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90-16511009-44 JHHW:BDQ:kla 05/01/90 Z5710 05/10/90 CITY OF ANAHEIM RESOLUTION NO. 9OR- t65 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM PROVIDING FOR THE BORROWING OF FUNDS FOR FISCAL YEAR 1990/1991 AND THE ISSUANCE AND SALE OF 1990 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, 1990, and ending June 30, 1991 ("Fiscal Year 1990/1991 "); NOW, THEREFORE, it is hereby DETERMINED and ORDERED as follows: Section 1. 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 1990/1991, and available for the payment of said notes and the interest thereon (as hereinafter provided). Section 2. 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 1990/1991, and not pursuant to any common plan of financing, the City hereby determines to and shall borrow the principal amount of twenty-two million dollars ($22,000,000) by the issuance of temporaw notes under the Law, designated "City of Anaheim (Orange County, California) 1990 Tax and Revenue Anticipation Notes" (the "Notes"). The Notes shall be dated July 2, 1990, shall mature (without option of prior redemption) on August 1, 1991, and shall bear interest, payable at maturity and computed on a 30-day month/360-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 3. 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 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. DTO 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. -2- 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 4. 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 5. 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 1990/1991. 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 $7,500,000 in the month of December, 1990, (b) in the amount of $7,500,000 in the month of March, 1991, and (c) in the amount of $7,000,000, plus an amount sufficient to pay interest on the Notes at their maturity, in the month of June, 1991 (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 for Fiscal Year 1990/1991 and which are generally available for the payment of current expenses and other obligations of the City. Section 6. Repayment Account. There is hereby created, within the General Fund, a special account to be designated the "1990 Tax and Revenue Anticipation Note Rei~ayment 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 any interest earned on amounts deposited Jn the Repayment Account shall periodically be transferred to the General Fund. During the months of December, 1990, March, 1991, and June, 1991, the City shall deposit all Pledged Revenues in the Repayment Account. On August 1, 1991, 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 -3- 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 7. 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 8. 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 9. 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 11 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 10. 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 11. 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. -4- Section 12. 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 13. 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 13 and of the expenses which may be incurred by the City in the premises. Any Note issued under the provisions of this Section 13 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 14. Covenants and Warranties. It is hereby covenanted and warranted by the City that al~ 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 15. 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 Notes, plus accrued interest and premium, if any, less original issue discount, if any (the "Proceeds"), is used, directly or indirectly, in a trade or business carried on by a natural person or in any activity carried on by a person other than a natural person, excluding, however, use by a governmental unit and use as a member of -5- the general public ("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 in respect of property, or borrowed money, used or to be used for a Private Business Use; and ~v (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 prinoipal 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 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 Internal Revenue Code of 1986 (the "Code") and the regulations promulgated thereunder. (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 promulgated thereunder. (e) Rebate of Excess Investment Earnings to United States; Safe Harbor Rules. The City covenants that it will assure compliance with requirements for rebate of excess investment earnings to the federal government in accordance with section 148(f) of the Code, to the extent applicable. The City shall not be obligated to rebate excess investment earnings to the federal government if the City complies with the Safe Harbor Rules (as hereinafter defined), -6- "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. Section 16. 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 17. 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. -7- 'THE FOREGOING RESOLUTION is approved and adopted by the City Council of the City of Anaheim this 15th day of May, 1990. AYO~CI~ A'I-I'EST: CITY CLERK OF THE CITY OF ANAHEIM -$- CLERK 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. 90R-165 was introduced and adopted at a regular meeting provided by law, of the City Council of the City of Anaheim held on the 15th day of May, 1990, by the following vote of the members thereof: AYES: COUNCIL MEMBERS: Daly, Ehrle, Pickler and Hunter NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: Kaywood AND I FURTHER certify that the Mayor of the City of Anaheim signed said Resolution No. 90R~165 on the 16th day of May, 1990. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the City of Anaheim this 16th day of May, 1990. 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 of Resolution No. 90R-165, duly passed and adopted by the Anaheim City Council on May 15, 1990. CITY CLERK OF THE CITY OF ANAHEIM