HomeMy WebLinkAboutRES NO 196-93RESOLUTION NO. 196-93
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF BAKERSFIELD
PROV~D~N~ FOR THE ISSUANCE OF THE CITY OF BAKEREFIELD
SE~'ER REVENUE REFUNDZNG BONUSv 8ERZES 1993v
~N THE AGGREGATE PRINCIPAL ~OUNT
NOT TO EXCEED $21,265v000~ ~ND AW~%RDING B~,LE THEREOF
RESOLVED BY THE CITY COUNCIL (the "Council") OF THE CITY
OF BAKERSFIELD (the "City") as follows:
WHEREAS, the City is a charter city
existing under the laws of the State of California
and
organized and
(the "State");
WHEREAS, the City now owns and operates a municipal sewer
system (the "Enterprise"); and
WHEREAS, the City of Bakersfield Public Facilities
Corporation issued its 1985 Leasehold Mortgage Revenue Bonds,
pursuant to Indenture of Mortgage and Deed of Trust dated
January 1, 1985, in the principal amount of $14,665,000 (the "1985
Bonds"); and
WHEREAS, pursuant to a Trust Agreement dated April 1,
1988, adopted by the Council on April 1, 1988, the City authorized
its city of Bakersfield 1988 Certificates of Participation
(Wastewater Treatment Plant 3 Project) to refund the 1985 Bonds and
provide additional funds to finance the construction of additional
facilities (the "1988 Certificates"); and
WHEREAS, the Council has determined that it is in the
public interest to issue refunding bonds for the purpose of
providing the funds to prepay the outstanding 1988 Certificates;
and
WHEREAS, Articles 10 and 11 of Chapter 3 of Division 2 of
Title 5 of the Government Code of the State (the "Refunding Law")
authorizes the City to issue such refunding bonds upon resolution.
NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED AND
ORDERED AS FOLLOWS:
(1063.6)
ORIGINAL
~%RTICLE ~
AUTHORIZATION OF BONDS; DEFINITIONS
Section 1.01. Authorization. The City has reviewed all
proceedings heretofore taken and has found, as a result of such
review, and hereby finds and determines, that all things,
conditions and acts required by law to exist, happen or be
performed precedent to and in connection with the issuance of the
Bonds (as hereinafter defined) do exist, have happened and have
been performed in due time, form and manner as required by law, and
the City is now duly empowered, pursuant to each and every
requirement of law, to issue the Bonds in the manner and form
provided in this Resolution.
Section 1.02. Definitions. Unless the context otherwise
requires, the terms defined in this Section 1.02 shall, for all
purposes of this Resolution, of any resolution supplemental hereto,
and of any certificate, opinion or other document herein mentioned,
have the meanings herein specified:
"A~re~ate Annual Debt Service" means, for any Bond Year,
the sum of the amounts of Annual Debt Service for such Bond Year
for all Bonds and Parity Obligations then Outstanding.
"Annual Debt Service" means, for each Bond Year, the sum
of (1) the interest payable on the Outstanding Bonds in such Bond
Year, assuming that the Outstanding Bonds are retired as scheduled,
and (2) the principal amount of the Outstanding Bonds payable by
their terms in such Bond Year.
"Authority" means the Bakersfield Public Financing
Authority, a public body, corporate and politic, established under
the Marks-Roos Local Bond Pooling Act of 1985. The Authority shall
be the original purchaser of the Bonds, using proceeds from its
sale of the Pool Bonds for such purchase. The Bonds may be
registered in the name of and delivered to a trustee for the Pool
Bonds, on behalf of the Authority.
"Bond Registration Books" means the records maintained by
the City, or authorized financial institution appointed hereunder,
pursuant to Section 2.07 hereof for the registration and transfer
of ownership of the Bonds.
"Bond Year" means any twelve-month period extending from
September 15 in one calendar year to and including September 14 of
the succeeding calendar year, except the first Bond Year, which
shall commence on the Closing Date, and conclude September 14,
1994.
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ORIGINAL
"Bonds" means the City of
Refunding Bonds, Series 1993, issued
amount not to exceed $21,265,000.
Bakersfield Sewer Revenue
in the aggregate principal
"city" means the City of Bakersfield, California.
"City Manager" means the City Manager or Assistant City
Manager of the City or any other duly authorized representative of
the City appointed by the City to perform the functions of the City
Manager.
"City Clerk" means the City Clerk or Deputy City Clerk of
the City or any other duly authorized representative of the City
appointed by the City to perform the functions of the City Clerk.
"Closin~ Date" means the date on which the Bonds are
delivered to the Authority and the proceeds for such purchase are
delivered to the City, which is March 23, 1994.
"Costs of Issuance" means all items of expense directly
or indirectly payable to the City to cover the costs of issuance,
sale and delivery of the Bonds, including but not limited to
printing expenses, filing and recording fees, fees, charges and
disbursements of attorneys, financial advisors, consultants, and
other professionals, fees and charges for preparation, execution
and safekeeping of the Bonds and any other costs, charges or fees
incurred in connection with the original issuance of the Bonds.
"Council" means the City Council of the City of
Bakersfield.
"Debt Service Fund" means the fund by that name
established and held by the City pursuant to Section 3.04.
"Kern County Auditor-Controller,, means the person who
holds the office designated Kern County Auditor-Controller from
time to time, or one of the duly appointed deputies of such person,
or any person or persons performing substantially the same duties
in the event said office is ever abolished or changed.
"Enterprise" means the municipal sewer system, owned and
operated by the City.
"Event of Default" means any of the events described in
Section 7.01.
"Finance Director" means the Finance Director of the City
or the person duly appointed by the City to perform those duties.
"Fiscal Year" means any twelve-month period extending
from July 1 in one calendar year to June 30 of the succeeding
calendar year, both dates inclusive, or any other twelve-month
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ORIGINAL
period hereafter selected and designated by the City as its
official fiscal year period.
"Government Obligations" shall mean and include any of
the following securities: State and Local Government Series issued
by the United States Treasury (SLGS); United States Treasury bills,
notes and bonds; and certificates, receipts or other obligations
evidencing direct ownership of, or the right to receive, a
specified portion of one or more interest payments or principal
payments, or any combination thereof, to be made on any United
States Treasury bill, note or bond ("STRIPS").
"Independent certified Public Accountant" means any
accountant or firm of such accountants duly licensed or registered
or entitled to practice and practicing as such under the laws of
the State of California, appointed by the City, and who, or each of
whom:
(a) is in fact independent and not under domination of
the City;
(b) does not have any substantial interest, direct or
indirect, with the City; and
(c) is not connected with the City as an
employee of the City, but who may be regularly
make reports to the City.
officer or
retained to
"Independent Financial Consultant" means any financial
consultant or firm of such consultants appointed by the City, and
who, or each of whom:
(a) is in fact independent and not under domination of
the City;
(b) does not have any substantial interest, direct or
indirect, with the City, other than as a potential original
purchaser of the Bonds or of any Parity Obligations; and
(c) is not connected with the City as an officer or
employee of the City, but who may be regularly retained to
make reports to the City.
"Interest Account" means the account by that name
established and held in the Special Fund pursuant to
Section 3.05(a).
"Interest Payment Date" means each March 15 and
September 15, commencing September 15, 1994, and continuing each
year thereafter so long as any of the Bonds remain Outstanding
hereunder.
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ORIGINAL
"Maximum Annual Debt Service" means, as of the date of
any calculation, the largest Annual Debt Service during the current
Bond Year or any Bond Year thereafter through the final Principal
Payment Date.
"Mayor" means the Mayor of the City or any other duly
authorized representative of the City designated by resolution or
by law to perform the functions of the Mayor in the event of the
Mayor's absence or disqualification.
"Net Revenues" mean, for any Fiscal Year, the Revenues
for such Fiscal Year less all sums expended therefrom for the
annual management, operation, maintenance and repair costs of the
Enterprise, including all incidental costs, fees and expenses
properly chargeable thereto.
"1985 Bonds" mean the City of Bakersfield Public
Facilities Corporation 1985 Leasehold Mortgage Revenue Bonds dated
January 1, 1985.
"1988 Certificates" mean the City of Bakersfield 1988
Certificates of Participation (Wastewater Treatment Plant 3
Project).
"Outstandinq," when used as of any particular time with
reference to Bonds, means (subject to the provisions of
Section 6.03) all Bonds except:
(a) Bonds theretofore canceled by the City (or the duly
authorized agent of the City) or surrendered to the City (or
the duly authorized agent of the City) for cancellation;
(b) Bonds paid or deemed to have been paid within the
meaning of Section 8.03; and,
(c) Bonds in lieu of or in substitution for which other
Bonds shall have been authorized, executed, issued and
delivered by the City pursuant to this Resolution or any
Supplemental Resolution.
"Owner" or "Bond Owner" means any person who shall be the
person in whose name any Outstanding Bond shall be registered.
"Parity Obliqations" mean any loans, advances or
indebtedness issued or incurred by the City pursuant to
Section 2.11.
"Pavin~ A~ent" means the Authority or the financial
institution appointed by the City to make the payment of principal
and interest on the Outstanding Bonds. The City may act as its own
Paying Agent.
-5-
"Pool Bond Revenues" means, for any single Bond Year, the
aggregate amount of principal payments for and interest payments on
the Bonds made by the City to the Authority or its trustee, plus
all investment earnings on any monies held by the Authority or its
trustee for the benefit of the Pool Bonds (excluding those monies
held by the Authority or its trustee which are to be rebated to the
United States government pursuant to the Tax Code).
"Pool Bonds" means the Authority's Revenue Bonds, Series
1994A, issued in the aggregate principal amount of $35,660,000.
"Principal Account" means the account by that name
established and held by the City, or its agent appointed hereunder
by the City, pursuant to Section 3.05(b).
"Principal Payment Date" means September 15 in each year
in which any of the Bonds mature; and with respect to any Bond
means the stated maturity date.
"Prior Bonds" means the 1988 Certificates.
"Project Fund" means the fund by that name established
and held by the City pursuant to Section 4.02.
"Record Date" means the first (lst) day of the calendar
month in which an Interest Payment Date occurs, whether or not such
first day is a business day.
"Refundin~ Law" means Articles 10 and 11 of Chapter 3 of
Division 2 of Title 5 (Section 53570 et seq.) of the Government
Code of the State.
"Report" means a document in writing signed by an
Independent Financial Consultant and including:
(a) a statement that the person or firm making or giving
such Report has read the pertinent provisions of this
Resolution to which such Report relates;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the Report is based;
and
(c) a statement that, in the opinion of such person or
firm, sufficient examination or investigation was made as is
necessary to enable said consultant to express an informed
opinion with respect to the subject matter referred to in the
Report.
"Resolution" means this resolution adopted by the Council
on the date set forth herein, under and pursuant to the Refunding
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Law, and as it may from time to time be amended or supplemented
pursuant to the provisions hereof.
"Revenues" mean all charges received for, and all other
income and receipts derived from the operation of the Enterprise,
or arising from the Enterprise, including revenues deposited in any
accounts to secure or to provide for the payment of the Bonds, and
interest received on any invested monies of the Enterprise.
Excluded from this definition are proceeds of any charges required
by State or federal regulations to be levied and collected from
users and held, distributed or used for a special designated or
limited purpose.
"State" means the State of California.
"Supplemental Resolution" means any resolution, agreement
or other instrument then in full force and effect which has been
duly adopted or entered into by the City; but only if and to the
extent that such Supplemental Resolution is specifically authorized
hereunder.
"Tax Code" means the Internal Revenue Code of 1986, as
amended, or any successor statutes. Any reference to a provision
of the Tax Code shall be deemed to include the applicable
regulations of the United States Department of the Treasury
promulgated with respect to such provision.
"Wastewater Treatment Fund" means the fund by that name
established by the City to receive Revenues.
"Written Rec~/est of the City" or "Written Certificate of
the City" means a request or certificate in writing signed by the
Mayor, Vice Mayor, Finance Director or City Manager of the City or
by any other officer of the City duly authorized by the City for
that purpose.
Section 1.03. Rules of Construction. All references
herein 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.
Section 1.04. Equal Security. In consideration of the
acceptance of the Bonds by those who shall hold the same from time
to time, 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
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ORIGINAL
the number or date thereof or the time of sale, execution and
delivery thereof, or otherwise for any cause whatsoever, except as
expressly provided therein or herein.
ARTICLE
THE BONDS
Section 2.01. Authorization and DesiGnation. Bonds in
the aggregate principal amount not to exceed twenty-one million two
hundred sixty-five thousand dollars ($21,265,000.00) are hereby
authorized to be issued by the City under and subject to the terms
of this Resolution and the Constitution and laws of the State. The
Bonds shall be designated the "City of Bakersfield Sewer Revenue
Refunding Bonds, Series 1993."
Section 2.02. Terms of Bonds. The Bonds shall be issued
in fully registered formwithout coupons in denominations of $5,000
or any integral multiple thereof. One Bond in the aggregate amount
of $21,265,000 (or the aggregate par amount of the bonds) may also
be issued. The Bonds shall be substantially in the form set forth
in Exhibit A attached hereto.
The Bonds shall mature and become payable on the
Principal Payment Dates in each of the years and in the amounts as
set forth in Exhibit B attached hereto and incorporated by
reference.
The Bonds shall be dated March 2, 1994 and shall bear
interest from said date at the rates shown on Exhibit B. Interest
shall be paid on each Interest Payment Date to the Owner in whose
name the ownership of the Bonds is registered on the Bond
Registration Books at the close of business on the immediately
preceding Record Date. Interest shall be paid by check of the City
or designated agent mailed by first class mail, postage prepaid, on
each Interest Payment Date to the Bond Owners at their respective
addresses shown on the Bond Registration Books as of the close of
business on the preceding Record Date; or by wire transfer made on
such Interest Payment Date to any Owner of $1,000,000 or more in
aggregate principal amount of Bonds who shall have requested such
transfer pursuant to written notice filed with the City or
designated agent, received not later than the preceding Record
Date.
Section 2.03. Redemption.
(a) Optional Redemption. The Bonds shall be subject to
redemption in whole on any date on or after September 15,
2001, or in part on any date on or after September 15, 2001,
in inverse order of maturity and by lot within a maturity, at
the option of the City from any available source of funds, at
(1063.6)
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ORIGINAL
a redemption price equal to one hundred percent (100%) of the
principal amount to be redeemed together with the following
redemption premiums (computed upon the principal amount of the
Bonds to be redeemed), plus accrued interest to the redemption
date:
Redemption Date
(both dates inclusive)
Redemption Premium
September 15, 2001, through September 14, 2002
September 15, 2002, through September 14, 2003
September 15, 2003, and thereafter
2%
1%
0%
(1063.6)
The Bonds are also subject to redemption in whole on any
date or in part on any date in inverse order of maturity and
by lot within a maturity, at the option of the City, without
premium, from the net proceeds of insurance or eminent domain
available therefor if the City does not apply such net
proceeds toward the acquisition or construction of additions,
betterments, extensions or improvements to the Enterprise as
provided in this Resolution at the principal amount thereof
and accrued interest thereon to the date fixed for redemption.
(b) Notice of Redemption. The City shall mail (by first
class mail) notice of any redemption to the respective owners
of any Bonds designated for redemption, at least thirty (30)
but not more than sixty (60) days prior to the redemption
date, at their addresses appearing on the Bond Registration
Books; but such mailing shall not be a condition precedent to
such redemption and neither failure to mail or to receive any
such notice nor any defect therein shall affect the validity
of the proceedings for the redemption of such Bonds. Such
notice shall state the redemption date and the redemption
price (including the amount of premium, if any) and, if less
than all of the then Outstanding Bonds are to be called for
redemption, shall designate the numbers of the Bonds to be
redeemed by giving the individual number of each Bond or by
stating that all Bonds between two stated numbers, both
inclusive, or by stating that all of the Bonds of one or more
Principal Payment Dates have been called for redemption, and
shall require that such Bonds be surrendered at the office of
the Finance Director (or at the designated office of the
Paying Agent) for redemption at the said redemption price
(including the amount of premium, if any), giving notice also
that further interest on such Bonds will not accrue from and
after the redemption date.
(c) Partial Redemption of Bonds. In the event only a
portion of any Bond is called for redemption, then upon
surrender of such Bond redeemed in part only, the City shall
execute and shall deliver to the Owner thereof, at the expense
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ORIGINAL
of the City, a new Bond or Bonds, of the same series and
Principal Payment Date, of authorized denominations in
aggregate principal amount equal to the unredeemed portion of
the Bond or Bonds to be redeemed.
(d) Effect of Redemption. From and after the date fixed
for redemption, if funds available for the payment of the
principal of and interest (and premium, if any) on the Bonds
so called for redemption shall have been duly provided, such
Bonds so called shall cease to be entitled to any benefit
under this Resolution other than the right to receive payment
of the redemption price, and no interest shall accrue thereon
from and after the redemption date specified in such notice.
(e) Manner of Redemption. Whenever any Bonds are to be
selected for redemption, the City shall determine by lot, the
Bonds or portions thereof to be redeemed. All Bonds redeemed
pursuant to this Section shall be canceled upon surrender to
the City.
Section 2.04. Execution of Bonds. The Bonds shall be
executed on behalf of the City by the Mayor and City Clerk, who
hold such offices on the date of execution and delivery of this
Resolution or at any time thereafter. The seal of the City shall
be impressed or imprinted upon the Bonds. Either or both of the
signatures and seal may be affixed by facsimile thereof, provided
such facsimiles are accompanied by a certificate of authentication
as provided below. If any officer whose signature appears on any
Bond ceases to be such officer before delivery of the Bonds to the
Authority, such signature shall nevertheless be as effective as if
the officer had remained in office until the delivery of the Bonds
to the Authority. Any Bond may be signed and attested on behalf of
the City by such persons who as of the actual date of the execution
of such Bond shall be the proper officers of the City, but who on
the date of such Bond may no longer be such officer of the City.
Should a Bond or Bonds bear the facsimile signature of
either officer of the City or a facsimile seal of the City, then
such Bonds shall bear thereon a certificate of authentication in
the form set forth in Exhibit A, executed and dated by the City or
the Paying Agent. Bonds bearing facsimile signatures and/or seal
must bear a certificate of authentication to be valid or obligatory
for any purpose or entitled to the benefits of this Resolution, and
such executed certificate of authentication shall be conclusive
evidence that such Bonds have been duly authenticated and delivered
hereunder and are entitled to the benefits of this Resolution.
Bonds bearing the original signatures of the Mayor and
City Clerk and an original impression or imprint of the seal need
not be authenticated.
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ORIGINAL
Section 2.05. Transfer of Bonds. Any Bond may, in
accordance with its terms, be transferred, upon the Bond
Registration Books, by the Owner in whose name it is registered, in
person or by a duly authorized agent of such person, upon surrender
of such Bond to the City at the office of the Finance Director for
cancellation, accompanied by delivery of a written instrument of
transfer in a form approved by the Finance Director, duly executed.
Whenever any Bond or Bonds shall be surrendered for registration of
transfer, the City shall execute and the Finance Director deliver
a new Bond or Bonds, for like Principal Payment Date and like
aggregate principal amount.
Anything in this Resolution to the contrary
notwithstanding, the City may refuse to transfer any Bonds under
the provisions of this Section 2.05 during the period fifteen (15)
days prior to the date established by the City for the selection of
Bonds for redemption, or as to Bonds the notice of redemption of
which has been mailed pursuant to the provisions of
Section 2.03(b).
Section 2.06. Exchange of Bonds. Bonds may be exchanged
at the office of the Finance Director for a like aggregate
principal amount of Bonds of other authorized denominations of the
same Principal Payment Date. The City may charge a sum not
exceeding its reasonable costs for each new Bond issued upon any
exchange (except in the case of any exchange of temporary bonds for
definitive Bonds) and the City shall require the payment by the
Bond Owner requesting such exchange of any tax or other
governmental charge required to be paid with respect to such
exchange.
Anything in this Resolution to the contrary
notwithstanding, the City may refuse to transfer or exchange any
Bonds under the provisions of this Section 2.06 from the period
fifteen (15) days prior to the date established by the City for the
selection of Bonds or as to which notice of redemption has been
mailed pursuant to the provisions of Section 2.03(b).
Section 2.07. Bond Registration Books. The Finance
Director will keep or cause to be kept, at the office of the
Finance Director or such other appointed agent pursuant to this
Resolution, sufficient records for the registration and
registration of transfer of Bonds, which shall at all times during
normal business hours be open to inspection by the City; and, upon
presentation for such purpose, the City shall, under such
reasonable regulations as it may prescribe, register or transfer or
cause to be registered or transferred, on said records, Bonds as
hereinbefore provided.
Section 2.08. Temporary Bonds. The Bonds may be
initially issued in temporary form exchangeable for definitive
Bonds when ready for delivery. The temporary Bonds may be printed,
- 1 1 -
ORIGINAL
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 Bond shall be executed by the City upon the same
conditions and in substantially the same manner as the definitive
Bonds. If the City issues temporary Bonds, it will execute and
furnish definitive Bonds without delay, and thereupon the temporary
Bonds shall be surrendered, for cancellation, in exchange therefor
at the office of the Finance Director, and the City shall deliver
in exchange for such temporary Bonds an equal aggregate principal
amount of definitive Bonds of authorized denominations. Until so
exchanged, the temporary Bonds shall be entitled to the same
benefits pursuant to this Resolution as definitive Bonds
authenticated and delivered hereunder.
Section 2.09. Bonds Mutilated, Lost, Destroyed or
Stolen. If any Bond shall become mutilated the City, at the
expense of the Owner of said Bond, shall execute, and the City
shall thereupon deliver, a new Bond of like tenor and n,~mher in
exchange and substitution for the Bond so mutilated, but only upon
surrender to the City of the Bond so mutilated. Every mutilated
Bond so surrendered to the City shall be canceled by it and
delivered to, or upon the order of, the City. If any Bond 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 Finance Director and indemnity satisfactory to
the Finance Director shall be given, the City, at the expense of
the owner, shall execute, and the Finance Director shall thereupon
deliver, a new Bond of like tenor and amount in lieu of and in
substitution for the Bond so lost, destroyed or stolen. The City
may require payment of a sum not exceeding the actual cost of
preparing each new Bond issued under this Section and of the
expenses which may be incurred by the City. 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 additional
contractual obligation on the part of the City whether or not the
Bond 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 Bonds
issued pursuant to this Resolution.
Section 2.10. Sale of Bonds. The Finance Director is
hereby authorized to negotiate the sale of the Bonds with the
Authority and shall enter into a purchase contract for the Bonds
upon advice of counsel that such contract is consistent with the
terms of the Bonds, the Resolution and the Refunding Law. The
purchase contract may provide for an original issue discount of not
to exceed three percent of the par amount of the Bonds.
Section 2.11. Issuance of Parity Obligations. In
addition to the Bonds, the City may, by Supplemental Resolution,
issue or incur other loans, advances or indebtedness payable from
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ORtGI~'~AL
Revenues on a parity with the Bonds in such principal amount as
shall be determined by the City. The City may issue and deliver
any such Parity Obligations subject to the following specific
conditions which are hereby made conditions precedent to the
issuance and delivery of such Parity Obligations issued under this
Section:
(a) The city shall be in compliance with all covenants
set forth in this Resolution, and a Written Certificate of the
City to that effect shall be presented at or prior to the
issuance of such Parity Obligations; provided, however, that
the conditions of this subparagraph shall not apply to the
issuance of any Parity Obligations issued to refund the Bonds.
(b) An Independent Financial Consultant shall prepare
and file a Report with the Finance Director stating that the
Net Revenues for the last full Bond Year immediately preceding
the month of the adoption by the Council of the resolution
authorizing the issuance of the Parity Obligations, when added
to the projected increase in Net Revenues of the Enterprise
upon acquisition or completion of construction of the
improvements to be financed by the Parity Obligations, for the
first full Fiscal Year immediately following the anticipated
acquisition or completion date, will produce a sum equal to at
least one hundred twenty-five percent (125%) of the Maximum
Annual Debt Service for such Bond Year plus the Maximum Annual
Debt Service which will accrue in such first full Fiscal Year.
At the option of the City and in accordance with applicable
law, Revenues may be increased and such increase may be
included in the calculation of the 125% requirement set forth
above.
(c) The City shall deliver a Written Certificate of the
City to the effect that the improvements to the Enterprise to
be acquired and constructed with the proceeds of such Parity
Obligations are technically feasible and that the estimated
cost of the acquisition and/or construction thereof is
reasonable.
(d) The Supplemental Resolution providing for the
issuance of such Parity Obligations under this Section 2.11
shall provide that:
(i) interest on said Parity Obligations shall be
payable on March 15 and September 15 in each year of the
term of such Parity Obligations; and,
(ii) the principal of such Parity Obligations shall
be payable on September 15 in any year in which principal
is payable.
(1063.6)
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ARTICLE ~
SECURITY FOR BONDS; USE OF REVENUES
Section 3.01. Pledge of Net Revenues and Other Funds.
All Net Revenues and all monies and securities on deposit in each
of the funds and accounts established under Sections 3.04 and 3.05
of this Resolution are hereby irrevocably pledged to the punctual
payment of the principal of, redemption premium, if any, and
interest on the Bonds. The Net Revenues and such other funds shall
not be used for any other purpose while any of the Bonds remain
Outstanding; provided, however, that this pledge of Net Revenues
and other funds is subject to the issuance of Parity Obligations as
set forth in Section 2.11.
Section 3.02. Revenue-Debt CaDacitv Covenant. At all
times during the life of the Bonds and/or any Parity Obligations,
the City shall establish, maintain and collect charges in
connection with the operation of the Enterprise, which, when
combined with other Revenues received by the City, provide Net
Revenues during any Fiscal Year equal to or greater than one and
three-twentieths (1.15) times the AggregateAnnual Debt Service due
in such Fiscal Year.
Section 3.03. Net Revenues a Trust Fund. The City
agrees and covenants that so long as any Bonds shall be
Outstanding, all Net Revenues and all monies and securities on
deposit in each of the funds and accounts established under
Sections 3.04 and 3.05, when and as received, shall be received and
held by the City in trust as security and payment for the Bonds,
and the City shall only have such beneficial right or interest in
such funds as provided in this Resolution.
Section 3.04. Transfer from Water Treatment Fund:
Establishment of Debt Service Fund. There is hereby created a
special fund to be known as the City of Bakersfield 1993 Sewer
Revenue Refunding Bonds Debt Service Fund (the "Debt Service
Fund"). The City has created and currently maintains and operates
the Wastewater Treatment Fund, into which is deposited all Revenues
received by the City. The City shall transfer on a monthly basis
from the Wastewater Treatment Fund to the Debt Service Fund all of
the Net Revenues. However, the City shall only be obligated to
transfer to the Debt Service Fund an amount of Net Revenues which,
when added to other available amounts in the Debt Service Fund,
equals the amounts required to be deposited into the Interest
Account and the Principal Account in such Bond Year pursuant to
Section 3.05.
Section 3.05. Establishment of Interest Account and
Principal Account. Within the Debt Service Fund there is hereby
created an Interest Account and a Principal Account. Amounts on
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deposit in the Debt Service Fund shall be applied by the Finance
Director in the following order of priority:
(a) Interest Account. On or before the 10th day of each
month, beginning April 10, 1994, and so long as any of the
Bonds remain Outstanding, the City shall debit the Debt
Service Fund and credit the Interest Account with an amount
which, when added to any amount already credited to the
Interest Account, will be equal to one-sixth (1/6th) the
amount of interest coming due and payable on the Outstanding
Bonds on the next succeeding Interest Payment Date. No credit
need be made to the Interest Account if the amount contained
therein is equal to or greater than the amount of interest
coming due on the next succeeding Interest Payment Date. All
monies in the Interest Account shall be used and withdrawn by
the City solely for the purpose of paying the interest on the
Bonds as it becomes due and payable (including interest on any
Bonds purchased or redeemed prior to maturity pursuant to this
Resolution).
(b) Principal Account. On or before the 10th day of
each month, beginningApril 10, 1994, the City shall debit the
Debt Service Fund and credit the Principal Account with an
amount which, when added to any amount already credited to the
Principal Account, will be equal to one-twelfth (1/12th) of
the principal coming due and payable on the Outstanding Bonds
on the next succeeding Principal Payment Date (except that for
the principal coming due on September 15, 1994, the amount
will be equal to one-sixth (1/6th) of the principal coming due
and payable on said date). No credit need be made to the
Principal Account if the amount contained therein is equal to
or greater than the amount of principal coming due on the next
succeeding Principal Payment Date. All monies in the
Principal Account shall be used and withdrawn by the City
solely for the purpose of paying the principal on the Bonds as
it becomes due and payable.
(c) SurPlus. In the event that for any reason
whatsoever any amounts shall remain on deposit in the Debt
Service Fund, the Interest Account or the Principal Account on
September 16 in any Fiscal Year after making all of the
transfers theretofore required to be made pursuant to the
preceding clauses (a) through (b), the City may withdraw such
amounts as its sole property to be used for any lawful purpose
of the Enterprise.
Section 3.06. Replenishment of Pool Bonds Reserve Fund.
The Bonds will be purchased by the Authority from proceeds received
from the sale of the Pool Bonds. The Pool Bonds are secured in
part by the Pool Bonds Reserve Fund. The City does not intend nor
is required to establish a reserve fund for the Bonds. Should the
City fail to make an installment of principal and/or interest when
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ORIGINAL
due hereunder, the Authority shall instruct the Trustee to withdraw
from the Pool Bonds Reserve Fund an amount up to the amount of the
delinquent installment of principal and/or interest to the extent
such withdrawal from the Pool Bonds Reserve Fund is necessary for
the Trustee to pay the installment of principal and interest then
due on the Pool Bonds.
Upon receipt of notice from the Authority or the Trustee
that the amount in the Pool Bonds Reserve Fund is less than the
Pool Bonds Reserve Requirement due to a delinquent installment of
principal and/or interest by the City for the Bonds, the City shall
deposit with the Trustee, from the Debt Service Fund or from any
other source of funds which may be appropriated and legally
available for such purpose in the Fiscal Year in which the deposit
is made, the amount specified in such notice as necessary to bring
the amount in the Pool Bonds Reserve Fund up to the Pool Bonds
Reserve Requirement, plus an amount, as determined by the Trustee,
equal to any interest earnings lost by the Authority as a result of
the withdrawal from the Pool Bonds Reserve Fund. The City shall be
responsible for replenishment of the Pool Bonds Reserve Fund only
to the extent that the City has depleted the Pool Bonds Reserve
Fund as a result of the delinquent installment for the Bonds. The
City shall not be responsible for replenishment of any Pool Bonds
Reserve Fund shortfall which is due to a delinquent payment by any
other local agency for which a local obligation was funded by the
proceeds of the Pool Bonds. The City shall make such deposit as
promptly as practicable after receipt of such notice, but in no
event later than 6 months following receipt of the notice.
~%RTICLE IV
USE OF PROCEEDS AND CONTROL OF FUNDS
Section 4.01. Application of Proceeds from Sale of
Bonds. Upon the receipt of the proceeds from the sale of the
Bonds, the City shall deposit said proceeds as follows:
(a) The City shall deposit in the Interest Account the
amount of accrued interest and premium, if any, received upon
the sale of the Bonds.
(b) The City shall deposit the remainder of the proceeds
into the Project Fund.
Section 4.02. Project Fund. There is hereby created a
fund known as the "City of Bakersfield Sewer Revenue Refunding
Bonds, Series 1993, Project Fund," which the City hereby covenants
and agrees to cause to be maintained and which shall be held by the
Finance Director of the City. Monies in the Project Fund shall be
expended as follows:
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ORIGINAL
(a) Refunding Prior Bonds. The total amount necessary
to redeem the all Prior Bonds Outstanding (inclusive of monies
in the Project Fund and amounts in the reserve fund for the
Prior Bonds), including the payment of interest and premiums
on the Prior Bonds, as determined by the Finance Director,
shall be deposited in an escrow or trust with any bank or
trust company as the Finance Director may select until such
time as the Prior Bonds are called for redemption pursuant to
their respective terms. The amounts deposited in such escrow
or trust may be invested and reinvested by the Finance
Director pursuant to the Tax Code and the Refunding Law until
such time as the Prior Bonds are redeemed. The Prior Bonds
will be redeemed at the earliest possible date allowed under
their terms and all Prior Bonds outstanding at such time shall
be redeemed.
(b) Costs of Issuance and Incidental Expenses. The
Costs of Issuance and all incidental expenses incurred in
connection therewith and in connection with the redemption of
the Prior Bonds shall be paid to those persons entitled
thereto. Such costs and expenses, if known on the Closing
Date, may be paid on behalf of the City at the time of closing
directly by the Authority and such costs and expenses will be
deducted from the total net proceeds received by the City for
the sale of the Bonds.
~RTICLE V
ADDITIONAL COVENANTS OF THE CITY
Section 5.01. Punctual Payment. The City will
punctually pay or cause to be paid principal and interest when due
with respect to all the Bonds, together with the premium thereon,
if any, in strict conformity with the terms of the Bonds and this
Resolution, and it will faithfully observe and perform all of the
conditions, covenants and requirements of this Resolution and all
Supplemental Resolutions and of the Bonds. Nothing herein
contained shall prevent the City from making advances of its own
moneys howsoever derived to any of the uses or purposes referred to
herein.
Section 5.02. Extension of Bonds. The City will not,
directly or indirectly, extend or consent to the extension of the
time for the payment of any Bond or claim for interest on any of
the Bonds and will not, directly or indirectly, approve any such
arrangement by purchasing or funding the Bonds or claims for
interest or by in any other manner. In case the Principal Payment
Date of any such Bond or claim for interest shall be extended or
funded, whether or not with the consent of the City, such Bond or
claim for interest so extended or funded shall not be entitled, in
case of default hereunder, to the benefits of this Resolution,
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ORIGINAL
except subject to the prior payment in full of the principal of all
of the Bonds then Outstanding and of all claims for which interest
which shall not have been so extended or funded.
Section 5.03. Aqainst Encumbrances. The City will not
encumber, pledge or place any charge or lien upon any of the Net
Revenues superior to or on a parity with the pledge and lien herein
created for the benefit of the Bonds, except as permitted by this
Resolution. Nothing herein is intended or shall be construed to
impair the ability of the City to place any charge or lien upon any
of the Net Revenues which is subordinate or junior to the pledge
and lien established herein.
Section 5.04. Manaqement and Operations of Properties.
The city will manage and operate all properties owned by the City
and comprising any part of the Enterprise in a sound and
businesslike manner, and will keep such properties insured at all
times in conformity with sound business practice.
Section 5.05. Payment of Claims. The City will pay and
discharge, or cause to be paid and discharged, any and all lawful
claims for labor, materials or supplies which, if unpaid, might
become a lien or charge upon the properties owned by the City and
comprising any part of the Enterprise or upon the Net Revenues or
any part thereof, or which might impair the security of the Bonds.
Nothing herein contained shall require the City to make any such
payment so long as the City in good faith shall contest the
validity of said claims.
Section 5.06. Books and Accounts: Financial Statement.
The City will keep, or cause to be kept, proper books of record and
accounts, separate from all other records and accounts of the City,
in which complete and correct entries shall be made of all
transactions relating to the Enterprise and to the Revenues. Such
books of record and accounts shall at all times during business
hours be subject to the inspection of the Owners of not less than
ten percent (10%) of the principal amount of the Bonds then
Outstanding, or their representatives authorized in writing.
The City will cause to be prepared and filed with the
Finance Director annually, within one hundred and eighty (180) days
after the close of each Fiscal Year so long as any of the Bonds are
Outstanding, complete financial statements with respect to such
Fiscal Year showing the Revenues, all disbursements from the
Revenues and the financial condition of the Enterprise, including
the balances in all funds and accounts relating to the Enterprise,
as of the end of such Fiscal Year, which statements shall be
accompanied by a certificate or opinion in writing of an
Independent Certified Public Accountant. The City will furnish a
copy of such statements to any Bond Owner upon reasonable request.
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Section 5.07. Protection of Security and Rights of Bond
Owners. The City will preserve and protect the security of the
Bonds and the rights of the Bond Owners. From and after the sale
and delivery of any of the Bonds by the City, the Bonds shall be
incontestable by the City.
Section 5.08. Payments of Taxes and Other Charges. The
City will pay and discharge, or cause to be paid and discharged,
all taxes, service charges, assessments and other governmental
charges which may hereafter be lawfully imposed upon the City or
the properties then owned by the City with respect to the
Enterprise, or upon the Revenues therefrom, when the same shall
become due. Nothing herein contained shall require the City to
make any such payment so long as the City in good faith shall
contest the validity of said taxes, assessments or charges. The
City will duly observe and conform with all valid requirements of
any governmental authority relative to the Enterprise or any part
thereof.
Section 5.09. Limitation on Use of Proceeds. The City
shall make no use of the proceeds of the Bonds which would cause
the Bonds to be "private activity bonds" that are not "qualified
private activity bonds" under and within the meaning of
Section 141(d) of the Tax Code. Without limiting the generality of
the foregoing, the City shall not enter into any arrangement or
agree to enter into any arrangement the effect of which would be to
cause more than five percent (5%) of the proceeds of the Bonds to
be used directly or indirectly to make or finance loans to persons
other than governmental units.
Section 5.10. Registration Covenant. The City shall
take no action nor suffer any action to be taken which would cause
the Bonds not to be registered bonds within the meaning of
Section 149 of the Tax Code or a federally guaranteed obligation
within the meaning of Section 149(b) of the Tax Code.
Section 5.11. Arbitra~e Covenant. The City covenants
with the Owners of all Bonds at any time Outstanding that it will
make no use of the proceeds of the Bonds which if made at the time
of issuance of the Bonds, would have caused any of the Bonds to be
"arbitrage bonds" subject to federal income taxation by reason of
Section 148 of the Tax Code.
Section 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 of the rights and benefits provided in this
Resolution. The City shall, within one hundred twenty (120) days
following the close of each Fiscal Year, file with the Finance
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OR~G~'~AL
Director a Written Certificate of the City stating that no Event of
Default occurred hereunder during such Fiscal Year.
ARTICLE VI
MODIFICATION OR AMENDMENT OF THIS RESOLUTION
Section 6.01. Amendments Permitted. This Resolution and
the rights and obligations of the City and of the Owners of the
Bonds may be modified or amended by the City at any time by the
execution of a Supplemental Resolution, but only with and pursuant
to the affirmative vote at a meeting of Bond Owners, or with the
written consent without a meeting, of the Owners of no less than
sixty percent (60%) in aggregate principal amount of the Bonds then
Outstanding, exclusive of Bonds disqualified as provided in
Section 6.03. Any such Supplemental Resolution shall become
effective upon the execution and delivery thereof by the parties
thereto and upon consent of the requisite number of Bond Owners
pursuant to Section 6.02. No such modification or amendment shall
(1) extend the Principal Payment Date of any bond or reduce the
interest rate thereon, or otherwise alter or impair the obligation
of the City to pay the principal thereof, or interest thereon, or
any premium payable on the redemption thereof, at the time and
place and at the rate and in the currency provided therein, without
the written consent of the Owner of such Bond, or (2) permit the
creation by the City of any mortgage, pledge or lien upon the
Revenues superior to or on a parity with the pledge and lien
created for the benefit of the Bonds (except as expressly permitted
by this Resolution), or reduce the percentage of Bonds required for
the affirmative vote or written consent to an amendment or
modification.
This Resolution and the rights and obligations of the
City and of the Owners of the Bonds may also be modified or amended
at any time by a Supplemental Resolution, without the consent of
any Owners of the Bonds, but only to the extent permitted by law
and only for any one or more of the following purposes:
(a) to add to the covenants and agreements of the City
in this Resolution contained, other covenants and agreements
thereafter to be observed, or to surrender any right or power
herein reserved to or conferred upon the City;
(b) to make such provisions for the purpose of curing
any ambiguity, or of curing, correcting or supplementing any
defective provision contained in this Resolution, or in regard
to questions arising under this Resolution, as the City may
deem necessary or desirable, and which shall not adversely
affect the interests of the Owners of the Bonds; and
(1063.6)
-20-
(~063.6)
(c) to provide for the issuance of any Parity
Obligations, and to provide the terms and conditions under
which such Parity Obligations may be issued, subject to and in
accordance with the provisions of Section 2.11 hereof.
Section 6.02. Bond Owners' Meetino.
(a) Callino Bond Owners' Meeting. If the City desires
to obtain the consent of Bond Owners as provided in
Section 6.01, the City may call a meeting of Bond Owners, by
resolution, for the purpose of considering the action, the
consent to which is desired.
(b) Notice of Meeting. Notice specifying the purpose,
place, date and hour of such meeting shall be mailed by the
Secretary of the City, postage prepaid, to the respective
Owners thereof at their respective addresses appearing on the
Bond Registration Books. The place, date and hour of holding
such meeting and the date or dates of publishing and mailing
such notice shall be determined by the City, in its
discretion.
The actual receipt by any Bond Owner of notice of any
such meeting shall not be a condition precedent to the holding
of such meeting, and failure to receive such notice shall not
affect the validity of the proceedings thereat. A certificate
by the City Clerk and approved by resolution of the Council
stating that the meeting has been called and that notice
thereof has been given as herein provided shall be conclusive
as against all parties and it shall not be open to any Bond
Owner to show that he failed to receive notice of such
meeting.
(c) Voting Oualifications. Any Bond Owner may, prior to
any such meeting, deliver his Bond or Bonds to any agent
designated by the City for that purpose, and shall thereupon
be entitled to receive an appropriate receipt for the Bond or
Bonds so deposited and call for the redelivery of such Bond or
Bonds at any time after the meeting. The Finance Director
shall prepare and deliver to the chairperson of the meeting a
list of names and addresses of the registered Owners of Bonds,
with a statement of the names of Bond Owners so depositing
their Bonds and the maturities and serial numbers of the Bonds
so held and deposited and no Bond Owner shall be entitled to
vote at such meeting unless such Owner's name appears on such
list or unless he shall present his Bond or Bonds at the
meeting or a certificate of deposit thereof, satisfactory to
the City, executed by a bank, trust company or other
authorized depository. No Bond Owners shall be permitted to
vote with respect to a larger aggregate principal amount of
Bonds than is set against such Owner's name on such list,
unless he shall produce the Bonds upon which such Owner
-21-
desires to vote, or a certificate of deposit thereof as above
provided.
(d) Disaualified Bonds. The City covenants that it will
present at the meeting a Written Certificate stating the
maturities and serial numbers of all Bonds disqualified
pursuant to Section 6.03. No person shall be permitted at the
meeting to vote or consent with respect to any Bond appearing
upon such certificate, or any Bond which it shall be
established at or prior to the meeting is disqualified
pursuant to Section 6.03 and no such Bond (herein referred to
as "Disqualified Bonds") shall be counted in determining
whether a quorum is present at the meeting.
(e) Ouorum and Procedure. A representation of at least
sixty percent (60%) in aggregate principal amount of the Bonds
then Outstanding (exclusive of Disqualified Bonds) shall be
necessary to constitute a quorum at any meeting of Bond
Owners, but less than a quorum may adjourn the meeting from
time to time, and the meeting may be held as so adjourned
without further notice, whether such adjournment shall have
been had by a quorum or less than a quorum. The City shall,
by an instrument in writing, appoint a temporary chairperson
of the meeting, and the meeting shall be organized by the
election of a permanent chairperson and a secretary. At any
meeting each Bond Owner shall be entitled to one vote for
every $5,000 principal amount of Bonds with respect to which
he shall be entitled to vote as aforesaid, and such vote may
be given in person or by proxy duly appointed by an instrument
in writing presented at the meeting. The City, by its duly
authorized representative, may attend any meeting of the Bond
Owners, but shall not be required to do so.
(f) Vote Required. At any such meeting held as
aforesaid there shall be submitted for the consideration and
action of the Bond Owners a statement of proposed action,
consent to which is desired, and if such action shall be
consented to and approved by Bond Owners holding at least
sixty percent (60%) in aggregate amount of the Bonds then
Outstanding (exclusive of Disqualified Bonds) the chairperson
and secretary of the meeting shall so certify in writing to
the City, and such certificate shall constitute complete
evidence of consent of Bond Owners under the provisions of
this Resolution. A certificate signed and verified by the
chairperson and secretary of any such meeting shall be
conclusive evidence and the only competent evidence of matters
stated in such certificate relating to proceedings taken at
such meeting.
(g) Written Consent of Bond Owners. If the City shall
desire to obtain any such consent in writing, without a
meeting of Bond Owners, the Council may, by resolution,
(1063.6)
-22-
propose the action to which consent is desired. A copy of
such resolution, together with a request to Bond Owners for
their consent to the action proposed therein, shall be mailed
by the City Clerk thereof to each Owner at the respective
addresses appearing on the Bond Registration Books.
The actual receipt by any Bond Owner of such resolution
and request shall not affect the validity of the proceedings
for the obtaining of such consent. A certificate by said City
Clerk, approved by resolution of the Council stating that said
resolution and request has been published and mailed as herein
provided shall be conclusive as against all parties, and it
shall not be open to any Bond Owner to show that such Bond
Owner failed to receive such resolution and request for
consent.
Each written consent shall be accompanied by proof of
ownership of the Bonds for which such consent is given. Proof
of ownership shall be made in such manner as shall be
prescribed by the resolution proposing the action. Any such
written consent shall be binding upon the Owner of the Bonds
giving such consent and on any subsequent Owner (whether or
not such subsequent Owner has notice thereof) unless such
consent is revoked in writing by the Owner giving such consent
or by the subsequent Owner. To be effective, any revocation
of consent must be filed before the adoption of the resolution
accepting consents as hereinafter provided.
After the Owners of at least sixty percent (60%) in
aggregate principal amount of the Bonds then Outstanding
(exclusive of Disqualified Bonds) shall have consented in
writing, the Council shall adopt a resolution accepting such
consents and such resolution shall constitute complete
evidence of the consent of Bond Owners under this Resolution.
(h) Publication of Consent. Notice specifying the
amendment, waiver or modification that has received the
consent of Bond Owners as required by this Section shall be
mailed by the City Clerk to the Owners at the respective
addresses appearing in the Bond Registration Books, within
sixty (60) days following the final action in the proceedings
for the obtaining of such consent. Said notice is only for
the information of Bond Owners and failure to mail such notice
or any defect therein shall not affect the validity of the
proceedings theretofore taken in the obtaining of such
consent.
Section 6.03. Disqualified Bonds. Bonds owned or held
for the account of the City, excepting any pension or retirement
fund, shall not be deemed Outstanding for the purpose of any vote,
consent or other action or any calculation of Outstanding Bonds
provided for in this Article VI, and shall not be entitled to vote
- 2 3 -
upon, consent to, or take any other action provided for in this
Article VI.
Section 6.04. Effect of SupPlemental Resolution. From
and after the time any Supplemental Resolution becomes effective
pursuant to this Article VI, this Resolution shall be deemed to be
modified and amended in accordance therewith, the respective
rights, duties and obligations under this Resolution of the City
and all Owners of Bonds Outstanding shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of
any such Supplemental Resolution shall be deemed to be part of the
terms and conditions of this Resolution for any and all purposes.
The City may adopt appropriate regulations to require
each Bond Owner, before such Owner's consent provided for in this
Article VI shall be deemed effective, to reveal if the Bonds as to
which such consent is given are disqualified as provided in
Section 6.03.
Section 6.05. Endorsement or Replacement of Bonds Issued
After Amendments. The City may determine that Bonds issued and
delivered after the effective date of any action taken as provided
in this Article VI shall bear a notation, by endorsement or
otherwise, in form approved by the Council, as to such action. In
that case, upon demand of the Owner of any bond Outstanding at such
effective date and presentation of the applicable Bond for that
purpose at the office of the Finance Director (or duly appointed
agent hereunder) or at such other office as the City may select and
designate for that purpose, a suitable notation shall be made on
such Bond. The city may determine that new Bonds, so modified as
in the opinion of the City is necessary to conform to such Bond
Owners' action, shall be prepared, executed and delivered. In that
case, upon demand of the Owner of any Bonds then Outstanding, such
new Bonds shall be exchanged at the office of the Finance Director
without cost to any Bond Owner, upon surrender of such Outstanding
Bonds.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS
Section
Maturities. The
Default hereunder:
7.01. Events of Default and Acceleration of
following events shall constitute Events of
(a) if default shall be made in the due and punctual
payment of the principal of or interest or redemption premium
(if any) on any Bond when and as the same shall become due and
payable, whether at maturity as therein expressed, by
(1063.6)
-24-
ORIGINAL
proceedings for redemption by declaration or otherwise, and
such default shall have continued for thirty (30) days;
(b) if default shall be made by the City in the
observance of any of the covenants, agreements or conditions
on its part in this Resolution or in the Bonds contained, and
such default shall have continued for a period of ninety (90)
days; or
(c) if the City shall commence a voluntary action under
Title 11 of the United States Code or any substitute or
successor statute.
If an Event of Default has occurred under subsections (a)
or (c) of this Section and is continuing, the City may, and if
requested in writing by the Owners of a majority in aggregate
principal amount of the Bonds then Outstanding shall, declare the
principal of the Bonds, together with the accrued interest thereon,
to be due and payable immediately, and upon any such declaration
the same shall become immediately due and payable, anything in this
Resolution or in the Bonds to the contrary notwithstanding.
Immediately upon becoming aware of the occurrence of an
Event of Default, the City shall give notice of such Event of
Default to the Owners of the Bonds in the same manner as provided
herein for notices of redemption of the Bonds, which shall include
the statement that interest on the Bonds shall cease to accrue from
and after the date of acceleration specified in such notice.
Section 7.02. ADDlication of Funds Upon Acceleration.
All of the Net Revenues and all sums in the funds and accounts
established pursuant to Sections 3.04 and 3.05 upon the date of the
declaration of acceleration as provided in Section 7.01, and all
sums thereafter received by the City hereunder, shall be applied in
the order following upon presentation of the several Bonds, and the
stamping thereon of payment if only partially paid, or upon the
surrender thereof if fully paid:
First, to the payment of the costs and expenses of the
Bond Owners in declaring such Event of Default, if any,
including reasonable compensation to their agents, attorneys
and counsel; and
Second, to the payment of the whole amount then owing and
unpaid upon the Bonds for principal and interest, with
interest on the overdue principal and installments of interest
at the rate of twelve percent (12%) per annum (to the extent
that such interest on overdue installments of principal and
interest shall have been collected), and in case such moneys
shall be insufficient to pay in full the whole amount so owing
and unpaid upon the Bonds, then to the payment of such
principal and interest without preference or priority of
(10~3.~)
-25-
ORIG(NAL
principal over interest, or interest over principal, or of any
installment of interest over any other installment of
interest, ratably to the aggregate of such principal and
interest.
Section 7.03. Limitation on Bond Owners' Right to Sue.
No Owner of any Bond issued hereunder shall have.the right to
institute any suit, action or proceeding at law or in equity, for
any remedy under or upon this Resolution, unless such Owner shall
have previously given to the Citywritten notice of the occurrence
of an Event of Default.
Such notification is hereby declared, in every case, to
be condition precedent to the exercise by any Owner of Bonds of any
remedy hereunder; it being understood and intended that no one or
more Owners of Bonds shall have any right in any manner whatever by
his or their action to enforce any right under this Resolution,
except in the manner herein provided, and that all proceedings at
law or in equity to enforce any provision of this Resolution shall
be instituted, had and maintained in the manner herein provided and
for the equal benefit of all Owners of the Outstanding Bonds.
The right of any Owner of any bond to receive payment of
the principal of (and premium, if any) and interest on such Bond as
herein provided or to institute suit for the enforcement of any
such payment, shall not be impaired or affected without thewritten
consent of such Owner, notwithstanding the foregoing provisions of
this Section or any other provision of this Resolution.
Section 7.04. Non-waiver. Nothing in this Article VII
or in any other provision of this Resolution or in the Bonds, shall
affect or impair the obligation of the City, which is absolute and
unconditional, to pay from the Net Revenues and other amounts
pledged hereunder, the principal of and interest on the Bonds to
the respective Owners of the Bonds on the respective Principal
Payment Dates, as herein provided or affect or impair the right of
action, which is also absolute and unconditional, of the Owners to
institute suit to enforce such payment by virtue of the contract
embodies in the Bonds.
A waiver of any default by any Bond Owner shall not
affect any subsequent default or impair any rights or remedies on
the subsequent default. No delay or omission of any Owner of any
of the Bonds to exercise any right or power accruing upon any
default shall impair any such right or power or shall be construed
to be a waiver of any such default or an acquiescence therein, and
every power and remedy conferred upon the Bond Owners by the Law or
by this Article VII may be enforced and exercised from time to time
and as often as shall be deemed expedient by the Owners of the
Bonds.
-26 -
ORIGINAL
If a suit, action or proceeding to enforce any right or
exercise any remedy shall be abandoned or determined adversely to
the Bond Owners, the City and the Bond Owners shall be restored to
their former positions, rights and remedies as if such suit, action
or proceeding had not been brought or taken.
Section 7.05. Remedies Not Exclusive. No remedy herein
conferred upon or reserved to the Owners of Bonds is intended to be
exclusive of any other remedy. Every such remedy shall be
cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing, at law or in equity or by
statute or otherwise, and may be exercised without exhausting and
without regard to any other remedy conferred by the Law or any
other law.
~RTICLE VIII
MISCELLANEOUS
Section 8.01. Benefits Limited to Parties. Nothing in
this Resolution, expressed or implied, is intended to give to any
person other than the City, and the Owners of the Bonds, any right,
remedy, claim under or by reason of this Resolution. Any
covenants, stipulations, promises or agreements in this Resolution
contained by and on behalf of the City shall be for the sole and
exclusive benefit of the Owners of the Bonds.
Section 8.02. Successor is Deemed Included in All
References to Predecessor. Whenever in this Resolution or any
Supplemental Resolution the City is named or referred to, such
reference shall be deemed to include the successors or assigns
thereof, and all the covenants and agreements in this Resolution
contained by or on behalf of the City shall bind and inure to the
benefit of the respective successors and assigns thereof whether so
expressed or not.
Section 8.03. Discharge of Resolution. If the City
should pay and discharge the entire indebtedness on all Bonds
Outstanding in any one or more of the following ways:
(a) by well and truly paying or causing to be paid the
principal of and interest on all Bonds Outstanding, as and
when the same become due and payable;
(b) by resolution order the Finance Director to set
aside or deposit with the Paying Agent, in trust, at or before
maturity, money which, together with the amounts then on
deposit in the funds and accounts established pursuant to
Sections 3.04, 3.05 and 4.02, is fully sufficient to pay all
Bonds Outstanding, including all principal, interest and
redemption premiums, if any, or;
(10~.6)
--27--
OR/G~NAL
(c) by resolution order the Finance Director to
designate or deposit with the Paying Agent, in trust,
Government Obligations in such amount as the Finance Director
shall determine will, together with the interest to accrue
thereon and moneys then on deposit in the funds and accounts
established pursuant to Sections 3.04, 3.05 and 4.02, be fully
sufficient to pay and discharge the indebtedness on all Bonds
(including all principal, interest and redemption premiums, if
any) at or before maturity;
and if such Bonds are to be redeemed prior to the maturity thereof
and notice of such redemption is given pursuant to Section 2.03(b),
then, at the election of the City, and notwithstanding that any
Bonds shall not have been surrendered for payment, the pledge of
the Net Revenues and other funds provided for in this Resolution
and all other obligations of the City under this Resolution with
respect to all Bonds Outstanding shall cease and terminate, except
the obligation of the City to pay or cause to be paid to the Owners
of the Bonds not so surrendered and paid all sums due thereon.
Section 8.04. Execution of Documents and Proof of
Ownership by Bond Owners. Any request, declaration or other
instrument which this Resolution may require or permit to be
executed by Bond Owners may be in one or more instruments of
similar tenor, and shall be executed by Bond Owners in person or by
their attorneys appointed in writing.
Except as otherwise herein expressly provided, the fact
and date of the execution by any Bond Owner or his attorney of such
request, declaration or other instrument, or of such writing
appointing such attorney, may be proved by the certificate of any
notary public or other officer authorized to take acknowledgments
of deeds to be recorded in the state in which he purports to act,
that the person signing such request, declaration or other
instrument or writing acknowledged to him the execution thereof, or
by an affidavit of a witness of such execution, duly sworn to
before such notary public or other officer.
The ownership of Bonds and the amount, principal Payment
Date, number and date of ownership thereof shall be proved by the
Bond Registration Books.
Any request, declaration or other instrument or writing
of the Owner of any bond shall bind all future Owners of such Bond
in respect of anything done or suffered to be done by the City in
good faith and in accordance therewith.
Section 8.05. Waiver of Personal Liability. No member,
officer, agent or employee of the City shall be individually or
personally liable for the payment of the principal of or interest
on the Bonds; but nothing herein contained shall relieve any such
-- 2 8-
ORIGINAL
member, officer, agent or employee from the performance of any
official duty provided by law.
Section 8.06. Publication for Successive Weeks. Any
publication to be made under the provisions of this Resolution in
successive weeks may be made in each instance upon any business day
of the week and need not be made on the same day of any succeeding
week or in the same newspaper for any or all of the successive
publications, but may be made on different days of the week and in
different newspapers.
Section 8.07. Destruction of Canceled Bonds. Whenever
in this Resolution provision is made for the surrender to the City
of any Bonds which have been paid or canceled pursuant to the
provisions of this Resolution, a certificate of destruction duly
executed by the Finance Director shall be deemed to be the
equivalent of the surrender of such canceled Bonds, and the City
shall be entitled to rely upon any statement of fact contained in
any certificate with respect to the destruction of any such Bonds
therein referred to.
Section 8.08. Notices. Any notice or demand which by
any provision of this Resolution is required or permitted to be
given to or served on the City may be given or served by being
deposited postage prepaid in a post office letter box addressed to
the City as follows: Finance Director, City of Bakersfield, 1501
Truxtun Avenue, Bakersfield, California 93301.
Section 8.09. Partial Inva!iditv. If any Section,
paragraph, sentence, clause or phrase of this Resolution shall for
any reason be held illegal, invalid or unenforceable, such holding
shall not affect the validity of the remaining portions of this
Resolution. The City hereby declares that it would have adopted
this Resolution and each and every other Section, paragraph,
sentence, clause or phrase hereof and authorized the issue of the
Bonds pursuant thereto irrespective of the fact that any one or
more Sections, paragraphs, sentences, clauses, or phrases of this
Resolution may be held illegal, invalid or unenforceable. If, by
reason of the judgment of any court, the Paying Agent is rendered
unable to perform its duties hereunder, all such duties and all of
the rights and powers of the Paying Agent hereunder shall be
assumed by and vest in the Finance Director of the City in trust
for the benefit of the Bond Owners. The City covenants for the
direct benefit of the Bond Owners that its covenants for the direct
benefit of the Bond Owners that its Finance Director in such case
shall be vested with all of the rights and powers of the Paying
Agent hereunder, and shall assume all of the responsibilities and
perform all of the duties of the Paying Agent hereunder, in trust
for the benefit of the Bonds.
Section 8.10. Unclaimed Moneys. Anything contained
herein to the contrary notwithstanding, any money held by the
- 29 -
Paying Agent in trust for the payment and discharge of the interest
or premium (if any) on or principal of the Bonds which remains
unclaimed for six (6) years after the date when the payments of
such interest, premium and principal have become payable, if such
money was held by the Paying Agent at such date, or for six (6)
years after the date when the payments of such interest, premium
and principal have become payable, if such money was held by the
Finance Director (or duly appointed agent hereunder) at such date,
or for six (6) years after the date of deposit of such money if
deposited with the Paying Agent after the date when the interest
and premium (if any) on and principal of such Bonds have become
payable, shall be at the Written Request of the City be repaid by
the Paying Agent to the City as its absolute property free from
trust, and the Paying Agent shall thereupon be released and
discharged with respect thereto and the Bond Owners shall look only
to the City for the payment of the interest and premium (if any) on
and principal of such Bonds. The provisions of this Section 8.10
shall be subject to any contrary provisions of applicable law of
the State.
III
III
III
III
III
- 3 0-
OF~G~AL
I HEREBY CERTIFY that the foregoing Resolution was passed
and adopted by the City Council of the City of Bakersfield at a
regular meeting thereof held on the 15th day of December 1993, by
the following vote:
AYES: COUt~LIdE';,.~.~.,,'~ Mc4)ERidOTT, EDW~ DS, DeMOND, SUTI'H, BRUNN|,ROWL.E$,SAL-VAGGIO
NOES: COUNCILMEMBERS
AI~TAIN: COUNCILMEMBERS ~ ,o ~.,~.
Clerk of the Council of the
City of Bakersfield
APPROVED~ii~ of December 1993
MAYOR of ~f~eYC~ of Bakersfield
APPROVED AS TO FORM:
BURKE, WILLIAMS & SORENSEN,
Bond Counsel
By: Richard H. Harg~ove
COUNTERSIGNED:
TT0 EY the
City of B~kersfleld
- 31 -
EXHIBIT
UNITED STATES OF AMERICA
STATE OF CALIFORNIA
COUNTY OF KERN
NO.
CITY OF BAKERSFIELD
SEWER REVENUE REFUNDING BONDSt
$
SERIES 1993
PRINCIPAL AMOUNT
BOND DATE
REGISTERED OWNER:
M~TURITY DATE
(September 15)
INTEREST MATURITY
R~TE PRINCIPAL
The CITY OF BAKERSFIELD, a municipal corporation
organized and existing under the Constitution and laws of the State
of California (the "City"), for value received hereby promises to
pay (but only out of the Revenues, as hereinafter defined) to the
registered owner hereof, or registered assigns, on the maturity
date stated above, the principal sum shown hereon in lawful money
of the United States and in like manner pay interest at the rate
per annum stated above on , , and semiannually
thereafter on each March 15 and September 15 (each an "Interest
Payment Date") for the life of the Bond. This Bond bears interest
from the Bond Date shown above. Both the principal hereof and
redemption premium hereon are payable upon presentation and
surrender hereof at the office of the Finance Director of the City,
or its successors, as Transfer Agent, Registrar and Paying Agent
(the "Agent"). Interest hereon is payable by check or draft mailed
to the owner hereof at such owner's address as it appears on the
registration books of the Agent, or at such address as may have
been filed with the Agent for that purpose, as of the first (lst)
day of the month immediately preceding each Interest Payment Date.
A - 1
ORIGINAL
This Bond is the one and only bond representing the City
of Bakersfield Sewer Revenue Refunding Bond, Series 1993, in the
aggregate principal amount of $ , issued by the City
under pursuant to Articles 10 and 11 of Chapter 3 of Division 2 of
Title 5 (commencing with Section 53570) of the California
Government Code (the "Refunding Law"), and the resolution of the
City Council entitled, "A Resolution of the City Council of the
City of Bakersfield Providing for Issuance of the City of
Bakersfield Sewer Revenue Refunding Bonds, Series 1993, in the
Aggregate Principal Amount of Not to Exceed $21,265,000 and
Awarding Sale Thereof," adopted by the City Council of the City on
December 15, 1993, (the "Resolution"), for the purpose of refunding
prior bonds described in the Resolution. Reference is hereby made
to the Resolution, to any resolutions supplemental thereto and to
the Refunding Law for a description of the terms on which the Bonds
are issued, the provisions with regard to the nature and extent of
the Revenues and Net Revenues, as those terms are defined in the
Resolution, and the rights of the registered owners of the Bonds.
All the terms of the Resolution and the Refunding Law are hereby
incorporated herein and constitute a contract between the City and
the registered owner, as the such owner may change from time to
time, and to all the provisions thereof the owner of this Bond, by
his acceptance hereof, consents and agrees. Each taker and
subsequent owner hereof shall have recourse to all of the
provisions of the Refunding Law and the Resolution and shall be
bound by all of the terms and conditions thereof.
The Bonds are issued to provide funds for the advance
refunding of the 1988 Certificates (as defined in the Resolution)
which were issued to finance improvements to the City's municipal
sewer system of the City (the "Enterprise"). The Bonds are special
obligations of the City and are payable, as to the principal
thereof, interest thereon and any premiums upon the redemption of
any thereof, from the Net Revenues of said Enterprise (which are
more particularly defined in the Resolution. All of the Bonds are
equally secured by a pledge of, and charge and lien upon, all of
the Net Revenues, and the Net Revenues constitute a trust fund for
the security and payment of the interest on and principal of the
Bonds. Additional Bonds payable from the Net Revenues may be
issued on a parity with the Bonds, but only subject to the
conditions and limitations contained in the Resolution.
The principal of and interest on this Bond are payable
solely from the Net Revenues, and the City is not obligated to pay
such principal and interest except from the Net Revenues. The
general fund of the City is not liable, and the credit or taxing
power of the City is not pledged, for the payment of the Bonds or
their interest. The Bonds are not secured by a legal or equitable
pledge of, or charge, lien or encumbrance upon, any of the property
of the City or any of its income or receipts, except the Net
Revenues.
A - 2
ORIG~N^L
The City covenants that, so long as any of the Bonds are
outstanding, it will fix, prescribe and collect rates, fees and
charges in connection with the Enterprise which, when combined with
other revenues of the Enterprise, provide Net Revenues during any
fiscal year equal to or greater than two times the total annual
debt service due on the Bonds and any parity bonds then
outstanding.
The Bonds are subject to redemption in whole on any date
on or after September 15, 2001, or in part on any date on or after
September 15, 2001, in inverse order of maturity and by lot within
a maturity, at the option of the City from any available source of
funds, at a redemption price equal to one hundred percent (100%) of
the principal amount to be redeemed together with the following
redemption premiums (computed upon the principal amount of the
Bonds to be redeemed), plus accrued interest to the redemption
date:
Redemption Date
(both dates inclusivel
September 15, 2001 through September 14, 2002
September 15, 2002 through September 14, 2003
September 15, 2003 and thereafter
Redemption
Premium
2%
1%
0%
The Bonds are also subject to redemption in whole on any
date or in part on any date in inverse order of maturity and by lot
within a maturity, at the option of the City, without premium, from
the net proceeds of insurance or eminent domain available therefor
if the City does not apply such net proceeds toward the acquisition
or construction of additions, betterments, extensions or
improvements to the Enterprise as provided in this Resolution at
the principal amount thereof and accrued interest thereon to the
date fixed for redemption.
This Bond shall not be entitled to any benefit under the
Refunding Act or the Resolution, or become valid or obligatory for
any purpose, until and unless manually executed by the Mayor and
the City Clerk of the City.
///
///
///
A - 3
ORIGINAL
IN WITNESS WHEREOF, the City of Bakersfield has caused
this Bond to be executed and registered by the Mayor of the City
and by its City Clerk and has caused its official seal to be
imprinted hereon all as of ,
CITY OF BAKERSFIELD
By:
Mayor
(SEAL)
Attest:
By:
City Clerk
ABBZGlqM~I~I'
For value received the undersigned do(es) hereby sell,
a s s i g n a n d t r a n s f e r u n t o
the within-mentioned
registered Bond and hereby irrevocably constitute (s) and appoint (s)
, attorney, to
transfer the same on the books of the Trustee, with full power of
substitution in the premises.
Dated:
SIGNATURE GUARANTEED BY:
A - 4
EXHIBIT B
~9~8 ~E~¥1~CATE$ OF REFU~DING
DEBT SERVZCE
DATE PRZHC~PAL COUPON ~HTEREST PERICD TOTAL FISCAL TOTAL
9/15/9~ 71~,D59.18 718~059.1~ 71~059.18
9/15/~5 810,000.00 4,70000D 1,~9,~85.00 ~,149,385.00 2,~49,385.00
9/15/96 ~5~000.00 ~.000000 1,~01,315.00 2.1&6.315.0D 2,166.315.00
9/15/97 880,000.00 5.&00000 1,259,065.00 2.139,065.D0 2,139,065.00
9/IS/98 935,000.00 5.700000
9/15/99 980,000.00 5.900000 1,158,950.00 2,138~250.00 2,138,250.00
9/15/ O 1,035.000.OO 6.100000 1,100,430.00 2,135,~0.00
9/15/ I 1,O~5,OO0.OO 6.300000 1,037,295.00 2,132,295.00 2,132,2g5.D0
9/15/ 2 I~160,000.00 6.900000 968o310.00 2,12B.310.00 2,128,310.00
9/15/ 3 1,2~O,OOO.OO 6.900000 888,270.00 2,126,270.00 2~128,270.00
9/15/ & 1,320,OOO.00 6.900000 802,710.00 2,122,710.00 2,122,710.D0
9/15/ 5 1,410,000.00 6.900000 711,630.00 2,121,6,10.00 2,121,650.00
9/15/ 6 t~500,000.00 &.900DO0 614,$40.00 2,114,340.00 2,114,340.00
9/15/ 7 t,600,000.00 7.200000 510,B40.00 2,110,~,40.00 2,11D,B&O.00
9/15/ 8 1.710,e00.00 7.200000 395,6/.0.00 2~105o640.00 2,105,640.00
9/15/ 9 1,830,000.00 7.200000 272,520,00 2,102,520.00
9/15/10 1,955,D00.00 7.200000 160,760.00 2,095,760.00 ~,0~$,760.00
20,305,000.00 1~,430,3~4.16
75,1~0.79 7B,I~0.79
1~,352,233.39 3~,657,233.~9
ACCRUED
2D,$05,000.00
Dated 3/ 2/94 t~ith Oetivery of
Debt Date: 03-02-1~94 a 17:15:17 FILem~et Nt~£ Icy; BA~ER_COPa
EXHIBIT B ~ ~'
B- 1