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Resolution 12763CITY OF ALAMEDA RESOLUTION NO. 12763 PROVIDING FOR THE BORROWING OF FUNDS FOR FISCAL YEAR 1996 -1997 AND THE ISSUANCE AND SALE OF 1996 TAX AND REVENUE ANTICIPATION NO "1'ES THEREFOR WHEREAS, pursuant to Sections 53850 et seq. of the Government Code of the State of California (the "State "), this City Council (the "Council ") has found and determined that moneys are needed for the requirements of the City of Alameda (the "City "), a municipal corporation duly organized and existing under the laws of the State, to satisfy obligations payable from the General Fund of the City, and that it is necessary that said sum be borrowed for such purpose at this time by the issuance of temporary notes therefor in anticipation of the receipt of taxes, revenue and other moneys to be received by the City for the General Fund of the City during or allocable to the fiscal year of the City beginning July 1, 1996 and ending June 30, 1997 ( "Fiscal Year 1996 - 1997 "); NOW, THEREFORE, the City Council of the City of Alameda hereby finds, determines, declares and resolves as follows: Section 1. Recitals True and Correct. All of the recitals herein set forth are true and correct, and the Council so finds and determines. Section 2. Limitation on Maximum Amount. The principal amount of notes issued pursuant hereto, when added to the interest payable thereon, shall not exceed eighty -five percent (85 %) of the estimated amount of the uncollected taxes, revenue and other moneys of the City for the General Fund of the City attributable to Fiscal Year 1996 -1997, and available for the payment of said notes and the interest thereon (as hereinafter provided). Section 3. Issuance and Terms of Notes. Solely for the purpose of anticipating taxes, revenue and other moneys to be received by the City for the General Fund of the City during or allocable to Fiscal Year 1996 -1997, and not pursuant to any common plan of financing, the City hereby determines to and shall borrow the principal amount of not to exceed Eight Million Five Hundred Thousand Dollars ($8,500,000) by the issuance of temporary notes under Sections 53850 et seq. of the Government Code of the State, designated "City of Alameda (Alameda County, California) 1996 Tax and Revenue Anticipation Notes" (the "Notes "). The Notes shall be dated the date of issue, shall mature (without option of prior redemption) not more than one year from their date of issue, and shall bear interest from their date, payable at maturity and computed on a 30 -day month /360 -day year basis. Both the principal of and interest on the Notes shall be p.ayable in lawful money of the United States of America, as described below. Section 4. Form of Notes; Book Entry Only System. The Notes shall be issued in fully registered form, without coupons, and shall be substantially in the form and substance set forth in Exhibit A attached hereto and by reference incorporated herein, the blanks in said form to be filled in with appropriate words and figures. The Notes shall be numbered from 1 consecutively upward, shall be in the denomination of $1,000 each or any integral multiple thereof. " CUSIP" identification numbers shall be imprinted on the Notes, but such numbers shall not constitute a part of the contract evidenced by the Notes and any error or omission with respect thereto shall not constitute cause for refusal of any purchaser to accept delivery of and pay for the Notes. In addition, failure on the part of the City to use such CUSIP numbers in any notice to registered owners of the Notes shall not constitute an event of default or any violation of the City's contract with such registered owners and shall not impair the effectiveness of any such notice. Except as provided below, the owner of all of the Notes shall be The Depository Trust Company, New York, New York ( "DTC "), and the Notes shall be registered in the name of Cede & Co., as nominee for DTC. The Notes shall be initially executed and delivered in the form of a single fully registered Note in the full aggregate principal amount of the Notes. The City may treat DTC (or its nominee) as the sole and exclusive owner of the Notes registered in its name for all purposes of this Resolution, and the City shall not be affected by any notice to the contrary. The City shall not have any responsibility or obligation to any participant of DTC (a "Participant "), any person claiming a beneficial ownership interest in the Notes under or through DTC or a Participant, or any other person which is not shown on the register of the City as being an owner, with respect to the accuracy of any records maintained by DTC or any Participant or the payment by DTC or any Participant by DTC or any Participant of any amount in respect of the principal or interest with respect to the Notes. The City shall pay all principal and interest with respect to the Notes only to DTC, and all such payments shall be valid and effective to fully satisfy and discharge the City's obligations with respect to the principal and interest with respect to the Notes to the extent of the sum or sums so paid. Except under the conditions noted below, no person other than DTC shall receive a Note. Upon delivery by DTC to the City of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co., the term "Cede & Co. in this Resolution shall refer to such new nominee of DTC. If the City determines that it is in the best interest of the beneficial owners that they be able to obtain Notes and delivers a written certificate to DTC to that effect, DTC shall notify the Participants of the availability through DTC of Notes. In such event, the City shall issue, transfer and exchange Notes as requested by DTC and any other owners in appropriate amounts. DTC may determine to discontinue providing its services with respect to the Notes at any time by giving notice to the City and discharging its responsibilities with respect thereto under applicable law. Under such circumstances (if there is no successor securities depository), the City shall be obligated to deliver Notes as described in this Resolution. Whenever DTC requests the City to do so, the City will cooperate with DTC in taking appropriate action after reasonable notice to (a) make available one or more separate Notes evidencing the Notes to any DTC Participant having Notes credited to its DTC account or (b) arrange for another securities depository to maintain custody of Certificates evidencing the Notes. Notwithstanding any other provision of this Resolution to the contrary, so long as any Note is registered in the name of Cede & Co., as nominee of DTC, all payments with respect to the principal and interest with respect to such Note and all notices with respect to such Note shall be made and given, respectively, to DTC as provided as in the representation letter delivered on the date of issuance of the Notes. -2- Section 5. Use of Proceeds. The moneys so borrowed shall be deposited in the General Fund of the City and used and expended by the City for any purpose for which it is authorized to expend funds from the General Fund of the City. Section 6. Security. (a) The principal amount of the Notes, together with the interest thereon, shall be payable from taxes, revenue and other moneys which are received by the City for the General Fund of the City for Fiscal Year 1996 -1997. As security for the payment of the principal of and interest on the Notes the City hereby covenants the first "unrestricted moneys," as hereinafter defined, to be received by the City in such months and in such amounts as shall be determined by the Finance Director prior to the date of sale of the Notes, sufficient to pay the principal of and interest on the Notes at maturity (all such pledged amounts described above being hereinafter called the "Pledged Revenues "). (b) Notwithstanding the foregoing, if determined by the Finance Director to be necessary for the successful marketing of the Notes, the Notes may be secured, in whole or in part, by an irrevocable letter of credit or other credit enhancement vehicle to be issued by a financial institution ( "the "Financial Institution ") and the Finance Director is hereby authorized to execute a reimbursement agreement or other agreement with respect to such other credit enhancement vehicle (if one is needed) on behalf of the City, and the City Clerk is hereby authorized to attest to the signature of the Finance Director, such reimbursement agreement or other agreement with respect to such other credit enhancement vehicle to be substantially the same as that used on short term borrowing transactions similar to the Notes, so long as the cost of such credit enhancement vehicle does not exceed one percent (1 %) of the principal amount of the Notes, and so long as the Financial Institution is rated in one of the two highest rating categories by Moody's Investors Service or Standard & Poor's Corporation. In the event a determination is made to secure the Notes, in whole or in part, by a credit enhancement vehicle, the first lien and charge on Pledged Revenues for the payment of the principal of and interest on the Notes will be subject to the prior lien thereon of the Financial Institution. The principal of the Notes and the interest thereon shall constitute a first lien and charge thereon and shall be payable from the Pledged Revenues. To the extent not so paid from the Pledged Revenues, the Notes shall be paid from any other moneys of the City lawfully available therefor. In the event that there are insufficient unrestricted moneys received by the City to permit the deposit into the Repayment Fund of the full amount of the Pledged Revenues to be deposited in any month by the last business day of such month, then the amount of any deficiency shall be satisfied and made up from any other moneys of the City lawfully available for the repayment of the Notes and interest thereon. The term "unrestricted moneys" shall mean taxes, income, revenue, cash receipts, and other moneys intended as receipts for the General Fund of the City for Fiscal Year 1996 -1997 and which are generally available for the payment of current expenses and other obligations of the City. Section 7. Repayment Fund. There is hereby created a special fund to be by the City designated the "1996 Tax and Revenue Anticipation Note Repayment Fund" (the "Repayment Fund ") and applied as directed in this Resolution. Any money placed in the Repayment Fund shall be for the benefit of the holders of the Notes, and until the Notes and all interest thereon are paid or until provision has been made for the payment of the Notes at maturity with interest to maturity, the moneys in the Repayment Fund shall be applied solely for the purposes for which the Repayment Fund is created. During the pledge months to be determined by the Finance Director in accordance with Section 6 hereof, the City shall deposit all Pledged Revenues in the Repayment Fund. -3- On the date of final maturity of the Notes, the moneys in the Repayment Fund, to the extent necessary to pay the principal of and interest on the Notes at maturity, shall be transferred by the City to DTC the moneys in the Repayment Fund necessary to pay the principal of and interest on the Notes at maturity. To the extent said moneys are insufficient therefor, an amount of moneys from the City's General Fund which will enable payment of the full principal of and interest on the Notes at maturity shall be transferred, or caused to be transferred, by the City to the DTC. DTC will thereupon make payments of and interest on the Notes to the DTC Participants who will thereupon make payments of principal and interest to the beneficial owners of the Notes. Any moneys remaining in the Repayment Fund after the Notes and the interest thereon have been paid, or provision for such payment has been made, shall be transferred to the City's general fund. Notwithstanding the foregoing, if determined by the Finance Director to be necessary for the monitoring or control of investments or for the successful marketing of the Notes, the Repayment Fund may be held by a third -party fiscal agent (the "Fiscal Agent ") and the Finance Director is hereby authorized to execute a fiscal agent agreement on behalf of the City, and the City Clerk is hereby authorized to attest to the signature of the Finance Director, such fiscal agent agreement to be substantially the same as that used on short term borrowing transactions similar to the Notes. In the event of such determination, the Finance Director is directed, upon receipt of Pledged Revenues, to transfer such Pledged Revenues to the Fiscal Agent which shall, on or immediately prior to the maturity date of the Notes, transfer to DTC the moneys in the Repayment Fund necessary to pay the principal and interest on the Notes at maturity. Moneys transferred to the Fiscal Agent shall be invested by the Fiscal Agent, at the direction of the Finance Director. Section 8. Deposit and Investment of Fund. All moneys held by the City in the Repavment Fund, if not invested, shall be held in time or demand deposits as public funds and shall be secured at all times by bonds or other obligations which are authorized by law as security for public deposits, of a market value at least equal to the amount required by law. Moneys in the Repayment Fund shall, to the greatest extent possible, be invested by the City directly, or through an investment agreement, in investments as permitted by the laws of the State as now in effect and as hereafter amended, and the proceeds of any such investments shall be deposited in the Repayment Fund and shall be part of the Pledged Revenues. Section 9. Execution of Notes. The City Manager of the City, the Finance Director and any authorized designee of the City are hereby separately authorized to execute the Notes by manual signature, and the City Clerk of the City is hereby authorized to countersign the same by facsimile signature and to affix the seal of the City thereto either manually or by facsimile impression thereof, and said officers are hereby authorized to cause the blank spaces thereof to be filled in as may be appropriate. Section 10. Covenants and Warranties. It is hereby covenanted and warranted by the City that all representations and recitals contained in this Resolution are true and correct, and that the City and its appropriate officials have duly taken all proceedings necessary to be taken by them, and will take any additional proceedings necessary to be taken by them, for the prompt collection and enforcement of the taxes, revenue, cash receipts and other moneys pledged hereunder in accordance with law and for carrying out the provisions of this Resolution. -4- Section 11. Transfer of Notes. Any Note may, in accordance with its terms (but only if: (1) the City determines to no longer maintain the book entry only status of the Notes; or (2) DTC determines to discontinue providing such services and no successor securities depository is named; or (3) DTC requests the City to deliver Note certificates to particular DTC Participants), be transferred, upon the books required to be kept pursuant to the provisions of Section 13 hereof, by the person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Note for cancellation at the office of the City, accompanied by delivery of a written instrument of transfer in a form approved by the City, duly executed. Whenever any Note or Notes shall be surrendered for transfer, the City shall execute and deliver a new Note or Notes, for like aggregate principal amount. Section 12. Exchange of Notes. Notes may be exchanged at the office of the City for a like aggregate principal amount of Notes of authorized denominations and of the same maturity. Section 13. Note Register. The City shall keep or cause to be kept sufficient books for the registration and transfer of the Notes if the book entry only system is no longer in effect and, in such case, the City shall register or transfer or cause to be registered or transferred, on said books, Notes as herein before provided. While the book entry only system is in effect, such books need not be kept, as the Notes will be represented by one Note registered in the name of Cede & Co., as nominee for DTC. Section 14. Temporary Notes. The Notes may be initially issued in temporary form exchangeable for definitive Notes when ready for delivery. The temporary Notes may be printed, lithographed or typewritten, shall be of such denominations as may be determined by the City, and may contain such reference to any of the provisions of this Resolution as may be appropriate. Every temporary Note shall be executed by the City upon the same conditions and in substantially the same manner as the definitive Notes. If the City issues temporary Notes it will execute and furnish definitive Notes without delay, and thereupon the temporary Notes may be surrendered, for cancellation, in exchange therefor at the office of the City, and the City shall deliver in exchange for such temporary Notes an equal aggregate principal amount of definitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall be entitled to the same benefits pursuant to this Resolution as definitive Notes executed and delivered hereunder. Section 15. Notes Mutilated, Lost, Destroyed or Stolen. If any Note shall become mutilated the City, at the expense of the registered owner of said Note, shall execute and deliver, a new Note of like maturity and principal amount in exchange and substitution for the Note so mutilated, but only upon surrender to the City of the Note so mutilated, Every mutilated Note so surrendered to the City shall be canceled by it and delivered to, or upon the order of, the City. If any Note shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the City and, if such evidence be satisfactory to the City and indemnity satisfactory to it shall be given, the City, at the expense of the registered owner, shall execute and deliver a new Note of like maturity and principal amount in lieu of and in substitution for the Note so lost, destroyed or stolen. The City may require payment of a sum not exceeding the actual cost of preparing each new Note issued under this Section 15 and of the expenses which may be incurred by the City in the premises. Any Note issued under the provisions of this Section 15 in lieu of any Note alleged to be lost, destroyed or stolen shall constitute an original additional contractual obligation on the part of the City whether or not the Note so alleged to be lost, destroyed or stolen be at any time -5- enforceable by anyone, and shall be equally and proportionately entitled to the benefits of this Resolution with all other Notes issued pursuant to this Resolution. Section 16. Tax Covenants. (a) No Arbitrage. The City shall not take, nor permit nor suffer to be taken any action with respect to the proceeds of the Notes which, if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken, on the date of issuance of the Notes (the "Closing Date ") would have caused the Notes to be "arbitrage bonds" within the meaning of section 148 of the Internal Revenue Code of 1986 (the "Code "). (b) Rebate Requirement. The City shall take any and all actions necessary to assure compliance with section 148(f) of the Code, relating to the rebate of excess investment earnings, if any, to the federal government. (c) Private Activity Bond Limitation. The City shall assure that proceeds of the Notes are not so used as to cause the Notes to satisfy the private business tests of section 141(b) of the Code. (d) Private Loan Financing Limitation. The City shall assure that proceeds of the Notes are not so used as to cause the Notes to satisfy the private loan financing test of section 141(c) of the Code. (e) Federal Guarantee Prohibition. The City shall not take any action or permit or suffer any action to be taken if the result of the same would be to cause any of the Notes to be "federally guaranteed" within the meaning of section 149(b) of the Code. (f) Maintenance of Tax- Exemption. The City shall take all actions necessary to assure the exclusion of interest on the Notes from the gross income of the owners of the Notes to the same extent as such interest is permitted to be excluded from gross income under the Code as in effect on the Closing Date. Section 17. Sale of Notes. Kelling, Northcross & Nobriga, Inc., the financial advisor to the City (the "Financial Advisor "), on behalf of the City, is authorized to identify a purchaser for the Notes and to negotiate an interest rate and purchase price for the Notes, so long as the net interest cost to the City (adjusted to reflect the cost of any credit enhancement) does not exceed six percent (6 %). The definitive principal amount of Notes to be issued shall be deteimined by the Financial Advisor, on behalf of the City, at the time of sale of the Notes to the purchaser identified. The City Manager, Finance Director or any authorized designee of the City is hereby authorized and directed to accept an offer from such purchaser, for and in the name of the City, by notice to such purchaser. The City Manager, Finance Director or any authorized designee of the City is hereby authorized to execute a Note purchase agreement or other document in connection with such award. Section 18. Preliminary Official Statement. The Financial Advisor is hereby authorized to prepare a Preliminary Official Statement and an Official Statement relating to the Notes, to be used in connection with the offering and sale of the Notes. Distribution by the Financial Advisor of said Preliminary Official Statement to prospective purchasers of the Notes is hereby approved. The City Manager, Finance Director or any authorized designee of the City are hereby authorized and directed to approve any changes in or additions to a final form of said Official Statement deemed advisable by any of them, and to execute a statement at the time of delivery of the Notes to the Purchaser to the effect that the Final Official Statement does not contain any untrue statement of a material fact or -6- omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Mayor of the City, City Manager, Finance Director or any authorized designee of the City is hereby authorized and directed to execute and deliver the final Official Statement for and in the name and on behalf of the City. Section 19. Agreement for Bond Counsel Services; Financial Advisor Services; Costs of Issuance. The City Council hereby approves that certain agreement for bond counsel services by and between the City and Jones Hall Hill & White, A Professional Law Corporation, in substantially the form as the agreement on file in the City Clerk's office, and the City Manager, City Attorney, or any authorized designee of the City are hereby authorized and directed to sign said agreement for and on behalf of the City. The City Council hereby approves that certain agreement for financial advisory services by and between the City and Kelling, Northcross & Nobriga, Inc., in substantially the form as the agreement on file in the City Clerk's office, and the City Manager or any authorized designee of the City are hereby authorized and directed to sign said agreement for and on behalf of the City. All costs incurred by the City in connection with the issuance of the Notes, including but not limited to printing of any Official Statement, rating agency costs, bond counsel fees and expenses, financial advisory fees and expenses, underwriting discount (if any), fiscal or paying agent fees and expenses, if any, credit enhancement costs, if any, the cost of printing the Notes, and any compensation owing to any officers or employees of the City for their services rendered in connection with the issuance of the Notes, shall be payable solely from the proceeds of the Notes. Section 20. Execution of Closing Documents. The Mayor, the City Clerk, the City Manager, the Finance Director, the Treasurer and other officers of the City are authorized and directed to execute such certificates, agreements and other closing documents as are necessary to consummate the transactions contemplated by this Resolution. INTEREST RATE: EXHIBIT A CITY OF ALAMEDA (ALAMEDA COUNTY, CALIFORNIA) 1996 TAX AND REVENUE ANTICIPATION NOTE MATURITY DATE: ISSUE DATE: July _, 1996 REGISTERED OWNER: CEDE & CO. PRINCIPAL SUM: TEN MILLION DOLLARS CUSIP: The CITY OF ALAMEDA, Alameda County, State of California (the "City "), acknowledges itself indebted, and promises to pay, to the Registered Owner stated above, or registered assigns (the "Owner "), on the Maturity Date stated above, the Principal Sum stated above, in lawful money of the United States of America, and to pay interest thereon in like lawful money at the rate per annum stated above, payable on the Maturity Date stated above, calculated on the basis of 360 -day year comprised of twelve 30 -day months. Both the principal of and interest on this Note shall be payable at maturity to the Owner. It is hereby certified, recited and declared that this Note is one of an authorized issue of notes in the aggregate principal amount of Dollars ($ ), all of like tenor, issued pursuant to the provisions of Resolution No. of the City Council of the City duly passed and adopted on May , 1996 (the "Resolution "), and pursuant to Article 7.6 (commencing with Section 53850) of Chapter 4, Part 1, Division 2, Title 5, of the California Government Code, and that all conditions, things and acts required to exist, happen and be performed precedent to and in the issuance of this Note do exist, have happened and have been performed in regular and due time, form and manner as required by law, and that this Note, together with all other indebtedness and obligations of the City, does not exceed any limit prescribed by the Constitution or statutes of the State of California. The principal amount of the Notes, together with the interest thereon, shall be payable from taxes, revenue and other moneys which are received by the City for the General Fund of the City for Fiscal Year 1996 -1997. As security for the payment of the principal of and interest on the Notes the City has pledged, from "unrestricted moneys ", as hereinafter defined (a) to be received in [December], 1996, an amount equal to 25% of the aggregate principal amount of the Notes, (b) to be received in [February], 1997, an amount equal to 25% of the aggregate principal amount of the Notes, (c) to be received in [April], 1997, an amount equal to 50% of the aggregate principal amount of the Notes and (d) to be received in [May], 1997, an amount equal to interest on the Notes at maturity (all such pledged amounts described in clauses (a) through (d) above being hereinafter called the "Pledged Revenues "). The principal of the Notes and the interest thereon shall constitute a first lien and charge thereon and shall be payable from the Pledged Revenues, and to the extent not so paid shall be paid from any other moneys of the City lawfully available therefor. As used herein, the term "unrestricted moneys" means the taxes, income, revenue, cash receipts and other moneys, intended as receipts for the General Fund of the A -1 City for Fiscal Year 1996 -1997 and which are generally available for the payment of current expenses and other obligations of the City. The Notes are issuable as fully registered notes, without coupons, in denominations of $1,000 each or any integral multiple thereof. Subject to the limitations and conditions as provided in the Resolution, Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations and of the same maturity. The Notes are not subject to redemption prior to maturity. This Note is transferable by the Owner hereof, but only under the circumstances, in the manner and subject to the limitations provided in the Resolution. Upon registration of such transfer a new Note or Notes, of authorized denomination or denominations, for the same aggregate principal amount and of the same maturity will be issued to the transferee in exchange for this Note. The City may treat the Owner hereof as the absolute owner hereof for all purposes and the City shall not be affected by any notice to the contrary. IN WITNESS WHEREOF, the City of Alameda has caused this Note to be executed by the Finance Director of the City and countersigned by the City Clerk of the City and its official seal to be affixed hereto all as of this day of July, 1996. [S E A L] Countersigned: CITY OF ALAMEDA By: City Clerk ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM — TEN ENT -- JT TEN -- as tenants in common as tenants by the entireties as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT Custodian Minor Under Uniform Gifts to Minors Act (State) ADDITIONAL ABBREVIATIONS MAY ALSO BE USED THOUGH NOT IN THE LIST ABOVE ASSIGNMENT For value received, the undersigned do(es) hereby sell, assign and transfer unto (Name, Address and Tax Identification or Social Security Number of Assignee) the within Note and do(es) hereby irrevocably constitute and appoint , attorney, to transfer the same on the registration books of the City with full power of substitution in the premises. Dated: Signature Guaranteed: NOTICE: Signature(s) must be guaranteed by an NOTICE: The signature on this Assignment must eligible guarantor correspond with the name(s) as written on the face of the within Note in every particular without alteration or enlargement or any change whatsoever. I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the Council of the City of Alameda in regular meeting assembled on the 7th day of May , 1996, by the following vote to wit: AYES: Councilmembers Arnerich, DeWitt, Lucas, Mannix and President Appezzato - 5. NOES: None. ABSENT: None. ABSENTENTIONS: None. IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this 8th day of May , 1996. 4V'..7,47 Diane Felsch, City Clerk City of Alameda