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HomeMy WebLinkAbout234-904 RESOLUTION NO. 234-90 A RESOLUTION PROVIDING FOR THE ISSUANCE OF REFUNDING BONDS SYCAMORE VALLEY REASSESSMENT DISTRICT NO. 1990-1 RESOLVED, by the Town Council (the "Council") of the Town of Danville (the "Town"), Contra Costa County, California, that: WHEREAS, by its Resolution No. 107-85 (the "1985 Resolution"), adopted December 10, 1985, this Council authorized and issued its "Improvement Bonds, Assessment District No. 1985-1, Sycamore Valley, Town of Danville, Contra Costa County, California, Series 1985-1" dated December 23, 1985 (the "Prior Bonds"), in the aggregate principal amount of $16,088,876 to finance the acquisition and construction of public improvements more particularly described in special assessment proceedings referenced in said resolution; WHEREAS, on September 4, 1990, this Council passed and adopted its Resolution No. 192-90, "A Resolution of Intention to Conduct Reassessment Proceedings in Assessment District No. 1985-1", under the provisions of the Refunding Act of 1984 for 1915 Improvement Act Bonds, being Division 11.5 of the California Streets and Highways Code (the "Act"), and therein provided that serial bonds would be issued thereunder (the "Bonds") pursuant to the provisions of the Act, reference to said Resolution of Intention hereby being expressly made for further particulars; WHEREAS, in said Resolution of Intention this Council determined and declared that the Town will not obligate itself to advance available funds from the Town Treasury to cure any deficiency which may occur in the Redemption Fund; WHEREAS, proceedings taken under the Act and said Resolution of Intention led to the levy of reassessments by the Council against parcels of land within the reassessment district in the total amount of $13,840,000. When the reassessment and reassessment diagram approved as part of said 3213004/4 1 proceedings are recorded in the Office of the Superintendent of Streets of the Town, and upon compliance with the provisions of Division 4.5 of the California Streets and Highways Code, the reassessment will become a lien upon the various parcels of land reassessed; and WHEREAS, the Council has determined that the public interest or necessity require that the Town defease the Prior Bonds in full by providing for reassessments and the issuance of the Bonds to refund, in advance, on March 2, 1991, the Prior Bonds outstanding after September 2, 1990 pursuant to the Act and proceedings taken under the Act and said Resolution of Intention; NOW, THEREFORE, THE COUNCIL HEREBY DETERMINES AND ORDERS, AS FOLLOWS: Section 1. Definitions. Unless the context otherwise requires, the terms defined in this Section 1 shall, for all purposes of this Resolution, have the meanings herein specified and shall be equally applicable to both the singular and plural forms of any of the terms herein defined. "Act" means the Refunding Act of 1984 for 1915 Improvement Act Bonds, being Division 11.5 of the Streets and Highways Code of the State of California. "Agent" means the Transfer Agent, Registrar and Paying Agent designated in Section 6 hereof. "Bond" or "Bonds" means the Bonds issued pursuant to the Act and this Resolution. "Bond Date" means December 1, 1990. "Bond Denomination" means the amount of $5,000. "Bond Year" means the period beginning on the Closing Date and ending on the day in the calander year corresponding to the maturity date of the Bonds, and each successive one-year period thereafter until there are no outstanding Bonds. "Closing Date" means the date of delivery of the Bonds and payment therefor. "Contract of Purchase" means the contract for the sale of the Bonds by the Town to the Original Purchaser. "Code" means the Internal Revenue Code of 1986, as amended. 3213004/4 2 "Cost of Issuance Fund" means the fund established by the Treasurer under Section 19 hereof. "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. "Escrow Agent" means the escrow agent designated as such pursuant to the Escrow Agreement. "Escrow Agreement" means the escrow agreement dated as of the Closing Date by and between the Town and the Escrow Agent relating to the refunding and defeasance of the Prior Bonds. "Escrow Fund" means the fund established by the Treasurer under Section 18 hereof. "Gross Proceeds" means any of the following amounts: (1) original proceeds, namely, amounts received by or for the Town as a result of the sale of the Bonds, excluding original proceeds once they become transferred proceeds (determined in accordance with applicable Regulations) of obligations issued to refund the Bonds in whole or in part; (2) investment proceeds, namely, amounts received at any time by or for the Issuer, such as interest and dividends, resulting from the investment of any original proceeds (as referenced in clause (1) above) or investment proceeds (as referenced in this clause (2)) in Nonpurpose Obligations, increased by any profits and decreased (if necessary, below zero) by any losses on such investments, excluding investment proceeds once they become transferred proceeds (determined in accordance with applicable Regulations) of obligations issued to refund the Bonds in whole or in part; (3) transferred proceeds, namely, original proceeds of the Prior Bonds, and interest earnings and profits less losses resulting from investment of such original proceeds in Nonpurpose Obligations, once they are deemed to become proceeds of the Bonds in accordence with applicable Regulations; (4) sinking fund proceeds, namely, amounts, other than original proceeds, investment proceeds or transferred proceeds (as referenced in clauses (1) through (3) above) 3213004/4 of the Bonds, that are held in the Redemption Fund and any other fund to the extent the Town reasonably expects to use such other fund to pay Debt Service on the Bonds; (5) amounts in the Reserve Account and in any other fund established as a reasonably required reserve or replacement fund for the Bonds; (6) Investment Property pledged as security for payment of Debt Service on the Bonds by the Town; (7) amounts, other than as specified in this definition, used to pay Debt Service on the Bonds; and (8) amounts received as a result of investing amounts described in this definition. "Guidelines" means the Guidelines for Compliance with Section 148(f) of the Code, as amended from time to time, delivered on the Closing Date. "Interest Payment Date" means the dates upon which interest on the Bonds is payable, being March 2 and September 2 of each year to maturity, commencing September 2, 1991. "Investment Earnings Fund" means the fund established by the Treasurer under Section 28 hereof. "Investment Property" means any security (as said term is defined in section 165(g)(2)(A) or (B) of the Code), obligation, annuity, investment-type property or any residential rental property for family units, excluding, however, obligations the interest on which is (A) excludable from the gross income of the holder thereof for federal income tax purposes under Section 103 of the Code, and (B) not treated as an item of tax preference under Section 57(a)(5) of the Code, and securities treated as such. "Issuance Costs" means: (1) all expenses incident to the calling, retiring, or paying of the Prior Bonds and to the issuance of the Bonds, including, but not limited to any bond counsel, financial consultants, underwriters (other than as taken in the form of a discount on the Closing Date), certified public accountants, engineering, paying agent and rating agency fees, bond insurance premium, printing and advertising costs, Town administrative expenses, and the charges of any escrow agent or trustee in connection with the issuance of the Bonds or in connection with the redemption or retirement of the Prior Bonds; 3213004/4 4 (2) interest on the Bonds from the Bond Date to September 2, 1991; (3) any accrued and unpaid interest on the Prior Bonds; (4) any premium necessary in the calling or retiring of the Prior Bonds; and (5) any amount that the Town pays or transfers, or has previously paid or transferred, either from a special reserve fund or from surplus funds, into the redemption fund securing the Prior Bonds and the penalties and interest thereon, if the amounts and the penalties and interest thereon are included in and limited to the particular reassessments levied upon those subdivisions of land securing the original assessment installments which are delinquent and for which the payments or transfers are made. "Net Proceeds of the Bonds" means the full amount of the Bonds, plus any accrued interest and/or premium paid by the Original Purchaser, less: (a) original issue discount; (b) proceeds deposited in the Reserve Fund; and (c) amounts used to pay Issuance Costs. "Nonpurpose Obligation" means any Investment Property that is acquired with the Gross Proceeds of the Bonds and is not acquired in order to carry out the governmental purpose of the Bonds. "Original Purchaser" means the original purchaser of the Bonds from the Town. "Prior Bonds" means Improvement Bonds, Assessment District No. 1985-1, Sycamore Valley, Town of Danville, Contra Costa County, California, Series No. 1985-1," dated December 23, 1985, which, after September 2, 1990, will be outstanding in the aggregate principal amount of $13,825,000. The Prior Bonds are being refunded in the proceedings had pursuant to said Resolution of Intention. "Project" means the acquisitions and improvements more particularly described in the special assessment proceedings referenced in said Resolution No. 107-85. "Purchase Price" for the purpose of computation of the Yield of the Bonds, has the same meaning as the term "issue price" in sections 1273(b) and 1274 of the Code, and, in general, means the initial offering price to the public (not including bond houses and brokers, or similar persons or organizations acting in the capacity of underwriters or 3213004/4 5 wholesalers) at which price a substantial amount of each maturity of the Bonds is sold or, if the Bonds are privately placed, the price paid by the first buyer of the Bonds or the acquisition costs of the first buyer. The term "Purchase Price", for the purpose of computation of the Yield of Nonpurpose Obligations, means the fair market value of the Nonpurpose Obligations on the date of use of Gross Proceeds of the Bonds for acquisition thereof, or if later, on the date that Investment Property becomes a Nonpurpose Obligation of the Bonds. "Rebate Fund" means the fund established by the Treasurer pursuant to Section 27 hereof. "Redemption Fund" means the fund established by the Treasurer into which shall be placed any accrued interest paid by the Original Purchaser for the period from the Bond Date to the Closing Date and all sums received from the collection of unpaid reassessments and of the interest and penalties thereon, all as provided in Section 20 hereof. "Redemption Premium" means 3% of the principal amount of the Bonds. "Registered Owner" means the person in whose name any Bond is registered by the Agent. "Regulations" means temporary and permanent regulations promulgated under the Code. "Reserve Fund" means the fund of that name held by the Treasurer as provided in Section 21 hereof. "Reserve Requirement" means four percent (4%) of the principal amount of the Bonds outstanding. "Resolution" means this Resolution as adopted or hereafter amended. "Treasurer" means the Treasurer of the Town. "Yield" means that yield which, when used in computing the present worth of all payments of principal and interest (or other payments in the case of Nonpurpose Obligations which require payments in a form not characterized as principal and interest) on a Nonpurpose Obligation or on the Bonds produces an amount equal to the Purchase Price of such Nonpurpose Obligation or the Bonds, all computed as prescribed in applicable Regulations. 3213004/4 Section 2. Amount of the Reassessments. The aggregate amount of the reassessment confirmed by the Council is $13,840,000; reference is hereby made to the reassessment and to the reassessment diagram recorded in the office of the Superintendent of Streets of the Town for the amount of the reassessment confirmed on each of the parcels of land within the reassessment district. In the event that the Bonds are issued in a principal amount less than the amount of the confirmed reassessment, the Council intends to order a reduction of the reassessment to an amount equal to the principal amount of the Bonds. Section 3. Issuance of Bonds. The Bonds, in the aggregate principal amount of not to exceed $13,840,000, and with an interest rate of not to exceed 8~% per annum, shall be issued as hereinafter provided upon the security of said reassessments in accordance with, under and pursuant to the provisions of said Resolution of Intention, and the proceedings thereunder duly had and taken. The Bonds shall be issued only in fully registered form in the amount of the Bond Denomination or any integral multiple thereof, and shall mature in the amounts and on September 2 in each of the years and at the rates of interest set forth in Exhibit A to the Contract of Purchase, provided that the first maturity date shall be September 2, 1992. The Bonds shall be numbered or otherwise identified as determined by the Agent specified in Section 6 hereof. Section 4. Form of Bonds. The Bonds shall be substantially in the form set forth in Exhibit A hereto and hereby made a part hereof. Temporary Bonds in typewritten form may be delivered pending preparation of definitive Bonds. Section 5. Payment of Bonds. Interest on the Bonds, at the rate or rates set forth in the Contract of Purchase, shall be payable on each Interest Payment Date. Each Bond shall bear interest from the Interest Payment Date next preceding the date on which it is authenticated and registered, unless authenticated and registered (i) on a day during the period from the sixteenth (16th) day of the month next preceding an Interest Payment Date to such Interest Payment Date, in which event it shall bear interest from such Interest Payment Date, or (ii) on a day on or before the close of business on the fifteenth (15th) day of the month preceding the first Interest Payment Date, in which event it shall bear interest from the Bond Date; provided, however, that if at the time of authentication and registration interest is in default, each Bond shall bear interest from the date to which interest has been paid or made available for payment. Each Bond will 3213004/4 continue to bear interest after maturity at the rate stated therein, provided it is presented at maturity and payment thereof is refused on the sole ground that there is not sufficient money in the Redemption Fund with which to pay same; if it is not presented at maturity, interest thereon will run only until maturity. Section 6. Designation of Agent. Security Pacific National Bank, at its principal corporate trust office in Los Angeles, California, is hereby designated as the Transfer Agent, Registrar and Paying Agent (hereinafter the "Agent"). The principal and redemption premium of the Bonds shall be payable in lawful money of the United States of America at the Principal Corporate Trust Office of the Agent in Los Angeles, California, upon the presentation and surrender of the Bonds as the same become due and payable. Interest on the Bonds shall be paid to the Registered Owner by check or draft mailed to the address entered in the registry book provided for herein as of the fifteenth (15th) day of the month immediately preceding the Interest Payment Date. The Treasurer is hereby authorized and directed to enter into an agreement with the Agent in furtherance of the actions of the Agent pursuant to this Resolution. The Treasurer shall transfer moneys to the Agent as requested by the Agent to pay the principal of, interest and redemption premium, if any, on the Bonds as required by this Resolution. Section 7. Execution. The Bonds shall be executed on behalf of the Town and under its official seal by its Treasurer and by its Clerk, whose signatures shall be reproduced on the Bonds by engraved, printed or lithographed facsimile thereof, and the official seal may be placed on the Bonds in like manner; such signing and sealing shall constitute and be a sufficient and binding execution of each and every one of the Bonds. The Bonds shall then be delivered to the Agent for authentication by it. If any officer whose signature appears on the Bonds ceases to be such officer before the authentication and delivery of the Bonds to the purchaser thereof, such signature shall be as valid as if such officer had remained in office until the authentication and delivery of the Bonds. Section 8. Authentication. Only such of the Bonds as shall bear thereon the certificate of authentication 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 32 ] 3004/4 the Bonds so authenticated have been duly executed, authenticated and delivered hereunder and are entitled to the benefits of this Resolution. The Agent's certificate of authentication on any Bond shall bedeemed 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 9. Preparation and Delivery of Bonds. The Treasurer is hereby directed to cause the Bonds to be prepared in accordance with this Resolution and to deliver same upon their completion and execution to the Agent who shall authenticate and deliver the Bonds to the purchaser thereof, upon receipt of the purchase price therefor, and upon the performance of the conditions contained in the Contract of Purchase. Section 10. Exchange of Bonds. Any Bond, upon surrender thereof at the office of the Agent, together with an assignment duly executed by the Registered Owner thereof or such Registered Owner's attorney or legal representative in such form as shall be satisfactory to the Agent, may, at the option of such Registered Owner, be exchanged for an aggregate principal amount of Bonds equal to the principal amount of the Bond so surrendered, and of any authorized denomination or denominations. The Town shall make provision for the exchange of Bonds at the office of the Agent. Section 11. Neqotiability, Registration and Transfer of Bonds. The Agent shall keep records for the registration, and for the registration of transfers, of the Bonds as provided in this Resolution which shall at all time be open to inspection by the Town. The transfer of any Bond may be registered only upon such records upon surrender thereof to the Agent together with an assignment duly executed by the Registered Owner or such Registered Owner's attorney or legal representative in such form as shall be satisfactory to the Agent. Upon any such registration of transfer, the Town shall execute and the Agent all authenticate and deliver in exchange for such Bond a new Bond or Bonds registered in the name of the transferee, of any denomination or denominations authorized by this Resolution, and in an aggregate principal amount equal to the principal amount of such Bond or Bonds so surrendered. In all cases in which Bonds shall be exchanged, the Town shall execute and the Agent shall authenticate and deliver at the earliest practicable time Bonds in accordance with the provisions of this Resolution. All Bonds surrendered in any such exchange or registration of transfer shall forthwith be 3213004/4 9 canceled by the Agent. The Town or the Agent may make a charge for every such exchange or registration of transfer of Bonds sufficient to reimburse it for any tax or other governmental charge required to be paid with respect to such exchange or registration of transfer, but no other charge shall be made to any Registered Owner for the privilege of exchanging or registering the transfer of Bonds under the provisions of this Resolution. Neither the Town nor the Agent shall be required to make such exchange or registration of transfer of Bonds between the fifteenth (15th) day of the month next preceding an Interest Payment Date and such Interest Payment Date, nor, in the case of any proposed redemption of Bonds, after the day next preceding the date of the mailing of notice of redemption. Section 12. Ownership of Bonds. The Registered Owner shall be deemed and regarded as the absolute owner thereof for all purposes and payment of or on account of the principal and redemption premium, if any, of any such Bond, and the interest on any such Bond shall be made only to or upon the order of the Registered Owner thereof or such Registered Owner's attorney or legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond, including the Redemption Premium, if any, and interest thereon to the extent of the sum or sums so paid. Section 13. Collection of Reassessments. The reassessments, together with the interest thereon, shall be payable in annual series corresponding in number to the number of serial maturities of the Bonds issued. An annual proportion of each unpaid reassessment shall be payable in each year preceding the date of maturity of each of the several series of Bonds issued, sufficient to pay the Bonds when due, and such proportion of each unpaid reassessment coming due in any year, together with the annual interest thereon, 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 interest after delinquency as do the general taxes on real property. All sums received from the collection of the reassessments and of the interest and penalties thereon shall be placed in the Redemption Fund. Section 14. Covenant to Foreclose. The Town hereby covenants with and for the benefit of the Registered Owners that it will (i) determine or cause to be determined, not later than August 31st of each year, whether or not any owners of property are delinquent in the payment of reassessment installments for the fiscal year ending on the preceding June 30th, and, if such delinquencies exist, the Town will order and cause to be commenced, no later than November 1st, 3213004/4 10 and thereafter diligently prosecute an action in the superior court to foreclose the lien, provided, however, that the Town shall not be required to order the commencement of foreclosure proceedings for that fiscal year if the total reassessment installment delinquency is less than five percent (5%) of the total installments due in such fiscal year, and (ii) the Reserve Fund remains at the Reserve Requirement. Notwithstanding the foregoing, if the Town determines that any single property owner is delinquent in excess of ten thousand dollars ($10,000) in the payment of the reassessment installments, then it will diligently institute, prosecute and pursue foreclosure proceedings against such property owner. The Treasurer shall notify the Council of any delinquency requiring the commencement of a foreclosure action pursuant hereto and the Council shall commence, or cause to be commenced, such proceedings. Section 15. No Duty to Advance from Available Surplus Funds. As provided in the Resolution of Intention, the Town has not obligated itself to advance available funds from the Town Treasury to cure any deficiency which may occur in the Redemption Fund. Section 16. Redemption Prior to Maturity. Each Bond, or any portion thereof in the amount of $5,000 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 at least 30 days' notice to the Registered Owner by registered or certified mail or by personal service, and by paying the principal amount thereof together 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 herein provided. The Treasurer shall cause to be called for redemption and retire Bonds upon prepayment of reassessments in amounts sufficient therefor, or whenever sufficient surplus funds are available therefor in the Redemption Fund. The Treasurer shall select Bonds for redemption in such a way that the ratio of outstanding Bonds to issued Bonds shall be approximately the same in each annual series insofar as possible. Within each annual series, Bonds shall be selected for redemption by lot. The decision of the Treasurer in selecting Bonds or portions thereof for redemption shall be conclusive in the absence of fraud. The provisions of Part 11.1 of the aforementioned Improvement Bond Act of 1915 (incorporated into the Act) are applicable to the advance payment of reassessments and to the 3213004/4 11 calling of the Bonds. The Treasurer is hereby expressly authorized to make provisions for the calling of the Bonds with the Agent in the agreement executed under Section 6 hereof. Section 17. Refunding of Bonds. The Bonds may be refunded by the Town pursuant to Divisions 11 or 11.5 of the California Streets and Highways Code upon the conditions as set forth in appropriate proceedings therefor. Section 18. Escrow Fund. The Treasurer shall establish with the Escrow Agent a special fund to be designated as the Prior Bonds (Assessment District No. 1985-1) Refunding Escrow Fund (the "Escrow Fund") to be held in trust by the Escrow Agent for the benefit of the owners of the Prior Bonds. The Escrow Fund shall be subject to, administered by, and contain those investments set forth in an escrow certificate to be executed by the Treasurer at or prior to the delivery of the Bonds. Any sums remaining in the Escrow Fund after completion of the refunding shall be transferred to the Redemption Fund. Investments of monies in the Escrow Fund shall be limited to the following investments, if and to the extent such investments are permitted under the Act and do not result in the Prior Bonds to be "federally guaranteed" within the meaning of Section 103(h) of the Internal Revenue Code of 1954, as amended and applicable Regulations: U.S. Treasury Certificates, Notes and Bonds (including State and Local Government Series -- "SLGS"), direct obligations of the Treasury which have been stripped by the Treasury itself, "CATS" and "TIGRS" and obligations issued by the following agencies which are backed by the full faith and credit of the U.S.: i , U.S. Export-Import Bank Direct obligations or fully guaranteed certificates of beneficial ownership · Farmers Home Administration Certificates of beneficial ownership 3. Federal Financinq Bank 4. Federal Housing Administration Debentures , General Services Administration Participation certificates , U.S. Maritime Administration Guaranteed Title XI financing 3213004/4 12 ,-% · New Communities Debentures U.S. government guaranteed debentures , U.S. Public Housing Notes and Bonds U.S. government guaranteed public housing notes and bonds , U.S. Department of Housing and Urban Development Project Notes Local Authority Bonds No substitution of securities in the Escrow Fund shall be made unless there has first been delivered to the Escrow Agent, (1) a verification by a Certified Public Accountant that the escrow investments, as substituted, are sufficient to pay debt service, as it becomes due, on the Prior Bonds and (2) an opinion of nationally recognized bond counsel to the effect that the substitution is permitted under the documents and the substitution has no adverse effect on the tax-exempt nature of the Bonds. The Escrow Agent is hereby authorized and directed on behalf of the Town to provide notice of redemption (advance maturity) pursuant to the Improvement Bond Act of 1915 (being Division 10 of the California Streets and Highways Code) in order that all of the Prior Bonds maturing after September 2, 1990 be duly redeemed on March 2, 1991, and to pay from the Escrow Fund the principal of and interest and redemption premiums, if any, on the Prior Bonds so called for advance maturity in accordance with said Act of 1915. Section 19. Cost of Issuance Fund. The Treasurer shall establish a special cost of issuance fund to be designated by the name of the Bonds (the "Cost of Issuance Fund"), into which shall be placed from the proceeds of the Bonds representing the total of the sums identified in the report heretofore approved and adopted by the Town as the costs incurred in the issuance of the Bonds. All moneys in said Fund shall be withdrawn only upon checks or warrants of the Town and shall be applied exclusively to the payment of the costs of conducting said reassessment proceedings and the issuance of the Bonds, except as provided in Section 28 hereof· Any sums remaining in the Cost of Issuance Fund after payment of all costs and legal charges shall be transferred to the Redemption Fund provided for herein. Section 20. Redemption Fund. The Treasurer shall establish the Redemption Fund designated by the name of the Bonds, into which shall be placed any accrued interest paid by %he Original Purchaser for the period from the Bond Date to the Closing Date and all sums received from the collection of 3z 13004/4 13 reassessments provided for in Section 13 hereof, and of the interest and penalties thereon, except as provided in Section 28 hereof. From the Redemption Fund disbursements shall be made to pay the principal or advance redemption price of the Bonds and the interest due thereon. The amount of any surplus remaining in any funds established for the payment of the Prior Bonds after completion of the refunding shall be transferred to the Redemption Fund. All revenues collected by the Town relating to the operation of the Project, net of the expense of the operation of such facilities ("net operating revenues") shall be deposited by the Town into the Redemption Fund. The net operating revenues (which are, by definition, exclusive of the monies derived from the reassessments collected by the Town from within the reassessment district) shall first be credited towards the next succeeding interest payment and then the next succeeding principal payment on the Bonds until such net operating revenues are depleted. These credits will reduce in like amount the amount of future unpaid reassessments to be collected by the Town. Section 21. Reserve Fund. Upon receipt of the proceeds from the sale of the Bonds, the Treasurer shall establish the Reserve Fund, which shall be designated by the name of the Bonds, and shall place therein an amount from proceeds derived from the sale of the Bonds or other funds equal to the Reserve Requirement. Moneys in the Reserve Fund shall constitute a trust fund for the benefit of the Registered Owners. Any income realized from the investment of moneys in the Reserve Fund shall, except as provided in Section 28 hereof, be credited to the Reserve Fund to the extent the amount therein is less than the Reserve Requirement, and, thereafter, transferred to the Redemption Fund to be used first, to the extent needed to meet any deficiency therein, and then, and in the amounts and at the times as the Council may determine, for either or both of the following pursuant to Section 10427.1 of the California Streets and Highways Code: (a) as a credit upon the reassessment in the manner provided in said Section 10427.1; (b) for advance retirement of the Bonds in the manner provided in Section 16 hereof. Moneys in the Reserve Fund shall be paid and transferred in the following amounts and at the following times and under any of the following circumstances: 3213004/4 14 (a) Whenever there are insufficient funds in the Redemption Fund to meet the next maturing installment of principal of or interest on the Bonds due to delinquent installments of reassessments, an amount necessary to pay such deficiency shall be transferred as an advance from the Reserve Fund to the Redemption Fund. The amount so advanced shall be reimbursed and deposited in the Reserve Fund from the proceeds of redemption or sale of the parcel for which payment of delinquent installments was made from the Reserve Fund. (b) Whenever a reassessment is paid in cash prior to its final maturity date pursuant to the provisions of Section 16 hereof, the amount on deposit in the Reserve Fund shall be proportionately reduced by an amount equal to the ratio of the total amount initially provided for the Reserve Fund to the total amount originally reassessed in the proceedings for the Bonds, and an amount equal to the reduction in said reassessment shall be transferred from the Reserve Fund to the Redemption Fund. (c) Whenever the balance in the Reserve Fund is sufficient to retire all the remaining outstanding Bonds, including accrued interest, if any, and Redemption Premium, collection of the principal and interest on the unpaid reassessments shall be discontinued and the Reserve Fund shall be liquidated in retirement of the Bonds, except as provided in Section 28 hereof. The same shall be credited against the remaining unpaid reassessments in the manner set forth in said Section 10427.1, and the amount apportioned to each such unpaid reassessment shall be credited against the last unpaid reassessment installment, 3213004/4 15 and, if the amount apportioned to each such parcel exceeds the amount of said last installment, then such excess shall be credited against the next preceding unpaid reassessment installment or installments until exhausted. In the event that the balance in the Reserve Fund at the time of liquidation exceeds the amount required to retire all outstanding Bonds, the excess shall be apportioned to each parcel upon which the individual reassessment remained unpaid at the time the balance in the Reserve Fund was sufficient to retire all outstanding Bonds. The payments shall be made in cash to the respective owners of the parcels except that, if the excess is not greater than one thousand dollars ($1,000), the excess may be transferred to the general fund of the Town. (d) All sums received from the collection of assessments, heretofore levied as security for the Prior Bonds, that are delinquent, if any, and all interest and penalties thereon, shall be placed in the Redemption Fund. Section 22. Investment of Fun0s. Moneys in the Escrow Fund, Redemption Fund, and the Reserve Fund shall, whenever practicable, be invested in legal investments for the Town under applicable law for the moneys held pursuant to this Resolution at the time when any of such moneys are to be invested therein. Reference is also made to Section 18 with respect to the investment of moneys in the Escrow Fund and Section 28 with respect to the Rebate Requirement (as defined in the Guidelines). Section 23. No Arbitrage. The Town shall not take, nor permit nor suffer to be taken by the Treasurer or otherwise, any action with respect to the Gross Proceeds of the Bonds that would cause the Bonds to be "arbitrage bonds" within the meaning of section 148(a) of the Code and the Regulations. Section 24. Certificate as to Non-Arbitrage. On the basis of the facts, estimates and circumstances now in existence and in existence on the Closing Date of the Bonds, as determined by the Treasurer, the Treasurer is authorized and directed to certify that it is not expected that the proceeds of the Bonds will be used in a manner that would cause the Bonds to be arbitrage bonds. Such certification shall be delivered to the Original Purchaser at the Closing Date. Section 25. Federal Guarantee Prohibition. The Town shall take noaction nor permit nor suffer any action to be taken if the result of the same would cause the Bonds to be "federally guaranteed" within the meaning of section 149(b) of the Code and the Regulations. 16 3213004/4 t'--% Section 26. Private Activity and Private Loan Limitations. The Town shall assure that no action is taken (or omitted from being taken) such that the Bonds would constitute private activity bonds, within the meaning of Section 141 of the Code, or, to the extent the requirements of Section 1313 of the Tax Reform Act of 1986 are satisfied such that Section 141 of the Code is inapplicable with respect to the Bonds, that the Bonds would constitute either "industrial development bonds" within the meaning of Section 103(b), or private loan bonds within the meaning of Section 103(o), of the Internal Revenue Code of 1954, as amended. Section 27. Rebate Fund. There is hereby created, to be held by the Treasurer as a separate fund distinct from all other funds and accounts held by the Treasurer, a Rebate Fund. (a) Deposits. All money at any time received by the Treasurer for deposit in the Rebate Fund shall be held by the Treasurer in trust, to satisfy the Rebate Requirement (as defined in the Guidelines), for payment to the United States. All amounts deposited in or on deposit in the Rebate Fund shall be governed by Section 23 and this Section 27 and by the Guidelines. The Treasurer shall cease to maintain the Rebate Fund upon receipt of an opinion of bond counsel that the Bonds are not subject to the Rebate Requirement. In that event, any remaining monies in the Rebate Fund shall be transferred to the Redemption Fund. (b) Disbursements. Any funds remaining in the Rebate Fund after redemption and payment of all Bonds outstanding, or provision made therefor satisfactory to the Agent, and any amounts described in paragraph (2) below, including accrued interest and payment of any applicable fees and satisfaction of the Rebate Requirement, shall be withdrawn by the Treasurer and transferred to the Redemption Fund. Upon the Town's written direction, which shall specify each of the following, the Treasurer shall pay to the United States, out of amounts in the Rebate Fund: (1) not later than 60 days after the end of the fifth Bond Year and each fifth Bond year thereafter, an amount equal to at least 90% of the "rebatable arbitrage" calculated as of the end of the Bond Year in accordance with Section 148(f) of the Code, including Section 148(f)(4)(B) of the Code, and Section 1.148-2T of the Proposed and Temporary Treasury Regulations issued under Section 148(f) of the Code (the "Rebate Regulations"); 32 ] 3004/4 17 (2) not later than 60 days after the retirement of the last Bond, an amount equal to 100% of the "rebatable arbitrage" calculated as of the end of such Bond Year, and any income attributable to the "rebatable arbitrage" both determined in accordance with Section 148(f) of the Code, including Section 148(f)(4)(B) of the Code, and Section 1.148-2T of the Rebate Regulations. Each payment required to be made pursuant to this subsection shall be made to the Internal Revenue Service Center, Philadelphia, Pennsylvania 19255 on or before the date such payment is due, and shall be accompanied by Internal Revenue Service Form 8038-T; and (3) for purposes of crediting amounts to the Rebate Fund or withdrawing amounts from the Rebate Fund, Nonpurpose Obligations shall be valued in the manner provided in the Guidelines. (c) Credits. Within 55 days of the end of each Bond Year, upon the Town's written direction, amounts in the Investment Earnings Fund shall be transferred to the Rebate Fund. (d) Calculation of the Rebate. The Town shall make, or arrange to have made, the calculations to determine whether any amounts need to be paid to the federal government under Section 148(f) of the Code. Section 28. Investment Earnings. There is hereby created, to be held by the Treasurer as a separate fund distinct from all other funds and accounts held by the Treasurer, an Investment Earnings Fund. Notwithstanding any other Section herein, interest earnings on investments having a yield no greater than the yield on the Bonds (as determined in the Guidelines) shall be retained in the fund or account on which they were earned, except as provided in Section 21. Notwithstanding any other Section herein, interest earnings representing yield received above the yield of the Bonds on investments having a yield greater than the yield on the Bonds (as determined in the Guidelines) shall be paid into the Investment Earnings Fund. The Treasurer shall be responsilbe for determining whether an investment has a yield greater than the yield on the Bonds, including seeking necessary advice to fulfill such duties and responsibilities. Section 29. Amendment. Without the consent of the Bondowners, the Town hereafter may amend this Resolution to add, modify or delete provisions if the same is necessary or desirable, in the opinion of Bond Counsel, to assure that 3Z ] 3004/4 18 interest on the Bonds will be excluded from gross income for Federal income tax purposes and exempt from State of California personal income taxation. Section 30. Authority of Town Officials. The Manager, Treasurer, Clerk and Director of Finance are hereby charged with the responsibility for the issuance and delivery of the Bonds. Said officers and other members of the Town staff are hereby authorized jointly and severally to execute any and all documents and do any and all things deemed necessary or advisable in order to consummate the delivery of the Bonds pursuant to the Contract of Purchase therefor and otherwise to effectuate the purposes of this Resolution. All actions mandated by this Resolution to be performed by the Treasurer may be performed by the designee thereof or such other official of the Town or independent contractor, contractor or trustee duly authorized by the Town to perform such action or actions. Section 31. Certified Copies. The Clerk shall furnish a certified copy of this Resolution to the Treasurer, to the Agent, and to the Auditor and the Tax Collector of the County of Contra Costa. 32 ] 3004/4 19 I hereby certify that the foregoing is a full, true and correct copy of a resolution duly passed and adopted by the Town Council of the Town of Danville, California at a meeting thereof held on the 20th day of November , 1990 by the following vote: AYES, and in favor thereof, GREENBERG, LANE, RITCHEY, SCHLENDORF, SHIMANSKY Noes, Councilmembers: NONE ABSENT, Councilmembers:NONE ABSTAIN, Councilmember: Mayo r ATTEST: APPROVED AS TO FORM: 3213004/4 20 EXHIBIT A UNITED STATES OF AMERICA STATE OF CALIFORNIA COUNTY OF CONTRA COSTA REGISTERED REGISTERED NUMBER R- $ TOWN OF DANVILLE LIMITED OBLIGATION IMPROVEMENT BOND SYCAMORE VALLEY REASSESSMENT DISTRICT No. 1990-1 Series No. 1990-1 INTEREST MATURITY BOND CUSIP RATE DATE DATE NUMBER REGISTERED OWNER: PRINCIPAL AMOUNT: DOLLARS Under and by virtue of the Refunding Act of 1984 for 1915 Improvement Act Bonds, being Division 11.5 of the California Streets and Highways Code (the "Act"), the Town of Danville, (the "Town"), Contra Costa County, California, will, out of the redemption fund for the payment of the bonds issued upon the unpaid portion of reassessments made for the refunding bonds more fully described in proceedings taken pursuant to Resolution of Intention No. adopted by the Town Council of the Town on , 1990, 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 and registered, unless this bond unless is authenticated and registered (i) on a day during the period from the sixteenth (16th) day of the month next preceding an interest payment date to such interest payment date, in which event it shall bear interest from such interest payment date, or (ii) on a day on or before the close of A-1 business on the fifteenth (15th) day of the month preceding September 2, 1991, in which event it shall bear interest from its date, until payment of such principal sum shall have been discharged, at the rate per annum stated above, payable semiannually on March 2 and September 2 in each year, commencing on September 2, 1991; provided, however, that if, at the time of authentication and registration, interest is in default, this bond shall bear interest from the last interest payment date to which interest has been paid or made available for payment. Both the principal hereof and redemption premium hereon are payable upon presentation and surrender hereof at the Principal Corporate Trust Office of Security Pacific National Bank, as Transfer Agent, Registrar and Paying Agent (the "Agent"), in Los Angeles, California, or its successor, and the interest hereon is payable by check or draft mailed to the registered owner hereof at such registered owner's address as it appears on the registration books of the Agent as of the fifteenth (15th) day of the month immediately preceding the interest payment date. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE REVERSE SIDE HEREOF WHICH SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH HEREIN. This bond will continue to bear interest after maturity at the Interest Rate above stated provided that it is presented at maturity and payment hereof 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 hereon will run only until maturity. This bond shall not be entitled to any benefit under the Act or the Resolution, or become valid or obligatory for any purpose, until the certificate of authentication and registration hereon shall have been dated and signed by the Agent. A-2 IN WITNESS WHEREOF, the Town of Danville has caused this bond to be signed in facsimile by its Treasurer and by its Clerk, and has caused its corporate seal to be reproduced in facsimile hereon, as of November 20,1990. TOWN OF DANVILLE Clerk [~Treasurer [SEAL] A-3 CERTIFICATE OF AUTHENTICATION AND REGISTRATION This is one of the bonds described in the within-mentioned Resolution, which has been authenticated and registered on Security Pacific National Bank, as Agent By Authorized Officer A-4 (REVERSE OF BOND) TOWN OF DANVILLE LIMITED OBLIGATION IMPROVEMENT BOND Sycamore Valley Reassessment District 1990-1 Series No. 1990-1 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 said Town under the Act and a Resolution entitled "A Resolution Providing for the Issuance of Refunding Bonds", adopted by the Town Council on 1990 (the "Resolution"), in the aggregate principal amount of ($ ) for the purpose of refunding outstanding assessment bonds and financing the issuance costs related to the refunding, as more particularly described in the proceedings, and is secured by the moneys in the redemption fund and by the unpaid portion of the reassessments made for the bonds and, including principal and interest, is payable exclusively out of the redemption fund. In the Resolution of Intention the Town has determined and declared, pursuant to Section 9519.5 of the Act, that the Town will not obligate itself to advance available funds from the Town treasury to cure any deficiency which may occur in the redemption fund. This bond is transferable by the registered owner hereof, in person or by the registered owner's attorney duly authorized in writing, at said office of the Agent, subject to the terms and conditions provided in the Resolution, 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 the same aggregate principal amount, will be issued to the transferee in exchange herefor. Bonds shall be registered only in the name of an individual (including joint owners), a corporation, a partnership or a trust. Neither the Town nor the Agent shall be required to make such exchange or registration or transfer of bonds between the 15th day of the month next preceding an interest payment date and such interest payment date, nor, in the case of any proposed redemption of bonds, after the day next preceding the date of the mailing of notice of such redemption. A-5 The Town and the Agent may treat the registered owner hereof as the absolute owner for all purposes, and 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 2nd 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 the principal amount to be redeemed, together with a premium equal to three (3) percentum of the principal, plus interest to the date of advanced maturity, unless sooner surrendered, in which event interest will be paid to the date of payment. A-6 I hereby certify that the following is a correct copy of the signed legal opinion of Brown & Wood. ~~own C~er~ [LEGAL OPINION OF BROWN & WOOD] A-7 J ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this bond, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT - Custodian (Oust) (Minor) under Uniform Gifts to Minors Act (State) Additional abbreviations may also be used though not in the above list. A-8 ASSIGNMENT For value received the undersigned do(es) hereby sell, assign and transfer unto (Print or typewrite name, address and social security or other tax identification number of assignee) the within bond and all rights thereunder, and hereby irrevocably constitute(s) and appoint(s) , attorney, to transfer the same on the bond register maintained by the Agent with full power of substitution in the premises. Dated: Signature Guaranty NOTE: Signature(s) must correspond exactly to name(s) on face thereof. When assignment is made by a guardian, trustee, executor or administrator, an officer of a corporation, or anyone in a representative capacity, proof of such person's authority to act must accompany this assignment. NOTE: The signature(s) to the Assignment must be guaranteed by a member firm of a registered national securities exchange or a commercial bank or trust company. A-9