Resolution 13055CITY OF ALAMEDA RESOLUTION NO. 13 0 5 5
AUTHORIZING ISSUANCE OF
LIMITED OBLIGATION REFUNDING IMPROVEMENT BONDS
Harbor Bay Business Park Assessment District 92 -1
(Reassessment and Refunding of 1998)
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; GENERAL
Section 1.01. DEFINITIONS 2
Section 1.02. UNPAID REASSESSMENTS 8
Section 1.03. EQUAL SECURITY 8
ARTICLE II
THE BONDS
Page
Section 2.01. BONDS AUTHORIZED 9
Section 2.02. TERMS OF BONDS 9
Section 2.03. REDEMPTION 10
Section 2.04. FORM OF BONDS 12
Section 2.05. EXECUTION AND AUTHENTICATION OF BONDS 12
Section 2.06. TRANSFER OR EXCHANGE OF BONDS 12
Section 2.07. BOND REGISTER. 13
Section 2.08. TEMPORARY BONDS 13
Section 2.09. BONDS MUTILATED, LOST, DESTROYED ORSTOLEN 13
ARTICLE III
ISSUANCE OF BONDS
Section 3.01. ISSUANCE AND SALE OF BONDS 14
Section 3.02. VALIDITY OF BONDS 14
Section 3.03. PLEDGE OF REASSESSMENTS AND FUNDS 14
Section 3.04. LIMITED OBLIGATIONS 14
Section 3.05. NO ACCELERATION 14
Section 3.06. REFUNDING OF BONDS 14
Section 3.07. AUTHORITIES. 15
Section 3.08. SALE OF BONDS 15
Section 3.09. BONDS PREPARED AND DELIVERED 15
Section 3.10. ESCROW AGREEMENT 15
Section 3.11. ACTIONS APPROVED 15
ARTICLE IV
FUNDS AND ACCOUNTS
Section 4.01. APPLICATION OF PROCEEDS OF SALE OF BONDS 16
Section 4.02. COSTS OF ISSUANCE FUND 16
Section 4.03. REDEMPTION FUND 16
Section 4.04. ESCROW FUND 17
Section 4.05. IMPROVEMENT FUND 17
ARTICLE V
COVENANTS
Section 5.01. COLLECTION OF REASSESSMENTS 18
Section 5.02. FORECLOSURE 18
Section 5.03. PUNCTUAL PAYMENT; COMPLIANCE WITH DOCUMENTS 19
Section 5.04. NO PRIORITY FOR ADDITIONAL OBLIGATIONS 19
Section 5.05. FURTHER ASSURANCES 19
Section 5.06. PRIVATE ACTIVITY BOND LIMITATION 19
Section 5.07. FEDERAL GUARANTEE PROHIBITION 19
Section 5.08. NO ARBITRAGE 19
Section 5.09. REBATE REQUIREMENT 20
Section 5.10. YIELD OF THE BONDS 20
Section 5.11. AMENDMENT 20
Section 5.12. MAINTENANCE OF TAX - EXEMPTION 20
Section 5.13. CONTINUING DISCLOSURE 20
ARTICLE VI
INVESTMENT OF FUNDS
Section 6.01. DEPOSIT AND INVESTMENT OFMONEYS IN FUNDS 21
Section 6.02. ACQUISITION, DISPOSITION AND VALUATION OF INVESTMENTS 21
Section 6.03. LIABILITY OF CITY 22
Section 6.04. EMPLOYMENT OF AGENTS BY CITY 22
ARTICLE VII
MODIFICATION OR AMENDMENT
Section 7.01. AMENDMENTS PERMITTED 24
Section 7.02. OWNERS' MEETINGS 24
Section 7.03. PROCEDURE FOR AMENDMENT WITH WRITTEN CONSENT OF OWNERS24
Section 7.04. DISQUALIFIED BONDS 25
Section 7.05. EFFECT OF SUPPLEMENTAL RESOLUTION . 25
Section 7.06. ENDORSEMENT OR REPLACEMENT OF BONDS ISSUED AFTER
AMENDMENT. 25
Section 7.07. AMENDATORY ENDORSEMENT OF BONDS 26
ARTICLE VIII
MISCELLANEOUS
Section 8.01. BENEFITS OF AGREEMENT LIMITED TO PARITIES 27
Section 8.02. SUCCESSOR AND PREDECESSOR 27
Section 8.03. DISCHARGE OF RESOLUTION 27
Section 8.04. EXECUTION OF DOCUMENTS AND PROOF OF OWNERSHIP 28
Section 8.05. WAIVER OF PERSONAL LIABILITY. 28
Section 8.06. NOTICES AND DEMANDS 28
Section 8.07. PARTIAL INVALIDITY. 28
Section 8.08. UNCLAIMED MONEYS. 28
Section 8.09. APPLICABLE LAW 29
Section 8.10. CONFLICT WITH ORDINANCE 29
Section 8.11. CONCLUSIVE EVIDENCE OF REGULARITY; VALIDITY 29
Section 8.12. PAYMENT ON BUSINESS DAY 29
Section 8.13. REPEAL OF INCONSISTENT RESOLUTIONS 29
Section 8.14. AUTHORITY OF FINANCE DIRECTOR 29
Section 8.15. CERTIFIED COPIES 29
Section 8.16. EFFECTIVE DATE OF THE RESOLUTION 29
EXHIBIT A - Terms and Conditions
EXHIBIT B - Form of Bond
ii
A RESOLUTION AUTHORIZING ISSUANCE OF
LIMITED OBLIGATION REFUNDING IMPROVEMENT BONDS
RESOLVED by the City Council (the "Council ") of the City of Alameda (the "City"),
County of Alameda, State of California, that:
WHEREAS, the City has heretofore conducted special assessment and improvement
bond proceedings in and for the City's Harbor Bay Business Park Assessment District 92 -1 (the
"Assessment District ") and, through the adoption of its Resolution No. 12235 (the "Prior
Resolution "), has provided for the issuance of- Limited Obligation Improvement Bonds in the
aggregate principal amount of $29,288,000, dated April 30, 1992 (the "Prior Bonds ") in and for
the Assessment District;
WHEREAS, on October 20, 1998, the Council adopted its Resolution of Intention to
Levy Reassessments and to Issue Refunding Bonds (the "Resolution of Intention ") relating to the
levy of reassessments and issuance of refunding bonds pursuant to the City of Alameda
Refunding Improvement Assessment Law, enacted by City of Alameda Ordinance No. 2774
(the "Ordinance ") in and for the Assessment District and by the Resolution of Intention, the
City Council of the City provided that refunding improvement bonds as more particularly
described herein (the "Bonds") would be issued thereunder and reference to the Resolution of
Intention is hereby expressly made for further particulars;
WHEREAS, this Council has completed its proceedings under the Resolution of Intention
for the levy of reassessments, has provided for all recordings and filings to be completed in
accordance with the requirements in and for the Assessment District and by the adoption of
this Resolution provides for the issuance of the Bonds;
WHEREAS, as provided in the proceedings under the Resolution of Intention, the
proceeds of the Bonds shall be used to retire, in advance of their scheduled maturities the
outstanding principal amount of the Prior Bonds and to pay the costs of issuance of the Bonds;
and
WHEREAS, this Council now intends to provide for the issuance of the Bonds upon the
security of a the unpaid reassessments, all as hereinafter provided.
ARTICLE I
DEFINITIONS; GENERAL
Section 1.01. DEFINITIONS. Unless the context otherwise requires, the terms defined in
this Section shall, for all purposes of this Resolution and of any Supplemental Resolution and of
the Bonds and of any certificate, opinion, request or other document herein mentioned, have the
meanings herein specified. All references in this Resolution to "Articles," "Sections," and other
subdivisions are to the corresponding Articles, Sections or subdivisions of this Resolution; and
the words "herein," hereof,' "hereunder" and other words of similar import refer to this
Resolution as a whole and not to any particular Article, Section or subdivision hereof. Words of
the masculine gender shall be deemed and construed to include correlative words of the
feminine and neuter genders. Unless the context shall otherwise indicate, words importing the
singular number shall include the plural number and vice versa, and words importing persons
shall include corporations and associations, including public bodies, as well as natural persons.
"Agent" means the Finance Director appointed under Section 2.01 hereof to perform the
duties of authentication, registration, transfer and payment of the Bonds and the Agent's
assigns or any corporation or association which may at any time be substituted in the Agent's
place.
"Assessment District" means the City of Alameda Harbor Bay Business Park Assessment
District 92 -1 (Reassessment and Refunding of 1998) in which the Reassessments were levied by
the Council under the Ordinance.
"Assessment Law" means the Municipal Improvement Act of 1913, Division 2 of the
California Streets and Highways Code.
"Auditor" means the auditor /controller or tax collector of the County, or such other
official of the County who is responsible for preparing real property tax bills.
"Authorized Officer" means the Mayor, Vice - Mayor, City Manager, Assistant City
Manager, Finance Director, Director of Public Works, City Engineer, City Clerk, City Attorney
or any other officer or employee authorized by the Council or by an Authorized Officer to
undertake the action referenced in this Resolution as required to be undertaken by an
Authorized Officer.
"Available Surplus Funds" means any surplus moneys held by the City at the end of each
Fiscal Year in excess of the amounts required to pay lawful municipal obligations incurred in
that Fiscal Year.
"Bond" or "Bonds " means "Limited Obligation Refunding Improvement Bonds, City of
Alameda, Harbor Bay Business Park Assessment District 92 -1 (Reassessment and Refunding of
1998), Series 1998" issued under this Resolution and the Ordinance, and at any time
Outstanding.
"Bond Date" means the dated date of the Bonds specified in Exhibit A attached hereto
and made a part hereof.
"Bond Denomination" means the amount of $5,000 or any integral multiple thereof,
which is the minimum amount in which the Bonds may be issued, except that one Bond may
contain any odd amount.
"Bond Law" means the Improvement Bond Acts of 1915, Division 10 of the California
Streets and Highways Code.
"Bond Register' means the books maintained by the Agent pursuant to Section 2.07 for
the registration and transfer of ownership of the Bonds.
"Bond Year' means the twelve -month period beginning on September 2 in each year and
ending on the day prior to September 2 in the following year except that (i) the first Bond Year
shall begin on the Closing Date and end on the next September 1, and (ii) the last Bond Year
may end on a prior redemption date.
"Business Day" means any day other than (i) a Saturday or a Sunday or (ii) a day on
which banking institutions in the state in which the Agent has its Principal Office are authorized
or obligated by law or executive order to be closed.
"City" means the City of Alameda a municipal corporation and chartered city of the
State of California duly organized and validly existing under and by virtue of the Constitution
and the laws of the State of California.
"City Attorney" means the duly appointed or retained attorney or firm of attorneys to
the City for purposes of rendering advice in the conduct of its general municipal affairs.
"City Manager' means the City Manager or the Assistant City Manager of the City.
"Clerk" means the City Clerk of the City or Deputy City Clerk or designee thereof.
"Closing Date" means the date upon which there is an exchange of any of the Bonds for
the proceeds representing the purchase price of such Bonds by the Original Purchaser thereof.
"Continuing Disclosure Certificate" shall mean any continuing disclosure certificate
provided with the issuance and delivery of the Revenue Bonds, as originally executed by the
City for the Revenue Bonds and as it may be amended from time to time in accordance with the
terms thereof.
"Costs of Issuance" means all expenses incurred in connection with the authorization,
issuance, sale and delivery of the Bonds, including but not limited to compensation, fees and
expenses of the City and the Agent and their respective counsel, compensation to any
underwriters (other than those taken as discount on the Closing Date), legal fees and expenses,
filing and recording costs, costs of preparation and reproduction of documents, costs of
compliance with the Tax Code relating to rebate to the United States and continuing disclosures
and the costs of printing, mailing and publication of notices with respect to the City.
"Costs of Issuance Fund" means any fund established under the Revenue Bond Documents
to pay the Costs of Issuance of the Bonds.
"Council" means the City Council as the legislative body of the City.
"County" means the County of Alameda, State of California.
"Debt Service" means, for each Bond Year, the sum of (i) the interest due on the
Outstanding Bonds in such Bond Year, assuming that the Outstanding Bonds are retired as
scheduled, and (ii) the principal amount of the Outstanding Bonds due in such Bond Year..
"Depository or Securities Depositories" means The Depository Trust Company, 711
Stewart Avenue, Garden City, New York 11530, Fax - (516) 227 -4171 or 4190; Philadelphia
Depository Trust Company, Reorganization Division, 1900 Market Street, Philadelphia,
Pennsylvania 19103, Attention: Bond Department, Fax - (215) 496 -5058; and, in accordance
with then current guidelines of the Securities and Exchange Commission, such other addresses
and /or such other securities depositories as the City may designate in an Officer's Certificate
delivered to the Agent.
"Escrow Agreement" means the Escrow Agreement dated as of the Closing Date by and
between the City and the Escrow Holder by which the Escrow Fund is established and
administered.
"Escrow Fund" means the special fund established by the Escrow Holder and known as
the "City of Alameda, Limited Obligation Refunding Improvement Bonds, Harbor Bay Business
Park Assessment District 92 -1 (Reassessment and Refunding of 1998), Series 1998, Escrow
Fund" (the "Escrow Fund ") under Section 4.05.
"Escrow Holder" means U.S. Bank Trust National Association, acting as Escrow Holder
under the Escrow Agreement.
"Fair Market Value" means the price at which a willing buyer would purchase the
investment from a willing seller in a bona fide, arm's length transaction (determined as of the
date the contract to purchase or sell the investment becomes binding) if the investment is traded
on an established securities market (within the meaning of section 1273 of the Tax Code) and,
otherwise, the term "Fair Market Value" means the acquisition price in a bona fide arm's length
transaction (as referenced above) if (i) the investment is a certificate of deposit that is acquired
in accordance with applicable regulations under the Tax Code, (ii) the investment is an
agreement with specifically negotiated withdrawal or reinvestment provisions and a specifically
negotiated interest rate (for example, a guaranteed investment contract, a forward supply
contract or other investment agreement) that is acquired in accordance with applicable
regulations under the Tax Code, (iii) the investment is a . United States Treasury Security —State
and Local Government Series that is acquired in accordance with applicable regulations of the
United States Bureau of Public Debt, or (iv) any commingled investment fund in which the City
and related parties do not own more than a ten percent (10 %) beneficial interest if the return
paid by such fund is without regard to the source of the investment.
"Federal Securities" means any of the following which at the time of investment are legal
investments under the laws of the State for the moneys proposed to be invested therein:
(a) direct general obligations of the United States of America (induding
obligations issued or held in book entry form on the books of the Department of the
Treasury of the United States of America); and
(b) obligations of any department, agency or instrumentality of the United
States of America the timely payment of principal of and interest on which are
unconditionally and fully guaranteed by the United States of America.
"Finance Director' means the chief financial officer of the City or designee thereof,
including any deputy thereof or assistant thereto.
"Fiscal Yeas" means the period commencing on July 1 of each year and ending on the next
succeeding June 30.
"Improvement Fund" means the fund designated "City of Alameda, Harbor Bay
Business Park Assessment District 92 -1 (Reassessment and Refunding) Improvement Fund"
established under Section 4.05.
"Information Services" means Financial Information, Inc.'s "Daily Called Bond Service,"
30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302, Attention: Editor; Kenny
Information Services' Called Bond Service, 55 Broad Street, 28th Floor, New York, New York
10004; Moody's Investors Service Municipal and Government," 99 Church Street, New York,
New York 10007, Attention: Municipal News Reports; Standard & Poor's Corporation "Called
Bond Record," 25 Broadway, 3rd Floor, New York, New York 10004; and, in accordance with
then current guidelines of the Securities and-- Exchange Commission, such other addresses
and /or such services providing information with respect to called bonds as the City may
designate in an Officer's Certificate delivered to the Agent.
"Interest Payment Date" means each date upon which interest on the Bonds is payable
semiannually on each March 2 and September 2 until maturity and beginning on the date
specified in Exhibit A.
"Officer's Certificate" means a written certificate or similar document executed by an
Authorized Officer on behalf of the City.
"Ordinance" means the Ordinance No. 2774 enacted by the Council on October 6, 1998,
enacting the City of Alameda Refunding Improvement Assessment Law pursuant to the
municipal affairs powers of the City as a charter city of the State of California.
"Original Purchaser' means the City, acting under the Revenue Bond Documents, as the
first purchaser of the Bonds.
"Outstanding," when used as of any particular time with reference to Bonds, means all
Bonds theretofore executed, issued and delivered by the City and authenticated by the Agent
under this Resolution except:
(a) Bonds theretofore canceled by the Agent or surrendered to the Agent for
cancellation;
(b) Bonds paid or deemed to have been paid within the meaning of Section
2.03; and
(c) Bonds in lieu of or in substitution for which other Bonds shall have been
executed, issued and delivered by the City pursuant to this Resolution or any
Supplemental Resolution.
"Owner" or "Registered Owner," when used with respect to any Outstanding Bond,
means the person in whose name the ownership of such Bond shall be registered on the Bond
Register.
"Participating Underwriter" means any underwriter or purchaser of the Bonds under the
Continuing Disclosure Certificate.
"Permitted Investments" means the following, but only to the extent that the same are
acquired at Fair Market Value:
(a) Federal Securities;
(b) securities (other than those identified in paragraphs (a) and (d) of Section
53601 of the Government Code of the State) in which the City may legally invest funds
subject to its control, pursuant to Article 1, commencing with Section 53600, of Chapter
4 of Part 1 of Division 2 of Title 5 of the Government Code of the State, as now or
hereafter amended;
(c) shares in a California common law trust established pursuant to Title 1,
Division 7, Chapter 5 of the California Government Code which invests exclusively in
investments permitted by Section 53635 of Title 5, Division 2, Chapter 4 of the
California Government Code, as it may be amended, including but not limited to the
California Asset Management Program-(CAMP);
(d) the Local Agency Investment Fund of the State of California, created
pursuant to Section 16429.1 of the California Government Code, to the extent the
Finance Director is authorized to register such investment in the City's name;
(e) investment agreements or guaranteed investment contracts, with or
guaranteed by a financial entity whose long -term unsecured obligations are rated "AA"
or better by Moody's Investor's Service ( "Moody's) and Standard and Poor's Ratings
Group ( "S &P "), and whose short term debt is rated no lower than the corresponding
level of rating category for such debt and such agreement or contract shall provide that
the financial entity shall deposit collateral with a third party in accordance with criteria
established by Moody's and S &P in the event that the rating of short or long -term debt
of the entity is downgraded below then - current requirements of Moody's and S &P for
such agreements or contracts;
(f) money market funds which are rated Am or better by S &P;
(g) any of the following direct or indirect obligations of the following agencies
of the United States of America: (i) direct obligations of the Export - Import Bank; (ii)
certificates of beneficial ownership issued by the Farmers Home Administration; (iii)
participation certificates issued by the General Services Administration; (iv) mortgage -
backed bonds or pass - through obligations issued and guaranteed by the Government
National Mortgage Association, the Federal National Mortgage Association, the Federal
Home Loan Mortgage Corporation or the Federal Housing Administration; (v) project
notes issued by the United States Department of Housing and Urban Development; and
(vi) public housing notes and bonds guaranteed by the United States of America;
(h) interest- bearing demand or time deposits (including certificates of
deposit) in federal or state chartered savings and loan associations or in federal or State
of California banks (including the Trustee), provided that (i) the unsecured short-term
obligations of such commercial bank or savings and loan association shall be rated Al or
better by S &P, or (ii) such demand or time deposits shall be fully insured by the Federal
Deposit Insurance Corporation;
(i) commercial paper rated in the highest short-term rating category by S &P,
issued by corporations which are organized and operating within the United States of
America, and which matures not more than 180 days following the date of investment
therein;
(j) bankers acceptances, consisting of bills of exchange or time drafts drawn
on and accepted by a commercial bank whose short -term obligations are rated in the
highest short -term rating category by S &P, which mature not more than 270 days
following the date of investment therein;
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(k) obligations the interest on which is excludable from gross income
pursuant to Section 103 of the Tax Code and which are rated A or better by S &P;
(1) investments approved by the California Pooled Investment Authority and
made pursuant to that certain Joint Exercise of Powers Agreement dated as of January
31, 1997 to which the City is a party.
"Prepayment Account" means the account of that name within the Redemption Fund.
"Principal Office" means the office of the Agent in Alameda, California, or such other
office as shall be designated by the Agent in writing to the City, or such other office of the Agent
designated for payment, transfer or exchange of the Bonds.
"Prior Bonds" means, the bonds of the City designated "Limited Obligation
Improvement Bonds, City of Alameda, Harbor Bay Business Park Assessment District 92 -1,
Series 1992" originally issued in the aggregate principal amount of $29,288,000 and dated April
30, 1992.
"Prior Bonds Resolution" means the Resolution No. 12235 adopted by the Council on
April 21,1992, by which the Prior Bonds were authorized and issued.
"Projects" means, collectively, the acquisitions and improvements financed with all or a
portion of the proceeds of the Prior Bonds refunded with the proceeds of the Bonds.
"Reassessment or Reassessments" means the unpaid amounts of the special reassessments
levied against all taxable real property within the boundaries of the Reassessment District
pursuant to the Ordinance and the proceedings of the Council under the Resolution of Intention,
for the purpose of paying Debt Service on the Bonds under the Assessment Law.
"Record Date" means, with respect to the Bonds, the fifteenth (15th) day of the calendar
month immediately preceding an Interest Payment Date, whether or not a Business Day.
"Redemption Fund" means the fund designated "City of Alameda, Limited Obligation
Refunding Improvement Bonds, Harbor Bay Business Park Assessment District 92 -1
(Reassessment and Refunding of 1998), Series 1998 Redemption Fund" established under
Section 4.03.
"Redemption Premium" means the percentage of the principal amount of the Bonds
payable upon redemption of the Bonds, except for any Term Bonds, as set forth in Exhibit A
hereto.
"Resolution" or "Resolution of Issuance" means this Resolution, as originally adopted or as
it may from time to time be supplemented, modified or amended by any Supplemental
Resolution pursuant to the provisions hereof.
"Resolution of Intention" means the resolution entitled "Resolution of Intention to Levy
Reassessments and to Issue Refunding Bonds," adopted by the Council on October 20, 1998.
"Revenue Bonds" means, the bonds of the City designated "City of Alameda, 1998
Revenue Bonds (Harbor Bay Business Park Assessment District 92 -1 Bond Refinancing),"
issued by the City concurrently with the issuance of the Bonds.
"Revenue Bonds Documents" means, collectively, all resolutions, orders, indentures and
undertakings of the City providing for the authorization, issuance, sale and delivery of the
Revenue Bonds.
"Sinking Fund Payments" means the amounts paid by the City for any Term Bonds
under Section 2.03.
"State" means the State of California.
"Supplemental Resolution" means any resolution, agreement, resolution or other
instrument hereafter duly adopted or executed -by the City in accordance with the provisions of
this Resolution.
"Tax Code" means the Internal Revenue Code of 1986 as in effect on the date of issuance
of the Bonds or (except as otherwise referenced herein) as it may be amended to apply to
obligations issued on the date of issuance of the Bonds, together with applicable proposed,
temporary and final regulations promulgated, and applicable official public guidance published,
under the Tax Code.
"Term Bonds" means any of the Bonds that are subject to mandatory redemption from
Sinking Fund Payments under Section 2.03.
"Treasure" means the official who is the elected City treasurer, or the deputy or designee
thereof, which official may be the Finance Director.
Section 1.02. UNPAID REASSESSMENTS. The Reassessments are as shown on the list
of unpaid reassessments on file with the Finance Director which list is hereby approved and
which is incorporated herein by this reference and made a part hereof. For .a particular
description of the lots or parcels of land bearing the respective assessment numbers set forth in
the list, reference is hereby made to the reassessment and to the diagram, and any amendments
thereto, recorded in the office of the Officer of the City who is the Superintendent of Streets of
the City after confirmation thereof by the Council.
Section 1.03. EQUAL SECURITY. In consideration of the acceptance of the Bonds by
the Owners thereof, this Resolution shall be deemed to be and shall constitute a contract
between the City and the Owners from time to time of the Bonds; and the covenants and
agreements herein set forth to be performed on behalf of the City shall be for the equal and
proportionate benefit, security and protection of all Owners of the Bonds without preference,
priority or distinction as to security or otherwise of any of the Bonds over any of the others by
reason of the number or date thereof or the time of sale, execution or delivery thereof, or
otherwise for any cause whatsoever, except as expressly provided therein or herein.
ARTICLE II
THE BONDS
Section 2.01. BONDS AUTHORIZED. All acts, conditions and things required by law to
exist, happen and be performed precedent to and in the issuance of the Bonds have existed,
happened and been performed in due time, form and manner as required by law, and the
Council is now authorized pursuant to each and every requirement of law to issue the Bonds in
the manner and form as provided in this Resolution. The Bonds are hereby authorized and will
be issued as set forth in Exhibit A attached hereto and hereby made a part hereof. The Finance
Director, at the Principal Office, is hereby dedgnated as the Agent to perform the actions and
duties required under this Resolution for the authentication, transfer, registration, and payment
of the Bonds.
Section 2.02. TERMS OF BONDS.
(A) Denominations. The Bonds shall be issued as fully registered Bonds without
coupons in the denomination of $5,000 or any integral multiple thereof, except that the first
maturity may contain any odd amount. Bonds shall be lettered and numbered in a customary
manner as determined by the Agent.
(B) Date of Bonds. The Bonds shall be dated the Bond Date.
(C) CUSIP. " CUSIP" identification numbers shall be imprinted on the Bonds, but such
numbers shall not constitute a part of the contract evidenced by the Bonds and any error or
omission with respect thereto shall not constitute cause for refusal of any purchaser to accept
delivery of and pay for the Bonds. Failure of the City or the Agent to use such CUSIP numbers
in any notice to Owners shall not constitute an event of default or any violation of the City's
contract with such Owners and shall not impair the effectiveness of any such notice. No CUSIP
numbers shall be used on Bonds purchased by the City under the Revenue Bond Documents.
(D) Series and Maturities. The Bonds shall consist of the series and mature and become
payable on September 2 of each year and shall bear interest at the rates per annum all as set
forth in Exhibit A.
(E) Interest. The Bonds shall bear interest at the rates set forth above payable on the
Interest Payment Dates in each year. Interest shall be calculated on the basis of a 360 -day year
composed of twelve 30-day months. Each Bond shall bear interest from the Interest Payment
Date next preceding the date of authentication and registration thereof unless it is authenticated
and registered (i) prior to an Interest Payment Date and after the close of business of the Record
Date, in which event it shall bear interest from such Interest Payment Date, or (ii) prior to the
close of business on the Record Date preceding the first Interest Payment Date, in which event it
shall bear interest from the Bond Date.
(F) Method of Payment. Both the principal of and interest and premium (if any) on the
Bonds shall be payable in lawful money of the United States of America. Interest on the Bonds
(induding the final interest payment upon maturity or earlier redemption) is payable by check
of the Agent mailed by first class mail to the registered Owner thereof at such registered
Owner's address as it appears on the registration books maintained by the Agent at the close of
business on the Record Date preceding the Interest Payment Date, or by wire transfer made on
such Interest Payment Date upon written instructions of any Owner of $1,000,000 or more in
aggregate principal amount of Bonds delivered to the Agent prior to the applicable Record
Date. The principal of the Bonds and any premium on the Bonds are payable in lawful money
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of the United States of America upon surrender of the Bonds at the Principal Office of the
Agent. So long as the Authority or any trustee thereof is the Owner of the Bonds, all payments,
including principal and premium shall be made by wire transfer without presentment required.
All Bonds paid by the Agent pursuant this Section shall be canceled by the Agent. The Agent
shall destroy the canceled Bonds and, upon request of the City, issue a certificate of destruction
of such Bonds to the City.
Notwithstanding the foregoing, so long as the Owner of the Bonds is the City or a trustee
for the Revenue Bonds, payment of principal, interest and any premium on the Bonds shall be
made to Owner in immediately available funds on each applicable payment date, in an amount
equal to the principal, interest and any premium due on the Bonds on the applicable Interest
Payment Date.
Section 2.03. REDEMPTION.
(A) General. Whenever, as of an Interest Payment Date, there are sufficient funds in the
Prepayment Account of the Redemption Fund from the proceeds of prepayments of
Reassessments or from the application of any surplus funds by the Council, Bonds shall be
called for redemption. Each Bond, or any portion of the principal thereof in the principal
amount of $5,000 or any integral multiple thereof, may be redeemed and paid in advance of
maturity on any Interest Payment Date in any year by giving notice as hereafter provided and
by paying the principal amount thereof, plus interest to the date of redemption, unless sooner
surrendered, in which event said interest will be paid to the date of payment, together with the
applicable Redemption Premium. The provisions of Part 11.1 of the Assessment Law are
applicable to the advance payment of Reassessments and to the calling of the Bonds. The Agent
shall select Bonds for redemption in such a way that the ratio of Outstanding Bonds to issued
Bonds shall be approximately the same in each annual series insofar as possible (i.e. on a pro -
rata basis among maturities of the Bonds). Within each annual maturity, the Agent shall select
Bonds for retirement by lot.
(i) Mandatory Prepayment Redemption. All of the Bonds are subject to
redemption prior to their stated maturities, on any Interest Payment Date, from the
proceeds of the prepayment of Reassessments, in whole or in part, at a redemption price
(expressed as a percentage of the principal amount of the Bonds to be redeemed) as set
forth in Exhibit A, together with accrued interest thereon to the date fixed for
redemption.
(ii) Redemption from any Source other than Prepayments. The Bonds are subject
to redemption, from sources of funds other than prepayments of Reassessments, prior to
their stated maturity on any Interest Payment Date on or after the date specified in
Exhibit A as a whole or in part, at a redemption price (expressed as a percentage of the
principal amount of the Bonds to be redeemed), as set forth in Exhibit A, together with
accrued interest thereon to the date fixed for redemption.
(iii) Mandatory Sinking Fund Redemption. As may be provided in Exhibit A
hereto, the Term Bonds maturing in the years specified in Exhibit A shall also be subject
to mandatory redemption in part by lot, on September 2 in each year commencing as
specified in Exhibit A, from Sinking Fund Payments made by the City from the
Redemption Fund pursuant to Section 4.04, at a redemption price equal to the principal
amount thereof to be redeemed, without premium, in the aggregate respective principal
amounts and on September 2 in the respective years, all as set forth in Exhibit A (the
"Term Bonds "); provided, however, if some but not all of the Term Bonds of a given
maturity have been redeemed pursuant to subsection (i) above the total amount of all
future Sinking Fund Payments relating to such maturity shall be reduced by the aggregate
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principal amount of Term Bonds of such maturity so redeemed, to be allocated among
such Sinking Fund Payments on a pro rata basis in integral multiples of $5,000 as
determined by the Agent, notice of which determination shall be given by the Agent to
the City.
(B) Redemption Procedure by Agent.
(i) Selection of Bonds. The Agent shall select Bonds for retirement in such a
way that the ratio of Outstanding Bonds to issued Bonds shall be approximately the
same in each annual series insofar as possible. Within each annual series the Agent shall
select Bonds for retirement by lot.
(ii) Time of Notice. The Agent shall cause written notice of any redemption to be
given by registered or certified mail or by personal service to the respective registered
Owners of any Bonds designated for redemption, at their addresses appearing on the
Bond Register in the Principal Office of the Agent at least 30 days before the applicable
Interest Payment Date. The Agent shall also cause notice of redemption to be sent to the
Securities Depositories and to one or more of the Information Services at least one day
earlier than the giving of notice to the Owners as aforesaid; provided, however, such
mailing to the Securities Depositories and Information Services shall not be a condition
precedent to such redemption. Failure to so mail any notice of redemption, or of any
person or entity to receive any such notice, or any defect in any notice of redemption,
shall not affect the validity of the proceeding for the redemption of such Bonds.
(iii) Contents of Notice. Such notice shall state the redemption date and the
redemption price and, if less than all of the then Outstanding Bonds are to be called for
redemption, shall designate the CUSIP numbers and Bond numbers of the Bonds to be
redeemed by giving the individual CUSIP number and Bond number of each Bond to be
redeemed or shall state that all Bonds between two stated Bond numbers, both
inclusive, are to be redeemed or that all of the Bonds of one or more maturities have been
called for redemption, shall state as to any Bond called in part the principal amount
thereof to be redeemed, and shall require that such Bonds be then surrendered at the
Principal Office of the Agent for redemption at the redemption price, and shall state
that further interest on such Bonds, or the portion thereof to be redeemed, will not
accrue from and after the redemption date.
(iv) Payment. Upon the payment of the redemption price of Bonds being
redeemed, each check or other transfer of funds issued for such purpose shall, to the
extent practicable, bear the CUSIP number identifying, by issue and maturity, the Bonds
being redeemed with the proceeds of such check or other transfer.
(v) Partial Redemption. Upon surrender of Bonds redeemed in part only, the
City shall execute and the Agent shall authenticate and deliver to the registered Owner,
at the expense of the City, a new Bond or Bonds, of the same series and maturity, of
authorized denominations in aggregate principal amount equal to the unredeemed
portion of the Bond or Bonds.
(vi) Exception. So long as the City, or any trustee acting for the City under the
Revenue Bonds Documents, is the Owner of the Bonds, the City may waive any or all of
the foregoing requirements.
(C) Effect of Redemption. From and after the date fixed for redemption, if funds
available for the payment of the principal of, and interest and any premium on, the Bonds so
called for redemption shall have been deposited in the Redemption Fund on the date fixed for
redemption, such Bonds so called shall cease to be entitled to any benefit under this Resolution
other than the right to receive payment of the redemption price, and no interest shall accrue
thereon on or after the redemption date specified in such notice. All Bonds redeemed by the
Agent pursuant to this Section 2.03 shall be canceled by the Agent. The Agent shall destroy the
canceled Bonds and, upon request of the City, issue a certificate of destruction of such Bonds to
the City.
Section 2.04. FORM OF BONDS. The Bonds, the form of Agent's certificate of
authentication, and the form of assignment to appear thereon, shall be substantially in the
respective form set forth in Exhibit B attached hereto and hereby made a part hereof, with
necessary or appropriate variations, as permitted or required. A single, fully registered Bond or
one, fully registered Bond per maturity, are specifically authorized, and either form may be used
if specified by the City as the Original Purchaser under the Revenue Bond Documents.
Section 2.05. EXECUTION AND AUTHENTICATION OF BONDS.
(A) Execution. The Bonds shall be executed in the name and on behalf of the City with
the manual or facsimile signatures of the Treasurer and attested by the manual or facsimile
signature of the Clerk. The Bonds shall then be delivered to the Agent for authentication. In case
any officer who shall have signed any of the Bonds shall cease to be such officer before the
Bonds so signed shall have been authenticated or delivered by the Agent or issued by the City,
such Bonds may nevertheless be authenticated, delivered and issued and, upon such
authentication, delivery and issue, shall be as binding upon the City as though the individual
who signed the same had continued to be such officer of the City. Also, any Bond may be
signed on behalf of the City by any individual who on the actual date of the execution of such
Bond shall be the proper officer although on the nominal date of such Bond such individual
shall not have been such officer.
(B) Authentication. Only such of the Bonds as shall bear thereon a certificate of
authentication in substantially the form set forth in Exhibit B, manually executed by the Agent,
shall be valid or obligatory for any purpose or entitled to the benefits of this Resolution, and
such certificate of the Agent shall be conclusive evidence that the Bonds so authenticated have
been duly authenticated and delivered hereunder and are entitled to the benefits of this
Resolution. The Agent's certificate of authentication on any Bonds shall be deemed to be
executed by it if signed by the Agent or by an authorized officer or signatory of the Agent, but it
shall not be necessary that the same officer or signatory sign the certificate of authentication on
all of the Bonds issued hereunder.
Section 2.06. TRANSFER OR EXCHANGE OF BONDS. Any Bond may, in accordance
with its terms, be transferred upon the Bond Register by the registered Owner, in person or by
such Owner's duly authorized attorney, upon surrender of such Bond for cancellation,
accompanied by delivery of a written instrument of transfer in a form approved by the Agent,
duly executed. Whenever any Bond shall be surrendered for transfer, the Agent shall thereupon
authenticate and deliver to the transferee a new Bond or Bonds of like tenor, maturity and
aggregate principal amount. Bonds may be exchanged at the Principal Office of the Agent, for
Bonds of the same tenor and maturity and of other authorized denominations. No Bonds the
notice of redemption of which has been given pursuant to Section 2.03 shall be subject to
transfer or exchange pursuant to this Section. Neither the City nor the Agent shall be required to
make such exchange or registration or transfer of Bonds on or after the Record Date or after a
Bond has been selected for redemption. For any transfer or exchange under this Section, the City
and the Agent may require the payment of a reasonable fee to cover the costs and expenses of
the City and the Agent.
Section 2.07. BOND REGISTER. The Agent will keep or cause to be kept at its Principal
Office a sufficient Bond Register for the registration and transfer of the Bonds, which shall at all
times during regular business hours be open to inspection by the City; and, upon presentation
for such purpose, the Agent shall, under such reasonable regulations as it may prescribe, register
or transfer or cause to be registered or transferred, on the Bond Register, Bonds as hereinbefore
provided.
Section 2.08. TEMPORARY BONDS. The Bonds may be issued initially in temporary
form exchangeable for definitive Bonds when ready for delivery. The temporary Bonds may be
printed, lithographed or typewritten, shall be of such denominations as may be determined by
the Council and may contain such reference to -any of the provisions of this Resolution as may
be appropriate. Every temporary Bond shall be executed by the officers designated and in the
manner provided in Section 2.05 hereof and be registered and authenticated by the Agent upon
the same conditions and in substantially the same manner as the definitive Bonds. If the City
issues temporary Bonds, it will execute and furnish definitive Bonds without delay, and
thereupon the temporary Bonds may be surrendered, for cancellation, in exchange therefor at
the Principal Office of the Agent, and the Agent shall authenticate and deliver in exchange for
such temporary Bonds an equal aggregate principal amount of definitive Bonds of authorized
denominations: Until so exchanged, the temporary Bonds shall be entitled to the same benefits
under this Resolution as definitive Bonds authenticated and delivered hereunder
Section 2.09. BONDS MUTILATED, LOST, DESTROYED OR STOLEN. If any Bond
shall become mutilated, the Agent shall thereupon authenticate and deliver, a new (Bond of like
maturity and principal amount in exchange and substitution for the Bond so mutilated, but only
upon surrender to the Agent of the Bond so mutilated. Every mutilated Bond so surrendered to
the Agent shall be canceled by it and delivered to, or upon the order of, the City. If any Bond
issued hereunder shall be lost, destroyed or stolen, evidence of such loss, destruction or theft
may be submitted to the City and the Agent and, if such evidence be satisfactory to them and
indemnity satisfactory to them shall be given, the Agent shall thereupon authenticate and
deliver, a new Bond of like maturity and principal amount in lieu of and in substitution for the
Bond so lost, destroyed or stolen (or if any such Bond shall have matured or shall have been
called for redemption, instead of issuing a substitute Bond the Agent may pay the same without
surrender thereof upon receipt of indemnity satisfactory to the Agent). The City and the Agent
may require payment of a reasonable fee for each new Bond issued under this Section and of the
expenses which may be incurred by the City and the Agent. Any Bond issued under the
provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall
constitute an original contractual obligation on the part of the City whether or not the Bond
alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be equally
and proportionately entitled to the benefits of this Resolution with all other Bonds secured by
this Resolution and any Supplemental Resolution.
ARTICLE III
ISSUANCE OF BONDS
Section 3.01. ISSUANCE AND SALE OF BONDS. At any time after the adoption of
this Resolution, the City may issue the Bonds and sell and deliver them to the trustee for the
Revenue Bonds, at the direction of the City as the Original Purchaser of the Bonds. The
Authorized Officers, and each of them, are hereby authorized to negotiate the sale of the Bonds
in accordance with the Revenue Bond Documents, subject to such conditions as shall be as
hereafter provided.
Section 3.02. VALIDITY OF BONDS. The validity of the authorization and issuance of
the Bonds shall not be dependent upon the completion of the Project or upon the performance
by any person or such person's obligation with respect to the Project.
Section 3.03. PLEDGE OF REASSESSMENTS AND FUNDS. The Bonds shall be
secured by a first pledge (which pledge shall be effected in the manner and to the extent herein
provided) of all of the Reassessments and all moneys deposited in the Redemption Fund
(including Prepayment Accounts therein). The Reassessments and all moneys deposited into
said funds (except as otherwise provided herein) are hereby dedicated to the payment of the
principal of (including any Sinking Fund Payments), and interest and any premium on, the
Bonds as provided herein and in the Ordinance and the Bond Law, until all of the Bonds have
been paid and retired or until moneys or Federal Securities have been set aside irrevocably for
that purpose in under Section 8.03 hereof.
Section 3.04. LIMITED OBLIGATIONS. All obligations of the City under this Resolution
and the Bonds shall not be general obligations of the City, but shall be limited obligations,
payable solely from the Reassessments and the funds pledged therefore hereunder. Neither the
faith and credit of the City nor of the State of California or any political subdivision thereof is
pledged to the payment of the Bonds. The Bonds are "Limited Obligation Refunding
Improvement Bonds" under the Ordinance and are payable solely from and secured solely by
the Reassessments and the amounts in the Redemption Fund and the Reserve Fund created
hereunder. Notwithstanding any other provision of this Resolution, the City is not obligated to
advance available surplus funds from the City treasury to cure any deficiency in the
Redemption Fund; provided, however, the City is not prevented, in its sole discretion, from so
advancing funds.
Section 3.05. NO ACCELERATION. The principal of the Bonds shall not be subject to
acceleration hereunder. Nothing in this Section 3.05 shall in any way prohibit the prepayment or
redemption of Bonds under Section 2.03 hereof, or the defeasance of the Bonds and discharge
of this Resolution under Section 8.03 hereof.
Section 3.06. REFUNDING OF BONDS. The Bonds may be refunded by the City
pursuant to the Ordinance or Divisions 11 or 11.5 of the California Streets and Highways Code
upon the conditions as set forth in appropriate proceedings therefor. This Section shall not
apply to or in any manner limit advancement of the maturity of any of the Bonds as provided
in Parts 8, 9, 11, or 11.1 of the Bond Law, nor shall this Section 3.06 apply to or in any manner
limit the redemption and payment of any Bond pursuant to subsequent proceedings providing
for the payment of amounts to eliminate previously imposed fixed lien assessments, including
the Reassessments.
Section 3.07. AUTHORITIES. The Authorized Officers are hereby authorized and
directed to cause the various documents herein mentioned to be completed and executed with
such changes, modifications, deletions or additions as may be approval by the Authorized
Officer in consultation with the City's staff and consultants with respect to these reassessment
proceedings, such approval to be conclusively evidenced by the execution of the such
documents by the Authorized Officer. The foregoing authorization is expressly conditioned
upon the satisfaction of the following: (i) the total principal amount of the Bonds shall not
exceed $27,000,000 and (ii) the average interest rate of the Bonds shall not exceed 8% per
annum. The Clerk is authorized to complete and to approve changes in any provisions of this
Resolution and Exhibit A hereto in order to accomplish the delivery of any of the Bonds on
schedule; such changes may be accomplished-by attachment of a certificate, executed by the
Clerk, to this Resolution on file in the office of the Clerk
Section 3.08. SALE OF BONDS. The City Council hereby authorizes and directs the sale
of the Bonds to the trustee for the Revenue Bonds, upon payment to the City of the proceeds of
the Revenue Bonds as the purchase price of the Bonds, in an amount which is sufficient to
enable the City to refund and discharge all of the outstanding Prior Bonds.
Section 3.09. BONDS PREPARED AND DELIVERED. The Bonds shall be prepared,
authenticated and delivered, all in accordance with the applicable terms of the Bond Resolution
and Revenue Bond Documents. The Authorized Officer and other responsible City officials are
hereby authorized and directed to take such actions as are required under the Revenue Bond
Documents to complete all actions required to evidence the delivery of the Bonds and the
receipt of the purchase price thereof from the purchaser of the Bonds.
Section 3.10. ESCROW AGREEMENT. The form of Escrow Agreement by and between
the City and the Escrow Holder in substantially the form on file with the City, is hereby
approved and the Authorized Officer is hereby directed to complete and execute the Escrow,
Agreement on behalf of the City, subject to Section 3.07 above.
Section 3.11. ACTIONS APPROVED. All actions heretofore taken by the officers and
agents of the City, including the Authorized Officers, with respect to the establishment of the
reassessment district and the sale and issuance of the Bonds are hereby approved, confirmed
and ratified, and the Authorized Officers of the City are hereby authorized and directed to do
any and all things and take any and all actions and execute any and all certificates, agreements,
contracts, and other documents, which they, or any of them, may deem necessary or advisable
in order to consummate the lawful issuance and delivery of the Bonds in accordance with this
resolution and any certificate, agreement, contract, and other document described in the
documents herein approved. The Authorized Officers are further authorized and directed to
complete Exhibit A hereto and make such changes, amendments and corrections to this
resolution as may be required to provide for the timely issuance, sale and delivery of the Bonds
and to certify to such actions, as required.
ARTICLE IV
FUNDS AND ACCOUNTS
Section 4.01. APPLICATION OF PROCEEDS OF SALE OF. BONDS. Upon receipt of
the proceeds of sale of the Bonds on the Closing Date, the proceeds thereof shall be forthwith
set aside, paid over and deposited by the Finance Director, as set forth in the Revenue Bonds
Documents, appropriate Officer's Certificate(s) Article IV hereof and Exhibit A hereto.
Section 4.02. COSTS OF ISSUANCE -FUND. The Costs of Issuance Fund shall be
established, held and receive deposits, all as provided in the Revenue Bonds Documents for the
payment or reimbursement of the Costs of Issuance of the Bonds.
Section 4.03. REDEMPTION FUND.
(A) Establishment of Redemption Fund and Prepayment Account. The Redemption
Fund is hereby established as a separate fund to be held by the Finance Director to the credit of
which deposits shall be made as required by Section 4.01 and any other amounts required to be
deposited therein by this Resolution, the Ordinance or the Bond Law. Moneys in the
Redemption Fund shall be held by the Finance Director for the benefit of the City and the
Owners of the Bonds, shall be disbursed for the payment of the principal of (including Sinking
Fund Payments), and interest and any premium on, the Bonds as provided below. Within the
Redemption Fund, the Finance Director shall establish the Prepayment Account into which shall
be placed the proceeds of the prepayment of any Reassessment or portion thereof. The
Prepayment Account shall be administered in accordance with the provisions of the Ordinance
and section 8767 of the Bond Law and shall remain open so long as the Redemption Fund
remains open.
(B) Disbursements. On or before each Interest Payment Date, the Finance Director shall
withdraw from the Redemption Fund and forward to the Agent for payment to the Owners of
the Bonds, amounts sufficient to pay the principal of (induding Sinking Fund Payments), and
interest and any premium, then due and payable on the Bonds. Five (5) Business Days prior to
each Interest Payment Date, the Finance Director shall determine if the amounts then on deposit
in the Redemption Fund are sufficient to pay the Debt Service due on the Bonds on such Interest
Payment date. In the event that amounts in the Redemption Fund are insufficient for such
purpose, the Finance Director shall cause appropriate withdrawals to be made from any reserve
fund available therefor under the Revenue Bonds Documents, to the extent of any funds therein,
the amount of such insufficiency, and shall transfer any amounts so withdrawn to the
Redemption Fund. Amounts so withdrawn from such reserve fund and deposited in the
Redemption Fund shall be applied to the payment of the Bonds. If, after the foregoing transfers,
there are insufficient funds in the Redemption Fund to make the payments provided for in the
first sentence of the first paragraph of this Section 4.03(B), the Finance Director shall apply the
available funds first to the payment of interest on the Bonds, then to the payment of principal
due on the Bonds (including Sinking Fund Payments), and then to payment of principal due on
the Bonds by reason of Bonds called for redemption pursuant to Section 2.03 hereof.
(C) Investment. Moneys in the Redemption Fund and the account therein shall be
invested and deposited in accordance with Section 6.01. Interest earnings and profits resulting
from such investment and deposit shall be retained in the Redemption Fund and the accounts
therein.
(D) Closing of Fund. The Redemption Fund (and the Prepayment Account therein) shall
be closed when all of the principal of and interest on the Bonds has been paid.
Section 4.04. ESCROW FUND. On the Closing Date, the Finance Director is hereby
authorized and directed to cause the Escrow Fund to be established as a separate fund to be
held by the Escrow Holder and to the credit of which fund a deposit shall be made as provided
in Section 4.01 and as otherwise provided under the Escrow Agreement. The Escrow Fund shall
be established to assure the timely advance retirement of the Prior Bonds using a portion of the
proceeds of the Bonds and other funds held by the City with respect to the Prior Bonds and
investment earnings thereon, all as to be specified by appropriate Officer's Certificates. The
Escrow Fund shall be invested, disbursed and:Elosed as provided in the Escrow Agreement.
Section 4.05. IMPROVEMENT FUND. On the Closing Date, the Finance Director shall
establish the Improvement Fund using the funds on deposit in the improvement fund
established and held under the Prior Bonds Resolution. Thereafter, as they are received, moneys
received with respect to the December 10, 1998 and April 10, 1999 tax roll collections for the
Prior Bonds shall be placed in the Improvement Fund.
(A) Disbursements. Moneys in the Improvement Fund shall be withdrawn to pay the
expenses of the Project and the costs related thereto.
(B) Investment. Moneys in the Improvement Fund and the account therein shall be
invested and deposited in accordance with Section 6.01. Interest earnings and profits resulting
from such investment and deposit shall be retained in the Improvement Fund.
(C) Closing of Fund. Upon payment of all of the costs of the Project, the Improvement
Fund shall be closed and any funds remaining on the date of dosing shall be applied as
provided by the Council in proceedings under the Streets and Highways Code, including to the
redemption of the Bonds.
ARTICLE V
COVENANTS
Section 5.01. COLLECTION OF REASSESSMENTS.
The City shall comply with all requirements of the Ordinance, the Ordinance, the Bond
Law and this Resolution to assure the timely collection of the Reassessments, including, without
limitation, the enforcement of delinquent Reassessments. To that end, the following shall apply:
(A) Tax Roll Collection. The Reassessments as set forth on the list thereof on file with
the Finance Director together with the interest thereto, shall be payable in annual series
corresponding in number and proportionate amount to the number of installments and principal
amounts of the Bonds maturing or becoming subject to mandatory prior redemption under
Section 2.03 hereof. An annual proportion of each Reassessment shall be payable in each Fiscal
Year preceding the date of maturity or mandatory prior redemption date of each of the Bonds
issued sufficient to pay the Bonds when due (including any sinking payments thereon) and such
proportion of each Reassessment coming due in any year, together with the annual interest
thereon, shall be payable in the same manner and at the same time and in the same installments
as the general taxes on real property are payable, and become delinquent at the same times and
in the same proportionate amounts and bear the same proportionate penalties and interests
after delinquency as do the general taxes on real property. All sums received from the collection
of the Reassessments and of the interest and penalties thereon shall be placed in the
Redemption Fund.
(B) Auditor Record. The Finance Director shall, before the final date on which the
Auditor will accept the transmission of the Reassessments for the parcels within the
Assessment District for indusion on the next tax roll, prepare or cause to be prepared, and
shall transmit to the Auditor, such data as the Auditor requires to indude the installments of
the Reassessments on the next secured tax roll. The Finance Director is hereby authorized to
employ consultants to assist in computing the installments of the Reassessments hereunder and
in reconciling Reassessments billed to amounts received as provided in the subsection (C) of this
Section 5.01.
(C) Administrative Costs. In addition to any amounts authorized pursuant to section
8682 of the Bond Law to be included with the annual amounts of installments as aforesaid, the
City, pursuant to section 8682.1 of the Bond Law may cause to be entered on the assessment
roll on which taxes will next become due, opposite each lot or parcel of land within the
Reassessment District in the manner set forth in said section 8682, each lot's pro rata share of
the estimated annual expenses of the City in connection with the administrative duties thereof
for the Bonds, including, but not limited to, the costs of registration, authentication, transfer
and compliance with the provisions of Artide V hereof. Delinquent Reassessments shall be
subject to foreclosure pursuant to Section 5.02 hereof.
Section 5.02. FORECLOSURE. The City hereby covenants with and for the benefit of the
Owners of the Bonds that it will order, and cause to be commenced, and thereafter diligently
prosecute an action in the superior court to foreclose the lien of any Reassessment or installment
thereof which has been billed, but has not been paid, pursuant to and as provided in sections
8830 and 8835, inclusive of the Bond Law and the conditions specified in this Section 5.02 The
Finance Director shall notify the City Attorney of any such delinquency of which the Finance
Director is aware, and the City Attorney shall commence, or cause to be commenced, such
foreclosure proceedings, including collection actions preparatory to the filing of any complaint.
The City Attorney is hereby authorized to employ counsel to conduct any such foredosure
proceedings. The following conditions shall apply to the foreclosure proceedings which shall be
commenced within 60 days of any of the following determinations which shall be made by the
Finance Director not later than October 1 of each Fiscal Year:
(A) If the Finance Director determines that there is a delinquency of a Reassessment of
$5,000 or more for a prior Fiscal Year or Years for any single parcel of land in the Reassessment
District.
(B) If the Finance Director determines that the total amount of delinquent
Reassessments for the prior Fiscal Year for -the entire Reassessment District, less the total
delinquencies under subsection (A). above, exceeds two percent (2 %) of the total Reassessments
due and payable in the prior Fiscal Year, foreclosure shall be commenced against each parcel of
land in the Reassessment District with a delinquency for the prior Fiscal Year or Years.
Section 5.03. PUNCTUAL PAYMENT; COMPLIANCE WITH DOCUMENTS. The City
shall punctually pay or cause to be paid the interest and principal to become due with respect
to all of the Bonds in strict conformity with the terms of the Bonds and of this Resolution, and
will faithfully observe and perform all of the conditions, covenants and requirements of this
Resolution and all Supplemental Resolutions.
Section 5.04. NO PRIORITY FOR ADDITIONAL OBLIGATIONS. The City covenants
that no additional bonds or other obligations shall be issued or incurred having any priority
over the Bonds in payment of principal or interest out of the Reassessments. Nothing in this
Resolution shall prohibit the City from issuing bonds or other obligations on a parity with or
subordinate to the Bonds and secured by and payable from the Reassessments upon such terms
as the City may determine.
Section 5.05. FURTHER ASSURANCES. The City will adopt, make, execute and deliver
any and all such further resolutions, instruments and assurances as may be reasonably
necessary or proper to carry out the intention or to facilitate the performance of this Resolution,
and for the better assuring and confirming unto the Owners of the Bonds the rights and benefits
provided in this Resolution.
Section 5.06. PRIVATE ACTIVITY BOND LIMITATION. The City shall assure that the
proceeds of the Bonds are not so used as to cause the Revenue Bonds to satisfy the private
business tests of section 141(b) of the Tax Code or the private loan financing test of section
141(c) of the Tax Code.
Section 5.07. FEDERAL GUARANTEE PROHIBITION. The City shall not take any
action or permit or suffer any action to be taken if the result of the same would be to cause any
of the Revenue Bonds to be "federally guaranteed" within the meaning of section 149(b) of the
Tax Code.
Section 5.08. NO ARBITRAGE. The City shall not take, or permit or suffer to be taken
by the Finance Director or otherwise, any action with respect to the proceeds of the Bonds
which, if such action had been reasonably expected to have been taken, or had been deliberately
and intentionally taken, on the date of issuance of the Bonds would have caused the Revenue
Bonds to be "arbitrage bonds" within the meaning of section 148 of the Tax Code.
Section 5.09. REBATE REQUIREMENT. The City shall take any and all actions
necessary to assure compliance with section 148(0 of the Tax Code, relating to the rebate of
excess investment earnings, if any, to the federal government, to the extent that such section is
applicable to the Revenue Bonds. Earnings on any reserve fund established under the Revenue
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Bonds Documents shall be used for rebate purposes before any application thereof as credits to
the Redemption Fund under Section 4.04(E).
Section 5.10. YIELD OF THE BONDS. In determining the yield of the Bonds to comply
with Sections 5.08 and 5.09 hereof, the City will take into account redemption (including
premium, if any) in advance of maturity based on the reasonable expectations of the City, as of
the Closing Date, regarding prepayments of Reassessments and use of prepayments for
redemption of the Bonds, without regard to whether or not prepayments are received or Bonds
redeemed.
Section 5.11. AMENDMENT. Without the consent of the Owners of the Bonds, the City
may amend this Resolution to add, modify or delete provisions if necessary or desirable to
assure compliance with Section 148(0 of the Tax Code, or as otherwise required, to assure the
exemption from federal income taxation of interest on the Revenue Bonds.
Section 5.12. MAINTENANCE OF TAX - EXEMPTION. The City shall take all actions
necessary to assure the exclusion of interest on the Revenue Bonds from the gross income of the
owners of the Revenue Bonds to the same extent as such interest is permitted to be excluded
from gross income under the Tax Code as in effect on the date of issuance of the Revenue
Bonds.
Section 5.13. CONTINUING DISCLOSURE. The City hereby covenants and agrees that
it will comply with and carry out all of the provisions of the Continuing Disclosure Certificate.
Notwithstanding any other provision of this Resolution, failure of the City to comply with the
Continuing Disclosure Certificate shall not be considered an event of default under this
Resolution.
ARTICLE VI
INVESTMENT OF FUNDS
Section 6.01. DEPOSIT AND INVESTMENT OF MONEYS IN FUNDS. Subject in all
respects to the provisions of Section 6.02, moneys in any fund or account created or established
by this Resolution and held by the Finance Director shall be invested by the Finance Director in
Permitted Investments, as directed pursuant to an Officer's Certificate filed with the Finance
Director at least two (2) Business Days in advance of the making of such investments. The
following shall apply to such investments:
(A) In the absence of any such Officer's Certificate, the Finance Director shall invest any
such moneys in Permitted Investments described as Federal Securities which by their terms
mature prior to the date on which such moneys are required to be paid out hereunder.
Obligations purchased as an investment of moneys in any fund shall be deemed to be part of
such fund or account, subject, however, to the requirements of this Resolution for transfer of
interest earnings and profits resulting from investment of amounts in funds and accounts;
(B) The Finance Director may act as principal or agent in the acquisition or disposition
of any investment. The Finance Director shall incur no liability for losses arising from any
investments made pursuant to this Section;
(C) Subject in all respects to the provisions of Section 5.09, investments in any and all
funds and accounts may at the discretion of the Finance Director be commingled in a separate
fund or funds for purposes of making, holding and disposing of . investments, notwithstanding
provisions herein for transfer to or holding in or to the credit of particular funds or accounts of
amounts received or held by the Finance Director hereunder, provided that the Finance Director
shall at all times account for such investments strictly in accordance with the funds and
accounts to which they are credited and otherwise as provided in this Resolution;
(D) The Finance Director shall sell at the highest price reasonably obtainable, or present
for redemption, any investment security whenever it shall be necessary to provide moneys to
meet any required payment, transfer, withdrawal or disbursement from the fund or account to
which such investment security is credited and the Finance Director shall not be liable or
responsible for any loss resulting from the acquisition or disposition of such investment security
in accordance herewith; and
(E) For any funds held by the Finance Director, the foregoing provisions of this Section
6.01 shall also apply, except that an Officer's Certificate shall not be required. For such funds
the Finance Director shall keep records or accounts of all expenditures or disbursements
therefrom which records shall be available for inspection during business hours on any Business
Day upon prior written request.
Section 6.02. ACQUISITION, DISPOSITION AND VALUATION OF INVESTMENTS.
(A) Except as otherwise provided in subsection (B) of this Section, the City covenants
that all investments of amounts deposited in any fund or account under this Resolution, or
otherwise containing gross proceeds of the Bonds (under section 148 of the Tax Code) shall be
acquired, disposed of and valued (as of the date that valuation is required by this Resolution or
the Tax Code) at Fair Market Value.
(B) Investments in funds or accounts (or portions thereof) that are subject to a yield
restriction under applicable provisions of the Tax Code.
Section 6.03. LIABILITY OF CITY. The City shall not incur any responsibility in respect
of the Bonds or this Resolution other than in connection with the duties or obligations explicitly
provided herein or in the Bonds. The City shall not be liable to any Owner in connection with
the performance of its duties hereunder, except for its own negligence or willful default. The
City shall not be bound to ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements of the Agent herein or of any of the documents
executed by the Agent in connection with the Bonds, or as to the existence of a default
thereunder. Under this Resolution, the following shall apply to the City:
(A) In the absence of bad faith, the City, including the Finance Director, may
conclusively rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the City and conforming to the requirements
of this Resolution. The City, including the Finance Director, shall not be liable for any error of
judgment made in good faith unless it shall be proved that it was negligent in ascertaining the
pertinent facts;
(B) No provision of this Resolution shall require the City to expend or risk its own
general funds or otherwise incur any financial liability (other than with respect to the foreclosure
proceedings for delinquent Reassessments and the payment of fees and costs of the Agent) in
the performance of any of its obligations hereunder or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to it;
(C) The City may rely and shall be protected in acting or refraining from acting upon
any notice, resolution, request, consent, order, certificate, report, warrant, bond or other paper
or document believed by it to be genuine and to have been signed or presented by the proper
party or proper parties. The City may consult with counsel, who may be the City Attorney,
with regard to legal questions, and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered by it hereunder in good
faith and in accordance therewith;
(D) The City shall not be bound to recognize any person as the Owner of a Bond unless
duly registered and until such Bond is submitted for inspection, if required, and his title thereto
satisfactorily established, if disputed; and
(E) Whenever in the administration of its duties under this Resolution the City shall
deem it necessary or desirable that a matter be proved or established prior to taking or suffering
any action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of willful misconduct on the part of the City, be deemed to be
conclusively proved and established by a certificate of the Agent or other expert retained by the
City for the purposes hereof, and such certificate shall be full warrant to the City for any action
taken or suffered under the provisions of this Resolution or any Supplemental Resolution upon
the faith thereof, but in its discretion the City may, in lieu thereof, accept other evidence of such
matter or may require such additional evidence as to it may deem reasonable.
Section 6.04. EMPLOYMENT OF AGENTS BY CITY. In order to perform its duties and
obligations hereunder, the City may employ such persons or entities as it deems necessary or
advisable. The City shall not be liable for any of the acts or omissions of such persons or
entities employed by it with reasonable care and in good faith hereunder, and shall be entitled
to rely, and shall be fully protected in doing so, upon the opinions, calculations, determinations
and directions of such persons or entities.
ARTICLE VII
MODIFICATION OR AMENDMENT
Section 7.01. AMENDMENTS PERMITTED. This Resolution and the rights and
obligations of the City and of the Owners of the Bonds may be modified or amended at any
time by a Supplemental Resolution pursuant to the affirmative vote at a meeting of Owners, or
with the written consent without a meeting, of the Owners of at least sixty percent (60 %) in
aggregate principal amount of the Bonds then Outstanding, exclusive of Bonds disqualified as
provided in Section 7.04. No such modification or amendment shall (i) extend the maturity of
any Bond or reduce the interest rate thereon, or otherwise alter or impair the obligation of the
City to pay the principal of, and the interest and any premium on, any Bond, without the
express consent of the Owner of such Bond, or (ii) permit the creation by the City of any pledge
or lien upon the Reassessments superior to or on a parity with the pledge and lien created for
the benefit of the Bonds (except as otherwise permitted by the Ordinance, this Resolution, the
laws of the State of California), or reduce the percentage of Bonds required for the amendment
hereof, or to amend this Section 7.01. Any such amendment may not modify any of the rights or
obligations of the Agent without its written consent. This Resolution and the rights and
obligations of the City and of the Owners may also be modified or amended at any time by a
Supplemental Resolution, without the consent of any Owners, only to the extent permitted by
law and only for any one or more of the following purposes:
(A) to add to the covenants and agreements of the City in this Resolution contained,
other covenants and agreements thereafter to be observed, or to limit or surrender any right or
power herein reserved to or conferred upon the City;
(B) to make modifications not adversely affecting any outstanding series of Bonds of
the City in any material respect;
(C) to make such provisions for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained in this Resolution, or in regard to
questions arising under this Resolution, as the City may deem necessary or desirable and not
inconsistent with this Resolution, and which shall not adversely affect the rights of the Owners
of the Bonds; or
(D) to make such additions, deletions or modifications as may be necessary or desirable
to assure exemption from federal income taxation of interest on the Bonds.
Section 7.02. OWNERS' MEETINGS. The City may at any time call a meeting of the
Owners. In such event the City is authorized to fix the time and place of said meeting and to
provide for the giving of notice thereof and to fix and adopt rules and regulations for the
conduct of said meeting.
Section 7.03. PROCEDURE FOR AMENDMENT WITH WRITTEN CONSENT OF
OWNERS. The City may at any time adopt a Supplemental Resolution amending the provisions
of the Bonds or of this Resolution or any Supplemental Resolution, to the extent that such
amendment is permitted by Section 7.01 hereof, to take effect when and as provided in this
Section 7.03. With respect to such Supplemental Resolution under this Section 7.03, the
following shall apply:
(A) A copy of such Supplemental Resolution, together with a request to Owners for
their consent thereto, shall be mailed by first class mail, by the Finance Director to each Owner
of Bonds Outstanding, but failure to mail copies of such Supplemental Resolution and request
shall not affect the validity of the Supplemental Resolution when assented to as in this Section
provided;
(B) Such Supplemental Resolution shall not become effective unless there shall be filed
with the Agent the written consents of the Owners of at least sixty percent (60 %) in aggregate
principal amount of the Bonds then Outstanding (exclusive of Bonds disqualified as provided
in Section 7.04) and a notice shall have been mailed as hereinafter in this Section provided.
Each such consent shall be effective only if accompanied by proof of ownership of the Bonds
for which such consent is given, which proof shall be such as is permitted by Section 8.04. Any
such consent shall be binding upon the Owner of the Bonds giving such consent and on any
subsequent Owner (whether or not such subsequent Owner has notice thereof) unless such
consent is revoked in writing by the Owner giving such consent or a subsequent Owner by filing
such revocation with the Agent prior to the date when the notice hereinafter in this Section
provided for has been mailed; and
(C) After the Owners of the required percentage of Bonds shall have filed their consents
to the Supplemental Resolution, the City shall mail a notice to the Owners in the manner above
provided in this Section for the mailing of the Supplemental Resolution, stating in substance
that the Supplemental Resolution has been consented to by the Owners of the required
percentage of Bonds and will be effective as provided in this Section but failure to mail copies
of said notice shall not affect the validity of the Supplemental Resolution or consents thereto).
Proof of the mailing of such notice shall be filed with the Agent. A record, consisting' of the
papers required by this Section 7.03 to be filed with the Agent, shall be proof of the matters
therein stated until the contrary is proved. The Supplemental Resolution shall become effective
upon the filing with the Agent of the proof of matters therein of such notice, and the
Supplemental Resolution shall be deemed conclusively binding (except as otherwise hereinabove
specifically provided in this Article) upon the City and the Owners of all Bonds at the
expiration of sixty (60) days after such filing, except in the event of a final decree of a court of
competent jurisdiction setting aside such consent in a legal action or equitable proceeding for
such purpose commenced within such sixty -day period.
Section 7.04. DISQUALIFIED BONDS. Bonds owned or held for the account of the City,
excepting any pension or retirement fund, shall not be deemed Outstanding for the purpose of
any vote, consent or other action or any calculation of Outstanding Bonds provided for in this
Article VII, and shall not be entitled to vote upon, consent to, or take any other action provided
for in this Article VII.
Section 7.05. EFFECT OF SUPPLEMENTAL RESOLUTION. From and after the time
any Supplemental Resolution becomes effective pursuant to this Article VII, this Resolution shall
be deemed to be modified and amended in accordance therewith, the respective rights, duties
and obligations under this Resolution of the City and all Owners of Bonds Outstanding shall
thereafter be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such Supplemental
Resolution shall be deemed to be part of the terms and conditions of this Resolution for any and
all purposes.
Section 7.06. ENDORSEMENT OR REPLACEMENT OF BONDS ISSUED AFTER
AMENDMENT. The City may determine that Bonds issued and delivered after the effective
date of any action taken as provided in this Article VII shall bear a notation, by endorsement or
otherwise, in form approved by the City, as to such action. In that case, upon request of the
Owner of any Bond Outstanding at such effective date and presentation of his Bond for that
purpose at the Principal Office of the Agent or at such other office as the City may select and
designate for that purpose, a suitable notation shall be made on such Bond. The City may
- 24 -
determine that new Bonds, so modified as in the opinion of the City is necessary to conform to
such Owners' action, shall be prepared, executed and delivered. In that case, upon request of
the Owner of any Bonds then Outstanding, such new Bonds shall be exchanged at the Principal
Office of the Agent without cost to any Owner, for Bonds then Outstanding, upon surrender of
such Bonds.
Section 7.07. AMENDATORY ENDORSEMENT OF BONDS. The provisions of this
Article VII shall not prevent any Owner from accepting any amendment as to the particular
Bonds held by such Owner, provided that due notation thereof is made on such Bonds.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. BENEFITS LIMITED TO PARITIES. Nothing in this Resolution, expressed
or implied, is intended to give to any person other than the City, the Agent and the Owners, any
right, remedy or daim under or by reason of this Resolution. Any covenants, stipulations,
promises or agreements in this Resolution contained by and on behalf of the City shall be for the
sole and exclusive benefit of the Owners and the Agent.
Section 8.02. SUCCESSOR AND PREDECESSOR Whenever in this Resolution or any
Supplemental Resolution either the City or the Agent is named or referred to, such reference
shall be deemed to include the successors or assigns thereof, and all the covenants and
agreements in this Resolution contained by or on behalf of the City shall bind and inure to the
benefit of the respective successors and assigns thereof whether so expressed or not.
Section 8.03. DISCHARGE OF RESOLUTION. Subject to the provisions of Section 2.03
hereof, if the City shall pay and discharge the entire indebtedness on all Bonds Outstanding in
any one or more of the following ways:
(A) by paying or causing to be paid the principal of (including any Sinking Fund
Payments) and interest and any premium on all Bonds Outstanding, as and when the same
become due and payable;
(B) by depositing with the Agent, in trust, at or before maturity, money which, together
with the amounts then on deposit in the Redemption Fund is fully sufficient to pay all Bonds
Outstanding, including all principal (including Sinking Fund Payments), interest and any
applicable redemption premiums, or;
(C) by irrevocably depositing with the Agent, in trust, cash and Federal Securities in
such amount as the City shall determine, as confirmed by an independent certified public
accountant, which will, together with the interest to accrue thereon and moneys then on deposit
in the Redemption Fund be fully sufficient to pay and discharge the indebtedness on all Bonds,
including all principal, Sinking Fund Payments, interest and any applicable redemption
premiums, at or before their respective maturity dates; and
(D) if such Bonds are to be redeemed prior to the maturity thereof notice of such
redemption shall have been given as in this Resolution provided or provision satisfactory to the.
Agent shall have been made for the giving of such notice, then, at the election of the City, and
notwithstanding that any Bonds shall not have been surrendered for payment, the pledge of the
Reassessments and other funds provided for in this Resolution and all other obligations of the
City under this Resolution with respect to all Bonds Outstanding shall cease and terminate,
except only the obligation of the City to pay or cause to be paid to the Owners of the Bonds not
so surrendered and paid all sums due thereon, the obligation of the City to assure that no action
is taken or failed to be taken if such action or failure adversely affects the exclusion of interest
on the Bonds from gross income for federal income tax purposes, and all amounts owing to the
Agent pursuant to Section 7.05 hereof; and thereafter Reassessments shall not be payable to the
Agent. Notice of such election shall be filed with the Agent. Any funds thereafter held by the
Agent upon payments of all fees and expenses of the Agent, which are not required for said
purpose, shall be paid over to the City to be used by the City as provided in the Ordinance and
the Assessment Law.
Section 8.04. EXECUTION OF DOCUMENTS AND PROOF OF OWNERSHIP. Any
request, declaration or other instrument which this Resolution may require or permit to be
executed by Owners may be in one or more instruments of similar tenor, and shall be executed
by Owners in person or by their attorneys appointed in writing. Except as otherwise herein
expressly provided, the fact and date of the execution by any Owner or his attorney of such
request, declaration or other instrument, or of such writing appointing such attorney, may be
proved by the certificate of any notary public or other officer authorized to take
acknowledgments of deeds to be recorded in the state in which he purports to act, that the
person signing such request, declaration or other instrument or writing acknowledged to him the
execution thereof, or by an affidavit of a witness of such execution, duly sworn to before such
notary public or other officer. The ownership-of registered bonds and the amount, maturity,
number and date of holding the same shall be proved by the registry books. Any consent,
request, declaration or other instrument or writing of the then registered Owner of any Bond
shall bind all future Owners of such Bond in respect of anything done or suffered to be done by
the City or the Agent in good faith and in accordance therewith.
Section 8.05. WAIVER OF PERSONAL LIABILITY. No member of the Council,
Authorized Officer, other officer, agent or employee of the City shall be individually or
personally liable for the payment of the principal of, or interest or any premium on, the Bonds;
but nothing herein contained shall relieve any such member, officer, agent or employee from the
performance of any official duty provided by law.
Section 8.06. NOTICES AND DEMANDS. Any notice or demand which liy any
provision of this Resolution is required or permitted to be given or served by the Agent to or on
the City may be given or served by being deposited postage prepaid in a post office letter box
addressed (until another address is filed by the City with the Agent) as follows:
Attention: Finance Director
CITY OF ALAMEDA
2263 Santa Clara Avenue
Alameda, CA 94501
Section 8.07. PARTIAL INVALIDITY. If any Section, paragraph, sentence, clause or
phrase of this Resolution shall for any reason be held illegal or unenforceable, such holding shall
not affect the validity of the remaining portions of this Resolution. The City hereby declares that
it would have adopted this Resolution and each and every other Section, paragraph, sentence,
clause or phrase hereof and authorized the issue of the Bonds pursuant thereto irrespective of
the fact that any one or more Sections, paragraphs, sentences, clauses, or phrases of this
Resolution may be held illegal, invalid or unenforceable.
Section 8.08. UNCLAIMED MONEYS. Anything contained herein to the contrary
notwithstanding, any moneys held by the Finance Director in trust for the payment and
discharge of the principal of, and the interest and any premium on, the Bonds which remains
unclaimed for two (2) years after the date when payments of principal, interest and any
premium have become payable, shall be repaid by the Finance Director to the City as its
absolute property free from any trust, and the Finance Director shall thereupon be released and
discharged with respect thereto and the Bond Owners shall look only to the City for the
payment of the principal of, and interest and any premium on, such Bonds.
Section 8.09. APPLICABLE LAW. This Resolution shall be governed by and enforced in
accordance with the laws of the State of California applicable to contracts made and
performed in the State of California.
Section 8.10. CONFLICT WITH ORDINANCE. In the event of a conflict between any
provision of this Resolution with any provision of the Ordinance, the provision of the
Ordinance shall prevail over the conflicting provision of this Resolution.
Section 8.11. CONCLUSIVE EVIDENCE OF REGULARITY; VALIDITY. Bonds issued
pursuant to this Resolution shall constitute conclusive evidence of the regularity of all
proceedings under the Ordinance relative to their issuance and the levy of the Reassessments.
The validity of the authorization and issuance of the Bonds shall not be dependent upon the
completion and /or acquisition of the Project or any part thereof or the performance by any
person or such person's obligation(s) with respect to the Project.
Section 8.12. PAYMENT ON BUSINESS DAY.In any case where the date of the
maturity of interest or of principal, including Sinking Fund Payments, (and premium, if any) of
the Bonds or the date fixed for redemption of any Bonds or the date any action is to be taken
pursuant to this Resolution is other than a Business Day, the payment of interest or principal,
including Sinking Fund Payments, (and any redemption premium) or the action need not be
made on such date but may be made on the next succeeding day which is a Business Day with
the same force and effect as if made on the date required and no additional interest shall accrue
from such Interest Payment Date until such Business Day.
Section 8.13. REPEAL OF INCONSISTENT RESOLUTIONS. Any resolution of the
Council, and any part of such resolution, inconsistent with this Resolution, is hereby repealed to
the extent of such inconsistency.
Section 8.14. AUTHORITY OF FINANCE DIRECTOR. All actions mandated by this
Resolution to be performed by the Finance Director may be performed by the designee thereof or
such other official of the City or independent contractor, consultant or trustee duly authorized
by the City to perform such action or actions in furtherance of all or a specific portion of the
requirements hereof.
Section 8.15. CERTIFIED COPIES. The Clerk shall cause to be furnished a certified copy
of this resolution to the Finance Director and to the Auditor of the County.
Section 8.16. EFFECTIVE DATE OF THE RESOLUTION. This Resolution shall become
effective upon the date of its adoption.
EXHIBIT A
QTY OF ALAMEDA
Assessment District (Reassessment and Refunding of 1998)
TERMS AND CONDITIONS
The following terms and conditions shall be part of the within Resolution Authorizing
Issuance of Refunding Bonds (the "Resolution of Issuance ") as if set forth in the text thereof:
Principal Amount: Under Section 2.01, the actual principal amount of the Bonds
and the Bond Date is , 1998.
The first Interest Payment Date is 2, 1999.
Principal Maturities and Interest Under Section 2.02 the maturities and rates of interest
of the Bonds are as follows:
Bond Redemption: Under Section 2.03, the Redemption provisions are as follows:
Mandatory Redemption from Prepayments:
Option Redemption from Sources other than Prepayments: This provision
applies to Funds maturing on or after
Mandatory Sinking Fund Redemption:
Funds:
Deposits to Funds: Under Section 4.01 and on the Closing Date, only the
following amounts will be deposited:
$ to the Escrow Fund from Bond Proceeds;
$ to the Escrow Fund from the reserve fund held for the Prior
Bonds;
$ to the Escrow Fund from the redemption fund held for the Prior
Bonds; and
$ to the Improvement Fund from the improvement fund held for the
Prior Bonds.
EXHIBIT A
Page 1
County of Registered
Number A- --
EXHIBIT B
FORM OF BOND
United States of America
State of California
County of Alameda
LIMITED OBLIGATION
REFUNDING IMPROVEMENT BOND
CITY OF ALAMEDA
Harbor Bay Business Park Assessment District 92 -1
(Reassessment and Refunding of 1998)
Series 1998
Registered
* **$ * **
INTEREST RATE MATURITY DATE DATED DATE CUSIP
REGISTERED OWNER:
PRINCIPAL AMOUNT: * ** DOLLARS * **
Under and by virtue of the City of Alameda Refunding Improvement Assessment Law,
which enacted by City of Alameda Ordinance No. (the "Ordinance "), 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. adopted by the City Council of the City on October 20,
1998, pay to the registered owner named above or registered assigns, on the maturity date
stated above, the principal amount stated above, in lawful money of the United States of
America and in like manner will pay interest at the rate per annum stated above, payable
semiannually on March 2 and September 2 (each an "Interest Payment Date ") in each year
commencing on March, 2, 1999 This Bond bears interest from the interest payment date next
preceding its date of authentication and registration unless it is authenticated and registered (i)
prior to an Interest Payment Date and after the close of business of the fifteen day preceding
such Interest Payment Date, in which event it shall bear interest from such Interest Payment
Date, or (ii) prior to the close of business on the fifteenth day of the calendar month preceding
March 2, 1999, in which event it shall bear interest from its date, until payment of such
principal sum shall have been discharged. Both the principal hereof and redemption premiums
hereon, if any, are payable at the office of the Finance Director, City of Alameda, as Agent,
Registrar, Transfer and Paying Agent (the "Agent ") and interest shall be paid by check, draft or
warrant mailed to the registered owner hereof at the registered owner's address as it appears on
the records of the Agent, or at such address as may have been filed with the Agent, for that
purpose, as of the fifteenth day of the calendar month immediately preceding each Interest
Payment Date; provided however, upon request in writing of an Owner of $1,000,000 or more
in aggregate principal amount of Bonds, such request having been made before fifteen days
preceding an Interest Payment Date, such interest shall be paid on such Interest Payment Date
by wire transfer in immediately available funds to an account in the continental United States
designated by such Owner to the Agent. It is hereby also provided that so long as the above -
named Trustee is the Owner, all payments of interest, principal and any premium shall be made
by wire transfer without the requirement of presentment of the bonds.
EXHIBIT B
Page 1
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 Ordinance and the Resolution
Authorizing of Issuance of Refunding Bonds (the "Resolution of Issuance ") or become valid or
obligatory for any purpose, until the certificate of authentication and registration hereon
endorsed shall have been dated and signed by the Agent.
This bond is 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 under the Ordinance 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 the redemption fund and by the
unpaid portion of assessments made for the payment of those improvements, and, including
principal and interest, is payable exclusively out of the redemption fund.
This bond is transferable by the registered owner hereof, in person or by the owner's
attorney duly authorized in writing, at the office of the Agent, subject to the terms and
conditions provided in the Resolution of Issuance, including the payment of certain charges, if
any, upon surrender and cancellation of this bond. Upon transfer, a new registered bond or
bonds, of any authorized denomination or denominations, of the same maturity, and for the
same aggregate principal amount, will be issued to the transferee in exchange therefor.
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 exchange or to register the transfer of
bonds during the 15 days immediately preceding any Interest Payment Date.
The City and the Agent may treat the registered owner hereof as the absolute owner for
all purposes, and the City and the Agent shall not be affected by any notice to the contrary.
This Bond or any portion of 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 any
Interest Payment Date in any year by giving at least 30 days' notice by registered or certified
mail or personal service to the registered owner 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 as follows of the principal redeemed, to wit:
(redemption premium provisions here)
This Bond is a Limited Obligation Refunding Improvement Bond because, under the
Resolution of Issuance, the City is not obligated to advance funds from the City treasury to
cover any deficiency which may occur in the redemption fund for the bonds; however, the City
is not prevented, in its sole discretion, from so advancing funds.
EXHIBIT B
Page 2
IN WITNESS WHEREOF, the City of Alameda has caused this bond to be signed in
facsimile by the Finance Director of the City and by its City Clerk, and has caused its corporate
seal to be reproduced in facsimile hereon all as of day of ,1998.
[SEAL]
City Clerk
CITY OF ALAMEDA
Finance Director
CERTIFICATE OF AUTHENTICATION AND REGISTRATION
This is one of the bonds described in the within mentioned Resolution of Issuance.
Dated: , 1998
FINANCE DIRECTOR, CITY OF
ALAMEDA
as Agent
By:
EXHIBIT B
Page 3
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
(Cust) (Minor)
under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list
ASSIGNMENT
For value received, the undersigned do(es) hereby sell, assign and transfer unto
(Name, Address and Tax Identification or Social Security Number of Assignee)
the within mentioned Bond and hereby irrevocably constitute(s) and appoint(s)
, attorney,, to transfer the same on the registration books of the Agent, with full
power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: The signature(s) on this
assignment must correspond with the
name(s) as written on the face of the
registered Bond in every particular without
alteration or enlargement or any change
whatsoever.
EXHIBIT B
Page 4
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 20th day of October , 1998, by the following vote to wit:
AYES: Councilmembers Daysog, DeWitt, Kerr, Lucas
and President Appezzato - 5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City
this 21st day of October , 1998.
Diane Felsch, City Clerk
City of Alameda