Loading...
4415ORDINANCE NO. 4415 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ANAHEIM, CALIFORNIA, PROVIDING FOR THE PROCEDURES FOR THE ISSUANCE, SALE AND SECURING OF WATER REVENUE ANTICIPATION NOTES OF SAID CITY AND PROVIDING THE TERMS AND CONDITIONS OF SAID NOTES. WHEREAS, the City of Anaheim is a municipal corporation organized and existing under a Charter duly and regularly adopted pursuant to the provisions of the Constitution of the State of California; and WHEREAS, the City of Anaheim incurs expenses in order to maintain, repair and operate its water system; and WHEREAS, Section 1210 of the Charter of the City of Anaheim, as amended by a proposition duly submitted to and approved by the qualified voters at a special municipal election held on November 2, 1982, provides in relevant part as follows: " [T] he City may also sell and issue at any time and from time to time revenue anticipation notes (including renewal revenue anticipation notes) in anticipation of the receipt of revenues of the City's water and electric utilities; pro- vided that the aggregate principal amount of such revenue anticipation notes outstanding in accordance with their terms at any one time shall not exceed, for each of such utilities, an amount equal to 25% of the gross revenue earned by the respective utility during the immediately preceding fiscal year as set forth in the audited financial statements of such utility for such year. Such revenue anticipation notes may be sold, issued, and secured in such manner and subject to such terms and conditions as the City Council may prescribe by ordinance; provided that such revenue anticipation notes shall not constitute an indebtedness or general obligation of the City of Anaheim and are not to be secured by the taxing power of said City."; and WHEREAS, the City Council has determined that it is in the best interests of the City of Anaheim to issue and sell Water Revenue Anticipation Notes pursuant to said Section 1210 of the Charter to defray certain of the expenditures made or to be made in the maintenance, repair and operation of its water system; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES ORDAIN AS FOLLOWS: Section 1. Definitions. As used in this Ordinance: (a) "Agreements" shall mean the Issuing and Paying Agent Agreement, the Dealer Bank Agreement, and the Revolving Credit Agreement, all of which agreements are to be authorized by reso- lution of the City Council. (b) "Authorized Person" shall mean the Public Utilities General Manager of the City; unless he is unavailable, then it shall be the Management Services Manager of the Public Utilities Department of the City; unless they are unavailable, then it shall be the City Treasurer; unless they are unavailable, then it shall be the Finance Director of the City; and such other officers as may be designated by resolution of the City Council pursuant to Section 12 hereof. As used in this definition, "unavailable" shall mean that by the sooner of the close of business on the day a Determination is required, or four hours prior to the time such Determination is necessary, (a) the Authorized Person cannot be contacted, or (b) if contacted, is otherwise unavailable to make a Determination. Any person may rely upon the oral or written representation of an Authorized Person as to the availability of any other Authorized Person when a Determination is made. (c) "Charter" shall mean the Charter of the City, as amended from time to time. (d) "City" shall mean the City of Anaheim, California. (e) "Constitution" shall mean the Constitution of the State of California, as amended from time to time. (f) "Dealer Bank" shall mean a dealer, underwriter or other agent appointed by resolution of the City Council (and any successor to such entity) for the purposes set forth in Section 16 hereof. (g) "Dealer Bank Agreement" shall mean a dealer, under- writing or other agreement, approved by resolution of the City Council, between the City and the Dealer Bank, as hereafter amended from time to time, pursuant to which the Dealer Bank will perform certain services for the City described in Section 16 hereof. -2- (h) "Determination" shall mean the telephonic, telex or other communication or written instructions given or delivered to the Issuing and Paying Agent by an Authorized Person pursuant to Section 7 hereof. Any instructions given by telephone or telex or any other non -written instructions shall be confirmed in writing within 24 hours. (i) "Enterprise" shall mean the entire waterworks system of the City, including all additions to, and improvements and extensions of, said system later constructed or acquired. (j) "Issuing and Paying Agent" shall mean the entity appointed by resolution of the City Council, to perform the ser- vices described in Section 15 hereof, and any successor to such entity. (k) "Issuing and Paying Agent Agreement" shall mean the Issuing and Paying Agent Agreement between the City and the Issuing and Paying Agent, as hereafter amended from time to time approved by resolution of the City Council of the City, pursuant to which the Issuing and Paying Agent will perform certain ser- vices for the City described in Section 16 hereof. (1) "Note" or "Notes" shall mean the City of Anaheim Water Revenue Anticipation Notes authorized by the Resolution, includ- ing any renewals thereof. (m) "Ordinance" shall mean this ordinance as from time to time amended or supplemented in accordance with the terms hereof and the Charter. (n) "Outstanding" shall mean, when used with reference to Notes, as of any date, all Notes theretofore or thereupon being authenticated and delivered under the Ordinance except: (i) Notes cancelled by the Issuing and Paying Agent at or prior to such date; (ii) Notes (or portions of Notes) for the payment of which there shall have been deposited in trust, with the Issuing and Paying Agent, either moneys in an amount which will be sufficient, or direct or guaran- teed obligations of the United States of America the principal of and interest on which, when due, will provide moneys which, together with any moneys also deposited, will be sufficient, to pay at maturity the principal amount thereof, with interest to the date of maturity; (iii) Notes in lieu of or in substitution for which other Notes shall have been authenticated and -3- delivered pursuant to this Ordinance and the Resolution. (o) "Resolution" shall mean the Resolution of the City Council hereafter adopted, authorizing the issuance of the Notes pursuant to this Ordinance and Section 1210 of the Charter, as such Resolution may be amended from time to time. (p) "Revolving Credit Agreement" shall mean the credit or other agreement approved by resolution of the City Council of the City between the City and a commercial bank appointed by resolution of the City Council as hereafter amended from time to time. (q) "Surplus Moneys" shall mean moneys remaining in the Water Revenue Series 1971 Bonds, Water System Revenue Account of the Water Revenue Series 1971 Bonds, Water Enterprise Fund of the City (a fund of the City held by the Treasurer and created by Resolution No. 71R-233) after all transfers required under Resolution No. 80R-75 and Resolution No. 71R-233 have been made, and all covenants contained therein have been duly performed. Section 2. Creation, Amount, Designation and Purpose of Issue. In accordance with Section 1210 of the Charter, there is hereby prescribed a procedure for the sale, security and issuance from time to time of the Notes. The principal amount of the Notes Outstanding in accordance with their terms at any one time shall not exceed 25% of the gross revenue earned by the Enterprise during the immediately preceding fiscal year as set forth in the audited finan- cial statements of the Enterprise for such year or the maximum aggre- gate amount of the revolving Water System Credit available to the City as described in the Revolving Credit Agreement, whichever is less. The Notes shall be known as "City of Anaheim Water Revenue Anticipation Notes" and shall be sold, secured and issued on such terms and conditions as are hereinafter set forth, for the purpose of defraying expenditures made or to be made in the maintenance, repair and operation of its Enterprise. Section 3. Findings and Determinations. T h e C i t y Council hereby finds and determines that: (a) Municipal Affairs. The financing and payment by the City through the Notes of expenditures made or to be made in the maintenance, repair and operation of its Enterprise are inciden- tal to the procurement and distribution of water by the City and as such constitute municipal affairs of the City which are not statewide concerns. (b) Conformity with Charter. This Ordinance authorizing the procedure for the issuance of the Notes in all respects conforms with the provisions of Section 1210 of the Charter. -4- (c) Existence of Prerequisites. Upon the issuance of the Notes, any and all acts, conditions and things required to exist, to happen and to be performed, precedent to and in the issuance thereof, will exist, will have happened and will have been performed, in due time, form and manner, as required by the Constitution and the Charter. Section 4. Terms and Conditions. Notes shall be issued in such principal amount or amounts, be of such denomination or denominations, shall bear such number or numbers, shall bear such date or dates of issue and maturity or maturities and such rate or rates of interest, as specified in one or more Determinations given or delivered to the Issuing and Paying Agent pursuant to Section 7 hereof. Unless the City Council shall otherwise direct by resolu- tion adopted prior to the issuance of any Note so to be affected, each Note shall be issued in a principal amount equal to the face amount thereof, with or without interest, and shall be issued in bearer form (but if directed by a Determination from an Authorized Person, the Issuing and Paying Agent shall strike the word "bearer" and insert the name of the payee), without coupons, in a minimum denomination of $50,000. The Notes shall be consecutively numbered and each Note shall be dated the date of its issuance. Each Note shall otherwise have such terms and conditions as shall be set forth in a Determination to be delivered pursuant to Section 7 hereof in connection with the issuance of such Note; pro- vided, however, that unless the City Council shall adopt and deliver an ordinance amending the following provision, no Note shall bear a rate of interest (calculated on the basis of a 360 -day year) and/or discount resulting in an interest cost, i, -P,, the effective rate of interest, greater than 15% per annum (except that any Note issued pursuant to the Revolving Credit Agreement shall bear interest at a rate, which may vary from time to time, equal to the rate of interest required by the Revolving Credit Agreement); provided, however, that the limitations on interest or discount rate and cost provided for in this clause shall not apply to the tax indemnity provisions of the Revolving Credit Agreement. Section 5. Sources of Payment. As provided in Section 1210 of the Charter, the Notes shall not constitute or evidence indebtedness of the City and are not secured by the taxing power of -` the City, but shall constitute and evidence only indebtedness of the Enterprise, payable both as to principal and interest out of: (a) the proceeds of water revenue anticipation notes issued pursuant to this or subsequent ordinances pursuant to Section 1210 of the Charter, including any Note issued under the Revolving Credit Agreement; -5- (b) Surplus Monies; and (c) any other lawfully available source of funds permitted by Section 1210 of the Charter and determined by subsequent res- olution of the City Council to be a source of funds for payment of the Notes. Nothing herein will be deemed to limit the right of the City, at its sole discretion, to pay principal of or interest on the Notes from any other lawfully available source of funds permitted by Section 1210 of the Charter. Section 6. Medium, Place of Payment. The Notes shall be payable both as to principal and interest, in lawful money of the United States of America, at the principal corporate trust office of the Issuing and Paying Agent, or any successor thereto, as more fully provided in Section 14 hereof. Section 7. Public or Private Sale, Delivery. Maturities and Interest Rates. Each Note may be sold and issued through public or private sale, at such time, in such amount, with such maturity, at such rate of discount or interest, or both, at such purchase price and with such other terms and conditions as may be fixed at the time of sale thereof by an Authorized Person in accordance with this Ordinance or with any subsequent amendatory ordinance. Each Note shall be completed and delivered by the Issuing and Paying Agent in accordance with a Determination of any Authorized Person. A copy of the resolution appointing any Authorized Person other than those des- ignated herein shall be delivered to the issuing and Paying Agent. Each Determination shall specify the maximum principal amonunt of Notes which may then be issued (determined in accordance with Section 2 hereof) together with the aggregate principal amount of the Notes to be Outstanding upon issuance and delivery of the Notes cov- ered by such Determination, together with, in the case of each Note covered by such Determination, such Note's principal amount, denomi- nation, number, date of issue, maturity, rate of discount or inter- est, or both, and the purchase price of such Note, the terms and con- ditions of payment, a request that the Issuing and Paying Agent authenticate such Note by manual signature of an authorized officer and deliver it to the purchaser thereof upon receipt of payment as specified, and such other terms and conditions as may be fixed by any Authorized Person at the time of sale of such Note. Section 8. Negotiability. The Notes shall be negotiable and payable to bearer unless registered pursuant to the provisions of Section 4 hereof, and the City and the Issuing and Paying Agent may treat the bearer thereof as the absolute owner of any such Note for the purpose of receiving payment thereof and for all other purposes, and neither the City nor the Issuing and Paying Agent shall be affected by any notice or knowledge to the contrary. Section 9. Form. The Notes shall be printed or lithographed on safety paper and shall be substantially in the form annexed hereto, marked Exhibit A, which form is hereby approved and adopted as the form of the Notes, with such appropriate variations, omissions and insertions as are permitted or required by this. Ordinance, or any ordinance amendatory hereto. Section 10. Execution. The Notes shall be signed on behalf of the City by the Mayor and the City Clerk. The signatures of the Major and the City Clerk upon ths...Notes shall be by facsimile. Nevertheless, before the delivery of the Notes, the City Council, by resolution, may authorize and direct any other officer or representative of the City to sign the Notes, in lieu of either or both of the officers or representatives above named, and may direct that such signatures shall be a manual or a facsimile thereof. In case any officer or representative of the City who shall have signed any of the Notes (including new Notes issued pursuant to the provi- sions hereof with reference to lost, destroyed, or mutilated Notes), or a facsimile of whose signature shall be used thereon, shall cease to be such officer or representative, before such Notes so signed shall have been actually issued, the Notes shall be valid neverthe- less and may be issued by the City with the same effect as though the person who had signed the Notes had not ceased to be such officer or representative. The Notes shall, however, not be executed and valid unless and until they shall have been authenticated by being manually countersigned by the Issuing and Paying Agent. Section 11. No Personal Recourse on the Notes. Neither the members of the City Council nor the Public Utilities Board of the City nor any person executing the Notes or making a Determination shall be liable personally thereon or by reason of the issuance thereof, and no recourse shall be had for the payment of the princi- pal of or interest on the Notes or for- any claim based thereon or on this Ordinance against the members of the City Council or the Public Utilities Board of the City, or any officer or employee of the City Council or the Public Utilities Department of the City, or any person executing the Notes or making a Determination. Section 12. Authority of Officers. All Authorized Persons are, and each of them hereby is, appointed and authorized to execute such documents, instruments and'papers, and to open such bank accounts, and to do such other acts and things, as may be necessary or advisable in connection with the sale and issuance from time to time of the Notes and the deposit and investment of the proceeds thereof. The City Council may by resolution designate different officers to be eligible to be the Authorized Person and may designate different priorities for such officers' becoming the Authorized Person. Section 13. Security for the Notes. The Notes shall be secured by a pledge, charge and lien upon the Surplus Moneys and -7- shall be paid from the first available Surplus Moneys unless otherwise paid from other sources of legally available funds. All Notes shall be equally secured by the Surplus Moneys without priority for number, date of Notes, date of sale, date of execution, or date of delivery. The Surplus Moneys shall be held in trust by the Treasurer of the City for the benefit of the Note holders and shall be applied to the payment of the principal and interest on the Notes which have become due and payable; provided, however, that, so long as none of the Notes or the interest thereon are due and payable and remain unpaid, nothing in this Ordinance shall preclude the use of Surplus Moneys for any lawful purpose of the City including but not limited to the issuance of additional indebtedness payable solely from the Surplus Moneys or the further pledge of the Surplus Moneys as security for such additional indebtedness, as long as such further pledge is subordinate and subject to the pledge, charge and lien cre- ated hereby and in the Resolution as security for the Notes. Section 14. Rates and Charges. The City shall and hereby covenants that it shall prescribe, revise and collect such charges for the services and facilities of the Enterprise which, after making allowances for contingencies and error in the estimates, shall be at least sufficient to pay the following amounts: (a) The interest on and principal payments of the Outstanding Notes as they become due and payable; (b) All current expenses for the necessary and reasonable maintenance and operation expenses of the Enterprise as said expenses become due and payable; and (c) All payments required to meet any other obligations of the City which are charges, liens, encumbrances upon or payable from the revenues of the Enterprise. Section 15. The Issuing and Paying Agent Agreement. The Issuing and Paying Agent will be directed and authorized by the Resolution to pay the interest on and the principal of the Notes when due, from an account designated "City of Anaheim Water Revenue Anticipation Notes Account" (the "Note Account"). The City will deposit funds in the Note Account at such time and in such amounts to provide sufficient funds to pay the principal and interest due on Notes on the dates on which they respectively mature and come due, which payment shall be in accordance with the terms of the Notes and this Ordinance. The City Council shall not be precluded from removing the Issuing and Paying Agent and appointing one or more successors there- to, or appointing additional firms to act as an Issuing and Paying Agent, all without notice to or the consent of any Note holder. Section 16 . haler Bank Agreement. Pursuant t o t h e Dealer Bank Agreement, the Dealer Bank may from time to time purchase Notes from the City or arrange for the sale of Notes by the City for a fee or other compensation as more particularly set forth in the Dealer Bank Agreement. Section 17. Revolving Credit Agreement. Pursuant to the Revolving Credit Agreement, the City may issue a Note or Notes to the financial institutions(s) specified therein so long as the aggregate principal amount of Notes Outstanding at any one time not to exceed the amount permitted by Section 2 hereof. Section 18. Notes and Ordinan-ce to Constitute Contract; Remedies. The provisions of the Notes, the Resolution and this Ordinance shall constitute a contract between the City and the Note holders, and such provisions shall be enforceable by mandamus or any other appropriate suit, action or proceedings at law or in equity in any court of competent jurisdiction. Section 19. Disposition of Proceeds of Notes. There is hereby established a separate fund in the City Treasury for the pur- pose of assuring the application of the proceeds received from the sale of the Notes for the purpose for which the same are to be issued as specified in Section 2 of this Ordinance, which separate fund is hereby designated as the "Short-term Water Revenue Anticipation Notes Fund" (hereinafter referred to as the "Note Fund"). Immediately upon receiving the proceeds of any Note, the City shall place in the Note Account referred to in Section 15 hereof, in addition to any accrued interest included in such proceeds, an amount sufficient to pay the principal of and interest on all of the Notes which have theretofore become due and payable and remain unpaid. The balance of such pro- ceeds shall be set aside and placed in the Note Fund and shall remain therein until from time to time expended for the purpose for which the Notes were issued, including the reimbursement of other funds of the City for expenditures therefrom for purposes for which the Notes were issued, and shall not be used for any other purpose whatsoever (except for temporary investment thereof in any obligations in which the City may lawfully invest its funds). Section 20. Custody of Notes and Receipt and Deposits of Proceeds. All Notes surrendered to the Issuing and Paying Agent upon the maturity thereof shall be cancelled by the Issuing and Paying Agent and forthwith transmitted to the City, and the City shall thereafter have the custody of all thereof. In all the matters provided for in this Section, the City shall act through an Authorized Person or through such officer or representative as may from time to time be designated by the City Council. Section 21. Mutilated, Lost. Stolen or Destroyed Notes. In the event any Note is mutilated, lost, stolen, or destroyed, the City may execute and the Issuing and Paying Agent may authenticate a new Note of like principal amount, interest rate, date, maturity and denomination as that mutilated, lost, stolen or destroyed; provided that, in the case of any mutilated Note such mutilated Note shall first be surrendered to the Issuing and Paying Agent and in the case of any lost, stolen or destroyed Note, there shall be first furnished to the Issuing and Paying Agent evidence of such loss, theft or destruction satisfactory to the Issuing and Paying Agent together with indemnity satisfactory to the Issuing and Paying Agent. In the event any such Note shall have matured, instead of issuing a dupli- cate Note the City may pay the same without surrender thereof. The City may charge the holder or owner of such Note with its reasonable fees and expenses in connection therewith. Section 22. Fiscal and Other Agents. In furtherance of the purposes of this Ordinance, the City Council may from time to time appoint and provide for the payment of such additional fiscal, paying or other agents or trustees as it may deem necessary or appro- priate in connection with the Notes, and, in addition to the appoint- ment of the Issuing and Paying Agent hereinabove named, may appoint the City Treasurer as fiscal or other agent in connection with the Notes. Section 23. Seneral Authorization. The Public Utilities General Manager, each other official who may be an Authorized Person, the Mayor, the City Clerk and the City Attorney are hereby respec- tively authorized to do and perform from time to time any and all acts and things consistent with this Ordinance necessary or appropri- ate to carry the same into effect. Section 24. Publication. The City Clerk shall cause this Ordinance to be published once, within fifteen days after its adop- tion, in T e Anaheim Bulletin, the official newspaper of the City. -10- Section 25. Effective Date: When Notes May First be Issued. This Ordinance shall become effective thirty days from and after the date of its adoption. The Notes may first be issued upon the date that all Electric Revenue Bond Anticipation Notes (including any notes issued in renewal thereof) issued pursuant to Ordinance No. 4252, as amended, and Resolution No. 81R-455, as amended, are retired and no longer outstanding. At any time on or after the date that all such Electric Revenue Bond Anticipation Notes are retired and no longer outstanding, an Authorized Person is authorized to exe- cute a certificate to such effect, and any person, including but not limited to the Issuing and Paying Agent, may conclusively rely and act upon such certificate and, in the absence of actual knowledge of falsity, shall not be held liable or accountable for any error, mis- statement, or inaccuracy contained therein. ADOPTED, SIGNED AND APPROVED this 26th day of April 1983. (SEAL) ATTEST: City Clerk of the City of Anaheim -11- Mayor of the City of Anaheim STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, LINDA D. ROBERTS, City Clerk of the City of Anaheim, do hereby certify that the foregoing Ordinance No. 4415 was introduced at a regular meeting of the City Council of the City of Anaheim, held on the 5th day of April, 1983, and that the same was duly passed and adopted at a regular meeting of said City Council held on the 26th day of April, 1983, by the following vote of the members thereof: AYES: COUNCIL MEMBERS: Kaywood, Pickler, Overholt, Bay and Roth NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Ordinance No. 4415 on the 26th day of April, 1983. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim this 26th day of April, 1983. CITY CLERK OF THE CITY ANAHEIM (SEAL) I, LINDA D. ROBERTS, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original Ordinance No. 4415 and was published once in the Anaheim Bulletin on the 6th day of May, 1983. CITY CLERK No. on United States of America State of California County of Orange CITY OF ANAHEIM WATER REVENUE ANTICIPATION NOTE Exhibit A , 198_ The CITY OF ANAHEIM promises to pay to the order of Bearer the sum of Dollars at the principal office of [Issuing and Paying Agent], , with interest thereon in the amount of Pursuant to the ordinance adopted by the City Council of the City of Anaheim (the "City") on , 1983 (the "Ordinance"), and Resolution No. 83R- of the City Council adopted on 1983 (the "Resolution") this Note is one of an issue of Notes payable both as to principal and interest out of: Surplus Moneys (as described in the Ordinance), the proceeds of Notes issued pursuant to the Ordinance or subsequent ordinances enacted pursuant to Section 1210 of the Charter of the City (the "Charter") including any Note issued under the Revolving Credit Agreement (as defined in the ordinance), and any other lawfully available source of funds per- mitted by Section 1210 of the Charter and determined by subsequent resolution of the City Council to be a source of funds for payment of the Notes, and not out of any other fund or moneys of the City. The City may, at its sole discretion, pay principal of or interest on the Notes from any other lawfully available source of funds permitted by Section 1210 of the Charter. The terms and conditions of this Note, including certain covenants enforceable against the City, are pro- vided for by the Ordinance and the Resolution. It is hereby certified and recited that any and all acts, conditions and things required to exist, to happen and to be per- formed, er-formed, precedent to and in the incurring of this indebtedness evi- denced by this Note, and in the issuing of this Note, exist, have happened and may have been performed in due time, form and manner, as required by the Constitution of the State of California (the "Constitution") and the Charter, and that this Note, together with all other indebtedness of the City pertaining to its water system, is within every debt and other limit prescribed by the Constitution and the Charter. Countersigned [ISSUING AND PAYING AGENT], as Issuing and Paying Agent By: -2- CITY OF ANAHEIM By: Mayor By: City Clerk