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5032ORDINANCE NO. 5032 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ANAHEIM, CALIFORNIA, REPEALING ORDINANCE NO. 4417, PROVIDING FOR THE PROCEDURES FOR THE ISSUANCE, SALE AND SECURING OF ELECTRIC 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 makes expenditures to maintain, repair and operate its Electric System, among which are the purchase of power and costs associated with the acquisition, processing, enrichment, storage and disposal of nuclear fuel; 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: ; and [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; provided 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. 1 WHEREAS, the City Council has determined that it is in the best interests of the City of Anaheim to issue and sell electric revenue anticipation notes pursuant to said Section 1210 of the Charter to finance and refinance expenditures made or to be made in the maintenance, repair and operation of its Electric System, including the purchase of power and costs associated with the acquisition, processing, enrichment, storage and disposal of nuclear fuel; and WHEREAS, pursuant to Ordinance No. 4417 adopted April 26, 1983 ("Ordinance No. 4417"), the City Council of the City of Anaheim has previously provided procedures for the issuance, sale and securing of electric revenue anticipation notes (111983 Notes"); and WHEREAS, the City Council has determined that it is in the best interests of the City of Anaheim to establish new procedures for the issuance, sale and securing of electric revenue anticipation notes; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES ORDAIN AS FOLLOWS: Section 1. Definitions. As used in this Ordinance, "Authorized Person" and "Qualified Obligation Service" shall have the respective meanings ascribed thereto in the Resolution. As used in this Ordinance: "Agreements" shall mean the Issuing and Paying Agent Agreement, the Dealer Agreement, and the Revolving Credit Agreement. "Charter" shall mean the Charter of the City, as amended from time to time. "City" shall mean the City of Anaheim, California. "Constitution" shall mean the Constitution of the State of California, as amended from time to time. "Dealer" 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 17 hereof. "Dealer Agreement" shall mean a dealer, underwriting or other agreement between the City and the Dealer, as amended from time to time, pursuant to which the Dealer will perform certain services for the City described in Section 17 hereto. "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. "Electric System" shall mean the entire electric system of the City, including all improvements later constructed or acquired. "ERAN Account" shall mean the ERAN Account in the Surplus Revenue Fund of the City established by Section 13 hereof. "Issuing and Paying Agent" shall mean the entity appointed by resolution of the City Council, to perform the services described in Section 16 hereof, and any successor to such entity. "Issuing and Paying Agent Agreement" shall mean the Issuing and Paying Agent Agreement between the City and the Issuing and Paying Agent, as amended from time to time, pursuant to which the Issuing and Paying Agent will perform certain services for the City described in Section 16 hereof. "Note" or "Notes" shall mean the City of Anaheim Electric Revenue Anticipation Notes authorized by this Ordinance and the Resolution, including any renewals thereof. "Ordinance" shall mean this ordinance as from time to time amended or supplemented in accordance with the terms hereof and the Charter. "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 guaranteed 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 delivered pursuant to this Ordinance and the Resolution. "Qualified Obligations Account" shall mean the Qualified Obligations Account in the Surplus Revenue Fund of the City established by Section 13 hereof. 3 "Remaining Surplus Account" shall mean the Remaining Surplus Account in the Surplus Revenue Fund of the City established by Section 13 hereof. "Resolution" shall mean the resolution of the City Council authorizing the issuance of the Notes pursuant to the Ordinance and Section 1210 of the Charter, as such resolution may be amended from time to time. "Revolving Credit Agreement" shall mean the credit or other agreement approved by resolution of the City Council of the City between the City and one or more financial institutions, as amended from time to time. "Surplus Revenue Fund" shall mean the Electric System Surplus Revenue Fund of the City, a special fund of the City held by the Treasurer, originally created by Resolution No. 76R-276 of the City Council. "Surplus Revenues" shall mean moneys deposited in the Surplus Revenue Fund of the City. 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, issuance and securing from time to time of the Notes. The principal amount of the Notes Outstanding in accordance with their terms together with the principal amount of the 1983 Notes outstanding in accordance with their terms at any one time shall not exceed 25% of the gross revenue earned by the Electric System during the immediately preceding fiscal year as set forth in the audited financial statements of the Electric System for such year or the maximum aggregate amount of the revolving Electric 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 Electric Revenue Anticipation Notes" and shall be sold, secured and issued on such terms and conditions as are hereinafter set forth, for the purpose of financing and refinancing expenditures made or to be made in the maintenance, repair and operation of its Electric System, including the purchase of power and costs associated with the acquisition, processing, enrichment, storage and disposal of nuclear fuel. Section 3. Findings and Determinations. The City Council hereby finds and determines that: (a) Municipal Affairs. The financing and refinancing of expenditures made or to be made in the maintenance, repair and operation of its Electric System, including the purchase of power and costs associated with the acquisition, processing, enrichment, storage and disposal of nuclear fuel, are incidental to the generation and transmission of electric energy by the City and as such constitute municipal affairs of the City which are not statewide concerns. 4 (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. (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 resolution 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 payable to the bearer (but if directed by a Determination from an Authorized Person, the Issuing and Paying Agent shall instead register the Note and make it payable to a designated 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; provided, 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 costs, i.e., .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 S. 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 the City, but shall be payable both as to principal and interest from: (a) the proceeds of electric revenues anticipation notes issued pursuant to this or subsequent ordinances pursuant to Section 1210 of the Charter, including any such electric 5 revenue anticipation note issued under the Revolving Credit Agreement; (b) Surplus Revenues in the ERAN Account; and (c) any other lawfully available source of funds permitted 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. 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 16 hereof. Section 7. Public or Private sale, Delivery, Maturities, Interest Rates, Etc. Each Note may be sold and issued through public or private sale, at 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 designated herein shall be delivered to the Issuing and Paying Agent. Each Determination shall be substantially in the form established by the Resolution. Section S. Negotiability. Each Note 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 or registered payee thereof as the absolute owner of 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 set forth in Exhibit A hereto, 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 the Ordinance or the Resolution, including, without limitation, appropriate legends and any legal opinions relating to the Notes. Section 10. Execution. The Notes shall be signed on behalf of the City by the Mayor and the City Clerk. The signatures 11 of the Mayor and the City Clerk upon the 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 provisions 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 nevertheless 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. No Note shall, however, be valid or enforceable unless and until it 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 any Note or making any Determination shall be liable personally thereon or by reason of the issuance thereof, and no recourse shall be had for the payment of the principal of or interest on any Note or for any claim based thereon or on the 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 any Note or making any Determination. Section 12. Authority of Officers. Each Authorized Person is appointed and authorized to execute such documents, instruments and papers and to open such bank accounts, and to do such acts and things, as may be necessary or advisable in connection with sale and issuance from time to time of the Notes and the deposit and investment of the proceeds thereof. Section 13. Establishment and Maintenance of Funds and Accounts. (a) There are hereby established with the Treasurer of the City the following accounts within the Surplus Revenue Fund, which accounts shall be kept separate and apart from all other funds and moneys held by it: (i) the Qualified Obligations Account; (ii) the ERAN Account; and (iii) the Remaining Surplus Account. The City shall make deposits to and payments from such accounts in accordance with Section 14 hereof. 7 (b) The Treasurer shall continue to maintain the Surplus Revenue Fund, so long as any of the Notes remain Outstanding. Section 14. Flow of Surylus Revenues. So long as any Notes are Outstanding, promptly after any deposit is made to the Surplus Revenue Fund in any month, the entire amount of Surplus Revenues in the Surplus Revenue Fund shall be transferred in the indicated priorities to the following accounts: First, there shall be transferred to the Qualified Obligations Account the amount of Qualified Obligation Service with respect to such calendar month (to the extent not already transferred to such Account in such month), or the entire amount of Surplus Revenues then available for transfer to the Qualified Obligations Account, whichever is less. Second, there shall be transferred to the ERAN Account the amount required by the Resolution to be transferred thereto in such month (to the extent not already transferred to such Account in such month), or the entire amount of Surplus Revenues then available for transfer to the ERAN Account, whichever is less. Third, all remaining Surplus Revenues shall be transferred to the Remaining Surplus Account. Moneys in the Remaining Surplus Account at any time may be used for any lawful purpose of the City, provided. that, moneys remaining on deposit in the Remaining Surplus Account at any time shall be transferred as needed, in the following order of priority: (i) to the Qualified Obligations Account, the amount necessary (or all available moneys in the Remaining Surplus Account if less than the amount necessary) to make up any deficiency therein, and (ii) to the ERAN Account, the amount necessary (or all available moneys in the Remaining Surplus Account if less than the amount.necessary) to make up any deficiency therein. Section 15. Security for the Notes. The Notes shall be secured by a pledge, charge and lien upon the Surplus Revenues in the ERAN Account and shall be paid from Surplus Revenues in the ERAN Account unless otherwise paid from other sources of legally available funds. All Notes shall be equally secured by the Surplus Revenues in the ERAN Account without priority for number, date of Notes, date of sale, date of execution, or date of delivery. The Surplus Revenues in the ERAN Account 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 and the payment of all other amounts required to be paid from the ERAN Account as provided in the Resolution. 8 Section 16. 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 funds or accounts established with the Issuing and Paying Agent (the "Note Payment Accounts"). The City will deposit funds in the Note Payment Accounts 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 thereto, or appointing additional firms to act as an Issuing and Paying Agent, all without notice to or the consent of any Note holder. Section 17. Dealer Agreement. Pursuant to the Dealer Agreement, the Dealer may from time to time purchase Notes from the City or arrange from the sale of Notes by the City for a fee or other compensation as more particularly set forth in the Dealer Agreement. Section 18. Revolving credit Agreement. Pursuant to the Revolving Credit Agreement, the City may issue a Note or Notes, in a form other than that required by Section 9 hereof, to the financial institutions(s) specified therein so long as the aggregate principal amount of Notes Outstanding and 1983 Notes outstanding in accordance with their terms at any one time does not exceed the amount permitted by Section 2 hereof. Section 19. Notes, Resolution and Ordinance 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 20. Disposition of Proceeds of Notes. Immediately upon receiving the proceeds of any Note, the City shall place in the Note Payment Accounts referred to in Section 16 hereof, in addition to any accrued interest included in such proceeds, an amount sufficient to pay the principal of and interest on all Notes and 1983 Notes which have become due and payable and remain unpaid. The balance of such proceeds shall be set aside and placed in the ERAN Account 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). 9 Section 21. 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 21, the City shall act through an Authorized Person. Section 22. 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. In the event any such Note shall have matured, instead of issuing a duplicate 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 23. 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 appropriate in connection with the Notes, and, in addition to the appointment of the Issuing and Paying Agent hereinabove named, may appoint the City Treasurer as fiscal or other agent in connection with the Notes. Section 24. General 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 respectively authorized to do and perform from time to time any and all acts and things consistent with this Ordinance necessary or appropriate to carry the same into effect. Section 25. Publication. The City Clerk shall cause this Ordinance to be published once, within fifteen days after its adoption, in The Anaheim Bulletin, the official newspaper of the City. Section 26. Effective Date. This Ordinance shall become effective thirty days from and after the date of its adoption. 10 Section 27. When Ordinance No. 4417 Revealed; No New 1983 Notes. (a) On and after the first day that all 1983 Notes are no longer outstanding in accordance with their terms, this Ordinance shall repeal Ordinance No. 4417 and Ordinance No. 4417 shall be of no further force or effect. (b) The City shall and hereby covenants that it shall not issue or sell any additional 1983 Notes on or after the first day on which this Ordinance and the Resolution (each as originally adopted) have become effective. 11 ADOPTED, SIGNED AND APPROVED this ZOth day of June 1989. (SEAL) ATTEST: �a,- �& sz�� City Clerk of the City of Anaheim 12 Mayor of the ity o Anaheim CLERK STATE OF CALIFORNIA- COUNTY ALIFORNIACOUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing Ordinance No. 5032 was introduced at a regular meeting of the City Council of the City of Anaheim, held on the 13th day of June, 1389, and that the same was duly passed and adopted at a regular meeting of said City Council held on the 20th day of June, 1989, by the following vote of the members thereof: AYES: COUNCIL MEMBERS: Daly, Ehrle, Pickler, Kaywood and Hunter NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Ordinance No. 5032 on the 21st day of June, 1989. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim this 21st day of June, 1989. -;'( S`� CITY CLERK OF THE CITY OF ANAHEIM (SEAL) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original Ordinance No. 5032 and was published once in the Anaheim Bulletin on the 30th day of June, 1989. CITY CLERK OF THE G1TY OF ANAHEIM Exhibit A United States of America State of California County of orange City of Anaheim ELECTRIC REVENUE ANTICIPATION NOTE No. , 198_ The CITY OF ANAHEIM promises to pay to the order of Bearer on 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 , 1989 [, as amended] (the "Ordinance"), and Resolution No. 89R- of the City Council adopted on , 1989 [, as amended] (the "Resolution") this Note is one of an issue of Notes payable both as to principal and interest out of: Surplus Revenues in the ERAN Account (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 such electric revenue anticipation note issued under the Revolving Credit Agreement (as defined in the Ordinance), and any 13 other lawfully available source of funds permitted 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 provided 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 performed, precedent to and in the incurring of this indebtedness evidenced 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 electric 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: 14 CITY OF ANAHEIM By: Mayor By: City Clerk