Resolution 11519RESOLUTION NO. 11519
A RESOLUTION AUTHORIZING ISSUANCE OF BONDS
CITY OF ALAMEDA
Marina Village Assessment District 84 -3, Series 88 -1
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
Section 13.
Section 14.
Section 15.
Section 16.
Section 17.
Section 18.
Section 19.
Section 20.
Section 21.
Section 22.
Section 23.
Section 24.
Section 25.
Section 26.
Section 27.
Section 28.
Section 29.
Section 30.
Section 31.
Section 32.
EXHIBIT A -
EXHIBIT B -
EXHIBIT C -
TABLE OF CONTENTS
Page
Definitions 2
List of Unpaid Assessments 6
Issuance of Bonds 6
Form of Bonds 6
Payment of Bonds 6
Designation of Agent 7
Execution 7
Authentication 7
Preparation and Delivery of Bonds 7
Exchange of Bonds 8
Negotiability, Registration, and Transfer of Bonds 8
Ownership of Bonds 8
Collection of Unpaid Assessments 8
Covenant to Foreclose 9
No Advances From Available Surplus Funds 9
Redemption Prior to Maturity 9
Refunding of Bonds 9
Improvement Fund 9
Redemption Fund 10
Reserve Fund 10
Investment of Funds 10
No Arbitrage 10
Certificate as to Non- Arbitrage 10
Federal Guarantee Limitations 11
Private Business Use Limitation 11
Private Loan Limitation 11
Rebate of Excess Investment Earnings to United States
of America 11
(A) Creation of Accounts 11
(B) Duties of City in General 12
(C) Calculation of Excess Investment Earnings 12
(D) Payment to the United States of America 13
(E) Further Obligation of City 13
(F) Maintenance of Records 13
(G) Independent Consultants 14
Small Issuer Exemption from Bank Nondeductibility Restriction 14
Amendment 14
Authority of Treasurer 14
Additional Series of Bonds 14
Certified Copies 14
- List of Unpaid Assessments
- Maturity Schedule
- Bond Form
RESOLUTION NO.
A RESOLUTION AUTHORIZING ISSUANCE OF BONDS
CITY OF ALAMEDA
Marina Village Assessment District 84 -3, Series 88 -1
RESOLVED, by the City Council (the "Council ") of the City of Alameda (the
"City "), County of Alameda, California, that
WHEREAS, on August 21, 1984, this Council passed and adopted Resolution of
Intention No. 10421 (the "Resolution of Intention ") relating to the acquisition and/or
construction of public improvements under and pursuant to the provisions of the
Municipal Improvement Act of 1913. By said Resolution of Intention, this Council
provided that serial bonds would be issued thereunder pursuant to the provisions of
the Improvement Bond Act of 1915, Division 10 of the Streets and Highways Code of
California and reference to said Resolution of Intention is hereby expressly made for
further particulars;
WHEREAS, in proceedings heretofore taken pursuant to said Resolution of
Preliminary Determination and of Intention, this Council adopted Resolution No. 10520
on January 15, 1984, under which bonds designated "Improvement Bonds, City of
Alameda, Marina Village Assessment District 84 -3, Series 85-1", in the principal
amount of $15,300,000 were issued, sold and delivered, and further, pursuant to said
Resolution, this Council adopted Resolution No. 10764 on October 15, 1985, under
which bonds designated "Improvement Bonds, City of Alameda, Marina Village
Assessment District 84 -3, Series 85 -2" in the principal amount of $9,100,000 were
issued, sold and delivered;
WHEREAS, in proceedings taken by this City Council pursuant to Resolution
No. 10919, A Resolution of Intention to Levy Reassessments and to Issue Refunding
Bonds Upon the Security Thereof, adopted June 3, 1986, this Council has duly
authorized reassessment of the lands within the Marina Village Assessment District in
the amount of $40,000,000 and the issuance of Refunding Improvement Bonds upon
the security thereof in the principal amount of $26,325,000 to provide for the refunding
of said Series 85 -1 and 85 -2 Bonds, leaving a balance of assessment in the amount of
$13,675,000.
WHEREAS, pursuant to said proceedings under said Resolution of Intention to
Make Changes and Modifications, a Resolution providing for Issuance of Bonds,
No. 10955, was adopted by the Council on July 1, 1986, under which bonds designated
"Improvement Bonds, City of Alameda, Marina Village Assessment District 84 -3,
Series 86 -2 ", in the principal amount of $6,300,000 was issued and under which
resolution No. 10955 jurisdiction was expressly reserved to issue bonds upon the
security of the remaining balance of $7,375,000 of unpaid assessments upon the
security of which bonds have not been issued.
WHEREAS, notice of the recordation of the assessment and of the time within
which assessments were to be paid in cash have been waived in writing by the owners
of all of the property to be assessed, which written waivers are on file with the City
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Clerk of the City, and a list of the assessments remaining unpaid has been filed with
the City; and
WHEREAS, this Council duly considered said list and determined that the same
was an accurate statement thereof;
NOW, THEREFORE, IT IS HEREBY ORDERED, as follows:
Section 1. DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Section 1 shall, for all purposes of this Resolution of Issuance , have the
meanings herein specified and shall be equally applicable to both the singular and
plural forms of any of the terms herein defined.
"Act" means the Improvement Bond Act of 1915, Division 10 of the Streets and
Highways Code of the State of California.
"Agent" means Bank of America, National Trust and Savings Association, which
is designated under Section 6 hereof to perform the duties required under this
Resolution for the authentication, transfer, registration, and payment of the Bonds.
"Bond" or "Bonds" means the Improvement Bonds, City of Alameda, Marina
Village Assessment District 84 -3, Series 88 -1, issued pursuant to the Act and this
Resolution of Issuance. The Bonds herein authorized may be issued in series, from
time to time, in the principal amounts, maturities, rates of interest and subject to the
provisions for payment and redemption as may be prescribed by this Resolution of
Issuance.
"Bond Date" means the date upon which the Bonds are issued, which is July 20,
1988.
"Bond Denomination" means the amount of $5000.00, which is the minimum
amount in which the Bonds may be issued.
"Bond Year" means the one year period beginning on the anniversary date of
the Closing Date in each year and ending on the day prior to the anniversary date of
the Closing date in the following year, except that the first Bond Year shall begin on
the Closing Date.
"Closing Date" means the date upon which there is a physical delivery of the
Bonds in exchange for the amount representing the purchase of the Bonds by the
Original Purchaser.
"Code" means the Internal Revenue Code of 1986.
"Debt Service" means the scheduled amount of interest and amortization of
principal payable on the Bonds during the period of computation, excluding amounts
scheduled during such period which relate to principal which has been retired before
the beginning of such period.
"Earnings Account" means the account by that name created and held by the
Treasurer pursuant to Section 27 hereof.
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"Excess Investment Earnings" means an amount equal to the sum of:
(1) the excess of
(A) the aggregate amount earned on all Nonpurpose Investments
(other than amounts attributable to an excess described in this clause
(1)), over
(B) the amount which would have been earned if the Yield on
such Nonpurpose Investments (other than amounts attributable to an
excess described in this clause (1)) had been equal to the Yield on the
Bonds,
plus (2) any income attributable to the excess described in clause (1).
"Gross Proceeds" means the sum of the following amounts:
(1) original proceeds, namely, net amounts received by or for the City as
a result of the sale of the Bonds, excluding original proceeds which become
transferred proceeds (determined in accordance with applicable Regulations) of
obligations issued to refund in whole or in part the Bonds;
(2) investment proceeds, namely, amounts received at any time by or for
the City, such as interest and dividends, resulting from the investment of any
original proceeds (as referenced in clause (1) above) or investment proceeds (as
referenced in this clause (2)) in Nonpurpose Investments, increased by any
profits and decreased (if necessary, below zero) by any losses on such
investments, excluding investment proceeds which become transferred
proceeds (determined in accordance with applicable Regulations) of obligations
issued to refund in whole or in part the Bonds;
(3) sinking fund proceeds, namely, amounts, other than original proceeds
or investment proceeds (as referenced in clauses (1) and (2) above) of the
Bonds, which are held in the Redemption Fund and any other fund to the extent
that the City reasonably expects to use such other fund to pay Debt Service on
the Bonds;
(4) amounts in the Reserve Fund or in any fund established as a
reasonably required reserve for the payment of Debt Service;
(5) Investment Property pledged as security for payment of Debt Service
by the City;
(6) amounts, other than as specified in this definition, used to pay Debt
Service; and
(7) amounts received as a result of investing amounts described in this
definition.
"Improvement Fund" means the fund established by the Treasurer pursuant to
Section 18 hereof into which shall be placed the proceeds received from the sale of
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the Bonds, including any premium and excluding amounts placed in the Reserve Fund
and Redemption Fund.
"Interest Payment Date" means each date upon which interest on the Bonds is
payable commencing on March 2, 1989, and semiannually upon each September 2 and
March 2 thereafter until maturity.
"Investment Property" means any security (as said term is defined in
section 165(g)(2)(A) or (B) of the Code), obligation, annuity or investment —type
property, excluding, however, obligations (other than specified private activity bonds
as defined in section 57(e)(5) and (6) of the Code) the interest on which is excluded
from gross income under section 103 of the Code for federal income tax purposes.
"Issuance Costs" means all costs and expenses of issuance of the Bonds,
including, but not limited to:
(1) underwriters' fees other than those taken in the form of a discount on
the Closing Date;
(2) counsel fees, including bond counsel, underwriters' counsel, City's
counsel and special tax counsel fees, as well as any other specialized counsel
fees incurred in connection with the borrowing;
(3) financial advisor and appraisal fees incurred in connection with the
issuance of the Bonds;
(4) fees of the Agent related to issuance of the Bonds;
(5) accountant fees related to issuance of the Bonds;
(6) printing costs of the Bonds;
(7) publication costs associated with the financing proceedings; and
(8) costs of engineering and feasibility studies necessary to the issuance
of the Bonds.
"Nonpurpose Investment" means any Investment Property which is acquired
with the Gross Proceeds of the Bonds and is not acquired in order to carry out the
governmental purpose of the Bonds.
"Original Purchaser" means the first purchaser of the Bonds from the City.
"Principal Amount" means the aggregate amount of not to exceed $3,200,000 of
the Bonds authorized to be issued under this Resolution.
"Private Business Use" means use directly or indirectly in a trade or business
carried on by a natural person or in any activity carried on by a person other than a
natural person, excluding, however, use by a governmental unit and use as a member
of the general public.
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"Proceeds" where used with reference to the Bonds, means the face amount of
the Bonds, plus accrued interest and premium, if any, less original issue discount.
"Project" means the acquisitions and improvements described in the Resolution
of Intention.
"Purchase Price" for the purpose of computation of the Yield of the Bonds, has
the same meaning as the term "issue price" in sections 1273(b) and 1274 of the Code,
and, in general, means the initial offering price to the public (not including bond houses
and brokers, or similar persons or organizations acting in the capacity of underwriters
or wholesalers) at which price a substantial amount of the Bonds are sold or, if the
Bonds are privately placed, the price paid by the first buyer of the Bonds or the
acquisition cost of the first buyer. The term "Purchase Price ", for the purpose of
computation of the Yield of Nonpurpose Investments, means the fair market value of
the Nonpurpose Investments on the date of use of Gross Proceeds of the Bonds for
acquisition thereof, or if later, on the date that Investment Property constituting a
Nonpurpose Investment becomes a Nonpurpose Investment of the Bonds.
"Rebate Account" means the account by that name created and held by the
Treasurer under Section 27 hereof.
"Redemption Fund" means the fund established by the Treasurer pursuant to
Section 19 hereto into which shall be placed any accrued interest for the period from
the Bond Date to the Closing Date and all sums received from the collection of unpaid
assessments and of the interest and penalties thereon.
"Redemption Premium" means the percentage premium of the principal amount
of the Bonds which is three percent (3 %).
"Registered Owner" means the person in whose name any Bond is registered by
the Agent pursuant to Section 12 hereof.
"Regulations" means temporary and permanent regulations promulgated under
the Code.
"Reserve Fund" means the fund established by the Treasurer from the proceeds
of the sale of the Bonds in the initial amount of $214,400, all as provided in Section 20
hereof.
"Reserve Requirement" means the lesser of 10% of the initial offering price of
the Bonds to the public or the maximum annual debt service on the Bonds. For
purposes of Reserve Requirement, "initial offering price to the public" means the
principal amount of the Bonds plus any accrued interest and any original issue
premium and less any original issue discounts.
"Resolution" or "Resolution of Issuance" means this Resolution as adopted or
hereafter amended.
"Treasurer" means, for all purposes hereof, except the execution of the Bonds
pursuant to Section 7 hereof, the Treasurer of the City.
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"Yield" means that yield which, when used in computing the present worth of all
payments of principal and interest (or other payments in the case of Nonpurpose
Investments which require payments in a form not characterized as principal and
interest) on a Nonpurpose Investment or on the Bonds produces an amount equal to
the Purchase Price of such Nonpurpose Investment or the Bonds, all computed as
prescribed in applicable Regulations.
Section 2. LIST OF UNPAID ASSESSMENTS. The assessments now
remaining unpaid are as shown on said list and on Exhibit "A" attached hereto and by
this reference made a part hereof; the aggregate amount thereof is $40,000,000; and
for a particular description of the lots or parcels of land bearing the respective
assessment numbers set forth in said list, reference is hereby made to the assessment
and to the diagram, and any amendments thereto, recorded in the office of the
Superintendent of Streets of the City after confirmation thereof by this Council.
Section 3. ISSUANCE OF BONDS. The Bonds, in the aggregate principal
amount of not to exceed $3,200,000, shall be issued as hereinafter provided upon the
security of said unpaid assessments in accordance with, under and pursuant to the
provisions of said Resolution of Intention and the proceedings thereunder duly had and
taken. Jurisdiction is hereby expressly reserved to issue bonds upon the security of the
remaining $4,152,000 of assessments remaining unpaid, subject to the provisions of
Section 30 hereof. The Bonds shall be issued only in fully registered form in the
amount of the Bond Denomination or any integral multiple thereof, and shall mature in
the amounts and on the dates and at the rates of interest set forth in a resolution of
the Council adopted at the time of sale of the Bonds. The Bonds shall be numbered or
otherwise identified as determined by the Agent specified in Section 6 hereof.
Section 4. FORM OF BONDS. The Bonds shall be substantially in the form
set forth in Exhibit "B" hereto and hereby made a part hereof.
Section 5. PAYMENT OF BONDS. The Bonds shall bear interest at the rate
or rates as set forth on Exhibit "B" hereto and hereby made a part hereof, payable on
each Interest Payment Date.
Each Bond shall bear interest from the interest payment date next preceding the
date on which it is authenticated and registered, unless authenticated and registered
(i) prior to an interest payment date and after the close of business of the fifteenth day
preceding such interest payment date, in which event it shall bear interest from such
interest payment date, or (ii) prior to the close of business on the fifteenth day of the
month preceding the first Interest Payment Date, in which event it shall bear interest
from the Bond Date; provided, however, that if at the time of authentication interest is
in default, each Bond shall bear interest from the date to which interest has been paid.
Each Bond will continue to bear interest after maturity at the rate stated therein,
provided it is presented at maturity and payment thereof is refused on the sole ground
that there is not sufficient money in the redemption fund with which to pay same; if it is
not presented at maturity, interest thereon will run only until maturity.
Interest on the Bonds shall be paid to the Registered Owner of each Bond by
check or draft mailed to such Registered Owner's address entered in the registry book
provided for herein as of the fifteenth (15th) day immediately preceding each Interest
Payment Date. Principal and any applicable Redemption Premium of the Bonds shall
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be payable in lawful money of the United States of America of America at the office of
the Agent in San Francisco, California, upon presentation and surrender of the Bonds
as the same becomes due and payable.
Section 6. DESIGNATION OF AGENT. Bank of America, National Trust and
Savings Association, is hereby designated as the Agent to perform the actions and
duties required under this Resolution for the authentication, transfer, registration, and
payment of the Bonds. The Treasurer is hereby authorized and directed to enter into
agreements with the Agent in furtherance of the actions and duties of the Agent under
this Resolution.
Section 7. EXECUTION. The Bonds shall be executed on behalf of the City
and under its official seal by its Treasurer and by its City Clerk, whose signatures shall
be reproduced on the Bonds by engraved, printed or lithographed facsimile thereof,
and the official seal may be placed on the Bonds in like manner; such signing and
sealing shall constitute and be a sufficient and binding execution of each and every
one of the Bonds. The Bonds shall then be delivered to the Agent for authentication
by it.
If any officer whose signature appears on the Bonds ceases to be such officer
before the authentication and delivery of the Bonds to the purchaser thereof, such
signature shall be as valid as if such officer had remained in office until the
authentication and delivery of the Bonds.
Section 8. AUTHENTICATION. Only such of the Bonds as shall bear thereon
a certificate of authentication substantially in the form below, manually executed by
the Agent, shall be valid or obligatory for any purpose or entitled to the benefits of this
Resolution, and such certificate of the Agent shall be conclusive evidence that the
Bonds so authenticated have been duly executed, authenticated and delivered
hereunder and are entitled to the benefits of this Resolution. The Agent's certificate of
authentication on any Bond shall be deemed to be executed by it if signed by an
authorized officer or signatory of the Agent, but it shall not be necessary that the same
officer or signatory sign the certificate of authentication on all of the Bonds issued
hereunder.
[FORM OF CERTIFICATE OF AUTHENTICATION AND REGISTRATION]
This is one of the Bonds described in the within mentioned Resolution of
Issuance, which has been authenticated and registered on
Agent
By
Authorized Officer
Section 9. PREPARATION AND DELIVERY OF BONDS. The Treasurer is
hereby directed to cause the Bonds to be prepared in accordance with this Resolution
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and to deliver same upon their completion and execution to the Agent who shall
authenticate and deliver the Bonds to the purchaser thereof, upon receipt of the
purchase price therefor, and upon receipt of the request of the City.
Section 10. EXCHANGE OF BONDS. Any Bond, upon surrender thereof at
the office of the Agent, together with an assignment duly executed by the Registered
Owner thereof or such Registered Owner's attorney or legal representative in such form
as shall be satisfactory to the Agent, may, at the option of Registered Owner, be
exchanged for an aggregate principal amount of Bonds equal to the principal amount
of the Bond so surrendered, and of any authorized denomination or denominations.
The City shall make provision for the exchange of Bonds at the office of the Agent.
Section 11. NEGOTIABILITY, REGISTRATION, AND TRANSFER OF BONDS.
The Agent shall keep books for the registration, and for the registration of transfers, of
the Bonds as provided in this Resolution which shall at all times be open to inspection
by the City. The transfer of any Bond may be registered only upon such books upon
surrender thereof to the Agent together with an assignment duly executed by the
Registered Owner or such Registered Owner's attorney or legal representative in such
form as shall be satisfactory to the Agent. Upon any such registration of transfer, the
City shall execute and the Agent shall authenticate and deliver in exchange for such
Bond a new Bond or Bonds registered in the name of the transferee, of any
denomination or denominations authorized by this resolution, and in an aggregate
principal amount equal to the principal amount of such Bond or Bonds so surrendered.
In all cases in which Bonds shall be exchanged, the City shall execute and the
Agent shall authenticate and deliver at the earliest practicable time Bonds in
accordance with the provisions of this Resolution. All Bonds surrendered in any such
exchange or registration of transfer shall forthwith be cancelled by the Agent. The City
or the Agent may make a charge for every such exchange or registration of transfer of
Bonds sufficient to reimburse it for any tax or other governmental charge required to
be paid with respect to such exchange or registration of transfer, but no other charge
shall be made to any owner for the privilege of exchanging or registering the transfer of
Bonds under the provisions of this Resolution. Neither the City nor the Agent shall be
required to make such exchange or registration of transfer of Bonds during the fifteen
(15) days immediately preceding any Interest Payment Date.
Section 12. OWNERSHIP OF BONDS. The Registered Owner shall be
deemed and regarded as the absolute owner thereof for all purposes and payment of
or on account of the principal, and redemption premium, if any of any such Bond, and
the interest on any such Bond, shall be made only to or upon the order of the
Registered Owner thereof or such Registered Owner's legal representative. All such
payments shall be valid and effectual to satisfy and discharge the liability upon such
Bond, including the Redemption Premium, if any, and interest thereon to the extent of
the sum or sums so paid.
Section 13. COLLECTION OF UNPAID ASSESSMENTS. The unpaid
assessments shown on Exhibit "A" hereto, together with the interest thereon, shall be
payable in annual series corresponding in number to the number of serial maturities of
the Bonds issued. An annual proportion of each unpaid assessment shall be payable
in each year preceding the date of maturity of each of the several series of Bonds
issued, sufficient to pay the Bonds when due, and such proportion of each unpaid
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assessment coming due in any year, together with the annual interest thereon, shall be
payable in the same manner and at the same time and in the same installments as the
general taxes on real property are payable, and become delinquent at the same times
and in the same proportionate amounts and bear the same proportionate penalties
and interest after delinquency as do the general taxes on real property. All sums
received from the collection of said unpaid assessments and of the interest and
penalties thereon shall be placed in the Redemption Fund.
Section 14. COVENANT TO FORECLOSE. The City hereby covenants with
and for the benefit of the Registered Owners of the Bonds that it will order, and cause
to be commenced within 150 days following the date of delinquency, and thereafter
diligently prosecuted, an action in the superior court to foreclose the lien of any
assessment or installment thereof not paid when due, pursuant to and as provided in
sections 8830 through 8835, inclusive, of the Act.
Section 15. ADVANCES FROM AVAILABLE SURPLUS FUNDS. The City
shall be the purchaser of property upon which payment of an annual installment of
principal and interest due upon any of said unpaid assessments is delinquent, in like
manner in which it becomes or may become the purchaser of property so for the
nonpayment of general taxes, and shall transfer from available surplus funds into the
Redemption Fund for the Bonds, as an advance recoverable upon sale or redemption
of the property, the amount of the delinquent unpaid assessment installment upon
which said sale is made. The City shall also pay and transfer from available surplus
funds into the Redemption Fund, as an advance recoverable upon sale or redemption
of the property, the amount of an future delinquent unpaid assessment installments on
such property pending redemption.
Section 16. REDEMPTION PRIOR TO MATURITY. Each Bond, or any portion
thereof in the amount of the Bond Denomination or any integral multiple thereof,
outstanding may be redeemed and paid in advance of maturity upon any Interest
Payment Date in any year by giving 30 days written notice by registered or certified
mail or by personal service to the Registered Owner and by paying the principal
amount thereof together with the Redemption Premium plus interest to the date of
advanced maturity, unless sooner surrendered, in which event said interest will be paid
to the date of payment, all in the manner and as provided in the Act.
The Treasurer shall cause to be called for redemption and retire Bonds upon
prepayment of assessments in amounts sufficient therefor, or whenever sufficient
surplus funds are available therefor in the Redemption Fund.
The provisions of Part 11.1 of the Act are applicable to the advance payment of
assessments and to the calling of the Bonds.
Section 17. REFUNDING OF BONDS. The Bonds may be refunded by the
City pursuant to Divisions 11 or 11.5 of the Streets and Highways Code of the State of
California upon the conditions as set forth in appropriate proceedings therefor.
Section 18. IMPROVEMENT FUND. The Treasurer shall establish the
Improvement Fund designated by the name and/or number of the assessment district
into which shall be placed the Proceeds of the Bonds, including any premium (except
that any interest accrued from the Bond Date to the Closing Date shall be placed in
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the Redemption Fund provided for herein). All moneys in the Improvement Fund shall
be withdrawn only upon checks or warrants of the City and shall be applied exclusively
to the payment of the costs and expenses of the Project. Disbursements from the
Improvement Fund shall be subject to the provisions of Sections 25 and 26 hereof.
Any surplus remaining after payment of all said costs and expenses shall be used as
set forth in said proceedings.
Section 19. REDEMPTION FUND. The Treasurer shall establish the
Redemption Fund designated by the name of the Bonds, into which shall be placed
any accrued interest for the period from the date of the Bonds to the Closing Date and
all sums received from the collection of unpaid assessments provided for in Section 13
hereof, and of the interest and penalties thereon. From the Redemption Fund
disbursements shall be made to pay the principal or advance redemption price of the
Bonds and the interest due thereon.
Section 20. RESERVE FUND. Upon receipt of the proceeds from the sale of
the Bonds, the Treasurer shall forthwith establish the Reserve Fund, which shall be
designated by the name and /or number of the assessment district proceedings. The
amount of the Reserve Fund shall not exceed the Reserve Requirement. The moneys
in the Reserve Fund shall constitute a trust fund for the benefit of the Registered
Owners of the Bonds and shall be administered by the City in accordance with and
pursuant to the provisions of Part 16 of the Act; provided that proceeds from
redemption or sale of the properties with respect to which payment of delinquent
assessments and interest thereon was paid from the Reserve Fund, shall be credited to
the Reserve Fund; and provided further that for the purposes of maintaining the
Reserve Requirement and providing for any required reduction of the amount of money
in the Reserve Fund during the term of the Bonds pursuant to Section 8887 of the Act,
and applicable provisions of the Code, all proceeds from investment of moneys in the
Reserve Fund shall accrue to the Reserve Fund or be credited upon the assessments,
except as otherwise provided in Section 26 hereof.
Section 21. INVESTMENT OF FUNDS. Moneys in the Improvement Fund,
Redemption Fund, and the Reserve Fund shall, whenever practicable, be invested in
legal investments for the City under applicable law for the moneys held pursuant to this
Resolution at the time when any of such moneys are to be invested therein. Any
income therefrom or interest thereon shall accrue to and be deposited in the fund from
which said moneys were invested, except as otherwise provided in Section 26 hereof.
Section 22. NO ARBITRAGE. The City shall not take, nor permit nor suffer to
be taken by the Treasurer or otherwise, any action with respect to the Gross Proceeds
of the Bonds which if such action had been reasonably expected to have been taken,
or had been deliberately and intentionally taken, on the Closing Date would have
caused the Bonds to be "arbitrage bonds" within the meaning of section 148(a) of the
Code and Regulations.
Section 23. CERTIFICATE AS TO NON — ARBITRAGE. On the basis of the
facts, estimates and circumstances now in existence and in existence on the date of
issue of the Bonds, as determined by the Treasurer, the Treasurer is authorized and
directed to certify that it is not expected that the proceeds of said issue will be used in
a manner that would cause such obligations to be arbitrage bonds. Such certification
shall be delivered to the Original Purchaser on the Closing Date.
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Section 24. FEDERAL GUARANTEE LIMITATIONS. The City shall not take,
nor permit nor suffer to be taken, any action 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 Code and Regulations.
Section 25. PRIVATE BUSINESS USE LIMITATION. The City shall assure
that:
(A) not in excess of ten percent (10 %) of the Proceeds of the Bonds is used for
Private Business Use if, in addition, the payment of the principal of, or the interest on
more than ten percent (10 %) of the Proceeds of the Bonds is (under the terms of the
Bonds or any underlying arrangement) directly or indirectly, (i) secured by any interest
in property, or payments in respect of property, used or to be used for a Private
Business Use, or (ii) to be derived from payments (whether or not to the City) in respect
of property, or borrowed money, used or to be used for a Private Business Use; and
(B) in the event that in excess of five percent (5 %) of the Proceeds of the
Bonds is used for a Private Business Use, and, in addition, the payment of the
principal of, or the interest on, more than five percent (5 %) of the Proceeds of the
Bonds is, (under the terms of the Bonds or any underlying arrangement) directly or
indirectly, secured by any interest in property, or payments in respect of property, used
or to be used for said Private Business Use or is to be derived from payments (whether
or not to the City) in respect of property, or borrowed money, used or to be used for a
Private Business Use, then, (1) said excess over said five percent (5 %) of the Proceeds
of the Bonds which is used for a Private Business Use shall be used for a Private
Business Use related to a government use of such Proceeds and (ii) each such Private
Business use over five percent (5 %) of the Proceeds of the Bonds which is related to a
government use of such Proceeds shall not exceed the amount of such Proceeds
which is used for the government use of Proceeds to which such Private Business Use
is related.
Section 26. PRIVATE LOAN LIMITATION. The City shall assure that not in
excess of the lesser of five percent (5 %) of the Proceeds of the Bonds or $5,000,000 is
to be used, directly or indirectly, to make or finance loans (other than loans
constituting Nonpurpose Investments and other than loans which enable the borrower
to finance any governmental tax or assessment of general application for a specific
essential governmental function) to persons other than state or local government units.
Section 27. REBATE OF EXCESS INVESTMENT EARNINGS TO UNITED
STATES OF AMERICA.
(A) Creation of Accounts. There are hereby created, to be held by the
Treasurer as separate accounts distinct from all other funds and accounts held by the
Treasurer under this Resolution, the Earnings Account and the Rebate Account. All
interest earnings and profits on amounts in all funds and accounts established under
this Resolution, other than (i) interest earnings and profits on amounts in the
Redemption Fund (except for amounts referenced in clauses (1) through (3) of the
definition of Gross Proceeds) and in any other accounts and funds referenced in
subsection (C)(4) of this Section if such interest earnings and profits in any Bond Year
are less than $100,000, (ii) interest earnings and profits on amounts in funds and
accounts which do not constitute Gross Proceeds, and (iii) interest earnings and profits
—11—
on the Rebate Account shall, upon receipt by the Treasurer, be deposited in the
Earnings Account. In addition, all interest earnings and profits on Gross Proceeds in
funds and accounts held by the City shall, upon receipt, be paid to the Treasurer for
deposit in the Earnings Account. Annually, within twenty -five (25) days following the
last day of each Bond Year, the Treasurer shall transfer from the Earnings Account to
the Rebate Account for purposes of ultimate rebate to the United States an amount
equal to Excess Investment Earnings, all as more particularly described in this Section.
Following the transfer referenced in the preceding sentence, the Treasurer shall transfer
all amounts remaining in the Earnings Account attributable to earnings on amounts in
the Improvement Fund, Reserve Fund, and Redemption Fund shall be returned to said
Funds, respectively; provided, however, that if the Improvement Fund has been closed
or the Reserve Fund has reached the Reserve Requirement, such amounts otherwise
transferred to the Improvement Fund and Reserve Fund, respectively, shall be
transferred to the Redemption Fund to be used for the payment of Debt Service on the
next Interest Payment Date and, for such purpose, Debt Service due from the City on
such date shall be credited by an amount equal to the amount so transferred.
(B) Duties of City in General. The City shall calculate Excess Investment
Earnings in accordance with subsection (C) and shall assure payment of an amount
equal to Excess Investment Earnings to the United States in accordance with
subsections (D) and (E).
(C) Calculation of Excess Investment Earnings. Within twenty (20) days
following the last day of the first Bond Year, the City shall calculate, or shall cause to
be calculated and shall provide written notice to the Treasurer of, the Excess
Investment Earnings referenced in clause (1) of the definition of Excess Investment
Earnings. Thereafter, within twenty (20) days following the last day of each Bond Year
and within fifty (50) days following the date of the retirement of the Bonds, the City
shall calculate, or shall cause to be calculated and shall provide written notice to the
City of, the amount of Excess Investment Earnings. Said calculations shall be made or
caused to be made by the City in accordance with the following:
(1) Except as provided in (2), in determining the amount described in
clause (1)(A) of the definition of Excess Investment Earnings, the aggregate
amount earned on Nonpurpose Investments shall include (i) all income realized
under federal income tax accounting principles (whether or not the person
earning such income is subject to federal income tax) with respect to such
Nonpurpose Investments and with respect to the reinvestment of investment
receipts from such Nonpurpose Investments (without regard to the transaction
costs incurred in acquiring, carrying, selling or redeeming such Nonpurpose
Investments), including, but not limited to, gain or loss realized on the
disposition of such Nonpurpose Investments (without regard to when such gains
are taken into account under section 453 of the Code relating to taxable year of
inclusion of gross income), and income under section 1272 of the Code (relating
to original issue discount) and (ii) any unrealized gain or loss as of the date of
retirement of the Bonds in the event that any Nonpurpose Investment is retained
after such date.
(2) In determining the amount described in clause (1) of the definition of
Excess Investment Earnings, Investment Property shall be treated as acquired
for its fair market value at the time it becomes a Nonpurpose Investment, so
-12-
that gain or loss on the disposition of such Investment Property shall be
computed with reference to such fair market value as its adjusted basis.
(3) In determining the amount described in clause (2) of the definition of
Excess Investment Earnings, all income attributable to the excess described in
clause (1) of said definition shall be taken into account, whether or not that
income exceeds the Yield on the Bonds, and no amount may be treated as
"negative arbitrage ".
(4) In determining the amount of Excess Investment Earnings, there shall
be excluded any amount earned on any fund or account which is used primarily
to achieve a proper matching of revenues and Debt Service within each Bond
Year and which is depleted at least once a year except for a reasonable
carryover amount not in excess of the greater of one year's earnings on such
fund or account or one- twelfth of annual Debt Service as well as amounts
earned on said earnings if the gross earnings on all such funds and accounts for
the Bond Year is Tess than $100,000.
(D) Payment to the United States of America. The City shall direct the
Treasurer to pay from the `Rebate Account an amount equal to Excess Investment
Earnings to the United States in installments with the first payment to be made not
later than thirty (30) days after the end of the fifth Bond Year and with subsequent
payments to be made not later than five (5) years after the preceding payment was
due. The City shall assure that each such installment is in an amount equal to at least
ninety percent (90 %) of the Excess Investment Earnings as of the end of the Bond year
immediately preceding the date of such payment. Not later than sixty (60) days after
the retirement of the Bonds, the City shall direct the Treasurer to pay from the Rebate
Account to the United States one hundred percent (100 %) of the theretofore unpaid
Excess Investment Earnings. In the event that there are any amounts remaining in the
Rebate Account following the payment required by the preceding sentence, the
Treasurer shall pay said amounts to the City to be used for any lawful purpose of the
City. The City shall direct the Treasurer to remit payments to the United States of
America at the address prescribed by the Regulations as the same may be from time
to time in effect with such reports and statements as may be prescribed by such
Regulations. In the event that, for any reason, amounts in the Rebate Account are
insufficient to make the payments to the United States which are required by this
subsection (D), the City shall assure that such payments are made by the City to the
United States of America, on a timely basis, from any funds lawfully available therefor.
(E) Further Obligation of City. The City shall assure that Excess Investment
Earnings are not paid or disbursed except as required in this Section. To that end the
City shall assure that investment transactions are on an arm's length basis and that
Nonpurpose Investments are acquired at their fair market value. In the event that
Nonpurpose Investments consist of certificates of deposit or investment contracts,
investment in such Nonpurpose Investments shall be made in accordance with the
procedures described in applicable Regulations as from time to time in effect.
(F) Maintenance of Records. The City shall keep, and retain for a period of six
(6) years following the retirement of the Bonds, records of the determinations made
pursuant to this Section.
-13-
(G) Independent Consultants. In order to provide for the administration of this
Section, the City and the Treasurer may provide for the employment of independent
attorneys, accountants and consultants compensated on such reasonable basis as the
City or the Treasurer may deem appropriate.
Section 28. SMALL ISSUER EXEMPTION FROM BANK NONDEDUCTIBILITY
RESTRICTION. The City hereby designates the Bonds for purposes of paragraph (3)
of section 265(b) of the Code and covenants that the Bonds do not constitute private
activity bonds as defined in section 141 of the Code, and that not more than
$10,000,000 aggregate principal amount of obligations the interest on which is
excludable (under section 103(a) of the Code) from gross income for federal income
taxes (excluding, however, private activity bonds, as defined in section 141 of the
Code, other than qualified 501(c)(3) bonds as defined in section 145 of the Code),
including the Bonds, have been or shall be issued by the City , including all
subordinate entities of the City, during the calendar year 1988.
Section 29. AMENDMENT. Without the consent of the Registered Owners of
the Bonds, the City hereafter may amend this Resolution to add, modify or delete
provisions if the same is necessary or desirable to assure compliance with section
148(f) of the Code relating to rebate of Excess Investment Earnings or as otherwise
required to assure the exemption from federal income taxation of interest on the
Bonds.
Section 30. AUTHORITY OF TREASURER. All actions mandated by this
Resolution to be performed by the Treasurer may be performed by the designee of
thereof or such other official of the City or independent contractor, consultant or
trustee duly authorized by the City to perform such action or actions in furtherance of
all or a specific portion of the requirements hereof.
Section 31. ADDITIONAL SERIES OF BONDS. Prior to the issuance of any
additional series of bonds to be secured by the lien of assessment specified herein, the
City agrees that Mills— Carneghi - Bautovich, Inc., or other appraiser mutually
acceptable to the City and Stone & Youngberg, as managing underwriter (the
"Underwriter ") will be directed by Underwriter to prepare a current appraisal of the
property within the assessment district. The City further agrees that no further series of
bonds will be issued if the total assessment indebtedness represented by assessment
bonds then outstanding plus assessment bonds proposed to be sold exceeds forty
percent (40 %) of the appraised value as determined by said appraisal on a parcel -by-
parcel basis; provided, however, such assessment indebtedness may exceed forty
percent (40 %) on parcels upon which development (including buildings or structures)
has occurred or which, in the opinion of Underwriter and the City, are otherwise
considered, in light of existing circumstances, to adequately secure such assessment
indebtedness.
Section 32. CERTIFIED COPIES. The City Clerk shall furnish a certified copy
of this resolution to the Treasurer, to the Agent and to the Auditor of the County of
Alameda.
* * * * * * * * * * **
E
0
• .,ATTEST:
EL,
City Clerk
vote:
PASSED AND ADOPTED this 5 day of July , 1988, by the following
AYES: Councilmembers Camicia, Haugner, Monsef, Thomas
and President Corica - 5.
NOES: None:
ABSENT/ABSTAIN:
None.
APPROVED:
Mayor
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IMPROVEMENT BONDS
CITY OF ALAMEDA
Marina Village Assessment District NO. 84 -3
SERIES 88 -1
Maturity Date Principal Interest
(September 2) Amount Rate
1989 $ 5,000.00 5.7507
1990 5,000.00 6.000%
1991 5,000.00 6.250%
1992 5,000.00 6.500%
1993 5,000.00 6.750%
1994 40,000.00 6.900%
1995 75,000.00 7.100%
1996 85,000.00 7.300%
1997 90,000.00 7.500%
1998 95,000.00 7.600%
1999 105,000.00 7.700%
2000 110,000.00 7.800%
2001 120,000.00 7.900%
2002 130,000.00 8.000%
2003 140,000.00 8.000%
2004 150,000.00 8.100%
2005 160,000.00 8.100%
2006 175,000.00 8.100%
2007 190,000.00 8.150%
2008 205,000.00 8.150%
2009 220,000.00 8.150%
2010 240.000.00 8.200%
2011 260,000.00 8.200%
2012 280,000.00 8.200%
2013 305,000.00 8.200%
EXHIBIT B
Registered
Number A—
United States of America
State of California
County of Alameda
CITY OF ALAMEDA
Improvement Bond
Marina Village Assessment District 84 -3, Series 88 -1
Registered
INTEREST MATURITY BOND CUSIP
RATE DATE DATE NUMBER
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
Under and by virtue of the Improvement Bond Act of 1915, Division 10
(commencing with Section 8500) of the Streets and Highways Code (the "Act "), the City
of Alameda (the "City "), County of Alameda, State of California, will, out of the
redemption fund for the payment of the bonds issued upon the unpaid portion of
assessments made for the acquisition, work and improvements more fully described in
proceedings taken pursuant to Resolution of Intention No. 10421 adopted by the City
Council of the City on August 21, 1984, pay to the registered owner named above or
registered assigns, on the maturity date stated above, the principal amount stated
above, in lawful money of the United States of America and in like manner will pay
interest from the interest payment date next preceding the date on which this bond is
authenticated, unless this bond is authenticated and registered as of an interest payment
date, in which event it shall bear interest from such interest payment date, or unless this
bond is authenticated and registered prior to March 2, 1989, in which event it shall bear
interest from its date until payment of the principal amount shall have been discharged,
at the rate per annum stated above, payable semiannually on March 2 and September 2
in each year commencing on March 2, 1989. Both the principal hereof and redemption
premium hereon are payable at the Securities Services Division of Bank of America,
National Trust and Savings Association, as Authentication Agent, Transfer Agent,
Registrar and Paying Agent (the "Agent "), in San Francisco, California, and the interest
hereon is payable by check or draft mailed to the registered owner hereof at the owner's
EXHIBIT C
C -1
address as it appears on the records of Bank of America, National Trust and Savings
Association, or at such address as may have been filed with Bank of America, National
Trust and Savings Association, for that purpose, as of the 15th day immediately
preceding each interest payment date.
This bond will continue to bear interest after maturity at the rate above stated;
provided, it is presented at maturity and payment thereof is refused upon the sole ground
that there are not sufficient moneys in said redemption fund with which to pay same. If it
is not presented at maturity, interest thereon will run until maturity.
This bond shall not be entitled to any benefit under the Act or the Resolution
Authorizing Issuance Of Bonds (the "Resolution of Issuance "), or become valid or
obligatory for any purpose, until the certificate of authentication and registration hereon
endorsed shall have been dated and signed by the Agent.
IN WITNESS WHEREOF, said City of Alameda has caused this bond to be signed
in facsimile by the Treasurer of said City and by its Clerk, and has caused its corporate
seal to be reproduced in facsimile hereon all as of the 20th day of July, 1988.
CITY OF ALAMEDA
City Clerk Treasurer
[SEAL]
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Certificate of Authentication and Registration
This is one of the bonds described in the within mentioned Resolution of Issuance,
which has been authenticated and registered on
Agent
By
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ADDITIONAL PROVISIONS OF THE BOND
This bond is one of several annual series of bonds of like date, tenor, and effect,
but differing in amounts, maturities and interest rates, issued by the City of Alameda
under the Act and the Resolution of Issuance, for the purpose of providing means for
paying for the improvements described in the proceedings, and is secured by the
moneys in said redemption fund and by the unpaid portion of said assessments made for
the payment of said improvements, and, including principal and interest, is payable
exclusively out of said fund.
This bond is transferable by the registered owner hereof, in person or by the
owner's attorney duly authorized in writing, at the office of the Agent, subject to the
terms and conditions provided in the Resolution of Issuance, including the payment of
certain charges, if any, upon surrender and cancellation of this bond. Upon such
transfer, a new registered bond or bonds, of any authorized denomination or
denominations, of the same maturity, and for the same aggregate principal amount, will
be issued to the transferee in exchange therefor.
Bonds shall be registered only in the name of an individual (including joint owners),
a corporation, a partnership, or a trust.
Neither the City nor the Agent shall be required to make such exchange or
registration of transfer of bonds during the 15 days immediately preceding any interest
payment date.
The City and the Agent may treat the registered owner hereof as the absolute
owner for all purposes, and the City and the Agent shall not be affected by any notice to
the contrary.
This bond or any portion of it in the amount of five thousand dollars ($5,000), or
any integral multiple thereof, may be redeemed and paid in advance of maturity upon the
second day of March or September in any year by giving at least 30 days' notice by
registered or certified mail or by personal service to the registered owner hereof at the
registered owner's address as it appears on the registration books of the Agent and by
paying principal and accrued interest together with a premium equal to 3 percentum of
the principal.
The bonds are qualified tax — exempt obligations designated by the City for
purposes of section 265(b) of the Internal Revenue Code of 1986.
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I hereby certify that the following is a correct copy of the signed legal opinion of
Jones Hall Hill & White, A Professional Law Corporation, San Francisco, California.
City Clerk
City of Alameda
OPINION: $3,200,000 Improvement Bonds, City of Alameda,
Marina Village Assessment District 84 -3, Series 88 -1
We have acted as Bond Counsel in connection with the issuance by the City of
Alameda (the "City ") of $3,200,000 Improvement Bonds, Marina Village Assessment
District 84 -3, Series 88 -1, dated July 20, 1988 (the "Bonds "), pursuant to Division 10 of
the California Streets and Highways Code (the "Act ") and Resolution No.
(the "Resolution ") of the City adopted July 5, 1988. We have examined the law and such
certified proceedings and other papers as we deem necessary to render this opinion.
As to questions of fact material to our opinion, we have relied upon
representations of the City contained in the Resolution and in the certified proceedings
and other certifications of public officials furnished to us, without undertaking to verify
such facts by independent investigation.
Based upon our examination, we are of the opinion, under existing law, that:
1. The City is a municipal corporation and chartered city of the State of California
duly organized and validly existing under and by virtue of the Constitution and the laws
of the State of California with power to adopt the Resolution, perform the agreements on
its part contained therein, and issue the Bonds.
2. The Resolution has been duly adopted by the City and constitutes a valid and
binding obligation of the City enforceable upon the City.
3. Pursuant to the Act, the Resolution creates a valid lien on the funds pledged
by the Resolution for the security of the Bonds on a parity with other bonds (if any)
issued or to be issued under the Resolution, subject to no prior lien granted under the
Act.
4. The Bonds have been duly authorized, executed and delivered by the City and
are valid and binding special obligations of the City, payable solely from the sources
provided therefor in the Resolution.
5. The interest on the Bonds is excluded from gross income for federal income
tax purposes and is not an item of tax preference for purposes of the federal alternative
minimum tax imposed on individuals and corporations; it should be noted, however, that,
for the purpose of computing the alternative minimum tax imposed on such corporations
(as defined for federal income tax purposes), such interest is taken into account in
determining adjusted net book income (adjusted current earnings for taxable years
beginning after December 31, 1989). The opinions set forth in the preceding sentence are
subject to the condition that the City comply with all requirements of the Internal
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Revenue Code of 1986 that must be satisfied subsequent to the issuance of the Bonds in
order that interest thereon 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 interest
on the Bonds in gross income for federal income tax purposes to be retroactive to the
date of issuance of the Bonds. We express no opinion regarding other federal tax
consequences arising with respect to the Bonds.
6. The interest on the Bonds is exempt from personal income taxation imposed
by the State of California.
The rights of the owners of the Bonds and the enforceability of the Bonds and the
Resolution may be subject to bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors' rights heretofore or hereafter enacted and may also
be subject to the exercise of judicial discretion in appropriate cases.
Respectfully submitted,
A Professional Law Corporation
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this Bond,
shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT - Custodian
(Gust) (Minor)
under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
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ASSIGNMENT
For value received the undersigned do(es) hereby sell, assign and transfer unto
the within Bond and hereby irrevocably constitute(s) and appoint(s)
attorney, to transfer the same on the books of the Agent, with full power of substitution
in the premises.
Dated:
Notice: Signature to this assignment
must correspond with the name as it
appears upon the face of the within
Bond in every particular, without
alteration or enlargement or any change
whatsoever.
Signature Guaranteed
Notice: Signature(s) must be guaranteed
by a member firm of the New York Stock
Exchange or a commercial bank or trust
company.
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