Q 00 O N ' V o m O. O O coo O r. n n co 0 o .-i r1 r m lD n 00 O mm O p O O M O O O O 'O. 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RS i'ac v a N LL O OI y 33 N Ewe w� C y 3=m a v v vcL m°�` LL N C C V �+ W U. SOD C O C .0 O •� R' > IY d A A Y i0 V d U C Q m y > c v c w v > .2- v �- v o o W /L li m 01 '6 '- K - C 01 M C N c d V u O a S E aN o n m O m O 0 o c Z '` w an o o m o o c v O1 ro ` d j 15 c c a@+ c� z a m m a p p o m m N N O O d c u w - a o r O a O °� f0 o Z a'' Z 1 v - o 0 o a r o o a` � c c.6 10- O 2 o `•- d .6 O OV pNp N LU Lu N N L U ON U 0 I- � vl N vvi vvi 1n ✓� • } RISK FACTORS 0 The following information should be considered by prospective investors in evaluating the Bonds. However; the following does not.purport to be an exhaustive listing of risks and other considerations which may be relevant to investing in the Bonds. In addition, the order in which:ahe following, information is presented is not intended to reflect the relative importance of any such risks. The purchase of the Bonds involves investment risk. If a risk factor- materializes to a sufficient degree,: it could delay or prevent payment of principal of and interest on, the Bonds. Such risk factors' include, but are not limited to, the following matters and should be considered, along with other information in this Official Statement, by potential investors. Revenues, Rate Covenant Wastewater System revenues are dependent upon the demand for wastewater services, which can be affected by population factors; more stringent wastewater standards, wastewater regulations, water conservation, water shortages, or problems with the City's; wastewater treatment and distribution facilities,. There can be no assurance that wastewater service demand will ,be consistent with the levels contemplated in this Official Statement. A decrease in the demand for wastewater'services could require an increase in rates or charges in order to comply with the rate ,covenant. The City's ability to. meet its rate covenant is dependent upon its capacity to increase rates without driving down demand to a level insufficient to meet- debt service on the Bonds. Wastewater System Expenses There can be no assurance that expenses of the Wastewater System will be consistent with the, levels contemplated, in this Official Statement. Changes .in technology, changes in quality standards„ increases in the cost of operation or other expenses could require substantial increases in rates or charges in order to comply with the, rate covenant in the Indenture. Such rate increases could drive down demand for sewer and related services_ or otherwise increase the possibility of nonpayment of tthe Bonds. See "Environmental Regulation" below. Environmental Regulation The kind and degree of wastewater .service and storm drain service which it effected through the Wastewater System is regulated, to a Large extent, by the federal government. and the State. of California. If the, federal, government, acting .through the Environmental Protection Agency, or additional legislation, or.the State should. impose stricter wastewater treatment or storm drain treatment standards upon the Wastewater `System, the C'ity's Operation and Maintenance Costs could increase accordingly and rates and charges would have to be increased to offset those, expenses. It is not possible topredict the direction that federal or State regulation will take with respect to :wastewater and storm drain treatment standards, although the City expects the cost of collecting; treating and disposing of -wastewater and storm water to increase in the future. • A-108 Insurance The Indenture obligates the City to obtain and keep in force various forms of insurance or self-insurance, subject to deductibles, for repair or replacement of a portion of the Wastewater System in the event of damage or destruction to such portion of the Wastewater System. No assurance can be given as to the adequacy of any such self-insurance or any �ad'ditional insurance to fund necessary repair or replacement of any other portion of the Wastewater System. Significant damage to the Wastewater System could cause the City to be unable to generate sufficient Net Revenues to pay principal of and interest on -the Bonds. Limitations on Remedies Available to Bond Owners The ability of the City to comply with its covenants under the Indenture and to generate Net Revenues sufficient to pay principal of and interest on the Bonds may be adversely affected by' actions and events outside of the control of the City, and may be adversely affected by actions taken (or not taken) by voters, property owners, taxpayers or payers of assessments, fees and charges. See "Articles' XIIIC and XIIID of the California Constitution" below; Furthermore, any remedies, available to the Owners of the Bonds upon the occurrence of an Event of Default under the Indenture are in many'respects dependent upon judicial actions, which are often subject to discretion and delay and could prove both expensive and time consuming to obtain. In addition to the limitations on Bond Owner remedies contained in the Indenture, the rights and obligations under the Bonds and the Indenture may be subject to the following: the United States Bankruptcy Code and applicable bankruptcy, 'insolvency, reorganization, moratorium, or similar laws relating to or affecting the enforcement of creditors' rights generally, now or hereafter in effect; usual equity principles which may limit the specific enforcement under State law of certain remedies; the exercise by'the United States of America of the powers delegated to it by the Federal Constitution; and the reasonable and necessary" exercise, in certain exceptional situations, of the police power inherent in the sovereignty of the State of California and its governmental bodies in the interest of serving a significant and legitimate public purpose. Bankruptcy proceedings, or the exercise of powers by the federal or state government, if initiated, could subject the Owners of the Bonds to judicial discretion and interpretation of their rights in bankruptcy or otherwise, and consequently may entail risks of delay, limitation or modification of their rights. Parity .bebt The Indenture permits 'the City to issue additional obligations secured by a, pledge of Net Revenues, that is on a, ;parity basis to the pledge of Net Revenues to the Bonds and the SRF Loan (see `SECURITY FOR THE BONDS — Parity Debt" ,above ). The coverage, tests described in "SECURITY FOR THE BONDS — Parity Debt" involve, to some extent, projections of Net Revenues. If such Parity Debt is issued, the debt service coverage for the Bonds could be diluted below what it otherwise would be. Moreover, there is no assurance that the assumptions that form the basis of such projections, if any, will be actually realized subsequent- to the date of such projections. If such assumptions are not realized, the amount of future Net Revenues may be less than projected, and the actual amount of Net Revenues may be insufficient to provide for the payment of the Bonds, the SRF Loan and any future Parity Debt. A-109 The Indenture does not, require a deposit to a debt service reserve fund in • connection with issuance of Parity Debt. Natural, Disasters General. From time to time_ ; the service area of the City is subject to natural calamities that may adversely affect economic activity in the City, which could have a negative impact on Wastewater. System finances. There can be no assurance that the occurrence of any natural calamity would 'riot causei substantial damage to: the Wastewater System, or that the City would have insurance or other resources available to make repairs to the Wastewater System in order to generate sufficient 'Net Revenues to pay debt service on the Bonds when due: The casualty and liability insurance maintained by the City may not cover damages and losses to the Wastewater°System due,to.earthquake,,fire or flood. Seismic. The following information is excerpted from the City's General Plan 2025 (May 2008). Two active faults -- the San Andreas Fault and the Healdsburg-Rodgers Creek Fault -- can be expected°'to affect the City. The mayor fault zones of the Sane Andreas Fault System have been the source of almost all the earthquakes felt- in the City and are expected to be the sources of future earthquakes.. The United Stated Geological Survey has concluded that there is a 62% probability of a strong earthquake striking the San Francisco Bayregion within the 30- year period between 2003 and 2032. During this time frame, the probability of having a.;large earthquake (magnitude 6.7 or greater), generated from, the Healdsburg-Rodgers Creek Fault is estimated at 'about 27% and 2.1 % percent for the ,San Andreas Fault. Potential; hazards related to.major earthquakes'include ground shaking, surface rupture along the fault zone, and related secondary ground failures. Typical seismically -induced ground failures include liquefaction, lateral spreading, ground, lurching,, landslides, inundation, and settlement, • Flood. The following information is excerpted.' from the City's. General 'Plan 2025 (May 2008). The City sits within the 11.3 square -mile Petaluma River watershed. Floods in the Petaluma River Basin are normally of short duration, lasting 3 to 4. days, or less. Tributaries of the Petaluma River can, begin to ,rise within hours after a heavy storm event has begun if antecedent soil moisture .content is already high. Typically :floods occ'u'r between December and March. Flooding has taken, place in the City, to. the extent that at least some street flooding occurs,, on average once per year over1he, past 20 years. Recent significant flooding events (meaning street and property flooding) have occurred in the City. in 19$2, 1983, 1986, 1995, 1996, 1998, and '20005: The"largest flood of record in the City' occurred from January 3 through 5, 1982. A significantflood event occurred on December 30-31_, 2005, over -taxing, both piped and open channel systems. Including the Petaluma River. There are approximately 18 miles of channels that have been studied in. detail by the Federal Emergency ,Management Agency ("FEMA"), within the City. Based on the historic records of flood events and the. detail, to which streams have. been ,studied and',floodplains delineated within the .City by, FEMA, it is clear that flooding is a significant problem. The Treatment;Plant ;is built :above the base flood elevation and is not expected to incur any damage or interruption in service during significant flood events. The plant is built to operate during a 1007year flood event.affecting, the; ,City. _ Major improvements to 'pumping stations are either currently underway or in the capital improvement program to meet similar operational standards. Wildfire: The City and its Fire Department do not. consider wildfire to be likely to negatively impact the Net Revenues of. the Wastewater System. There is no historical . knowledge of a wildfire affecting the site of the Treatment Plant. Despite such minimal .risk, the A-110 City maintains the following precautionary .measures in place: "sufficient separation of critical facilities from grassland; 'hardscape or irrigated low-level landscaping adjacent to the facility itself, "fire suppression systems and adequate fire hydrants placed throughout the facility, and trained. staff to respond to any fire related emergency. Articles.XIIIC and XIIID of the California Constitution General. On November 5, 1996, California voters approved Proposition 218, the so- called "Right ffVote on Taxes Act." Proposition 218 added Articles XIIIC and'XIIID"to'the State Constitution, which affect the ability of local governments to levy and collect both existing and future' taxes, assessments, and property -related fees and charges. Proposition 218, which generally became effective on November 6, 1996, changed, among other things, the procedure for the"imposition of any new ,or increased' property -related "fee" or "charge," which is defined as "any levy other'than an ad valorem tax, a special tax or an, assessment, imposed by a [local government] upon a parcel or upon a person as an incident 'of property ownership, including user fees or charges for a property related service" (and referred to in this section as a "property -related fee or charge"). On November 2, 2010,California voters approved Proposition 26, the so-called "Supermajority Vote to Pass New Taxes and Fees Act". Section 1 of Proposition r28 declares that Proposition 26 is intended to lir' 4 the ability o,f the State Legislature and local government `to circumvent existing restrictions on increasing taxes by defining the new or expanded taxes as fees.". Proposition 26 amended Articles XII,IA and XIIIC of the State Constitution. The amendments to Article XI I IA limit the ability of the State Legislature to impose higher taxes (as defined in Proposition 26) without a two-thirds vote of the Legislature. Proposition 26's amendments to Article XIIIC broadly define "tax," but specifically" exclude, among other things: "(1) A charge imposed for a specific benefit conferred or privilege granted directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of conferring the benefit or,granting the privilege. (2) A charge imposed for a specific government'service. or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product. (6,) A charge imposed as a condition of property development. (7) Assessments and property -related_ fees imposed in accordance with` the provisions of Article XIII D." PrWerty Related ,Fees and Charges. Under Article XIIID, before a municipality may impose or increase any property -related fee or charge, the entity must give written notice to the record owner of each parcel of land affected by that fee or charge. The municipality must then hold a hearing upon the proposed imposition or increase at least 45 days after the written notice is mailed, and, if a majority of the property owners of the identified parcels present written protests against the proposal, the municipality may not impose or increase the property -related fee or charge. Further, under.Article XIIID, revenues derived from a property -related fee or charge may not exceed the funds required to provide the "property -related service" and the entity may not use such fee or charge for "any purpose other than that for which it imposed the fee or charge. The amount of a property -related fee or charge may not exceed the proportional cost of the A-111 service attributable -to the parcel, and no property. -related fee or charge may be imposed for a service unless that service is actually used by, or is immediately available. to, the owner of the property in question. Initiative Power. In addition, Article XIIIC states that "the initiative power shall not be prohibited or otherwise limited in matters of reducing or :repealing any, local tax, ,assessment, fee. or charge., The, power of initiative to affect local taxes, assessments, fees and charges shall be applicable to all local 'governments and neither the Legislature nor any local,,government charter shall impose a signature requirement higher than that applicable. to:statewide statutory initiatives. The risk posed by the initiative power established by Article XIIIC is highlighted by recent efforts.io reduce the Wastewater System service, charges, once at the November 3, 2008 election, and again at the 'November 2, 2010 election. For more information about the history of initiative, efforts in the City, see "REVENUES AND DEBT SERVICE; COVERAGE •— Wastewater Service Charges." Judicial Interpretation. of Articles XIIIC and XIIID. After Proposition 21.8 was enacted in 1996, appellate court cases and an Attorney Genera_ I's. opinion .initially indicated that fees and charges levied ,for water and wastewater services would not be considered property -related fees and charges, and thus not subject to the requirements of Article XIIID .regarding notice, hearing and: protests in connection with any increase in the, fees and charges being imposed. However,, three recent cases have held that certain types of water and "wastewater charges could be subject to the requirements of Article XIIID under certain circumstances. In Richmond' v. Shasta Community Services District. (2004), .32 ,CalAth 4.09, the • California Supreme' Court addressed, the applicability of the notice, hearing and protest provisions .of Article: XIIID to certain .charges related to water service. In Richmond; the Court held that .capacity charges are not subject to Proposition 218. The Court also. indicated in dictumn,that a fee for ongoing water service through an existing connection could', under certain circumstances, constitute a property -related fee and charge, with the result that. a local government imposing such a fee and charge must comply with the notice, hearing and protest requirements of Artide.Xll ID.. . In Howard Jarvis Taxpayers Association V., City of Fresno (2005) 127 .Cal.AppAth 914, the California Court of Appeal, Fifth District, concluded that water, sewer and trash. fees are property -related fees subject to Proposition. 218 and a municipality must comply with Article XIIID before imposing or increasing such fees. The California Supreme Court denied the City of Fresno's petition for review of°the (Court of Appeai's decision on June 15, 2005. In July 2006 the California Supreme Court, in .Bighorn -Desert. View. Water Agency v. Verjil (20.06). 39 CalAth 205, addressed :the validity of.a local voter; initiative measure that.would have (a) reduced. a water agency's rates for water consumption (and other water charges), and (b) req ufred'the water, agency to, obtain voter approval ,before'increasing any existing water rate, fee,, or charge, ,.or imposing any new water rate,_. fee, or charge. The court: adopted_ the position. .indicated by its 'statement in Richmond that a public water `agency's charges for ongoing, water delivery are ''fees and charges" within the meaning of' Article XIIID, and went on to hold; that charges for ongoing water delivery are also "fees" within the meaningof Article XII IC's. mand'at'e that the initiative power of the electorate cannot. be prohibited or limited in matters, of reducing or repealing any local tax, assessment„'fee or charge. Therefore, the court held, Article XIIIC authorizes local, voters to adopt an initiative measure that would reduce or repeal 'a 'public • agency's water rates and' other wafer delivery charges. (H'owever, the court ultimately ruled in A-112 favor- of the water agency and held that the entire initiative measure, was invalid on the, grounds that the second part of the initiative, measure, which would have subjected future water rate increases to prior voter approval, was not supported by Article XIIIC and was, therefore invalid.) The court in Bighorn specifically noted that it was not ,holding that, the initiative power is free of- all limitations; the court stated that it was not determining whether, the electorate's initiative power is subject to the statutory provision, requiring that water service charges be set at a level that will pay for operating expenses, provide for repairs and depreciation of works, provide a reasonable surplus for improvements, extensions, and enlargements, pay the interest on .any bonded debt, and provide a sinking or other fund for the payment of the principal of such debt as it may become due. Articles XIIIC and XIIID and the City Wastewater Rates and Charges. The City's practice in implementing increases in Wastewater System rates and charges has been to mail a notice to all property owners and, at least 45 days later, hold a public hearing before adopting increased rates, in compliance with the Bighorn decision. . The City believes its wastewater rates, and charges do not constitute "taxes" under Article XIIIC as revised by Proposition 26 because, as described in subsection 1(e)(7) of Article XIIIC, they are "property -related fees imposed in accordance with the provisions of Article XIIID" (and are also charges -for a "property -related service" as defined in 'subsection 2(g) of Article XIIID) and because, as described in subsection 1(e)(2) of.Article XIIIC, they are charged for wastewater service, "a specific government service or product provided directly to the payor that is not provided to those not charged." The City believes neither its connection fees, nor its capacity fees, nor any similar fees relating .to the Wastewater System is a "tax" as defined by Proposition 26 because it is a charge to a landowner that is imposed (typically as a condition of property development) for a specific privilege and does not exceed the reasonable costs of conferring the privilege. Conclusion. It is not possible to predict how courts will further interpret .Article XIIIC and Article XIIID in future judicial decisions, and what, if any, further implementing legislation will.be eructed. Under the Bighorn case, local voters could adopt an initiative measure that reduces or repeals the City's Wastewater System rates and charges, though it is not clear whether (and ;California courts have not decided whether) any such reduction or repeal by initiative would• be enforceable 'in a situation in which such rates and charges are pledged to the •repayment, of bonds or other indebtedness, as is the case with respect to the Bonds. There can be no assurance that the courts will not further interpret, or the voters will not amend, Article XIIIC and Article XIIID to limit the ability of local agencies to impose, levy, charge and collect increased fees and charges for the Wastewater System, or to call into question previously adopted rate increases. Loss of Tax -Exemption As discussed under the caption "TAX MATTERS," interest on the Bonds could become includable in gross income for purposes of federal income taxation retroactive to the date the Bonds were issued, as a result of future acts or omissions of the City in violation of its covenants in the Indenture. Should such an event of taxability occur, the Bonds are not subject .0 A-113 to special redemption and will remain Outstanding until maturity or until redeemed under other provisions set forth in the Indenture. Secondary Market for Bonds There, can be no guarantee, that there will be, ia secondary market for the Bonds or, if a secondary, market exists,' that any ,Bonds can be sold for any particular price. Occasionally, because of general market conditions or because of adverse history or economic prospects connected with ar particular issue, secondary marketing practices in connection with a particular issue are suspended or terminated. Additionally, prices of issues, for which a market is. being made will depend upon then -prevailing circumstances. Such prices could be substantially different from the original purchase price. CONTINUING DISCLOSURE The City has covenanted for the benefit- of the Underwriter and the beneficial owners of the Bonds to provide certain financial information and operating data relating to the City but not later than nine months following the end of the City's fiscal: year (which, 'based on a fiscal year ending June 30, .would currently' be March 31)„ commencing with the report for the fiscal year ending June 30; :2011 (the "Annual Report"), and to provide notices. of the occurrence of certain enumerated .events_. The specific nature of the inf..ormation to be contained, in the Annual Report or the notices of material events 'is set forth below in "APPENDIX E — Form of Continuing Disclosure Gertificate." These covenants have been made in order to assist the Underwriter in complying with S.E.C. Rule 15c2 -12(b)(5) (the "Rule"). The City has .not failed to, comply with its previous undertakings under the Rule in any material respect in the previous five years. LITIGATION General. In connection with issuance of the. Bonds, the City will certify that there is no litigation pending or, to the City's knowledge, threatened in any way to restrain or enjoin the issuance, ,execution or delivery of the Bonds, to contest_ the validity: of the.Bonds,-the Indenture or any proceedings of the City with respect thereto. Also in connection with issuance, of the Bonds, except as described here, the. City will certify that there are no lawsuits or.claims pending against the City that will .materially affect the City's finances so as to impair the ability to pay principal of and interest, on the Bonds when due, Claims Relating to the ;Treatment Plant. The City solicited bids in accordance with California law for construction of the Treatment Plant. 'to ,replace the City's Hopper Street treatment plant, which had commenced operation in 1938. The City awarded: a contract to 'Kiewii Pacific Company ("Kiewit Pacific"), the lowest, responsive bidder, on August 1, 2005. The initial contract price was $110,329,000. The final 'contract price, including all change orders, was $115,85.7;215. The Treatment Plant ,was deemed substantially complete on schedule on June 15, 2009. TheL City accepted the Treatment Plant on May 17, 2010. The City's, acceptance of the Treatmerit Plant was conditioned on (i) receipt of ;a .final discharge and release for all non -disputed amounts .and noti,'ce of disputed amounts :from Kiewit Pacific (the • "Final Release/Notice of Disputed Amount") and (ii). Written confirmation from the City's A-114 construction managers: that all contract performance was_ complete. On June 4, 201.'0, Kiewit Pacific submitted the -Fina[ Release/Notice of Disputed Amount,' which specified a disputed amount of $10,378,172. On June 7, 2010, following confirmation of completion of performance by its,construction managers, the City released final project payment.to Kiewit Pacific. The City has reviewed Kiewit Pacific's claims for the disputed amount of $10,378,172 ,setforth In the Final Release/Notice of Disputed Amount; and rejected all of them for lack of merit-, as well as for failure to comply with claims procedures pursuant to the contract. The City, believes, although it can provide no assurances, that all of Kiewit Pacific's material meritorious requests for additional compensation have been fully addressed through project change orders. On November 4, 2010, the Cify' received a "certified claim" from Kiewit Pacific apparently restating the prior claims underlying the disputed amount specified, in the Final Release/Notice �of Disputed Amount, but seeking an increased amount of additional compensation now totaling $13,812,223, or $3,434,091 more than the disputed amount specified in the Final Release/Notice„ of Disputed Amount. It is unlikely Kiewit Pacific will be able to successfully prosecute claims submitted in excess of the disputed amount specified in the Final Release/Notice of Disputed Amount ,and after the statutory claims deadline. In addition, in defending the Kiewit, claims, the City intends to assert a variety of procedural and substantive defects and other legal and factual defenses, including, but not limited to: failure to give, notice of intent to make claims/failure to timely certify claims/waiver of right to make claims; failure to timely file claims, and failure to adequately document claims. All defense costs and any damages awarded or costs of settlement would be costs attributable to the Wastewater System. The City's self insurance/excess coverage program does not apply to contract claims. 0 RATINGS It is anticipated that, on the Closing Date, Moody's Investors Service ("Moody's") will assign its municipal bond rating of "A1" to the Bonds and Standard & Poor's Financial Services LLC, a subsidiary of. The McGraw-Hill Companies, Inc. ("S&P"),, will assign its municipal bond rating of "AA-" to the Bonds. These ratings reflect only the views of the respective ,rating agency, and an explanation of the significance of these ratings, and any outlook assigned to or associated with these ratings, should be obtained from the respective rating agency. .Generally, a rating agency bases its rating on the information and materials furnished. to ,it and on ;investigations_, studies and assumptions of its own. The City has provided certain additional information and materials to the rating agencies (some of which does not appear in this Official. Statement). There is no assurance that these ratings will continue for any given period of time or that theseratings will not be revised downward or withdrawn 'entirely by the respective rating agency, if in the judgment of the rating agency, circumstances so warrant. Any such downward revision or withdrawal of any rating on the Bonds or the Bond Insurer may have an adverse effect on the market price or marketability of the Bonds. TAX MATTERS Federal Tax Law. In the opinion of Jones Hall, A Professional Law Corporation, San A-115 Francisco, California, Bond Counsel; subject, however to certain qualifications- set forth below, under existing law, the interest on the Bonds is, excluded from .gross income for federal income 'tax purposes, and such interest 'is, not an item of tax preference for purposes of the federal alternative minimum tax `imposed on individuals and corporations, provided, however, that, for the purpose :of computing the. alternative minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken `into account in determining certain income and earnings. The opinions set forth in the preceding sentence 'are subject: to the condition that the City comply with all requirements of the Internal Revenue Code of 1'986 (the "Tax Code") that must be satisfied subsequent to the 'issuance of the Bonds in order' that such interest be, or continue to be, excluded from gross income, for federal' income .tax purposes, The City has covenanted to :comply with.. each such requirement. failure to comply with certain of °such requirements may cause, the inclusion of such interest in gross .income ".for federal 'income tax purposes to be retroactive to the date of issuance of the Bonds. If the initial offering .price to the public (excluding bond housesand brokers) at'which a Bond is sold is less than the a -mount' payable at maturity thereof, then such difference constitutes "original issue discount for purposes, of federal income taxes and State of California personal income taxes. If the initial offering price to .the public (excluding bond houses and brokers) at which each Bond is sold .is greater than the amount payable at maturity thereof, then such ,difference constitutes "original issue premium" for purposes of federal income taxes and State of California'personal 'income taxes. Db miriimis, original 'issue discount and original issue: premium is' disregard'ed'. Owners of Bonds with .original issue discount' or ,original issue premium, including purchasers who do not purchase in the original offering, should consult their own :tax advisors with respect to federal income tax and State of California personal income tax consequences of owning such Bonds. • State Tax Law. In the, further opinion of Bond Counsel, interest on the Bonds is exempt from'California personal,incometaxe`s. General. Owners of the Bonds rshould also be aware that the ownership or ,disposition of, or the accrual or receipt of interest on, ,the Bonds may have federal or state tax consequences other than as described above. Bond Counsel expresses no opinion regarding any federal or state tax consequences arising with respect to the Bonds other than as expressly described above. . Form of Proposed Opinion. The form of. the proposed opinion of Bond Counsel is attached as Appendix D. CERTAIN LEGAL MATTERS The legal opinion 'of Bond Counsel, approving the,'validity of the'Bonds, in substantially the form :attache_ d hereto as Appendix D, will be made .available to purchasers at the. time of .original delivery of the Bonds, and a copy thereof will be printed: on each Bond. Jones Hall is also acting as Disclosure Counsel the City.- Payment of the. fees and expenses of Bond Counsel and`Disclosure Counsel is contingent upon issuance of'the Bonds. Certain matters will -be passed upon for the City by the City Attorney. A-116 VERIFICATION OF MATHEMATICAL COMPUTATIONS Grant Thornton LLP, Minneapolis, Minnesota (the "Verification Agent"), will examine the arithmetical accuracy of certain computations included in the schedules provided by the City relating to discharge and prepayment of the Prior Obligations. See "REFINANCING PLAN." The Verification Agent has restricted its procedures to examining the arithmetical ,accuracy of certain computations and has not made any study or evaluation of the assumptions and information upon which the computations are based and, accordingly, has not expressed an opinion -on the data used, the reasonableness of the assumptions, or the achievability of the :forecasted outcome. UNDERWRITING The `Bonds are being purchased by Piper Jaffray & Co. (the "Underwriter"). The Underwriter has agreed to purchase the Bonds at a price equal to $ , which equals the paramount of the Bonds ($ ), less an Underwriter's discount of $ plus a net original issue premium of $ The bond purchase agreement between the City and the Underwriter provides that the Underwriter Will purchase all of the Bonds if any are purchased, the obligation to make such purchase being subject to certain terms and conditions set forth in said agreement, the approval of certain legal matters by counsel and certain other conditions. City. MISCELLANEOUS The execution and delivery of this Official Statement has been duly authorized by the CITY OF PETALUMA LIM City Manager A-117 16, APPENDIX B • • SUMMARY OF CERTAIN PROVISIONS OF THE INDENTURE The following is a brief summary of the provisions of the Indenture' not otherwise summarized, in the text of this Official Statement. Such summary is not intended to be definitive, and reference is made, to the complete Indenture for the actual terms thereof. A-119 APPENDIX C • CITY'OF PETALUMA GENERAL INFORMATION The information in this section of the Official Statement is presented as general background data. The Bonds are payable solely from the Net Revenues of the. City, 'and other sources as described in the Official Statement. The taxing .power of the City of Petaluma, Sonoma County-,. the State of California, and any political subdivision thereof is not pledged to the payment. of the Bonds. Location and Organization The City' is located in Sonoma County, approximately 40 miles north of the City of San Francisco. Situated along Highway 101, Petaluma is part of the San Francisco Bay metropolitan area and the entrance to California's "renowned wine grape growing region. Incorporated in 1858; its first charter was :granted by the State in 1947, and it continues to operate as a charter city:. Municipal operations are conducted under the Council -Manager form of government. The seven Council Members are elected at large for four-year, staggered terms. The Mayor presides overall Council meetings. The City manager is responsible for :the operation of all municipal functions. Population The historic population estimates of .the City, the County and the State as of January 1 of the past five years are shown in the following table. CITY OF PETALUMA, COUNTY OF SONOMA & STATE OF CALIFORNIA Population Estimates (As of January 1) Year Citv of Petaluma Sonoma Countv. State:of. California 2006 56,479 476,,921 37,087,005 2007 56,688 478,935 37,463',609 2608 57,241 482,721 37,871,509 2009 57,817 487,259 38',255,508 2010 58,401 493,285 38,648,090 Source: California State Department of Finance, Demographic Research Unit. A-.120 C7 J r • Employment The City's major employers are set forth in the table below. Company Petaluma School District United States Postal Service Petaluma Valley Hospital Petaluma Poultry Processors Santa, Rosa Junior College City of Petaluma Calix Networks Inc. Old Adobe Union School District Clover Stornetta Farms North Bay Drywall Source.: City of Petaluma, Finance Dept. CITY OF PETALUMA Largest Employers (As of June 30, 2010) Product/Service Employees Public schools 1,300 Postal services 582 Hospital 546 Poultry 402 College 350 City government 292 Communications access systems 262. Public schools 230 Milk processing 220 Drywall and' plastering 185 A-121 The County's major, employers ,are set forth below. COUNTY OF SONOM_ A Major Employers (As, of. December 2010) Company Location Nature of Business Agilent Technologies Santa Rosa Global technology Amy's Kitchen Petaluma Food manufacturing AT&T Santa Rosa Telecommunications Exchange Bank Santa Rosa_ Bank G&G Supermarket Santa Rosa Retail grocer Ghilotti Construction Company Santa Rosa General engineering contractor Hansel Auto Group Petaluma Automobile sales, service & leasing Home: Depot Rohnert Park Home improvement JDS Uniphase Santa Rosa Broadband/optical instruments Kaiser Permanente Santa Rosa Health plan, hospital Kendall -Jackson Wine. Estates Santa Rosa Wine company Korbel Guerneville_ Wine Lucky Petaluma Retail grocery stores Metronic CardioVascular Santa Rosa Medical technology Pacific Gas and Electric Co.. Santa Rosa Electric and gas utility Petaluma Poultry. Acquisitions Petaluma Poultry processor Redwood Credit Union Santa Rosa Financial services Redwood Regional Medical Group Santa Rosa Private medical practice River Rock Casino GeyserVille Casino Safeway Santa Rosa Grocery retailer Santa Rosa Recreation & Parks Santa Rosa Parks • Sonoma County Dept -Emergency Santa Rosa Government Offices -County Sonoma County Human Svc -Dept Santa Rosa County Government-Social/Human Resources Sonoma County Radio. Mntnc Shop Santa Rosa Government Offices -County Sonoma County Sheriff Dept Santa Rosa Sheriff Sonoma Developmental Ctr Eldridge Cognitive Disability-Dev Disability Svcs Sonoma State University Rohnert Park Schools-Universities&Colleges Academic St. Josephs Health System Santa Rosa Health Care Sutter Medical Center of Santa Rosa Santa Rosa Hospital US Coast,Guard Petaluma Federal Government -National Security Wal-Mart Rohnert Park Retail Wells Fargo.Bank Santa Rosa Financial services Source: North Bay Business Journal Lists Online and California Employment Development Department, extracted from The America's Labor Market Information System (ALMIS) Employer Database, 2011, 1st' -Edition. 0 A-122 The table below shows average annual employment by industry group 'in the County from 2005 through 2009. COUNTY OF SONOMA Civilian Labor Force, Employment and Unemployment, Unemployment by Industry (Annual Averages) 2005 2006 2007 2008 2009 Civilian Labor Force (1) 253,900 255,500 258,900 261,200 258,100 Employment 242,600 245,300 247,700 246,300 233;000 Unemployment 11,300 10,200 11,200 14;900 25,1.00 Unemployment; Rate 4.5% 4.0% 4.3% 5.7% 9.7% Wage and Salary Employment (2) Agriculture 5,800 5,700 5,800 5,800 5;800 Mining and Logging 200 200 300 200 100 'Construction 14,200 14,700 14,400 121:800 9,800 Manufacturing 23,500 22,900 22,000 22,000 20,200 Wholesale Trade 7,300 7,500 7,800 7,700 6,700 Retail Trade 23,800 23,800 24,000 23,000 21,300 Transportation, Warehousing and Utilities 3,700 4,200 4,500 4,400 4,000 Information 3,700 3,200 3,000 2,800 2,600 Finance and Insurance 6,800 6,800 6,500 5,600 5,100 Real Estate and Rental and Leasing 20,400 22,100 23,100 22,900 19,700 Professional and Business Services 22,800 23,100 23,500 24,200 24,100 Educational and Health Services 19,900 20,200 20,800 21,200 21,200 Leisure and Hospitality 20,500 20,700 21,000 21,000 20,000 Other Services 6,200 6,300 6,400 6,400 6,100 Federal Government. 1,700 1,700 1,800 1,700 11700 State Government 5,400 5,300 5,200 5,000 5,100 Local Government 23,300 23,800 24,100 23,700 23,400 Total, All Industries (3) 192,300 194,900 196,200 192,000 178,300 (1) Labor force data is by place of residence; includes;,self-employed individuals, unpaid family workers, household domestic w&kers, and workers on strike. (2) Industry employment is by place of .work; excludes self-employed individuals, unpaid family workers, household domestic workers, and workers on strike. (3) Totals may not add due to rounding. Source:- State of California Employment Development. Department. .7 A-123 Effective Buying Income "Effective buying income" "EBI" is a classification developed exclusive) b Sales & Y 9� ( )� P Y Y Marketing Management magazine to distinguish pit from other sources reporting income statistics. EBI ,is .defined as "money income" less personal tax. and non -tax payments - a number often referred to a& "disposable" or "after tax" income. Money income is the .aggregate of wages and salaries, net farm and non-farm self employment income, interest; dividends, not rental and royalty 'income Social Security and railroad- retirement income; other retirement and disability' `income,. public assistance income;, unemployment compensation; Veterans Administration Payments, alimony and child support, military family allotments, net winnings from gambling and other periodic income. Money income does not include money, received from the sale of property (unless the recipient is engaged in the business of ,selling property); the value of "in-kind" income such as food stamps, ;public housing subsidies, medical care, employer contributions for .persons, etc.;- withdrawal of bank deposits; money borrowed; tax refunds; exchange of money between relatives living in the same household; gifts and Jump - sum inheritances, insurance payments, ,and other types of 'lump -sum receipts.- EBI is .com.puted by deducting from .money income all personal income taxes (federal,, state and local), personal contributions to social' insurance (Social Security and federal retirement payroll deductions), and taxes on owner -occupied non -business real estate. The following table summarizes the total, effective buying income for the City, the County, the .State and the United States, for the, period 2005 through 2009. A-124 COUNTY AF SONOIMA Effective Buying Income Total Effective Median Household Buying'Income -Effective Buying Year Area (000's Omitted) Income 2005 City. of Petaluma. $ 1,346,290 $56;642 Sonoma County 1:0,794,473 49,445 California 720,798,106 44,681 United States 5,894,663,634 40;529 2006 City of Petaluma $ 1,387,4.83 $57;649 Sonoma County 11;369,693 50;896 California 7641120;963 46,275 United States 6,107;092,244 41„255 2007 City of Petaluma .$ 1,435,888 $59„333 Sonoma County 11:,753,533 52,027 California 814,'894,438 48,203 United States 6,300;794,040 41,792 2008 City of Petaluma $ 1.,456;30& $59;571 City of Petaluma 11,763;448 52,146 California 832,531:,445 48,952 United States 6,443,994,426. 42,303' 2009 City.of Petaluma $ 1,507,725 $61,782 Sonoma County 11;867,,810 52;992 California 844,823,319 49,736 United States 6"571,536,768 43,252 Source: The Nielsen Company (US), Inc. A-124 • Commercial Activity In 2009, the State Board of Equalization converted the business codes of sales and use tax permit holders to North American Industry Classification System codes. As a result of the coding change, data for 2009 is not comparable to that of prior years. A summary of historic taxable sales within .the City during the past five years -in which data is available is shown in the following table. Total taxable sales during calendar year 2009 in the City were reported to be $796,033,000, an 18.6% decrease from the total taxable sales, of $977,480,000 reported during calendar year 2008. Figures are not yet available for 2010. CITY OF PETALUMA Taxable Transactions (Figures in Thousands) Calendar Years 2005 through 2009 (1) Data not comparable to prior years. Source: State Board of Equalization. In 2009, the State Board of Equalization converted the business codes of sales and use tax permit holders to North American Industry Classification System codes. As a result of the coding change, data for 2009 is not comparable to that of prior years. A summary of historic taxable sales within the County during the past five years in which data is available is shown in the following table. Total taxable sales during calendar year 2009 in the County were reported to be $6,263,820,000, a 15.0% decrease from the total taxable sales of $7,369,109,000 reported during calendar year 2008. Figures are not yet available for 2010. COUNTY OF SONOMA Taxable Transactions (Figures in Thousands) Calendar Years 2005 through 2009 Retail Stores Total All Outlets Numbers Taxable Number Taxable of Permits Transactions of Permits Transactions 2005 880 $773,869 2,237 $1,016,393 2006 904 778,792 2,233 1,064,296 2007 907 757,943 2,234 1,054,042 2008 928 693,168 2,221 977,480 2009 1,343 617,928 2,096 796,033 (1) Data not comparable to prior years. Source: State Board of Equalization. In 2009, the State Board of Equalization converted the business codes of sales and use tax permit holders to North American Industry Classification System codes. As a result of the coding change, data for 2009 is not comparable to that of prior years. A summary of historic taxable sales within the County during the past five years in which data is available is shown in the following table. Total taxable sales during calendar year 2009 in the County were reported to be $6,263,820,000, a 15.0% decrease from the total taxable sales of $7,369,109,000 reported during calendar year 2008. Figures are not yet available for 2010. COUNTY OF SONOMA Taxable Transactions (Figures in Thousands) Calendar Years 2005 through 2009 (1) Data not comparable to prior years. ® Source: State Board of Equalization. A-125 Retail Stores Total All Outlets Numbers Taxable Number Taxable of Permits Transactions of Permits Transactions 2005 6,492 $5,426,633 17,620 $7,622,099 2006 6,532 5,500,588 17,612 7,894,595 2007 6,352 5,404,597 17,638 7,877,195 2008 6,581 5,009,164 17,764 7,369,109 2009 10,645 4,413,001 16,810 6,263,829 (1) Data not comparable to prior years. ® Source: State Board of Equalization. A-125 Construction Activity Building .activity for the years 2005 through 2009 in the City is shown in the following table. 'COUNTY OF SONOMA Total Building.Permit'Val uations (Figures in Thousands) CITY OF'PETALUMA 2006 2007' 2008 Total Building Permit Valuations Permit Valuation (Figures in Thousands) New"Single=family 2005 2006 2007 2008 2009 Permit Valuation $ 93,260.5 New Multi;family. 128;382.4 New Single-family $65;052.6 $34,878.5 $26;839.5 $4;380.1 $9,779.5 New Multifamily 19,773:2 16,.70.7.,7 13;472.7 0:0 0.0 Res. Alterations/Additions 7,454.0 9,044.4 7,351..0 4,869.2 4.697.2 Total Residential 92,279.9 60,630.5 47,663.2 91249:2 14,476.8 New Commercial 14;985.0 13,878:5 24,747.7 2,400:0 0.0 New Industrial 6: 0.0 2,360 .0.0 0.0 0.0 New Other 8,418.1 3,285.7 1,363.8 2;022.1 1.,173.2 Com. Alterations/Additions 12,71.3.2 18,963.1 16,579.8 20;812.4 8,652.7 Total Nonresidential 36,1'16.2 38,493.2 42,691.3 25,234.5 9,826.0 New Dwelling Units 1'06:300.6 87,097:7 43;318.6 Single Family 210 125 114 113 30 Multiple Family 1'59 147 72 0 0 TOTAL 369 272 186 13 30 Source: Construction Industry. Research.Board, Building Permit Summary. • Building activity for -the -years 20.05 through 2009 in the County is, shown in the following table. 'COUNTY OF SONOMA Total Building.Permit'Val uations (Figures in Thousands) New Dwellino Units Single Family 1639 1,361 904 546 359 Multiple Family 1364 601 622 45 71 TOTAL 3,003 1,962 1:,526 591 43.0 Source: Construction Industry Research Board, Building Permit Summary. A-126 2005 2006 2007' 2008 2009 Permit Valuation New"Single=family $398,597:3 $3281693.2 $2.19.,642.1 $142,928.4 $ 93,260.5 New Multi;family. 128;382.4 65,621.5 '86;982.7 5,915.2 12,433.0 Res. Alterations/Additions 89,454..4 93,193.0 71,029.9 60,566.8 38.404.4 Total Residential 6115,434.0 487,507.6 377,654.6 209,410.5 144,097.9 New Commercial 79,743.3 64,233.7 59,683.5 53,072.9 5,343.8 New Industrial 3,127.3 8,914.0 5,426:0 3,619.1 1,191.1 New Other 51,523.2 52,311.9 46,140.0 36,591.7 18,725,8 Com.' Alterations/Additions 88,695.5 102;629.1 1'06:300.6 87,097:7 43;318.6 Total Nonresidential 223,089.2 228,088:8: - 217,550.1 180,381.4 68,579.3 New Dwellino Units Single Family 1639 1,361 904 546 359 Multiple Family 1364 601 622 45 71 TOTAL 3,003 1,962 1:,526 591 43.0 Source: Construction Industry Research Board, Building Permit Summary. A-126 0 n u Transportation A local bus transit system serves the City of Petaluma, as well as Golden Gate Transit, which provides access to the entire Bay Area. There is a municipal airport, and airport express service to the major airports serving Sonoma County, Oakland and San Francisco International airports. There are active plans to expand rail services to the region, with funding to be provided 'by'a voter --approved sales tax increase. A-127 • APPENDIX E FORM OF CONTINUING DISCLOSURE CERTIFICATE CITY OF PETALUMA 2011 WASTEWATER REVENUE REFUNDING BONDS CONTINUING DISCLOSURE CERTIFICATE This Continuing Disclosure Certificate (the "Disclosure Certificate") is executed and delivered in connection with the issuance of the captioned bonds (the "Bonds") being issued by the City of Petaluma (the "City") under an Indenture of Trust dated as of February 1; 2011 (the "Indenture") between the City and The Bank of New York Mellon Trust Company, N.A., San Francisco, California, as trustee (the "Trustee"). The City covenants and agrees as follows: Section 1. Purpose of the Disclosure Certificate. This Disclosure Certificate is being executed and delivered by the City for the benefit of the holders and beneficial owners of the Bonds and in order to assist the Participating Underwriters in complying with S.E.C. Rule 15c2 - 12(b)(5). Section 2. Definitions. In addition to the definitions set forth above and in the Indenture, which -apply to any capitalized term used in this Disclosure Certificate unless otherwise defined in this Section 2, the following capitalized terms shall have the following meanings: ® "Annual Report" means any Annual Report provided by the City pursuant to, and as described in, Sections 3 and 4 of this Disclosure Certificate. "Annual Report Date" means the date, that is nine months after the end of the City's fiscal year (currently March 31 based on the City's fiscal year end of June 30). "Dissemination Agent' means the City or any successor Dissemination Agent designated -in writing by the City and which has filed with the City a written acceptance of such designation. "Listed Events" means any of the events listed in Section 5(a) of this Disclosure Certificate. `'MSRB means the Municipal Securities Rulemaking Board, which has been designated by the Securities and Exchange Commission as the sole repository of disclosure information for purposes of the Rule, or any other repository of disclosure information that may be designated by the Securities and Exchange Commission as such for purposes of the Rule in the future. "Official Statement' means the final official statement executed by the City in connection with the issuance of the Bonds. "Participating Underwriter" means any of the original underwriters of the Bonds required to comply with the. Rule in connection with offering of the Bonds. Preliminary; subject to change. A-129 "Rule" means Rule 15c2 -12(b)(5) adopted by the "Securities and Exchange Commission under the Securities Exchange Act of 1934, as it may-b'e amended from time to time. 0 Section 3. Provision of Annual Reports. (a) The City shall, or shall cause the Dissemination Agent to,, not later, than the Annual Report Date, .commencing",March 3:1., 2012, with the report for the Fiscal Year,2010-11, provide to the MSRB, in an electronic format, as prescribed by "the MSRB, an Annual Report that is consistent with the requirements of Section 4 of this Disclosure Certificate: Not later than 15 Business Days prior to"the Annual Report Date, the City -shall provide the Annual Report to the Dissemination ,Agent (if other than the City). If by 15' Business Days prior to the Annual Report Date the Dissemination Agent (if other than °the City) has not received a copy of the Annual Report, the Dissemination Agent shall contact:.the City to determineif theCity is in. compliance with the previous sentence: 'The Annual .Report may be submitted as a single document or as separate documents comprising a package, 'and may include by reference other information as provided' in Section 4 of this Disclosure Certificate; provided that the audited financial statements of the City may be submitted separately from the balance "of the Annual Report, and later than the Annual Report Date, if not available by that date. If the City's' fiscal year changes, it shall give notice of such change in the same manner as for a Listed Event under Section 5(c). The City shall provide a written certification with each Annual Report furnished to the Dissemination Agent to the effect that such Annual Report constitutes the Annual Report required to be furnished by the City hereunder-. The Annual Report may be submitted ,as ,a single document or as :separate documents comprising a package, and may include by reference other information:as provided in Section 4 of this Disclosure Certificate; provided that the audited'financial statements :of the City may be submitted separately from. the balance of the Annual Report, and later than the Annual Report Date if not available by that date. If the City's: fiscal `year changes, .it, shall give notice of such change in the same manner as for' a Listed Event under Section 5(c). The City shall provide a written certification with each Annual Report furnished to the Dissemination Agent to the effect that such Annual Report constitutes the Annual Report required to be furnished by the City hereunder. (b) If the City does not provide (or cause the Dissemination Agent to provide) an Annual Report by the Annual Report Date, the City shall provide (or cause the Dissemination Agent to provide) to the MSRB, in an electronic format as prescribed by the MSRB, a notice in substantially the form attached as Exhibit A". (c) With, respect to each Annual Report, the Dissemination Agent shall: (i) determine each year prior to the Annual Report Date the then -applicable • rules and electronic format prescribed 'by the MSRB for the filing of annual continuing disclosure reports; and (ii) if the Dissemination Agent .is other than the City, file a report with the City certifying that the Annual Report has. been provided pursuant to this Disclosure Certificate, and stating the date it was' provided. Section 4. Content of Annual Reports, The City's Annual Report shall contain or incorporate by reference the following: • A-130 • (a) The City's audited financial statements. prepared in accordance with generally accepted accounting, principles as promulgated to "apply to governmental entities from time to time by the Governmental Accounting°:Standards Board. If the City's audited financial statements are not available by the the Annual Report Date, the Annual Report shall contain unaudited financial statements in a format similar to the financial stateiments contained in the final ,Official Statement, and the audited financial statements shall .be filed in the same manner as the Annual Report when they become available. (b) Unless otherwise provided in the audited financial statements filed on or before the Annual Report Date, financial information and operating data with respect to the City for the preceding fiscal year, substantially similar to that provided in the corresponding statements and tables in the Official Statement: (i) Principal amount of Bonds outstanding. (ii) Balance in the Reserve Fund and a statement of the Reserve Requirement. (iii) The information for the most recently completed fiscal year in the form -of Tables 2, 3, 41 5, 12 and 14 (based on actual results for the most recently -completed fiscal year only; no projections for future years is required). (iv) A summary of any changes in the City's wastewater service charges since the date of the previous Annual Report. (v) A description of any Parity Debt issued during the most recently completed fiscal year. (c) In addition to any of the information expressly required to be provided under this Disclosure Certificate, the City shall provide such further material information, if any, as may be necessary to make the specifically required statements, in the light of the circumstances under which they:are made, not misleading. (d) Any or all of the items listed above may be included by specific reference to other documents, including official statements of debt issues of the City or related public entities, Which are' available to the public on the MSRB's Internet website or filed with the Securities and Exchange Commission. The City shall clearly identify each such other document so included by reference. Section 5. Reporting of Sianificant Events. (a) The City shall give, or cause to be given, notice of the occurrence of any of the following Listed Events with respect to the Bonds: (1) Principal and interest payment delinquencies. (2) Non-payment related defaults, if material. (3) Unscheduled draws on debt service reserves reflecting financial 0 difficulties. A-131 (4) Unscheduled ,draws on credit enhancements reflecting financial difficulties. (5) Substitution. of'credit or liquidity providers, or their failure to. perform. (6) Adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of ProposedIssue (IRS Form 5701-TEB) or, other material notices or determinations with respect,to the tax status of the security, or other material events affecting the'tax status of the security. (7) Modifications to rights of security holders, 'if material. (8) Bond calls, if material, and'tender offers. (9) Defeasances. (10) Release, substitution, or sale of property securing repayment of the securities, if material. (11) Rating changes. (12) Bankruptcy, insolvency; receivership or similar event of the City. (13), The consummation of'a merger, consolidation, or acquisition involving the City or the sale of,all or substantially all of the assets of the City, other than in the ordinary course of business, the entry into. a definitive agreement to undertake such, an action or .the; termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if, material. (14) Appointment ;of a successor or additional trustee or the change-of'name of a trustee, if material. • (b) 'Whenever the City obtains knowledge of the occurrence of a Listed Event, and, if. the Listed' Event is described in subsections (a)(2), (a)(6), (a)(7), (a),(8) (if the event is a bond call), (a)(1.0), (a),(13) or (a),(!4) above;. the City determines that knowledge, of the: occurrence of that Listed Event would 'be material under applicable Federal securities law, the. City shall, or shall cause the Dissemination Agent (if notthe City) to, file a notice, of such occurrence with the MSRB, in an electronic format as prescribed by the MSRB, in, a timely manner not in excess of 10' business :days after 'the occurrence of the Listed Event. Notwithstanding the foregoing, notice -of Listed; Events described in subsections (a)(8) and (9) above rieed.not be given under this subsection any earlier than the notice (if any) of the .underlying event is given to holders of affected Bonds under the Indenture. Section 6. Identifvina Information for- Filings with the MSRB. Ali documents provided to the MSRB: under the Disclosure Certificate shall be: accompanied by identifying information as prescribed by the MSRB. Section 7. Termination of Reporting Obliaatiorn. * The City's obligations under this Disclosure Certificate shall terminate upon the legal d%efeasance, prior, redemption or ,payment in full of all of the .Bonds. If such termination occurs prior to the final maturity of the. Bonds,;, the City shall give notice of such termination in the same manner as for a Listed ,Event under Section 5(c), Section 8. Dissemination Aaent. The City may; from time to time, appoint or engage a Dissemination Agent to, assist 'it'in carrying out its obligations under. this Disclosure Certificate, and may discharge any Dissemination Agent, with or without appointing a successor . A-132 Dissemination Agent. The initial Dissemination Agent shall 'be, the City. Any Dissemination Agent may resign by providing 30 days' written notice -to the City. Section 9. Amendment; Waiver. Notwithstanding any other provision of this Disclosure Certificate, the. City may amend this Disclosure Certificate, and any provision of this Disclosure Certificate may be waived, provided that the following conditions are satisfied: (a) if the amendment or waiver relates to the provisions of Sections 3(a), 4 or 5(a), it may only be made in connection with a change in circumstances that arises from a change in legal requirements, change in law, or change in the identity, nature, or status of an obligated person with respect to the. Bonds, or type of business conducted; (b) the undertakings herein, as proposed to be amended or waived, would, in the opinion of nationally recognized bond counsel, have complied with the requirements of" the Rule at the time of the primary offering of the Bonds, after taking into account any amendments or interpretations of the Rule, as well as any change in circumstances; and (c) the proposed amendment or waiver either (i) is approved by holders of the Bonds in the manner- provided in the Indenture for amendments to the Indenture with the consent of holders, or (ii) does not, in the opinion of nationally recognized 'bond counsel, materially impair the interests of the holders or beneficial owners of the Bonds. If the annual financial information or operating data to.be provided in the Annual Report is -amended pursuant to the provisions hereof, the first Annual Report filed ,pursuant hereto containing the amended operating data or financial information shall explain, in narrative form, the reasons for the amendment and the impact of the change in the type of operating data or financial information being provided. If an amendment is made .to this Disclosure Certificate modifying the accounting principles to be followed in preparing financial statements, the Annual Report for the year in which the change is made shall present a comparison between the financial statements or information prepared on the basis of the new accounting principles and those prepared on the basis of the former�accounting principles. The comparison shall include a qualitative discussion of the differences in the accounting principles and the impact of the change in the accounting principl'es� :on 'the presentation of the financial information, in order to provide information 10 investors to enable theme to evaluate the ability of the City to meet its obligations., To the extent reasonably feasible, the comparison shall be quantitative. A notice of any amendment made pursuant to this Section 9 shall be filed in the same manner as for a Listed Event under Section 5(c). Section 10. Additional Information. Nothing in this Disclosure Certificate shall be deemed to prevent the City from disseminating any other information, using the means of dissemination set forth in this Disclosure Certificate or any other means of communication, or including any other information in any Annual Report or notice of occurrence of a Listed Event, in addition to that which is required by this Disclosure Certificate. If the City chooses to include any information in any Annual Report or notice of occurrence of a Listed Event in addition to that which is specifically required by this Disclosure Certificate, the City shall have no obligation A-133 under this Disclosure Certificate to update such information or include it in any -future. Annual • Report or notice of occurrence of a Listed. Event. Section 11. Default. If the City fails to 'comply with any provision of this Disclosure Certificate, the Participating Underwriter :or any'holder or beneficial owner of the Bonds may take such actions as may be necessary and appropriate, including .seeking mandate or specific performance by court order, to cause the City to comply with its obligations under this Disclosure Certificate. A default under this Disclosure Certificate shall not be deemed an Event of Default under the Indenture,_ and the sole remedy under this. Disclosure Certificate in the event of any failure:,of the City to cornply� with this Disclosure Certificate shall .be an action to compel, performance. Section 12. Duties, Immunities and Liabilities of Dissemination Aaent. (a) The Dissemination Agent: shall have only such duties as are specifically set -forth in this Disclosure Certificate, and the City agrees to indemnify and save the Dissemination Agent, its. officers, directors, employees and agents, harmless against any loss, expense !and liabilities which they may incur .arising out. of or in the exercise or, performance of its: powers and, duties hereunder, including the costs. and expenses (including attorneys fees) of defending against any claim of liability, but excluding liabilities due to the Dissemination Agent's negligence or willful misconduct. The Dissemination.Agent' shall have no duty or obligation to review any information provided to it by .the; City hereunder, and shall. not. be deemed to be acting 'in any fiduciary capacity for the City, the Bond holders or any other- party. The obligations of`the City under this Section shall survive resignation or removal of the Dissemination Agent, and payment of the Bonds. (b) The, Dissemination Agent shall be paid compensation by the. City for its services provided hereunder in accordance with its schedule of fees as .amended from.:time to time, and shall be reimbursed for all expenses, legal fees and. advances made or incurred by the Dissemination Agent in the performance, of its duties hereunder: Section 1.3. Beneficiaries. This Disclosure Certificate shall inure solely to the benefit of the City, the Dissemination Agent, the .Participating Underwriters and holders `and beneficial owners from time to time of the Bonds, and shall create no rights in any other person or entity. Section 14.,. Counterparts. This Disclosure Certificate may be executed in several counterparts, each of which shall be regarded as an original, and .all of which shall constitute one and the same instrument. Date: 2011 A-134 EXHIBIT A NOTICE OF FAILURE TO FILE ANNUAL REPORT Name of Issuer: City of Petaluma Name of Issue: City of Petaluma, 2011 Wastewater -Revenue Refunding Bonds Date of Issuance: February _, 2011 NOTICE IS HEREBY GIVEN that the City has not provided an Annual Report with respect to the above -,named Bonds as required by the Indenture,. dated as of February 1, 2011, by and between the City and The Bank of New York Mellon Trust Company, N.A., as trustee. The City anticipates that the Annual Report will be filed by Dated: DISSEMINATION AGENT: By: 'Its: A-136 • • • APPENDIX F BOOK ENTRY ONLY SYSTEM The following description of'the Depository Trust Company ("DTC'),, the procedures and record.keeping with respect to beneficial ownership interests in the Bonds, payment of principal, interest and other payments on the Bonds to DTC Participants or Beneficial Owners, confirmation and transfer of beneficial ownership interest in the Bonds and other related transactions by and' between DTC, the DTC Participants and the Beneficial Owners is based solely on ' information provided .by DTC. Accordingly, no representations can be made concerning these matters and neither the DTC Participants nor the Beneficial Owners should rely on the foregoing information with respect to such matters, but should instead confirm the same with 'DTC or the DTC Participants, as the case may be. Neither the issuer of the Bonds (the "Issuer) nor the trustee, fiscal agent or paying agent appointed with respect to the Bonds (the "Agent') take any responsibility for the information contained in this Appendix. No assurances can be given .that DTC, DTC Participants or Indirect.Participants will distribute to the Beneficial Owners (a) payments of interest, principal or premium, if any, with respect to the* Bonds, (b) certificates representing ownership interest in or other confirmation or ownership interest in the Bonds, or (c) redemption or other notices sent to DTC or Cede & Co., its nominee, as the registered owner of the Bonds, or that they will so do on a timely basis, or that DTC, DTC Participants or DTC Indirect Participants will act in the manner described in this Appendix. The current "Rules" applicable to DTC are on file with the Securities and Exchange • Commission and the current "Procedures" of DTC to be followed in dealing with DTC Participants are on file with DTC. 1. The Depository Trust Company ("DTC"), New York, NY, will act as, securities depository for the securities (the "Securities"). The Securities will be issued as fully -registered securities registered in the name of Cede & Co. (DTC's partnership nominee) or such other name as may be requested by an authorized representative of DTC. One fully -registered Security certificate will be issued for each issue of the Securities, each in the aggregate principal amount of such 'issue, and will be deposited with DTC. If, however, the aggregate principal amount of any,issue exceeds $500 million, one certificate will be issued with respect to each $560 million of principal amount, and ran additional certificate will be issued with respect to any remaining principal amount of such issue. 2. DTC, the world's. largest, securities depository,. is a limited -purpose trust c6noeirny` organ ized';undelrthe'New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System,, a "clearing corporation" within the _meaning of the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides asset servicing for over 3.5 million issues of U.S. and non -U.S. equity issues, corporate and municipal debt issues, and money market instruments (from over 100 countries) that DTC's participants ("Direct Participants") deposit with DTC. DTC also facilitates the post -trade settlement among Direct Participants of sales and other securities transactions in deposited securities, through electronic computerized book -entry transfers and pledges between Direct Participants' accounts. This eliminates the need for physical movement of securities certificates. Direct Participants include both U.S. and non -U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation ("DTCC"). DTCC is A-137 the holding company for DTC, National Securities Clearing Corporation and Fixed Income • Clearing Corporation, all of which are registered .clearing agencies. DTCC is owned by the users of its regulated "subsidiaries: Access to the DTC system is also available to others such as both U.S. and non -U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that. clear through or maintain .a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants"). DTC has Standard &. Poor's highest rating: AAA. The DTC Rules applicable to,its Participants are -on file with. the Securities and Exchange Commission. More information about DTC can be- found at, www.dtcc.com and www,,dtc.org. The information contained on this Internet site is not incorporated herein by reference. 3. Purchases, of ,Securities under the DTC 'system ,must ber made by or.through Direct Participants; which will receive a credit for,the, Securities on DTC's records. The ownership interest of each actual purchaser of each Security ("Beneficial Owner") is in turn to be ,recorded on the Direct and Indirect Participants' .records. ,Beneficial Owners will not receive written confirmation from 'DTC of their purchase. Beneficial Owners' are, however, expected to receive written confirmations providing details sof the transaction, as well as• periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers, of ownership interests in the Securities are to be accomplished by entries made on Ahe books. of Direct and Indirect Participants acting on 'behalf of. Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership nterests in Securities, except in the event that' use of the book -entry system for the Securities is discontinued. 4. To facilitate s_ubseq'uent transfers, all Securities deposited by Direct Participants with DTC, are registered in the name of, DTC's partnership .nominee, Cede & Co.,, .or such other name as may be requested by an authorized representative of DTC. The deposit of Securities with DTC and their registration in the name :of Cede & Co. or such other DTC nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the ,Securities; DTC'.s records reflect only the identity of the Direct Participants -to whose accounts such Securities are "credited,' :which m'ay or may not be the Beneficial Owners.. The Direct and' Indirect Participants will remain responsible for keeping account of their holdings on behalf of `their customers. 5. Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants.to Indirect Participants, and by Direct Participants and. Indirect Participants to Beneficial Owners. will be, governed- by arrangements among. them; subject to any statutory or regulatory requirements as may be in effect from time to time. Beneficial Owners of Securities may wish to take. certain steps to augment the transmission to"them of notices of significant events, with respect 'to the Securities, such as redemptions, tenders, defaults,, and proposed amendments to the Security .documents. For example, Beneficial Owners of Securities may wish to ascertain that the nominee holding the Securities for their benefit has agreed to obtain and transmit notices .to Beneficial Owners. In, rtho alter"natiive, .Beneficial Owners ,may wish to provide their names and addresses to the registrar and request that copies of notices be provided directly to them-. 6. Redemption notices shall be sent to DTC. If less than all of the Securities within an issue are being redeemed, DTC's'practice is to determine by lot the amount of the 'interest of each. Direct Participant in such issue to be redeemed. 7. ,Neither DTC nor Cede & C.o. '(nor any other DTC nominee) will consent, or vote with respecf to Securities unless authorized by a. Direct Participant in accordance with DTG.'s MMI Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to Issuer as soon 'as A-138 • possible after the record date. The Omnibus Proxy assigns Cede. & Co.'s consenting or voting rights to those Direct Participants to whose. accounts Securities are credited on the record date (identified in a listing attached to the Omnibus Proxy). 8. Redemption proceeds, distributions, and dividend payments on the Securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. 'DTC's practice is to credit Direct, Participants' accounts upon DTC's receipt of funds and corresponding detail information from Issuer or Agent, on payable date in accordance with :their respective holdings shown on DTC's records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such Participant and not of DTC, Agent, or Issuer, subject to any statutory or,regulatory requirements as may be in effect from time to time. Payment of redemption proceeds, distributions, and dividend payments to Cede & Co. (or such other nominee as may be requested_ by an authorized representative of DTC) is the responsibility of Issuer or Agent, disbursement of such payments to Direct Participants will be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners will be the responsibility of Direct and Indirect Participants. 9. DTC may discontinue providing its services as depository with respect to the Securities at any time by giving reasonable notice to Issuer or Agent. Under such circumstances, in the event that a successor depository is not obtained, Security certificates are required to be printed and delivered. 10. Issuer may decide to discontinue use of the system of book -entry -only transfers through DTC (or a successor securities depository). In that event, Security certificates will be printed and delivered to DTC. 11. The information in this section concerning DTC and DTC's book -entry system has been obtained from sources that Issuer believes to be reliable, but Issuer takes no responsibility for the accuracy thereof. A-139 APPENDIX H • RATE STUDY Previously distributed to City Council, not reattached for the Council meeting of February 7, 2011 consideration of bond issuance. • A-140 • Attachment 5 16005-09 JH:KST January 7, 2011 BOND PURCHASE CONTRACT CITY OF'PETALUMA 2011 WASTEWATER REVENUE REFUNDING BONDS j, 2011 City of Petaluma 11 English St. Petaluma, CA 94952 Ladies and Gentlemen: The undersigned (the "Underwriter"), hereby offers to enter into this Bond Purchase Contract (this "Bond Purchase Contract") with the City. of Petaluma (the "City"), which upon acceptance of this offer by the City, will be binding upon the City and the Underwriter. This offer is made subject to its acceptance by the City by execution and delivery of this Bond Purchase • Contract to the Underwriter by 11:59 p.m., Pacific Time, on the date hereof, and, if not so accepted, will be subject to withdrawal by the Underwriter upon written notice to the City at any time prior to acceptance hereof by the City. SECTION 1. Purchase and Sale of Bonds. (a) Subject to the conditions, and upon the basis of the representations, warranties and covenants hereinafter set forth, the Underwriter hereby' agrees to purchase from the City, and the City hereby agrees to sell to the Underwriter, all (but not less than all), of the above -titled bonds (the "Bonds") at a price of $ (which price .is equal to the aggregate principal amount of the Bonds, plus original issue premium of $ and less an Underwriter's discount of $ ). The Bonds are being issued under the provisions of Articles 10 and 11 of Chapter 3 of Part 1 of Division 2 of Title 5 of the California Government Code (the "Bond Law") and an Indenture of Trust (the "Indenture") dated as of r 1, 2011, between the City and The Bank. of New York Mellon Trust Company, N.A., as trustee (the "Trustee"). In 2000, the City authorized, issued and sold $8,895,000 initial principal amount of its City of Petaluma Wastewater Revenue Bonds, Series 2000 (the "2000'Bonds") pursuant to an Indenture of Trust, dated as of May l,'2000 (the "2000 Indenture"), by and between the City and Norwest Bank Minnesota, N.A. (the "2000 Trustee"). The 2000 Bonds are subject to redemption on any date at a redemption price equal to the principal amount of the 2000 Bonds to be redeemed, plus accrued interest thereon to the date of redemption, without premium. The City entered into a Revolving Credit Agreement (as amended, the "BNP Credit Agreement") with BNP Paribas ("BNP Paribas"), dated as of September 1, 2005, under which • BNP Paribas advanced funds to the City under a revolving line of credit (the "BNP Line of q- 141 Credit'). The City has the right to prepay the BNP Line of Credit at any time, subject to compliance with all notice terms contained in the BNP Credit Agreement. The City entered into a Revolving Credit Agreement (as amended, the "Zions Credit Agreement") with Zions First National Bank ("Zions"), dated as of September 1, 2005, under which Zions advanced funds to the City under a revolving line of credit (the "Zions Line of Credit"). The City has the right to prepay the Zions Line of Credit at any time, subject to compliance with all notice terms contained in the Zions Credit Agreement. The Bonds are being issued to (i) defease, prepay and redeem the 2000 Bonds, the BNP Line of Credit, the Zions Line of Credit (the "Prior Obligations"); (ii) fund -a debt service reserve fund for the Bonds (the "Reserve Fund"); and (iii) pay the costs of issuing the Bonds. On the date of issuance of the Bonds, the City will deposit into an Escrow Fund established under the Indenture and held by the Trustee (the "Escrow Fund"), 'an amount sufficient to prepay and defease the Prior Obligations. The Trustee will invest a portion of the amounts deposited in the Escrow Fund in [0% State and Local Government Securities]. All of the amounts held in the Escrow Fund will be applied to pay the redemption price of the Prior Obligations (b) The Bonds shall be as described in the Preliminary Official Statement, dated f . 1, 2011, relating to the Bonds (the "Preliminary Official Statement"). In connection with distribution of the Preliminary Official Statement, the City will execute a certificate in the form attached hereto as Exhibit B. • The Bonds shall be dated their date of issuance and, shall mature on the dates and bear interest at the rates per annum set forth in Schedule A hereto. As provided in the Indenture, the Bonds will be special obligations of the City payable solely from the Net Revenues (as defined in the Indenture) derived from the City's wastewater and storm drainage system (defined more completely in the Preliminary Official Statement, the "Wastewater System")and amounts on deposit in certain funds and accounts held under the Indenture. [Payment of the principal of and interest on the Bonds will be insured by a financial guaranty insurance policy (the "Bond Insurance Policy") issued by Assured Guaranty (the `'Bond Insurer").] 10 A final Official Statement, dated the date hereof and in the form of. the Preliminary Official Statement with such additions and changes as shall be accepted by the Underwriter and the City (the "Official Statement"), signed on behalf of the City by its authorized signatory, shall be delivered b ' y the City to the Underwriter on the Closing Date (defined below). The Preliminary Official Statement and the Official Statement shall each be deemed to include their respective cover pages, and all summary statements, appendices, other materials included with or attached to each of them and any amendments or supplements thereto. The Indenture, the Continuing Disclosure Certificate (described below) and this Bond Purchase Contract are referred to herein collectively as the "Financing Agreements." All capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Indenture. -2- f} - 142 (c) The Underwriter agrees to make an initial bona fide public offering of the Bonds at a price or prices (or yield or yields) not in excess of the public offering price or prices (or yield or yields) set forth in the Official Statement, and may subsequently change such offering price or prices (or yield or yields). The Underwriter may offer and sell the Bonds to certain dealers (including dealers depositing Bonds. into investment trusts) at a price or prices lower (or yield or yields higher) than the public offering price or prices (or yield or yields) set forth in the Official Statement. The Underwriter also reserves the right to (i) over -allot or effect transactions that stabilize or maintain the market prices of the Bonds at levels above those which might otherwise prevail in the open market and (ii) discontinue such stabilizing, if commenced,, at any time without prior notice. (d) The City hereby authorizes the Underwriter to use copies of the Preliminary Official Statement and the Official Statement and copies of the forms of the Indenture and the Continuing Disclosure Certificate in connection with the public offering and sale of the Bonds. The City further agrees not to supplement or amend, cause to be supplemented or amended or agree to any supplement or amendment of the. Preliminary Official Statement (except as contemplated by the Official Statement) or the Official Statement at any time prior to the Closing Without the prior written. consent of the Underwriter. The City .ratifies and consents to the distribution and use of the Preliminary Official Statement by�the Underwriter prior to the date hereof, .and hereby represents that pursuant to the executed certificate attached hereto as Exhibit B, the Preliminary Official Statement was "deemed final" by the City as of the date thereof within the meaning of.paragraph Rule 15c2-12 of the Securities and Exchange Act of 1934, as amended ("Rule 15c2-12"), except for the omission of such information as may be permitted by Rule 15c2-12. • (e) The City agrees that there shall be delivered to the Underwriter, within seven (7) business days of the date hereof, sufficient copies of the Official Statement, as requested by the Underwriter to comply with the requirements of Rule 15c2-12, and with the requirements of Rule G-32 of the Municipal Securities Rulemaking Board. (f) .If, at any time prior to the date twenty-five (25) days following the later of the Closing Date or the date the Underwriter no longer retains, directly or as a member of an underwriting syndicate, an unsold balance of the, Bonds for sale to the public, which date shall be provided to the City by written notice of the Underwriter (the "End of the Underwriting Period"), any event of which the City.has knowledge shall occur which might or would cause the Official, Statement to contain an untrue statement of a material fact or to omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances corder which they were made, not misleading, the City will promptly notify the Underwriter in. Writing of the circumstances and details of such event. If, as a result of such event or any other event, it is necessary, in.the opinion of the Underwriter, the City or their respective counsel, to amend or supplement the Official Statement in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the City will forthwith cooperate with the Underwriter in the prompt preparation and furnishing to the Underwriter of a reasonable number of copies of an amendment of or a supplement to the Official Statement, in form and substance reasonably satisfactory to the Underwriter, which will so amend or supplement the Official Statement so that, as amended or supplemented, it will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (g) .The City will undertake to provide certain annual financial information and notices of the occurrence of certain events, if material, pursuant to a Continuing Disclosure Certificate -3- �} ' 143 • dated the date of issuance of. the Bonds (the "Continuing Disclosure Certificate"). A description of this undertaking is set forth in the Preliminary Official Statement and will also be set forth in the Official Statement. SECTION 2. Closing: At 8:00 a.m., Pacific Time, [March _J, 2011, or at such other time on such, earlier*or later date as shall have beern mutually agreed upon by the City and the Underwriter, the City will deliver or cause to be delivered to the Underwriter the Bonds duly authenticated by the Trustee, together with the other documents hereinafter mentioned, and the Underwriter will accept such delivery and pay the purchase price of such Bonds as set forth in Section 1 hereof by federal funds wire. The consummation of the purchase and delivery of such Bonds as aforesaid shall be made at the offices of Jones Hall, A Professional Law Corporation, San Francisco, California ("Bond Counsel"), or at such other place as shall be agreed upon by the City and the Underwriter; provided, the Bonds will be delivered in New York, New York through the facilities of The Depository Trust Company. Such purchase and delivery is herein called the "Closing" and the date and time of the Closing is herein called the "Closing Date." .The Bonds shall be executed, authenticated and delivered under and in accordance with the provisions of this Bond Purchase Contract and the Indenture. The Bonds shall be in definitive form, shall bear CUSIP numbers, and shall be fully -registered bonds, registered in the name of Cede & Co., as nominee for The Depository Trust Company, with one bond for each maturity of the Bonds in the principal amount of such maturity. The Bonds shall be made available to the Underwriter for purposes of inspection at. least two business days before the Closing Date. • SECTION 3. Representations and Warranties. (a) The Underwriter hereby represents that it has full power and authority to enter into this Bond Purchase Contract, that the execution, delivery and performance of this Bond Purchase Contract and the purchase of the Bonds contemplated herein have been duly authorized by the Underwriter, and that this Bond Purchase Contract, upon due authorization, execution and delivery by the City, will be a valid and binding obligation of the Underwriter. (b) The City, by its acceptance hereof, represents, warrants, covenants and agrees with the .Underwriter as follows: (1) The City is a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, and the City Council of the City; by adoption of its Resolution on January _, 2011 (the "Bond Resolution") has duly approved the execution and delivery of the Financing Agreements and the Official Statement and the issuance of the Bonds, and the City has full right, power and authority to execute, deliver and perform its obligations under the Financing Agreements and to carry out and consummate the transactions contemplated by the Financing Agreements. (2) The City has, on or before the date hereof, duly adopted the Bond Resolution andtaken all action necessary to be taken by it prior to such date for (A) the issuance, sale and delivery of the Bonds upon the terms and conditions and for the purposes described herein, in the Indenture and in the Official Statement, (B) the execution and deliveryof the Financing Agreements and performance of its obligations thereunder, (C) the authorization of the distribution of the Preliminary Official Statement and the approval, execution, delivery and distribution of the Official Statement, and (D) the carrying out of, giving effect to, consummating and performing the transactions • and obligations contemplated to be performed by it by the Financing Agreements and by the Official Statement, provided that no representation is made with respect to -4- ,4 - 144 • compliance with the securities or "Blue Sky" laws of the various states of the United State's, and such resolution has not been amended, modified or repealed and is in full force and effect on the date hereof. I (3) The delivery of the Preliminary Official Statement and the execution and delivery by the City of the Financing Agreements and the Official. Statement, the compliance by it with the terms, conditions or provisions hereof and thereof, and the consummation on its part of the transactions herein and therein contemplated do not and will not, in any respect material for the performance by the City of its obligations under the Financing Agreements, conflict with or constitute a breach of or a default under nor contravene any law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or is otherwise subject, nor does any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security 'interest or encumbrance of any nature whatsoever upon any of the properties or assets of the City under any such law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, deed of trust, resolution, agreement or .other instrument in any respect material to the performance by the City of its obligations under the Financing Agreements, except as provided in the Financing Agreements and the Official Statement. (4) Except as may be required under Blue Sky or other securities laws of any state, there is no consent, approval, authorization or other order of, or filing with; or certification by, any regulatory authority having jurisdiction over the City required for the execution, delivery and sale of the Bonds or the consummation by the City of the • transactions contemplated by the Financing Agreements or the Official Statement, which has not been duly obtained or made on or prior to the date hereof. is (5) Except as described in the Official Statement, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending against or, to the best knowledge of the City, threatened against or affecting the City wherein an unfavorable decision, ruling or finding would adversely affect (A) the validity or enforceability of, or the authority or ability -of the City to perform its obligations under, the Financing Agreements or (B) the transactions contemplated to be performed by it under the Financing Agreements or by the Official Statement. (6) The City and the Wastewater System are not in default as to the payment of principal or interest with respect to an obligation issued or incurred by (i) the City solely as it is acting on behalf of the Wastewater System and (ii) the Wastewater System itself and involving expenditure by the City in excess of $100,000. (7) The City will cooperate.with the Underwriter in the qualification of the Bonds for offering and sale and the determination of the eligibility of the Bonds for investment under the laws of such jurisdictions as the Underwriter shall designate, and will use its best efforts to continue such qualification in effect so long as required for the distribution of the Bonds by the Underwriter, provided that the City shall not be required to take any action which would subject it to service of process or to register as a foreign corporation in any jurisdiction where it is not now so subject (and it is understood that the City is not responsible for compliance with or the consequences of failure to comply with applicable "Blue Sky" laws). -5- 145 • Preliminary Official (8) The. information contained in the Official Statement and Statement (except with respect to DTC and the book -entry system), as of its'date and the date hereof, did not, does not and will not, as of the Closing Date, contain any untrue statement of a material fact and did not, does not and will not, as of the Closing Date, omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. (9) After the Closing Date and prior to the End of the Underwriting Period, the City will not participate in the issuance of any amendment of or supplement to the Official Statement which, after being furnished with a copy, the Underwriter shall object in writing or which shall be reasonably disapproved of by counsel for the Underwriter. (10) The proceeds from the sale to the Underwriter of the Bonds will be applied in the manner and for the purposes specified in the Financing Agreements. (11) The City covenants that it will not take any action that would cause (i) the interest payable with respect to the Bonds to be included in gross income for federal :income tax purposes or (ii) interest payable with respect to the Bonds to be subject to State of California personal income taxes. (12) Any certificate of the City delivered to the Underwriter in connection with the transactions contemplated by the Official Statement and this. Bond Purchase Contract shall be deemed a representation by the City to the Underwriter as to the statements' made therein. (13) The Bonds are secured by a pledge of and payable from Net Revenues on a parity with the City's obligations under Interagency Sales Agreement (No. 05-803-550-0, as amended), dated August 25, 2006 with the State of California (the "SRF Loan"), as described more completely in the Preliminary Official Statement. Other than the SRF Loan and the Prior Obligations, there are no other liens or encumbrances on the Net Revenues. (14) (i) The Preliminary Official Statement heretofore delivered to the Underwriter is deemed final by the City as of its date and as of the date hereof; except for the omission of such information as is permitted to be omitted in accordance with paragraph (b)(1) of Rule 15c2-12: (ii) Except.as disclosed in the Preliminary Official Statement, the City has not previously failed to comply with any' continuing disclosure obligation undertaken pursuant to Rule 1'5c2=12. SECTION 4. Conditions to the Obligations of the Underwriter. The obligations of the Underwriter under this Bond Purchase Contract have been undertaken in reliance on, and shall be subject to, the due performance by the parties hereto of their respective obligations and agreements to be performed hereunder, and on and as of the date of delivery of this Bond Purchase Contract and on and as of the Closing Date. The obligations of the Underwriter hereunder to accept delivery.of and pay for the Bonds ,at the Closing are also subject, in the discretion of the Underwriter, to the following further conditions: (a) At the time of the Closing, (i) the Agreements shall be in full force and effect amended, modified or supplemented, except 0 Bond Resolution 'and the Financing and shall not have been rescinded, as may have been agreed to by the A - 146 0 Underwriter, and the City shall have adopted or executed and delivered, as the case may be, and there shall be in full force and effect such additional resolutions, agreements, opinions and certificates, which resolutions, agreements, opinions and certificates shall be reasonably satisfactory in form and substance to the. Underwriter, and there shall have been taken in connection therewith and in connection- with the issuance of the Bonds all such action as shall, in the opinion of the Underwriter, be necessary -in connection with the transactions contemplated hereby, (ii) the Bonds shall have been duly issued, authenticated and delivered, (iii) the Preliminary Official Statement and Official Statement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter, and (iv) the City shall perform or have performed all of its obligations under or specified in the Financing Agreements to be performed by the City at or prior to the Closing. (b) On the Closing -Date, there shall be delivered to the Underwriter in form satisfactory to the Underwriter: (i) Executed counterparts of the Financing Agreements, certified copies of the Bond Resolution, and such other documents and certificates as the Underwriter or its counsel may reasonably .require in order to evidence the accuracy or satisfaction of any of the representations, warranties or conditions herein contained. (ii) An approving opinion of Bond Counsel, substantially in the form attached as Appendix D to the Official Statement, and a letter from Bond Counsel addressed to the Underwriter expressly permitting the Underwriter to rely on such final approving opinion as if the Underwriter was an addressee thereof. (iii) A supplemental opinion of Bond Counsel dated the Closing Date, addressed to the Underwriter, to the effect that: (A) The City has duly and validly executed the Bond Purchase Contract, and the Bond Purchase Contract constitutes the legal, valid and binding agreement of the City, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights heretofore or hereafter enacted and to the exercise of judicial discretion in appropriate cases. (B) The Bonds are exempt from registration under the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended[, provided that no opinion need be expressed with respect to the Bond Insurance Policy]. (C) The statements contained in the Official Statement under the captions " THE BONDS" (other than the information relating to the book - entry only system), "SECURITY FOR THE BONDS," "TAX MATTERS" and in "APPENDIX B - Summary of Certain Provisions of the Indenture," and in "APPENDIX D - Form of Bond Counsel Opinion," insofar as such statements purport to summarize certain provisions of the Bonds, the Indenture and the opinion of Bond Counsel are accurate in all material respects. -7- A- 147 • (iv) A letter of Jones Hall, A Professional Law Corporation, as Disclosure Counsel, addressed to the Underwriter and dated the Closing Date, to the effect that no information came to the attention of the attorneys in such firm rendering legal services which caused such firm to believe that the Official Statement as of its date (except for any financial or statistical or,engineering data or forecasts, numbers, charts, estimates, projections, assumptions or expressions of opinion or any information about book -entry or The Depository Trust Company or the Bond Insurer, or the Bond Insurance Policy included therein, as to which no opinion or view need be expressed) contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (v) A certificate, dated the Closing Date, signed by an authorized official of the City, and in form and substance satisfactory to the Underwriter, to the effect that: that: (A) Except as described in the Official Statement, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the best knowledge of the City based on reasonable inquiry, threatened against or affecting the City wherein an unfavorable decision, ruling or finding would adversely affect the validity or enforceability of, or the authority or ability of the City to perform its obligations under, any of the Financing Agreements or the transactions contemplated to be performed by it as described in the Official Statement, or which would restrain or enjoin the sale, execution or delivery of the Bonds or in any way contest or affect the validity of the Bonds, the proceedings of the City taken with respect to the issuance, delivery or sale thereof, the pledge or application of any moneys or securities provided for the payment of the Bonds and the, existence or powers of the City or the title of any officers of the City to their respective positions. (B) The representations and warranties of the City contained in this Bond Purchase Contract are true and correct in all material respects on and as of the Closing Date. (C) The City has complied, or is presently in compliance, with all agreements and has satisfied all conditions on its part to be observed or satisfied under the Financing Agreements at or prior to the Closing Date. (D) The information and statements in the Official Statement (except with respect to DTC and the book -entry system) [and with respect to the Bond Insurer and the Bond Insurance Policy] do not contain any untrue statement of a material. fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (vi) An opinion of the City Attorney, dated the Closing Date, to the effect (A) The City is a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California; -8- A- 148 • (B) The City has full legal power and lawful authority to enter into the Financing Agreements; (C) The Financing Agreements have been duly authorized, executed and delivered by the City and constitute the legal, valid and binding agreements of the City enforceable against the City in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization moratorium or similar laws or equitable principles relating to or limiting. creditors' rights generally; .(D) The Bond Resolution, approving and authorizing the execution and delivery of the Financing Agreements and approving the Official Statement, was duly adopted at a meeting of the City Council called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout and the Bond Resolution is in full force and effect and has not been modified, amended or rescinded; (E) The execution and delivery of the Financing Agreements and compliance with the provisions thereof, under the circumstances contemplated thereby, do not and will not in any material respect conflict with,, or constitute on the part of the City a breach of or default under, any • agreement or other instrument to which the City is a party or by which it is bound or any existing law, regulation, court order or consent decree to which the City is subject; is (F) No additional authorization, approval, consent, waiver or any other action by any person, board or body, public or private, not previously obtained is required as of the date of the Closing for the City to enter into the Financing Agreements, or to perform its obligations thereunder; (G) Except as otherwise disclosed in the Official Statement, there is no litigation, proceeding, action, suit, or investigation at law or in equity before or by any court, governmental agency or body, pending or, to the best knowledge of such counsel after due investigation, threatened against the City, challenging the creation, organization or existence of=the City, or the validity of the Financing Agreements or seeking to restrain or enjoin the City's obligations under the Financing Agreements or in any way contesting or affecting the validity of the Financing Agreements or any of the transactions referred to therein or contemplated thereby or contesting the authority of the Cityto enter into or perform its obligations under any of the Financing Agreements, or under which a determination adverse to the City would have a material adverse effect upon the financial condition or the revenues of the City, or which, in any manner, questions or affects the right or ability of the City to enter into the Financing Agreements or affects in any manner the right or ability of the City to pay debt service on the Bonds; -9- A - 149 • (H) Nothing has come to the attention of such counsel which would lead it to believe that the Official Statement (excluding therefrom the financial and statistical data and forecasts included therein and information about [the Bond Insurer and] The Depository Trust Company, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (vii) An opinion of counsel to the Trustee, dated the Closing Date, to the effect that: (A) The Trustee is a national banking association duly organized and existing under the laws of the United States of America and has duly authorized; executed and delivered the Indenture and by all proper action has authorized acceptance of the trusts created thereunder. (B) The Trustee. has all necessary power and authority to enter into, and perform its duties and accepts the trusts created under, the Indenture. (C) The Indenture constitutes a legally valid and binding obligation of the Trustee, enforceable against the Trustee in -accordance with its terms, except as such enforcement may be limited by bankruptcy, • insolvency, moratorium, reorganization or other similar laws or equitable principles relating to or limiting creditors' rights generally. (D). The Bonds have been validly authenticated by the Trustee. (E) The Trustee has duly authorized, executed and delivered the. Indenture and by all proper action has authorized acceptance of the trusts created thereunder. (viii)An executed copy of a nonarbitrage certificate in form and substance satisfactory to Bond Counsel, together with a copy of the completed and executed IRS Form 8038-G. (ix) A certificate dated the Closing Date and signed by the Trustee or its desigriee, in form and substance satisfactory to the Underwriter to the effect that: (A) The Trustee is duly authorized to enter into the Indenture and to authenticate the Bonds pursuant to the terms of the Indenture. (B) The Bonds have been duly authenticated and delivered by the Trustee to the Underwriter pursuant to the direction from the City. (C) The Trustee is not in breach of or default under any law or administrative rule or regulation of the State of California or the United States of America, or of any department, division, agency or instrumentality thereof, or any applicable court or administrative decree or order, or any other instrument to which the Trustee is a party or is -10- A - iso • otherwise subject or bound and which would materially impair the ability of the Trustee to perform its obligations under the Indenture. (D) To the best of the Trustee's knowledge, the execution and delivery of the Indenture and the authentication of the Bonds will not conflict with or constitute a breach of or default under the Trustee's duties under any law, administrative regulation, court decree, resolution, charter or bylaws to which the Trustee is subject or by which it is bound. (x) [A specimen of the Bond Insurance Policy.] (xi) [An opinion of counsel to the Bond Insurer, in form satisfactory to the Underwriter.] (xii) [A certificate of the Bond Insurer to the effect that the information in the Official Statement regarding the Bond Insurer and the Bond Insurance Policy is accurate.] (xiii) Written evidence satisfactory to the Underwriter that the ratings described in the Official Statement shall be in effect on and as of the Closing Date. (xiv)Evidence of compliance with Section 9.03 of the 2000 Indenture, including evidence of delivery of a report of (x) an independent certified public accountant verifying the sufficiency of the amounts in an escrow established to pay the 2000 Bonds in full (the "Verification") and (y) an opinion of nationally recognized bond counsel to the effect that the 2000 Bonds are no longer "Outstanding" under the 2000 Indenture to the City and the 2000 Trustee: (xv) A report of an independent nationally recognized certified public accountant verifying the sufficiency of amounts deposited into the Escrow Fund established under the Indenture to accomplish the proposed defeasance, prepayment and redemption of the Prior Obligations. (xvi) Copies of all closing documents required by, and delivered pursuant to, the Indenture, and such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriter, Underwriter's Counsel, general counsel to the City or Bond Counsel may reasonably request. If the conditions to the obligations of the Underwriter contained in this ,Bond Purchase; Contract shall not be satisfied, unless otherwise waived by the Underwriter, this Bond Purchase Contract shall terminate with the effect stated in paragraph (c) of Section 5 hereof. SECTION 5. Termination of Agreement. (a) The Underwriter may terminate this Bond Purchase Contract, with the effect stated in paragraph (c) of this Section, at any time subsequent to the date of this Bond Purchase Contract and at or prior to the Closing by notifying the City in writing or by telegram of its election so to do, if: (i) A tentative decision with respect to legislation shall be reached by a • committee of the House of Representatives or the Senate of the Congress of the United States or legislation shall be favorably reported by such a committee or be introduced, -11- A- 151 after the date of this Bond Purchase Contract and pronto the .Closing, by amendment. or otherwise, in, or be enacted by, the House of Representatives or the Senate, or be recommended to the Congress of the United States for passage by the,President of the United States, or a decision by a court established under Article III of the Constitution of the United States,. or the Tax Court of'the United States, shall .be rendered or a ruling, regulation or :order of 'the Treasury Department of the United States or the Internal Revenue Service shall be made or ,proposed having the purpose or effect of imposing federal income taxation, .or any other event shall have occurred which results in the imposition of, federal ,income taxation, upon revenues or other income of ithe general character to .be derived by the District (or by any similar body). (ii) Legislation shall be introduced, by amendment. or otherwise, in, or be enacted by; the House of Representatives or the Senate of the Congress'of the United 'States, or a decisibh, y a court of the United States shall be rendered, or a stop order, ruling, regulation or official statement by., or on behalf of, the United States Securities and Exchange Commission or other governmental agency having jurisdiction of the subject matter shall be made or proposed, to the effect that the issuance, offering or sale of'obligations of the general character of the Bonds, as contemplated hereby, is or would be in violation of any provision of the Securities Act, the Securities- Exchange Act of 1934' (the "Securities Exchange Act") or the Trust Indenture Act, as any*of the foregoing Acts are amended, or with the purpose or effect of otherwise prohibiting -the issuance, offering or sale of ;obligations of ,the general character of the Bonds, or the Bonds, as contemplated hereby. • (b) In addition, the Underwriter may terminate this -Bond Purchase Contract with the effect stated in paragraph (c) of this Section at any time subsequent to the date of this Bond Purchase Contract and at or prior to the Closing by notifying the City in writing or by telegram of its election to do so, if: • (i) Any event shall have occurred, or information shall have become known, which, in the Underwriter's reasonable opinion, makes untrue, incorrect or, misleading in any material respect any statement or information contained in the Preliminary Official Statement or Official Statement or has the effect that the Preliminary Official Statement or Official Statement contains an untrue, incorrect or misleading statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading,. (ii.) Any legislation, resolution, ordinance, rule or regulation shall, 'be .Jntroduced in, or ,be enacted by, any governmental body, department or agency of the United States, of the State. of New York or of the State of California, or a decision by any court of competent jurisdiction within the United States, c& the State of New York or of the State of'California shall be rendered which, in the Underwriter's reasonable opinion, materially adversely affects the 'marketability of the Bonds or the sale, at the contemplated offering prices, by the Underwriter of the Bonds. -(iii) Additional restrictions not in force as of the date hereof having a material adverse effect on the transactions contemplated hereby shall -have been imposed upon trading in securities generally by any governmental authority or by any national securities exchange. A- 152 (iv) A general banking moratorium shall have been established by federal; New York or California authorities or trading in securities shall generally have been suspended on the New York Stock Exchange. (v) Any rating on the Bonds shall have been downgraded or withdrawn by a national rating service, which, in the Underwriter's reasonable opinion, materially adversely affects the marketability of the Bonds or the sale, at the contemplated offering prices, by the Underwriter of the Bonds. (vi) A war involving the United States shall have been declared, or any existing conflict involving the armed forces of the United States shall have escalated, or any other national emergency relating to the financial community shall have occurred, which, in the Underwriter's reasonable opinion, materially'adversely affects the marketability of the Bonds or the sale, at the contemplated offering prices, by the Underwriter of the Bonds. (c) If this Bond Purchase Contract is terminated as herein provided, the parties hereto shall have no obligations one to the other except as provided in Sections 6 hereof. SECTION 6. Expenses. (a) Except as specifically provided in paragraph (b) of this Section 6, the Underwriter shall be under no obligation to pay and the City shall pay any expenses incident, to, or in connection with, the offering', issuance and sale of the Bonds, including, but not limited to, (i) the cost of the preparation, printing or other reproduction. (for distribution prior to, on or after the date of acceptance of this Bond Purchase Contract) of the • Financing Agreements, the Preliminary Official Statement and the final Official 'Statement in reasonable quantities for distribution, (ii) charges made by rating agencies for the rating of the Bonds, (iii) the cost of printing the Bonds, (iv) the fees and expenses of the personnel and staff of'the City designated to facilitate the execution and delivery of the Bonds, (v) the fees and expenses of the Trustee, (vi) the fees and expenses of the financial advisors, accountants, verification agent and other consultants, legal counsel, including Bond Counsel and Disclosure Counsel, and (vii) all other expenses relating to the sale and delivery of the Bonds, except those expressly provided for in subsection (b) of this Section 6. The aforesaid costs and expenses shall be paid out of the proceeds of the sale of Bonds or by the City. • (b) . The Underwriter shall pay (i) the cost of qualifying the Bonds for sale in various states chosen by the Underwriter, (ii) the fees and expenses of counsel to the Underwriter, if any; (iii) the fees of the California Debt and Investment Advisory Commission, and (iv) all other expenses incurred by it in connection with its offering and distribution, of the Bonds, including travel and advertising expenses. (c) In the event that either the City or the Underwriter shall have paid obligations of the other as set forth in this Section, adjustment shall be made at the Closing or as soon thereafter as practicable. SECTION 7. Miscellaneous. (a) Except .as otherwise specifically provided in this Bond Purchase Contract, all notices, demands and formal actions under this Bond Purchase Contract shall be in writing and mailed, telegraphed or personally delivered to: -13- A - 153 • The Underwriter: Piper Jaffray & Co. 345 California St., Suite 2400 San Francisco, CA 94104 Attn: Steven Gortler The City: City of Petaluma 11 English St. Petaluma, CA 94952 Attention: Finance Director Fax: (707) 778-4428 (b) This Bond Purchase Contract will inure to the benefit of and be binding upon the City and the Underwriter and their respective successors and assigns, and will not confer any rights upon any other person, partnership, association or corporation other than the City and persons, if any, controlling the Underwriter within the meaning of the Securities Act or the Securities Exchange Act. The terms "successors" and "assigns" shall not include any purchaser or holder of any of the Bonds. (c) All of the representations, warranties and covenants of the City in this Bond Purchase Contract shall remain operative and in full force and, effect regardless of (i) any investigation made by or on behalf of the Underwriter, (ii) delivery of and any payment for the Bonds hereunder or (iii) termination of the Underwriter's obligation to accept delivery of the Bonds pursuant to this Bond Purchase Contract. • (d) Section headings have been inserted in this Bond Purchase Contract as a matter of convenience or for reference only, and it is agreed that such section headings are not a part of this Bond Purchase Contract and will not be used in the interpretation of any provisions of this Bond Purchase Contract. • . (e) If any provision of this Bond Purchase Contract shall be held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions, or in all jurisdictions because it conflicts with any provisions of any constitution, statute, rule of public policy, or for any other reason, such circumstances shall not have the effect of rendering the provision in question invalid, inoperative or unenforceable in any other case or circumstance, *or of rendering any other provision or provisions of this Bond Purchase Contract invalid, inoperative or unenforceable to any extent whatever. (f)This Bond Purchase Contract may be executed in several counterparts, each of which shall be .regarded .as an original and all of which shall constitute one and the same document. (g) This Bond Purchase Contract shall be governed by and construed in accordance with the laws of the State of California. -14- 154 0 16005-09 JH:KST January 7, 2011 This Bond Purchase Contract is accepted and agreed to as of the date first above written: PIPER JAFFRAY & CO. By: Title: Authorized Representative CITY OF PETALUMA Authorized Representative SIGNATURE PAGE TO BOND PURCHASE CONTRACT CITY OF PETALUMA, 2011 WASTEWATER. REVENUE REFUNDING BONDS A- 155 Ll City of Petaluma 2011 Wast6water Revenue Refunding Bonds CERTIFICATEREGARDINGFINALITY KJFPRELIMINARY OFFICIAL STATEk8ENT� The undersigned hereby certifies and represents that he is the duly appointed and acting Finance Director ofthe CdvUfPetaluma (the "Citv").and aosuch induly _authorized hoexecute and deliver this Certificate and further hereby certifies and reconfirms on behalf of the City as (1) This Certificate \sdelivered inconnection with the offering and sale Vfthe abovn- t�ed bonds (the "Bunds") in order to enable the underwriter of the Bonds to comply with* 8enuhUaa and Exchange Commission Rule 15n2-12 under 'the Securities Exchange Act uf1934(the ^Ru/e^). (2) In connection with the offering and sale of the Bonds, there has been prepared a Preliminary Official Statement, setting forth information concerning the Bonds and the City /the''Pra|iminory'Of5oia| Statement"). (3) As used herein, "Permitted Omissions" shall mean the Vff»hnOprice(s), interest � rota(a), selling compensation, aggregate principal amount, phho(pa|announ1per maturity, delivery dobas, ratings and other terms of the Bonds depending on such matters, all with respect to the Bonds. /4\ The 'Preliminary Official 8hat*nnen[ is, except for the Permitted Onhiaoions, deemed final within the meaning of Rule 15o2-13' and the information therein is accurate and complete except for the Permitted Omissions. /NWITNESS WHEREOF, Ihave hereunto set nnyhand asof r 1.2011. As CITY OF PETALUMA Authorized Representative Attachment 6 MOODfS INVESTORS -SERVICE New Issue: MOODY'S ASSIGNS Al RATING TO CITY OF PETALUNWS WASTEWATER REVENUE BONDS Global Credit Research - 13 Jan 2011 APPROXIMATELY $22 MILLION IN DEBT AFFECTED, INCLUDING THE CURRENT ISSUE Water/Sewer CA Moodys"Rating ISSUE RATING Wastewater Revenue, Refunding Bonds, Series 2011 Al Sale Amount $22,000,000 Expected Sale Date 01/31/11 'Rating Description Revenue Bonds Opinion NEW YORK, Jan 13; 2011 -- Moodys Investors Service,has assigned.anAl rating to the City of Petaluma Wastewater Enterprise'sWastewater Revenue Refunding Bonds Series 2011. The bonds are secured by,a senior net revenue pledge of the wastewater enterprise. RATINGS RATIONALE The rating assignment is driven by the enterprise's sound fiscal position, which has been bolstered in.recent years by healthy rate increases. These rate increases have enabled the system to reasonably project the maintenance of fairly low but stable debt service coverage. The rating is notably reliantupon the enterprise continuing, to maintain its.healthy level of unrestricted cash, which helps to offset the credit weakness posed,by the, system's very high debt burden and relativelymodest coverage for the rating level. The rating incorporates the benefit of the completed,construction of -the wastewater treatment plant, which mitigates construction risk to credit.quality. FISCAL POSITION HAS BEEN BOLSTERED BY SIGNIFICANT RECENT RATE INCREASES THAT HAVE RESULTED INASOUND LEVEL OF UNRESTRICTED, CASH 46 system has raised rates each year since fiscal 2008, which has helped to maintainstable fiscal operations and improve cash balances. The, availability of a robust level of unrestricted cash is a key component tache rating as,it helps,offset the credit impact of the system's high debt burden. Were the system to materially lower its unrestricted cash, it could produce negative pressure upon the rating. From fisca12008,to2010, the enterprise,implemented 13% rate.increases, which drove a 22%jump in operating revenues over that same period: The rate increases provided, timely new revenue since connection fees fell from $13 million (8% of total revenue)'in'2008 to just $139;000 (0:72% of.total revenue) in 2010. Though rates and total.revenues have increased steadily over the'last three years, the:enterprise ,hasdone,weli;to.minimize operating expenditure growth even while taking on additional costs related to the'completion of its new wastewater facility. the enterprise has actually lowered its,operating costs in both fiscal 2009 and 2010 after undergoing,higher than normal costs in fiscal 2008:.The system's 44% operating ratio is, solid for a Moodys-rated California wastewater enterprise and reflects the effective cost :controls of the system. t;bnagement,has also done well in recent years to strengthen the sewer fund's cash position. Unrestricted reserves as a percentage of operating' costs area healthy255.3%for fiscal 2010 and well ahead of the 197.3% maintained in fiscal 2008. Since the treatment facility is less than ohe,year-''old, wit i'plentyof capacity and no,outstanding permit -issues, we do not anticipate'that cash will be significantly,drawn down due td capital expenditures. The city anticipates making regular transfers to its capital projects fund'but has flexibility on the.timing,and level of tiFar"sfers'which should,enable effective maintenance of cash going forward. STRONG CASH BALANCES S'HELP MITIGATE VERY HIGH DEBT LEVELS AND SOMEWHAT LOW DEBT SERVICE COVERAGE FOR THE RATING The system has a high overall'debtburden reflected' in, its 64% debt ratio. In addition to the current sale of revenue.bonds, the enterprise,also has $125 million instate revolving fund loans. These obligations mature in 2029 with level debt service through the life of the,loans. Total debt service,is'also level,at $9.2 million annually until 2029 when it falls to $3.8 million. The fiscal 2011. projected debt service coverage of 1.44 times is well below the median of approximately 2.18 times coverage for a Moodys-rated' California wastewater revenue bond issuer. Projected coverage from fiscal 2012 to fiscal 2015 ranges from a low of 1.32 times to a high of 1.47 times in 2015, We note that there is conservatism built into the debt service,;coverage projections which could result in higher actual coverage. The,projections do not include any rate increases above the annual inflation, adjustment. However, city leadership has expressed confidence that to the extent.necessary, higher rates will be implemented as::needed to provide adequate debt service coverage. Theprojectionsalsoinclude a fairly healthy inflation rate for materials which would,drive fiscal 2011 operating costs up by 11 % from the prior year. Growth in connection fees, customer accounts, and usage is also excluded from the revenue expectations. Significantly improved and sustained coverage coupled with the ongoing maintenance of healthy cash levels would'provide future, positive rating pressure, The city has asserted that it has no additional wastewater system debt issuance plans. The enterprise has no variable rate debt obligations or swaps, and proceeds of the current sale will refund two outstanding bank loans and the system's Series:2000 wastewater revenue bonds, ®. NORTHERN BAY AREASYSTEM WITH A PREDOMINANTLY RESIDENTIAL CUSTOMER BASE ANDA FEW HEAVY COMMERCIAL USERS A- 158 ® The City of Petaluma (A21NEG Issuer Rating) has a resident population of approximately 60,000 in the northern portion of the Bay Area 30 miles north of the city:of San Francisco. Ninety-sik percent of the 19,700 accounts represent residential customers. The remaining, 4% of the customer bas e_ includes, Petaluma Poultry, the largest single system user at 4.2% of operating revenue. Altogether, the system's top ten users accouriffor 7:87% of operating revenues, which is not an unusual level of concentration. Secondary treated water is discharged into the Petaluma River from October 1 to April 30. Treated water is used for irrigation during the remainder -of the yeac'The enterprise does not have any permit violations and anticipates receiving discharge permit extensions in July of 2011. SATISFACTORY LEGAL PROVISIONS; CASH FUNDED DEBT SERVICE RESERVE The rate covenant requires, that net wastewater revenues provide 1.20 times coverage of.debtservice. The current issue will benefit from a cash funded debt service reserve that will be maintained at the lesser of 10% of, par, 100% of MADS or 125% of average annual debt outstanding debt service. The additional bonds test, requires 1.25 times coverage of MADS from net revenues excluding rate stabilization revenue,, connection fees and interest earnings. What could, change the rating—UP The rating could be improved if debt service coverage were materially improved and sustained without significant erosion in ending cash balances. What could change the rating—DOWN Debt service coverage below current expectations or a weakening in cash reserves could apply negative pressure to the rating. KEY STATISTICS Operating ratio: 44.7% Fiscal,2010 debt service coverage: 1.30 times Projected fiscal 2011 debt service coverage: 1.44 times Debt service safety margin: 13.3% Debt Ratio: 64% Unrestricted reserves as a percentage of 08M: 255.3% ® rhe principal methodology used in this rating was Analytical Framework For Water And Sewer'System Ratings published in August 1999. REGULATORY DISCLOSURES Information sources used to prepare the,credit rating are the following:: parties involved in.the ratings, public information, confidential and proprietary Nbodys'Investors Service information, and confidential and proprietary Moody's Analytics information. IVloodys Investors Service considers the quality of information available on the credit satisfactory for the purposes of assigning a credit rating Pbodys adopts all necessary measures.so that the information it uses in assigning a credit rating,is of sufficient quality and from sources IVloodys considers to be reliable including, when appropriate, independent third -party sources. However, Naody's is not an auditor and cannot in every: instance- independently verify or validate information received in the rating process. Please see ratings tab on the issuer/entity page on Moodys.com for the last rating action and the rating history. The date on which,some Credit Ratings Were. first, released goes back to a time before Nbody's Investors Service's Credit Ratings were fully digitized and accurate data may not be available. Consequently, Nbody'sInvestors Service provides a date that -it believes is the most reliable. and accurate based'on the information that is available to it. Please see the ratings disclosure page on our website www.moodys.com for further information. Blease see;the.Credit Policy page on Nbodys.com for the methodologies used in determining ratings, further information on the meaning of each rating category and the definition of default and recovery. Analysts Michael Wertz Analyst Public Finance Group Nbody's Investors Service Eric,Hoffmann Backup Analyst Public Finance Group Naody's Investors Service Contacts Journalists: (212) 553-0376 Research Clients: (212)553-1653 Nbodys Investors Service A- 159 ® 250 Greenwich Street New York,, NY 10007 USA MOODY'S INVESTORS SERVICE © 2011, Moodys Investors Service, Inc. and/or its licensors and affiliates (collectively, "MOODYS'). All rights reserved. CREDIT -RATINGS ARE, MOODY'S;JNVESTORS SERVICE, INC,'S ("MIS"), CURRENT OPINIONS OF THE RELATIVE FUTURI �CREDIT'RISK OF ENTITIES, CREDIT COMMITMENTS, ORbEBT OR DEBT -LIKE SECURITIES., MIS:DEFINES'CREDIT RISK AS THE RISK THAT AN ENTITY MA`NOT MEET ITS CONTRACTUAL„FINANCIAC'OBLIGATIONS HEY AS.TCOME,DUE AND ANY ESTIMATED FINANCIAL LOSS IN THE EVENT OF DEFAULT. CRE,DIT'RATINGS,DO NOT;ADDRESSANY OTHER RISK, INCLUDING'BUT NOT LIMITED TO: LIQUIDITY RISK, MARKET VALUERISK, OR PRICEVOLATILITY. CREDIT RATINGS ARE NOT STATEMENTS'OPCURRENT OR HISTORICAL, FACT. CREDIT RATINGS DO NOT CONSTITUTE INVESTMENT OR PINANCIALADVICE,AND CREDIT.'RATINGSME NOT RECOMMENDATIONS'TO PURCHASE; SELL; -OR HOLDRARTICULAR SECURITIES. CREDIT RATINGS. DO NOT COMMENT ON THE SUITABILITY,,OFAN INVESTMENT FORANY PARTICULAR'INVESTOR. 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If in doubt you should contact your financial or other professional adviser. 0 0 A- 161 Summary- Petaluma, California; Water/Sewer Primary Credit Analyst: Bea Chiem, San Francisco 1f 415j 371-5070; bea_chiem@standardandpoors:com Secondary Contact: Paul Dyson, San Francisco (1 ) 415-371-5079; paul_dyson@standardandpoors_com Table Of Contents Rationale Outlook Related Criteria And Research www.standardandpoors.com/ratingsdirect A-162 . Summary: Petaluma Cfornia I ahI ; Water/Sewer CredltiProfile ,.g um HE WIMM, US$22,365 milwastewtr rev rfdg rs ser 20i 1 due 06/30/2036 Long Term Rating AA -/Stable New Rationale Standard & Poor's.Ratings Services assigned its''AAV rating to the City of Petaluma, Calif.'s series 2011 wastewater revenue refunding bonds. The outlook is stable. The rating reflects our view of the wastewater system's: Diverse economic base with strong income indicators; Track record of strong liquidity and debt service coverage; * ,History of implementing rate increases, with inflationary increases planned over the next five years; * Diverse customer base,,wlth the top 10 accounting for only 7.8% of revenues; and * Adequate bond provisions that provide additional bondholder protection and a cash -funded debt service reserve. Parria , Ily offsetting our view of the foregoing strengths is our view of the wastewater system's: a Above, average monthly residential rates; and * Moderately high debt burden. The bonds are secured by net revenues of the wastewater system. We understand that bond proceeds will be used to refinance the wastewater system's series 2000 wastewater revenue bonds of;roughly $5.6 million and two outstanding bank loans totaling about $14.9 million, as well as to fund a d'eb(service reserve fund at the least of maximum annual debt service {MADS), 10% of par, or 1.25x average annual debt service, The City of.Petaluma, located roughly 40 miles north of San Francisco in Sonoma County, has a population of roughly 57'739. The city's economy Is a stable mix of agriculture,income retail, services, and tourism. Petaluma -s income levels are strong in our ur view, and residents have access to employment opportunities in the large 'San..Francisco Bay area. The city's seasonally. unadjusted unemployment rate as of November 2010 was 9.2%, lower than the state's rate of 12.4%. Median household and per capita effective buying income were what we view as strong at 141 % and 126%, respectively, of the national averages in 2010. The wastewater system provides collection, treatment, disposal, and reuse of domestic, commercial, and industrial wastewater generated by,the, City of Petaluma and an unincorporated community of Penngrove in Sonoma County. The system serves roughly 19,700 accounts, roughly 74% of which are single-family residential, 22% of which are multi -unit residentiad, and 4% of which are commercial/industrial. The system's customer base is in our view, diverse, with the top 10 customers accounting for approximately 7.8% of fiscal 2010 revenues. The largest customer is Petaluma Poultry at 4.2%of revenues. Standard & Poor's I Ratin.gsbirect on the GlobalCreditPortal I January 5, 2011 A - 163 Summary: Petaluma, California; Water/Sewer t�The Ellis Creek Water Recycling facility began construction in 2005 and was operating by May of 2009. This facility replaced the.city's Hopper -Street wastewater treatment plant. The facility's permitted capacity is 6.7 million gallons per day:(mgd) in. dry weather and 36 mgd in wet weather. Current average daily flow is roughly 4.9 mgd. The facility treats roughly 2.2 billion gallons annually. Management estimates the plant will support growth of the city's, population to roughly 75,000 or expected buildout in 2025. Additionally, the city recycled roughly 48%, or 780 million gallons, of the wastewater it treated in 2009. The majority of the recycled water was secondary -treated for irrigation use. The facility also has a tertiary treatment system of up to 5.3 mgd. Management estimates demand at approximately 460 million gallons of tertiary treated water by 2025 to offset potable water demand and roughly 200 million gallons during drought years. The recycled water system lacks sufficient storage facilities, and expansion of the existing distribution system and construction of needed additional storage facilities is part of management's five-year capital improvement plan. Customers are charged a monthly fixed charge and variable charge. Commercial customers' variable charge is based on flow strength. Management conducted its latest rate study in 2007 and approved rate increases of 13% annually through 2011. However, based on an updated rate study in 2010, management expects a 9% increase for 2011 to be sufficient and thus the city council adopted rate increases at the lower level. Additionally, the rate study recommends annual rate adjustments of the greater of 2% or the consumer price index plus 1.5% beginning January 2012. The current.management-estimated average single-family monthly bill is $77.58, which is above average and higher than that of nearby communities. Although rate increases had been approved by rate payers through the Proposition 218 process; two ballot initiatives were brought to voters in November 2008 and November 2010 that sought to reducesewer rates to 2006 levels. Both measures were defeated by voters. Our rating assumes that current rates will not be rolled back. However, if another ballot initiative to roll back rates were to occur, we would monitor the situation and may review the rating. The wastewater system has what we.consider to be moderately high debt levels, with a Standard & Poor's-estimated 'fiscal 2010 debt -to -plant ratio of roughly 71%. Following this refinancing, the system will have roughly $149.7 million in total debt outstanding. The;only parity debt outstanding is the system's State of California (SRF) loan of roughly $127.4 million that matures in 2029. Additionally, in July 2010 management prepaid roughly $10.1 million in bank loans. We believe that the, system has maintained strong debt service coverage and liquidity. In fiscals 2006 2009, debt service coverage ranged from 5.1x to 14.2x, but this was prior to the system's payment of debt service on the SRF loan. Unaudited actual fiscal 2010 coverage was a good 1.3x (excluding a transfer out), reflecting the first year `,of debt service on the SRF loan and interest on the bank loans. Management funded a.rate stabilization with ,a $'3:'S million -transfer out. Management's base case forecast for 2011-2017 projects good- to-strong:debt ser "vicecoverage of 1.3x -1:6x, factoring in rate increases of roughly 4.56/o annually in 2013-2017 and no connection fees. The projections also reflect transfers -in from the rate stabilization fund of $800,000, $500,000, and $200,000 in fiscals 2011, 2012, and 2013, respectively. The system has maintained, in our view, strong liquidity, with operating cash on hand ranging from 285 days in fiscal 2006 to a peak of 979 days in 2009. Management's budget for 2011 shows liquidity remaining strong despite a $10.1 million use of cash for the debt prepayment at 421 days' or $10.8 million as compared with 932 days' or $21.6 million in fiscal 2010. Projections for 2012-2017 show operating cash of 252-334 days, still strong in our view. Management has a policy of maintaining at least 180 days of working capital and capital projects reserve on hand, which it has historically exceeded. What we view as adequate bond provisions for this transaction provide added bondholder protection. The rate covenant requires 1.2x annual debt service from net revenues that include transfers from the rate stabilization fund R-164 www.standardandpoors.com/ratingsdirect 11 Summary: Petaluma, California; Water/Sewer and approved rate increases but exclude connection fee revenues and interest earnings. Also.required is an additional bonds test of 1.25x maximum annual debt service from net revenues excluding transfers from the rate stabilization fund, connection fees, and interest earnings. Adjustments may also be made for approved rate increases. Management's five-year capital improvement plan for the wastewater systern totals roughly $18.7 million, most of which management expects to fund on a pay-as-you-go basis. The recycled water project capital improvement needs total $19.2 million over the next,five years, with roughly $11.9 million projected in 2012. This -amount in 2012 is mostly related to the recycled water pipeline and reservoir project, for which management will assess the timing and funding'needs'. Management reports that it does not intend to issue additional debt in the near to intermediate term. Outlook The stable outlook reflects our view of the wastewater system's stable customer base, good debt service coverage, and strong liquidity. We.expect the system to continue to implement rate increases as it considers necessary and maintain coverage of at least 1.2x, as required by its rate covenant. If the system continues to improve its coverage levels and maintain what we see as strong liquidity over the next few years, then we may consider raising the rating. Conversely, if the system's rates are'—rolled back or insufficiently raised to provide 'at least adequate coverage, if debt levels rise significantly, or if liquidity falls to what we view as merely adequate levels, then we. may lower the rating. Related Criteria And Research * USPF Criteria: Key Water And Sewer Utility Credit Ratio Ranges, Sept.15, 2008 a USPF Criteria: Standard & Poor's Revises Criteria For Rating Water, Sewer, And Drainage Utility Revenue Bonds, Sept. 15, 2008 Complete ratings -information is available to RatingsDirect subscribers on the Global Credit Portal at www.glob-alcreditportal.com and RatingsDirect subscribers at www.ratingsdirect.com. 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