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HomeMy WebLinkAboutCity Council Resolution 01-022Quint & Thimmig LLP 02/21/01 03/02/01 03/26/01 CITY OF SARATOGA RESOLUTION NO. 01 - 0 2 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA AUTHORIZING THE ISSUANCE OF $15,000,000 AGGREGATE - PRINCIPAL AMOUNT OF GENERAL OBLIGATION BONDS, SERIES 2001, AND AUTHORIZING ACTIONS RELATED THERETO Adopted April 4, 2001 19039.01 Section 1.01. Section 1.02. Section 1.03. Section 2.01. Section 2.02. Section 2.03. Section 2.04. Section 2.05. Section 2.06. Section 2.07. Section 2.08. Section 2.09. Section 2.10. Section 2.11. Section 3.01. Section 3.02. · Section 3.03. Section 4.01. Section 4.02. Section 4.03. Section 4.04. Section 4.05. Section 4.06. Section 5.01. Section 5.02. Section 5.03. Section 5.04. Section 5.05. Section 5.06. Section 5.07. Section 5.08. Section 6.01. Section 6.02. TABLE OF CONTENTS ARTICLE I DEFINITIONS; AUTHORITY Definitions ................................................................................................................. 2 Interpretation ............................................................................................................. 4 Authority for this Resolution; Findings .............................................................. : ......... 5 ARTICLE II THE BONDS Authorization ............................................................................................................. 6 Terms of Bonds ................................................................................................. ~. ......... 6 Redemption ............................................................................................................... 7 Form of Bonds ............................................................................................................ 8 Execution of Bonds ...................................................................................................... 8 Transfer of Bonds ........................................................................................................ 8 Exchange of Bonds ...................................................................................................... 9 Registration Books ...................................................................................................... 9 Temporary Bonds ....................................................................................................... .9 Bonds Mutilated, Lost, Destroyed or Stolen .................................................................. 9 Use of Depository ..................................................................................................... 10 ARTICLE III SALE AND ISSUANCE OF BONDS; SECURITY FOR THE BONDS Sale, Issuance and Delivery of Bonds .........................................................................12 Application of Proceeds of Sale of Bonds .................................................................... 14 Validity of Bonds ...................................................................................................... 14 ARTICLE IV FUNDS AND ACCOUNTS Proceeds Account ...................................................................................................... 15 Administration and Disbursements From Proceeds Account ....................................... 15 Debt Service Account ................................................................................................ 15 Administration and Disbursements From Debt Service Account ................................. 15 Redemption Account ................................................................................................ 16 Investment of Moneys ............................................................................................... 16 ARTICLE V OTHER COVENANTS OF THE CITY Punctual Payment .................................................................................................... 17 Extension of Time for Payment .................................................................................. 17 Security for the Bonds ............................................................................................... 17 Books and Accounts; Financial Statement ................................................................... 17 Protection of Security and Rights of Bond Owners ...................................................... 17 Tax Covenants Relating to the Bonds ......................................................................... 17 Continuing Disclosure .............................................................................................. 18 Further Assurances ................................................................................................... 18 ARTICLE VI THE PAYING AGENT Appointment of Paying Agent ..................................................................................19· Paying Agent May Hold Bonds ................................................................................. 19 -i- Section 6.03. Section 6.04. Section 6.05. Liability of Paying Agent ......................................................................................... 19 Notice to Paying Agent ............................................................................................. 20 Compensation; Indemnification ................................................................................. 20 Section 7.01. Section 7.02. ARTICLE VII REMEDIES OF BOND OWNERS Remedies of Bond Owners ........................................................................................ 21 Remedies Not Exclusive ............................................................................................ 21 Section 8.01. Section 8.02. ARTICLE VIII AMENDMENT OF THIS RESOLUTION Amendments Effective Without Consent of the Owners .............................................. 22 Amendments Effective With Consent to the Owners .................................................. 22 Section 9.01. Section 9.02. Section 9.03. Section 9.04. Section 9.05. Section 9.06. Section 9.07. Section 9.08. ARTICLE IX MISCELLANEOUS Benefits of Resolution Limited to Parties ....................................................................23 Defeasance ............................................................................................................... 23 Execution of Documents and Proof of Ownership by Bond Owners ............................. 24 Waiver of Personal Liability ...................................................................................... 25 Destruction of Canceled Bonds .................................................................................. 25 Partial Invalidity ...................................................................................................... 25 Execution of Documents ............................................................................................ 25 Effective Date of Resolution ....................................................................................... 25 EXHIBIT A: FORM OF BOND EXHIBIT B: FORM OF NOTICE OF SALE AND BID FORM EXHIBIT C: FORM OF NOTICE OF INTENTION -ii- CITY OF SARATOGA RESOLUTION NO. ~ 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA AUTHORIZING THE ISSUANCE OF $15,000,000 AGGREGATE PRINCIPAL AMOUNT OF GENERAL OBLIGATION BONDS, SERIES 2001, AND AUTHORIZING ACTIONS RELATED THERETO RESOLVED, by the City Council of the City of Saratoga, California (the"City"), that: WHEREAS, pursuant to Chapter 4 (commencing with Section 43600) of Division 4 of Title 4 of the California Government Code (the "Act"), the City is empowered to issue general obligation borids which are authorized by two-thirds of the electors voting on the proposition; WHEREAS, more than two-thirds of the electors voting at a general municipal election held in the City on March 7, 2000, voted for a proposition authorizing the issuance by the City of general obligation bonds in the aggregate principal amount of $15,000,000; WHEREAS, the City now intends to authorize the issuance and sale of general obligation bonds pursuant to such authority in an aggregate principal amount of $15,000,000 (the "Bonds") pursuant to this Resolution and in conformity with the Act; and WHEREAS, the a preliminary official statement containing information material to the offering and sale of the Bonds described below (the "Preliminary Official Statement") and a notice of sale (the "Official Notice of Sale") relating to the sale of the Bonds have been prepared and have been filed with the City Clerk; NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Saratoga as follows: 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 Chapter 4 of Division 4 of Title 4 of the California Government Code, as is in effect on the date of adoption hereof and as amended hereafter. "Authorized Investments" means any investments permitted by law to be made with moneys belonging to, or in the custody of, the City, as limited by the City's investment policy, as set forth in applicable law, but only to the extent that the same are acquired at Fair Market Value. "Bond Counsel" means (a) the firm of Quint & Thimmig LLP, or (b) any other attorney or firm of attorneys nationally recognized for expertise in rendering opinions as to the lega!ity and tax exempt status of securities issued by public entities. "Bonds" means the $15,000,000,000 aggregate principal amount of City of Saratoga (Santa Clara County, California) General Obligation Bonds, Series 2001 (Saratoga Community Library Project), at any time Outstanding pursuant to this Resolution. "Bond Year" means the one-year period beginning on August 2 in each year and ending on the next succeeding August 1; except that the first Bond Year shall begin on the Closing Date and end on August 1, 2001. "City" means the City of Saratoga, a general law city and mtmicipal corporation organized under the Constitution and laws of the State of California, and any successor thereto. "City Council" means the City Council of the City. "City Representative" means the Mayor, City Manager, Administrative Services Director, City Clerk or City Treasurer of the City or any other person authorized by resolution of the City Council of the City to act on behalf of the City with respect to this Resolution and the Bonds. "City Treasurer" means the treasurer of the City or other duly appointed officer of the City authorized by resolution of the City Council to perform the functions of the treasurer. "Closing Date" means the date upon which there is a physical delivery of the Bonds in exchange for the amount 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 with applicable proposed, 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 payable by or reimbursable to the City and related to the authorization, issuance, sale and delivery of the Bonds, induding but not limited to the costs of preparation and reproduction of documents, printing expenses, filing and recording fees, initial fees and charges of the Paying Agent, fees and disbursements of consultants and professionals, rating agency fees, title insurance premiums, fees and charges for preparation, execution and safekeeping of the Bonds and any other cost, charge or fee in connection with the original issuance of the Bonds. "Debt Service Account" means the account established pursuant to Section 4.03. "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 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) the investment is the Local Agency Investment Fund of the State of California but only if at all times during which the 'investment is held its yield is reasonably expected to be equal to or greater than the yield on a reasonably comparable direct obligation of the United States. "Federal Securities" means non-callable United States Treasury notes, bonds, bills or certificates of indebtedness, or any other obligations the timely payment of which is directly or indirectly guaranteed by the faith and credit of the United States of America. "Information Services" means Financial Information, Inc.'s "Daily Called Bond Service," 30 Montgomery Street, 10th Floor, Jersey City, NJ 07302, Attention: Editor; Kenny Information Services' "Called Bond Service," 65 Broadway, 16th Floor, New York, NY 10006; Moody's Investors Service "Municipal and Government," 5250 77 Center Drive, Suite 150, Charlotte, NC 28217, Attention: Municipal News Reports; and Standard & Poor's Corporation "Called Bond Record," 25 Broadway, 3rd Floor, New York, NY 10004; or to such other addresses and/or such other national information services providing information or disseminating notices of redemption of obligations similar to the Bonds. "Interest Payment Date" means the first day of each February and August, commencing February 1, 2001. "Original Purchaser" means the original purchaser of the Bonds at public sale. "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; 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 this Resolution. "Owner", whenever used herein with respect to a Bond, means the person in whose name the ownership of such Bond is registered on the Registration Books. "Participating Underwriter" shall have the meaning ascribed thereto in the Continuing Disclosure Certificate. "Paying Agent" means the entity appointed by the City pursuant to Section 6.01 to act 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. "Principal Office" means the office or offices of the Paying Agent for the payment of the Bonds and the administration of its duties hereunder, as such office or offices shall be identified in a written notice filed with the City by the Paying Agent. "Proceeds Account" means the account within the City's General Fund established pursuant to Section 4.01. "Project" means the acquisition, construction of improvements to the Saratoga Public Library. "Project Costs" means (i) all costs of payment of, or reimbursement for, acquisition, construction, installation and equipment of the Project including but not limited to architect and engineering fees, contractor payments, costs of feasibility and other reports, inspection costs, performance bond premiums and permit fees, provided that any such costs are directly related to the acquisition or improvement of real property; (ii) Costs of Issuance, and (iii) costs directly related to the administration of the funds and accounts created under this Resolution. "Record Date" means the fifteenth (15th) day of the month preceding an Interest Payment Date, whether or not such day is a business day. "Redemption Account" means the account established pursuant to Section 4.05. "Registration Books" means the records maintained by the Paying Agent for the registration of ownership and registration of transfer of the Bonds pursuant to Section 2.08. "Resolution" means this Resolution, as originally adopted by the City Council and including all amendments hereto and supplements hereof which are duly adopted by the City Council from time to time in accordance herewith. "Securities Depositories" means The Depository Trust Company, 711 Stewart Avenue, Garden City, NY 11530, Fax (516) 227-4171 or 4190; and, in accordance with then current guidelines of the Securities and Exchange Commission, such other addresses and/or such other securities depositories as the City may designate. "Supplemental Resolution" means any resolution supplemental to or amendatory of this Resolution, adopted by the City Council in accordance with Article VIII. "Written Request of the City" means an instrument in writing signed by a City Representative or by any other officer of the City duly authorized to act on behalf of the City pursuant to a written certificate of a City Representative. Section 1.02. Interpretation. (a) Unless the context otherwise indicates, words expressed in the singular shall include the plural and vice versa and the use of the neuter, masculine, 'or feminine gender is for convenience only and shall be deemed to include the neuter, masculine or feminine gender, as appropriate. (b) Headings of articles and sections herein and the table of contents hereof are solely for convenience of reference, do not constitute a part hereof and shall not affect the meaning, construction or effect hereof. (c) All references herein to "Articles," "Sections" and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Resolution; the words "herein," "hereof, .... hereby," "hereunder" and other words of similar import refer to this Resolution as a whole and not to any particular Article, Section or subdivision hereof. Section 1.03. Authority for this Resolution; Findings. This Resolution is entered into pursuant to the provisions of the Act. 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 the Bonds 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'the Bonds, together with all other indebtedness of the City, does not exceed any limit prescribed by any laws of the State of California. ARTICLE II THE BONDS Section 2.01. Authorization. Bonds in the aggregate principal amount of fifteen million dollars ($15,000,000) are hereby authorized to be issued by the City under and subject to the terms of the Act and this Resolution. 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 premium, 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 Saratoga (Santa Clara County, California) General Obligation Bonds, Series 2001 (Saratoga Community Library Project)." 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 May 1, 2001. (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. Subject to the creation of Term Bonds by the successful bidder for the Bonds, as set forth in Section 2.03(b) below, the Bonds shall mature on August ! in each of the years and in the amounts, and shall bear interest (calculated on the basis of a 360-day year comprised of twelve 30-day months) at the rates determined upon the sale thereof, as follows: Maturity Date Principal Maturity Date (Augustl) Amount (August1) 2002 $ 85,000 2017 2003 270,000 2018 2004 275,000 2019 2005 285,000 2020 2006 295,000 2021 2007 310,000 2022 2008 320,000 2023 2009 330,000 2024 2010 345,000 2025 2011 360,000 2026 2012 375,000 2027 2013 390,000 2028 2014 405,000 2029 2015 425,000 2030 2016 445,000 2031 Principal Amount $465 000 490 000 510 000 54000O 565000 595OOO 625000 655000 690~000 725.000 760~000 800.000 845 000 885,000 935,000 Each Bond shall bear interest from the Interest Payment Date next preceding the date of authentication thereof unless (i) it is authenticated as of an Interest Payment Date, in which event it shall bear interest from such date, or (ii) it is authenticated prior to an Interest Payment Date and after the close of business on the preceding Record Date, in which event it shall bear interest from such Interest Payment Date, or (iii) it is authenticated on or before the first Record Date, in which event it shall bear interest from May 1, 2001; 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. (e) Payment. Interest on the Bonds (including the final interest payment upon maturity or redemption) is payable by check of the Paying Agent mailed to the Owner thereof at such Owner's address as it appears on the Registration Books at the close of business on the preceding Record Date; provided that at the written request of the owner of at least $1,000,000 aggregate principal amount of the Bonds, which written request is on file with the Paying Agent as of any Record Date, interest on such Bonds shall be paid by wire transfer on the succeeding Interest Payment Date to an account in the United States of America as shall be specified in such written request. Principal of and premium (if any) on the Bonds is payable in lawful money of the United States of America upon presentation and surrender at the Principal Office of the Paying Agent. Section 2.03. Redemption. (a) Redemption Dates and Prices. The Bonds maturing on or before August 1, 2010, shall not be subject to redemption prior to their respective stated maturities. The Bonds maturing on or after August 1, 2011, shall be subject to redemption prior to maturity, at the opfion of the City, from any available source of funds, in whole or in part on any date, commencing on August 1, 2010, at a redemption price ' equal to the principal amount thereof together with accrued interest thereon to the date fixed for redemption, plus a premium (expressed as a percentage of the principal amount of Bonds to be redeemed) as set forth in the following table: Redemption Dates August 1, 2010 through July 31, 2011 August 1, 2011 and thereafter Redemption Premium 101% 100 (b) Mandatory Sinking Fund Redemption. In the event and to the extent specified in the bid of the winning bidder for the Bonds, any maturity of Bonds shall be designated as "Term Bonds" and shall be subject to mandatory sinking fund redemption on August 1 in each of the years set forth in such bid and in the respective principal amounts as set forth in Section 2.02(d), at a redemption price equal to one hundred percent (100%) of the principal amount thereof to be redeemed (without premium), together with interest accrued thereon to the date fixed for 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 of $5,000, as shall be designated pursuant to written notice filed by the City with the Paying Agent. (c) Redemption Procedure. The Paying Agent shall cause notice of any redemption to be mailed, first class mail, postage prepaid, at least thirty (30) days but not more than sixty (60) days prior to the date fixed for redemption, (i) to the Securities Depositories and one or more of the Information Services, and (ii) to the respective Owners of any Bonds designated for redemption, at their addresses appearing on the Registration Books; but such mailing shall not be a condition precedent to such redemption and failure to mail or to receive any such notice shall not affect the validity of the proceedings for the redemption of such Bonds. Such notice shall state the redemption date and the redemption price and, if less than all of the then Outstanding Bonds are to be called for redemption, shall designate the serial numbers of the Bonds to be redeemed by giving the individual number of each Bond or by stating that all Bonds between two stated numbers, both inclusive, or by stating that all of the Bonds of one or more maturities hav4 been called for redemption, and shall require that such Bonds be then surrendered at the Principal Office of the Paying Agent for redemption at the said redemption price, giving notice also that further interest on such Bonds will not accrue from and after the redemption date. Upon surrender of Bonds redeemed in part only, the City shall execute and the Paying Agent shall authenticate and deliver to the Owner, at the expense of the City, a new Bond or Bonds, of the same maturity, of authorized denominations in aggregate principal amount equal to the unredeemed portion of the Bond or Bonds. From and after the date fixed for redemption, if notice of such redemption shall have been duly given and 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 on or after the redemption date specified in such notice. All Bonds redeemed pursuant to this Section 2.03 shall be canceled by the Paying Agent, and a certificate of cancellation shall be submitted by the Paying Agent to the City. Section 2.04. Form of Bonds. The Bonds, the form of the Paying Agent's Certificate of Authentication and the form of Assignment to appear 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 its Mayor and its City Treasurer and attested by its City Clerk who are in office on the date of adoption of this Resolution or at any time thereafter, and the seal of the City shall be impressed, imprinted or reproduced by facsimile thereon. If any office/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 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 Authentication 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 Registration Books, 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 City may charge a reasonable sum for each new Bond issued upon any 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 (15) days prior to the date established by the Paying Agent for selection of Bonds for redemption or (b) with respect to a Bond which 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 City may charge a reasonable sum for each new Bond issued upon any exchange (except in the case of any exchange of temporary Bonds for definitive Bonds). No exchanges of Bonds shall be required to be made (a) fifteen (15) 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. Registration Books. 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 the premises. 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 additional 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. Notwithstanding any other provision of this Section 2.10, in lieu of delivering a new Bond for which principal has or is about to become due for a Bond which has been mutilated, lost, destroyed or stolen, the Paying Agent may make payment of such Bond in accordance with its terms. Section.2.11. Use of Depository. Notwithstanding .any provision of this Resolution to the contrary: (a) At the request of the Original Purchaser, the Bonds shall be initially issued registered in the name of "Cede & Co.," as nominee of The Depository Trust Company, the depository designated by the Original Purchaser, and shall be evidenced by one Bond maturing on each of the maturity dates set forth in Section 2.02 hereof to be in a denomination corresponding to the total principal therein designated to' mature on such date. Registered ownership of such Bonds, or any portions thereof, may not thereafter be transferred except: (i) to any successor of The Depository Trust Company or its nominee, or of any substitute depository designated pursuant to paragraph (ii) of this subsection (a) ("substitute depository"); provided that any successor of The Depository Trust Company or substitute depository shall be qualified under any applicable laws to provide the service proposed to be provided by it; (ii) to any substitute depository designated in a written request of the City, upon (i) the resignation of The Depository Trust Company or its successor (or any substitute depository or its successor) from its functions as depository or (ii) a determination by the City that The Depository Trust Company or its successor is no longer able to carry out its functions as depository; provided that any such substitute depository shall be qualified under any applicable laws to provide the services proposed to be provided by it; or (iii) to any person as provided below, upon (A) the resignation of The Depository Trust Company or its successor (or any substitute depository or its successor) from its functions as depository or (B) a determination by the City that The Depository Trust Company or its successor is no longer able to carry out its functions as depository; provided that no substitute depository which is not objected to by the City and the Paying Agent can be obtained. (b) In the case of any transfer pursuant to paragraph (i) or paragraph (ii) of subsection (a) of this Section 2.11, upon receipt of all Outstanding Bonds by the Paying Agent, together with a written request of the City to the Paying Agent, a single new Bond shall be executed and delivered, registered in the name of such successor or such substitute depository or their nominees, as the case may be, all as specified in such written request of the City. In the case of any transfer pursuant to paragraph (iii) of subsection (a) of this Section 2.11, upon receipt of all Outstanding Bonds by the Paying Agent together with a written request of the City, new Bonds shall be executed and delivered in such denominations and registered in the names of such persons as are requested in a written request of the City provided the Paying Agent shall not be required to deliver such new Bonds within a period less than sixty (60) days from the date of receipt of such a written request of the City. (c) In the case of partial prepayment or an advance refunding of any Bonds evidencing all of the principal maturing in a particular year, The Depository Trust Company shall deliver the Bonds to the Paying Agent for cancellation and re-registration to reflect the amounts of such reduction in principal. (d) The City and the Paying Agent shall be entitled to treat the person in whose name any Bond is registered as the absolute Owner thereof for all purposes of this Resolution and any applicable laws, notwithstanding any notice to the contrary received by the Paying Agent or the City; and the City and the Paying Agent shall have no responsibility for transmitting payments to, communication with, notifying or otherwise dealing with any beneficial owners of the Bonds. Neither the City nor the Paying Agent will have any responsibility or obligations, legal or otherwise, to the beneficial owners or to any other party including The Depository Trust Company or its successor (or substitute depository or its successor), except for the registered owner of any Bond. (e) So long as all outstanding Bonds are registered in the name of Cede & Co. or its registered assign, the City and the Paying Agent shall reasonably cooperate with Cede & Co., as sole registered Owner, or its registered assign in effecting payment of the principal and interest due with respect to the Bonds by arranging for payment in such manner that funds for such payments are properly identified and are made immediately available on the date they are due. (f) So long as all Outstanding Bonds are registered in the name of Cede & CO. or its registered assign (hereinafter, for purposes of this paragraph (f), the "Owner"): (i) All notices and payments addressed to the Owners shall contain the Bonds' CUSIP number. (ii) Notices to the Owner shall be forwarded in the manner set forth in the form of Blanket Issuer Letter of Representations executed by the City and received and accepted by The Depository Trust Company. -11- ARTICLE III SALE AND ISSUANCE OF BONDS; SECURITY FOR THE BONDS Section 3.01. Sale, Issuance and Delivery of Bonds. (a) Issuance of Bonds. At any time after the execution of this Resolution and award of the sale of the Bonds, the City may issue and deliver Bonds in the aggregate principal amount of fifteen million dollars ($15,000,000). (b) Sale of Bonds. (i) Official Notice of Sale. An official notice of sale for the Bonds, such notice to be substantially in accordance with the Official Notice of Sale attached hereto as Exhibit B and by this reference incorporated herein (the "Official Notice of Sale"), is hereby approved. (ii) Notice of Intention to Sell Bonds. A notice of intention, such notice to be substantially in accordance with the Notice of Intention attached hereto as Exhibit C and by this reference incorporated herein (the "Notice of Intention"), is hereby approved. 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 generally circulated throughout the State and reasonably expected to be disseminated among prospective bidders for the Bonds. (iii) Terms and Conditions of Sale. The terms and conditions of the offering and the sale of the Bonds shall be as specified in said Official Notice of Sale. (iv) Furnishing of Official Notice of Sale. The City Clerk and the financial advisor to the City, Sutro & Co. Incorporated (the "Financial Advisor"), are hereby authorized to cause to be furnished to prospective bidders a reasonable number of copies of said Official Notice of Sale. (v) Receipt of Bids. The Mayor, City Manager, the Administrative Services Director or any designee thereof, on behalf of the City, is hereby delegated the authority to accept the best responsible bid for the purchase of the Bonds, determined in accordance with the Official Notice of Sale. The Mayor, the City Manager, the Administrative Services Director or any designee thereof is hereby authorized and directed to accept such bid, for and in the name of the City, by notice to the successful bidder. In the event two or more bids setting forth identical interest rates and premium, if any, are received, the Mayor, the City Manager, the Administrative Services Director or any designee thereof, on behalf of the City, may exercise his or her own discretion and judgment in making the award and may award the Bonds on a pro rata basis in such denominations as he shall determine. The Mayor, the City Manager, the Administrative Services Director or any designee thereof, on behalf of the City, may, in his or her discretion, reject any and all bids and waive any irregularity or informality in any bid. The Mayor, the City Manager, the Administrative Services Director or any designee thereof, on behalf of the City, shall award the Bonds or reject all bids not later than 1:00 p.m. on the date prescribed for the receipt of proposals unless such time of award is waived by the successful bidder. (vi) Financial Advisor Bid Permitted. The Financial Advisor has requested permission to submit a bid for all or some portion of the Bonds, either acting on its own or as a member of an underwriting syndicate. Section 53591 of the California Government Code requires that a governmental issuer of bonds must expressly consent in order for an investment firm, which is acting as financial advisor with respect to a particular issue of bonds, to submit a bid at public sale for such bonds. Pursuant to section 53591 of the California Government Code, subject to approval by the City's Finance Commission, the City does hereby consent to the Financial Advisor's request for permission to submit a bid on the Bonds. In the event the Financial Advisor is the successful bidder for the Bonds, the fees due to the Financial Advisor, for services as financial advisor to the City for the Bonds, will not be waived but would remain due and payable as specified therein. (c) Official Statement. The City Council hereby approves the Preliminary Official Statement describing the financing, in substantially 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 Administrative Services Director or any designee thereof. The City Council authorizes and directs the Mayor, the City Manager, the Administrative Services Director or any designee thereof, on behalf of the City, to deem "final" pursuant to Rule 15c2-12 trader the Securities Exchange Act of 1934 (the "Rule") the Preliminary Official Statement prior to its distribution by the financial advisor. Section 5. The Mayor, the City Manager, the Administrative Services 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 said 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 the light of the circumstances under which it was made. The Mayor, the City Manager, the Administrative Services 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 Administrative Services 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. (d) Printing of Bonds. The Mayor, the City Manager, the Administrative Services Director or any designee thereof, is hereby directed to cause the Bonds to be printed, signed and sealed, and to be delivered to the Original Purchaser of the Bonds on receipt of the purchase price therefor. (e) Delivery of Bonds. The Paying Agent is hereby authorized to deliver the Bonds to the Original Purchaser, upon receipt by the Paying Agent of a Written Request of the City directing such delivery. Section 3.02. Application of Proceeds of Sale of Bonds. On the Closing Date, the proceeds of sale of the Bonds paid by the Original Purchaser shall be applied as follows: (a) The amount of accrued interest paid by the Original Purchaser upon the sale of the Bonds shall be paid to the City Treasurer and deposited by the City Treasurer in the Debt Service Account. (b) The remainder of such proceeds shall be paid by the Original Purchaser to the City Treasurer and deposited by the City Treasurer in the Proceeds Account. Section 3.03. Validity of Bonds. The validity of the authorization and issuance of the Bonds shall not be depend~nt upon the completion of the Project or upon the performance by any person of such person's obligations with respect to the Project. ARTICLE IV FUNDS AND ACCOUNTS Section 4.01. Proceeds Account. There is hereby created, as an account within the General Fund of the City, the "General Obligation Bonds, Series 2001, Bond Proceeds Account", which shall be maintained by the City Treasurer as a separate account, distinct from all other funds of the City, into which shall be paid on receipt thereof, the portion of the Bond proceeds designated in Section 3.02(b). The Proceeds Account shall be administered and disbursements made in the manner and in the order progressively set forth in Section 4.02. Section 4.02. Administration and Disbursements From Proceeds Account. Amounts in the Proceeds Account shall be disbursed to pay Project Costs. Disbursements from the Proceeds Account shall be made by a City Representative upon receipt of a certificate requesting disbursement, executed or approved by a City Representative. Each such certificate shall: (a) set forth the amounts to be disbursed for payment or reimbursement of previous payments of Project Costs and the person or persons to whom said amounts are to be disbursed; (b) state that the amounts to be disbursed constitute Project Costs, that said amounts are required to be disbursed pursuant to a contract entered into therefor by or on behalf of the City, or were necessarily and reasonably incurred and that said amounts are not being paid in advance of the time, if any, fixed for payment; and (c) state that no amount set forth in the certificate was included in any certificate requesting disbursement previously filed with the City pursuant to this Section 4.02. Amounts, if any, remaining in the Proceeds Account on the date of receipt of a request of a City Representative certifying that no further amounts are required to be disbursed for costs and expenses of the Project, shall be transferred to the Debt Service Account and shall be used for payment of Debt Service on the Bonds on the next Interest Payment Date in accordance with Section 4.04, and the Proceeds Account shall thereupon be closed. Section 4.03. Debt Service Account. There is hereby created, as an account within the General Fund of the City, the "General Obligation Bonds, Series 2001, Debt Service Account", which shall be maintained by the City Treasurer as a separate account, distinct from all other funds of the City. The Debt Service Account shall be administered and disbursements made in the manner and in the order progressively set forth in Section 4.04. Section 4.04. Administration and Disbursements From Debt Service Account. (a) Interest. On or before the business day immediately preceding each Interest Payment Date, the City Treasurer shall transfer from the General Fund of the City and set aside in the Debt Service Account an amount which, when added to the amount contained in the Debt Service Account on that date, if any, will be equal to the aggregate amount of the interest becoming due and payable on the Outstanding Bonds on such Interest Payment Date. (b) Principal. On or before the business day immediately preceding August 1 in each year the Bonds are Outstanding, commencing August 1, 2002, the City Treasurer shall transfer from the General Fund and set aside in the Debt Service Account an amount which will be equal to the principal becoming due and payable on such August 1. All moneys in the Debt Service Account shall be used and withdrawn by the City Treasurer 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 in June and December in each year commencing with the last business day in June, 2001, the City Treasurer 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 4.05. Redemption Account. There is hereby created, as an account within the General Fund of the City, the "General Obligation Bonds, Series 2001, Redemption Account", which shall be maintained by the City Treasurer as a separate account, distinct from all other funds of the City. The Redemption Account shall be maintained by the City Treasurer to pay for the prior redemption of the Bonds. Any funds legally available may, at any time on or after August 1, 2010, at the option of the City, be paid to the City Treasurer for deposit in the Redemption Account and application to the prior redemption of Bonds on August 1, 2010, or any Interest Payment Date thereafter pursuant to Section 2.03(a). Section 4.06. Investment of Moneys. (a) Amounts on deposit in the Proceeds Account, the Debt Service Account and the Redemption Account may be invested in Authorized Investments. Earnings on the investment of amounts held in any fund or account established hereunder shall be credited to the respective fund or account from which such investments are made. (b) Except as otherwise provided in subsection (c) of this Section 4.06, 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. (c) 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). -l& ARTICLE V OTHER COVENANTS OF THE CITY Section 5.01. Punctual Payment. The City shall 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. 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 Act. Until transferred to the Debt Service Account as provided in Section 4.04, amounts in the General Fund of the City shall not be pledged to the payment of the Bonds. Section 5.04. Books and Accounts; Financial Statement. The City will keep, or cause to be kept, proper books of record and accounts, separate from all other records and accounts of the City in which complete and correct entries shall be made of all transactions relating to the Project. Such books of record and accounts shall at all times during business hours be subject to the inspection of the Paying Agent and the Owners of not less than ten percent (10%) in aggregate principal amount of the Bonds then Outstanding, or their representatives authorized in writing. Section 5.05. Protection of Securi .ty and Rights of Bond Owners. The City will preserve and protect the security of the Bonds and the rights of the Bond Owners, 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 5.06. Tax Covenants Relating to the Bonds. (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 the Bonds to be "federally guaranteed" within the meaning of Section 149(b) of the Code. . (c) 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 Bond proceeds which, if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken, on the Closing Date, would have caused the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code. (d) 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 Closing Date. (e) 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. 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, which shall be executed by a City Representative and delivered on the Closing Date. Notwithstanding any other provision of this Resolution, failure of the City to comply with the Continuing Disclosure Certificate shall not be considered a default by the City hereunder or under the Bonds; however, any Participating Underwriter (as such term is defined in the Continuing Disclosure Certificate) or any holder or beneficial owner of the Bonds may, take such actions as may be necessary and appropriate to compel performance, including seeking mandate or specific performance by court order. Section 5.08. 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 fights and benefits provided in this Resolution. ARTICLE VI THE PAYING AGENT Section 6.01. Appointment of Paying Agent. U.S. Trust Company, National Association, at its Principal Office, 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 a default by the City hereunder or under the Bonds, 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 and having an office 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 g~ving written notice to the City and the Bond Owners 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. Liabili _ty of Paying Agent. 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. 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. The Paying Agent shall not be liable for any error of judgment made in good faith by a responsible officer of its corporate trust department in the absence of the negligence of the Paying Agent. 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 -19- 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 Payin~ Agent. 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 and about the performance of their powers and duties under this Resolution. The City further agrees to indemnify and save 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. ARTICLE VII REMEDIES OF BOND OWNERS Section 7.01. Remedies of Bond Owners. Upon the happening and continuation of any default by the City hereunder or under the Bonds, any Bond Owner shall have the right, for the equal benefit and protection of all Bond Owners 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 Bond Owners' rights; or (c) 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. Section 7.02. 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 Bond Owners. -21- ARTICLE VIII AMENDMENT OF THIS RESOLUTION Section 8.01. Amendments 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 confirm, as further assurance, any pledge under, and to subject 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; (c) To cure any ambiguity, supply any omission, or cure or correct any defect or inconsistent provision in this Resolution, which in any event shall not materially adversely affect the interests of the Bond Owners, in the opinion of Bond Counsel filed with the City; or (d) To make such additions, deletions or modifications as may be necessary or desirable to assure exemption from federal income taxation of interest on the Bonds. Section 8.02. Amendments 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 a majority 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 relating to a default by the City hereunder or under the Bonds, 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. 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 fight, 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 such Bonds, as and when the same become due and payable; (ii) by irrevocably depositing, in trust, at or before maturity, money or securities in the necessary amount (as provided in Section 9.02(c) hereof) to pay or redeem such Bonds; or (iii) by delivering such Bonds to the Paying Agent for cancellation by it. If the City shall pay all Outstanding Bonds 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 a 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, all taxes and other assets pledged 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. (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) hereof) 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 provided in Section 2.03 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 provided in Section 2.03 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 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 Paving Agent shall have been made for the giving of such notice. (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 for two (2) years after the principal of all of the Bonds has become due and payable (whether at maturity or upon call for redemption or by acceleration as provided in this Resolution), if such moneys were so held at such date, or two (2) years after the date of deposit of such moneys if deposited after said date when all of the Bonds became due and payable, shall, upon request of the City, 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 Registration Books 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 Bond Owners. Any request, declaration or other instrument which this Resolution may require or permit to be executed by Bond Owners may be in one or more instruments of similar tenor, and shall be executed by Bond Owners in person or by their attorneys appointed in writing. Except as otherwise herein expressly provided, the fact and date of the execution by any Bond Owner or his attorney of such request, declaration or other instrument, or of such writing appointing such attorney, maybe 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 Registration 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, the Paying Agent or the City Treasurer in good faith and in accordance therewith. Section 9.04. Waiver of Personal Liability. No City Council member, 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 City Council member, officer, agent or employee from the performance of any official duly provided by law. 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 porfions 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 hereto 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 City Treasurer In trust for the benefit of the Bond Owners. Section 9.07. Execution of Documents. The Mayor, the City Administrator, the City Clerk, the Director of Finance and the City Treasurer of the City, and any and all other officers of the City, are each authorized and directed in the name and on behalf of the City to make any and all certificates, requisitions, agreements, notices, consents, warrants and other documents, which they or any of them might deem necessary or appropriate in order to consummate the lawful issuance, sale and delivery of the Bonds. Whenever in this Resolution any officer of the City is authorized to execute or countersign any document or take any action, such execution, countersigning or action may be taken on behalf of such officer by any person designated by such officer to act on his or her behalf in the case such officer shall be absent or unavailable. Section 9.08. Effective Date of Resolution. This Resolufion shall take effect from and after the date of its passage and adoption. The foregoing is a full, true and correct copy of a resolution duly adopted by the City Council of the City at a meeting thereof on the 4th day of April, 2001, by the following vote of the members thereof: AYES: NOES: Councilmembrs Baker, Bogosian, Waltonsmith, Mayor Mehaffey None Vice2~Mayor Streit ABSTAIN: None ABSENT: None k.d- ]iT...,,CathleSn. Bo~er; ~Ci, t ,~.e ~ 1 e-r klerk -26-