Resolution 14861
01019.21
CITY OF ALAMEDA RESOLUTION NO. 14861
RESOLUTION AUTHORIZING THE ISSUANCE AND SALE OF
CITY OF ALAMEDA 2013 GENERAL OBLIGATION REFUNDING BONDS
Adopted September 17, 2013
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; AUTHORITY
Section 1.01. Definitions ............................................................................................................... 2
Section 1.02. Authority for this Resolution .................................................................................... 5
ARTICLE II
THE BONDS
Section 2.01. Authorization ........................................................................................................... 6
Section 2.02. Terms of Bonds ....................................................................................................... 6
Section 2.03. Redemption of Bonds ............................................................................................. 7
Section 2.04. Form of Bonds ........................................................................................................ 8
Section 2.05. Execution of Bonds ................................................................................................. 9
Section 2.06. Transfer of Bonds ................................................................................................... 9
Section 2.07. Exchange of Bonds ................................................................................................. 9
Section 2.08. Bond Register ....................................................................................................... 10
Section 2.09. Temporary Bonds ................................................................................................. 10
Section 2.10. Bonds Mutilated, Lost, Destroyed or Stolen .......................................................... 10
Section 2.11. Book Entry System ............................................................................................... 11
ARTICLE III
ISSUE OF BONDS; APPLICATION OF BOND PROCEEDS; SECURITY FOR THE BONDS
Section 3.01. Issuance, Award and Delivery of Bonds ............................................................... 12
Section 3.02. Application of Proceeds of Sale of Bonds ............................................................. 12
Section 3.03. Establishment of Costs of Issuance Fund ............................................................. 12
Section 3.04. Debt Service Account ........................................................................................... 13
Section 3.05. Security for the Bonds ........................................................................................... 13
ARTICLE IV
SALE OF THE BONDS, APPROVAL OF PAYING AGENT AGREEMENT, OFFICIAL
STATEMENT
Section 4.01. Sale of the Bonds .................................................................................................. 14
Section 4.02. Approval of Paying Agent/Bond Registrar/Costs of Issuance Agreement ............ 15
Section 4.03. Approval of Escrow Agreement ............................................................................ 15
Section 4.04. Official Statement .................................................................................................. 15
Section 4.05. Official Action ........................................................................................................ 16
ARTICLE V
OTHER COVENANTS OF THE CITY
Section 5.01. Punctual Payment ................................................................................................. 17
Section 5.02. Extension of Time for Payment ............................................................................. 17
Section 5.03. Protection of Security and Rights of Bondowners ................................................. 17
Section 5.04. Further Assurances ............................................................................................... 17
Section 5.05. Tax Covenants ...................................................................................................... 17
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Section 5.06. Acquisition, Disposition and Valuation of Investments .......................................... 18
Section 5.07. Continuing Disclosure ........................................................................................... 18
ARTICLE VI
THE PAYING AGENT
Section 6.01. Appointment of Paying Agent ............................................................................... 19
Section 6.02. Paying Agent May Hold Bonds ............................................................................. 19
Section 6.03. Liability of Agents .................................................................................................. 19
Section 6.04. Notice to Agents .................................................................................................... 20
Section 6.05. Compensation, Indemnification ............................................................................. 20
ARTICLE VII
REMEDIES OF BONDOWNERS
Section 7.01. Events of Default ................................................................................................... 22
Section 7.02. Remedies of Bondowners ..................................................................................... 22
Section 7.03. Non-Waiver ........................................................................................................... 23
Section 7.04. Remedies Not Exclusive ....................................................................................... 23
ARTICLE VIII
SUPPLEMENTAL RESOLUTIONS
Section 8.01. Supplemental Resolutions Effective Without Consent of the Owners .................. 24
Section 8.02. Supplemental Resolutions Effective With Consent to the Owners........................ 24
ARTICLE IX
MISCELLANEOUS
Section 9.01. Benefits of Resolution Limited to Parties .............................................................. 25
Section 9.02. Defeasance ........................................................................................................... 25
Section 9.03. Execution of Documents and Proof of Ownership by Bondowners....................... 27
Section 9.04. Waiver of Personal Liability ................................................................................... 27
Section 9.05. Destruction of Canceled Bonds ............................................................................ 28
Section 9.06. Partial Invalidity ..................................................................................................... 28
Section 9.07. Effective Date of Resolution .................................................................................. 28
EXHIBIT A: FORM OF BOND
EXHIBIT B: FORM OF NOTICE OF SALE
EXHIBIT C: FORM OF NOTICE INTENTION
EXHIBIT D: FORM OF PAYING AGENT/BOND REGISTRAR/COSTS OF ISSUANCE
AGREEMENT
EXHIBIT E: FORM OF ESCROW AGREEMENT
EXHIBIT F: FORM OF CONTINUING DISCLOSURE CERTIFICATE
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ARTICLE I
DEFINITIONS; AUTHORITY
Section 1.01. Definitions. The terms defined in this Section 1.01, as used and
capitalized herein, shall, for all purposes of this Resolution, have the meanings ascribed
to them below, unless the context clearly requires some other meaning.
“Act” means Article 9 of Chapter 3 (commencing with section 53550) of Division 2
of Title 5 of the California Government Code, as is in effect on the date of adoption
hereof and as amended hereafter.
“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.
“Authorized Investments” means any investments permitted by law to be made
with moneys belonging to, or in the custody of, the City, but only to the extent that the
same are acquired at Fair Market Value.
“Bond Counsel” means any attorney or firm of attorneys nationally recognized for
expertise in rendering opinions as to the legality and tax exempt status of securities
issued by public entities.
“Bond Register” means the records maintained by the Paying Agent pursuant to
Section 2.08 of this Resolution for registration of the ownership and transfer of
ownership of the Bonds.
“Bonds” means the City of Alameda (Alameda County, California) 2013 General
Obligation Refunding Bonds at any time Outstanding pursuant to this Resolution.
“City Council” means the City Council of the City.
“City Representative” means the Mayor, the City Manager, the Assistant City
Manager, the Finance Director or any other person authorized by resolution of the City
Council to act on behalf of the City with respect to this Resolution and the Bonds.
“Closing Date” means the date upon which there is an exchange of Bonds for the
proceeds representing the purchase price of the Bonds by the Original Purchaser.
“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
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with applicable temporary and final regulations promulgated, and applicable official
public guidance published, under the Code.
“Continuing Disclosure Certificate” shall mean that certain Continuing Disclosure
Certificate executed by the City and dated the date of issuance and delivery of the
Bonds, as originally executed and as it may be amended from time to time in
accordance with the terms thereof.
“Costs of Issuance” means all items of expense directly or indirectly reimbursable
to the City relating to the issuance, execution and delivery of the Bonds including, but
not limited to, filing and recording costs, settlement costs, printing costs, reproduction
and binding costs, legal fees and charges, fees and expenses of the Paying Agent,
financial and other professional consultant fees, costs of obtaining credit ratings, fees
for execution, transportation and safekeeping of the Bonds and charges and fees in
connection with the foregoing.
“County” means the County of Alameda, California.
“Debt Service” means the scheduled amount of interest and amortization of
principal payable on the Bonds during the period of computation, excluding amounts
scheduled during such period which relate to principal which has been retired before the
beginning of such period.
“Debt Service Account” means the account by that name maintained by the City
within its General Fund which is continued pursuant to Section 3.03.
“Escrow Agreement” means that certain escrow deposit and trust agreement,
dated the Closing Date, by and between the City and the Escrow Bank, providing for the
defeasance of the 2003 Bonds..
“Escrow Bank” means The Bank of New York Mellon Trust Company, N.A., as
escrow bank under the Escrow Agreement.
“Event of Default” means an event of default as described in Section 7.01 of this
Resolution.
“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 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 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
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investment agreement) that is acquired in accordance with applicable regulations under
the 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 therein if the return paid by the fund is without regard to the source of the
investment.
“Federal Securities” means United States Treasury notes, bonds, bills or
certificates of indebtedness or those for which the faith and credit of the United States
are pledged for the payment of principal and interest.
“Financial Advisor” means Public Financial Management, Inc., as financial
advisor to the City in connection with the issuance of the Bonds.
“Information Services” means the Electronic Municipal Market Access System
(referred to as “EMMA”), a facility of the Municipal Securities Rulemaking Board (at
http://emma.msrb.org) or, in accordance with then current guidelines of the Securities
and Exchange Commission, such other addresses and/or such other national
information services providing information or disseminating notices of redemption of
obligations similar to the Bonds.
“Net Proceeds,” when used with reference to the Bonds, means the face amount
of the Bonds, plus accrued interest and premium, if any, less original issue discount and
underwriter’s discount, if any.
“Notice of Sale” means the official notice of sale relating to the Bonds.
“Original Purchaser” means the first purchaser of the Bonds from the City.
“Outstanding,” when used as of any particular time with reference to Bonds,
means all Bonds except:
(a) Bonds theretofore canceled by the Paying Agent or surrendered to the Paying
Agent for cancellation;
(b) Bonds paid or deemed to have been paid within the meaning of Section 9.02
hereof; and
(c) Bonds in lieu of or in substitution for which other Bonds shall have been
authorized, executed, issued and delivered by the City pursuant to the Resolution.
“Owner” or “Bondowner” mean any person who shall be the registered owner of
any Outstanding Bond.
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“Participating Underwriter” shall have the meaning ascribed thereto in the
Continuing Disclosure Certificate.
“Paying Agent” means The Bank of New York Mellon Trust Company, N.A., as
paying agent, registrar and authenticating agent for the Bonds, its successors and
assigns, and any other corporation or association which may at any time be substituted
in its place, as provided in Section 6.01 hereof.
“Paying Agent/Bond Registrar/Costs of Issuance Agreement” means the
agreement of that name, dated the Closing Date, by and between the City and the
Paying Agent.
“Principal Office” means the principal corporate trust office of the Paying Agent in
Dallas, Texas.
“Regulations” means temporary and permanent regulations promulgated under
the Code.
“Resolution” means this Resolution.
“Securities Depositories” means The Depository Trust Company, 55 Water
Street, 50th Floor, New York, NY 10041 Attention: Call Notification Department; or to
such other addresses and/or such other registered securities depositories holding
substantial amounts of obligations of types similar to the Bonds.
“Supplemental Resolution” means any resolution supplemental to or amendatory
of this Resolution, adopted by the City in accordance with Article VIII hereof.
“Term Bonds” means Bonds for which mandatory redemption dates have been
established pursuant to the Notice of Sale.
“Written Request of the City” means an instrument in writing signed by any City
Representative, or by any other officer of the City duly authorized by the City.
Section 1.02. Authority for this Resolution. This Resolution is entered into
pursuant to the provisions of the Act.
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ARTICLE II
THE BONDS
Section 2.01. Authorization. Bonds in the aggregate principal amount of not to
exceed nine million dollars ($9,000,000) are hereby authorized to be issued by the City
under and subject to the terms of the Act and this Resolution. The amount of Bonds
shall be determined on the date of sale thereof in accordance with the Notice of Sale.
This Resolution constitutes a continuing agreement with the Owners of all of the Bonds
issued or to be issued hereunder and then Outstanding to secure the full and final
payment of principal of and premiums, if any, and the interest on all Bonds which may
from time to time be executed and delivered hereunder, subject to the covenants,
agreements, provisions and conditions herein contained. The Bonds shall be
designated the “City of Alameda (Alameda County, California) 2013 General Obligation
Refunding Bonds.”
Section 2.02. Terms of Bonds.
(a) Form; Numbering. The Bonds shall be issued as fully registered Bonds,
without coupons, in the denomination of $5,000 each or any integral multiple thereof,
but in an amount not to exceed the aggregate principal amount of Bonds maturing in the
year of maturity of the Bond for which the denomination is specified. Bonds shall be
lettered and numbered as the Paying Agent shall prescribe.
(b) Date of Bonds. The Bonds shall be dated as of the Closing Date.
(c) CUSIP Identification Numbers. “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. In addition, failure on the part of the City to use such CUSIP numbers in any
notice to Owners of the Bonds shall not constitute an Event of Default or any violation of
the City’s contract with such Owners and shall not impair the effectiveness of any such
notice.
(d) Maturities; Interest. The Bonds shall mature (or, alternatively, be subject to
mandatory sinking fund redemption as hereinafter provided) and become payable on
August 1, 2014, through August 1, 2033, in the amounts set forth in, and subject to the
alteration thereof permitted by, the Notice of Sale. The Bonds shall bear interest at such
rate or rates as shall be determined upon the sale thereof, payable semi-annually on
each February 1 and August 1 (the “Interest Payment Dates”), commencing February 1,
2014.
Each Bond shall bear interest from the Interest Payment Date next preceding the
date of registration and authentication thereof unless (i) it is registered and
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authenticated as of an Interest Payment Date, in which event it shall bear interest from
such date, or (ii) it is registered and authenticated prior to an Interest Payment Date and
after the close of business on the fifteenth day of the month preceding such Interest
Payment Date, in which event it shall bear interest from such Interest Payment Date, or
(iii) it is registered and authenticated prior to January 15, 2014, in which event it shall
bear interest from the date described in paragraph (b) of this Section 2.02; provided,
however, that if at the time of authentication of a Bond, interest is in default thereon,
such Bond shall bear interest from the Interest Payment Date to which interest has
previously been paid or made available for payment thereon.
Interest on the Bonds shall be calculated on the basis of a 360-day year
comprised of twelve 30-day months.
(e) Payment. Interest on the Bonds (including the final interest payment upon
maturity or earlier redemption) is payable by check of the Paying Agent mailed via first-
class mail to the Owner thereof at such Owner’s address as it appears on the Bond
Register at the close of business on the fifteenth (15th) day of the month preceding the
Interest Payment Date (the “Record Date”), or at such other address as the Owner may
have filed with the Paying Agent for that purpose; provided however, that payment of
interest may be by wire transfer in immediately available funds to an account in the
United States of America to any Owner of Bonds in the aggregate principal amount of
$1,000,000 or more who shall furnish written wire instructions to the Paying Agent at
least five (5) days before the applicable Record Date. Principal of the Bonds is payable
in lawful money of the United States of America at the Principal Office of the Paying
Agent.
Section 2.03. Redemption of Bonds.
(a) Optional Redemption. The Bonds maturing on or before August 1, ____, are
non-callable. The Bonds maturing on August 1, ____, or any time thereafter, are
callable for redemption prior to their stated maturity date at the option of the City, as a
whole, or in part on or after August 1, ____ (in such maturities as are designated by the
City, or, if the City fails to designate such maturities, on a proportional basis), and may
be redeemed prior to the maturity thereof by payment of all principal, plus accrued
interest to date of redemption, without premium, payable from any source lawfully
available therefore.
The City shall be required to give the Paying Agent written notice of its intention
to redeem Bonds under this subsection (a).
(b) Mandatory Sinking Fund Redemption. In the event and to the extent specified
in the Notice of Sale, any maturity of Bonds may be designated as “Term Bonds” and
shall be subject to mandatory sinking fund redemption. If some but not all of such Term
Bonds have been redeemed pursuant to the preceding subsection (a) of this Section
2.03, the aggregate principal amount of such Term Bonds to be redeemed in each year
pursuant to this subsection (b) shall be reduced on a pro rata basis in integral multiples
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of $5,000, as shall be designated pursuant to written notice filed by the City with the
Paying Agent.
(c) Notice of Redemption. The Paying Agent on behalf and at the expense of the
City shall mail (by first class mail) notice of any redemption to: (i) the respective Owners
of any Bonds designated for redemption, at least thirty (30) but not more than sixty (60)
days prior to the redemption date, at their respective addresses appearing on the Bond
Register, and (ii) the Securities Depositories and to one or more Information Services,
at least thirty (30) but not more than sixty (60) days prior to the redemption; provided,
however, that neither failure to receive any such notice so mailed nor any defect therein
shall affect the validity of the proceedings for the redemption of such Bonds or the
cessation of the accrual of interest thereon. Such notice shall state the date of the
notice, the redemption date, the redemption place and the redemption price and shall
designate the CUSIP numbers, the bond numbers and the maturity or maturities (in the
event of redemption of all of the Bonds of such maturity or maturities in whole) of the
Bonds to be redeemed, and shall require that such Bonds be then surrendered at the
Office of the Paying Agent for redemption at the redemption price, giving notice also
that further interest on such Bonds will not accrue from and after the redemption date.
(d) Selection of Bonds for Redemption. Whenever provision is made for the
redemption of Bonds of more than one maturity, the Bonds to be redeemed shall be
selected by the City evidenced by a Written Request of the City filed with the Paying
Agent or, absent such selection by the City, on a pro rata basis among the maturities
subject to redemption; and in each case, the Paying Agent shall select the Bonds to be
redeemed within any maturity by lot in any manner which the Paying Agent in its sole
discretion shall deem appropriate and fair. For purposes of such selection, all Bonds
shall be deemed to be comprised of separate $5,000 portions and such portions shall
be treated as separate Bonds which may be separately redeemed.
(e) Partial Redemption of Bonds. In the event only a portion of any Bond is called
for redemption, then upon surrender of such Bond the City shall execute and the Paying
Agent shall authenticate and deliver to the Owner thereof, at the expense of the City, a
new Bond or Bonds of the same maturity date, of authorized denominations in
aggregate principal amount equal to the unredeemed portion of the Bond to be
redeemed.
(f) Effect of Redemption. From and after the date fixed for redemption, if funds
available for the payment of the principal of and interest (and premium, if any) on the
Bonds so called for redemption shall have been duly provided, 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 from and
after the redemption date specified in such notice. All Bonds redeemed pursuant to this
Section 2.03 shall be canceled and shall be destroyed by the Paying Agent.
Section 2.04. Form of Bonds. The Bonds, the form of the Paying Agent’s
certificate of authentication and registration and the form of assignment to appear
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thereon shall be substantially in the forms, respectively, with necessary or appropriate
variations, omissions and insertions, as permitted or required by this Resolution, as are
set forth in Exhibit A attached hereto.
Section 2.05. Execution of Bonds. The Bonds shall be executed on behalf of the
City by the facsimile signatures of the Mayor, the City Manager, the Assistant City
Manager or the Finance Director and the City Clerk who are in office on the date of
adoption of this Resolution or at any time thereafter. If any officer whose signature
appears on any Bond ceases to be such officer before delivery of the Bonds to the
purchaser, such signature shall nevertheless be as effective as if the officer had
remained in office until the delivery of the Bonds to the purchaser. Any Bond may be
signed and attested on behalf of the City by such persons as at the actual date of the
execution of such Bond shall be the proper officers of the City although at the nominal
date of such Bond any such person shall not have been such officer of the City.
Only such Bonds as shall bear thereon a certificate of authentication and
registration in the form set forth in Exhibit A attached hereto, executed and dated by the
Paying Agent, shall be valid or obligatory for any purpose or entitled to the benefits of
this Resolution, and such certificate of the Paying Agent shall be conclusive evidence
that the Bonds so registered have been duly authenticated, registered and delivered
hereunder and are entitled to the benefits of this Resolution.
Section 2.06. Transfer of Bonds. Any Bond may, in accordance with its terms, be
transferred, upon the books required to be kept pursuant to the provisions of Section
2.08 hereof, by the person in whose name it is registered, in person or by his duly
authorized attorney, upon surrender of such Bond for cancellation at the Principal Office
at the Paying Agent, accompanied by delivery of a written instrument of transfer in a
form approved by the Paying Agent, duly executed. The Paying Agent shall require the
payment by the Owner requesting such transfer of any tax or other governmental
charge required to be paid with respect to such transfer.
Whenever any Bond or Bonds shall be surrendered for transfer, the City shall
execute and the Paying Agent shall authenticate and deliver a new Bond or Bonds, for
like aggregate principal amount.
No transfers of Bonds shall be required to be made (a) fifteen days prior to the
date established by the Paying Agent for selection of Bonds for redemption or (b) with
respect to a Bond after such Bond has been selected for redemption.
Section 2.07. Exchange of Bonds. Bonds may be exchanged at the Principal
Office of the Paying Agent for a like aggregate principal amount of Bonds of authorized
denominations and of the same maturity. The Paying Agent shall require the payment
by the Owner requesting such exchange of any tax or other governmental charge
required to be paid with respect to such exchange.
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No exchanges of Bonds shall be required to be made (a) fifteen days prior to the
date established by the Paying Agent for selection of Bonds for redemption or (b) with
respect to a Bond after such Bond has been selected for redemption.
Section 2.08. Bond Register. The Paying Agent shall keep or cause to be kept
sufficient books for the registration and transfer of the Bonds, which shall at all times be
open to inspection by the City upon reasonable notice; and, upon presentation for such
purpose, the Paying Agent shall, under such reasonable regulations as it may prescribe,
register or transfer or cause to be registered or transferred, on said books, Bonds as
herein before provided.
Section 2.09. Temporary Bonds. The Bonds may be initially issued 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 City, 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 City
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 Paying Agent and the Paying Agent
shall 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 pursuant to this Resolution as
definitive Bonds executed and delivered hereunder.
Section 2.10. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond shall
become mutilated, the City, at the expense of the Owner of said Bond, shall execute,
and the Paying 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 Paying Agent of the Bond so mutilated. Every mutilated
Bond so surrendered to the Paying Agent shall be canceled by it and delivered to, or
upon the order of, the City. If any Bond shall be lost, destroyed or stolen, evidence of
such loss, destruction or theft may be submitted to the City and, if such evidence be
satisfactory to the City and indemnity satisfactory to it shall be given, the City, at the
expense of the Owner, shall execute, and the Paying 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. The City may require payment
of a sum not exceeding the actual cost of preparing each new Bond issued under this
Section and of the expenses which may be incurred by the City and the Paying Agent in
connection therewith. Any Bond issued under the provisions of this Section 2.10 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 so alleged to be
lost, destroyed or stolen be at any time enforceable by anyone, and shall be equally and
proportionately entitled to the benefits of this Resolution with all other Bonds issued
pursuant to this Resolution.
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Section 2.11. Book Entry System. Except as provided below, the owner of all of
the Bonds shall be The Depository Trust Company, New York, New York (“DTC”), and
the Bonds shall be registered in the name of Cede & Co., as nominee for DTC. The
Bonds shall be initially executed and delivered in the form of a single fully registered
Bond for each maturity date of the Bonds in the full aggregate principal amount of the
Bonds maturing on such date. The Paying Agent and the City may treat DTC (or its
nominee) as the sole and exclusive owner of the Bonds registered in its name for all
purposes of this Resolution, and neither the Paying Agent nor the City shall be affected
by any notice to the contrary. The Paying Agent and the City shall not have any
responsibility or obligation to any participant of DTC (a “Participant”), any person
claiming a beneficial ownership interest in the Bonds under or through DTC or a
Participant, or any other person which is not shown on the register of the City as being
an owner, with respect to the accuracy of any records maintained by DTC or any
Participant or the payment by DTC or any Participant of any amount in respect of the
principal or interest with respect to the Bonds. The Paying Agent shall cause to be paid
all principal and interest with respect to the Bonds received from the City only to DTC,
and all such payments shall be valid and effective to fully satisfy and discharge the
City’s obligations with respect to the principal and interest with respect to the Bonds to
the extent of the sum or sums so paid. Except under the conditions noted below, no
person other than DTC shall receive a Bond. Upon delivery by DTC to the City of written
notice to the effect that DTC has determined to substitute a new nominee in place of
Cede & Co., the term “Cede & Co.” in this Resolution shall refer to such new nominee of
DTC.
If the City determines that it is in the best interest of the beneficial owners that
they be able to obtain Bonds and delivers a written certificate to DTC to that effect, DTC
shall notify the Participants of the availability through DTC of Bonds. In such event, the
City shall issue, transfer and exchange Bonds as requested by DTC and any other
owners in appropriate amounts. DTC may determine to discontinue providing its
services with respect to the Bonds at any time by giving notice to the City and
discharging its responsibilities with respect thereto under applicable law. Under such
circumstances (if there is no successor securities depository), the City shall be obligated
to deliver Bonds as described in this Resolution. Whenever DTC requests the City to do
so, the City will cooperate with DTC in taking appropriate action after reasonable notice
to (a) make available one or more separate Bonds evidencing the Bonds to any DTC
Participant having Bonds credited to its DTC account or (b) arrange for another
securities depository to maintain custody of certificates evidencing the Bonds.
Notwithstanding any other provision of this Resolution to the contrary, so long as
any Bond is registered in the name of Cede & Co., as nominee of DTC, all payments
with respect to the principal and interest with respect to such Bond and all notices with
respect to such Bond shall be made and given, respectively, to DTC as provided as in
the representation letter delivered on the date of issuance of the Bonds.
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ARTICLE III
ISSUE OF BONDS; APPLICATION OF BOND PROCEEDS; SECURITY
FOR THE BONDS
Section 3.01. Issuance, Award and Delivery of Bonds. At any time after the
execution of this Resolution the City may issue and deliver Bonds in the aggregate
principal amount of not to exceed nine million dollars ($9,000,000).
The Mayor, the City Manager, the Assistant City Manager or the Finance Director
shall be, and are hereby, directed to cause the Bonds to be printed, signed and sealed,
and to be delivered to the Original Purchaser on receipt of the purchase price therefor
and upon performance of the conditions contained in the Notice of Sale.
The Paying Agent is hereby authorized to deliver the Bonds to the Original
Purchaser, upon receipt of a Written Request of the City.
Section 3.02. Application of Proceeds of Sale of Bonds. On the Closing Date, the
proceeds of sale of the Bonds shall be paid by the Original Purchaser to the Paying
Agent. The Paying Agent shall deposit or transfer all of such amounts as follows:
(a) The Paying Agent shall deposit in the Costs of Issuance Fund the proceeds of
the Bonds, required to pay the Costs of Issuance (as shall be designated by the City on
or prior to the Closing Date); and
(b) The Paying Agent, as paying agent for the 2003 Bonds, shall transfer the
remaining proceeds of the Bonds to the Escrow Bank for deposit in the Escrow Fund
and applied to the defeasance of the 2003 Bonds.
Section 3.03. Establishment of Costs of Issuance Fund. There is hereby created
the “City of Alameda (Alameda County, California) 2013 General Obligation Refunding
Bonds Costs of Issuance Fund” (the “Costs of Issuance Fund”), which shall be held and
maintained by the Paying Agent as a separate fund, distinct from all other funds thereof.
Amounts on deposit in the Costs of Issuance Fund shall be disbursed for the purpose of
paying all items of expense directly or indirectly reimbursable to the City relating to the
issuance, execution and delivery of the Bonds including, but not limited to, filing and
recording costs, settlement costs, printing costs, reproduction and binding costs, legal
fees and charges, fees and expenses of the Paying Agent, financial and other
professional consultant fees, costs of obtaining credit ratings, fees for execution,
transportation and safekeeping of the Bonds and charges and fees in connection with
the foregoing (“Costs of Issuance”). Payment of the Costs of Issuance shall be made
only upon the receipt by the Paying Agent of a written request of the City. Moneys on
deposit in the Costs of Issuance Fund shall be invested in money market mutual funds
which are rated by Standard & Poor’s Credit Ratings Services in one of its two highest
rating categories, including funds for which the Paying Agent, its affiliates or
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subsidiaries provide investment, advisory or other management or administrative
services. Interest and earnings derived from the investment of amounts on deposit in
the Costs of Issuance Fund shall be retained therein until the Costs of Issuance Fund is
closed. On the date three months after the Closing Date, all amounts remaining on
deposit in the Costs of Issuance Fund shall be withdrawn therefrom by the Paying
Agent and transferred to the City for deposit in the Debt Service Account and the Costs
of Issuance Fund shall be closed.
Section 3.04. Debt Service Account.
(a) The debt service account established by the City for the 2003 Bonds and
other outstanding general obligation bonds of the City and maintained by the Finance
Director as a separate account within the General Fund of the City, distinct from all
other funds of the City, known as the “General Obligation Bonds Debt Service Account,”
is hereby continued.
(b) All moneys in the Debt Service Account shall be used and withdrawn by the
Finance Director solely for the purpose of paying the principal of and interest on the
Bonds as the same shall become due and payable. On or before the last business day
preceding each Interest Payment Date, the Finance Director shall transfer to the Paying
Agent moneys on deposit in the Debt Service Account for application by the Paying
Agent on the next succeeding Interest Payment Date to the payment of principal of or
interest on the Bonds, or both.
Section 3.05. Security for the Bonds. The Bonds shall constitute general
obligations of the City and the City has the power, is obligated and hereby covenants to
levy ad valorem taxes upon all property within the City subject to taxation by the City,
without limitation of rate or amount, for the payment of the Bonds and the interest
thereon, in accordance with section 43632 of the California Government Code. Amounts
received from the County representing ad valorem taxes collected by the County on
behalf of the City shall, as received, be deposited in the Debt Service Account.
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ARTICLE IV
SALE OF THE BONDS, APPROVAL OF PAYING AGENT AGREEMENT,
OFFICIAL STATEMENT
Section 4.01. Sale of the Bonds.
(a) Notice of Sale. The Notice of Sale, in the form attached hereto as Exhibit B
and by this reference incorporated herein, together with any additions thereto or
changes therein deemed necessary or advisable by the Mayor, the City Manager, the
Assistant City Manager or the Finance Director, or any designee thereof, is hereby
approved by the City Council.
(b) Notice of Intention to Sell Bonds. A notice of intention, in the form attached
hereto as Exhibit C and by this reference incorporated herein, together with any
additions thereto or changes therein deemed necessary or advisable by the Mayor, the
City Manager, the Assistant City Manager or the Finance Director, or any designee
thereof, is hereby approved by the City Council. The City Clerk is hereby authorized and
directed to cause to be published, once at least fifteen (15) days prior to the date to
receive bids, the Notice of Intention in The Bond Buyer, a financial publication
reasonably expected to be disseminated among prospective bidders for the Bonds.
(c) Terms and Conditions of Sale. The terms and conditions of the offering and
the sale of the Bonds shall be as specified in said Notice of Sale.
(d) Furnishing of Official Notice of Sale. The City Clerk and the Financial Advisor
are hereby authorized to cause to be furnished to prospective bidders a reasonable
number of copies of the Notice of Sale.
(e) Receipt of Bids. The Financial Advisor is hereby authorized and directed, on
behalf of the City Council, to receive the bids at the time and place specified in the
Notice of Sale, to examine said bids for compliance with the Notice of Sale and to verify
the bid with the lowest true interest cost as provided in the Notice of Sale. In the event
two or more bids setting forth identical true interest cost are received, any City
Representative may award the Bonds on a pro rata basis in such denominations as he
or she shall determine. Any City Representative may reject any and all bids and waive
any irregularity or informality in any bid. Any City Representative shall award the Bonds
or reject all bids not later than 26 hours after the expiration of the time prescribed for the
receipt of bids unless such time of award is waived by the successful bidder. The
present value savings to be realized by the City as a result of the issuance of the Bonds
shall not be less than 2% of the 2003 Bonds.
(f) Option for a Negotiated Sale. If, at any time, it is determined by any City
Representative, or the designee thereof, that the competitive sale of the Bonds is not in
the best interest of the City or, if at the time of the competitive sale of the Bonds, no bids
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are received or it is determined by any City Representative, or the designee thereof,
that all received bids are unsatisfactory, the City Council hereby authorizes the sale of
the Bonds to an underwriter identified by the Financial Advisor and approved by any
City Representative, or the designee thereof. In such event, the City Council hereby
authorizes the preparation of a bond purchase agreement between such underwriter
and the City, with such terms and conditions as shall be approved by any City
Representative, or the designee thereof. In such case, any City Representative, or the
designee thereof, is hereby authorized and directed to execute a bond purchase
agreement for and in the name and on behalf of the City; provided, however, that in
connection with such negotiated sale of the Bonds, the net underwriter’s discount,
excluding reimbursable expenses of the Underwriter, shall not exceed 2% of the
aggregate principal amount of Bonds issued, The present value savings to be realized
by the City as a result of the issuance of the Bonds shall not be less than 2% of the
2003 Bonds.
Section 4.02. Approval of Paying Agent/Bond Registrar/Costs of Issuance
Agreement. The Paying Agent/Bond Registrar/Costs of Issuance Agreement, in the
form attached hereto as Exhibit D, together with any additions thereto or changes
therein deemed necessary or advisable by the Mayor, the City Manager, the Assistant
City Manager or the Finance Director, or any designee thereof, is hereby approved by
the City Council. The Mayor, the City Manager, the Assistant City Manager or the
Finance Director or any designee thereof are hereby authorized and directed to execute
the Paying Agent/Bond Registrar/Costs of Issuance Agreement for and in the name and
on behalf of the City. The City Council hereby authorizes the delivery and performance
of the Paying Agent/Bond Registrar/Costs of Issuance Agreement.
Section 4.03. Approval of Escrow Agreement. The Escrow Agreement, in the
form attached hereto as Exhibit E, together with any additions thereto or changes
therein deemed necessary or advisable by the Mayor, the City Manager, the Assistant
City Manager or the Finance Director, or any designee thereof, is hereby approved by
the City Council. The Mayor, the City Manager, the Assistant City Manager or the
Finance Director or any designee thereof are hereby authorized and directed to execute
the Escrow Agreement for and in the name and on behalf of the City. The City Council
hereby authorizes the delivery and performance of the Escrow Agreement.
Section 4.04. Official Statement. The City Council hereby approves the
Preliminary Official Statement describing the financing, in the form on file with the City
Clerk, together with any changes therein or additions thereto deemed advisable by the
Mayor, the City Manager, the Assistant City Manager or the Finance Director, or any
designee thereof. The City Council authorizes and directs the Mayor, the City Manager,
the Assistant City Manager or the Finance Director, or any designee thereof, on behalf
of the City, to deem “final” pursuant to Rule 15c2-12 under the Securities Exchange Act
of 1934 (the “Rule”) the Preliminary Official Statement prior to its distribution to
prospective purchasers of the Bonds.
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The Financial Advisor, on behalf of the City, is authorized and directed to cause
the Preliminary Official Statement to be distributed to such persons as may be
interested in purchasing the Bonds therein offered for sale.
The Mayor, the City Manager, the Assistant City Manager or the Finance
Director, or any designee thereof, is authorized and directed to cause the Preliminary
Official Statement to be brought into the form of a final official statement (the “Final
Official Statement”) and to execute the Final Official Statement, dated as of the date of
the sale of the Bonds, and a statement that the facts contained in the Final Official
Statement, and any supplement or amendment thereto (which shall be deemed an
original part thereof for the purpose of such statement) were, at the time of sale of the
Bonds, true and correct in all material respects and that the Final Official Statement did
not, on the date of sale of the Bonds, and does not, as of the date of delivery of the
Bonds, contain any untrue statement of a material fact with respect to the City or omit to
state material facts with respect to the City required to be stated where necessary to
make any statement made therein not misleading in light of the circumstances under
which it was made. The Mayor, the City Manager, the Assistant City Manager or the
Finance Director, or any designee thereof, shall take such further actions prior to the
signing of the Final Official Statement as are deemed necessary or appropriate to verify
the accuracy thereof. The execution of the Final Official Statement, which shall include
such changes and additions thereto deemed advisable by the Mayor, the City Manager,
the Assistant City Manager or the Finance Director, or any designee thereof, and such
information permitted to be excluded from the Preliminary Official Statement pursuant to
the Rule, shall be conclusive evidence of the approval of the Final Official Statement by
the City.
The Final Official Statement, when prepared, is approved for distribution in
connection with the offering and sale of the Bonds.
Section 4.05. Official Action. All actions heretofore taken by the officers and
agents of the City with respect to the sale and issuance of the Bonds are hereby
approved, and the Mayor, the City Manager, the Finance Director, the City Clerk and
any and all other officers of the City are hereby authorized and directed for and in the
name and on behalf of the City, to do any and all things and take any and all actions
relating to the execution and delivery of any and all certificates, requisitions,
agreements 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.
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ARTICLE V
OTHER COVENANTS OF THE CITY
Section 5.01. Punctual Payment. The City will punctually pay, or cause to be
paid, the principal of and interest on the Bonds, in strict conformity with the terms of the
Bonds and of this Resolution, and it will faithfully observe and perform all of the
conditions, covenants and requirements of this Resolution and of the Bonds. Nothing
herein contained shall prevent the City from making advances of its own moneys,
howsoever derived, to any of the uses or purposes permitted by law.
Section 5.02. Extension of Time for Payment. In order to prevent any
accumulation of claims for interest after maturity, the City will not, directly or indirectly,
extend or consent to the extension of the time for the payment of any claim for interest
on any of the Bonds and will not, directly or indirectly, approve any such arrangement
by purchasing or funding said claims for interest or in any other manner. In case any
such claim for interest shall be extended or funded, whether or not with the consent of
the City, such claim for interest so extended or funded shall not be entitled, in case of
default hereunder, to the benefits of this Resolution, except subject to the prior payment
in full of the principal of all of the Bonds then Outstanding and of all claims for interest
which shall not have so extended or funded.
Section 5.03. Protection of Security and Rights of Bondowners. The City will
preserve and protect the security of the Bonds and the rights of the Bondowners, and
will warrant and defend their rights against all claims and demands of all persons. From
and after the sale and delivery of any of the Bonds by the City, the Bonds shall be
incontestable by the City.
Section 5.04. 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 of
the rights and benefits provided in this Resolution.
Section 5.05. Tax Covenants.
(a) Private Activity Bond Limitation. The City shall assure that the proceeds of the
Bonds are not so used as to cause the Bonds to satisfy the private business tests of
section 141(b) of the Code or the private loan financing test of section 141(c) of the
Code.
(b) Federal Guarantee Prohibition. The City shall not take any action or permit or
suffer any action to be taken if the result of the same would be to cause any of the
Bonds to be “federally guaranteed” within the meaning of section 149(b) of the Code.
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(c) Rebate Requirement. The City shall take any and all actions necessary to
assure compliance with section 148(f) of the Code, relating to the rebate of excess
investment earnings, if any, to the federal government, to the extent that such section is
applicable to the Bonds.
(d) No Arbitrage. The City shall not take, or permit or suffer to be taken by the
Paying Agent or otherwise, any action with respect to the proceeds of the Bonds which,
if such action had been reasonably expected to have been taken, or had been
deliberately and intentionally taken, on the date of issuance of the Bonds would have
caused the Bonds to be “arbitrage bonds” within the meaning of section 148 of the
Code.
(e) Maintenance of Tax-Exemption. The City shall take all actions necessary to
assure the exclusion of interest on the Bonds from the gross income of the Owners of
the Bonds to the same extent as such interest is permitted to be excluded from gross
income under the Code as in effect on the date of issuance of the Bonds.
Section 5.06. Acquisition, Disposition and Valuation of Investments.
(a) Except as otherwise provided in subsection (b) of this Section 5.06, the City
covenants that all investments of amounts deposited in any fund or account created by
or pursuant to this Resolution, or otherwise containing gross proceeds of the Bonds
(within the meaning of section 148 of the Code) shall be acquired, disposed of, and
valued (as of the date that valuation is required by this Resolution or the 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 Code shall be valued at their present
value (within the meaning of section 148 of the Code).
Section 5.07. 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, in the form attached hereto as Exhibit F, together with any additions thereto
or changes therein deemed necessary or advisable by the Mayor, the City Manager, the
Assistant City Manager or the Finance Director, or any designee thereof.
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;
however, any holder or beneficial owner of the Bonds may take such actions as may be
necessary and appropriate to compel performance, including seeking mandate of
specific performance by court order.
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ARTICLE VI
THE PAYING AGENT
Section 6.01. Appointment of Paying Agent. The Bank of New York Mellon Trust
Company, N.A. is hereby appointed Paying Agent for the Bonds. The Paying Agent
undertakes to perform such duties, and only such duties, as are specifically set forth in
this Resolution, and, even during the continuance of an Event of Default, no implied
covenants or obligations shall be read into this Resolution against the Paying Agent.
The Paying Agent shall signify its acceptance of the duties and obligations imposed
upon it by this Resolution by executing and delivering to the City a certificate to that
effect.
The City may remove the Paying Agent initially appointed, and any successor
thereto, and may appoint a successor or successors thereto, but any such successor
shall be a bank or trust company doing business in the State of California, having a
combined capital (exclusive of borrowed capital) and surplus of at least fifty million
dollars ($50,000,000), and subject to supervision or examination by federal or state
authority. If such bank or trust company publishes a report of condition at least annually,
pursuant to law or to the requirements of any supervising or examining authority above
referred to, then for the purposes of this Section 6.01 the combined capital and surplus
of such bank or trust company shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
The Paying Agent may at any time resign by giving written notice to the City and
the Bondowners of such resignation. Upon receiving notice of such resignation, the City
shall promptly appoint a successor Paying Agent by an instrument in writing. Any
resignation or removal of the Paying Agent and appointment of a successor Paying
Agent shall become effective upon acceptance of appointment by the successor Paying
Agent.
Section 6.02. Paying Agent May Hold Bonds. The Paying Agent may become
the owner of any of the Bonds in its own or any other capacity with the same rights it
would have if it were not Paying Agent.
Section 6.03. Liability of Agents. The recitals of facts, covenants and agreements
herein and in the Bonds contained shall be taken as statements, covenants and
agreements of the City, and the Paying Agent assumes no responsibility for the
correctness of the same, nor makes any representations as to the validity or sufficiency
of this Resolution or of the Bonds, nor shall incur any responsibility in respect thereof,
other than as set forth in this Resolution. The Paying Agent shall not be liable in
connection with the performance of its duties hereunder, except for its own negligence
or willful default.
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In the absence of bad faith, the Paying Agent 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 Paying Agent and conforming to the
requirements of this Resolution; but in the case of any such certificates or opinions by
which any provision hereof are specifically required to be furnished to the Paying Agent,
the Paying Agent shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Resolution.
The Paying Agent shall not be liable for any error of judgment made in good faith
by a responsible officer unless it shall be proved that the Paying Agent was negligent in
ascertaining the pertinent facts.
No provision of this Resolution shall require the Paying Agent to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of its
duties 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.
The Paying Agent may execute any of the powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the Paying
Agent shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
Section 6.04. Notice to Agents. The Paying Agent 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 Paying Agent may consult with counsel, who may be of counsel to the City,
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.
Whenever in the administration of its duties under this Resolution the Paying
Agent 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 bad faith on
the part of the Paying Agent, be deemed to be conclusively proved and established by a
certificate of the City, and such certificate shall be full warrant to the Paying Agent for
any action taken or suffered under the provisions of this Resolution upon the faith
thereof, but in its discretion the Paying Agent may, in lieu thereof, accept other evidence
of such matter or may require such additional evidence as to it may seem reasonable.
Section 6.05. Compensation, Indemnification. The City shall pay to the Paying
Agent from time to time reasonable compensation for all services rendered under this
Resolution, and also all reasonable expenses, charges, counsel fees and other
disbursements, including those of their attorneys, agents and employees, incurred in
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and about the performance of their powers and duties under this Resolution. Any City
Representative is hereby authorized to execute an agreement or agreements with the
Paying Agent in connection with such fees and expenses. The City further agrees to
indemnify and hold the Paying Agent harmless against any liabilities which it may incur
in the exercise and performance of its powers and duties hereunder which are not due
to its negligence or bad faith.
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ARTICLE VII
REMEDIES OF BONDOWNERS
Section 7.01. Events of Default. The following events shall be Events Of Default
hereunder:
(a) if default shall be made in the due and punctual payment of the principal of or
redemption premium, if any, on any Bond when and as the same shall become due and
payable, whether at maturity as therein expressed, by declaration or otherwise;
(b) if default shall be made in the due and punctual payment of any installment of
interest on any Bond when and as such interest installment shall become due and
payable;
(c) if default shall be made by the City in the observance of any of the covenants,
agreements or conditions on its part in this Resolution or in the Bonds contained, and
such default shall have continued for a period of thirty (30) days after written notice
thereof to the City; or
(d) if the City shall file a petition seeking reorganization or arrangement under the
federal bankruptcy laws or any other applicable law of the United States of America, or
if a court of competent jurisdiction shall approve a petition, seeking reorganization of the
City under the federal bankruptcy laws or any other applicable law of the United States
of America, or if, under the provisions of any other law for the relief or aid of debtors,
any court of competent jurisdiction shall assume custody or control of the City or of the
whole or any substantial part of its property.
Section 7.02. Remedies of Bondowners. Any Bondowner shall have the right, for
the equal benefit and protection of all Bondowners similarly situated:
(a) by mandamus, suit, action or proceeding, to compel the City and its
members, officers, agents or employees to perform each and every term, provision and
covenant contained in this Resolution and in the Bonds, and to require the carrying out
of any or all such covenants and agreements of the City and the fulfillment of all duties
imposed upon it;
(b) by suit, action or proceeding in equity, to enjoin any acts or things which are
unlawful, or the violation of any of the Bondowners’ rights; or
(c) upon the happening of any Event of Default, by suit, action or proceeding in
any court of competent jurisdiction, to require the City and its members and employees
to account as if it and they were the trustees of an express trust.
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Section 7.03. Non-Waiver. Nothing in this Article VII or in any other provision of
this Resolution, or in the Bonds, shall affect or impair the obligation of the City, which is
absolute and unconditional, to pay the principal of and interest on the Bonds to the
respective Owners of the Bonds at the respective dates of maturity, as herein provided,
or affect or impair the right of action, which is also absolute and unconditional, of such
Owners to institute suit to enforce such payment by virtue of the contract embodied in
the Bonds.
A waiver of any default by any Bondowner shall not affect any subsequent
default or impair any rights or remedies on the subsequent default. No delay or
omission of any Owner of any of the Bonds to exercise any right or power accruing
upon any default shall impair any such right or power or shall be construed to be a
waiver of any such default or an acquiescence therein, and every power and remedy
conferred upon the Bondowners by this Article VI may be enforced and exercised from
time to time and as often as shall be deemed expedient by the Owners of the Bonds.
If a suit, action or proceeding to enforce any right or exercise any remedy be
abandoned or determined adversely to the Bondowners, the City and the Bondowners
shall be restored to their former positions, rights and remedies as if such suit, action or
proceeding had not been brought or taken.
Section 7.04. Remedies Not Exclusive. No remedy herein conferred upon the
Owners of Bonds shall be exclusive of any other remedy and that each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or thereafter conferred on the Bondowners.
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ARTICLE VIII
SUPPLEMENTAL RESOLUTIONS
Section 8.01. Supplemental Resolutions Effective Without Consent of the
Owners. For any one or more of the following purposes and at any time or from time to
time, a Supplemental Resolution of the City may be adopted, which, without the
requirement of consent of the Owners of the Bonds, shall be fully effective in
accordance with its terms:
(a) to add to the covenants and agreements of the City in this Resolution, other
covenants and agreements to be observed by the City which are not contrary to or
inconsistent with this Resolution as theretofore in effect;
(b) to add to the limitations and restrictions in this Resolution, other limitations
and restrictions to be observed by the City which are not contrary to or inconsistent with
this Resolution as theretofore in effect;
(c) to confirm, as further assurance, any pledge under, and the subjection to any
lien or pledge created or to be created by, this Resolution, of any moneys, securities or
funds, or to establish any additional funds or accounts to be held under this Resolution;
(d) to cure any ambiguity, supply and omission, or cure or correct any defect or
inconsistent provision in this Resolution; or
(e) 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 8.02. Supplemental Resolutions Effective With Consent to the Owners.
Any modification or amendment of this Resolution and of the rights and obligations of
the City and of the Owners of the Bonds, in any particular, may be made by a
Supplemental Resolution, with the written consent of the Owners of at least two-thirds in
aggregate principal amount of the Bonds Outstanding at the time such consent is given.
No such modification or amendment shall permit a change in the terms of maturity of
the principal of any Outstanding Bonds or of any interest payable thereon or a reduction
in the principal amount thereof or in the rate of interest thereon, or shall reduce the
percentage of Bonds the consent of the Owners of which is required to effect any such
modification or amendment, or shall change any of the provisions in Section 7.01 hereof
relating to Events of Default, or shall reduce the amount of moneys pledged for the
repayment of the Bonds without the consent of all the Owners of such Bonds, or shall
change or modify any of the rights or obligations of any Paying Agent without its written
assent thereto.
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ARTICLE IX
MISCELLANEOUS
Section 9.01. Benefits of Resolution Limited to Parties. Nothing in this
Resolution, expressed or implied, is intended to give to any person other than the City,
the Paying Agent and the Owners of the Bonds, any right, remedy, claim under or by
reason of this Resolution. Any covenants, stipulations, promises or agreements in this
Resolution contained by and on behalf of the City shall be for the sole and exclusive
benefit of the Owners of the Bonds.
Section 9.02. Defeasance.
(a) Discharge of Resolution. Bonds may be paid by the City in any of the
following ways, provided that the City also pays or causes to be paid any other sums
payable hereunder by the City:
(i) by paying or causing to be paid the principal or redemption price of and
interest on Bonds Outstanding, as and when the same become due and payable;
(ii) by depositing, in trust, at or before maturity, money or securities in the
necessary amount (as provided in Section 9.02(c)) to pay or redeem Bonds
Outstanding; or
(iii) by delivering to the Paying Agent, for cancellation by it, Bonds
Outstanding.
If the City shall pay all Bonds Outstanding and shall also pay or cause to be paid
all other sums payable hereunder by the City, then and in that case, at the election of
the City (evidenced by a certificate of any City Representative, filed with the Paying
Agent, signifying the intention of the City to discharge all such indebtedness and this
Resolution), and notwithstanding that any Bonds shall not have been surrendered for
payment, this Resolution and other assets made under this Resolution and all
covenants, agreements and other obligations of the City under this Resolution shall
cease, terminate, become void and be completely discharged and satisfied, except only
as provided in Section 9.02(b). In such event, upon request of the City, the Paying
Agent shall cause an accounting for such period or periods as may be requested by the
City to be prepared and filed with the City and shall execute and deliver to the City all
such instruments as may be necessary to evidence such discharge and satisfaction,
and the Paying Agent shall pay over, transfer, assign or deliver to the City all moneys or
securities or other property held by it pursuant to this Resolution which are not required
for the payment or redemption of Bonds not theretofore surrendered for such payment
or redemption.
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(b) Discharge of Liability on Bonds. Upon the deposit, in trust, at or before
maturity, of money or securities in the necessary amount (as provided in Section 9.02(c)
to pay or redeem any Outstanding Bond (whether upon or prior to its maturity or the
redemption date of such Bond), provided that, if such Bond is to be redeemed prior to
maturity, notice of such redemption shall have been given as in Section 2.03 provided
or provision satisfactory to the Paying Agent shall have been made for the giving of
such notice, then all liability of the City in respect of such Bond shall cease and be
completely discharged, except only that thereafter the Owner thereof shall be entitled
only to payment of the principal of and interest on such Bond by the City, and the City
shall remain liable for such payment, but only out of such money or securities deposited
with the Paying Agent as aforesaid for such payment, provided further, however, that
the provisions of Section 9.02(d) shall apply in all events.
The City may at any time surrender to the Paying Agent for cancellation by it any
Bonds previously issued and delivered, which the City may have acquired in any
manner whatsoever, and such Bonds, upon such surrender and cancellation, shall be
deemed to be paid and retired.
(c) Deposit of Money or Securities with Paying Agent. Whenever in this
Resolution it is provided or permitted that there be deposited with or held in trust by the
Paying Agent money or securities in the necessary amount to pay or redeem any
Bonds, the money or securities so to be deposited or held may include money or
securities held by the Paying Agent in the funds and accounts established pursuant to
this Resolution and shall be:
(i) lawful money of the United States of America in an amount equal to the
principal amount of such Bonds and all unpaid interest thereon to maturity,
except that, in the case of Bonds which are to be redeemed prior to maturity and
in respect of which notice of such redemption shall have been given as in Section
2.03 provided or provision satisfactory to the Paying Agent shall have been made
for the giving of such notice, the amount to be deposited or held shall be the
principal amount or redemption price of such Bonds and all unpaid interest
thereon to the redemption date; or
(ii) Federal Securities (not callable by the issuer thereof prior to maturity)
the principal of and interest on which when due, in the opinion of a certified public
accountant delivered to the City, will provide money sufficient to pay the principal
or redemption price of and all unpaid interest to maturity, or to the redemption
date, as the case may be, on the Bonds to be paid or redeemed, as such
principal or redemption price and interest become due, provided that, in the case
of Bonds which are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as provided in Section 2.03 or provision
satisfactory to the Paying Agent shall have been made for the giving of such
notice;
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provided, in each case, that the Paying Agent shall have been irrevocably instructed (by
the terms of this Resolution or by request of the City) to apply such money to the
payment of such principal or redemption price and interest with respect to such Bonds.
(d) Payment of Bonds After Discharge of Resolution. Notwithstanding any
provisions of this Resolution, any moneys held by the Paying Agent in trust for the
payment of the principal or redemption price of, or interest on, any Bonds and remaining
unclaimed after the payment is due (whether at maturity or upon call for redemption as
provided in this Resolution), if such moneys were so held at such date, or two years
after the date of deposit of such moneys if deposited after said date when all of the
Bonds became due and payable, shall be repaid to the City free from the trusts created
by this Resolution, and all liability of the Paying Agent with respect to such moneys shall
thereupon cease; provided, however, that before the repayment of such moneys to the
City as aforesaid, the Paying Agent may (at the cost of the City) first mail to the Owners
of all Bonds which have not been paid at the addresses shown on the Bond Register a
notice in such form as may be deemed appropriate by the Paying Agent, with respect to
the Bonds so payable and not presented and with respect to the provisions relating to
the repayment to the City of the moneys held for the payment thereof.
Section 9.03. Execution of Documents and Proof of Ownership by Bondowners.
Any request, declaration or other instrument which this Resolution may require or permit
to be executed by Bondowners may be in one or more instruments of similar tenor, and
shall be executed by Bondowners in person or by their attorneys appointed in writing.
Except as otherwise herein expressly provided, the fact and date of the execution
by any Bondowner 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.
Except as otherwise herein expressly provided, the ownership of registered
Bonds and the amount, maturity, number and date of holding the same shall be proved
by the registry books.
Any request, declaration or other instrument or writing of the 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 Paying Agent in good faith and in accordance therewith.
Section 9.04. Waiver of Personal Liability. No boardmember, officer, agent or
employee of the City shall be individually or personally liable for the payment of the
principal of or interest on the Bonds; but nothing herein contained shall relieve any such
boardmember, officer, agent or employee from the performance of any official duly
provided by law.
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Section 9.05. Destruction of Canceled Bonds. Whenever in this Resolution
provision is made for the surrender to the City of any Bonds which have been paid or
canceled pursuant to the provisions of this Resolution, a certificate of destruction duly
executed by the Paying Agent shall be deemed to be the equivalent of the surrender of
such canceled Bonds and the City shall be entitled to rely upon any statement of fact
contained in any certificate with respect to the destruction of any such Bonds therein
referred to.
Section 9.06. 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. If, by reason of the judgment of any court, the City is rendered
unable to perform its duties hereunder, all such duties and all of the rights and powers
of the City hereunder shall be assumed by and vest in the Paying Agent in trust for the
benefit of the Bondowners.
Section 9.07. Effective Date of Resolution. This Resolution shall take effect from
and after the date of its passage and adoption.
Exhibit A
Page 1
EXHIBIT A
FORM OF BOND
United States of America
State of California
Alameda County
CITY OF ALAMEDA
2013 General Obligation Refunding Bond
INTEREST RATE: MATURITY DATE: ISSUE DATE: CUSIP:
_______% August 1, ____ October __, 2013 _________
REGISTERED OWNER: CEDE & CO.
PRINCIPAL SUM: ________________________________________ DOLLARS
The CITY OF ALAMEDA, a municipal corporation and chartered city duly organized and existing
under and by virtue of the Constitution and laws of the State of California (the “City”), for value received
hereby promises to pay to the Registered Owner stated above, or registered assigns (the “Owner”), on
the Maturity Date stated above (subject to any right of prior redemption hereinafter provided for), the
Principal Sum stated above, in lawful money of the United States of America, and to pay interest thereon
in like lawful money from the interest payment date next preceding the date of authentication of this Bond
(unless (i) this Bond is authenticated on an interest payment date, in which event it shall bear interest
from such date of authentication, or (ii) this Bond is authenticated prior to an interest payment date and
after the close of business on the fifteenth day of the month preceding such interest payment date, in
which event it shall bear interest from such interest payment date, or (iii) this Bond is authenticated on or
prior to January 15, 2014, in which event it shall bear interest from the Issue Date stated above; provided
however, that if at the time of authentication of this Bond, interest is in default on this Bond, this Bond
shall bear interest from the interest payment date to which interest has previously been paid or made
available for payment on this Bond) until payment of such Principal Sum in full, at the rate per annum
stated above, payable on February 1 and August 1 in each year, commencing February 1, 2014,
calculated on the basis of 360-day year comprised of twelve 30-day months. Principal hereof and
premium, if any, upon early redemption hereof are payable at the corporate trust office of The Bank of
New York Mellon Trust Company, N.A. (the “Paying Agent”), in Dallas, Texas. Interest hereon (including
the final interest payment upon maturity or earlier redemption) is payable by check or draft of the Paying
Agent mailed by first-class mail to the Owner at the Owner’s address as it appears on the Bond register
maintained by the Paying Agent as of the close of business on the fifteenth day of the month next
preceding such interest payment date (the “Record Date”), or at such other address as the Owner may
have filed with the Paying Agent for that purpose; provided however, that payment of interest may be by
wire transfer in immediately available funds to an account in the United States of America to any Owner
of Bonds in the aggregate principal amount of $1,000,000 or more who shall furnish written wire
instructions to the Paying Agent at least five (5) days before the applicable Record Date.
This Bond is one of a duly authorized issue of bonds of the City designated as “City of Alameda
(Alameda County, California) 2013 General Obligation Refunding Bonds” (the “Bonds”), in an aggregate
principal amount of ___________ dollars ($_________), all of like tenor and date (except for such
variation, if any, as may be required to designate varying numbers, maturities, interest rates or
redemption and other provisions) and all issued pursuant to the provisions of Chapter 4 (commencing
with section 53550) of Article 9 of Chapter 3 of Division 2 of Title 5 of the California Government Code
(the “Act”), and pursuant to Resolution No. ____ of the City adopted September 17, 2013 (the
Exhibit A
Page 2
“Resolution”), authorizing the issuance of the Bonds. Reference is hereby made to the Resolution (copies
of which are on file at the office of the City Clerk) and the Act for a description of the terms on which the
Bonds are issued and the rights thereunder of the owners of the Bonds and the rights, duties and
immunities of the Paying Agent and the rights and obligations of the City thereunder, to all of the
provisions of which Resolution the Owner of this Bond, by acceptance hereof, assents and agrees.
The Bonds have been issued by the City to refund, on a current basis, all outstanding City of
Alameda General Obligation Bonds, Series 2003.
This Bond and the interest hereon and on all other Bonds and the interest thereon (to the extent
set forth in the Resolution) are general obligations of the City and the City has the power and is obligated
to levy ad valorem taxes for the payment of the Bonds and the interest thereon upon all property within
the City subject to taxation by the City.
The Bonds maturing on or before August 1, ____, are non-callable. The Bonds maturing on
August 1, ____, or any time thereafter, are callable for redemption prior to their stated maturity date at the
option of the City, as a whole, or in part on or after August 1, ____ (in such maturities as are designated
by the City, or, if the City fails to designate such maturities, on a proportional basis), and may be
redeemed prior to the maturity thereof by payment of all principal, plus accrued interest to date of
redemption, without premium, payable from any source lawfully available therefore.
The Bonds maturing on August 1, ____, are subject to mandatory sinking fund redemption prior
to their stated maturity date, at the principal amount thereof without premium on each August 1, on and
after August 1, ____, to and including August 1, ____, in the principal amounts as set forth in the
following table:
Date of
Sinking Fund
Redemption Sinking Fund
(August 1) Installment Amount
†Maturity
The Bonds are issuable as fully registered Bonds, without coupons, in denominations of $5,000
and any integral multiple thereof. Subject to the limitations and conditions and upon payment of the
charges, if any, as provided in the Resolution, Bonds may be exchanged for a like aggregate principal
amount of Bonds of other authorized denominations and of the same maturity.
This Bond is transferable by the Owner hereof, in person or by his attorney duly authorized in
writing, at said office of the Paying Agent in Dallas, Texas, but only in the manner and subject to the
limitations provided in the Resolution, and upon surrender and cancellation of this Bond. Upon
registration of such transfer a new Bond or Bonds, of authorized denomination or denominations, for the
same aggregate principal amount and of the same maturity will be issued to the transferee in exchange
herefor.
The City and the Paying Agent may treat the Owner hereof as the absolute owner hereof for all
purposes, and the City and the Paying Agent shall not be affected by any notice to the contrary.
The Resolution may be amended without the consent of the Owners of the Bonds to the extent
set forth in the Resolution.
Exhibit A
Page 3
It is hereby certified that all of the things, conditions and acts required to exist, to have happened
or to have been performed precedent to and in the issuance of this Bond do exist, have happened or
have been performed in due and regular time and manner as required by the laws of the State of
California, and that the amount of this Bond, together with all other indebtedness of the City, does not
exceed any limit prescribed by any laws of the State of California, and is not in excess of the amount of
Bonds permitted to be issued under the Resolution.
This Bond shall not be entitled to any benefit under the Resolution or become valid or obligatory
for any purpose until the Certificate of Authentication hereon shall have been signed manually by the
Paying Agent.
Unless this certificate is presented by an authorized representative of The Depository Trust
Company; a New York corporation (“DTC”), to the City or the Paying Agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
IN WITNESS WHEREOF, the City of Alameda has caused this Bond to be executed in its name
and on its behalf with the facsimile signatures of the Mayor and the City Clerk, all as of the Issue Date
stated above.
CITY OF ALAMEDA
By
Mayor
ATTEST:
City Clerk
CERTIFICATE OF AUTHENTICATION
This is one of the Bonds described in the within-mentioned Resolution.
Authentication Date:
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Paying Agent
By
Authorized Signatory
Exhibit A
Page 4
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 Bond and do(es) hereby irrevocably constitute(s) and appoint(s)
attorney, to transfer the same on the bond register of the Paying Agent with full power of substitution in
the premises.
Dated: _______________
Signature Guaranteed:
________________________________ ________________________________
Notice: Signature(s) must be guaranteed by a
qualified guarantor institution.
Notice: The signature on this assignment must
correspond with the name(s) as written on the face
of the within Bond in every particular without
alteration or enlargement or any change
whatsoever.
Exhibit B
Page 1
EXHIBIT B
FORM OF NOTICE OF SALE
$__________*
CITY OF ALAMEDA
(Alameda County, California)
2013 General Obligation Refunding Bonds
NOTICE IS HEREBY GIVEN that electronic bids only will be received by representatives of the
City of Alameda (the “City”) for the purchase of $_________* aggregate principal amount of City of
Alameda (Alameda County, California) 2013 General Obligation Refunding Bonds (the “Bonds”).
DATE AND TIME: WEDNESDAY, SEPTEMBER 25, 2013, until 9:30 A.M. (Pacific Daylight time).
PURPOSE: The Bonds are to be issued by the City and are authorized pursuant to the provisions
of Article 9 of Chapter 3 (commencing with section 53550) of Division 2 of Title 5 of the California
Government Code, and the provisions of a resolution of the City Council of the City (the “Council”) to (a)
refund, on a current basis, all outstanding City of Alameda General Obligation Bonds, Series 2003, and
(b) pay all necessary legal, financial and contingent costs in connection therewith.
SECURITY: The Bonds are general obligations of the City. The City has the power and is
obligated to levy ad valorem taxes for the payment of the Bonds and the interest thereon without limitation
as to rate or amount upon all property within the City subject to taxation (except for certain classes of
personal property).
SUBMISSION OF BIDS: Bids may be submitted (for receipt not later than the time set forth
above) electronically through the I-Deal LLC BiDCOMP/PARITY® system. See “FORM OF BID” herein.
Bidders should be aware that the par amount of the Bonds may be reduced if the
refunding of certain maturities of the City’s outstanding bonds do not meet its minimum savings
goals but in any event may be adjusted to fit the City’s refunding requirements. See
“ADJUSTMENT OF PRINCIPAL AMOUNTS AND OF MATURITIES” below.
ISSUE; BOOK ENTRY: $__________* consisting of fully registered bonds, without coupons. The
Bonds will be dated as of their date of delivery, expected to be October 16, 2013, and will be issued in
minimum denominations of $5,000. The Bonds will be issued in a book entry only system with no physical
distribution of the Bonds made to the public. The Depository Trust Company, New York, New York
(“DTC”), will act as depository for the Bonds which will be immobilized in its custody. The Bonds will be
registered in the name of Cede & Co., as nominee for DTC, on behalf of the participants in the DTC
system and the subsequent beneficial owners of the Bonds.
MATURITIES: The Bonds will mature, or be subject to mandatory sinking fund redemption, on
the dates and in the amounts, as set forth in the following table. Each bidder is required to specify in its
bid whether, for any particular year, the Bonds will mature or, alternately, be subject to mandatory sinking
fund redemption in such year:
Exhibit B
Page 2
Maturity Date Principal Maturity Date Principal
(August 1) Amount* (August 1) Amount*
2014 2024
2015 2025
2016 2026
2017 2027
2018 2028
2019 2029
2020 2030
2021 2031
2022 2032
2023 2033
*Preliminary, subject to change.
ADJUSTMENT OF PRINCIPAL AMOUNTS AND OF MATURITIES: The maturity amounts set
forth above for the Bonds may be adjusted either upward or downward in order to achieve approximately
equal annual savings and to eliminate excess proceeds in the event of any bid premium after award of
the Bonds has been made to the successful bidder. The successful bidder will be notified of the actual
principal amounts and maturity schedule relating to the Bonds within 6 hours after the expiration of the
time prescribed for the receipt of proposals. Any increase or decrease will be in $5,000 increments of
principal amounts. In the event of any such adjustment, no re-bidding or recalculation of the bids
submitted will be required or permitted and no successful bid may be withdrawn. The successful bidder
will not be permitted to change the interest rates in its bid.
INTEREST: The Bonds shall bear interest, calculated on a 30/360 day basis, at a rate or rates to
be fixed upon the sale thereof but not to exceed 12% per annum, payable semiannually on each February
1 and August 1, commencing February 1, 2014.
PAYMENT: Principal of the Bonds will be payable upon surrender at The Bank of New York
Mellon Trust Company, N.A., Dallas, Texas (the “Paying Agent”). Interest on the Bonds will be payable by
check or draft mailed by first class mail to the owner at the address listed on the registration books
maintained by the Paying Agent for such purpose.
REGISTRATION: The Bonds will be issued as fully registered bonds as to both principal and
interest. The Bonds will be issued in the book-entry system of The Depository Trust Company of New
York (“DTC”), and the ownership of the Bonds will be registered to the nominee of DTC.
OPTIONAL REDEMPTION: The Bonds maturing on or before August 1, ____, are non-callable.
The Bonds maturing on August 1, ____, or any time thereafter, are callable for redemption prior to their
stated maturity date at the option of the City, as a whole, or in part on or after August 1, ____ (in such
maturities as are designated by the City, or, if the City fails to designate such maturities, on a proportional
basis), and may be redeemed prior to the maturity thereof by payment of all principal, plus accrued
interest to date of redemption, without premium, payable from any source lawfully available therefor, as
follows:
SINKING FUND REDEMPTION: Any bidder may, at its option, specify that one or more
maturities of the Bonds will consist of term Bonds which are subject to mandatory sinking fund
redemption in consecutive years immediately preceding the maturity thereof, as designated in the bid of
such bidder. In the event that the bid of the successful bidder specifies that any maturity of Bonds will be
term Bonds, such term Bonds will be subject to mandatory sinking fund redemption on August 1 in each
year so designated in the bid, in the respective amounts for such years as set forth above under the
heading “MATURITIES,” at a redemption price equal to the principal amount thereof to be redeemed
together with accrued interest thereon to the redemption date, without premium.
Exhibit B
Page 3
RATING: Standard & Poor’s Ratings Services has assigned the rating of “____“ to the Bonds.
The cost of obtaining such rating will be borne entirely by the City and not by the successful
bidder.
TERMS OF SALE
BID SPECIFICATIONS AND INTEREST RATES. All bids must be unconditional. Bidders may
specify no more than ten separate interest rates provided, however, that (i) each interest rate specified
must be in a multiple of 1/20 or 1/8 of 1%; (ii) the maximum interest rate specified may not exceed 6%;
(iii) a zero rate of interest cannot be specified; (iv) all Bonds of the same maturity date shall bear interest
to the stated maturity date at the interest rate specified in the bid; (v) the interest rate on any maturity of
Bonds shall not be less than the interest rate on any prior maturity; and (vi) no bid will be accepted which
provides for the cancellation and surrender of any interest payment or for the waiver of interest or other
concession by the bidder as a substitute for payment in full of the purchase price of the Bonds. Bids that
do not conform to the terms of this paragraph will be rejected.
FORM OF BID; MAXIMUM DISCOUNT: All bids must be for not less than all of the Bonds hereby
offered for sale and for not less than ___% of the aggregate par amount thereof. The amount of any
discount specified in any bid shall not exceed ___% of the aggregate principal amount of the Bonds.
To the extent any instructions or directions set forth in BiDCOMP/PARITY® conflict with this
Official Notice of Sale, the terms of this Official Notice of Sale shall control. For further information about
BiDCOMP/PARITY®, bidders may contact Public Financial Management, Inc. (the “Financial Advisor”) at
(415) 982-5544 or BiDCOMP/PARITY® at (212) 404-8102.
THE CITY RETAINS ABSOLUTE DISCRETION TO DETERMINE WHETHER ANY BID IS
TIMELY, LEGIBLE AND COMPLETE. NONE OF THE CITY, THE FINANCIAL ADVISOR, OR QUINT &
THIMMIG LLP (“BOND COUNSEL”) TAKES ANY RESPONSIBILITY FOR INFORMING ANY BIDDER
PRIOR TO THE TIME FOR RECEIVING BIDS THAT ITS BID IS INCOMPLETE, ILLEGIBLE OR NOT
RECEIVED.
EACH BIDDER SUBMITTING AN ELECTRONIC BID UNDERSTANDS AND AGREES BY
DOING SO THAT IT IS SOLELY RESPONSIBLE FOR ALL ARRANGEMENTS WITH
BiDCOMP/PARITY® AND THAT BiDCOMP/PARITY® IS NOT ACTING AS AN AGENT OF THE CITY.
INSTRUCTIONS AND FORMS FOR SUBMITTING ELECTRONIC BIDS MUST BE OBTAINED FROM
BiDCOMP/PARITY® AND THE CITY ASSUMES NO RESPONSIBILITY FOR ENSURING OR
VERIFYING BIDDER COMPLIANCE WITH THE PROCEDURES OF BiDCOMP/PARITY®. THE CITY
SHALL ASSUME THAT ANY BID RECEIVED THROUGH BiDCOMP/PARITY® HAS BEEN MADE BY A
DULY AUTHORIZED AGENT OF THE BIDDER.
THE CITY WILL MAKE ITS BEST EFFORTS TO ACCOMMODATE ELECTRONIC BIDS;
HOWEVER THE CITY, THE FINANCIAL ADVISOR AND BOND COUNSEL ASSUME NO
RESPONSIBILITY FOR ANY ERROR CONTAINED IN ANY BID SUBMITTED ELECTRONICALLY, OR
FOR FAILURE OF ANY BID TO BE TRANSMITTED, RECEIVED OR ACCEPTED AT THE OFFICIAL
TIME FOR RECEIPT OF BIDS. THE OFFICIAL TIME FOR RECEIPT OF BIDS WILL BE DETERMINED
BY THE CITY AND THE CITY SHALL NOT BE REQUIRED TO ACCEPT THE TIME KEPT BY
BiDCOMP/PARITY® AS THE OFFICIAL TIME.
BEST BID: The Bonds will be awarded to the responsible bidder or bidders offering to purchase
the Bonds at the lowest true interest cost to the City. The true interest cost of each bid will be determined
on the basis of the present value of the aggregate future semiannual payments resulting from the interest
rates specified by the bidder. The present value will be calculated to the dated date of the Bonds
(assumed to be October 16, 2013) and will be based on the proposed bid amount (par value less any
discount or plus any premium). For the purpose of making such determination, it shall be assumed that
any Bond designated as term bonds by the bidder shall be deemed to be payable on the dates and in the
Exhibit B
Page 4
amounts as shown under the section entitled “MATURITIES” herein. Each bidder is requested, but not
required, to state in his bid the percentage true interest cost to the City, which shall be considered as
informative only and shall not be binding on either the bidder or the City. The determination of the best bid
by the City’s financial advisor shall be binding and conclusive on all bidders.
RIGHT OF CANCELLATION OF SALE BY CITY: The City reserves the right, in its sole
discretion, at any time to cancel the public sale of the Bonds. In such event, the City shall cause notice of
cancellation of this invitation for bids and the public sale of the Bonds to be communicated through the
Bond Buyer Wire as promptly as practicable. However, no failure to publish such notice or any defect or
omission therein shall affect the cancellation of the public sale of the Bonds.
RIGHT TO MODIFY OR AMEND: The City reserves the right, in its sole discretion, to modify or
amend this official Notice of Sale including, but not limited to, the right to adjust and change the principal
amount and principal amortization schedule of the Bonds being offered, however, such modifications or
amendments shall be made not later than 10:00 A.M., California time, on the business day prior to the bid
opening and communicated through the Bond Buyer Wire.
RIGHT OF POSTPONEMENT BY CITY: The City reserves the right, in its sole discretion, to
postpone, from time to time, the date established for the receipt of bids. Any such postponement will be
communicated through the Bond Buyer Wire not later than 10:00 A.M., California time, on the business
day prior to any announced date for receipt of bids. If any date is postponed, any alternative sale date will
be announced through the Bond Buyer Wire at least 24 hours prior to such alternative sale date. On any
such alternative sale date, any bidder may submit a bid for the purchase of the Bonds in conformity in all
respects with the provisions of this Official Notice of Sale, except for the date of sale and except for the
changes announced by through the Bond Buyer Wire at the time the sale date and time are announced.
RIGHT OF REJECTION: The City reserves the right, in its sole discretion, to reject any and all
bids and to waive any irregularity or informality in any bid except that no bids will be accepted later than
10:00 A.M. on the date set for receipt of bids.
PROMPT AWARD: Pursuant to authority granted by the Council, the Finance Director, or the
Finance Director’s designee, will take action awarding the Bonds or rejecting all bids not later than
twenty-six (26) hours after the expiration of the time herein prescribed for the receipt of proposals;
provided, that the award may be made after the expiration of the specified time if the bidder shall not have
given to the Council notice in writing of the withdrawal of such proposal.
PLACE OF DELIVERY; CANCELLATION FOR LATE DELIVERY: It is expected that said Bonds
will be delivered to DTC for the account of the successful bidder within twenty (20) days from the date of
sale thereof. The successful bidder shall have the right, at his option, to cancel its obligation to purchase
the Bonds if the Bonds are not tendered for delivery within sixty (60) days from the date of the sale
thereof, and in such event the successful bidder shall be entitled to the return of the deposit
accompanying his bid.
GOOD FAITH DEPOSIT: A good faith deposit (“Deposit”) in the form of a wire transfer, in the
amount of $_________ payable to the order of The Bank of New York Mellon Trust Company, N.A., as
paying agent, must be remitted by the winning bidder within 48 hours after the acceptance of its bid. The
Deposit shall be cashed by the Paying Agent on behalf of the City and shall then be applied toward the
purchase price of the Bonds. If after the award of the Bonds the successful bidder or bidders fail to
complete their purchase on the terms stated in their bid, the Deposit will be retained by the City. No
interest on the Deposit will accrue to any bidder.
CHANGE IN TAX EXEMPT STATUS: At any time before the Bonds are tendered for delivery, the
successful bidder may disaffirm and withdraw his proposal if the interest received by private holders from
Bonds of the same type and character shall be declared to be taxable income under present federal
income tax laws, either by a ruling of the Internal Revenue Service or by a decision of any federal court,
or shall be declared taxable, or be requited to be taken into account in computing federal income taxes
Exhibit B
Page 5
(except alternative minimum taxes and environmental taxes payable by corporations) by any federal
income tax law enacted subsequent to the date of this notice.
CLOSING PAPERS; BOND PRINTING: Each proposal will be understood to be conditioned
upon the City furnishing to the purchaser, without charge, concurrently with payment for and delivery of
the Bonds, the following closing papers, each dated the date of delivery:
(a) The opinion of Quint & Thimmig LLP, Larkspur, California, Bond Counsel, approving the
validity of the Bonds and stating that, subject to the City’s compliance with certain covenants, interest on
the Bonds is excludable from gross income of the owners thereof for federal income tax purposes and is
not included as an item of tax preference in computing the alternative minimum tax for individuals and
corporations under the Internal Revenue Code of 1986, as amended, but is taken into account in
computing an adjustment used in determining the federal alternative minimum tax for certain
corporations, and interest on the Bonds is exempt from personal income taxes of the State of California.
Other tax consequences to holders of the Bonds, if any, are not addressed in the opinion;
(b) A certificate of the City certifying that on the basis of the facts, estimates and circumstances in
existence on the date of issue, it is not expected that the proceeds of the Bonds will be used in a manner
that would cause the Bonds to be arbitrage bonds;
(c) A certificate of the City, signed by officers and representatives of the City, certifying that the
officers and representatives have signed the Bonds whether by facsimile or manual signature, and that
they were respectively duly authorized to execute the same;
(d) The receipt of the City evidencing the receipt of the purchase price of the Bonds;
(e) A certificate of the City, certifying that there is no known litigation threatened or pending
affecting the validity of the Bonds; and
(f) A certificate of the City, signed by an officer of the City, acting in his official capacity, to the
effect that at the time of the sale of the Bonds, and at all times subsequent thereto up to and including the
time of the delivery of the Bonds, the Official Statement relating to the Bonds did not contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
CUSIP NUMBERS: It is anticipated that CUSIP numbers will be printed on the Bonds, but neither
the failure to print such numbers on any Bond nor error with respect thereto shall constitute cause for a
failure or refusal by the purchaser thereof to accept delivery of and pay for the Bonds in accordance with
the terms of the purchase contract. All expenses of printing CUSIP numbers on the Bonds and the CUSIP
Service Bureau charge for the assignment of said numbers shall be paid by the successful bidder.
CERTIFICATION OF REOFFERING PRICE: The successful bidder shall be required, as a
condition to the issuance of the Bonds, to deliver to the City a certificate, in form and substance
satisfactory to Bond Counsel, stating (i) that, as of the date of award, the Bonds were expected to be
reoffered in a bona fide public offering, (ii) the initial offering price at which a substantial amount (at least
10%) of each maturity of the Bonds were sold to the public, and (iii) that no Bonds of a single maturity
were offered at one price to the general public and at a discount from that price to institutional or other
investors.
CALIFORNIA DEBT AND INVESTMENT ADVISORY COMMISSION: The successful bidder will
be required, pursuant to State law, to pay any fees to the California Debt and Investment Advisory
Commission when due.
DTC FEES: All fees due DTC with respect to the Bonds shall be paid by the successful bidder or
bidders.
Exhibit B
Page 6
OFFICIAL STATEMENT: The City has caused to be prepared a Preliminary Official Statement
describing the Bonds in a form deemed final by the City within the meaning of Rule 15c2-12 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, except
for certain information which is permitted under said Rule 15c2-12 to be omitted from the Preliminary
Official Statement. A copy of the Preliminary Official Statement will be furnished upon request to Public
Financial Management, Inc., 50 California Street, Suite 2300, San Francisco, CA 94111, telephone (415)
982-5544. The City will furnish to the successful bidder within seven business days following the date of
award, at no charge, a reasonable number of copies of the Official Statement for use in connection with
any resale of the Bonds.
DISCLOSURE CERTIFICATE: The City will deliver to the purchaser of the Bonds a certificate of
an official of the City, dated the date of Bond delivery, stating that as of the date thereof, to the best of the
knowledge and belief of said official, the Official Statement does not contain an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements made therein, in
the light of the circumstances under which they were made, not misleading, and further certifying that the
signatory knows of no material adverse change in the condition of the City which would make it
unreasonable for the purchaser of the Bonds to rely upon the Official Statement in connection with the
resale of the Bonds.
CONTINUING DISCLOSURE: In order to assist bidders in complying with S.E.C. Rule 15c2-
12(b)(5), the City will undertake, pursuant to the resolution authorizing issuance of the Bonds and a
Continuing Disclosure Certificate, to provide annual reports and notices of certain events. A description of
this undertaking is set forth in the preliminary Official Statement and will also be set forth in the final
Official Statement.
Exhibit C
EXHIBIT C
FORM OF NOTICE OF INTENTION
$____________
(Preliminary, subject to change)
CITY OF ALAMEDA
(Alameda County, California)
2013 General Obligation Refunding Bonds
NOTICE IS HEREBY GIVEN, pursuant to section 53692 of the California Government Code, that
the City of Alameda (the “City”) invites bids for the purchase of $_________ (preliminary, subject to
change) aggregate principal amount of the captioned general obligation refunding bonds (the “Bonds”).
Bids will be received on
WEDNESDAY, SEPTEMBER 25, 2013
electronically only, through the I-Deal LLC BiDCOMP/PARITY® system, until 9:30 A.M., Pacific Daylight
time, and the sale will be awarded by the City within 26 hours after the expiration of the time prescribed
for the receipt of bids. The sale of the Bonds will be conducted upon the terms and conditions set forth in
the Official Notice of Sale for the Bonds. Such Official Notice of Sale and the Preliminary Official
Statement describing the Bonds will be distributed to prospective bidders by the financial advisor to the
City, Public Financial Management, Inc., 50 California Street, Suite 2300, San Francisco, CA 94111,
telephone (415) 982-5544. Bids will be entertained only from bidders to whom such Official Notice of Sale
and Preliminary Official Statement have been distributed. Legal Opinion: Quint & Thimmig LLP, Larkspur,
California.
Exhibit D
Page 1
EXHIBIT D
FORM OF PAYING AGENT/BOND REGISTRAR/COSTS
OF ISSUANCE AGREEMENT
$___________
CITY OF ALAMEDA
(Alameda County, California)
2013 General Obligation Refunding Bonds
PAYING AGENT/BOND REGISTRAR/COSTS OF ISSUANCE AGREEMENT
THIS PAYING AGENT/BOND REGISTRAR/COSTS OF ISSUANCE AGREEMENT (this
“Agreement”), is entered into as of October 1, 2013, by and between the CITY OF ALAMEDA (the “City”),
and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (the “Bank”), relating to the
$___________ City of Alameda (Alameda County, California) 2013 General Obligation Refunding Bonds
(the “Bonds”). The City hereby appoints the Bank to act as Paying Agent, Transfer Agent and Bond
Registrar for the Bonds and as Custodian and Disbursing Agent for the payment of costs of issuance
relating to the Bonds.
RECITALS
WHEREAS, the City has duly authorized and provided for the issuance of the Bonds as fully
registered bonds without coupons;
WHEREAS, the City will ensure all things necessary to make the Bonds the valid obligations of
the City, in accordance with their terms, will be done upon the issuance and delivery thereof;
WHEREAS, the City and the Bank wish to provide the terms under which Bank will act as Paying
Agent to pay the principal, redemption premium (if any) and interest on the Bonds, in accordance with the
terms thereof, and under which the Bank will act as Registrar for the Bonds;
WHEREAS, the City and the Bank also wish to provide the terms under which Bank will act as
Custodian and Disbursing Agent for the payment of costs of issuance relating to the Bonds;
WHEREAS, the Bank has agreed to serve in such capacities for and on behalf of the City and
has full power and authority to perform and serve as Paying Agent, Transfer Agent and Bond Registrar
for the Bonds and as Custodian and Disbursing Agent for the payment of costs of issuance relating to the
Bonds; and
WHEREAS, the City has duly authorized the execution and delivery of this Agreement; and all
things necessary to make this Agreement a valid agreement have been done.
NOW, THEREFORE, it is mutually agreed as follows:
Exhibit D
Page 2
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.
For all purposes of this Agreement except as otherwise expressly provided or unless the context
otherwise requires:
“Bank” means The Bank of New York Mellon Trust Company, N.A., a national banking
association organized and existing under the laws of the United States of America.
“Bond Register” means the book or books of registration kept by the Bank in which are
maintained the names and addresses and principal amounts registered to each Registered Owner.
“Bond Resolution” means the resolution of the City pursuant to which the Bonds were issued.
“Bond” or “Bonds” means any one or all of the $___________ City of Alameda (Alameda County,
California) 2013 General Obligation Refunding Bonds.
“Custodian and Disbursing Agent” means the Bank when it is performing the function of custodian
and disbursing agent for the payment of costs of issuance relating to the Bonds.
“City” means City of Alameda.
“City Request” means a written request signed in the name of the City and delivered to the Bank.
“Fiscal Year” means the fiscal year of the City ending on June 30 of each year.
“Paying Agent” means the Bank when it is performing the function of paying agent for the Bonds.
“Person” means any individual, corporation, partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency or political subdivision of a
government or any entity whatsoever.
“Registered Owner” means a Person in whose name a Bond is registered in the Bond Register.
“Registrar” means the Bank when it is performing the function of registrar for the Bonds.
“Stated Maturity” when used with respect to any Bond means the date specified in the Bond
Resolution as the date on which the principal of such Bond is due and payable.
ARTICLE TWO
APPOINTMENT OF BANK AS PAYING AGENT, TRANSFER AGENT, BOND REGISTRAR AND
CUSTODIAN AND DISBURSING AGENT
Section 2.01. Appointment and Acceptance. The City hereby appoints the Bank to act as
Paying Agent and Transfer Agent with respect to the Bonds, to pay to the Registered Owners in
accordance with the terms and provisions of this Agreement and the Bond Resolution, the principal of,
redemption premium (if any), and interest on all or any of the Bonds.
The City hereby appoints the Bank as Registrar with respect to the Bonds. As Registrar, the Bank
shall keep and maintain for and on behalf of the City, books and records as to the ownership of the Bonds
and with respect to the transfer and exchange thereof as provided herein and in the Bond Resolution.
Exhibit D
Page 3
The City hereby appoints the Bank as Custodian and Disbursing Agent.
The Bank hereby accepts its appointment, and agrees to act as Paying Agent, Transfer Agent,
Bond Registrar and Custodian and Disbursing Agent.
Section 2.02. Compensation. As compensation for the Bank’s services as Paying Agent and
Bond Registrar, the City hereby agrees to pay the Bank the fees and amounts set forth in a separate
agreement between the City and the Bank.
In addition, the City agrees to reimburse the Bank, upon its request, for all reasonable and
necessary out-of-pocket expenses, disbursements, and advances, including without limitation the
reasonable fees, expenses, and disbursements of its agents and attorneys, made or incurred by the Bank
in connection with entering into and performing under this Agreement and in connection with investigating
and defending itself against any claim or liability in connection with its performance hereunder.
ARTICLE THREE
PAYING AGENT
Section 3.01. Duties of Paying Agent. As Paying Agent, the Bank, provided sufficient collected
funds have been provided to it for such purpose by or on behalf of the City, shall pay on behalf of the City
the principal of, and interest on each Bond in accordance with the provisions of the Bond Resolution.
Section 3.02. Payment Dates. The City hereby instructs the Bank to pay the principal of,
redemption premium (if any) and interest on the Bonds on the dates specified in the Bond Resolution.
ARTICLE FOUR
REGISTRAR
Section 4.01. Initial Delivery of Bonds. The Bonds will be initially registered and delivered to the
purchaser designated by the City as one Bond for each maturity. If such purchaser delivers a written
request to the Bank not later than five business days prior to the date of initial delivery, the Bank will, on
the date of initial delivery, deliver Bonds of authorized denominations, registered in accordance with the
instructions in such written request.
Section 4.02. Duties of Registrar. The Bank shall provide for the proper registration of transfer,
exchange and replacement of the Bonds. Every Bond surrendered for transfer or exchange shall be duly
endorsed or be accompanied by a written instrument of transfer, the signature on which has been
guaranteed by an eligible guarantor institution, in form acceptable to the Bank, duly executed by the
Registered Owner thereof or his attorney duly authorized in writing. The Registrar may request any
supporting documentation it deems necessary or appropriate to effect a re-registration.
Section 4.03. Unauthenticated Bonds. The City shall provide to the Bank on a continuing basis,
an adequate inventory of unauthenticated Bonds to facilitate transfers. The Bank agrees that it will
maintain such unauthenticated Bonds in safekeeping.
Section 4.04. Form of Bond Register. The Bank as Registrar will maintain its records as Bond
Registrar in accordance with the Bank’s general practices and procedures in effect from time to time.
Section 4.05. Reports. The City may request the information in the Bond Register at any time
the Bank is customarily open for business, provided that reasonable time is allowed the Bank to provide
an up-to-date listing and to convert the information into written form.
Exhibit D
Page 4
The Bank will not release or disclose the content of the Bond Register to any person other than to
the City at its written request, except upon receipt of a subpoena or court order or as may otherwise be
required by law. Upon receipt of a subpoena or court order the Bank will notify the City.
Section 4.06. Cancelled Bonds. All Bonds surrendered for payment, redemption, transfer,
exchange, or replacement, if surrendered to the Bank, shall be promptly cancelled by it and, if
surrendered to the City, shall be delivered to the Bank and, if not already cancelled, shall be promptly
cancelled by the Bank. The City may at any time deliver to the Bank for cancellation any Bonds previously
authenticated and delivered which the City may have acquired in any manner whatsoever, and all Bonds
so delivered shall be promptly cancelled by the Bank. All cancelled Bonds held by the Bank for its
retention period then in effect and shall thereafter be destroyed and evidence of such destruction
furnished to the City upon its written request.
ARTICLE FIVE
CUSTODIAN AND DISBURSING AGENT
Section 5.01. Receipt of Moneys. The Custodian and Disbursing Agent has received, from
___________, the purchaser of the Bonds, the sum of $_________ (which amount includes a good faith
deposit of $__________ previously received by the Custodian and Disbursing Agent). Of such amount,
$_________ has been transferred to The Bank of New York Mellon Trust Company, N.A., as escrow
bank, with respect to the refunding of the outstanding City of Alameda General Obligation Bonds, Series
2003, and the remaining $____________ has been deposited in a special account to be held and
maintained by the Custodian and Disbursing Agent in the name of the City (the “Costs of Issuance
Account”).
Section 5.02. Investment. The Custodian and Disbursing Agent will hold and invest funds in the
Costs of Issuance Account until January 16, 2014, or upon prior written order of the City.
Section 5.03. Payment of Costs of Issuance. The Custodian and Disbursing Agent will pay
costs of issuance of the Bonds as directed by the City from time to time via a written requisition of the
City.
Section 5.04. Transfer of Remaining Amounts. Any balances remaining in the Costs of
Issuance Account (including any earnings) on January 16, 2014, will be transferred to the City for deposit
in the Debt Service Account for the Bonds maintained by the City.
Section 5.05. Limited Liability. The liability of the Custodian and Disbursing Agent as custodian
and disbursing agent is limited to the duties listed above. The Custodian and Disbursing Agent will not be
liable for any action taken or neglected to be taken by it in good faith in any exercise of reasonable care
and believed by it to be within the discretion of power conferred upon it by this Agreement.
ARTICLE SIX
THE BANK
Section 6.01. Duties of Bank. The Bank undertakes to perform the duties set forth herein. No
implied duties or obligations shall be read into this Agreement against the Bank. The Bank hereby agrees
to use the funds deposited with it for payment of the principal of and interest on the Bonds to pay the
same as it shall become due and further agrees to establish and maintain such accounts and funds as
may be required for the Bank to function as Paying Agent.
Exhibit D
Page 5
Section 6.02. Reliance on Documents, Etc.
(a) The Bank may conclusively rely, as to the truth of the statements and correctness of the
opinions expressed therein, on certificates or opinions expressed therein, on certificates or opinions
furnished to the Bank by the City.
(b) The Bank shall not be liable for any error of judgment made in good faith. The Bank shall not
be liable other than for its negligence or willful misconduct in connection with any act or omission
hereunder.
(c) No provision of this Agreement shall require the Bank to expend or risk its own funds or
otherwise incur any financial liability for performance of any of its duties hereunder, or in the exercise of
any of its rights or powers.
(d) The Bank may rely, or be protected in acting or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note,
security or other paper or document believed by it to be genuine and to have been signed or presented by
the proper party or parties. The Bank need not examine the ownership of any Bond, but shall be
protected in acting upon receipt of Bonds containing an endorsement or instruction of transfer or power of
transfer which appears on its face to be signed by the Registered Owner or agent of the Registered
Owner.
(e) The Bank may consult with counsel, and the written advice or opinion of counsel shall be full
authorization and protection with respect to any action taken, suffered or omitted by it hereunder in good
faith and reliance thereon.
(f) The Bank may exercise any of the powers hereunder and perform any duties hereunder either
directly or by or through agents or attorneys and shall not be liable for the actions of such agent or
attorney if appointed by it with reasonable care.
(g) The Paying Agent shall not be responsible or liable for any failure or delay in the performance
of its obligation under this Agreement arising out of or caused, directly or indirectly, by circumstances
beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; wars;
terrorism; military disturbances; sabotage; epidemic; riots; interruptions; loss or malfunctions of utilities,
computer (hardware or software) or communications services; accidents; labor disputes; acts of civil or
military authority or governmental action; it being understood that Paying Agent shall use commercially
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as reasonably practicable under the circumstances.
(h) The Paying Agent agrees to accept and act upon instructions or directions pursuant to this
Agreement sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic
methods, provided, however, that the District shall provide to the Paying Agent an incumbency certificate
listing designated persons authorized to provide such instructions, which incumbency certificate shall be
amended whenever a person is to be added or deleted from the listing. If the District elects to give the
Paying Agent e-mail or facsimile instructions (or instructions by a similar electronic method) and the
Paying Agent in its discretion elects to act upon such instructions, the Paying Agent’s understanding of
such instructions shall be deemed controlling. The Paying Agent shall not be liable for any losses, costs
or expenses arising directly or indirectly from the Paying Agent’s reliance upon and compliance with such
instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written
instruction. The District agrees to assume all risks arising out of the use of such electronic methods to
submit instructions and directions to the Paying Agent, including without limitation the risk of the Paying
Agent acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Section 6.03. Recitals of City. The recitals contained in the Bond Resolution and the Bonds
shall be taken as the statements of the City, and the Bank assumes no responsibility for their correctness.
Exhibit D
Page 6
Section 6.04. May Own Bonds. The Bank, in its individual or any other capacity, may become
the owner or pledgee of Bonds with the same rights it would have if it were not the Paying Agent and
Bond Registrar for the Bonds.
Section 6.05. Money Held by Bank. Money held by the Bank hereunder need not be
segregated from other funds. The Bank shall have no duties with respect to investment of funds
deposited with it and shall be under no obligation to pay interest on any money received by it hereunder.
Any money deposited with or otherwise held by the Bank for the payment of the principal,
redemption premium (if any) or interest on any Bond and remaining unclaimed for two years after such
deposit will be paid by the Bank to the City, and the City and the Bank agree that the Registered Owner of
such Bond shall thereafter look only to the City for payment thereof, and that all liability of the Bank with
respect to such moneys shall thereupon cease.
Section 6.06. Other Transactions. The Bank may engage in or be interested in any financial or
other transaction with the City.
Section 6.07. Interpleader. The City and the Bank agree that the Bank may seek adjudication
of any adverse claim, demand, or controversy over its person as well as funds on deposit, in a court of
competent jurisdiction. The City and the Bank further agree that the Bank has the right to file an action in
interpleader in any court of competent jurisdiction to determine the rights of any person claiming any
interest herein.
Section 6.08. Indemnification. To the extent permitted by law, the City shall indemnify the
Bank, its officers, directors, employees and agents (“Indemnified Parties”) for, and hold them harmless
against any loss, cost, claim, liability or expense arising out of or in connection with the Bank’s
acceptance or administration of the Bank’s duties hereunder or under the Bond Resolution (except any
loss, liability or expense as may be adjudged by a court of competent jurisdiction to be attributable to the
Bank’s negligence or willful misconduct), including the cost and expense (including its counsel fees) of
defending itself against any claim or liability in connection with the exercise or performance of any of its
powers or duties under this Agreement. Such indemnity shall survive the termination or discharge of this
Agreement or discharge of the Bonds.
ARTICLE SEVEN
MISCELLANEOUS PROVISIONS
Section 7.01. Amendment. This Agreement may be amended only by an agreement in writing
signed by both of the parties hereto.
Section 7.02. Assignment. This Agreement may not be assigned by either party without the
prior written consent of the other party.
Section 7.03. Notices. Any request, demand, authorization, direction, notice, consent, waiver or
other document provided or permitted hereby to be given or furnished to the City or the Bank shall be
mailed or delivered to the City or the Bank, respectively, as follows:
(a) if to the City, to the City of Alameda, 2263 Santa Clara Avenue, Alameda, CA 94501,
Attention: Finance Director; and
(b) if to the Bank, to The Bank of New York Mellon Trust Company, N.A., Corporate Trust
Department, 2001 Bryan Street, Dallas, TX 75201,
or such other address as may have been given by one party to the other by fifteen (15) days written
notice.
Exhibit D
Page 7
Section 7.04. Effect of Headings. The Article and Section headings herein are for convenience
of reference only and shall not affect the construction hereof.
Section 7.05. Successors and Assigns. All covenants and agreements herein by the City and
the Bank shall bind their successors and assigns, whether so expressed or not.
Section 7.06. Severability. If any provision of this Agreement shall be determined to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not
in any way be affected or impaired thereby.
Section 7.07. Benefits of Agreement. Nothing herein, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, any benefit or any legal or
equitable right, remedy or claim hereunder.
Section 7.08. Entire Agreement. This Agreement and the Bond Resolution constitute the entire
agreement between the parties hereto relative to the Bank acting as Paying Agent, Transfer Agent and
Bond Registrar for the Bonds and as Custodian and Disbursing Agent for the payment of costs of
issuance relating to the Bonds.
Section 7.09. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which shall constitute one and the same Agreement.
Section 7.10. Term and Termination. This Agreement shall be effective from and after its date
and until the Bank resigns or is removed in accordance with the Bond Resolution; provided, however, that
no such termination shall be effective until a successor has been appointed and has accepted the duties
of the Bank hereunder.
The Bank may resign at any time by giving written notice thereof to the City. If the Bank shall
resign, be removed or become incapable of acting, the City shall promptly appoint a successor Paying
Agent and Bond Registrar. If an instrument of acceptance by a successor Paying Agent and Bond
Registrar shall not have been delivered to the Bank within thirty 30 days after the Bank gives notice of
resignation, the Bank may petition any court of competent jurisdiction at the expense of the City for the
appointment of a successor Paying Agent and Bond Registrar. In the event of resignation or removal of
the Bank as Paying Agent and Bond Registrar, upon the written request of the City and upon payment of
all amounts owing to the Bank hereunder the Bank shall deliver to the City or its designee all funds and
unauthenticated Bonds, and a copy of the Bond Register. The provisions of Section 2.02 and Section
6.08 hereof shall survive and remain in full force and effect following the termination of this Agreement.
Section 7.11. Governing Law. This Agreement shall be construed in accordance with and shall
be governed by the laws of the State of California.
Section 7.12. Documents to be Filed with Bank. At the time of the Bank’s appointment as
Paying Agent and Bond Registrar, the City shall file with the Bank the following documents: (a) a certified
copy of the Bond Resolution and a specimen Bond; (b) a copy of the opinion of bond counsel provided to
the City in connection with the issuance of the Bonds; and (c) a City Request containing written
instructions to the Bank with respect to the issuance and delivery of the Bonds, including the name of the
Registered Owners and the denominations of the Bonds.
Exhibit D
Page 8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first above written.
CITY OF ALAMEDA
By
Name
Title
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Paying Agent
By
Name
Title
Exhibit E
Page 1
EXHIBIT E
FORM OF ESCROW AGREEMENT
This Escrow Deposit and Trust Agreement (this “Escrow Deposit and Trust Agreement”), dated
October 16, 2013, is by and between the CITY OF ALAMEDA, a municipal corporation and chartered city
organized and existing under the laws of the State of California (the “City”), and THE BANK OF NEW
YORK MELLON TRUST COMPANY, N.A., a national banking association organized and existing under
the laws of the United States of America, as escrow bank (the “Escrow Bank”).
W I T N E S S E T H:
WHEREAS, on April 8, 2003, the City issued its “City of Alameda General Obligation Bonds,
Series 2003” (the “2003 Bonds”), to finance the construction and renovation of various public libraries, in
the original principal amount of $10,600,000, of which $8,680,000 aggregate principal amount remains
outstanding;
WHEREAS, pursuant to Article 9 of Chapter 3 (commencing with section 53550) of Division 2 of
Title 5 of the California Government Code (the “Act”), the City is empowered to issue general obligation
refunding bonds;
WHEREAS, the 2003 Bonds were issued under and pursuant to paying agent agreement, dated
as of March 1, 2003, by and between the City and BNY Western Trust Company, since succeeded by
The Bank of New York Mellon Trust Company, N.A., as paying agent (the “2003 Paying Agent
Agreement”);
WHEREAS, the City has determined that it is in the best interests of the City to refund, on a
current basis, all outstanding 2003 Bonds and it is desirable to enter into this Escrow Deposit and Trust
Agreement;
WHEREAS, the City Council of the City, by resolution adopted on September 17, 2013 (the
“Refunding Bond Resolution”), has authorized the execution and delivery of the City’s $_______ 2013
General Obligation Refunding Bonds (the “2013 Refunding Bonds”), and has determined to use a portion
of the proceeds of the 2013 Refunding Bonds to redeem the outstanding 2003 Bonds in full on November
1, 2013 (the “2003 Bonds Redemption Date”) at a redemption price equal to 101% of the principal amount
of the 2003 Bonds, together with accrued interest thereon through such date (the “2003 Bonds
Redemption Price”);
WHEREAS, the City, in the Refunding Bond Resolution, has directed that a portion of the
proceeds of the sale of the 2013 Refunding Bonds be deposited hereunder, and that such amount will be
in an amount sufficient to provide for the redemption of the 2003 Bonds as described above; and
WHEREAS, the Escrow Bank has full powers to perform the duties and obligations to be
undertaken by it pursuant to this Escrow Deposit and Trust Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants herein set
forth, the parties hereto do hereby agree as follows:
Section 1. Discharge of Bonds. The City hereby irrevocably elects to pay and discharge all
indebtedness payable by the City under the 2003 Paying Agent Agreement with respect to the 2003
Bonds, and to terminate all obligations of the City thereunder with respect thereto.
Exhibit E
Page 2
Section 2. Escrow Fund.
(a) There is hereby established a special fund, to be held in trust by the Escrow Bank for the
benefit of the owners of the 2003 Bonds, to be known as the “Escrow Fund.” Upon the issuance of the
2013 Refunding Bonds, there shall be deposited into the Escrow Fund an amount equal to
$8,875,300.00, derived from the proceeds of the 2013 Refunding Bonds.
(b) The Escrow Bank shall hold all amounts deposited in the Escrow Fund in cash, uninvested.
The moneys in the Escrow Fund shall be deposited with and held by the Escrow Bank in the Escrow
Fund solely for the uses and purposes set forth herein.
(c) The Escrow Bank shall not be liable or responsible for any loss resulting from its full
compliance with the provisions of this Escrow Deposit and Trust Agreement.
Section 3. Instructions as to Application of Deposit.
(a) The moneys deposited in the Escrow Fund pursuant to Section 2 shall be applied by the
Escrow Bank for the sole purpose of redeeming the outstanding 2003 Bonds in full on the 2003 Bonds
Redemption Date at the 2003 Bonds Redemption Price, as set forth in Exhibit A attached hereto and by
this reference incorporated herein. Any money left on deposit in the Escrow Fund after payment in full of
the 2003 Bonds, and the payment of all amounts due to the Escrow Bank hereunder, shall be paid to the
City and applied to pay debt service on the 2013 Refunding Bonds.
(b) The City has previously instructed the Escrow Bank, in its capacity as paying agent for the
2003 Bonds, to give notice of conditional redemption of the 2003 Bonds, and the Escrow Bank, in its
capacity as paying agent for the 2003 Bonds, has given notice of conditional redemption of the 2003
Bonds on November 1, 2013, in accordance with the applicable provisions of the 2003 Paying Agent
Agreement and as set forth in Exhibit A attached hereto and by this reference incorporated herein.
Section 4. Application of Certain Terms of the 2002 Paying Agent Agreement Agreement. All of
the terms of the 2002 Paying Agent Agreement relating to the making of payments of principal and
interest with respect to the 2003 Bonds are incorporated in this Escrow Agreement as if set forth in full
herein. The provisions of the 2002 Paying Agent Agreement relating to the limitations from liability and
protections afforded the Escrow Bank as paying agent for the 2003 Bonds and the resignation and
removal of the Escrow Bank as paying agent for the 2003 Bonds are also incorporated in this Escrow
Agreement as if set forth in full herein and shall be applicable to the Escrow Bank and shall be the
procedure to be followed with respect to any resignation or removal of the Escrow Bank hereunder.
Section 5. Escrow Bank.
(a) The Escrow Bank shall look solely to the City for compensation for its duties under this
Escrow Deposit and Trust Agreement and shall have no right whatsoever against the Escrow Fund for
fees, compensation, costs or expenses. The City shall also reimburse the Escrow Bank for out-of-pocket
costs such as cost of giving notice of redemption of the 2003 Bonds, legal fees and other costs and
expenses relating hereto, but under no circumstances shall amounts deposited in the Escrow Fund be
deemed to be available for said purposes.
(b) The City agrees to indemnify the Escrow Bank, its agents and its officers, directors and
employees for, and hold the Escrow Bank, its agents and its officers, directors and employees harmless
from, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs,
expenses and disbursements of any kind (including without limitation, reasonable fees and disbursements
of counsel or accountants for the Escrow Bank) which may be imposed on, incurred by, or asserted
against the Escrow Bank or such other party at any time by reason of, or in connection with, the
performance of its duties as Escrow Bank hereunder, unless due to the negligence or willful misconduct
of any indemnified party. Such indemnity shall survive the termination or discharge of this Escrow Deposit
and Trust Agreement and the earlier removal or resignation of the Escrow Bank.
Exhibit E
Page 3
(c) The Escrow Bank shall not have any liability hereunder except to the extent of its own
negligence or willful misconduct. The Escrow Bank shall have no duty or responsibility under this Escrow
Deposit and Trust Agreement in the case of any default by the City in the performance of the covenants
or agreements contained in the 2003 Paying Agent Agreement or in the Refunding Bond Resolution.
(d) The Escrow Bank may consult with counsel of its own choice (which may be counsel for the
City) and the opinion of such counsel shall be full and complete authorization to take or suffer in good
faith any action hereunder in accordance with such opinion of counsel.
(e) The Escrow Bank shall not be responsible for any of the recitals or representations contained
herein, in the 2003 Paying Agent Agreement or in the Refunding Bond Resolution.
(f) The Escrow Bank may become the owner of, or acquire any interest in, any of the 2013
Refunding Bonds with the same rights that it would have if it were not the Escrow Bank, and may engage
or be interested in any financial or other transaction with the City.
(g) The Escrow Bank shall not be liable for the accuracy of any calculations provided as to the
sufficiency of the moneys deposited with it to pay the principal, interest, or premiums, if any, on the 2003
Bonds.
(h) The Escrow Bank shall not be liable for any action or omission of the City under this Escrow
Deposit and Trust Agreement, under the 2003 Paying Agent Agreement or the Refunding Bond
Resolution.
(i) Whenever in the administration of this Escrow Deposit and Trust Agreement, the Escrow Bank
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 negligence or willful misconduct on the part of the Escrow Bank, be deemed to be
conclusively proved and established by a certificate of the City and shall, in the absence of negligence or
willful misconduct on the part of the Escrow Bank, be full warrant to the Escrow Bank for any action taken
or suffered by it under the provisions of this Escrow Deposit and Trust Agreement upon the faith thereof.
(j) The Escrow Bank may conclusively rely, as to the truth and accuracy of the statements and
correctness of the opinions and the calculations provided to it in connection with this Escrow Deposit and
Trust Agreement, and shall be protected in acting, or refraining from acting, upon any written notice,
instruction, request, certificate, document or opinion furnished to the Escrow Bank in accordance with this
Escrow Deposit and Trust Agreement and reasonably believed by the Escrow Bank to have been signed
or presented by the proper party, and it need not investigate any fact or matter stated in such notice,
instruction, request, certificate or opinion.
(k) The Escrow Bank may at any time resign by giving written notice to the City of such
resignation. The City shall promptly appoint a successor Escrow Bank by the resignation date.
Resignation of the Escrow Bank will be effective only upon acceptance of appointment by a successor
Escrow Bank. If the City does not appoint a successor, the Escrow Bank may petition any court of
competent jurisdiction for the appointment of a successor Escrow Bank, which court may thereupon, after
such notice, if any, as it may deem proper and prescribe and as may be required by law, appoint a
successor Escrow Bank. After receiving a notice or resignation of an Escrow Bank, the City may appoint a
temporary Escrow Bank until the City appoints a successor Escrow Bank. Any such temporary Escrow
Bank so appointed by the City shall immediately and without further act be superseded by the successor
Escrow Bank so appointed.
(l) The Escrow Bank shall perform such duties and only such duties as are specifically set forth in
this Escrow Deposit and Trust Agreement, and no implied actions, covenants or obligations shall be read
into this Escrow Deposit and Trust Agreement against the Escrow Bank.
Exhibit E
Page 4
(m) None of the provisions of this Escrow Deposit and Trust Agreement shall require the Escrow
Bank to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the
performance of any of its duties hereunder. The Escrow Bank may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians
or nominees appointed with due care, and shall not be responsible for any willful misconduct or
negligence on the part of any agent, attorney, custodian or nominee so appointed. Anything in this
Escrow Deposit and Trust Agreement to the contrary notwithstanding, in no event shall the Escrow Bank
be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including
but not limited to lost profits), even if the Escrow Bank has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(n) Any company into which the Escrow Bank may be merged or converted or with which it may
be consolidated or any company resulting from any merger, conversion or consolidation to which it shall
be a party or any company to which the Escrow Bank may sell or transfer all or substantially all of its
corporate trust business, provided such company shall be eligible under this Escrow Deposit and Trust
Agreement, shall be the successor to such Escrow Bank without the execution or filing of any paper or
any further act, notwithstanding anything herein to the contrary.
(o) The Escrow Bank shall not be liable to the parties hereto or deemed in breach or default
hereunder if and to the extent its performance hereunder is prevented by reason of force majeure. The
term “force majeure” means an occurrence that is beyond the control of the Escrow Bank and could not
have been avoided by exercising due care. Force majeure shall include acts of God, terrorism, war, riots,
strikes, fire, floods, earthquakes, epidemics or other similar occurrences.
(p) The Escrow Bank agrees to accept and act upon instructions or directions pursuant to this
Escrow Deposit and Trust Agreement sent by unsecured e-mail, facsimile transmission or other similar
unsecured electronic methods, provided, however, that, the Escrow Bank shall have received an
incumbency certificate listing persons designated to give such instructions or directions and containing
specimen signatures of such designated persons, which such incumbency certificate shall be amended
and replaced whenever a person is to be added or deleted from the listing. If the City elects to give the
Escrow Bank e-mail or facsimile instructions (or instructions by a similar electronic method) and the
Escrow Bank in its discretion elects to act upon such instructions, the Escrow Bank’s understanding of
such instructions shall be deemed controlling. The Escrow Bank shall not be liable for any losses, costs
or expenses arising directly or indirectly from the Escrow Bank’s reliance upon and compliance with such
instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written
instruction. The City agrees to assume all risks arising out of the use of such electronic methods to submit
instructions and directions to the Escrow Bank, including without limitation the risk of the Escrow Bank
acting on unauthorized instructions, and the risk of interception and misuse by third parties.
(q) The City acknowledges that, to the extent regulations of the Comptroller of the Currency or
other applicable regulatory entity, grants the City the right to receive brokerage confirmations of security
transactions as they occur, the City specifically waives receipt of such confirmations to the extent
permitted by law. The Escrow Bank will furnish the City with periodic cash transaction statements which
include detail for all investment transactions made by the Escrow Bank hereunder.
Section 6. No Rights to Others. Nothing in this Escrow Deposit and Trust Agreement expressed
or implied is intended or shall be construed to give to any person other than the City, the Escrow Bank
and the owners of the 2003 Bonds any legal or equitable right, remedy or claim under or in respect to this
Escrow Deposit and Trust Agreement or any covenants, conditions or provisions herein contained; and all
such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of
the City, the Escrow Bank and the owners of the 2003 Bonds.
Section 7. Notices. All notices, requests, demands and other communications under this Escrow
Deposit and Trust Agreement by any person shall be in writing (unless otherwise specified herein) and
shall be sufficiently given on the date of service if served personally upon the person to whom notice is to
Exhibit E
Page 5
be given or on receipt if sent by telex or other telecommunication facility or courier or if mailed by
registered or certified mail, postage prepaid, and properly addressed as follows:
If to the City: City of Alameda
2263 Santa Clara Avenue
Alameda, CA 94501
Attention: Finance Director
Telephone: (510) 747-4888
Fax: (510) 865-4045
If to the Escrow Bank: The Bank of New York Mellon Trust Company, N.A.
2001 Bryan Street
Dallas, TX 75201
Attention: Corporate Trust Department
Telephone: (214) 468-6543
Fax: (214) 468-6322
Section 8. Amendment. This Escrow Deposit and Trust Agreement may be modified or amended
at any time by a supplemental agreement which shall become effective when the written consents of the
owners of one hundred percent (100%) in aggregate principal amount of the 2003 Bonds then
outstanding shall have been filed with the Escrow Bank. This Escrow Deposit and Trust Agreement may
be modified or amended at any time by a supplemental agreement, without the consent of any such
owners, but only (1) to add to the covenants and agreements of any party, other covenants to be
observed, or to surrender any right or power herein or therein reserved to the City, (2) to cure, correct or
supplement any ambiguous or defective provision contained herein, and (3) in regard to questions arising
hereunder or thereunder, as the parties hereto or thereto may deem necessary or desirable and which, in
the opinion of counsel, shall not materially adversely affect the interests of the owners of the 2003 Bonds
or the 2013 Refunding Bonds, and that such amendment will not cause interest on the 2003 Bonds or on
the 2013 Refunding Bonds to become subject to federal income taxation.
Section 9. Governing Law. This Escrow Deposit and Trust Agreement shall be construed and
governed in accordance with the laws of the State of California.
Section 10. Severability. In case any one or more of the provisions contained in this Escrow
Deposit and Trust Agreement shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Escrow
Deposit and Trust Agreement, but this Escrow Deposit and Trust Agreement shall be construed as if such
invalid or illegal or unenforceable provisions had never been contained herein.
Section 11. Counterparts. This Escrow Deposit and Trust Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be deemed to be an original;
and such counterparts, or as many of them as the City and the Escrow Bank shall preserve undestroyed,
shall together constitute but one and the same instrument.
Section 12. Business Days. Whenever any act is required by this Escrow Deposit and Trust
Agreement to be done on a specified day or date, and such day or date shall be a day other than a
business day for the Escrow Bank, then such act may be done on the next succeeding business day.
IN WITNESS WHEREOF the parties hereto have caused this Escrow Deposit and Trust
Agreement to be executed in their respective names by their respective duly authorized officers, all as of
the day and year first above written.
Exhibit E
Page 6
CITY OF ALAMEDA, CALIFORNIA
By
Name
Title
Attest:
Lara Weisiger
City Clerk
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Escrow Bank
By
Name
Title
Exhibit E
Page 7
EXHIBIT A
REDEMPTION SCHEDULE
Maturing Called Redemption Total
Date Principal Principal Interest Premium Payment
11/01/13 — $8,680,000 $108,500.00 $86,800.00 $8,875,300.00
Exhibit E
Page 1
EXHIBIT F
FORM OF CONTINUING DISCLOSURE CERTIFICATE
This CONTINUING DISCLOSURE CERTIFICATE (the “Disclosure Certificate”) is executed and
delivered by the CITY OF ALAMEDA (the “City”) in connection with the issuance of $___________ City of
Alameda 2013 General Obligation Refunding Bonds (the “Bonds”). The Bonds are being issued pursuant
to a resolution adopted by the City Council of the City on September 17, 2013 (the “Resolution”).
Pursuant to Section 5.07 of the Resolution, the City covenants and agrees as follows:
Section 1. Definitions. In addition to the definitions set forth in the Resolution, which apply to any
capitalized term used in this Disclosure Certificate, unless otherwise defined in this Section 1, the
following capitalized terms shall have the following meanings when used in this Disclosure Certificate:
“Annual Report” shall mean any Annual Report provided by the City pursuant to, and as
described in, Sections 3 and 4 of this Disclosure Certificate.
“Beneficial Owner” shall mean any person who (a) has the power, directly or indirectly, to vote or
consent with respect to, or to dispose of ownership of, any Bonds (including persons holding Bonds
through nominees, depositories or other intermediaries), or (b) is treated as the owner of any Bonds for
federal income tax purposes.
“Dissemination Agent” shall mean The Bank of New York Mellon Trust Company, N.A., or any
successor Dissemination Agent designated in writing by the City and which has filed with the City a
written acceptance of such designation. In the absence of such a designation, the City shall act as the
Dissemination Agent.
“EMMA” or “Electronic Municipal Market Access” means the centralized on-line repository for
documents to be filed with the MSRB, such as official statements and disclosure information relating to
municipal bonds, notes and other securities as issued by state and local governments.
“Listed Events” shall mean any of the events listed in Section 5(a) or 5(b) of this Disclosure
Certificate.
“MSRB” means the Municipal Securities Rulemaking Board, which has been designated by the
Securities and Exchange Commission as the sole repository of disclosure information for purposes of the
Rule, or any other repository of disclosure information which may be designated by the Securities and
Exchange Commission as such for purposes of the Rule in the future.
“Participating Underwriter” shall mean any original underwriter of the Bonds required to comply
with the Rule in connection with offering of the Bonds.
“Rule” shall mean Rule 15c2-12 adopted by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as the same may be amended from time to time.
Section 2. Purpose of the Disclosure Certificate. This Disclosure Certificate is being executed and
delivered by the City for the benefit of the owners and Beneficial Owners of the Bonds and in order to
assist the Participating Underwriter in complying with Securities and Exchange Commission Rule 15c2-
12(b)(5).
Section 3. Provision of Annual Reports.
(a) Delivery of Annual Report. The City shall, or shall cause the Dissemination Agent to, not later
than nine months after the end of the City’s fiscal year (which currently ends on June 30), commencing
Exhibit E
Page 2
with the report for the 2012-13 Fiscal Year, which is due not later than March 31, 2014, file with EMMA, in
a readable PDF or other electronic format as prescribed by the MSRB, an Annual Report that is
consistent with the requirements of Section 4 of this Disclosure Certificate. The Annual Report may be
submitted as a single document or as separate documents comprising a package and may cross-
reference other information as provided in Section 4 of this Disclosure Certificate; provided that the
audited financial statements of the City may be submitted separately from the balance of the Annual
Report and later than the date required above for the filing of the Annual Report if they are not available
by that date.
(b) Change of Fiscal Year. If the City’s fiscal year changes, it shall give notice of such change in
the same manner as for a Listed Event under Section 5(c), and subsequent Annual Report filings shall be
made no later than nine months after the end of such new fiscal year end.
(c) Delivery of Annual Report to Dissemination Agent. Not later than fifteen (15) Business Days
prior to the date specified in subsection (a) (or, if applicable, subsection (b)) of this Section 3 for providing
the Annual Report to EMMA, the City shall provide the Annual Report to the Dissemination Agent (if other
than the City). If by such date, the Dissemination Agent has not received a copy of the Annual Report, the
Dissemination Agent shall notify the City.
(d) Report of Non-Compliance. If the City is the Dissemination Agent and is unable to file an
Annual Report by the date required in subsection (a) (or, if applicable, subsection (b)) of this Section 3,
the City shall send a notice to EMMA substantially in the form attached hereto as Exhibit A. If the City is
not the Dissemination Agent and is unable to provide an Annual Report to the Dissemination Agent by the
date required in subsection (c) of this Section 3, the Dissemination Agent shall send a notice to EMMA in
substantially the form attached hereto as Exhibit A.
(e) Annual Compliance Certification. The Dissemination Agent shall, if the Dissemination Agent is
other than the City, file a report with the City certifying that the Annual Report has been filed with EMMA
pursuant to Section 3 of this Disclosure Certificate, stating the date it was so provided and filed.
Section 4. Content of Annual Reports. The Annual Report shall contain or incorporate by
reference the following:
(a) Financial Statements. Audited financial statements of the City for the preceding fiscal year,
prepared in accordance generally accepted accounting principles. If the City’s audited financial
statements are not available by the time the Annual Report is required to be filed pursuant to Section
3(a), the Annual Report shall contain unaudited financial statements in a format similar to the financial
statements contained in the final Official Statement, and the audited financial statements shall be filed in
the same manner as the Annual Report when they become available.
(b) Other Annual Information. To the extent not included in the audited final statement of the City,
the Annual Report shall also include operating data with respect to the City for preceding fiscal year,
substantially similar to that provided in the corresponding tables and charts in the official statement for the
Bonds describing assessed valuations and tax collection records.
(c) Cross References. Any or all of such items may be included by specific reference to other
documents, including official statements of debt issues of the City or related public entities, which are
available to the public on EMMA. The City shall clearly identify each such other document so included by
reference.
If the document included by reference is a final official statement, it must be available from
EMMA.
(d) Further Information. In addition to any of the information expressly required to be provided
under paragraph (b) of this Section 4, the City shall provide such further information, if any, as may be
Exhibit E
Page 3
necessary to make the specifically required statements, in the light of the circumstances under which they
are made, not misleading.
Section 5. Reporting of Listed Events.
(a) Reportable Events. The City shall, or shall cause the Dissemination Agent (if not the City) to,
give notice of the occurrence of any of the following events with respect to the Bonds:
(1) Principal and interest payment delinquencies.
(2) Unscheduled draws on debt service reserves reflecting financial difficulties.
(3) Unscheduled draws on credit enhancements reflecting financial difficulties.
(4) Substitution of credit or liquidity providers, or their failure to perform.
(5) Defeasances.
(6) Rating changes.
(7) Tender offers.
(8) Bankruptcy, insolvency, receivership or similar event of the obligated person.
(9) Adverse tax opinions, the issuance by the Internal Revenue Service of proposed
or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-
TEB) or other material notices or determinations with respect to the tax status of
the security, or other material events affecting the tax status of the security.
(b) Material Reportable Events. The City shall give, or cause to be given, notice of the occurrence
of any of the following events with respect to the Bonds, if material:
(1) Non-payment related defaults.
(2) Modifications to rights of security holders.
(3) Bond calls.
(4) The release, substitution, or sale of property securing repayment of the
securities.
(5) The consummation of a merger, consolidation, or acquisition involving an
obligated person or the sale of all or substantially all of the assets of the
obligated person, other than in the ordinary course of business, the entry into a
definitive agreement to undertake such an action or the termination of a definitive
agreement relating to any such actions, other than pursuant to its terms.
(6) Appointment of a successor or additional trustee, or the change of name of a
trustee.
(c) Time to Disclose. Whenever the City obtains knowledge of the occurrence of a Listed Event,
the City shall, or shall cause the Dissemination Agent (if not the City) to, file a notice of such occurrence
with EMMA, in an electronic format as prescribed by the MSRB, in a timely manner not in excess of 10
business days after the occurrence of the Listed Event. Notwithstanding the foregoing, notice of Listed
Events described in subsections (a)(5) and (b)(3) above need not be given under this subsection any
Exhibit E
Page 4
earlier than the notice (if any) of the underlying event is given to owners of affected Bonds under the
Resolution.
Section 6. Identifying Information for Filings with EMMA. All documents provided to EMMA under
this Disclosure Certificate shall be accompanied by identifying information as prescribed by the MSRB.
Section 7. Termination of Reporting Obligation. The City’s obligations under this Disclosure
Certificate shall terminate upon the defeasance, prior redemption or payment in full of all of the Bonds. If
such termination occurs prior to the final maturity of the Bonds, the City shall give notice of such
termination in the same manner as for a Listed Event under Section 5(c).
Section 8. Dissemination Agent.
(a) Appointment of Dissemination Agent. The City may, from time to time, appoint or engage a
Dissemination Agent to assist it in carrying out its obligations under this Disclosure Certificate and may
discharge any such agent, with or without appointing a successor Dissemination Agent. If the
Dissemination Agent is not the City, the Dissemination Agent shall not be responsible in any manner for
the content of any notice or report prepared by the City pursuant to this Disclosure Certificate. It is
understood and agreed that any information that the Dissemination Agent may be instructed to file with
EMMA shall be prepared and provided to it by the City. The Dissemination Agent has undertaken no
responsibility with respect to the content of any reports, notices or disclosures provided to it under this
Disclosure Certificate and has no liability to any person, including any Bond owner, with respect to any
such reports, notices or disclosures. The fact that the Dissemination Agent or any affiliate thereof may
have any fiduciary or banking relationship with the City shall not be construed to mean that the
Dissemination Agent has actual knowledge of any event or condition, except as may be provided by
written notice from the City.
(b) Compensation of Dissemination Agent. The Dissemination Agent shall be paid compensation
by the City for its services provided hereunder in accordance with its schedule of fees as agreed to
between the Dissemination Agent and the City from time to time and all expenses, legal fees and
expenses and advances made or incurred by the Dissemination Agent in the performance of its duties
hereunder. The Dissemination Agent shall not be deemed to be acting in any fiduciary capacity for the
City, owners or Beneficial Owners, or any other party. The Dissemination Agent may rely, and shall be
protected in acting or refraining from acting, upon any direction from the City or an opinion of nationally
recognized bond counsel. The Dissemination Agent may at any time resign by giving written notice of
such resignation to the City. The Dissemination Agent shall not be liable hereunder except for its
negligence or willful misconduct.
(c) Responsibilities of Dissemination Agent. In addition of the filing obligations of the
Dissemination Agent set forth in Sections 3(e) and 5, the Dissemination Agent shall be obligated, and
hereby agrees, to provide a request to the City to compile the information required for its Annual Report at
least 30 days prior to the date such information is to be provided to the Dissemination Agent pursuant to
subsection (c) of Section 3. The failure to provide or receive any such request shall not affect the
obligations of the City under Section 3.
Section 9. Amendment; Waiver. Notwithstanding any other provision of this Disclosure Certificate,
the City may amend this Disclosure Certificate (and the Dissemination Agent shall agree to any
amendment so requested by the City that does not impose any greater duties or risk of liability on the
Dissemination Agent), and any provision of this Disclosure Certificate may be waived, provided that all of
the following conditions are satisfied:
(a) Change in Circumstances. If the amendment or waiver relates to the provisions of Sections
3(a), 4 or 5(a) or (b), it may only be made in connection with a change in circumstances that arises from a
change in legal requirements, change in law, or change in the identity, nature, or status of an obligated
person with respect to the Bonds, or the type of business conducted.
Exhibit E
Page 5
(b) Compliance as of Issue Date. The undertaking, as amended or taking into account such
waiver, would, in the opinion of a nationally recognized bond counsel, have complied with the
requirements of the Rule at the time of the original issuance of the Bonds, after taking into account any
amendments or interpretations of the Rule, as well as any change in circumstances.
(c) Consent of Holders; Non-impairment Opinion. The amendment or waiver either (i) is approved
by the Bond owners in the same manner as provided in the Resolution for amendments to the Resolution
with the consent of Bond owners, or (ii) does not, in the opinion of nationally recognized bond counsel,
materially impair the interests of the Bond owners or Beneficial Owners.
If this Disclosure Certificate is amended or any provision of this Disclosure Certificate is waived,
the City shall describe such amendment or waiver in the next following Annual Report and shall include,
as applicable, a narrative explanation of the reason for the amendment or waiver and its impact on the
type (or in the case of a change of accounting principles, on the presentation) of financial information or
operating data being presented by the City. In addition, if the amendment relates to the accounting
principles to be followed in preparing financial statements, (i) notice of such change shall be given in the
same manner as for a Listed Event under Section 5(c), and (ii) the Annual Report for the year in which
the change is made should present a comparison (in narrative form and also, if feasible, in quantitative
form) between the financial statements as prepared on the basis of the new accounting principles and
those prepared on the basis of the former accounting principles.
Section 10. Additional Information. Nothing in this Disclosure Certificate shall be deemed to
prevent the City from disseminating any other information, using the means of dissemination set forth in
this Disclosure Certificate or any other means of communication, or including any other information in any
Annual Report or notice of occurrence of a Listed Event, in addition to that which is required by this
Disclosure Certificate. If the City chooses to include any information in any Annual Report or notice of
occurrence of a Listed Event in addition to that which is specifically required by this Disclosure Certificate,
the City shall have no obligation under this Disclosure Certificate to update such information or include it
in any future Annual Report or notice of occurrence of a Listed Event.
Section 11. Default. In the event of a failure of the City to comply with any provision of this
Disclosure Certificate, any Bond owner or Beneficial Owner may take such actions as may be necessary
and appropriate, including seeking mandate or specific performance by court order, to cause the City to
comply with its obligations under this Disclosure Certificate. The sole remedy under this Disclosure
Certificate in the event of any failure of the City to comply with this Disclosure Certificate shall be an
action to compel performance.
Section 12. Duties, Immunities and Liabilities of Dissemination Agent. The Dissemination Agent
shall have only such duties as are specifically set forth in this Disclosure Certificate, and no implied
covenants or obligations shall be read into this Disclosure Certificate against the Dissemination Agent,
and the City agrees to indemnify and save the Dissemination Agent, its officers, directors, employees and
agents, harmless against any loss, expense and liabilities which it may incur arising out of or in the
exercise or performance of its powers and duties hereunder, including the costs and expenses (including
attorneys fees and expenses) of defending against any claim of liability, but excluding liabilities due to the
Dissemination Agent’s negligence or willful misconduct. The Dissemination Agent shall have the same
rights, privileges and immunities hereunder as are afforded to the Trustee under the Resolution. The
obligations of the City under this Section 12 shall survive resignation or removal of the Dissemination
Agent and payment of the Bonds.
Exhibit E
Page 6
Section 13. Beneficiaries. This Disclosure Certificate shall inure solely to the benefit of the City,
the Dissemination Agent, the Participating Underwriter and the owners and Beneficial Owners from time
to time of the Bonds, and shall create no rights in any other person or entity.
Date: October 16, 2013
CITY OF ALAMEDA, CALIFORNIA
By
Name
Title
ACKNOWLEDGED:
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Dissemination Agent
By
Name
Title
Exhibit E
Page 7
EXHIBIT A
NOTICE TO MSRB OF FAILURE TO FILE ANNUAL REPORT
Name of Obligor: City of Alameda
Name of Issue: $___________ City of Alameda 2013 General Obligation Refunding Bonds
Date of Issuance: October 16, 2013
NOTICE IS HEREBY GIVEN that the Obligor has not provided an Annual Report with respect to the
above-named Issue as required by the Continuing Disclosure Certificate, dated October 16, 2013,
furnished by the Obligor in connection with the Issue. The Obligor anticipates that the Annual Report will
be filed by _________________.
Date: ________________
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., Dissemination Agent
By
Authorized Officer
*******
I,theundersignedherebycertifythattheforegoingResolutionwasdulyand
regularlyadoptedandpassedbytheCounciloftheCityofAlamedainaregular
meetingassembledonthe17thdayofSeptember,2013,bythefollowingvotetowit:
AYES:CouncilmembersChen,Daysog,EzzyAshcraft,Tamand
MayorGilmore-5.
NOES:None.
ABSENT:None.
ABSTENTIONS:None.
INWITNESSWHEREOF,Ihavehereuntosetmyhandandaffixedthesealof
saidCitythis18thdayofSeptember,2013.
araWeisiger,City
CityofAlameda
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