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93-103 CITY OF ANAHEIM RESOLUTION NO. 93R-103 AMENDED AND RESTATED RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM, CALIFORNIA RELATING TO THE ISSUANCE OF WATER REVENUE ANTICIPATION NOTES OF SAID CITY PURSUANT TO ORDINANCE NO. 4415 OF SAID CITY COUNCIL WHEREAS, the City Council of the City of Anaheim (the "City") at its meeting on April 26, 1983, adopted an Ordinance, designated as Ordinance No. 4415 ("Ordinance No. 4415"), providing procedures for the issuance, sale and securing of Water Revenue Anticipation Notes of the City and providing terms and conditions of said notes and the City is adopting, on the date of adoption of this Resolution, an Ordinance (the "New Ordinance") amending and restating Ordinance No. 4415 (ordinance No. 4415, as amended and restated by the New Ordinance and as amended and supplemented from time to time, the "Ordinance"); and WHEREAS, the City Council of the City of Anaheim (the "City") at its meeting on April 27, 1983 adopted a Resolution, designated as Resolution No. 83R-169, relating to the issuance of Water Revenue Anticipation Notes of the City; and WHEREAS, the City Council at its meeting on August 28, 1984 adopted a Resolution, designated as Resolution No. 84R-332, amending and supplementing said Resolution No. 83R-169; and WHEREAS, the City Council at its meeting on August 28, 1984 adopted a Resolution, designated as Resolution No. 84R-334, supplementing said Resolution No. 83R-169; and WHEREAS, the City Council at its meeting on September 2, 1986 adopted a Resolution, designated as Resolution No. 86R-389, amending and supplementing said Resolution No. 83R-169; and WHEREAS, the City Council at its meeting on October 28, 1986 adopted a Resolution, designated as Resolution No. 86R-481, amending said Resolution 83R-169; and WHEREAS, the City Council at its meeting on February 25, 1992 adopted a Resolution, designated as Resolution No. 92R-31, amending said Resolution 83R-169; and WHEREAS, said Resolution No. 83R-169, as so supplemented and amended, is herein referred to as the "Original Resolution"; and LA01 \1080\5526.3 9&601.8 WHEREAS, it is in the best interest of the City to amend and restate the Original Resolution; and WHEREAS, the Original Resolution as amended by this Resolution is hereby restated in its entirety in this Resolution; WHEREAS, capitalized terms used herein and not defined herein shall have the meanings ascribed thereto in the ordinance; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. Definitions. As used in this Resolution, "Agreements," "Charter," "Constitution," "Credit Agreement," "Dealer," "Determination," "Enterprise," "WRAN Account," "Issuing and Paying Agent," "Issuing and Paying Agent Agreement," "Notes," "Outstanding," "Qualified Obligations Account" and "Surplus Revenues" shall have the respective meanings ascribed thereto in the Ordinance. As used in this Resolution: "Authorized Person" shall mean each of the Public Utilities General Manager of the City, the Financial Services Manager of the Public Utilities Department of the City, the City Treasurer and the Finance Director of the City. "Bond" shall mean any revenue bond, revenue note, warrant or other evidence of indebtedness issued, incurred or delivered for the financing or refinancing of extensions of, additions to, repairs and replacements to, renewals of, and improvements of the Enterprise, designated by the City at the initial delivery thereof as payable from Surplus Revenues in the Qualified Obligations Account. "Bond" shall not include any Obligation. "Bond Counsel" shall mean (a) Mudge Rose Guthrie Alexander & Ferdon, Los Angeles, California, and Rourke, Woodruff & Spradlin, Orange, California, co-bond counsel to the City in connection with the issuance of the Notes or (b) any other nationally recognized law firm specializing in the area of tax- exempt municipal finance appointed by the City in connection with the Notes. "Obligation" shall mean any contract, instrument or other agreement for the purchase, acquisition or lease of facilities, properties, structures or equipment for the Enterprise, designated by the City at the initial delivery thereof as payable from Surplus Revenues in the Qualified Obligations Account, and the final payments under which are due more than one year following the incurrence thereof. "Obligation" shall not include any Bond. "Qualified Obligations" shall mean Bonds and Obligations. LA01 \1080\5526.3 2 94601.8 "Qualified Obligation Service" shall mean, with respect to any period, the amount of principal and interest or other payments accrued or to accrue in such period with respect to all outstanding Qualified Obligations (excluding the amount of proceeds of Qualified Obligations held in any fund or account for the payment of Qualified Obligation Service accrued or to accrue during such period). For purposes of accrual under this definition, all payments with respect to Qualified Obligations due in a calendar month shall be deemed due on the first day of such calendar month. Section Z. Representations and Warranties. The City represents and warrants, with respect to the Enterprise, that: (a) It is a municipal corporation duly organized and validly existing under the Constitution and laws of the State of California, and has all requisite power and authority to conduct its business, to own its properties and to execute, deliver and perform all of its obligations under the Ordinance, this Resolution and the Agreements; and to issue each of the Notes. (b) The issuance, execution, delivery and performance by the City of the Notes, the Ordinance, this Resolution and the Agreements have been duly authorized and do not (i) violate any provision of the Charter, any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to the Enterprise, (ii) result in a breach of or constitute a default under any resolution of the city with respect to the Enterprise or any indenture or loan or credit agreement or any other agreement, lease or instrument with respect to the Enterprise to which the City is a party or by which the City or any of its Enterprise properties may be bound or affected, or (iii) result in, or require, the creation or imposition of any mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance of any nature, other than those imposed in the Ordinance, this Resolution and the Agreements, upon or with respect to any of the assets now owned or hereafter acquired by the city for the Enterprise; and the City is not in any material respect in violation of or in default under any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any such indenture, agreement, lease or instrument material to its operation of the Enterprise. (c) No authorization, consent, approval, license, exemption of or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, has been or will be necessary for the valid execution, delivery and performance by the City of the Ordinance, this Resolution and the Agreements, except for (i) those which have already been given, obtained or accomplished or (ii) those which are required in the future. LA01 \1080\5526.3 3 96601.8 (d) The Ordinance, this Resolution and the Agreements, when the Ordinance has become effective and such Agreements have been executed and delivered by the parties thereto, constitute legal, valid and binding obligations of the City enforceable against the City in accordance with their respective terms, except as they may be limited by applicable bankruptcy, ~nsolvency, moratorium, reorganization or similar laws affecting the enforcement of creditors' rights generally. (e) The Notes will be, when executed and delivered, valid and binding obligations of the City, enforceable in accordance with their respective terms, except as they may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the enforcement of creditors' rights generally. Section 3. Tax Covenants Relating to the Internal Revenue Co~e of 1986. The city shall do the following with respect to the Notes: (a) The city shall comply with each applicable requirement of the Internal Revenue Code of 1986 (the "Code") necessary to maintain the exclusion of interest on the Notes from gross income for Federal income tax purposes. In furtherance of the covenant contained in the preceding sentence, the city agrees to comply with the provisions of the Master Tax Certificate as to Arbitrage and Instructions as to Compliance with the Provisions of Section 103(a) of the Internal Revenue Code of 1986 (the "Master Tax Certificate") as most recently executed by the City, as such Tax Certificate may be amended from time to time, as a source of guidance for achieving compliance with the Code. (b) The City shall make any and all payments required to be made to the United States Department of the Treasury in connection with the Notes pursuant to Section 148(f) of the Code from amounts on deposit in the funds and accounts established under the Ordinance or otherwise available therefor. (c) The city covenants that it will not issue any Notes or other commercial paper, any proceeds of which will not be used to refund maturing Notes without an opinion of Bond Counsel to the effect that interest on the Notes being so issued will be excluded from gross income for Federal income tax purposes. (d) Notwithstanding any other provision of the Ordinance or this Resolution to the contrary, so long as necessary to maintain the exclusion from gross income of interest on the Notes for Federal income tax purposes, LA01 \1080\5526.3 4 9&601.8 the covenants contained in this Section 3 shall survive the payment of the Notes and the interest thereon. (e) Notwithstanding any other provision of the ordinance or this Resolution to the contrary, upon the city's failure to observe or refusal to comply with the above covenants, the holders of the Notes, or the Trustee acting on their behalf, shall be entitled to the rights and remedies provided to Note holders under the Ordinance or this Resolution, other than the right (which is abrogated solely in regard to the failure to observe or refusal to comply with the covenants of this Section 3) to declare the principal of all Notes then outstanding, and the interest accrued thereon, to be due and payable. Section 4. NO Litigation. The City hereby represents that there is no litigation pending involving the City wherein an unfavorable decision, ruling or finding would adversely affect the validity of the Notes, the Ordinance, this Resolution or the Agreements, except for any such litigation as to which there has been rendered an opinion of Bond Counsel that such litigation is without merit. Seotion 5. Covenants Relating to Notes. The City hereby covenants that: (a) No Note issued under the Ordinance, other than any Note issued pursuant to a Credit Agreement, shall mature more than three (3) years from the date of issuance thereof; provided that any Note issued for a term in excess of one (1) year shall be issued in fully registered form. (b) A Note need not bear interest from its date, if the Determination given or delivered with respect to such Note pursuant to the Ordinance shall specify an interest rate of zero. (c) So long as any Note is Outstanding, the City will not at any time amend or modify the Ordinance or this Resolution, without the written consent of the holder of each Note Outstanding at such time, provided, however, that such consent shall not be required if the amendment or modification shall be, and be expressed to be, inapplicable to all Notes Outstanding prior to the effectiveness of such amendment or modification. Section 6. Additional Covenants Relating to the Notes and the Enterprise. So long as any of the Notes are outstanding, the City makes the following covenants with the Note holders under the provisions of Section 1210 of the Charter (to be performed by the City or its proper officers, agents or employees), which covenants are necessary, convenient and desirable to secure the Notes and LA01 \1080\5526.3 5 94601.8 tend to make them more marketable; provided, however, that said covenants do not require the City to expend any moneys other than from the Surplus Revenues in the WRAN Account. Covenant 1. Punctual Payment. The City will duly and punctually pay or cause to be paid the principal of and interest on every Note issued hereunder on the date, at the place'and in the manner mentioned in the Notes and in accordance with this Resolution, in strict conformity with the terms of the Notes and of this Resolution, and it will faithfully observe and perform all of the conditions, covenants and requirements of this Resolution and all resolutions supplemental thereto and of the Notes issued hereunder, and that the time of such payments and performance is of the essence of the city's contract with the Note holders. Covenant 2. Operate Enterprise in Efficient and Economical Manner. The City shall operate the Enterprise in an efficient and economical manner and shall operate, maintain and preserve the Enterprise in good repair and working order. Covenant 3. Insurance. The City shall at all times maintain with responsible insurers all such insurance on the Enterprise as is customarily maintained by similar utilities systems with respect to works or properties of like character against accident to, loss of or damage to such works or properties and against loss of revenues. The City shall also maintain with responsible insurers worker's compensation insurance and insurance against public liability and property damage to the extent reasonably necessary and obtainable. Notwithstanding the foregoing, the City may provide any insurance required hereby through a self-insurance program or as part of any blanket coverages maintained by the city. Covenant 4. Records and Accounts. The City shall keep proper books of record and accounts of the Enterprise, separate from all other records and accounts, in which complete and correct entries shall be made of all transactions relating to the Enterprise. The City shall cause the books and accounts of the Enterprise to be audited annually by an independent, certified public accountant or firm of certified public accountants. Covenant 5. Collection of Charges. The City will permit no free use of services of the Enterprise. The City will pay promptly to the account of the Enterprise from the City's General Fund (or other available funds) for all City use and services of the Enterprise. The City will not grant or establish within any class of service preferential or discriminatory rates, fees or charges for use and services of the Enterprise. For the purposes of setting such rates, fees and charges, service located outside the city limits of the City of Anaheim may be considered as separate classes of service. The City covenants that it shall at all times during the period any of the Notes are outstanding maintain and enforce valid regulations for the payment of bills for water service and that such regulations shall at all times during LA01 \1080\5526.3 6 9&601.8 such period provide that the City shall discontinue water service to any user whose water bill has not been paid within the time fixed by said regulations. Covenant 6. Defense of Security for Notes. The City shall preserve and protect the security for the Notes and the rights of the Note holders and warrant and defend their rights to such security against all claims and demands of all persons. Section 7. Reaffirmation of Representations and Warranties; Determination. The representations and warranties made in this Resolution are made solely on the basis of the law, facts and circumstances existing on the effective date of this Resolution. Each issuance of Notes by the City shall constitute an affirmation on the part of the City that the representations and warranties of the City contained in this Resolution were true and correct in all material respects on the effective date of this Resolution, unless prior to the issuance of such Notes the City shall have received an opinion of Bond Counsel that the failure of the City to so affirm such representations and warranties will not materially adversely affect the authorization of the City to issue such Notes. Such affirmation shall be evidenced by the execution and mailing to Bond Counsel on the date of each such issuance of a certificate signed by the Authorized Person, substantially in the form of Exhibit A hereto, together with the form of the Determination, attached hereto as Attachment A to Exhibit A. Each Determination shall specify the maximum principal amount of Notes which may then be issued (determined in accordance with Section 2 of the Ordinance) together with the aggregate principal amount of the Notes to be Outstanding upon issuance and delivery of the Notes covered by such Determination, together with, in the case of each Note covered by such Determination, such Note's principal amount, denomination, number, date of issue, maturity, rate of discount or interest, or both, and the purchase price of such Note, the terms and conditions of payment, a request that the Issuing and Paying Agent authenticate such Note by manual countersignature of an authorized officer and deliver it to the purchaser thereof upon receipt of payment as specified, and such other terms and conditions as shall be fixed by any Authorized Person at the time of sale of such Note. Copies of such certificate and Determination shall also be mailed on such day to the Dealer and to the Issuing and Paying Agent. section 8. Deposits to WRAN Account; Security for the Notes; Deposits to Qualified Obligations Account; Security for Qualifie~ obligations. (a) Surplus Revenues shall be transferred to the WRAN Account in each month, in accordance with clause Second of Section 14(b) of the Ordinance, in an amount equal to the amount of all principal of and interest on the Notes to become due and payable prior to the end of the next succeeding month, less the sum of {i) any amount already available in such Account for such payment and LA01 \1080\5526.3 7 94601.8 (ii) the amount of proceeds of future Notes anticipated by the City to be available for such payment. The Notes shall be secured as provided in Section 15 of the Ordinance. (b) Surplus Revenues shall be transferred to the Qualified Obligations Account in each month, in accordance with clause First of Section 14(b) of the Ordinance. Qualified Obligations shall be secured as provided in the agreements and instruments establishing the Qualified Obligations. Section 9. Events of Default and Remedies. If one or more of the following events of default shall occur and be continuing: (a) a default in the due and punctual payment of the principal of or interest on any Note when and as the same as shall become due and payable; or (b) any representation or warranty of the City contained in the Resolution shall prove to have been false in any material respect on the effective date of this Resolution; or (c) the City shall file any petition or action for relief which impacts the obligations of the City with respect to the Enterprise under any bankruptcy, reorganization, insolvency or moratorium law, or any other law for the relief of, or relating to, debtors; then, and any such event the holder of any Note may, by notice in writing to the City, declare such Note to be, and it shall forthwith become, due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the City. Section 10. Resolution to Constitute Contract. The provisions of this Resolution shall constitute a part of the contract between the City and the Note holders, created pursuant to the Notes and the Ordinance, and such provisions shall be enforceable by mandamus or any other appropriate suit, action or proceeding at law or in equity in any court of competent jurisdiction. LA01 \1080\5526.3 8 9~601.8 Section 11. Effective Date. This Resolution shall become effective on the first date, on or after the date of adoption hereof, that the New Ordinance (as originally adopted) has become effective. Notes issued after adoption of this Resolution, but before its effective date, shall (i) until said effective date, be subject to the Original Resolution, and (ii) on and after said effective date, be subject to the Original Resolution as amended by this Resolution. ADOPTED, SIGNED AND APPROVED this 15th day of June, 1993. (SEAL) City Clerk LA01 \1080\5~6.3 9 9(,601.8 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. 93R-103 was introduced and adopted at an adjourned regular meeting provided by law, of the city Council of the city of Anaheim, held on the 15thday of June, 1993, by the following vote of the members thereof: AYES: COUNCIL MEMBERS: Feldhaus, Hunter. Pickler, Simpson, Daly NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: None AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Resolution No. 93R- 103 on the 16_~thday of June, 1993. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the city of Anaheim this16t__hday of June, 1993. LA01 \1080\5526.3 10 94601.8 EXHIBIT A THE CITY OF ANAHEIM SUPPLEMENTAL ARBITRAGE CERTIFICATE, REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES, AND CERTIFICATE OF cOMPLIANCE WITH COVENANTS AND AGREEMENTS Pursuant to the terms of Resolution No. of the Council of the City of Anaheim, as amended (the "Resolution") and pursuant to the Federal Treasurer Regulations under Section 103(c) of the Internal Revenue Code, the following statements, reaffirmations, and certificates are made on behalf of the City of Anaheim (the "City"). 1. Today, , 199_, (the "Issuance Date"), the City has sold Water Revenue Anticipation Notes in the amounts, with the maturities, and bearing the interest rates set forth in Attachment A, attached hereto (the "Notes"). 2. The city affirms as of the Issuance Date the representations and warranties set forth in Sections 2, 3 & 4 of the Resolution. 3. The City represents and warrants that the representations and warranties set forth in Sections 2, 3 & 4 of the Resolution have remained true and have not been breached since the date the Resolution was adopted. 4. The City reaffirms its covenants set forth in Sections 5 and 6 of the Resolution as of the Issuance Date. 5. The City certifies that the covenants set froth in Sections 5 and 6 of the Resolution have been complied with. LA01 ',1080\5526.3 A-1 94601.8 6. By its signature to this document the City hereby reissues the Master Tax Certificate (as defined in the Resolution) with respect to the Notes as of the Issuance Date. EXECUTED this __ day of , 1993. By LA01 \1080\5526.3 A-2 94601.8 Attachment A to Exhibit A , 199 BankAmerica Trust Company of New York New York, New York Re: City of Anaheim Water Revenue Anticipation Notes Gentlemen: Please authenticate the following Note by manual signature of an authorized officer, and deliver it to the purchaser thereof against payment therefor in accordance with (i) Section__ of Ordinance No. of the City, adopted , 1993, as amended, and (ii) paragraph (c) of the Issuing and Paying Agent Agreement dated as of June 1, 199_ between BankAmerica Trust Company of New York and the City: Note Number: Principal Amount of this Note: Date of Issue: Maturity Date: Interest Rate: Purchase Price: Purchaser: Maximum Principal Amount of Notes which may be issued in accor- dance with Section 2 of Resolution No. 93R- : Aggregate Principal amount of the Notes to be outstanding upon the issuance and delivery of this Note: LA01 \1080\5526.3 A-3 94601.8 The terms and conditions of payment of such Note are as set forth in such Note. Very truly yours, Authorized Person LA01 %1080%5526.3 A-4 94601.8