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RES-1989-19211009-31 JHHW:BDQ:cbf 04/28/89 05/11/89 Z4353 CITY OF ANAHEIM RESOLUTION NO. 89R- '192 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM PROVIDING FOR THE BORROWING OF FUNDS FOR FISCAL YEAR 1989/1990 AND THE ISSUANCE AND SALE OF 1989 TAX AND REVENUE ANTICIPATION NOTES THEREFOR RESOLVED, by the City Council of the City of Anaheim (the "City"), as follows: WHEREAS, pursuant to Article 7.6 (commencing with section 53850) of Chapter 4 of Part 1 of Division 2 of Title 5 of the California Government Code (the "Law"), this City Council (the "Council") has found and determined that moneys are needed for the requirements of the City of Anaheim (the "City"), a municipal corporation and charter city duly organized and existing under the laws of the State of California, to satisfy obligations payable from the General Fund of the City (the "General Fund"), and that it is necessary that said sum be borrowed for such purpose at this time by the issuance of temporary notes therefor in anticipation of the receipt of taxes, revenue and other moneys to be received by the City for the General Fund during or allocable to the fiscal year of the City beginning July 1, 1989, and ending June 30, 1990 ("Fiscal Year 1989/1990"); NOW, THEREFORE, it is hereby DETERMINED and ORDERED as follows: Section 1. Definitions. All capitalized terms used, but not otherwise defined herein, shall have the following meanings: "Closing Date" means the date upon which there is a physical delivery of the Notes in exchange for the amount representing the purchase of the Notes by the Original Purchaser. "Code" means the Internal Revenue Code of 1986. "Debt Service" means the scheduled amount of interest and amortization of principal payable on the Notes during the period of computation, excluding amounts scheduled during such period which relate to principal which has been retired before the beginning of such period. "Earnings Account" means the account by that name created by, and held by the City pursuant to, Section 17 hereof. "Excess Investment Earnings" means an amount equal to the sum of: (i) the excess of (A) the aggregate amount earned on all Nonpurpose Investments (other than amounts attributable to an excess described in this paragraph (i)), over (B) the amount which would have been earned if the Yield on such Nonpurpose Investments (other than amounts attributable to an excess described in this paragraph (i)) had been equal to the Yield on the Notes, plus (ii) any income attributable to the excess described in paragraph (i). "Gross Proceeds" means the sum of the following amounts: (i) original proceeds, namely, net amounts received by or for the City as a result of the sale of the Notes, excluding original proceeds which become transferred proceeds (determined in accordance with applicable Regulations) of obligations issued to refund in whole or in part the Notes; (ii) investment proceeds, namely, amounts received at any time by or for the City, such as interest and dividends, resulting from the investment of any original proceeds (as referenced in clause (i) above) or investment proceeds (as referenced in this clause (ii)) in Nonpurpose Investments, increased by any profits and decreased (if necessary, below zero) by any losses on such investments, excluding investment proceeds which become transferred proceeds (determined in accordance with applicable Regulations) of obligations issued to refund in whole or in part the Notes; (iii) sinking fund proceeds, namely, amounts, other than original proceeds, investment proceeds or transferred proceeds (as referenced in clauses (i) and (ii) above) of the Notes, which are held in the Repayment Account and any other fund to the extent that the City reasonably expects to use such other fund to pay Debt Service; (iv) amounts in any other fund established as a reasonably required reserve for payment of Debt Service; (v) Investment Property pledged as security for payment of Debt Service by the City; (vi) amounts, other than as specified in this definition, used to pay Debt Service and (vii) amounts received as a result of investing amounts described in this definition. "Investment Property" means any security (as said term is defined in section 165(g)(2)(A) or (B) of the Code), obligation, annuity contract or investment-type property, excluding, however, obligations (other than specified private activity bonds as defined in section 57(a)(5)(c) of the Code) the interest on which is excluded from gross income, under section 103 of the Code, for federal income tax purposes. "Nonpurpose Investment" means any Investment Property which is acquired with the Gross Proceeds of the Notes and is not acquired in order to carry out the governmental purpose of the Notes. -2- "Notes" means the City's $16,000,000 1989 Tax and Revenue Anticipation Notes authorized pursuant to this Resolution. "Note Year" means, for the first Note Year, the period beginning on the Closing Date and ending on July 2, 1990, and for the second Note Year, the period beginning on July 3, 1990, and ending on August 2, 1990. "Original Purchaser" means the first purchaser of the Notes from the City. "Owner" means the registered owner of any Note. "Proceeds," when used with reference to the Notes, means the face amount of the Notes, plus accrued interest and premium, if any, less original issue discount, if any. "Purchase Price," for the purpose of computation of the Yield of the Notes, has the same meaning as the term "issue price" in sections 1273(b) and 1274 of the Code, and, in general, means the initial offering price of the Notes to the public (not including bond houses and brokers, or similar persons or organizations acting in the capacity of underwriters or wholesalers) at which price a substantial amount of the Notes are sold or, if the Notes are privately placed, the price paid by the first buyer of the Notes or the acquisition cost of the first buyer. The term "Purchase Price," for the purpose of computation of the Yield of Nonpurpose Investments, means the fair market value of the Nonpurpose Investments on the date of use of Gross Proceeds of the Notes for acquisition thereof, or if later, on the date that Investment Property constituting a Nonpurpose Investment becomes a Nonpurpose Investment of the Notes. "Rebate Account" means the account by that name created by, and held by the City pursuant to, Section 17 hereof. "Repayment Account" means the account by that name created by, and held by the City pursuant to, Section 7 hereof. "Regulations" means temporary and permanent regulations promulgated under the Code. "Safe Harbor Rules" means the rules set forth in section 148(f)(4)(B)(iii) of the Code, which rules generally state that, in the case of an issue of tax and revenue anticipation notes, the net proceeds of the notes (including interest earnings thereon) shall be treated as expended for the governmental purpose of the issue on the first day after the date of issuance that the cumulative cash flow deficit to be financed by such issue exceeds 90 percent of the aggregate face amount of such issue. "Cumulative cash flow deficit" is defined therein to mean, as of the date of computation, the excess of the expenses paid during the period beginning on the date of issuance of the notes and ending on the earliest of the maturity of the issue, the date six months after such date of issuance or the date of computation of cumulative cash flow deficit, which would ordinarily be paid out of or financed by anticipated tax or other revenues over the aggregate amount available (other than the proceeds of the issue) during such period for the payment of such expenses. -3- "Yield" means that yield which, when used in computing the present worth of all payments of principal and interest (or other payments in the case of Nonpurpose Investments which require payments in a form not characterized as principal and interest) on a Nonpurpose Investment or on the Notes produces an amount equal to the Purchase Price of such Nonpurpose Investment or the Notes, all computed as prescribed in applicable Regulations. Section 2. Limitation on Maximum Amount. The principal amount of notes issued pursuant hereto, when added to the interest payable thereon, shall not exceed eighty- five percent (85%) of the estimated amount of the uncollected taxes, revenue and other moneys of the City for the General Fund attributable to Fiscal Year 1989/1990, and available for the payment of said notes and the interest thereon (as hereinafter provided). Section 3. Authorization and Terms of Notes. Solely for the purpose of anticipating taxes, revenue and other moneys to be received by the City for the General Fund during or allocable to Fiscal Year 1989/1990, and not pursuant to any common plan of financing, the City hereby determines to and shall borrow the principal amount of sixteen million dollars ($16,000,000) by the issuance of temporary notes under the Law, designated "City of Anaheim (Orange County, California) 1989 Tax and Revenue Anticipation Notes" (the "Notes"). The Notes shall be dated July 3, 1989, shall mature (without option of prior redemption) on August 2, 1990, and shall bear interest, payable at maturity and computed on a 90-day month/960-day year basis, at the rate determined in accordance with the bid of the successful bidder or bidders for the Notes approved by the resolution of the Council. Both the principal of and interest on the Notes shall be payable in lawful money of the United States of America, as described below. Section 4. Form of Notes; Book Entry Only System. The Notes shall be issued in fully registered form, without coupons, and shall be substantially in the form and substance set forth in Exhibit A attached hereto and by reference incorporated herein, the blanks in said form to be filled in with appropriate words and figures. The Notes shall be numbered from 1 consecutively upward in order of issuance, shall be in the denomination of $1,000 each or any integral multiple thereof. "CUSIP" identification numbers shall be imprinted on the Notes, but such numbers shall not constitute a part of the contract evidenced by the Notes and any error or omission with respect thereto shall not constitute cause for refusal of any purchaser to accept delivery of and pay for the Notes. In addition, failure on the part of the City to use such CUSIP numbers in any notice to Owners of the Notes 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. Except as provided below, the owner of all of the Notes shall be The Depository Trust Company, New York, New York ("DTC"), and the Notes shall be registered in the name of Cede & Co., as nominee for DTC. The Notes shall be initially executed and delivered in the form of a single fully registered Note in the full aggregate principal amount of the Notes. The City may treat DTC (or its nominee) as the sole and exclusive owner of the Notes registered in its name for all purposes of this Resolution, and the City shall not be affected by any notice to the contrary. The City shall not have any responsibility or obligation to any participant of DTC (a "Participant"), any person -4- claiming a beneficial ownership interest in the Notes under or through DTC or a Participant, or any other person which is not shown on the register of the City as being an owner, with respect to the accuracy of any records maintained by DTC or any Participant or the payment by DTC or any Participant by DTC or any Participant of any amount in respect of the principal or interest with respect to the Notes. The City shall pay all principal and interest with respect to the Notes only to DTC, and all such payments shall be valid and effective to fully satisfy and discharge the City's obligations with respect to the principal and interest with respect to the Notes to the extent of the sum or sums so paid. Except under the conditions noted below, no person other than DTC shall receive a Note. Upon delivery by DTC to the City of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co., the term "Cede & Co." in this Resolution shall refer to such new nominee of DTC. If the City determines that it is in the best interest of the beneficial owners that they be able to obtain Notes and delivers a written certificate to DTC to that effect, DTC shall notify the Participants of the availability through DTC of Notes. In such event, the City shall issue, transfer and exchange Notes as requested by DTC and any other owners in appropriate amounts. DTC may determine to discontinue providing its services with respect to the Notes at any time by giving notice to the City and discharging its responsibilities with respect thereto under applicable law. Under such circumstances (if there is no successor securities depository), the City shall be obligated to deliver Notes as described in this Resolution. Whenever DTC requests the City to do so, the City will cooperate with DTC in taking appropriate action after reasonable notice to (a) make available one or more separate Notes evidencing the Notes to any DTC Participant having Notes credited to its DTC account or (b) arrange for another securities depository to maintain custody of Certificates evidencing the Notes. Notwithstanding any other provision of this Resolution to the contrary, so long as any Note is registered in the name of Cede & Co., as nominee of DTC, all payments with respect to the principal and interest with respect to such Note and all notices with respect to such Note shall be made and given, respectively, to DTC as provided as in the representation letter delivered on the date of issuance of the Notes. Section 5. Use of Proceeds. The moneys so borrowed shall be deposited in a segregated account in the General Fund and used and expended by the City for any purpose for which it is authorized to expend funds from the General Fund. Section 6. Security. The principal amount of the Notes, together with the interest thereon, shall be payable from taxes, revenue and other moneys which are received by the City for the General Fund for Fiscal Year 1989/1990. As security for the payment of the principal of and interest on the Notes the City hereby pledges the first "unrestricted moneys" (as hereinafter defined) to be received by the City (a) in the amount of $6,000,000 in the month of December, 1989, (b) in the amount of $5,000,000 in the month of April, 1990, and in the amount of $5,000,000, plus an amount sufficient to pay interest on the Notes at their maturity, in the month of June, 1990 (such pledged amounts being hereinafter called the "Pledged Revenues"). The principal of the Notes and the interest thereon shall constitute a first lien and charge thereon and shall be payable from the Pledged Revenues. To the extent not so paid from the Pledged Revenues, the Notes shall be paid from any other moneys of the City lawfully available therefor. In the event that there are insufficient "unrestricted moneys" received by the City to permit the -5- deposit into the Repayment Account (as hereinafter defined) of the full amount of the Pledged Revenues to be deposited in any month by the last business day of such month, then the amount of any deficiency shall be satisfied and made up from any other moneys of the City lawfully available for the repayment of the Notes and interest thereon. The term "unrestricted moneys" shall mean taxes, income, revenue, cash receipts, and other moneys intended as receipts for the General Fund for Fiscal Year 1989/1990 and which are generally available for the payment of current expenses and other obligations of the City. Section 7. Repayment Account. There is hereby created, within the General Fund, a special account to be designated the "1989 Tax and Revenue Anticipation Note Repayment Account" (the "Repayment Account") and applied as directed in this Resolution. Any money placed in the Repayment Account shall be for the benefit of the owners of the Notes and, until the Notes and all interest thereon are paid or until provision has been made for the payment of the Notes at maturity with interest to maturity, the moneys in the Repayment Account shall be applied solely for the purposes for which the Repayment Account is created; provided, however, that, subject to the provisions of Section 17, any interest earned on amounts deposited in the Repayment Account shall periodically be transferred to the General Fund. During the months of December, 1989, April, 1990, and June, 1990, the City shall deposit all Pledged Revenues in the Repayment Account. On August 2, 1990, the City shall transfer to DTC the moneys in the Repayment Account necessary to pay the principal of and interest on the Notes at maturity and to the extent said moneys are insufficient therefor an amount of moneys from the General Fund which will enable payment of the full principal of and interest on the Notes at maturity. DTC will thereupon make payments of principal of and interest on the Notes to the DTC Participants who will thereupon make payments to the beneficial owners of the Notes. Any moneys remaining in the Repayment Account after the Notes and the interest thereon have been paid, or provision for such payment has been made, shall be transferred to the General Fund. Section 8. Deposit and Investment of Repayment Account. All moneys held by the City in the Repayment Account, if not invested, shall be held in time or demand deposits as public funds and shall be secured at all times by bonds or other obligations which are authorized by law as security for public deposits, of a market value at least equal to the amount required by law. Moneys in the Repayment Account shall, to the greatest extent possible, be invested by the City Treasurer directly, or through an investment agreement, in investments as permitted by the laws of the State of California as now. in effect and as hereafter amended, and the proceeds of any such investments shall be deposited in the Repayment Account. Section 9. Execution of Notes. The Mayor of the City is hereby authorized to execute the Notes by manual or facsimile signature, and the City Clerk of the City is hereby authorized to countersign the same by manual or facsimile signature (although at least one of such signatures shall be manual) and to affix the seal of the City thereto by facsimile impression thereof, and said officers are hereby authorized to cause the blank spaces thereof to be filled in as may be appropriate. Section 10. Transfer of Notes. Any Note may, in accordance with its terms, but only if the City determines to no longer maintain the book entry only status of the Notes, DTC determines to discontinue providing such services and no successor securities depository is named or DTC requests the City to deliver Note certificates to particular DTC Participants, be transferred, upon the books required to be kept pursuant to the provisions of Section 12 hereof, by the person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Note for cancellation at the office of the City Clerk, accompanied by delivery of a written instrument of transfer in a form approved by the City, duly executed. Whenever any Note or Notes shall be surrendered for transfer, the City shall execute and the Paying Agent shall authenticate and deliver a new Note or Notes, for like aggregate principal amount. Section 11. Exchange of Notes. Any Note may, in accordance with its terms, but only if the City determines to no longer maintain the book entry only status of the Notes, DTC determines to discontinue providing such services and no successor securities depository is named or DTC requests the City to deliver Note certificates to particular DTC Participants, be exchanged at the office of the City Clerk for a like aggregate principal amount of Notes of authorized denominations and of the same maturity. Section 12. Note Register. The City shall keep or cause to be kept sufficient books for the registration and transfer of the Notes if the book entry only system is no longer in effect and, in such case, the City Clerk shall register or transfer or cause to be registered or transferred, on said books, Notes as herein before provided. While the book entry only system is in effect, such books need not be kept as the Notes will be represented by one Note registered in the name of Cede & Co., as nominee for DTC. Section 13. Temporary Notes. The Notes may be initially issued in temporary form exchangeable for definitive Notes when ready for delivery. The temporary Notes may be printed, lithographed or typewritten, shall be of such denominations as may be determined by the City, and may contain such reference to any of the provisions of this Resolution as may be appropriate. Every temporary Note shall be executed by the City upon the same conditions and in substantially the same manner as the definitive Notes. If the City issues temporary Notes it will execute and furnish definitive Notes without delay, and thereupon the temporary Notes may be surrendered, for cancellation, in exchange therefor at the office of the City Clerk and the City Clerk shall deliver in exchange for such temporary Notes an equal aggregate principal amount of definitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall be entitled to the same benefits pursuant to this Resolution as definitive Notes executed and delivered hereunder. Section 14. Notes Mutilated, Lost, Destroyed or Stolen. If any Note shall become mutilated the City, at the expense of the owner of said Note, shall execute and deliver a new Note of like maturity and principal amount in exchange and substitution for the Note so mutilated, but only upon surrender to the City Clerk of the Note so mutilated. Every mutilated Note so surrendered to the City Clerk shall be cancelled and delivered to, or upon the order of, the City. If any Note shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the City and, if such evidence be satisfactory to the City and indemnity satisfactory to it shall be given, the City, at the expense of the owner, shall execute and deliver a new Note of like maturity and principal amount in lieu of and in substitution for the Note so lost, destroyed or stolen. The City may require payment of a sum not exceeding the actual cost of preparing each new Note issued under this Section 14 and of the expenses which may be incurred by the City in the premises. Any Note issued under the provisions of this Section 14 in lieu of any Note alleged to be lost, destroyed or stolen shall constitute an original additional contractual obligation on the part of the City whether or not the Note so alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be equally and proportionately entitled to the benefits of this Resolution with all other Notes issued pursuant to this Resolution. Section 15. Covenants and Warranties. It is hereby covenanted and warranted by the City that all representations and recitals contained in this Resolution are true and correct, and that the City and its appropriate officials have duly taken all proceedings necessary to be taken by them, and will take any additional proceedings necessary to be taken by them, for the prompt collection and enforcement of the taxes, revenue, cash receipts and other moneys pledged hereunder in accordance with law and for carrying out the provisions of this Resolution. Section 16. Tax Covenants. (a) Private Business Use Limitation. The City shall assure that: (i) not in excess of ten percent (10%) of the face amount of the Proceeds of the Notes is used, directly or indirectly, in a Private Business Use if, in addition, the payment of the principal of, or the interest on more than 10 percent of the Proceeds of the Notes is (under the terms of the Notes or any underlying arrangement) directly or indirectly, (i) secured by any interest in property, or payments in respect of property, used or to be used for a Private Business Use, or (ii) to be derived from payments (whether or not to the City)in respect of property, or borrowed money, used or to be used for a Private Business Use; and (ii) in the event that in excess of five percent (5%) of the Proceeds of the Notes is used for a Private Business Use, and, in addition, the payment of the principal of, or the interest on, more than five (5%) percent of the Proceeds of the Notes is (under the terms of the Notes or any underlying arrangement), directly or indirectly, secured by any interest in property, or payments in respect of property, used or to be used for said Private Business Use or is to be derived from payments (whether or not to the City) in respect of property, or borrowed money, used or to be used for a Private Business Use, then, (A) said excess over said five percent (5%) of the Proceeds of the Notes which is used for a Private Business Use shall be used for a Private Business Use related to a government use of such Proceeds and (B) each such Private Business use over five percent (5%) of the Proceeds of the Notes which is related to a government use of such Proceeds shall not exceed the amount of such Proceeds which is used for the government use of Proceeds to which such Private Business Use is related. (b) Private Loan Limitation. The City shall assure that not in excess of five percent (5%) of the Proceeds of the Notes is to be used, directly or indirectly, to make or finance loans (excluding investments and excluding loans which enable the borrower to finance any governmental tax or assessment of general application for a specific essential governmental function) to persons other than state or local government units. (c) 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 Notes to be "federally guaranteed" within the meaning of section 149(b) of the Code and the Regulations. (d) No Arbitrage. The City shall not take, or permit or suffer to be taken any action with respect to the Proceeds of the Notes which if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken, on the date upon which there is a physical delivery of the Notes in exchange for the amount representing the purchase of the Notes by the original purchasers thereof would have caused the Notes to be "arbitrage bonds" within the meaning of section 148(a) of the Code and Regulations. Section 17. Rebate of Excess Investment Earnings to United States; Inapplicability of Rebate Under Certain Circumstances. (a) Creation of Accounts. There are hereby created, to be held by the City as separate accounts distinct from the Repayment Account held by the City under this Resolution, the Earnings Account and the Rebate Account. All interest earnings and profits on amounts in all funds and accounts established under this Resolution, shall, upon receipt by the City, be deposited in the Earnings Account. In addition, all interest earnings and profits on Gross Proceeds in funds held by the City shall, upon receipt, be deposited in the Earnings Account. If the City has not complied with the Safe Harbor Rules, the City shall, on August 2, 1990, transfer from the Earnings Account to the Rebate Account for purposes of ultimate rebate to the United States an amount equal to Excess Investment Earnings, all as more particularly described in this Section 17. Following the transfer referenced in the preceding sentence, the City shall transfer all amounts remaining in the Earnings Account to the Repayment Account to be used for the payment of Debt Service on the Notes at maturity and, for such purpose, Debt Service due from the City on such date shall be credited by an amount equal to the amount so transferred. (b) Duties of the City in General. The City shall calculate Excess Investment Earnings in accordance with subsection (c) and shall assure payment of an amount equal to Excess Investment Earnings to the United States in accordance with subsections (d) and (e). (c) Calculation of Excess Investment Earnings. Within twenty (20) days following the last day of the first Note Year and within fifty (50) days following the last day of the second Note Year, the City shall calculate, or cause to be calculated, the Excess Investment Earnings. Said calculations shall be made or caused to be made by the City in accordance with the following: (1) Except as provided in (2), in determining the amount described in paragraph (i)(A) of the definition of Excess Investment Earnings, the aggregate amount earned on Nonpurpose Investments shall include (i) all income realized under federal income tax accounting principles (whether or -9- not the person earning such income is subject to federal income tax) with respect to such Nonpurpose Investments and with respect to the reinvestment of investment receipts from such Nonpurpose Investments (without regard to the transaction costs incurred in acquiring, carrying, selling or redeeming such Nonpurpose Investments), including, but not limited to, gain or loss realized on the disposition of such Nonpurpose Investments (without regard to when such gains are taken into account under section 453 of the Code relating to taxable year of inclusion of gross income), and income under section 1272 of the Code (relating to original issue discount) and (ii) any unrealized gain or loss as of the date of retirement of the Notes in the event that any Nonpurpose Investment is retained after such date. (2) In determining the amount described in paragraph (i) of the definition of Excess Investment Earnings, Investment Property shall be treated as acquired for its fair market value at the time it becomes a Nonpurpose Investment, so that gain or loss on the disposition of such Investment Property shall be computed with reference to such fair market value as its adjusted basis. (3) In determining the amount described in paragraph (ii) of the definition of Excess Investment Earnings, all income attributable to the excess described in paragraph (i) of said definition shall be taken into account, whether or not that income exceeds the Yield on the Notes, and no amount may be treated as "negative arbitrage". (4) In determining the amount of Excess Investment Earnings, there shall be excluded any amount earned on any fund or account which is used primarily to achieve a proper matching of revenues and Debt Service within the Note Year and which is depleted at least once a year except for a reasonable carryover amount not in excess of the greater of one year's earnings on such fund or account or one-twelfth of annual Debt Service. (d) Payment to United States. Not later than sixty (60) days after the retirement of the Notes, the City shall pay from the Rebate Account to the United States one hundred percent (100%) of the Excess Investment Earnings. In the event that there are any amounts remaining in the Rebate Account following the payment required by the preceding sentence, said amounts may be used for any lawful purpose of the City. The City shall remit payments to the United States at the address prescribed by the Regulations as the same may be in time to time in effect with such reports and statements as may be prescribed by such Regulations. In the event that, for any reason, amounts in the Rebate Account are insufficient to make the payments to the United States which are required by this subsection (d), the City shall assure that such payments are made to the United States, on a timely basis, from any funds lawfully available therefor. (e) Further Obligation of City. The City shall assure that Excess Investment Earnings are not paid or disbursed except as required in this Section 17. To that end the City shall assure that investment transactions are on an arm's length basis and that Nonpurpose Investments are acquired at their fair market value. In the event that -10- Nonpurpose Investments consist of certificates of deposit or investment contracts, investment in such Nonpurpose Investments shall be made in accordance with the procedures described in applicable Regulations as from time to time in effect. (f) Maintenance of Records. The City shall keep, and retain for a period of six (6) years following the retirement of the Notes, records of the determinations made pursuant to this Section 17. (g) Independent Consultants. In order to provide for the administration of this Section 17, the City may provide for the employment of independent attorneys, accountants and consultants compensated on such reasonable basis as the City may deem appropriate. (h) Inapplicability of Rebate Under Certain Circumstances. Anything herein to the contrary notwithstanding, the City shall not be obligated to rebate Excess Investment Earnings to the United States if the City shall comply with the Safe Harbor Rules, and the City may, upon compliance with the Safe Harbor Rules, transfer all amounts then on hand in the Earnings Account to the General Fund and the Earnings Account and Rebate Account may thereupon be closed. Section 18. Sale of Notes. The Notes are hereby ordered to be sold to the successful bidder or bidders therefor approved by the Council by resolution. Section 19. Preparation of Notes; Official Action. Jones Hall Hill & White, A Professional Law Corporation, as Bond Counsel, is directed to cause suitable Notes to be prepared showing on their face that the same bear interest at the rate specified in the offer submitted by the successful bidder or bidders, and to cause the blank spaces therein to be filled in to comply with the provisions of this Resolution, and to procure their execution by the proper officers, and to cause the Notes to be delivered when so executed to DTC on behalf of the successful bidder or bidders therefor upon the receipt of the purchase price by the City Treasurer in accordance with such successful bid or bids. The Mayor, Finance Director, Assistant Finance Director, City Treasurer and City Clerk, or any of them, are further authorized and directed to make, execute and deliver such certificates, agreements and other closing documents as are necessary to consummate the transactions contemplated by this Resolution. -11- THE FOREGOING RESOLUTION is approved and adopted by the City Council of the City of Anaheim this 23rd day of May, 1989. PRO TEM ATTEST: ~I~,ClTY TH CITY OF ANAHEIM CLERK OF -12- STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing Resolution No. 89R-la2 was introduced and adopted at a regular meeting provided by law, of the City Council of the City of Anaheim held on the 23rd day of May, 1989, by the following vote of the members thereof: AYES: COUNCIL MEMBERS: Daly, Ehrle, Pickler and Kaywood NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: Hunter AND I FURTHER certify that the Mayor of the City of Anaheim signed and certified said Resolution No. 89R-192 on the24th day of May ,1989. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the City of Anaheim this24t:bday of Hay ,1989. ,~¢~.CITY CLERK OF THE OF ANAHEIM (SEAL) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original of Resolution No. 89R-Z92duly passed and adopted by the Anaheim City Council on May 23, 1989. 4~,~. CII~ CLERK APPROVED AS TO FORM: JACK L/WHITE, CITY ATTORNEY -13- EXHIBIT A [Form of Note] CITY OF ANAHEIM (ORANGE COUNTY, CALIFORNIA) 1989 TAX AND REVENUE ANTICIPATION NOTE INTEREST RATE: MATURITY DATE: August 2, 1990 ISSUE DATE: July 3, 1989 CUSIP: REGISTERED OWNER: CEDE & CO. PRINCIPAL SUM: SIXTEEN MILLION DOLLARS The CITY OF ANAHEIM, a municipal corporation and charter city, duly organized and existing under and by virtue of the Constitution and laws of the State of California (the "City"), for value received hereby promises to pay to the Registered Owner stated above, or registered assigns (the "Owner"), on the Maturity Date stated above, the Principal Sum stated above, in lawful money of the United States of America, and to pay interest thereon in like lawful money at the rate per annum stated above, payable on the Maturity Date stated above, calculated on the basis of 360-day year composed of twelve 30-day months. Both the principal of and interest on this Note shall be payable at maturity to the Owner. It is hereby certified, recited and declared that this Note is one of an authorized issue of Notes in the aggregate principal amount of sixteen million dollars ($16,000,000), all of like tenor, issued pursuant to the provisions of Resolution No. 89R-__ of the City Council of the City duly passed and adopted on May 23, 1989, and pursuant to Article 7.6 (commencing with section 53850) of Chapter 4, Part 1, Division 2, Title 5, of the California Government Code, and that all things, conditions and acts required to exist, happen and be performed precedent to and in the issuance of the Notes exist, have happened and have been performed in regular and due time, form and manner as required by law, and that this Note, together with all other indebtedness and obligations of the City, does not exceed any limit prescribed by the Constitution or statutes of the State of California. The principal amount of the Notes, together with the interest thereon, shall be payable from taxes, revenue and other moneys which are received by the City for the General Fund of the City for Fiscal Year 1989/1990. As security for the payment of the principal of and interest on the Notes the City has pledged the first "unrestricted moneys" (as hereinafter defined) to be received by the City (a) in the amount of $6,000,000 in the month of December, 1989, (b) in the amount of $5,000,000 in the month of April, 1990, Exhibit A Page 1 and (c) in the amount of $5,000,000, plus an amount sufficient to pay interest on the Notes at their maturity, in June, 1990 (such pledged amounts being hereinafter called the "Pledged Revenues"). The principal of the Notes and the interest thereon shall constitute a first lien and charge thereon and shall be payable from the Pledged Revenues. To the extent not so paid from the Pledged Revenues, the Notes shall be paid from any other moneys of the City lawfully available therefor. In the event that there are insufficient "unrestricted moneys" received by the City to permit the deposit into the Repayment Account (as hereinafter defined) of the full amount of the Pledged Revenues to be deposited in any month by the last business day of such month, then the amount of any deficiency shall be satisfied and made up from any other moneys of the City lawfully available for the repayment of the Notes and interest thereon. The term "unrestricted moneys" shall mean taxes, income, revenue, cash receipts, and other moneys intended as receipts for the General Fund of the City for Fiscal Year 1989/1990 and which are generally available for the payment of current expenses and other obligations of the City. The Notes are issuable as fully registered Notes, without coupons, in denominations of $1,000 and any integral multiple thereof. Subject to the limitations and conditions as provided in the Resolution, Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations and of the same maturity. The Notes are not subject to redemption prior to maturity. This Note is transferable by the Owner hereof, but only under the circumstances, in the manner and subject to the limitations provided in the Resolution. Upon registration of such transfer a new Note or Notes, of authorized denomination or denominations, for the same aggregate principal amount and of the same maturity will be issued to the transferee in exchange herefor. The City may treat the Owner hereof as the absolute owner hereof for all purposes, and the City shall not be affected by any notice to the contrary. Exhibit A Page 2 IN WITNESS WHEREOF, the City of Anaheim has caused this Note to be executed by the Mayor of the City and countersigned by the City Clerk of the City, and caused its official seal to be affixed hereto all as of the Issue Date stated above. CITY OF ANAHEIM [S E A L] Countersigned: By [Facsimile Siqnature] Mayor [Facsimile Signature] City Clerk Exhibit A Page 3 ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM -- as tenants in common TEN ENT -- as tenants by the entireties JT TEN -- as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT Custodian (Cust) (Minor) under Uniform Gifts to Minors Act (State) ADDITIONAL ABBREVIATIONS MAY ALSO BE USED THOUGH NOT IN THE LIST ABOVE Exhibit A Page 4 (FORM OF ASSIGNMENT) For value received the undersigned hereby sells, assigns and transfers unto (Name, Address and Tax Identification or Social Security Number of Assignee) the within-registered Note and hereby irrevocably constitute(s) and appoints(s) attorney, to transfer the same on the Note register of the Paying Agent with full power of substitution in the premises. Dated: Note: The signature(s) on this Assignment must correspond with the name(s) as written on the face of the within Note in every particular without alteration or enlargement or any change whatsoever. Signature Guaranteed: Note: Signature(s) must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. Exhibit A Page 5