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HomeMy WebLinkAboutReso 79-1993 RESOLUTION NO. 79-93 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION AUTHORIZING ISSUANCE OF BONDS FOR THE WILLOW GARDENS, WEST PARK 1 & 2 AND WEST PARK 3 PARKS AND PARKWAYS ASSESSMENT DISTRICTS WHEREAS, this Council has heretofore duly levied special assessments against the real property within the boundaries of Willow Gardens Parks and Parkways Maintenance District, West Park 1 & 2 Parks and Parkways Maintenance District, and West Park 3 Parks and Parkways Maintenance District, all of which are hereinafter collectively referred to as the "Assessment District," pursuant to the Landscaping and Lighting Act of 1972; and WHEREAS, this Council has determined that the estimated cost of the Project, as hereinafter defined, is greater than can be conveniently raised in a single annual assessment and that the estimated cost of the Project be raised by an assessment levied and collected in installments over a period of not to exceed eight (8) years, that is from fiscal year 1993-94 through fiscal year 2000-2001; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco as follows: ARTICLE I GENERAL: DEFINITIONS Section 1.01. DETERMINATION TO ISSUE BONDS. The City Council hereby determines that bonds shall be issued to finance the estinated cost of the Project pursuant to the Improvement Bond Act of 2915 to represent and be secured by the Assessment as hereinafter defined. Secnion 1.02. RULES OF CONSTRUCTION. Ail references in this Resolution to "Articles", "Sections", and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Resolution; and the words "herein", "hereof", "hereunder" and other words of similar import refer to this Resolution as a whole and not to any particular Article, Section or subdivision hereof. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate, words importing the singular number shall include the plural number and vice versa, and words importing persons shall include corporations and associatLons, including public bodies, as well as natural persons. Section 1.03. EQUAL SECURITY. In consideration of the acceptance of the Bonds by the Owners thereof, this Resolution shall be deemed to be and shall constitute a contract between the City and the Owners from time to time of the Bonds; and the covenants and agreements herein set forth to be performed on behalf of the City shall be for the equal and proportionate benefit, security and protection of all Owners of the Bonds without preference, priority or distinction as to security or otherwise of any of the Bonds over any of the others by reason of the number or date thereof or the time of sale, execution or delivery thereof, or otherwise for any cause whatsoever, except as expressly provided therein or herein. Section 1.04. DEFINITIONS. Unless the context otherwise requires, the terms defined in this Section shall, for all purposes of this Resolution and of any Supplemental Resolution and of the Bonds and of any certificate, opinion, request or other document herein mentioned, have the meanings herein specified. "Act" means the Landscaping and Lighting Act of 1972, Sections 22500 et seq., of the Streets and Highways Code of California. "Agent" means Bank of America National Trust and Savings Association appointed hereby to perform the duties of authentication, registration, transfer and payment of the Bonds and the Agent's assigns or any other corporation or association which may at any time be substituted in its place. "Assessment" means the special assessments levied annually against the real property within the boundaries of the Assessment District pursuant to the Act to pay the cost of the Project and to pay Debt Service on the Bonds. "Assessment District" means that portion of the City included within the boundaries of Willow Gardens Parks and Parkways Maintenance District, West Park 1 & 2 Parks and Parkways Maintenance District, and West Park 3 Parks and Parkways Maintenance District. "Authorized Investments" means any securities (other than those identified in paragraphs (a) and (d) of Section 53601 of the Government Code of the State) in which the City may legally invest funds subject to its control, pursuant to Article 1, commencing with Section 53600, of Chapter 4 of Part 1 of Division 2 of Title 5 of the Government Code of the State, as now or hereafter amended. "Available Surplus Funds" means any surplus moneys held by the City at the end of each Fiscal Year in excess of the amounts required to pay lawful municipal obligations incurred in that Fiscal Year. "Bond Date" means the date upon which the Bonds are issued. "Bond Denomination" means the amount of $5,000 or any integral multiple thereof, which is the minimum amount in which the Bonds may be issued, except that one Bond may contain any odd amount. "Bond Law" means the Improvement Bond Act of 1915, Division 10 of the Streets and Highways Code of California. "Bond Purchase Agreement" means the agreement applicable to the portion of the Bonds being sold between the City and the Original Purchaser whereby the City agrees to sell and the Original Purchaser agrees to buy all or a designated portion of the Bonds. "Bond Registration Books" means the books maintained by the Agent pursuant to Section 2.12 for the registration and transfer of ownership of the Bonds. "Bond Year" means the twelve-month period beginning on the anniversary of the Closing Date in each year and ending on the day prior to the anniversary date of the Closing Date in the following year except that (i) the first Bond Year shall begin on the Closing Date, and (ii) the last Bond Year may end on a prior redemption date. "Bonds" or "Bonds of this Issue" means Limited Obligation Improvement Bonds, City of South San Francisco, Willow Gardens, West Park 1 & 2, and West Park 3 Parks and Parkways Assessment Districts, issued and at any time Outstanding. "Certificate of the City" means a written certificate, statement, request, order or requisition signed by the Treasurer, the Finance Director or by any other officer of the City duly authorized by the Council for that purpose. "City" means the City of South San Francisco, a municipal corporation and general law city of the State of California duly organized and validly existing under and by virtue of the Constitution and the laws of the State of California. "City Manager" means the City Manager of the City. "Clerk" means the City Clerk of the City. "Closing Date" means the date upon which there is an exchange of any of the Bonds for the proceeds representing the purchase price of such Bonds by the Original Purchaser thereof. "Costs of Issuance" means all expenses incurred in connection with the authorization, issuance, sale and delivery of the Bonds, including but not limited to compensation, fees and expenses of the City and the Agent and their respective counsel, compensation to any financial consultants and underwriters (other than those taken as discount on the Closing Date), legal fees and expenses, filing and recording costs, costs of preparation and reproduction of documents, costs of compliance with Tax Regulations relating to rebate to the United States under Section 5.09 and costs of printing, mailing and publication of notices with respect to the City and the Project. "Cost of Issuance Account" means the account of that name established and held by the Treasurer pursuant of Section 4.05 hereof. "Council" means the City Council of the City. "Debt Service" means the scheduled amount of interest and amortization of principal payable on the Bonds during the period of computation, excluding amounts scheduled during such period which relate to principal which has been retired before the beginning of such period. "Federal Securities" means any of the following which at the time of investment are legal investments under the laws of the State for the moneys proposed to be invested therein: (a) direct general obligations of the United States of America (including obligations issued or held in book entry form on the books of the Department of the Treasury of the United States of America); and (b) obligations of any department, agency or instrumentality of the United States of America the timely payment of principal of and interest on which are unconditionally and fully guaranteed by the United States of America. "Finance Director" means the Director of Finance of the City. "Fiscal Year" means the period commencing on July 1 of each year and terminating on the next succeeding June 30. "Improvement Fund" means the fund of that name established and held by the Treasurer pursuant to Section 4.02 hereof. "Interest Payment Date" means each date upon which interest on the Bonds is payable, beginning March 2, 1994, and semiannually on each March 2 and September 2 thereafter until maturity. "Original Purchaser" means Stone & Youngberg as the first purchaser of the Bonds from the City. "Outstanding", when used as of any particular time with reference to Bonds, means all Bonds therefore executed, issued and delivered by the City under this Resolution except: (a) Bonds theretofore cancelled by the Agent or surrendered to the Agent for cancellation; (b) Bonds paid or deemed to have been paid within the meaning of Section 2.14; and (c) Bonds in lieu of or in substitution for which other Bon~s shall have been executed, issued and delivered by the City pursuant to this Resolution or any Supplemental Resolution. "Owner" or "Registered Owner", when used with respect to any Outstanding Bond, means the person in whose name the ownership of such Bond shall be registered on the Bond Registration Books. "Principal Office" means the main or principal office of the Agent handling its corporate trust business. "Project" means lighting improvements, irrigation facilities, handrails, play and playground equipment, sidewalks, steps, landscaping tree planting and appurtenant work and improvement in and for the Assessment District. "Record Date" means, with respect to the Bonds, the fifteenth (15th) day immediately preceding an Interest Payment Date. "Redemption Fund" means the fund of that name established and held by the Treasurer pursuant to Section 4.04 hereof. "Redemption Price" means, with respect to any Bond, the principal amount thereof, plus the applicable premium, if any, payable upon redemption thereof pursuant to the Resolution. "Redemption Premium" means an amount equal to 3% of the principal amount of the Bonds called for redemption on or before September 2, 1998; 2% of the bonds called for redemption on March 2, 1999 and September 2, 1999; 1% of the bonds called for redemption on March 2, 2000 and September 2, 2000; and equal to zero for bonds called for redemption after March 2, 2001. "Reserve Fund" means the fund of that name established and held by the Treasurer pursuant to Section 4.03 hereof. "Reserve Requirement" means five percent (5%) of the principal amount of the Bonds. "Resolution" or "Resolution of Issuance" means this Resolution, as originally adopted or as it may from time to time be supplemented, modified or amended by any Supplemental Resolution pursuant to the provisions hereof. "State" means the State of California. 5 "Supplemental Resolution" means any resolution, agreement, resolution or other instrument hereafter duly adopted or executed by the City in accordance with the provisions of this Resolution. "Tax Code" means the Internal Revenue Code of 1986, as amended. Any reference to a provision of the Tax Code shall include the applicable Tax Regulations with respect to such provision. "Tax Regulations" means temporary and permanent regulations promulgated under the Tax Code. "Treasurer" means, for all purposes hereof, including the execution of the Bonds pursuant to Section 2.09 hereof, the Treasurer or designee thereof of the City. ARTICLE II ISSUANCE OF BONDS Section 2.01. BONDS AUTHORIZED. Ail acts, conditions and things required by law to exist, happen and be performed precedent to and in the issuance of the Bonds have existed, happened and been performed in due time, form and manner as required by law, and the Council is now authorized pursuant to each and every requirement of law to issue the Bonds in the manner and form as in this ResoLution provided. Section 2.02. UNPAID ASSESSMENTS. The principal amounts of the installment assessments (the "Installment Assessments") levied against owners of the property within the Assessment District have been established pursuant to Resolutions No. , , and , each adopted by the City Council on June 23, 1993. The amounts of the Installment Assessments remaining unpaid will be shown on a list of unpaid assessments on file with the Treasurer which is incorporated herein by this reference made a part hereof. The aggregate amount thereof is not to exceed $905,000. For a particular description of the lots or parcels of land bearing the respective assessment numbers set forth in said list, reference is hereby made to the assessmenu and to the diagram, and any amendments thereto recorded in the office of the Superintendent of Streets of the City. Assessmen'ts levied to pay the principal of, and interest on, any Bond issued pursuant to this Resolution shall not be reduced or terminated if doing so would interfere with the timely retirement of the debt. Section 2.03. ISSUANCE OF BONDS. The Bonds, in the aggregate principal amount of not to exceed $905,000 shall be issued as hereinafter provided upon the security of said unpaid assessments in accordance with, under and pursuant to the provisions of the Act, the Bond Law and the proceedings thereunder duly had and taken. The actual principal amount of the Bonds shall be as set forth in the Bond Purchase Agreement. The Bonds shall be known as "Limited Obligation Improvement Bonds, City of South San Francisco, Willow Gardens, West Park 1 & 2, and West Park 3 Parks and Parkways Assessment Districts." SecLion 2.04. MATURITIES OF BONDS. The Bonds shall be issued in only fully registered form, without coupons, in the Bond Denomination or any integral multiple thereof, so long as no Bond shall have more than one maturity date. The Bonds shall be dated and mature on September 2 in each of the years and in the amounts set forth in the Bond Purchase Agreement. The Bonds shall be numbered or otherwise identified as determined by the Agent. Section 2.05. INTEREST ON BONDS. The Bonds shall bear interest at the rate or rates set forth in the Bond Purchase Agreement. Interest on the Bonds shall be payable on each Interest Payment Date to the person whose name appears on the Bond Registrasion Books as the Owner thereof as of the Record Date immediately preceding each such Interest Payment Date, such interest to be paid by check of the Agent mailed to the Owner, at the address of such Owner as it appears on the Bond Registration Books. Principal of and premium (if any) on any Bond shall be paid upon presentation and surrender thereof at the Principal Office of the Agent. Both the principal of and interest and premium (if any) on the Bonds shall be payable in lawful money of the United States of America. Interest shall be computed on the basis of a 360-day year comprised of twelve thirty-day months. The Bonds shall bear interest from the Interest Payment Date next preceding the date of authentication of the Bonds (except for any Bond which is authenticated on an Interest Payment Date, in which event such Bond shall bear interest from such date of authentication, and except for any Bond which is authenticated prior to the first Interest Payment Date, in which event such Bond shall bear interest from the Bond Date); provided, however, that if, as of the date of authentication of any Bond, interest thereon is in default, such Bond shall bear interest from the date to which interest has previously been paid or made available for payment in full. Section 2.06. DESIGNATION OF AGENT. Bank of America National Trust and Savings Association is hereby designated as the Agent to perform the actions and duties required under this Resolution for the authentication, transfer, registration, and payment of the Bonds. The City Manager is hereby authorized and directed to enter into agreements with the Agent in furtherance of the actions and duties of the Agent under this Resolution. Section 2.07. FORM OF BONDS. The Bonds, the form of Agent's certificate of authentication, and the form of assignment to appear thereon, shall be substantially in the respective form set forth in Exhibit "A" attached hereto and by this reference incorporated herein, with necessary or appropriate variations, omissions and insertions, as permitted or required by this Resolution. "CUSIP" identification numbers shall be imprinted on the Bonds, but such numbers shall not constitute a part of the contract evidenced by the Bonds and any error or omission with respect ~hereto shall not constitute cause for refusal of any purchaser to accept delivery of or pay for the Bonds. In addition, failure on the part of the City or the Agent to use such CUSIP numbers in any notice to Owners shall not constitute an event of default or any violation of the City's contract with such Owners an~ shall not impair the effectiveness of any such notice. Section 2.08. PREPARATION AND DELIVERY OF BONDS. Upon execution of the Bond Purchase Agreement, the Finance Director is hereby directed to cause the Bonds to be prepared in accordance with this Resolution and to cause their delivery upon their completion and execution to the Agent who shall authenticate and deliver the Bonds to the Original Purchaser, upon receipt of the purchase price therefor, and upon receipt of the request of the City. Section 2.09. EXECUTION OF BONDS. The Bonds shall be signed in the name and on behalf of the City with the manual or facsimile signatures of the Treasurer and attested by the manual or facsimile signature of the Clerk. The Bonds shall then be delivered to the Agent for authentication by it. In case any officer who shall have signed any of the Bonds shall cease to be such officer before the Bonds so signed shall have been authenticated or delivered by the Agent or issued by the City, such Bonds may nevertheless be authenticated, delivered and issued and, upon such authentication, delivery and issue, shall be as binding upon the City as though the individual who signed the same had continued to be such officer of the City. Also, any Bond may be signed on behalf of the City by any individual who on the actual date of the execution of such Bond shall be the proper officer although on the nominal date of such Bond such individual shall not have been such officer. Only such of the Bonds as shall bear thereon a certificate of authentication in substantially the form set forth in Exhibit "A", manUally executed by the Agent, shall be valid or obligatory for any purpose or entitled to the benefits of this Resolution, and such certificate of the Agent shall be conclusive evidence that the Bonds so authenticated have been duly authenticated and delivered hereunder and are entitled to the benefits of this Resolution. The Agent's certificate of authentication on any Bonds sh~ll be deemed to be executed by it if signed by an authorized officer or signatory of the Agent, but it shall not be necessary that the same officer or signatory sign the certificate of authentication on all of the Bonds issued hereunder. Section 2.10. TRANSFER AND EXCHANGE OF BONDS. Any Bond may, in accordance with its terms, be transferred upon the Bond Registration Books by the person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Bond for cancellation, accompanied by delivery of a written instrument of transfer in a form approved by the Agent, duly executed. Whenever any Bond shall be surrendered for transfer, the Agent shall thereupon authenticate and deliver to the transferee a new Bond or Bonds of like tenor, maturity and aggregate principal amount. Bonds may be exchanged at the Principal Office of the Agent, for Bonds of the same tenor and maturity and of other authorized denominations. No Bonds the notice of redemption of which has been given pursuant to Section 2.14 shall be subject to transfer or exchange pursuant to this Section. Neither the City nor the Agent shall be required to make such exchange or registration or transfer of Bonds during the fifteen (15) days immediately preceding any Interest Payment Date. Section 2.11. TEMPORARY BONDS. The Bonds may be issued initially in temporary form exchangeable for definitive Bonds when ready for delivery. The temporary Bonds may be printed, lithographed or typewritten, shall be of such denominations as may be determined by the Council and may contain such reference to any of the provisions of this Resolution as may be appropriate. Every temporary Bond shall be executed by the officers designated and in the manner provided in Section 2.09 hereof and be registered and authenticated by the Agent upon the same conditions and in substantially the same manner as the definitive Bonds. If the Council issues temporary Bonds, it will execute and furnish definitive Bonds without delay, and thereupon the temporary Bonds may be surrendered, for cancellation, in exchange therefor at the Principal Office of the Agent, and the Agent shall authenticate and deliver in exchange for such temporary Bonds an equal aggregate principal amount of definitive Bonds of authorized denominaiions. Until so exchanged, the temporary Bonds shall be entitled to the same benefits under this Resolution as definitive Bonds authenticated and delivered hereunder. Section 2.12. BOND REGISTRATION BOOKS. The Agent will keep or cause to be kept at its Principal Office sufficient Bond Registration Books for the registration and transfer of the Bonds, which shall at all times during regular business hours be open to inspection by the City; and, upon presentation for such purpose, the Agent shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on said books, Bonds as hereinbefore provided. Section 2.13. BONDS MUTILATED, LOST, DESTROYED OR STOLEN. If any Bond shall become mutilated, the Agent shall thereupon authenticate and deliver, a new Bond of like maturity and principal amount in exchange and substitution for the Bond so mutilated, but only upon surrender to the Agent of the Bond so mutilated. Every mutilated Bond so surrendered to the Agent shall 9 be cancelled by it and delivered to, or upon the order of, the City. If any Bond issued hereunder shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitte~ to the City and the Agent and, if such evidence be satisfactory to them and indemnity satisfactory to them shall be given, the Agent shall thereupon authenticate and deliver, a new Bond of like maturity and principal amount in lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bond shall have matured or shall have been called for redempticn, instead of issuing a substitute Bond the Agent may pay the same without surrender thereof upon receipt of indemnity satisfactory to the Agent). The City may require payment of a reasonable fee for each new Bond issued under this Section and of the expenses which may be incurred by the City and the Agent. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original contractual obligation on the part of the City whether or not the Bond 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 Bonds secured by this Resolution. Section 2.14. REDEMPTION PRIOR TO MATURITY. Each Bond, or any portion thereof in the amount of the Bond Denomination or any integral multiple thereof, outstanding may be redeemed and paid in advance of maturity upon any Interest Payment Date in any year by giving 30-day's notice by registered or certified mail or personal service to the Registered Owner as required by applicable provisions of the Bond Law and by paying the principal amount thereof 5ogether with the Redemption Premium plus interest to the date of advanced maturity, unless sooner surrendered, in which event said interest will be paid to the date of payment, all in the manner and as provided in the Bond Law. The Treasurer shall cause to be called for redemption and retire Bonds upon prepayment of assessments in amounts sufficient therefor, or whenever sufficient surplus funds are available therefor in the Redemption Fund. The provisions of Part 11.1 of the Bond Law are applicable to the advance payment of assessments and to the calling of the Bonds. Seciion 2.15. REFUNDING OF BONDS. The Bonds may be refunded by the City pursuant to Divisions 11 or 11.5 of the Streets and Highways Code of California upon the conditions as set forth in appropriate proceedings therefor, all as determined by the Council. ARTICLE III SALE AND DELIVERY OF BONDS 10 Section 3.01. SALE OF BONDS. The Bonds shall be sold by negotiation to Stone & Youngberg, as Original Purchaser. Section 3.02. FURTHER AUTHORITY. The officers of the City are hereby authorized and directed to negotiate the terms and conditions of such sale within parameters to be hereafter established by this Council and to execute all documents and take such actions as they may deem necessary or advisable in order to carry out and perform the purposes of this Resolution, and the execution or taking of such action shall be conclusive evidence of such necessity or advisability. The City Manager and the Clerk are authorized to complete and to approve changes in any provisions of this Resolution in order to accomplish the delivery of any of the Bonds on schedule; such changes may be accomplished by attachment of a certificate executed by both such officers to this Resolution on file in the office of the Clerk. ARTICLE IV APPLICATION OF PROCEEDS OF BONDS: ESTABLISHMENT OF FUNDS Section 4.01. APPLICATION OF PROCEEDS OF SALE OF BONDS. Upon receipt of the proceeds of sale of the Bonds on the Closing Date, the proceeds thereof shall be forthwith set aside, paid over and deposited by the Treasurer, as set forth in the Bond Purchase Agreement and Certificate of the City and this Article IV. Section 4.02. IMPROVEMENT FUND. There is hereby created a separ~ate fund to be known as the "City of South San Francisco, Willow Gardens, West Park 1 & 2 and West Park 3 Parks and Parkways Assessment Districts, Improvement Fund" (the "Improvement Fund"), which shall be held in trust by the Treasurer. The Treasurer shall disburse moneys in the Improvement Fund for the purpose of paying or reimbursing the costs of acquiring and constructing the Project, including but not limited to all costs incidental to or connected with such acquisition and construction. Any surplus remaining after payment of all said costs and expenses shall be applied as provided in the Act. Section 4.03. RESERVE FUND. There is hereby created a special iund known as the "City of South San Francisco, Willow Gardens, West Park 1 & 2 and West Park 3 Parks and Parkways Assessment Districts, Reserve Fund" (the "Reserve Fund"). The amount of the Reserve Fund shall not exceed the Reserve Requirement. The moneys in the Reserve Fund shall constitute a trust fund for the benefit of the Registered Owners of the Bonds and shall be administered by the Treasurer in accordance with and pursuant to the provisions of Part 16 of the Bond Law; provided 11 that proceeds from redemption or sale of the properties with respect to which payment of delinquent assessments and interest thereon was paid from the Reserve Fund, shall be credited to the Reserve Fund; and provided further that for the purposes of maintaining the Reserve Requirement and providing for any required reduction of the amount of money in the Reserve Fund during the term of the Bonds pursuant to section 8887 of the Bond Law, and applicable provisions of the Tax Code, all proceeds from investment of moneys in the Reserve Fund in excess of the Reserve Requirement shall be credited upon the assessments, except as otherwise provided in Section 5.09 hereof. Section 4.04. REDEMPTION FUND. There is hereby created a special fund known as the "City of South San Francisco, Willow Gardens, West Park 1 & 2 and West Park 3 Parks and Parkways Assessment Districts, Redemption Fund" (the "Redemption Fund"). The Treasurer shall place in the Redemption Fund any amounts of accrued interest upon the Bonds from the Bond Date to the Closing Date and premium (if any) received upon the sale of the Bonds, and all sums received from the collection of unpaid assessments provided in Section 5.01 hereof, and of the interest and penalties thereon. Section 4.05. COST OF ISSUANCE ACCOUNT. There is hereby created within the Improvement Fund, a special account to be known as the "City of South San Francisco, Willow Gardens, West Park 1 & 2 and West Park 3 Parks and Parkways Assessment Districts, Cost of Issuance Account" (the "Cost of Issuance Account"), which the City hereby covenants and agrees to cause to be maintained and which shall be held in trust by the Treasurer. The moneys in the Cost of Issuance Account shall be used in the manner provided by law solely for the purpose of the payment of Costs of Issuance, on or after the Closing Date. Any funds remaining in the Cost of Issuance Fund on the date that is six months after the Closing Date, shall be transferred to the Improvement Fund. Section 4.06. INVESTMENT OF FUNDS. Moneys in the Improvement Fund, Redemption Fund, and the Reserve Fund shall, whenever practicable, be invested in Authorized Investments, maturing on a date prior to which such moneys are expected to be required. Any income therefrom or interest thereon shall accrue to and be deposited in the fund from which said moneys were invested, subject to the provisions of Section 5.09 hereof. ARTICLE V COVENANTS OF THE CITY: TAX COVENANTS Section 5.01. LEVY AND COLLECTION OF ASSESSMENTS. The City hereby covenants to take all actions legally required by the Act or otherwise to levy annual special assessments against the real property in the Assessment District subject to assessment pursuant 12 to law in at least the amounts required to pay Debt Service on the Bonds in each year during which they are Outstanding and to cause said assessments to be collected annually in the time and manner provided by law. The annual assessments comprising the Assessment, shall be payable in the same manner and at the same time and in the same installments as the general taxes on real property are payable, and become delinquent at the same times and in the same proportionate amounts and bear the same proportionate penalties and interests after delinquency as do the general taxes on real property. All sums received from the collection of said assessments and of the interest and penalties thereon shall be placed in the Redemption Fund. Section 5.02. FORECLOSURE. The City hereby covenants with and for the benefit of the Owners of the Bonds that it will order, and cause to be commenced not later than October 1 in any year, an action in the Superior Court to foreclose the lien of each delinquent assessment if the sum of uncured assessment delinquencies for the preceding Fiscal Year exceeds five percent (5%) of ~he assessment installments posted to the tax roll for that Fiscal Year and if the amount of the Reserve Fund is less than the Reserve Requirement. The City will thereafter diligently prosecute to completion court foreclosure proceedings upon the lien of any and all delinquent unpaid assessments and interest. Section 5.03. NO ADVANCES FROM AVAILABLE SURPLUS FUNDS. The City shall not be obligated to advance available surplus funds of the City to cure any deficiency which may occur in the Redemption Fund; provided, however, that said determination shall not prevent the City, in its sole discretion, from so-advancing funds. Section 5.04. PUNCTUAL PAYMENT; COMPLIANCE WITH DOCUMENTS. The City shall punctually pay or cause to be paid the interest and principal to become due with respect to all of the Bonds in strict conformity with the terms of the Bonds and of this Resolution, and will faithfully observe and perform all of the conditions, covenants and requirements of this Resolution and all Supplemental Resolutions. Section 5.05. NO PRIORITY FOR ADDITIONAL OBLIGATIONS. The City covenants that no additional bonds or other obligations shall be issued or incurred having any priority over the Bonds in payment cf principal or interest out of the Assessment. Nothing in this Resolution shall prohibit or impair the authority of the City to 5ssue bonds or other obligations secured by and payable from Assessments which are on a parity with the Bonds, upon such terms and in such principal amounts as the City may determine. Section 5.06. PRIVATE ACTIVITY BOND LIMITATION. The City shall assure that the proceeds of the Bonds are not so used as to cause the Bonds to satisfy the private business tests of section 141(b) of the Tax Code or the private loan financing test of section l¢l(b) of the Tax Code. 13 Section 5.07. PRIVATE LOAN FINANCING LIMITATION. The City shall assure that the proceeds of the Bonds are not so used as to cause the Bonds to satisfy the private loan financing test of section 241(c) of the Tax Code. SecLion 5.08. 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 any of the Bonds to be "federalLy guaranteed" within the meaning of section 149(b) of the Tax Code. Section 5.09. REBATE REQUIREMENT. The City shall take any and all actions necessary to assure compliance with section 148(f) of the Uax Code, relating to the rebate of excess investment earnings, if any, to the federal government. Secsion 5.10. NO ARBITRAGE. The City shall not take, or permit or suffer to be taken by the Agent or otherwise, any action with respect to the proceeds of the Bonds which, if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken, on the date of issuance of the Bonds would have caused the Bonds to be ~arbitrage bonds" within the meaning of section 148 of the Tax Code. Secsion 5.11. MAINTENANCE OF TAX-EXEMPTION. The City shall take all actions necessary to assure the exclusion of interest on the Bonds from the gross income of the Owners of the Bonds to the same extent as such interest is permitted to be excluded from gross income under the Tax Code as in effect on the date of issuance of the Bonds. Secsion 5.12. FURTHER ASSURANCES. The City will adopt, make, execute and deliver any and all such further resolutions, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Resolution, and for the better assuring and confirming unto the Owners of the Bonds the rights and benefits provided in this Resolution. Secsion 5.13. AMENDMENT. Without the consent of the Owners of the Bonds, the City hereafter may amend this Resolution to add, modify or delete provisions if the same is necessary or desirable to assure compliance with section 148(f) of the Tax Code relating to rebate of Excess Investment Earnings or as otherwise required, to assure the exemption from federal income taxation of interest on the Bonds. 14 ARTICLE VI MISCELLANEOUS Section 6.01. FUNDS AND ACCOUNTS. Any fund or account required by this Resolution to be established by the Treasurer and held and maintained by the Treasurer or the Agent may be established and maintained in the accounting records of the Treasurer or the Agent either as a fund or an account, and may, for the purposes of such records, any audits thereof and any reports or statements with respect thereto, be treated either as a fund or an account; but all such records with respect to all such funds and accounts shall at all times be maintained in accordance with sound accounting practices and with due regard for the protection of the security of the Bonds and the rights of every Owner thereof. Section 6.02. PARTIAL INVALIDITY. If any one or more of the covenants or agreements, or portions thereof, provided in this Resolution to be performed on the part of the City, the Council or the Agenn should be contrary to law, then such covenant or covenants, such agreement or agreements, or such portions thereof, shall be null and void and shall be deemed separable from the remaining covenants and agreements or portions thereof and shall in no way affect the validity of this Resolution or of the Bonds; but the Owner shall retain all the rights and benefits accorded to them under applicable provisions of law. The Council hereby declares that it would have adopted this Resolution and each and every other section, paragraph, subdivision, sentence, clause and phrase hereof, and would have authorized the issuance of the Bonds pursuant hereto, irrespective of the fact that any one or more sections, paragraphs, subdivisions, sentences, clauses or phrases of this Resolution or the application thereof, to any person or circumstances may he held to be unconstitutional, unenforceable or invalid. Section 6.03. DEFEASANCE. The Bonds shall no longer be deemed to be outstanding and unpaid if the City shall have made adequate provision for the payment, in accordance with the Bonds and this Resolution, of the principal, interest and premiums, if any, to become due thereon at maturity or upon call and redemption prior to maturity. Such provision shall be deemed to be adequate if the Council shall, on behalf of the Assessment District, have irrevocably set aside, in a special trust fund or account, cash or Federal Securities which when added to the interest earned or to be earned thereon shall be sufficient to make said payments as they become due and to redeem any Bonds Outstanding on the earliest possible redemption date. Section 6.04. REPEAL OF INCONSISTENT RESOLUTIONS. Any resolution of the Council, and any part of such resolution, inconsistent with this Resolution, is hereby repealed to the extent of such inconsistency. 15 Section 6.05. AUTHORITY OF TREASURER. Ail actions mandated by this Resolution to be performed by the Treasurer may be performed by the designee thereof or such other official of the City or independent contractor, consultant or truee dauly authorized by the City to perform such action or actions in furtherance of al or a specific portion of the requirements hereof. Section 6.06. CERTIFIED COPIES. The Clerk shall furnish a certified copy of this resolution to the Treasurer, to the Agent and to the Auditor of the County of San Mateo. Section 6.07. EFFECTIVE DATE OF THE RESOLUTION. This Resolution shall become effective upon the date of its adoption. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a re§u]ar meeting held on the 23rd day of June , 1993 by the following vote. AYES: Councilmembers Jack Drago, Joseph A. Fernekes, John R. Penna, Robert Yee, and Mayor Roberta Cerri Teqlia NOES: None ABSTAIN: N0ne ABSENT None City Clerk~ Section 1.01. Section 1.02. Section 1.03. Section 1.04. Section 2.01. Section 2.02. Section 2.03. Section 2 04 Section 2 05 Section 2 06 Section 2 07 Section 2 08 Section 2 09 Section 2.20 Section 2.L1 Section 2.L2 Section 2.L3 Section 2.L4 Section 2.25 Section 3.01. Section 3.02. Section 4.01 Section 4.02 Section 4.03 Section 4.04 Section 4.05 Section 4.06 Section 5 01 Section 5 02 Section 5 I]3 Section 5 I)4 Section 5 05 Section 5 L2 Section 5 23 RESOLUTION NO. 79-93 TABLE OF CONTENTS Page ARTICLE GENERAL DETERMINATION TO ISSUE BONDS ................................... 1 RULES OF CONSTRUCTION .......................................... 1 EQUAL SECURITY ................................................. 2 DEFINITIONS .................................................... 2 ARTICLE II ISSUANCE OF BONDS BONDS AUTHORIZED ............................................... 6 UNPAID ASSESSMENTS ............................................. 6 ISSUANCE OF BONDS .............................................. 6 MATURITIES OF BONDS ............................................ 7 INTEREST ON BONDS .............................................. 7 DESIGNATION OF AGENT ........................................... 7 FORM OF BONDS .................................................. 7 PREPARATION AND DELIVERY OF BONDS .............................. 8 EXECUTION OF BONDS ............................................. 8 TRANSFER AND EXCHANGE OF BONDS ................................. 8 TEMPORARY BONDS ................................................ 9 BOND REGISTRATION BOOKS ........................................ 9 BONDS MUTILATED, LOST, DESTROYED OR STOLEN ..................... 9 REDEMPTION PRIOR TO MATURITY ................................... 10 REFUNDING OF BONDS ............................................. 10 ARTICLE III SALE AND DELIVERY OF BONDS SALE OF BONDS .................................................. 10 FURTHER AUTHORITY .............................................. 11 ARTICLE IV APPLICATION OF PROCEEDS OF BONDS APPLICATION OF PROCEEDS OF SALE OF BONDS ....................... 11 IMPROVEMENT FUND ............................................... 11 RESERVE FUND ................................................... 11 REDEMPTION FUND ................................................ 12 COST OF ISSUANCE ACCOUNT ....................................... 12 INVESTMENT OF FUNDS ............................................ 12 ARTICLE V COVENANTS OF THE CITY; TAX COVENANTS LEVY AND COLLECTION OF ASSESSMENTS ............................. 12 FORECLOSURE .................................................... 13 NO ADVANCES FROM AVAILABLE SURPLUS FUNDS ....................... 13 PUNCTUAL PAYMENT ............................................... 13 NO PRIORITY FOR ADDITIONAL OBLIGATIONS ......................... 13 FURTHER ASSURANCES ............................................. 14 AMENDMENT ...................................................... 14 -i- ARTICLE VI MI SCELLANEOUS Section 6.01. Section 6.02. Section 6.03. Section 6.04. Section 6.05. Section 6.06. Section 6.07. FUNDS AND ACCOUNTS ............................................. 14 PARTIAL INVALIDITY ............................................. 15 DEFEASANCE ..................................................... 15 REPEAL OF INCONSISTENT RESOLUTIONS ............................. 15 AUTHORITY OF TREASURER ........................................ 15 CERTIFIED COPIES ............................................... 16 EFFECTIVE DATE OF THE RESOLUTION ............................... 16 EXHIBIT A - Form Of Bond -ii- RESOLUTION NO. 79-93 [FORM OF BOND] Registered Number A- United States of America State of California County of San Mateo Registered $ Limited Obligation Improvement Bond City of South San Francisco Willow Gardens, West Park 1 & 2 and West Park 3 Parks and Parkways Assessment Districts Interest Rate Maturity Date REGISTERED OWNER: PRINCIPAL AMOUNT:DOLLARS Bond Date CUSIP , 1993 Under and by virtue of the Improvement Bond Act of 1915, Division 10 (commencing with Section 8500) of the Streets and Highways Code of California (the "Act"), the City of South San Francisco (the "City"), County of San Mateo, State of California, will, oun of the redemption fund for the payment of the bonds issued to represent special assessments made for the acquisition, work and improvements more fully described in Resolution No. __, A Resolution Authorizing Issuance of Bonds for the Willow Gardens, West Park 1 & 2 and West Park 3 Parks and Parkways Assessment Districts (the "Resolution of Issuance") adopted by the City Council of the City on , 1993, pay to the registered owner named above or registered assigns, on the maturity date stated above, the principal amount stated above, in lawful money of the United States of America and in like manner will pay interest from the interest payment date next preceding the date on which this bond is authenticated, unless this bond is authenticated and registered as of an interest payment date, in which event it shall bear interest from such interest payment date, or unless this bond is authenticated and registered prior to March 2, 1994, in which event it shall bear interest from its date until payment of the principal amount shall have been discharged, at the rate per annum stated above, payable semiannually on March 2 and September 2 in each year commencing on March 2, 1994. Both the principal hereof and redenption premium hereon are payable at the Corporate Trust Exhibit A-1 Department of Bank of America National Trust and Savings Association, as Authentication Agent, Transfer Agent, Registrar and Payin~ Agent (the "Agent"), in Los Angeles, California and the interest i~ereon is payable by check mailed to the registered owner hereof at the owner's address as it appears on the records of the Agent, or at such address as may have been filed with the Agent, for that purpose, as of the 15th day immediately preceding each interest payment date. This bond will continue to bear interest after maturity at the rate above stated; provided, it is presented at maturity and payment thereof is refused upon the sole ground that there are not sufficient moneys in said redemption fund with which to pay same. If it is not presented at maturity, interest thereon will run until maturity. This bond shall not be entitled to any benefit under the Act or the Resolution of Issuance, or become valid or obligatory for any purpose, until the certificate of authentication and registration hereon endorsed shall have been dated and signed by the Agent. IN WITNESS WHEREOF, said City of South San Francisco has caused this bond to be signed by manual or facsimile signature by the Treasurer of the City and by the manual or facsimile signature of its City Clerk, and has caused its Corporate seal to be reproduced in facsimile hereon all as of the day of , 1993. CITY OF SOUTH SAN FRANCISCO Treasurer City Clerk [SEAL] Exhibit A-2 CERTIFICATE OF AUTHENTICATION AND REGISTRATION This is one of the bonds described in the within mentioned Resolution of Issuance, which has been authenticated and registered on , Agent By Authorized Officer Exhibit A-3 This bond is one of several annual series of bonds of like date, tenor, and effect, but differing in amounts, maturities and interest rates, issued by the City of South San Francisco under the Act and the Resolution of Issuance, for the purpose of providing means for paying for the improvements described in the Resolution of Issuance, and is secured by the moneys in said redemption fund and by the special assessments made for the payment of said improvements, and, including principal and interest, is payable exclusively out of said fund. This bond is transferable by the registered owner hereof, in person or by the owner's attorney duly authorized in writing, at the office of the Agent, subject to the terms and conditions provided in the Resolution of Issuance, including the payment of certain charges, if any, upon surrender and cancellation of this bond. Upon such transfer, a new registered bond or bonds, of any authorized denomination or denominations, of the same maturity, and for t'~e same aggregate principal amount, will be issued to the transferee in exchange therefor. Bonds shall be registered only in the name of an individual (including joint owners), a corporation, a partnership, or a trust. Neither the City nor the Agent shall be required to make such exchange or registration of transfer of bonds during the 15 days immediately preceding any interest payment date. The City and the Agent may treat the registered owner hereof as the absolute owner for all purposes, and the City and the Agent shall not be affected by any notice to the contrary. This bond or any portion of it in the amount of five thousand dollars ($5,000), or any integral multiple thereof, may be redeemed and paid in advance of maturity upon the second day of March or September in any year by giving at least 30 days' notice by registered or certified mail or by personal service to the registered owner hereof at the registered owner's address as it appears on the registration books of the Agent and by paying principal and accrued interest together with a Redemption Premium as defined in the Resolution of Intention. This bond is a limited obligation improvement bond because, under the Resolution of Issuance, the City is not obligated to advance funds from the City treasury to cover any deficiency which may occur in the Redemption Fund for the Bonds; however, the City is not prevented, in its sole discretion, from so advancing funds. Exhibit A-4 I hereby certify that the following is a correct copy of the signed legal opinion of Jones Hall Hill & White, A Professional Law Corporation, San Francisco, California, addressed to the City of South San Francisco and on file in my office, dated the date of delivery of and payment for the bond therein described. City Clerk City of South San Francisco OPINION: $ Limited Obligation Improvement Bonds, City of South San Francisco, Willow Gardens, West Park 1 & 2 and West Park 3 Parks and Parkways Assessment Districts We kave acted as Bond Counsel in connection with the issuance by the City of South San Francisco (the "City") of $ Limited Cbligation Improvement Bonds, City of South San Francisco, Willow Gardens, West Park 1 & 2 and West Park 3 Parks and Parkways Assessment Districts, dated , 1993 (the "Bonds"), pursuant to Division 10 of the Streets and Highways Code of California (the "Act") and Resolution No. (the "Resolution") of the City adopted , 1993. We have examined the law and such certified proceedings and other papers as we deem necessary to render this opinion. As to questions of fact material to our opinion, we have relied upon representations of the City contained in the Resolution and in the certified proceedings and other certifications of public officials furnished to us, without undertaking to verify such facts by independent investigation. Based upon our examination, we are of the opinion, under existing law, that: 1. The City is a municipal corporation and general law city of the State of California duly organized and validly existing under and by virtue of the Constitution and the laws of the State of California with power to adopt the Resolution, perform the agreements on its part contained therein, and issue the Bonds. 2. The Resolution has been duly adopted by the City and constitutes a valid and binding obligation of the City enforceable upon the City. 3. Pursuant to the Act, the Resolution creates a valid lien on the funds pledged by the Resolution for the security of the Bonds on a parity with other bonds (if any) issued or to be issued under the Resolution, subject to no prior lien granted under the Act. Exhibit A-5 4. The Bonds have been duly authorized, executed and delivered by the City and are valid and binding special obligations of the City, payable solely from the sources provided therefor 5n the Resolution. 5. The interest on the Bonds is excluded from gross income for federal income tax purposes and is not an item of tax preference for purposes of the federal alternative minimum tax imposed on individuals and corporations; it should be noted, however, that, for the purpose of computing the alternative minimum tax imposed on such corporations (as defined for federal income tax purposes), such interest is taken into account in determining certain income. The opinions set forth in the preceding sentence are subject to the condition that the City comply with all requirements of the Internal Revenue Code of 1986 that must be satisfied subsequent to the issuance of the Bonds in order that interest thereon be, or continue to be, excluded from gross income for federal income tax purposes. The City has covenanted to comply with each such requirement. Failure to comply with certain of such requirements may cause the inclusion of interest on the Bonds in gross income for federal income tax purposes to be retroactive to the date of issuance of the Bonds. We express no opinion regarding other federal tax consequences arising with respect to the Bonds. 6. The interest on the Bonds is exempt from personal income taxation imposed by the State of California. The rights of the owners of the Bonds and the enforceability of the Bonds and the Resolution may be subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affectin? creditors' rights heretofore or hereafter enacted and may also be subject to the exercise of judicial discretion in appropriate cases. Respectfully submitted, A Professional Law Corporation Exhibit A- 6 ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this Note, shall be construed as though they were written o~t in full according to applicable laws or regulations: TEN COM -- as tenants in UNIF GIFT MIN ACT common Custodian TEN EN? -- as tenants by the entireties JT TEN -- as joint tenants with right of survivorship and not as tenants in common (Cust) (Minor) under Uniform Gifts to Minors Act (State) ADDITIONAL ABBREVIATIONS MAY ALSO BE USED THOUGH NOT IN THE LIST ABOVE Exhibit A-7 (FORM OF ASSIGNMENT) For value received, the undersigned do(es) hereby sell, assign and transfer unto (Name, Address and Tax Identification or Social Security Number of Assignee) the within Bond and do(es) hereby irrevocably constitute and appoint , attorney, to transfer the same on the registration books of the Trustee, with full power of substitution in the premises. Dated: Signature Guaranteed: Note: Signature(s) must be guaranteed Note: The signature(s) on this by an eligible guarantor. Assignment must correspond with the name(s) as written on the face of the within Bond in every particular, without alteration or enlargement or any change whatsoever. Exhibit A-8