HomeMy WebLinkAboutCC RES 09-63RESOLUTION NO. 09-63
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT PROVIDING FOR THE ISSUANCE AND SALE OF LIMITED
OBLIGATION IMPROVEMENT BONDS IN PRINCIPAL AMOUNT NOT
TO EXCEED ONE MILLION FIVE HUNDRED THOUSAND DOLLARS
($1,500,000), APPROVING AS TO FORM AND AUTHORIZING THE
EXECUTION AND DELIVERY OF A BOND PURCHASE AGREEMENT
IN CONNECTION THEREWITH, AND AUTHORIZING CERTAIN OTHER
MATTERS RELATING THERETO
RECITALS:
A. The City Council of the City of Palm Desert, California (the "City")
by its Resolution No. 08-75 ("Resolution 08-75") declared its intention to establish the
City of Palm Desert Energy Independence Program (the "EIP") to finance the acquisition
and construction or installation of distributed generation renewable energy sources and
energy efficiency improvements (the "Improvements") on or in properties in the City
through contractual assessments pursuant to Chapter 29 of Part 3 of Division 7 of the
California Streets and Highways Code, commencing with Section 5898.10, (the "Act")
and ordered the preparation and filing of a report (the "Report") with the City Council
and provided that bonds may be issued under Resolution 08-75 pursuant to the
provisions of the Act or, as Resolution 08-75 has heretofore been amended by
Resolution No. 08-89 (adopted on August 28, 2008) and Resolution No. 09-2 (adopted
on January 22, 2009) (Resolution 08-75, as so amended is referred to herein as the
"Resolution of Intention"), pursuant to the provisions of Title 17 (the "Municipal Code") of
the Palm Desert Municipal Code as it may be amended from time to time.
B. Following notice duly given in accordance with law, the City Council
held a public hearing regarding the EIP as described in the Report.
C. Following the public hearing, pursuant to its Resolution No. 08-89,
the City Council established the EIP and confirmed contractual assessments to be
levied against properties in the City within the parameters of the Report.
D. In accordance with Resolution No. 08-89, the City advanced $2.5
million of its own funds to the "Energy Independence Fund," a special trust fund
established and held by the City for the purpose of extending Loans to property owners
to finance Improvements to the owners' properties.
E. Pursuant to the EIP, the City entered into certain contractual
assessment agreements with property owners whereby the City extended loans to
certain property owners to finance Improvements to the owners' properties.
G. Pursuant to such contractual assessment agreements, the property
owners who are parties to such agreements agreed to repay the loans through the levy
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of assessments by the City against the property owners' properties pursuant to Section
5898.30 of the Act.
E. To additionally fund the EIP, on January 29, 2009 the City issued
on a private placement basis to the Palm Desert Redevelopment Agency (the "Agency")
its not -to -exceed $2,500,000 initial principal amount Energy Independence Program
Limited Obligation Improvement Bond, Series 2009A (Taxable) (the "2009A Bond"), in
the form of a draw -down bond up to the actual aggregate principal amount of
assessments securing such 2009A Bond, and such actual principal amount of such
assessments and such since been determined to be $2,015,000.
F. Pursuant to the EIP, the City has entered into certain additional
contractual assessment agreements as identified on Exhibit B hereof (each, a
"Contractual Assessment Agreement") with certain property owners whereby the City
has extended loans (each, a "Loan") to such property owners to finance Improvements
to the owners' properties.
G. Pursuant to the Contractual Assessment Agreements, the property
owners who are parties to such agreements have agreed to repay the Loans through
the levy of assessments by the City against the property owners' properties pursuant to
Section 5898.30 of the Act (each, an "Assessment").
H. The City Council desires to issue its City of Palm Desert, Energy
Independence Program, Limited Obligation Improvement Bonds, Series 2009B
(Taxable) (the "Bonds") under and pursuant to the Municipal Code to provide additional
funds to the Energy Independence Fund for the purpose of making additional
contractual assessment agreements and loans to additional property owners pursuant
to the EIP.
H. In order to effectuate the sale of the Bonds, the City Council desires
to approve the form of, and authorize the execution and delivery of, a bond purchase
agreement (the "Purchase Agreement"), the form of which is on file with the City Clerk.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA HEREBY FINDS, DETERMINES, RESOLVES AND ORDERS
AS FOLLOWS:
SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION;
AUTHORIZATION AND PURPOSE OF BONDS: EQUAL SECURITY.
Section 1.1. Definitions. Unless the context otherwise requires, the
following terms shall, for all purposes of this Resolution and of any Supplemental
Resolution and of the Bonds, and of any certificate, opinion or other document herein
mentioned, have the following meanings:
"Act" means Chapter 29 of Part 3 of Division 7 of the California Streets
and Highways Code, commencing with Section 5898.10.
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"Agency" means the Palm Desert Redevelopment Agency.
"Assessment Installments" means the installments of principal, interest
and premium, if any, to be paid on the unpaid Assessments by the owners of real
property as provided by the applicable Contractual Assessment Agreements. The term
"Assessment Installments" does not include (i) the prepayment premium paid after the
fifth (5th) anniversary of the Bond Date by property owners pursuant to Section 1(f) of
the Contractual Assessment Agreements or (ii) the "Annual Administrative Assessment"
paid by property owners pursuant to Section 1(d) of the Contractual Assessment
Agreements.
"Assessment Revenues" means the revenues received by the City in each
Fiscal Year from the collection of the annual Assessment Installments, including any
interest and penalties thereon and the proceeds of the exercise of any of the remedies
for delinquent payments available hereunder or under the Act.
"Assessments" means the unpaid assessments levied by the City
pursuant to the Act under the proceedings taken pursuant to the Resolution of Intention,
constituting a first lien and charge upon real properties in the City as provided by the
applicable Contractual Assessment Agreements.
"Authorized Investments" means any obligation in which the City may
lawfully invest its funds.
"Authorized Representative of the City" means the Mayor, the City
Manager and any other person designated by such officers and authorized to act on
behalf of the City pursuant to this Resolution or any Supplemental Resolution.
"Bond Date" means the dated date of the Bonds, which shall be the
Closing Date.
"Bonds" means the limited obligation improvement bonds authorized by
and at any time Outstanding pursuant to the provisions of this Resolution and as
designated pursuant to Section 2.3 hereof.
"Business Day" means any day other than (i) a Saturday or a Sunday or
(ii) a day on which banking institutions in the State or the Federal Reserve System are
authorized or obligated by law or executive order to be closed.
"City" means the City of Palm Desert, California.
"City Council" means the City Council of the City.
"City Manager" means the City Manager of the City.
"City Treasurer" means the City Treasurer of the City.
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"Closing Date" means the date of delivery of the Bonds to or upon the
order of the Purchaser.
"Contractual Assessment Agreements" means the agreements by and
between the City and the property owners identified in Exhibit B hereto, whereby the
City has extended Loans to such property owners to finance Improvements to the
owners' properties.
"County" means the County of Riverside, California.
"Debt Service Schedule" means the debt service schedule set forth in
Exhibit A of the Purchase Agreement authorized and executed pursuant to Section
9.7(d) hereof.
"Energy Independence Fund" means the fund by that name described in
Recital F herein.
"Federal Securities" means those securities described in Sections 1360
and 1360.1 of the California Financial Code and includes United States Treasury notes,
bonds, bills or certificates of indebtedness, or obligations for which the faith and credit of
the United States are pledged for the payment of principal and interest, including the
guaranteed portions of small business administration loans so long as the loans are
obligations for which the faith and credit of the United States are pledged for the
payment of principal and interest.
"Fiscal Year" means any twelve-month period extending from July 1st in
one calendar year to June 30th of the succeeding calendar year, both dates inclusive,
or any other twelve-month period selected and designated by the City as its official
fiscal year period.
"Improvements" means the qualifying distributed generation renewable
energy sources and energy efficiency improvements acquired and constructed or
installed on or in properties in the City pursuant to the Contractual Assessment
Agreements.
"Independent Public Accountant" means any certified public accountant or
firm of certified public accountants appointed and paid by the City or the Agency, who,
or each of whom (i) is in fact independent and not under domination of the City or the
Agency; (ii) does not have any substantial interest, direct or indirect, in the City or the
Agency; and (iii) is not connected with the City or the Agency as an officer or employee
of the City or the Agency but who may be regularly retained to make annual or other
audits of the books of, or reports to, the City or the Agency.
"Interest Payment Date" means March 2 and September 2 in each year,
beginning March 2, 2010 and continuing thereafter so long as any Bonds remain
Outstanding; provided, however, that, if any such day is not a Business Day, interest up
to the Interest Payment Date will be paid on the Business Day next succeeding such
date.
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"Loans" has the meaning provided in Paragraph D of the Recitals herein.
"Maturity Date" means the date specified in any Bond on which the
principal of such Bond becomes due and payable.
"Municipal Code" means Title 17 of the Palm Desert Municipal Code as it
may be amended from time to time, relating to a complete, additional, and alternative
method for issuing bonds to be secured by Contractual Assessments levied pursuant to
the Act.
"Outstanding" when used as of any particular time with reference to
Bonds, means (subject to the provisions of Section 9.6) all Bonds theretofore executed,
issued and delivered by the City under this Resolution except (i) Bonds theretofore
cancelled by the City Treasurer or surrendered to the City Treasurer for cancellation,
(ii) Bonds paid and discharged pursuant to the terms of Section 6, and (iii) Bonds in lieu
of or in substitution for which other Bonds shall have been executed, issued and
delivered pursuant to this Resolution.
"Owner" when used with respect to any Bond, means the person in whose
name the ownership of such Bond is registered on the Registration Books maintained
by the City.
"Principal Payment Date" means September 2 of each year, commencing
September 2, 2010.
"Purchaser" means the Agency.
"Record Date" means, with respect to any Interest Payment Date, the
fifteenth day of the calendar month immediately preceding the applicable Interest
Payment Date, whether or not such day is a Business Day.
"Redemption Date" means, with respect to any Bonds, the date on which
such Bonds have been called for redemption pursuant to the terms of this Resolution
prior to their Maturity Date.
"Redemption Fund" means the fund by that name created and established
pursuant to Section 4.2 hereof.
"Redemption Notice" has the meaning provided in Section 3.4 hereof.
"Registration Books" means the records maintained by the City Treasurer
pursuant to Section 2.9 hereof for the registration and transfer of ownership of the
Bonds.
"Resolution" means this Resolution and includes subsequent amendments
hereof and any Supplemental Resolution.
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"Resolution of Intention" means Resolution No. 08-75, as amended by
Resolution No. 08-89 and Resolution No. 09-2 of the City Council.
"State" means the State of California.
"Supplemental Resolution" means any resolution adopted by the City
Council amendatory of or supplemental to this Resolution.
Section 1.2. Rules of Construction. All references in this Resolution to
"Sections," and other subdivisions, unless indicated otherwise, are to the corresponding
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 Section or subdivision hereof.
Section 1.3. Authorization and Purpose of Bonds. The City has reviewed
all proceedings heretofore taken relative to the authorization of the Bonds and has
found, as a result of such review, and hereby finds and determines that all things,
conditions and acts required by law to exist, happen and be performed precedent to and
in the issuance of the Bonds do exist, have happened and have been performed in due
time, form and manner as required by law, and the City is now authorized, pursuant to
each and every requirement of law, to issue the Bonds in the manner and form as in this
Resolution provided. The City Council hereby authorizes the issuance of the Bonds
pursuant to the Municipal Code and this Resolution for the purpose of reimbursing the
City for funds that the City advanced to make Loans to finance the Improvements.
Section 1.4. Equal Security. In consideration of the acceptance of the
Bonds by the Owners thereof, this Resolution shall be deemed to be and shall
constitute a contract between the City and the Owners of the Bonds; and the covenants
and agreements herein set forth to be performed on behalf of the City shall be for the
equal and proportionate benefit, security and protection of all Owners of the Bonds
without preference, priority or distinction as to security or otherwise of any of the Bonds
over any of the others by reason of the number or date thereof or the time of sale,
execution or delivery thereof, or otherwise for any cause whatsoever, except as
expressly provided therein or herein.
SECTION 2. THE BONDS.
Section 2.1. Equality of Bonds; Pledge.
(a) The City hereby pledges, in trust for the protection and security of
the Owners, all of its right, title and interest in the Assessment Revenues, and all other
funds, accounts and sub -accounts created hereunder for the payment of principal of
(including sinking fund payments pursuant to Section 3.1(b)), premium (if any), and
interest on the Bonds. Pursuant to the Municipal Code and this Resolution, the Bonds
shall be and are equally secured by a pledge of and lien upon the Assessment
Revenues, and the amounts on deposit in the aforementioned funds and accounts.
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(b) The Bonds and interest thereon are not payable from the general
funds of the City. Neither the credit nor the taxing power of the City is pledged for the
payment of the Bonds or the interest thereon, and no Owner of the Bonds may compel
the exercise of any taxing power by the City or force the forfeiture of any of its property.
The principal of (including sinking fund payments pursuant to Section 3.1(b)), and
premium (if any) and interest on the Bonds are not a debt of the City nor a legal or
equitable pledge, charge, lien or encumbrance upon any of its property, or upon any of
its income, receipts or revenues, other than the Assessment Revenues and the funds
described in Section 2.1(a) above.
Section 2.2. Collection of Assessments. The Assessment Installments
shall be payable as provided in the Contractual Assessment Agreements and shall be
payable in the same manner and at the same time and in the same installments as
general taxes on real property are payable, and become delinquent at the same times
and in the same proportionate amounts and bear the same proportionate penalties and
interest after delinquency as do general taxes on real property. Nothing in this
Resolution or in any Supplemental Resolution shall preclude the redemption prior to
maturity of any Bonds or the payment of the Bonds from proceeds of refunding bonds
issued under any law of the State.
Section 2.3. Issuance of Bonds to Represent Unpaid Assessments:
Authorization to Complete Debt Service Schedule. The issuance of the Bonds, in an
aggregate principal amount not to exceed $[1,500,000], is hereby authorized as
provided in this Resolution in accordance with the provisions of the Resolution of
Intention and the Municipal Code and the proceedings conducted thereunder, with the
exact principal amount of the Bonds to be determined by the official signing the
Purchase Agreement in accordance with Section 9.7(d) below. The Bonds shall be
designated as "City of Palm Desert, Energy Independence Program, Limited Obligation
Improvement Bonds, Series 2009B (Taxable)." The Bonds shall be issued only in fully
registered form without coupons in the denomination of $5,000 or any integral multiple
thereof, or in such other denomination or denominations as determined by the City
Treasurer. The Bonds shall be in the form of a single bond subject to mandatory
sinking fund payments in accordance with Section 3.1(b) hereof, shall be dated the
Closing Date, shall mature and be payable on September 2 in the years and in the
principal amounts specified in the Debt Service Schedule. The Bonds shall bear
interest at such rate or rate(s) as would yield the amount of interest payable on each
Interest Payment Date, as set forth in the Debt Service Schedule, but in any event at an
overall rate not to exceed the rate determined in accordance with Section 9.7(d) hereof.
Section 2.4. Medium and Payment. Principal of, and premium (if any)
and interest on the Bonds shall be payable in lawful money of the United States of
America. The principal of (including sinking fund payments pursuant to Section 3.1(b))
the Bonds shall be payable on each Principal Payment Date in accordance with the
Debt Service Schedule. Interest on the Bonds shall be payable on each Interest
Payment Date in accordance with the Debt Service Schedule. Interest on the Bonds
shall be payable from the Interest Payment Date next preceding the date of
authentication of the Bonds, unless (i) such date of authentication is an Interest
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Payment Date, in which event interest shall be payable from such date of
authentication, (ii) the date of authentication is after a Record Date but prior to the
immediately succeeding Interest Payment Date, in which event interest shall be payable
from such Interest Payment Date, or (iii) the date of authentication is prior to the close of
business on the first Record Date, in which event interest shall be payable from the
Bond Date; provided, however, that if at the time of authentication of such Bond, interest
is in default, interest on that Bond shall be payable from the last Interest Payment Date
to which the interest has been paid or made available for payment.
Principal of (including sinking fund payments pursuant to Section 3.1(b))
and interest on any Bond shall be paid by check of the City mailed by the City Treasurer
on or before the Interest Payment Date by first class mail, postage prepaid, to the
person whose name appears in the Registration Books as the Owner of such Bond as
of the close of business on the Record Date, to the address that appears on the
Registration Books (or in such other manner as determined by the Purchaser if the
Purchaser is the sole Owner of the Bonds), provided that the payment of principal of the
Bonds on the Maturity Date and the payment of the principal of the Bonds and any
premium due upon the redemption thereof shall be payable upon presentation and
surrender thereof at maturity or earlier redemption at the office of the City Treasurer. In
addition, upon a request in writing received by the City Treasurer on or before the
applicable Record Date from an Owner of $1,000,000 or more in principal amount of the
Bonds, payment shall be made on the Interest Payment Date by wire transfer in
immediately available funds to an account designated by such Owner.
Each Bond shall bear interest until its principal sum has been paid;
provided, however, that if at the Maturity Date of any Bond, or if at the redemption date
of any Bond which has been duly called for redemption as herein provided, funds are
available for the payment or redemption thereof in full accordance with the terms of this
Resolution, the Bond shall then cease to bear interest.
Section 2.5. Form of Bonds and Certificate of Authentication and
Registration. The Bonds shall be sold to the Purchaser and shall be initially issued in
the form of a fully registered bond or bonds registered in the name of the Purchaser.
The form of the Bond, the form of the certificate of authentication and the form of
registration thereon shall be substantially in the form attached hereto as Exhibit A and
incorporated herein by this reference. The Bonds may be printed, lithographed or
typewritten and may contain such reference to any of the provisions of this Resolution
as may be appropriate.
Section 2.6. Execution and Authentication. The Bonds shall be executed
by the manual or facsimile signature of the City Manager and attested by the manual or
facsimile signature of the City Clerk and the seal of the City (or a facsimile thereof) shall
be impressed, imprinted, engraved or otherwise reproduced thereon. In case any one
or more of the officers who shall have signed or sealed any of the Bonds shall cease to
be such officer before the Bonds so signed and sealed have been authenticated and
delivered by the City Treasurer (including new Bonds delivered pursuant to the
provisions hereof with reference to the transfer and exchange of Bonds or to lost,
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stolen, destroyed or mutilated Bonds), such Bonds may, nevertheless, be authenticated
and delivered as herein provided, and may be issued as if the persons who signed or
sealed such Bonds had not ceased to hold such offices.
The Bonds shall bear thereon a certificate of authentication and
registration, in the form set forth in Exhibit A hereto, executed by the manual signature
of the City Treasurer. Only such Bonds as shall bear thereon such certificate of
authentication and registration shall be entitled to any right or benefit under this
Resolution, and no Bond shall be valid or obligatory for any purpose until such
certificate of authentication and registration shall have been duly executed by the City
Treasurer.
Section 2.7. Registration of Exchange or Transfer. The registration of any
Bond may, in accordance with its terms, be transferred upon the Registration Books by
the person in whose name it is registered, in person or by his or her duly authorized
attorney, upon surrender of such Bond for cancellation at the office of the City
Treasurer, accompanied by delivery of a written instrument of transfer in a form
acceptable to the City Treasurer and duly executed by the Owner or his or her duly
authorized attorney. Bonds may be exchanged at the office of the City Treasurer for a
like aggregate principal amount of Bonds of other authorized denominations. The City
will not charge for any new Bond issued upon any exchange, but may require the
Owner requesting such transfer or exchange to pay any tax or other governmental
charge required to be paid with respect to such transfer or exchange. Whenever any
Bond or Bonds shall be surrendered for registration of transfer or exchange, the City
Treasurer shall authenticate and deliver a new Bond or Bonds; provided that the City
Treasurer shall not be required to register transfers or make exchanges of (i) Bonds for
a period of 15 days next preceding the date of any selection of Bonds to be redeemed,
or (ii) any Bonds chosen for redemption.
Section 2.8. Mutilated, Lost, Destroyed or Stolen Bonds. If any Bond
shall become mutilated, the City Manager, at the expense of the Owner of such Bond,
shall execute, and the City Treasurer shall thereupon authenticate and deliver, a new
Bond of like series, tenor, maturity and aggregate principal amount in authorized
denomination in exchange and substitution for the Bond so mutilated, but only upon
surrender to the City Treasurer of the Bond so mutilated. Every mutilated Bond so
surrendered to the City Treasurer shall be cancelled and destroyed. If any Bond issued
hereunder shall be lost, destroyed or stolen, evidence of such loss, destruction or theft
may be submitted to the City Treasurer and, if such evidence be satisfactory to the City
Treasurer and indemnity satisfactory to the City Treasurer shall be given, the City
Manager, at the expense of the Owner, shall execute, and the City Treasurer shall
thereupon authenticate and deliver, a new Bond of like series and tenor in lieu of and in
substitution for the Bond so lost, destroyed or stolen (or if any such Bond shall have
matured or shall have been called for redemption, instead of issuing a substitute Bond,
the City Treasurer may pay the same without surrender thereof upon receipt of
indemnity satisfactory to the City Treasurer). The City Treasurer may require payment
of a reasonable fee for each new Bond issued under this Section 2.8 and of the
expenses which may be incurred by the City and the City Treasurer. Any Bond issued
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under the provisions of this Section 2.8 in lieu of any Bond alleged to be lost, destroyed
or stolen shall constitute an original contractual obligation on the part of the City
whether or not the Bond alleged to be lost, destroyed or stolen be at any time
enforceable by anyone, and shall be equally and proportionately entitled to the benefits
of this Resolution with all other Bonds secured by this Resolution.
Section 2.9. Registration Books. The City Treasurer will keep or cause to
be kept, at the office of the City, sufficient books for the registration and transfer of the
Bonds, and, upon presentation for such purpose, the City Treasurer shall, under such
reasonable regulations as he or she may prescribe, register or transfer or cause to be
registered or transferred, on the Registration Books, Bonds as herein provided.
The City may treat the Owner of any Bond whose name appears on the
Registration Books as the absolute Owner of such Bond for any and all purposes, and
the City shall not be affected by any notice to the contrary. The City may rely on the
address of the Owner as it appears in the Registration Books for any and all purposes.
It shall be the duty of each Owner to give written notice to the City of any change in
such Owner's address so that the Registration Books may be revised accordingly.
Section 2.10. Validity of the Bonds. The validity of the authorization and
issuance of the Bonds shall not be dependent upon the completion of the Improvements
or upon the performance by any person of such person's obligation with respect to the
Improvements.
Section 2.11. Refundina of Bonds. The Bonds may be refunded by the
City as permitted by and in accordance with applicable law including, but not limited to,
the Municipal Code.
Section 2.12. No Acceleration. The principal of the Bonds shall not be
subject to acceleration hereunder. Nothing in this Section shall in any way prohibit the
redemption of Bonds under Section 3 hereof, or the defeasance of the Bonds and
discharge of all obligations of the City under this Resolution under Section 6 hereof.
SECTION 3. REDEMPTION OF BONDS.
Section 3.1. Mandatory Redemption.
(a) Mandatory Redemption from Prepayments of Assessments. The
Bonds shall be redeemed prior to maturity, in whole or in part on any date by lot within a
maturity from monies on deposit and available for such purpose in the Assessment
Prepayment Account of the Redemption Fund after making the disbursements required
in Section 4.5(a) through (d), from the sources, to the extent of and in the manner set
forth in the fourth paragraph of Section 4.3 hereof, at a redemption price, expressed as
a percentage of the principal amount of the Bonds to be redeemed, of 103 percent for
the first five years of the term of the Bonds together with accrued interest to the date of
redemption; provided, so long as the Purchaser is the sole Owner of the Bonds, the
Purchaser may waive (pursuant to Section 9.8 hereof) the right to receive any
redemption premium pursuant to this Section 3.1, upon which waiver the redemption
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price shall be equal to 100 percent of the principal amount of the Bonds to be
redeemed. After the first five years of the term of the Bonds, the redemption price shall
be equal to 100 percent of the principal amount of the Bonds to be redeemed.
(b) Mandatory Redemption From Sinking Fund Payments. The Bonds
shall be called before maturity and redeemed, from the sinking fund payments that have
been deposited into the Redemption Fund commencing September 2, 2010 and on
each September 2 thereafter prior to maturity, in accordance with the schedule of
sinking fund payments set forth in the Purchase Agreement authorized and executed
pursuant to Section 9.7(d) hereof. The Bonds so called for redemption shall be selected
by the City Treasurer by lot and shall be redeemed at a redemption price for each
redeemed Bond equal to the principal amount thereof, plus accrued interest to the
redemption date, without premium.
Section 3.2. Optional Redemption. The Bonds may be redeemed prior to
maturity, in whole or in part on any Interest Payment Date by lot within a maturity from
monies on deposit and available for such purpose in the Redemption Fund from
sources other than those referred to in Section 3.1, at the option of the City, at a
redemption price, expressed as a percentage of the principal amount of the Bonds to be
redeemed, of 103 percent for the first five years of the term of the Bonds together with
accrued interest to the date of redemption; provided, so long as the Purchaser is the
sole Owner of the Bonds, the Purchaser may waive (pursuant to Section 9.8 hereof) the
right to receive any redemption premium pursuant to this Section 3.2, upon which
waiver the redemption price shall be equal to 100 percent of the principal amount of the
Bonds to be redeemed. After the first five years of the term of the Bonds, the
redemption price shall be equal to 100 percent of the principal amount of the Bonds to
be redeemed.
Section 3.3. Selection of Bonds for Redemption. If less than all of the
Outstanding Bonds are to be redeemed pursuant to Section 3.1 or Section 3.2, the City
Treasurer shall select the Bonds to be redeemed in such a way that the ratio of
Outstanding Bonds to issued Bonds shall be approximately the same within each
maturity insofar as possible. Within each maturity, the Bonds shall be selected for
redemption by lot in any manner that the City Treasurer deems fair.
Section 3.4. Notice of Redemption. In the event that Bonds are to be
redeemed as provided in this Section 3, at least 30 days, or other such shorter period
upon the consent of the Owners of any Bonds designated for redemption, but not more
than 60 days prior to any Redemption Date, a notice of redemption (the "Redemption
Notice") shall be sent by personal service, or registered or certified mail by the City
Treasurer to the Owners of any Bonds designated for redemption and, if the Purchaser
is not the sole Owner of the Bonds, to such securities depositories and securities
information services as shall be designated by the City Treasurer. Such Redemption
Notice shall specify: (i) the Bonds or designated portions thereof which are to be
redeemed, (ii) the date of redemption, (iii) the redemption price, (iv) the CUSIP numbers
(if any) assigned to the Bonds to be redeemed, and (v) if less than all Bonds are to be
redeemed, the Bond numbers of the Bonds to be redeemed, and shall require that such
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Bonds be surrendered at the office of the City Treasurer for redemption at the
redemption price. Such Redemption Notice shall further state that on the specified date
there shall become due and payable upon each Bond or portion thereof being
redeemed the redemption price, together with interest accrued to the redemption date,
and that from and after such redemption date interest thereon shall cease to accrue and
be payable.
Neither failure to receive any Redemption Notice nor any defect in such
Redemption Notice so given shall affect the sufficiency of the proceedings for the
redemption of such Bonds. Each check or other transfer of funds issued by the City
Treasurer for the purpose of redeeming Bonds shall bear to the extent specified the
CUSIP number identifying, by issue and maturity, the Bonds being redeemed with the
proceeds of such check or other transfer.
Section 3.5. Partial Redemption of Bonds. Upon surrender of any Bond
to be redeemed in part only, the City Treasurer shall authenticate and deliver to the
Owner a new Bond or Bonds of authorized denominations equal in aggregate principal
amount to the unredeemed portion of the Bond surrendered, with the same interest rate
and the same maturity. Such partial redemption shall be valid upon payment of the
amount required to be paid to such Owner, and the City shall be released and
discharged thereupon from all liability to the extent of such payment.
Section 3.6. Effect of Notice and Availability of Redemption Price. Notice
of redemption having been duly given, as provided in Section 3.4, and the amount
necessary for the redemption having been made available for that purpose and being
available therefor on the date fixed for such redemption:
(1) The Bonds, or portions thereof, designated for redemption
shall, on the date fixed for redemption, become due and payable at the redemption
price thereof as provided in this Resolution, anything in this Resolution or in the Bonds
to the contrary notwithstanding;
(2) Upon presentation and surrender thereof at the office of the
City, such Bonds shall be redeemed at the redemption price;
(3) From and after the redemption date, the Bonds or portions
thereof so designated for redemption shall be deemed to be no longer Outstanding and
such Bonds or portions thereof shall cease to accrue interest; and
(4) From and after the date fixed for redemption no Owner of
any of the Bonds or portions thereof so designated for redemption shall be entitled to
any of the benefits of this Resolution, or to any other rights, except with respect to
payment of the redemption price and interest accrued to the redemption date from the
amounts so made available.
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SECTION 4. FUNDS AND ACCOUNTS.
Section 4.1. Disposition of Bond Proceeds. There previously has been
established a special trust fund held by the City called the "Energy Independence Fund"
to which the City advanced its funds to make Loans to property owners to finance the
Improvements pursuant to the Contractual Assessment Agreements. The amount
received by the City from the sale of Bonds shall be deposited in the Energy
Independence Fund to making additional contractual assessment agreements and
loans to additional property owners pursuant to the EIP.
Section 4.2. Establishment of Bonds Redemption Fund and Accounts.
For administering and controlling the Assessment Revenues and any related monies,
there is hereby created and established the Bonds Redemption Fund (the "Redemption
Fund"), within which there shall be the Assessment Installment Account and the
Assessment Prepayment Account, such special fund and accounts to be maintained by
the City Treasurer.
Section 4.3. Redemption Fund. The City hereby agrees to establish and
maintain the Redemption Fund until all payments of principal of (including sinking fund
payments pursuant to Section 3.1(b)) and premium (if any) and interest on the Bonds
have been made and all of the Bonds have been paid or redeemed. All sums received
by the City from the collection of Assessment Revenues shall be deposited and held in
the Assessment Installment Account of the Redemption Fund except for prepayment of
the Assessments herein.
On each Interest Payment Date and each Principal Payment Date, the
City Treasurer shall make payments of interest and principal (including sinking fund
payments pursuant to Section 3.1(b)), respectively, due and payable with respect to the
Bonds from monies in the Assessment Installment Account. If, on any Interest Payment
Date or Principal Payment Date, there will be insufficient funds in the Assessment
Installment Account to make the payments provided for in the preceding sentence,
available monies shall be applied first to the payment of interest on the Bonds, and then
to the payment of principal due on the Bonds (including sinking fund payments pursuant
to Section 3.1(b)) and then to the payment of principal due on the Bonds called for
redemption pursuant to Section 3 (other than Section 3.1(b)) hereof.
On each September 2, all monies in the Assessment Installment Account
in excess of the amount necessary to make the payments of principal of (including
sinking fund payments pursuant to Section 3.1(b)) and interest on the Bonds then due
or overdue and payable on such date (assuming all Owners entitled to payment on or
before such date take or have taken any and all actions necessary on their part to
receive amounts due them) shall, to the extent permitted by law, be applied as follows:
(a) The moneys shall be retained in the Assessment Installment
Account of the Redemption Fund; or
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(b) The moneys shall be transferred to the Assessment
Prepayment Account of the Redemption Fund for application to the advance maturity
and redemption of Bonds pursuant to Section 3.
Amounts received from, or on behalf of, property owners as prepayments
of the Assessments pursuant to the Section 4.4 shall be deposited by the City Treasurer
in the Assessment Prepayment Account for application pursuant to Section 4.5.
Amounts in the Assessment Prepayment Account shall be used to pay the principal of
and redemption premium (if any) on Bonds the maturities of which shall have been
advanced pursuant to Chapter 8 of the Municipal Code. The City Treasurer shall
advance the maturity of and call Bonds for redemption pursuant to this Resolution and
the Municipal Code whenever and to the extent monies are on deposit in the
Assessment Prepayment Account, after making the disbursements required in Section
4.5(a) through (d), sufficient to pay the principal thereof plus the redemption premium (if
any). On or after each Redemption Date, or prior thereto, upon presentation and
surrender thereof, the City Treasurer shall pay the principal of and redemption premium
(if any) on each Bond the maturity of which has been so advanced from monies in the
Assessment Prepayment Account. Interest accrued on each such Bond to the earlier of
the Principal Payment Date or Redemption Date shall be paid from monies in the
Assessment Installment Account.
Any amounts remaining in the Redemption Fund or the accounts thereof
after payment of all of the Bonds and the interest thereon shall be applied in accordance
with Section 4.7.
Section 4.4. Prepayment of Assessments. The owner of assessed land
may prepay the Assessment and remove the lien of the Assessment in accordance with
the Contractual Assessment Agreement.
Section 4.5. Application of Prepaid Assessments. Upon receiving a
prepayment of an assessment, the City Treasurer shall deposit it in the Assessment
Prepayment Account of the Redemption Fund. All prepayments may be commingled in
a single account. From the account the City Treasurer shall make disbursements in the
following priority as follows:
(a) The administrative fee, if any, shall be deposited in the
general fund of the City.
(b) Delinquent principal, interest, and penalties shall be
transferred to the Assessment Installment Account.
(c) The installment of principal due in the Fiscal Year of
prepayment shall be transferred to the Assessment Installment Account.
(d) Interest accrued to the Redemption Date shall be transferred
to the Assessment Installment Account.
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(e) The balance in the Assessment Prepayment Account shall
be used to advance the maturity of Bonds to the next call date as provided in Chapter 8
of the Municipal Code and Section 3.1(a) of this Resolution. The amount of Bonds to be
retired shall be the maximum for which principal and redemption premium (if any) may
be paid in full from the Assessment Prepayment Account. Accrued interest on Bonds to
be retired shall be paid from the Assessment Installment Account.
Section 4.6. Certain Procedures Upon Redemption. If notice of
redemption is given, the Bonds so advanced shall mature and become payable on the
date fixed for redemption in the notice. The Owner of any such Bond may, prior to the
date of redemption, with the consent of the City Treasurer, surrender it and receive the
principal and interest thereon to the date of payment together with the redemption
premium provided for the Bond, if any. If the Bond has not been sooner surrendered on
the date fixed for redemption, the City Treasurer shall set aside to the credit of the
Owner of the Bond the amount of principal and accrued interest then due on the Bond
together with the redemption premium, if any, and the Bond shall then be deemed to
have matured and interest shall cease to accrue on the Bond. The amount so set aside
shall upon demand and upon the surrender and cancellation of the Bond be paid to the
Owner of the Bond.
Section 4.7. Redemption Fund Surplus. If there is a surplus remaining in
the Redemption Fund or any of the accounts therein after payment of all Bonds and the
interest thereon, that surplus shall be released from the pledge and lien hereunder and
transferred to the City to be used for any lawful purposes.
Section 4.8. Investments. (a) All moneys in any of the funds or accounts
established pursuant to this Resolution shall be invested by the City Treasurer solely in
Authorized Investments. Obligations purchased as an investment of moneys in any
fund or account shall be deemed to be part of such fund or account.
All interest or gain derived from the investment of amounts in any of the
funds or accounts shall be deposited in the fund or account from which such investment
was made. The City Treasurer shall incur no liability for losses arising from any
investments made pursuant to this Section.
(b) For the purpose of determining the amount in any fund or account
established hereunder, the value of investments credited to such fund or account shall
be calculated at the cost thereof, excluding accrued interest and brokerage
commissions, if any.
(c) Moneys in the Redemption Fund shall be invested only in
obligations which will by their terms mature on such dates as to ensure the timely
payment of principal (including sinking fund payments pursuant to Section 3.1(b)) and
interest on the Bonds as the same become due.
The City Treasurer shall sell at the best price obtainable or present for
redemption any obligations so purchased whenever it may be necessary to do so in
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order to provide moneys to meet any payment or transfer for such funds and accounts
or from such funds and accounts. For the purpose of determining at any given time the
balance in any fund or account, any such investments constituting a part of such fund
and account shall be valued at their amortized cost.
SECTION 5. COVENANTS.
So long as any of the Bonds issued hereunder are outstanding, the City
makes the following covenants with the Owners under the provisions of the Act and the
Municipal Code, as applicable (to be performed by the City or its proper officers, agents
or employees), which covenants are necessary, convenient and desirable to secure the
Bonds; provided, however, that said covenants do not require the City to expend any
funds other than the Assessment Revenues.
Section 5.1 Punctual Payment. The City will punctually pay or cause to
be paid the principal of (including sinking fund payments pursuant to Section 3.1(b)),
and interest and any premium on, the Bonds when and as due in strict conformity with
the terms of this Resolution and any Supplemental Resolution, and it will faithfully
observe and perform all of the conditions, covenants and requirements of this
Resolution and all Supplemental Resolutions and of the Bonds.
Section 5.2. Limited Obligation; No Required Advances From Available
Surplus Funds. The Bonds are limited obligation improvement bonds and are payable
solely from and secured solely by Assessment Revenues and the amounts in the
Redemption Fund and any other funds, accounts, and sub -accounts created hereunder.
Notwithstanding any other provision of this Resolution, the City is not obligated to, but
may in its sole and absolute discretion, advance available surplus funds from the City
treasury to cure any deficiency in the Redemption Fund.
Section 5.3. General. The City shall do and perform or cause to be done
and performed all acts and things required to be done or performed by or on behalf of
the City under the provisions of this Resolution. The City warrants that upon the date of
execution and delivery of the Bonds, the conditions, acts and things required by law and
this Resolution to exist, to have happened and to have been performed precedent to
and in the execution and delivery of such Bonds do exist, have happened and have
been performed and the execution and delivery of the Bonds shall comply in all respects
with the applicable laws of the State.
Section 5.4. Protection of Security and Riot -its of Owners. The City will
preserve and protect the security of the Bonds and the rights of the Owners thereto, and
will warrant and defend their rights to such security against all claims and demands of
all persons. From and after the delivery of the Bonds by the City, the Bonds shall be
incontestable by the City.
Section 5.5. Against Encumbrances. The City will not encumber, pledge
or place any charge or lien upon any of the Assessment Revenues or other amounts
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pledged to the Bonds superior to or on a parity with the pledge and lien herein created
for the benefit of the Bonds, except as permitted by this Resolution.
Section 5.6. Collection of Assessments. The City shall comply with all
requirements of the Act so as to assure the timely collection of the unpaid Assessments.
Section 5.7. Accounting Records and Statements. The City will keep or
cause to be kept proper accounting records in which complete and correct entries shall
be made of all transactions relating to the receipt, deposit and disbursement of the
Assessment Revenues, and such accounting records shall be available for inspection
upon five business days' written notice by any Owner or such Owner's agent duly
authorized in writing at reasonable hours and under reasonable conditions.
Section 5.8. 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 its duties under this Resolution, and for the better assuring and confirming unto the
Owners of the Bonds the rights and benefits provided in this Resolution.
SECTION 6. DEFEASANCE.
Section 6.1. Defeasance. If all Outstanding Bonds shall be paid and
discharged in any one or more of the following ways:
(a) by paying or causing to be paid the principal of and interest with
respect to all Bonds Outstanding, as and when the same become due and payable;
(b) by depositing with the City Treasurer, at or before maturity, an
amount which, together with the amounts then on deposit in the Redemption Fund, is
fully sufficient to pay the principal of and redemption premium (if any) and interest on all
Bonds Outstanding as and when the same shall become due and payable or, in the
event of redemption thereof, before their respective Maturity Dates; or
(c) by depositing with the City Treasurer Federal Securities in such
amount as the City shall determine, as verified by a nationally recognized Independent
Public Accountant (unless the Purchaser is the sole owner of the Bonds, in which case
no such verification is required), will, together with the interest to accrue thereon and
moneys then on deposit in the Redemption Fund together with the interest to accrue
thereon, be fully sufficient to pay and discharge the principal of, and premium (if any)
and interest on all Bonds Outstanding as and when the same shall become due and
payable;
then, at the election of the City, and notwithstanding that any Bonds shall
not have been surrendered for payment, all obligations of the City under this Resolution
with respect to all Outstanding Bonds shall cease and terminate, except for (i) the
obligation of the City Treasurer to pay or cause to be paid to the Owners of the Bonds
not so surrendered and paid, all sums due thereon, and (ii) the City's obligations under
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Section 5.4. Any funds held by the City Treasurer, at the time of receipt of such notice
from the City, which are not required for the purpose above mentioned, shall be
transferred to the City to be used for any lawful purposes.
SECTION 7. SUPPLEMENTAL RESOLUTIONS.
Section 7.1. Supplemental Resolutions Without Owner Consent. The
City, may from time to time, and at any time, without notice to or consent of any of the
Owners, adopt resolutions supplemental hereto as shall not be inconsistent with the
terms and provisions hereof for any of the following purposes:
(a) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any other
provision with respect to matters or questions arising under this Resolution or in any
supplemental resolution, provided that such action shall not adversely affect the
interests of the Owners;
(b) to add to the covenants and agreements of and the limitations and
the restrictions upon the City contained in this Resolution other covenants, agreements,
limitations and restrictions to be observed by the City which are not contrary to or
inconsistent with this Resolution as theretofore in effect; and
(c) to modify, alter, amend or supplement this Resolution in any other
respect which is not materially adverse to the interests of the Owners.
Section 7.2. Supplemental Resolutions with Owner Consent. Except as
provided in Section 7.1, the Owners of a majority in aggregate principal amount of the
Bonds then Outstanding shall have the right to consent to and approve the execution of
such supplemental resolutions as shall be deemed necessary or desirable for the
purpose of waiving, modifying, altering, amending, adding to or rescinding, in any
particular, any of the terms or provisions contained in this Resolution or in any
supplemental resolution or agreement; provided, however, that nothing herein shall
permit, or be construed as permitting: (a) an extension of the Maturity Date of the
principal of, or the payment date of interest on, any Bond, (b) a reduction in the principal
amount of, or redemption price of, any Bond or the rate of interest thereon, (c) a
preference or priority of any Bond or Bonds over any other Bond or Bonds, or (d) a
reduction in the percentage of Bonds the Owners of which are required to consent to
such supplemental resolution, without the consent of the Owners of all Bonds then
Outstanding. In no event, however, may a modification or amendment provide for the
issuance of additional bonds, notes or other evidences of indebtedness payable out of
the Assessment Revenues.
Section 7.3. Notice of Supplemental Resolution to Owners. If at any time
the parties hereto shall desire to enter into a resolution supplemental hereto, which
pursuant to the terms of Section 7.2 shall require the consent of the Owners, the City
shall cause notice of the proposed resolution to be mailed, postage prepaid, to all
Owners at their addresses as they appear in the Registration Books. Such notice shall
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briefly set forth the nature of the proposed resolution and shall state that a copy thereof
is on file at the office of the City for inspection by all Owners. The failure of any Owner
to receive such notice shall not affect the validity of such resolution when consented to
and approved as in Section 7.2 provided. Whenever at any time within one year after
the date of the first mailing of such notice, the City shall receive an instrument or
instruments purporting to be executed by the Owners of not less than a majority in
aggregate principal amount of the Bonds then Outstanding, which instrument or
instruments shall refer to the proposed resolution described in such notice, and shall
specifically consent to and approve it substantially in the form of the copy thereof
referred to in such notice as on file with the City, such proposed resolution, when duly
adopted by the City, shall thereafter become a part of the proceedings for the issuance
of the Bonds. In determining whether the Owners of the requisite aggregate principal
amount of the Bonds have consented to the adoption of any supplemental resolution,
Bonds which are owned by the City or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the City, shall be
disregarded and shall be treated as though they were not Outstanding for the purpose
of any such determination.
Upon the adoption of any resolution supplemental hereto and the receipt
of consent to any such resolution from the Owners of the appropriate aggregate
principal amount of Bonds in instances where such consent is required, this Resolution
shall be, and shall be deemed to be, modified and amended in accordance therewith,
and the respective rights, duties and obligations under this Resolution of the City and all
Owners of Bonds then Outstanding shall thereafter be determined, exercised and
enforced hereunder, subject in all respects to such modifications and amendments.
SECTION 8. DEFAULT.
Section 8.1. Events of Default. If any of the following events occur, it is
hereby declared to constitute an "Event of Default":
(a) Default in the due and punctual payment of interest on any Bond,
whether at the stated Interest Payment Date thereof, or upon proceedings for
redemption thereof;
(b) Default in the due and punctual payment of the principal of or
premium, if any, on any Bond, whether at the stated Principal Payment Date thereof, or
upon proceedings for redemption thereof; or
(c) Failure by the City to observe and perform any material covenant,
condition or agreement required by this Resolution to be performed by it (other than a
default described in clause (a) or (b) above) for a period of 60 days following written
notice to the City from any Owner of such failure; provided, however, if the City is in
good faith attempting to remedy said failure and is unable to do so within the 60 day
time period, an additional 60 days shall be allowed.
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Section 8.2. Remedies Not Exclusive; Non -waiver. No remedy conferred
hereby upon any Owner is intended to be exclusive of any other remedy, but each such
remedy is cumulative and in addition to every other remedy and may be exercised
without exhausting and without regard to any other remedy conferred by the Municipal
Code, the Act, or any other law of the State. No waiver of any default or breach of duty
or contract by any Owner shall affect any subsequent default or breach of duty or
contract or shall impair any rights or remedies on said subsequent default or breach.
No delay or omission of any Owner to exercise any right or power accruing upon any
default shall impair any such right or power or shall be construed as a waiver of any
such default or acquiescence therein. Every substantive right and every remedy
conferred upon the Owners may be enforced and exercised as often as may be deemed
expedient. In case any suit, action or proceeding to enforce any right or exercise any
remedy shall be brought or taken and the Owner shall prevail, said Owner shall be
entitled to receive reimbursement for reasonable costs, expenses, outlays and
attorney's fees and should said suit, action or proceeding be abandoned, or be
determined adversely to the Owners then, and in every such case, the City and the
Owners shall be restored to their former positions, rights and remedies as if such suit,
action or proceeding had not been brought or taken.
Section 8.3. Limited Liability of the City to the Owners. Except for the
collection of the Assessment Installments and the observance and performance of the
other conditions, covenants and terms contained herein, in the Act or in the Municipal
Code required to be observed or performed by it, the City shall not have any obligation
or liability to the Owners with respect to this Resolution or the preparation,
authentication, delivery, transfer, exchange or cancellation of the Bonds. In the
Resolution of Intention, the City has determined pursuant to Chapter 2 of the Municipal
Code that the City will not obligate itself to advance available funds from the City's
treasury to cure any deficiency which may occur in the Redemption Fund.
Section 8.4. Action by Owners Upon Default. In the event the City fails to
take any action to eliminate an Event of Default under Section 8.1 hereof, the Owners of
a majority in aggregate principal amount of Outstanding Bonds may institute any suit,
action, mandamus or other proceeding in equity or at law for the protection or
enforcement of any right under this Resolution, but only if such Owners have first made
written request of the City, after the right to exercise such powers or right of action shall
have occurred, and shall have afforded the City a reasonable opportunity either to
proceed to exercise the powers granted herein or granted under law or to institute such
action, suit or proceeding in its name and unless also, the City shall have been offered
reasonable security and indemnity against the costs, expenses and liabilities to be
incurred therein or thereby, and the City shall have refused or neglected to comply with
such request within a reasonable time. Any moneys recovered in such suit, action,
mandamus or other proceedings shall be applied first to the payment of the reasonable
costs and expenses of the Owners in bringing such suit, action, mandamus or other
proceeding, including reasonable compensation to their agents and attorney.
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SECTION 9. MISCELLANEOUS.
Section 9.1. Partial Invalidity. If any section, paragraph, subdivision,
sentence, clause or phrase of this Resolution shall for any reason be adjudged by any
court of competent jurisdiction to be unconstitutional, unenforceable or invalid, such
judgment shall not affect the validity of the remaining portions of this Resolution. The
City Council hereby declares that it would have adopted this Resolution and each and
every other section, paragraph, subdivision, sentence, clause and phrase hereof and
would have authorized the issuance of the Bonds pursuant hereto irrespective of the
fact that any one or more sections, paragraphs, subdivisions, sentences, clauses or
phrases of this Resolution or the application thereof to any person or circumstance, may
be held to be unconditional, unenforceable or invalid.
Section 9.2. General Authorization. The officers of the City are hereby
authorized and directed, jointly and severally, to do all acts and things which may be
required of them by this Resolution, or which may be necessary or desirable in carrying
out the issuance of the Bonds as provided by this Resolution and all matters incidental
thereto, including, without limitation, to execute such agreements, certificates, receipts,
opinions and other documents, and to deliver at the closing and delivery of the Bonds
any and all of the foregoing as may be appropriate in the circumstances. All such acts
and things heretofore done are hereby approved, ratified and confirmed.
Section 9.3. Personal Liability. The City or any officer, agent or employee
thereof, shall not 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 entity,
officer, agent or employee from the performance of any official duty provided by law.
Section 9.4. Payment of Business Day. In any case where the date of the
maturity of interest or of principal (and premium, if any) of the Bonds or the date fixed
for redemption of any Bonds or the date any action is to be taken pursuant to this
Resolution is other than a Business Day, the payment of interest or principal (and
premium, if any) or the action need not be made on such date but may be made on the
next succeeding day which is a Business Day with the same force and effect as if made
on the date required and no interest shall accrue for the period after such date.
Section 9.5. Employment of Agents by the City. In order to perform its
duties and obligations hereunder, the City may employ such persons or entities as it
deems necessary or advisable. The City shall not be liable for any of the acts or
omissions of such persons or entities employed by it in good faith hereunder, and shall
be entitled to rely, and shall be fully protected in doing so, upon the opinions,
calculations, determinations and directions of such persons or entities.
Section 9.6. Disqualified Bonds. In the event of a later transfer of the
Bonds in accordance with Section 9.7 hereof, in determining whether the Owners of the
requisite aggregate principal amount of Bonds have concurred in any demand, request,
direction, consent or waiver under this Resolution, Bonds which are owned or held by or
for the account of the City shall be disregarded and deemed not to be Outstanding for
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the purpose of any such determination, provided, however, that for the purpose of
determining whether the City Treasurer shall be protected in relying on any such
demand, request, direction, consent or waiver, only Bonds which the City Treasurer
knows to be so owned or held shall be disregarded.
Section 9.7. Sale of Bonds to Purchaser; Transfer of Bonds: Purchase
Agreement: Restrictions. (a) The Purchaser, as the initial Owner of the Bonds, has
represented to the City that the Purchaser intends to hold the Bonds for its own
account, for an indefinite period of time, and does not intend at this time to distribute,
sell or otherwise dispose of the Bonds, or any portion thereof, to any third party.
(b) At the time of adoption of this Resolution, the City has not
prepared, and does not intend to prepare, any offering document (in the form of an
official statement or otherwise) with respect to the Bonds. The City has not made, and
at this time does not intend to make, any continuing disclosure filings with state or
national information repositories with respect to the Bonds.
(c) The transfer of the Bonds shall be restricted as set forth herein.
With respect to any transfer of less than all of the then outstanding principal amount of
the Bonds, the portion being transferred shall be equal to $100,000 or greater in
principal amount. No Bond (or any portion thereof) may be transferred and no such
transfer shall be effective or recognized in the Registration Books, unless the City
Treasurer shall have received a letter from the proposed transferee in the form
satisfactory to the City Treasurer, which shall contain statements substantially to the
following effect:
(i)
The transferee has received and reviewed copies of this
Resolution. The transferee understands that (A) the Bonds are
limited obligations of the City secured by and payable solely from
Assessment Revenues as provided in this Resolution, (B) no other
fund or property of the City is liable for the payment of the Bonds,
(C) none of the payment obligations with respect to the Bonds are
secured by a pledge of any money received or to be received from
taxation by the City or any political subdivision thereof, other than
the Assessment Revenues, and (D) there is no reserve fund for the
Bonds.
(ii) The transferee has sufficient knowledge and experience in financial
and business matters, including in the purchase and ownership of
municipal obligations of a nature similar to the Bonds, to be able to
evaluate the risks and merits of investing in the Bonds.
(iii) The transferee acknowledges that the City has not prepared any
offering document with respect to the Bonds. The transferee, as a
sophisticated investor, has made its own credit inquiry and
analyses with respect to the Bonds. The transferee has assumed
the responsibility for obtaining and making such review as the
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Resolution No. 09- 63
transferee has deemed necessary or desirable in connection with
the transferee's decision to invest in the Bonds. The transferee's
decision to invest in the Bonds did not rely on any information
provided by the City (or any representatives or agents of the City)
that is not in written form.
(iv) The transferee has duly determined that (A) the transferee is legally
authorized to purchase the Bonds, and (B) the Bonds are a lawful
investment for the transferee under all applicable laws.
(v) The transferee understands that (A) the Bonds have not been
registered with any federal or state securities agency or
commission or otherwise qualified for sale under the "Blue Sky"
laws or regulations of any state, (B) will not be listed on any
securities exchange, (C) will not carry a rating from any rating
service, and (D) may not be readily marketable.
(vi) The transferee is investing in the Bonds for its own account, and at
the time of its purchase of the Bonds, and does not intend to
distribute, resell or otherwise dispose of the Bonds.
(vii) The transferee agrees that, in the event that the transferee decides
to sell or otherwise transfer the Bonds, it shall require the new
transferee to deliver to the City Treasurer the letter required by this
Section 9.7 as a condition precedent to the consummation of such
transfer.
(d) The Purchase Agreement proposed to be entered into by and
among the City and the Purchaser, in the form on file in the office of the City Clerk, and
the sale of the Bonds pursuant thereto upon the terms and conditions set forth therein
are hereby approved. Subject to the following sentence, each of the Mayor and the City
Manager, or their designee (each, an "Authorized Officer"), acting singly, is authorized
and directed, for and in the name and on behalf of the City, to execute and deliver the
Purchase Agreement in substantially said form, with such changes therein as the officer
executing the same may require or approve (such approval to be conclusively
evidenced by such Authorized Officer's execution and delivery thereof). Each
Authorized Officer, acting singly, is hereby authorized and directed to act on behalf of
the City to establish and determine (i) the aggregate principal amount of the Bonds,
which amount shall not exceed $1,500,000, and (ii) the interest rate or rates on the
Bonds, provided that the overall interest rate does not exceed 7% per annum for the
issue as a whole (calculated utilizing the true interest cost method) .
(e) Upon satisfaction of subsection (c) above, any Bond may in
accordance with its terms be transferred upon the Registration Books by the person in
whose name it is registered, in person or by such person's duly authorized attorney,
upon surrender of such Bond for cancellation, accompanied by delivery of a written
instrument of transfer, duly executed, in a form approved by the City Treasurer.
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Resolution No. 09- 63
Whenever any Bond shall be surrendered for such transfer, the City shall execute and
the City Treasurer shall thereupon authenticate and deliver to the transferee a new
Bond or Bonds of like tenor, maturity or maturities and aggregate principal amount. The
City Treasurer shall not be required to transfer, pursuant to this Section 9.7, either
(i) any Bond during the period established by the City Treasurer for the selection of
Bonds for redemption, or (ii) any Bond selected for redemption pursuant to Section 3.
Section 9.8. Waivers. So long as the Purchaser is the sole Owner of the
Bonds, the Purchaser may waive any provisions of this Resolution, including but not
limited to the provisions related to the redemption of Bonds or to the adoption of
resolutions supplemental hereto.
Section 9.9. Effective Date. This Resolution shall take effect immediately
upon adoption.
PASSED, APPROVED AND ADOPTED this 27th day of August, 2009 by
the following vote to wit:
AYES: BENSON, FERGUSON, FINERTY, BELLY and SPIEGEL
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
obert A. Spiegel,
ATTEST:
Rahelle D. Klassen, City Clerk
City of Palm Desert, California
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Resolution No. 09- 63
EXHIBIT A
FORM OF BOND
Transfer of this Bond is subject to the restrictions set forth in the Resolution referred to
herein. A transfer of Bonds is limited to certain parties that qualify under the
requirements of the Resolution, which include the requirement that the transferee can
bear the economic risk of investment in the Bonds and has such knowledge and
experience in business and financial matters, including the purchase and ownership of
municipal obligations of a nature similar to the Bonds, to be able to evaluate the risks
and merits of the investment in the Bonds. The Bonds have not been registered with
any federal or state securities agency or commission.
United States of America
State of California
County of Riverside
REGISTERED REGISTERED
NUMBER 1 $ .00
CITY OF PALM DESERT
ENERGY INDEPENDENCE
LIMITED OBLIGATION IMPROVEMENT BOND
SERIES 2009B (TAXABLE)
BOND DATE: , 2009 MATURITY DATE: September 2,
[2030]
REGISTERED OWNER: Palm Desert Redevelopment Agency
Under and by virtue of Title 17 of the Palm Desert Municipal Code (the
"Municipal Code"), the City of Palm Desert (the "City"), County of Riverside, State of
California, will, out of the Redemption Fund for the payment of the Bonds issued upon
the unpaid assessments made for the work and improvements more fully described in
proceedings taken pursuant to Resolution of Intention No. 08-75, adopted by the City
Council on July 24, 2008, and as amended by Resolution No. 08-89, adopted by the
City Council on August 28, 2008, and as further amended by Resolution No. 09-2,
adopted by the City Council on January 22, 2009, pay to the registered owner hereof, or
registered assigns, the principal sum specified above and interest thereon, or so much
thereof as may have been disbursed and remain outstanding, at a rate of interest
determined pursuant to Resolution No. 09- of the City Council of the City (the
"Resolution of Issuance"), adopted on , 2009, in lawful money of
the United States of America, and in accordance with the Resolution of Issuance;
A-1
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Resolution No. 09- 63
provided that the final installment of principal equal to the then unpaid principal balance
of this Bond and interest accrued thereon shall be due and paid upon surrender of this
Bond on the final maturity date set forth above.
The principal of this Bond shall be payable on each Principal Payment
Date in accordance with the Debt Service Schedule. Interest on this Bond shall be
payable on each Interest Payment Date in accordance with the Debt Service Schedule.
Interest shall be payable semiannually on March 2 and September 2 (each an "Interest
Payment Date") in each year commencing on March 2, 2010. This Bond bears interest
from the Interest Payment Date next preceding its date of authentication and
registration, unless this Bond is authenticated and registered (i) on an Interest Payment
Date, in which event interest shall be payable from such date of authentication and
registration, (ii) prior to an Interest Payment Date and after the close of business on the
15th day of the month immediately preceding such Interest Payment Date, in which
event it shall bear interest from such Interest Payment Date, or (iii) prior to the close of
business on February 15, 2010, in which event it shall bear interest from the Bond Date
stated above, until payment of such principal sum shall have been discharged;
provided, however, that if at the time of authentication of such Bond, interest is in
default, interest on that Bond shall be payable from the last Interest Payment Date to
which the interest has been paid or made available for payment. Principal of and
interest on this Bond shall be paid by check of the City mailed by the City Treasurer on
or before the Interest Payment Date by first class mail, postage prepaid, to the person
whose name appears in the Registrations Books as the Owner of such Bond as of the
15th day of the calendar month immediately preceding each Interest Payment Date, to
the address of that person on the Registration Books, provided that the payment of
principal of this Bond on the final maturity date and the payment of the principal of this
Bond and any premium due upon the redemption thereof shall be payable upon
presentation and surrender thereof at maturity or earlier redemption at the office of the
City Treasurer in Palm Desert, California.
This Bond shall bear interest until the respective principal sum for each
Maturity Date (as defined in the Resolution of Issuance) has been paid; provided,
however, that if at the applicable Maturity Date, or if at the redemption date of any
principal amount of this Bond which has been duly called for redemption as provided in
the Resolution of Issuance, funds are available for the payment or redemption thereof in
full accordance with the terms of the Resolution of Issuance, such principal amount
shall then cease to bear interest.
This Bond is issued by the City of Palm Desert under Title 17 of the
Municipal Code and the Resolution of Issuance in the aggregate principal amount of
$ for the purpose of reimbursing the City for funds that the City advanced to
make loans to finance the improvements described in the proceedings, and is secured
by the moneys in the Redemption Fund and by the unpaid assessments made for the
financing of those improvements, and, including principal and interest, is payable
exclusively out of the Redemption Fund and certain other funds and accounts as
provided in the Resolution of Issuance. The City will not obligate itself to advance
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available funds from the City treasury to cure any deficiency which may occur in
the Redemption Fund.
This Bond is transferable by the registered owner hereof, in person or by
the owner's attorney duly authorized in writing, at the office of the City Treasurer,
subject to the terms and conditions provided in the Resolution of Issuance, including the
payment of certain charges, if any, upon exchange, transfer, surrender or cancellation
of this Bond. Upon transfer, a new registered Bond or Bonds, of any authorized
denomination or denominations, of the same maturity, and for the same aggregate
principal amount, will be issued to the transferee in exchange therefor.
Bonds shall be registered only in the name of an individual (including joint
owners), a corporation, a partnership or a trust.
The City shall not be required to exchange or to register the transfer of
Bonds during the fifteen days immediately preceding any Interest Payment Date or of
any Bonds selected for redemption in advance of maturity.
The City may treat the owner hereof as the absolute owner for all
purposes, and the City shall not be affected by any notice to the contrary.
This Bond or any portion of it in the amount of $5,000, or any integral
multiple thereof, is subject to mandatory redemption and payment in advance of
maturity on any date from prepayments of assessments and subject to optional
redemption and payment in advance of maturity on any second day of March or
September in any year by giving at least 30 days' notice or other such shorter period
upon the consent of the owners of any Bonds designated for redemption, by registered
or certified mail, postage prepaid, or by personal service to the registered owner hereof
at the registered owner's address as it appears on the registration books of the City and
by paying principal and accrued interest together with a premium equal to three percent
(3%) of the principal for the first five (5) years after the Bond Date and zero percent
(0%) after the first five (5) years after the Bond Date. Interest shall cease to accrue
from and after the date of redemption.
This Bond is also subject to mandatory redemption from sinking fund
payments on September 2, 2010 on each September 2 thereafter prior to maturity, in
accordance with the schedule of sinking fund payments as provided in the Resolution of
Issuance at a redemption price equal to the principal amount thereof, plus accrued
interest to the redemption date, without premium.
This Bond is subject to refunding pursuant to the Municipal Code prior to
maturity.
This Bond shall not be entitled to any benefit under the Municipal Code or
the Resolution of Issuance, or become valid or obligatory for any purpose, until the
certificate of authentication and registration hereon endorsed shall have been dated and
signed by the City Treasurer of the City.
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Resolution No. 09- 63
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the City of Palm Desert, California has caused
this Bond to be signed by the City Manager and by the City Clerk, and has caused its
corporate seal to be impressed hereon, all as of , 2009.
CITY OF PALM DESERT, CALIFORNIA
Rachelle D. Klassen, City Clerk
[seal]
John M. Wohlmuth, City Manager
CERTIFICATE OF AUTHENTICATION AND REGISTRATION
This is one of the Bonds described in the within mentioned Resolution of
Issuance which has been authenticated and registered on , 2009.
Paul S. Gibson, City Treasurer
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Resolution No. 09- 63
[FORM OF ASSIGNMENT]
For value received the undersigned do(es) hereby sell, assign and transfer unto
whose tax identification number is , the within -mentioned registered Bond and
hereby irrevocably constitute(s) and appoint(s)
attorney to transfer the same on the books of the Trustee with full power of substitution
in the premises.
Dated:
Signature guaranteed:
NOTE: The signature(s) 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.
NOTICE: Signature must be guaranteed by a
member of an institution which is a participant
in the Securities Transfer Agent Medallion
Program (STAMP) or other similar program..
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RESOLUTION NO. 09-63
No.
I.
3.
4.
5.
6.
7.
8.
12,
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28
29.
30.
31.
32.
EXHIBIT B
CONTRACTUAL ASSESSMENT AGREEMENTS
S 1,136?00.00
City of Palm Desert
Energy Independence Program
Limited Obligation Improvement Bonds
Series 2009B (Taxable)
Address of Property
73765 Fred Waring Dr.
42780 Edessa St.
77515 Marlowe Court
303 Avenida del Sol
291 Eagle Dance Circle
74059 Scholar Lane West
74030 El Cortez Way
73498 Joshua Tree St.
42327 Liolios Dr.
132 Courtside Drive
75147 La Sierra
44889 San Antonio Circle
40554 Eastwood Ln
248 Corte Sole
77669 Ashberry Court
73005 Haystack
39475 Moronga Cayon Dr.
46177 Hwy 74 #12
74578 Lavender Way
74355 Covered Wagon Trail
72950 Deer Grass Dr.
73364 Goldflower St.
130 Menil Place
38867 Wisteria Drive
42815 Warner Trial
38732 Wisteria Drive
42680 Kansas St.
73478 Shadow Mtn. Dr.
12 Lost River Dr.
72985 Homestead Rd.
38582 Chaparrosa Way
77745 Delaware Place
Date of Contractual
Assessment Agreement
6/26/09
5/29/09
6/19/09
5/22/09
4/24/09
5/15/09
3/20/09
5/29/09
5/22/09
4/24/09
6/19/09
5/1/09
5/29/09
5/8/09
3/13/09
4/24/09
5/8/09
4/24/09
4/24/09 _
5/8/09
5/29/09
6/19/09
5/29/09
4/24/09
5/29/09
4/24/09
5/29/09
5/29/09
5/22/09
5t29/09
4/3/09
4/10/09
Original Principal
Amount Funded
16,183.30
11,970.00
48,527.00
13,572.00
26,832.00
44,235.04
58,585.00
6,983.00
7,050.00
16,709.00
16,599.00
29,727.00
22,604.00
9,826.00
34,386.00
59,900.00
10,076.00 _
12,200.00
29,893.00
44,950.00
12,200.00
11,785.00
32,078.00
12,900.00
14,208.00
19,400.00
11,617.00_
8,350.00
16,000.00
6,250.00
7,967.00
59,900.00
RESOLUTION NO. 09-63
33.
34.
35.
36.
37.
38.
39.
40.
141.
42.
43.
44.
45
46.
47.
73734 #A BuckBoard Trail 5/29/09 8,221.00
73580 Cabazon Peak Drive ! 4/3/09 8,725.00
72701 Haystack Rd. 4/24/09 _54,360.00
73805 Flagstone Lane 7/31/09 57,199.00
29 Covington Drive 7/31/09 50,753.00
44850 San Pablo Ave. 7,'10/09 23,278.00
73055 Shadow Mountain Drive 7/10/09 12,653.00
45755 Juniper Circle #512 8/21/09 19,866.00
76738 New York Avenue 8/27/09 12,150.00
40580 Posada Ct. 8/21/09 15,478.00
48270 Silverspur Trial j 8/21/09 83,562.00
69 Tempe Trail 8/ 14/09 44,940.00
73441 Tamarisk Street 8/21/09 11,553.00
Rounding (0.34)
Total Funded: $1,136,200.00
[additional rows to be added as necessary]
RESOLUTION NO. 09-63
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION; AUTHORIZATION AND
PURPOSE OF BONDS; EQUAL SECURITY 2
Section 1.1. Definitions 2
Section 1.2. Rules of Construction 6
Section 1.3. Authorization and Purpose of Bonds 6
Section 1.4. Equal Security 6
SECTION 2. THE BONDS 6
Section 2.1. Equality of Bonds, Pledge 6
Section 2.2. Collection of Assessments 7
Section 2.3. Issuance of Bonds to Represent Unpaid Assessments; Procedure for
Disbursement; Authorization to Complete Debt Service Schedules 7
Section 2.4. Medium and Payment 7
__Section 2.5. Form of Bonds and Certificate of Authentication and Registration 8
Section '2.6. Execution and Authentication 8
Section 2.7. Registration of Exchange or Transfer 9
Section 2.8. Mutilated, Lost, Destroyed or Stolen Bonds 9
Section 2.9. Registration Books 10
Section 2.10. Validity of the Bonds 10
Section 2.11. Refunding of Bonds 10
Section 2.12. No Acceleration 10
SECTION 3. REDEMPTION OF BONDS 10
Section 3.1. Mandatory Redemption 10
Section 3.2. Optional Redemption 11
Section 3.3. Selection of Bonds for Redemption 11
Section 3.4. Notice of Redemption 11
Section 3.5. Partial Redemption of Bonds 12
Section 3.6. Effect of Notice and Availability of Redemption Price 12
SECTION 4. FUNDS AND ACCOUNTS 13
Section 4.1. Disposition of Bond Proceeds 13
Section 4.2. Establishment of Bonds Redemption Fund and Accounts 13
Section 4.3. Redemption Fund 13
Section 4.4. Prepayment of Assessments 14
Section 4.5. Application of Prepaid Assessments 14
Section 4.6. Certain Procedures Upon Redemption 15
Section 4.7. Redemption Fund Surplus 15
Section 4.8. Investments 15
SECTION 5. COVENANTS 16
Section 5.1 Punctual Payment 16
Section 5.2. Limited Obligation; No Required Advances From Available Surplus
Funds 16
Section 5.3. General 16
Section 5.4. Protection of Security and Rights of Owners 16
Section 5.5. Against Encumbrances 16
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RESOLUTION NO. 09-63
Section 5.6. Collection of Assessments 17
Section 5.7. Accounting Records and Statements 17
Section 5.8. Further Assurances 17
SECTION 6. DEFEASANCE 17
Section 6.1. Defeasance 17
SECTION 7. SUPPLEMENTAL RESOLUTIONS 18
Section 7.1. Supplemental Resolutions Without Owner Consent 18
Section 7.2. Supplemental Resolutions with Owner Consent 18
Section 7.3. Notice of Supplemental Resolution to Owners 18
SECTION 8. DEFAULT 19
Section 8.1. Events of Default 19
Section 8.2. Remedies Not Exclusive; Non -waiver 20
Section 8.3. Limited Liability of the City to the Owners 20
Section 8.4. Action by Owners Upon Default 20
SECTION 9. MISCELLANEOUS 21
Section 9.1. Partial Invalidity 21
Section 9.2. General Authorization 21
Section 9.3. Personal Liability 21
Section 9.4. Payment of Business Day 21
Section 9.5. Employment of Agents by the City 21
Section 9.6. Disqualified Bonds 21
Section 9.7. Sale of Bonds to Purchaser; Transfer of Bonds; Purchase Agreement;
Restrictions 22
Section 9.8. Waivers 24
Section 9.9. Effective Date 24
EXHIBIT A — FORM OF BOND A-1
EXHIBIT B — CONTRACTUAL ASSESSMENT AGREEMENTS B-1
1i.
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