HomeMy WebLinkAboutRESOLUTIONS - 11041986 - 86-646 BOARD OF SUPERVISORS
COUNTY OF CONTRA COSTA, CALIFORNIA
RESOLUTION NO. 86/646
RESOLUTION OF THE BOARD OF SUPERVISORS OF THE
COUNTY OF CONTRA COSTA PROVIDING FOR THE BORROWING OF
FUNDS FOR FISCAL YEAR 1986-1987 AND THE ISSUANCE AND
SALE OF 1986 TAX AND REVENUE ANTICIPATION NOTES FOR
THE CONTRA COSTA COMMUNITY COLLEGE DISTRICT
WHEREAS, pursuant to Sections 53850 to 53858, both
inclusive, of the Government Code of the State of California
(herein called the "Code" ) (being Article 7 . 6, Chapter 4,
Part 1, Division 2, Title 5 of said Code) , the Governing Board
of Contra Costa Community College District (herein called the
"District" ) has filed with this Board of Supervisors (herein
called the "Board" ) a resolution requesting that the Board
borrow money for the District by the authorization, issuance
and sale of up to Eight Million Dollars ($8, 000, 000) principal
amount of 1986 Tax and Revenue Anticipation Notes of the
District in anticipation of the receipt of taxes, income,
revenue, cash receipts and other moneys to be received by the
District for the General Fund of the District during or
attributable to Fiscal Year 1986-1987; and
WHEREAS, the Governing Board of the 'District has
found and determined that the sum of Eight Million Dollars
($8, 000,000) , when added to the interest payable thereon, does
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not exceed eighty-five per cent (85%) of the estimated amount
of the uncollected taxes, income, revenue, cash receipts and
other moneys to be received by the District for the General
Fund of the District during or attributable to Fiscal Year
1986-1987 and available for the payment of the principal of
and the interest on said notes; and
WHEREAS, the County intends to borrow, for and in
the name of the District for the purposes set forth above,
Four Million Nine Hundred Thousand Dollars ($4, 900, 000) by the
issuance of said notes; and
WHEREAS, pursuant to Section 53856 of the Code,
certain moneys which will be received by the District for the
General Fund of the District during or attributable to Fiscal
Year 1986-1987 can be pledged for the payment of the principal
of and the interest on said notes (as hereinafter provided) ;
and
WHEREAS, Bank of America National Trust and Savings
Association (herein called the "Underwriter" ) intends to
submit an offer to purchase said notes and has submitted a
form of Note Purchase Agreement (herein called the "Purchase
Agreement" ) to the Board, which form has been approved by the
District;
NOW, THEREFORE, the Board of Supervisors of the
County of Contra Costa hereby resolves as follows:
Section 1. All the above recitals are true and
correct and this Board so finds, determines and represents.
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Section 2. Solely for the purpose of anticipating
taxes, income, revenue, cash receipts and other moneys to be
received by the District for the General Fund of the District
during or attributable to Fiscal Year 1986-1987, and not
pursuant to any common plan of financing, the County hereby
determines to and shall issue ( for and on behalf of the
District) Four Million Nine Hundred Thousand Dollars
($4, 900, 000) principal amount of temporary notes under
Sections 53850 et sea. of the Code, designated "Contra Costa
Community College District 1986 Tax and Revenue Anticipation
Notes" (herein called the "Notes" ) , to be numbered from one
consecutively upward in order of issuance, to be in the
denomination of $5, 000 or $25, 000, or any combination thereof,
as provided in the Purchase Agreement, to be dated October 30,
1986, to mature (without option of prior redemption) on
September 30, 1987, and to bear interest, payable at maturity
and computed upon the basis of a 360-day year consisting of
twelve 30-day months, at a rate not to exceed 12% per annum,
as determined by the Treasurer-Tax Collector of the- County
(herein called the "County Treasurer" ) with the approval of
the District, in accordance with the Purchase Agreement. Both
the principal of and interest on the Notes shall be payable,
but only upon surrender thereof, in lawful money of the United
States of America at the principal office of Bank of America
National Trust and Savings Association in San Francisco,
California.
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Section 3 . The Notes shall be issued without
coupons and shall be substantially in the form and substance
set forth in Exhibit A attached hereto and by reference
incorporated herein, the blanks in said form to be filled in
with appropriate words or figures.
Section 4. The moneys so borrowed shall be
deposited in the General Fund of the District.
Section 5 . (A) The principal amount of the Notes,
together with the interest .thereon, shall be payable from
taxes, income, revenue, cash receipts and other moneys which
are received by the District for the General Fund of the
District during or attributable to Fiscal Year 1986-1987 and
which are available for payment thereof. As security for the
payment of the principal of and interest on the Notes, the
County (for and on behalf of the District) hereby pledges
certain secured property taxes (as hereinafter provided) which
are received by the District for the General Fund of the
District during or attributable to Fiscal Year 1986-1987, and
the principal of the Notes and the interest thereon shall
constitute a first lien and charge thereon and shall be
payable from the first moneys received by the District from
such pledged secured property taxes, and, to the extent not so
paid, shall be paid from any other taxes, income, revenue,
cash receipts and other moneys of the District lawfully
available therefor (all as provided for in Sections 53856 and
53857 of the Government Code) . In order to effect this
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pledge, the County agrees to cause to be created and
established a special fund, designated the "Contra Costa
Community College District 1986 Tax and Revenue Anticipation
Note Repayment Fund" (herein called the "Repayment Fund" ) ,
which fund will be held by the County Treasurer, acting as the
responsible agent to maintain such fund until the payment of
the principal of the Notes and the interest thereon, and the
County agrees to cause to be deposited directly therein the
first One Million Nine Hundred Sixty Thousand Dollars
($1, 960, 000) of the first installment of secured property
taxes to be received by the District which become due and
payable on November 1, 1986, and become delinquent after
December 10, 1986, and the first Two Million Nine Hundred
Forty Thousand Dollars ($2, 940, 000) , together with an amount
sufficient to pay the interest on the Notes, of the second
installment of secured property taxes to be received by the
District which become due and payable on February 1, 1987, and
become delinquent after April 10, 1987 (such pledged amounts
being hereinafter called the "Pledged Revenues" ) . In the
event that there are insufficient secured property taxes
received by the District to permit the deposit into the
Repayment Fund of the full amount of the Pledged Revenues to
be deposited, by January 31, 1987, or by May 31, 1987, as the
case may be, then the amount of any deficiency shall be
satisfied and made up on such dates from any other moneys of
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the District lawfully available for the repayment of the Notes
and interest thereon.
(B) Any moneys placed in the Repayment Fund shall
be for the benefit of the holders of the Notes, and until the
principal of the Notes and all interest thereon are paid or
until provision has been made for the payment of the principal
of the Notes at maturity with interest to maturity, the moneys
in the Repayment Fund shall be applied only for the purposes
for which the Repayment Fund is created.
(C) From the date this resolution takes effect, all
Pledged Revenues shall,, when received, be deposited in the
Repayment Fund. On September 30, 1987, the moneys in the
Repayment Fund shall be used, to the extent necessary, to pay
the principal of and interest on the Notes. Any moneys
remaining in or accruing to the Repayment Fund -after the
principal of the Notes and the interest thereon have been
paid, or provision for such payment has been made, shall be
transferred to the General Fund of the District.
(D) •Moneys in the Repayment Fund, to the greatest
extent possible, shall be invested by the County Treasurer, as
permitted by applicable California law, as it is now in effect
and as it may be amended, modified or supplemented from time
to time; provided that no such investments shall have a
maturity date later than the maturity date of the Notes.
Section 6. The County Treasurer or one or more
deputies to the County Treasurer are hereby authorized to
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manually execute the Notes and the Clerk of this Board and
County Administrator is. hereby authorized to countersign the
Notes by facsimile signature. The Clerk of this Board and
County Administrator is hereby authorized to affix the seal of
the County to the Notes either manually or by facsimile
impression thereof. The County Treasurer is hereby authorized
to cause the blank spaces of the Notes to be filled in as may
be appropriate.
Section 7. It is hereby covenanted that the County,
and its appropriate officials, have duly taken all proceedings
necessary to be taken by them, and will take any additional
proceedings necessary to be taken by them, for the levy,
collection and enforcement of the Pledged Revenues in
accordance with law for carrying out the provisions of this
Resolution and the Notes.
Section 8. All the Notes shall be sold to the
Underwriter in accordance with the terms of the Purchase
Agreement in substantially the form presented to this meeting
and by reference incorporated herein (as shall be finally
approved by the County Treasurer as hereinbelow provided) .
Section 9 . The Purchase Agreement relating to the
Notes, in substantially the form attached hereto as Exhibit B,
is hereby approved with such additions, changes or corrections
as the County Treasurer may approve upon consultation with the
District, and the County Treasurer is hereby authorized ,to
execute the Purchase Contract.
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Section 10. The distribution of the Official
Statement in connection with the offering and sale of the
Notes, dated November 4, 1986, in substantially the form
presented to this meeting with such additions, changes or
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corrections as the County Treasurer may approve upon
consultation with the District is hereby approved.
Section 11 . (a) The County will not make any use of
the proceeds of the- Notes or any other funds of the District
which would cause the Notes to be "arbitrage bonds" subject to
federal income taxation by reason of Section 148 of the
Internal Revenue Code of 1986, as amended (the "Code" ) ,
"private activity bonds" subject to federal income taxation by
reason of Section 141(a) of the Code, or obligations subject
to federal income taxation because they are "federally
guaranteed" as provided in Section 149(b) of the Code; and to
that end the County, with respect to the proceeds of the
Notes, will comply with all requirement of such sections of
the Code and all regulations of the United States Department
of the Treasury issued thereunder to the extent that such
requirements are, at the time, applicable and in effect, and
will comply with the provisions of the Letter of Instructions
delivered to the County and the District by Orrick, Herrington
& Sutcliffe, dated the date of issuance of the Notes, as
originally executed and as it may be amended from time to time
(the "Letter of Instructions" ) .
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(b) In furtherance of the covenants of the County
set forth above, the County will cause the County Treasurer to
comply with the Letter of Instructions, and the County hereby
agrees and covenants to establish and maintain with the County
Treasurer the "Contra Costa Community College District 1986
Tax and Revenue Anticipation Note Rebate Fund" and to use such
fund to segregate the Rebate Requirement ( as that term is
defined . in the Letter of Instructions) and Rebate Earnings (as
that term is defined in the Letter of Instructions) from all
others moneys of the County in accordance with the Letter of
Instructions.
Section 12 . The County Treasurer and the Clerk of
this Board of Supervisors and County Administrator are hereby
authorized and directed to execute and deliver the Notes to
the Underwriter, pursuant to the terms and conditions of the
Purchase Agreement. All actions heretofore taken by the
officers and agents of the County or this Board with respect
to the sale and issuance of the Notes are hereby approved,
confirmed and ratified and the officers and agents of the
County and this Board are hereby authorized and directed, for
and in the name and on behalf of the County, to do any and all
things and take any and all actions and execute any and all
certificates, agreements and other documents which they, or
any of them, may deem necessary or advisable in order to
consummate the lawful issuance and delivery of the Notes in
accordance with this resolution.
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PASSED AND ADOPTED this 4th day of November, 1986,
by the following vote:
AYES: Supervisors Fanden, Schroder, McPeak, Torlakson and Powers
NOES: None
ABSENT: None
Cha rman of the Board of Supervisors
ATTEST:
PHIL BATCHELOR
Clerk of the Board of Supervisors
and County Administrator of the
County of Contra Costa
By
D " ut
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CLERK' S CERTIFICATE
I, PHIL BATCHELOR, Clerk of the Board of Supervisors
and County Administrator of the County of Contra Costa,
California, do hereby certify that the foregoing is a full,
true and correct copy of a resolution duly adopted at a
regular meeting of the Board of Supervisors of said County
duly and legally held at the regular meeting place thereof on
the 4th day of November, 1986, of which meeting all of the
members of said Board of Supervisors had due notice and at
which 5 members thereof were present; that at said meeting
said resolution was introduced by Supervisor Powers
and was thereupon, upon motion of Supervisor McPeak
seconded by Supervisor Schroder adopted by the
following vote:
AYES: Supervisors Fanden, Schroder, McPeak, Torlakson and Powers
NOES: None
ABSENT: None
I do hereby further certify that I have carefully
compared the same with the original minutes of said meeting on
file and of record in my office and that said resolution is a
full, true and correct copy of the original resolution adopted
at said meeting and entered in said minutes, and that said
resolution has not been amended, modified or rescinded since
the date of its adoption and the same in now in full force and
effect.
WITNESS my hand and seal of the Board of Supervisors
of the County of Contra Costa, State of California, this 4th
day of November, 1986.
(SEAL)
PHIL BATCHELOR
Clerk of the Board of Supervisors
and County Administrator of the
County of Contra Costa
By
D' ' ut
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EXHIBIT A
UNITED STATES OF AMERICA
STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
CONTRA COSTA COMMUNITY COLLEGE DISTRICT
1986 TAX AND REVENUE ANTICIPATION NOTE
No.
FOR VALUE RECEIVED, the Contra Costa Community
College District (the "District" ) , County of Contra Costa,
California, acknowledges itself indebted to and promises to
pay to the holder hereof, at the principal office of Bank of
America National Trust and Savings Association in San
Francisco, California, the principal sum of
DOLLARS ($ )
in lawful money of the United States of America, on
September 30, 1987, together with interest thereon at the
rate of
PER CENT (_%)
per annum, upon the basis of a 360-day year consisting of
twelve 30-day months, in like lawful money from the date
hereof until payment. in full of said principal sum. Both the
principal of and interest on this Note shall be payable only
>•t In-III.D � it
upon surrender of this Note as the same shall fall due;
provided, however, no interest shall be payable for any period
after maturity during which the holder hereof fails to
properly present this Note for payment.
It is hereby certified, recited and declared that
this Note is one of an authorized issue of Notes entitled,
"Contra Costa Community College District 1986 Tax and Revenue
Anticipation Notes" (the "Notes" ) , in the aggregate principal ,
amount of Four Million Nine Hundred Thousand Dollars
($4, 900, 000) , all of like date, tenor and effect, made,
executed and given pursuant to and by authority of a
resolution of the Board of Supervisors of the County of Contra
Costa duly passed and adopted on November 4, 1986 (at the
request of the District pursuant to a resolution of the
Governing Board of the District duly passed and adopted on
September 10, 1986) under and by authority of Article 7 . 6
(commencing with Section 53850) of Chapter 4, Part 1, Division
2, Title 5 of the California Government Code, and that all
acts, conditions and things required to exist, happen and be
performed precedent to and in the issuance of this Note have
existed, happened and been performed in regular and due time,
form and manner as required by law, and that this Note,
together with all other indebtedness and obligations of the
District, does not exceed any limit prescribed by the
Constitution or statutes of the State of California.
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The principal amount of the Notes, together with the
interest thereon, shall _be payable from taxes, income,
revenue, cash receipts and other moneys which are received by
the District for the Fiscal Year 1986-1987 . As security for
the payment of the principal of and interest on this Note and
all Notes of said authorized issue, the District has pledged
certain secured property taxes to be received by the District
for the General Fund of the District during or attributable to
Fiscal Year 1986-1987 (as provided in said resolutions) , and
the principal of and the interest on this Note and all Notes
of said authorized issue shall constitute a first lien and
charge thereon and shall be payable therefrom, and to the
extent not so paid ,shall be paid from any other moneys of the
District lawfully available therefor.
IN WITNESS WHEREOF, the County of Contra Costa has
caused this Note to be executed by its Treasurer-Tax Collector
by manual signature, and countersigned by the Clerk of its
Board of Supervisors and County Administrator by facsimile
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signature and has caused its official seal to be printed
hereon this 30th day of October, 1986.
COUNTY OF CONTRA COSTA
By
Treasurer-Tax Collector
( SEAL)
Countersigned:
Clerk of the Board of Supervisors
and County Administrator
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NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT (the "Note Purchase Agreement") , dated as of
November 4, 1986 and entered into by and between the County of Contra Costa,
California, a political subdivision of the State of California (the "County")
and the Contra Costa Community College District of the County of Contra Costa,
California (the "District") , and BankAmerica Capital Markets Group (Bank of
America National Trust and Savings Association) , a national banking
association (the "Underwriter") , for the sale and delivery of $4,900,000
principal amount of Contra Costa Community College District 1986 Tax and
Revenue Anticipation Notes (the "Notes") ;
WITNESSETH:
WHEREAS, community college districts organized and existing under the laws
of the State of California are authorized by Section 53850 et seq. of the
California Government Code (the "Temporary Borrowing Law") to borrow money by
the issuance of temporary notes ; and
WHEREAS, pursuant to the Temporary Borrowing Law, such temporary notes
shall be issued in the name and on behalf of such school district by the board
of supervisors of the county, the county superintendent of which has
jurisdiction over such community college district, as soon as possible
following the receipt df a resolution of the governing board of such community
college district requesting such borrowing; and
WHEREAS, the Governing Board of Contra Costa Community College District
has heretofore adopted its . resolution finding that the District needs to
borrow funds in Fiscal Year 1986-87 and requesting the Board of Supervisors
(the "Board") of the County to authorize the issuance and sale of the Notes
under the Temporary Borrowing Law in the name and on behalf of the District;
and
WHEREAS, the Notes shall be issued in the name and on behalf of the
District pursuant to a resolution (the "County Resolution") adopted by the
Board of Supervisors of the County on November 4, 1986, and pursuant to a
resolution (the "District Resolution") adopted by the Board of Trustees of the
District on September 10, 1986 (collectively, the "Resolutions") .
NOW, THEREFORE, the parties hereto agree as follows:
Section 1 . Obligation to Purchase. Upon the terms and conditions and in
reliance upon the representations, warranties and agreements set forth herein,
the Underwriter hereby agrees to purchase for offering to the public, and the
County hereby agrees to sell to the Underwriter on behalf of the District, all
(but not less than all ) the Notes as described in the Resolutions and the form
of the official statement relating to the Notes, dated October 21 , 1986,
including the Appendices thereto (the "Official Statement") .
Section 2. Purchase Price. The purchase price of the Notes shall be
$4,881 ,000 plus accrued interest, if any, to the date of delivery thereof.
Each Note shall bear interest at a rate hereafter agreed to by and between the
Underwriter and the Treasurer-Tax Collector of the County or, in his absence,
his designee, but not in excess of twelve per cent (12%) per annum.
03490-CA345 - 1 -
Section 3. Delivery of and Payment for the Notes. The delivery of the
Notes (the "Closing") shall take place at 10:00 A.M. , California time, on
November 4, 1986, or at such other time as may be mutually agreeable to the
County, the District and the Underwriter, at such place as the County, the
District and the Underwriter shall mutually agree upon. At the Closing, the
County and the District shall deliver the Notes to the Underwriter in
definitive form, duly executed, together with the other documents hereinafter
mentioned, against delivery of a check drawn on the Federal Reserve Bank of
San Francisco, California to the order of the County (or other immediately
available funds) in the amount of the purchase price as set forth in Section 2
hereof.
Section 4. The Notes . All Notes shall be issued as authorized by the
Resolutions. The Notes shall be issued in non-registrable, bearer form,
without coupons , each of which shall be in the denominations of five thousand
dollars ($5,000.00) or Twenty-Five Thousand Dollars ($25,000.00) . The Notes
shall be dated October 30, 1986 and shall mature on September 30, 1987. The
Notes shall be issued in the aggregate principal amount of $4,900,000.
Interest on the Notes shall be payable at maturity. The Underwriter shall not
confirm the sale of any Notes unless the confirmation of sale is accompanied
or preceded by a copy of the Official, Statement, as defined below.
Section 5. Use of Documents. The District hereby authorizes the
Underwriter to use, in connection with the offer, sale and remarketing of the
Notes, a preliminary official statement and an official statement all in a
form to be jointly approved by the District and the Underwriter, this Note
Purchase Agreement, the Resolutions and all information contained herein and
therein and all other documents, certificates or statements furnished by the
District or the County to the Underwriter in connection with the transactions
contemplated by this Note Purchase Agreement. The preliminary official
statement, the official statement, and all appendices thereto, as the same may
from time to time be amended or supplemented with the consent of the
Underwriter up to the time of Closing, are referred to in this Note Purchase
Agreement collectively as the "Official Statement."
Section 6. Public Offering of the Notes. The Underwriter agrees to make
a bona fide public offering of the Notes initially at the applicable interest
rate determined in accordance with the Resolutions.
Section 7. Representations and Warranties of the County and the
District. The County and the District hereby respectively represent, warrant
and agree with the Underwriter that:
(A) Each of the County and the District is a political subdivision duly
organized and existing under and by virtue of the laws of the State of
California, and has all requisite power and authority to conduct its business
and to execute, deliver and perform all of its obligations under this Note
Purchase Agreement.
(B) (i ) At or prior to the Closing, each of the County and the District
will have taken all action required to be taken by it to authorize the
issuance and delivery of the Notes: (ii ) each of the County and the District
has full legal right, power and authority to enter into this Note Purchase
Agreement and to adopt the County Resolution and the District Resolution,
respectively, (iii ) the County has full legal right, power and authority to
issue in the name and on behalf of the District the Notes and to deliver the
0309c-CA305 - 2 -
Notes to the Underwriter; (iv) the execution and delivery or adoption of, and
the performance by' the County and the District of the obligations contained
in, the Notes, the Resolutions and this Note Purchase Agreement have been duly
authorized and such authorization shall be in full force and effect at the
time of Closing; (v) this Note Purchase Agreement has been duly executed and
delivered and constitutes the valid and legally binding obligation of the
County and the District enforceable against them respectively, except that
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws in effect from time to time
affecting the rights of creditors generally and by application of general
principles of equity; and (vi ) the County and the District have each duly
authorized the consummation by it of all transactions contemplated by this
Note Purchase Agreement.
(C) No consent, approval , authorization, license, order, filing,
registration, qualification, election or referendum, of or by any person,
organization, court or governmental agency or public body whatsoever is
required in connection with the issuance, delivery or sale of the Notes or the
consummation of the other transactions effected or contemplated thereby or
hereby, except for such actions as may be necessary to be taken to qualify the
Notes for offer and sale under the Blue Sky or other securities laws and
regulations of such states and jurisdictions of the United States as the
Underwriter may designate.
(D) All Notes will be issued in the hame and on behalf of the District
only, under and within the limits of Sections 53850 et seg. of the California
Government Code (the "Act") , and, as such will be general obligations of the
District, but payable only out of certain taxes, income, revenue, cash
receipts and other moneys to be received by the District during, or
attributable to, fiscal year 1986-87 and legally available for the payment
thereof. Under the Resolutions certain moneys are pledged to payment of the
Notes (the "Pledged Moneys") and such pledge constitutes a first lien on the
Pledged Moneys.
(E) To the best of the knowledge of the County and the District, the
issuance of the Notes, the execution, delivery and performance of the Note
Purchase Agreement, the Resolutions and the Notes, and compliance with the
provisions hereof and thereof do not conflict with or constitute on the part
of the County or the District a violation of or default under the Constitution
of the State of California or any existing law, charter, ordinance,
regulation, decree, order or resolution and do not conflict with or result in
a violation or breach of, or constitute a default under any agreement,
indenture, mortgage, lease or other instrument to which the County or the
District is a party or by which either of them is bound or to which either of
them is subject.
(F) To the best of the knowledge of the County and the District, there is
no action, suit, proceeding, inquiry or investigation, at law or in equity,
before any court or public body, pending or threatened against the County or
the District; (i ) in any way affecting the existence of the County or the
District or in any way challenging the respective powers of the several
offices of the County or the District or the entitlement of the officials of
the County or the District to such offices ; or (ii ) seeking to restrain or
enjoin the sale, issuance or delivery of any of the Notes, the application of
the proceeds of the sale of the Notes, or the collection of revenues or assets
of the District pledged or to be pledged or available to pay the principal of
oaaso-cnsas _ 3
and interest on the Notes, or the pledge thereof, or in any way contesting or
affecting the validity or enforceability of the Notes, this Note Purchase
Agreement, or the Resolutions, or contesting the powers of the County or the
District or their authority with respect to the Notes, the Resolutions, or
this Note Purchase Agreement; or (iii ) in which a final adverse decision could
(a) materially and adversely affect the operations of the County or the
District or the consummation of the transaction contemplated by this Note
Purchase Agreement or the Resolutions, or (b) declare this Note Purchase
Agreement to be invalid or unenforceable in whole or in material part.
(G) The audited balance sheet of the District as of June 30, 1985 and the
related statements of revenues, expenditures and changes in financial position
for the fiscal year ended on such date, as set forth in the Official
Statement, are true, complete and correct and fairly present the financial
condition of the District as of such date and the results of its operations
for such fiscal year. There has been no material adverse change in the
financial condition of the District since June 30, 1985 except as described in
the Official Statement. The Official Statement, as of its date, does not
contain any untrue statement of material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that this
representation does not apply to any information concerning the Underwriter
furnished by the Underwriter in writing specifically for inclusion in the
Official Statement. The representations, warranties and agreements in this
subsection (G) are solely those'of the District.
(H) Between the date hereof and the Closing, without the prior written
consent of the Underwriter, the County will not have issued in the name and on
behalf of the District any bonds, notes or other obligations for borrowed
money except for such borrowings as may be described in or contemplated by the
Official Statement.
(I) Neither the .County nor the District has been notified of any listing
or proposed listing by the Internal Revenue Service to the effect that the
County or the District is a bond issuer whose arbitrage certificates may not
be relied upon.
(J) Any certificates signed by any official of the County or the District
and delivered to the Underwriter shall be deemed a representation and warranty
by the County or the District, as the case may be, to the Underwriter as to
the statements therein but not of the person signing the same.
Section 8. Covenants of the County and the District. The County and
District respectively covenant and agree with the Underwriter that:
(A) The District will punctually pay or cause to be paid the principal of
and interest on the Notes in strict conformity with the terms of the
Resolutions and the Notes and the County and the District will faithfully
observe and perform all of the conditions, covenants and requirements of the
Notes, the Resolutions and this Note Purchase Agreement. The District will
pay, when due, all principal of and interest on the Notes. The District will
cause the Pledged Moneys to be deposited with the County Treasurer-Tax
Collector by the dates and in the amounts contemplated by the Resolutions .
0349c-CA345 - 4 -
(B) The County will not incur any indebtedness for money borrowed in the
name and on behalf of the District which may or must be repaid from the
1986-87 Pledged Moneys unless the Board of Supervisors receives an opinion of
counsel to the effect that such indebtedness would not affect or be on parity
with or superior to the lien on the Pledged Moneys in favor of the Notes.
(C) The District and the County will furnish such information, execute
such instruments and take such other action in cooperation with the
Underwriter if and as the Underwriter may reasonably request in order (i ) to
qualify the Notes for offer and sale under the Blue Sky or other securities
laws and regulations of such states and jurisdictions of the United Sates as
the Underwriter may designate and (ii ) to determine the eligibility of the
Notes for investment under the laws of such states and other jurisdictions,
and will , if requested by the Underwriter, use their best efforts to continue
such qualifications in -effect so long as required for distribution of the
Notes.
(D) The District will apply the proceeds from the sale of the Notes for
the purposes specified in the Resolutions.
(E) Neither the County nor the District will take any action or fail to
take any action with respect to investment or proceeds of the Notes or in any
other respect which will result in constituting the Notes as "arbitrage bonds"
within the meaning of that term as used in Section 148(a) of the Internal
Revenue Code of 1986, to' the extent that such requirements are at the time
applicable and in effect, or which would violate any Treasury regulations
thereunder.
Section 9. Conditions to Obligations of Underwriter at Closing. The
Underwriter has entered into this Note Purchase Agreement in reliance upon the
representations and warranties of the District and the County contained herein
and the performance by the District and the County of their obligations
hereunder, as of the date hereof and as of the date of the Closing. The
obligation of the Underwriter to purchase the Notes at the Closing is and
shall be subject, at the option of the Underwriter, to the following further
conditions:
(A) The representations and warranties of the District and \the County
contained herein shall be true, complete and correct in all material respects
at the date hereof and at and as of the Closing, as if made at and as of the
Closing, and the statements made in all certificates and other documents
delivered to the Underwriter at the Closing and otherwise pursuant hereto
shall be true, complete and correct in all material respects at and as of the
Closing;
(B) At and as of the Closing (i ) the Resolutions shall be in full force
and effect and shall not have been amended, modified or supplemented except as
may have been agreed to in writing by the Underwriter; (ii ) all actions under
the Temporary Borrowing Law which, in the opinion of Bond Counsel , shall be
necessary in connection with the transactions contemplated hereby, shall have
been duly taken and shall be in full force and effect; and ( iii ) the County
and the District shall perform or have performed all of their obligations
required under or specified in the Resolutions and this Note Purchase
Agreement to be performed at or prior to the Closing;
0349c-CA345 - 5 -
(C) To the best knowledge of the County and the District, there shall be
no action, suit proceeding, inquiry or investigation, at law or in equity,
before or by any court or public body, pending or threatened against the
County and the District which has any of the effects described in paragraph
(E) of Section 7 hereof or contesting in any way the completeness or accuracy
of the Official Statement;
(D) No order, decree or injunction of any court of competent
jurisdiction, nor any order, ruling or regulation of the Securities and
Exchange Commission, shall have been issued or made with the purpose or effect
of prohibiting the issuance, offering, or sale of the Notes as contemplated
hereby and no legislation shall have been enacted, or a bill favorably
reported for adoption, or a decision by a court established under Article III
of the Constitution of the United States rendered, or a ruling, regulation,
proposed regulation or official statement by or on behalf of the Securities
and Exchange Commission or other governmental agency having jurisdiction of
the subject matter shall be made or issued, to the effect that the Notes or
any other securities of the County or of any similar body of the type
contemplated herein are not exempt from the registration, qualification or
other requirements of the Securities Act of 1933, as amended and as then in
effect, or of the Trust Indenture Act of 1939, as amended and as then in
effect; and
(E) At or prior to the Closing, the Underwriter shall have received three
copies of the following documents in each case dated at and as of the Closing
and satisfactory in form and substance to the Underwriter:
(1 ) An approving opinion of Bond Counsel , as to the Notes, addressed
to the County, the District and the Underwriter;
(2) A supplemental opinion of Bond Counsel , addressed to the
Underwriter, to the effect that:
(i ) This Note Purchase Agreement has been duly authorized,
executed and delivered by the County and the District and constitutes the
valid and legally binding obligation of each of them respectively, enforceable
against them inaccordance with its terms, except that enforceability thereof
may be limited by applicable bankruptcy, insolvency, moratorium and other laws
in effect from time to time affecting the rights of creditors generally and by
application of general principles of equity; and
(ii) The statements contained in the Official Statement under
the captions "The Notes," "Legal Opinions," "Legality for Investment in
California," "Constitutional Limitations on Taxes and Appropriations," and
"Tax Exemption" insofar as such statements purport to summarize the Notes , the
Resolutions and the Act, present a fair and accurate summary thereof for the
purpose of use in the Official Statement;
(3) A certificate signed by appropriate officials of the County and
of the District to the effect that (i ) the representations , warranties and
agreements of the County and the District herein are true, complete and
correct in all material respects as of the date made and as of the Closing;
(ii ) the County and the District have performed all their obligations required
under or specified in the Resolutions and this Note Purchase Agreement to be
performed at or prior to the Closing; (iii ) to his or her knowledge, there is
0349 -CA345 _ 6
no action, suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court or public body, pending or threatened, against the
County or the District, which has any of the effects described in paragraph
(E) of Section 7 hereof or contesting in any way the completeness or accuracy
of the Official Statement (but in lieu of or in conjunction with such certifi-
cation the Underwriter may, in its sole discretion, accept certificates or
opinions of counsel to the County and the District or Bond Counsel that in
their opinion the issues raised in any such pending or threatened litigation
are without substance and that the contentions of all plaintiffs therein are
without merit; and (iv) such official of the District has reviewed the
Official Statement and on such basis certifies that the Official Statement
does not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstance under which they were made, not misleading.
(4) An arbitrage certificate of the District, in form and substance
satisfactory to Bond Counsel , signed by an appropriate official of the
District;
(5) Evidence satisfactory to the Underwriter that at and as of the
Closing the Notes have a rating of at least MIG-2 from Moody' s Investors
Service, Inc.
(6) Certificates, together- with fully executed copies of the County
Resolution, of the' Clerk of the Board of Supervisors of the County and of the
County Counsel , collectively to the effect that:
(i ) such copy is a true and correct copy of the County
Resolution; and
(ii ) The County Resolution was duly adopted and has not been
modified, amended, rescinded or revoked and is in full force and effect at and
as of the Closing, except for amendments, if any, adopted with the consent of
the Underwriter;
(7) A certificate, together with a fully executed copy of the
District Resolution, of the Clerk of the Board of Trustees of the District to
the effect that:
(i ) such copy is a true and correct copy of ' the District
Resolution; and
(ii ) The District Resolution was duly adopted and has not been
modified, amended, rescinded or revoked and is in full force and effect at and
as of the Closing, except for amendments, if any, adopted with the consent of
the Underwriter;
(8) Such additional legal opinions, certificates, proceedings,
instruments and other documents as the Underwriter or Bond Counsel may
reasonably request to evidence compliance by the County and the District with
legal requirements, the truth and accuracy, at and as of the closing, of the
representations, warranties and agreements of the County and the District
herein contained and the statements contained in the Official Statement, and
the due performance and satisfaction by the County and the District at or
prior to such time of all agreements then to be performed and all conditions
0349c-CA345 - 7 -
then to be satisfied by them, provided that Bond Counsel shall not be required
to render an opinion as to the truth and accuracy of the representations ,
warranties and agreements of the County and the District contained herein or
of the statements contained in the Official Statement except as set forth in
subparagraph (E)(2) of this Section.
Section 10. Termination of Obligations of the Underwriter. If the County
or the District shall be unable to satisfy the conditions set forth in Section
9 the obligations of the Underwriter under this Note Purchase Agreement may be
terminated by the Underwriter by notice to the County and the District at, or
at any time prior to, the Closing. Notwithstanding any provision herein to
the contrary, the performance of any and all obligations of the County and the
District hereunder and the performance of any and all conditions contained
herein for the benefit of the Underwriter may be waived by the Underwriter in
writing in its sole discretion.
The Underwriter shall also have the right to terminate, in their sole
discretion, their obligations under this Note Purchase Agreement, by notice to
the County and the District at, or at any time prior to, the Closing, if
between the date hereof and the Closing: (i ) any event occurs or information
becomes known, which, in the reasonable professional judgment of the
Underwriter, makes untrue any statement of a material fact set forth in the
Official Statement or results in an omission to state a material fact
necessary to make the statements made therein, in light of the circumstances
under which they are made, not misleading; (ii ) the market for the Notes or
the market price of the Notes or the ability of the Underwriter to enforce
contracts for the sale of the Notes shall have been materially and adversely
affected, in the reasonable professional judgment of the Underwriter, by (a)
legislation enacted by the Congress of the United States, or passed by either
House of Congress , or favorably reported for passage to either House of
Congress by any Committee of such House to which such legislation has been
referred for consideration, or by the legislature of the State, or a decision
rendered by a court of the United States or the State or by the United States
Tax Court, or a ruling, order or regulation (final , temporary or proposed)
made by the Treasury Department of the United States or the Internal Revenue
Service or other federal or State authority, which would have the effect of
changing, directly or indirectly, the federal income tax consequences (other
than as provided in the Tax Reform Act of 1986) or State income tax
consequences of interest on obligations of the general character of the Notes
in the hands of the holders thereof, or (b) any new outbreak of hostilities or
other national or international calamity or crisis, the effect of such
outbreak, calamity or crisis on the financial markets of the United States
being such as, in the reasonable professional judgment of the Underwriter,
would affect materially and adversely the ability of the Underwriter to market
the Notes, or (c) a general suspension of trading on the New York Stock
Exchange, or fixing of minimum, or maximum prices for trading or maximum
ranges for prices for securities on the New York Stock Exchange, whether ° by
virtue of a determination by that exchange or by order of the Securities and
Exchange Commission or any other governmental authority having jurisdiction,
or (d) a general banking moratorium declared by Federal , State or New York
authorities having jurisdiction; or ( iii ) additional material restrictions not
in force or being enforced .as of the date hereof shall have been imposed upon
trading in securities generally by any governmental authority or by any
national securities exchange which, in the reasonable professional judgment of
the Underwriter, materially and adversely affect the market price for the
Notes.
0349C-CA345 _ 8
The arrangements and agreements contained herein shall terminate
automatically upon the payment in full of the Notes and may not be sooner
terminated except as otherwise specifically provided in this Note Purchase
Agreement. The agreements of the County and the District to pay expenses and
compensate the Underwriter as provided elsewhere in this Note Purchase
Agreement shall survive termination of this Note Purchase Agreement.
Section 11 . Conditions to Obligations of the County and the District.
The performance by the County and the District of their obligations under this
Note Purchase Agreement with respect to issuance, sale and delivery of the
Notes to the Underwriter is conditioned . upon (i ) the performance by the
Underwriter of its obligations hereunder; and (ii) receipt by the County and
the District of opinions and certificates being delivered at or prior to the
Closing by persons and entities other than the County and the District.
Section 12. Expenses. Unless the obligations of the Underwriter under
this Note Purchase Agreement are terminated by the Underwriter at or prior to
the Closing for any reason permitted by this Note Purchase Agreement, the
Underwriter shall pay all the costs and expenses incurred in connection with
the financing, including advertising and selling expenses , the cost of
printing or reproducing the Official Statement and the Notes and rating agency
fees, and any other related expenses.
Section 13. Parties in Interest; Survival of Representations and
Warranties. This Note Purchase Agreement when accepted by the County and the
District in writing as heretofore specified shall constitute the entire
agreement among the County, the District and the Underwriter and is made
solely for the benefit of such parties (including their respective successors
and assigns) . No other person shall acquire or have any right hereunder or by
virtue hereof. All of the representations and warranties of the County and
the District in this Note Purchase Agreement shall survive regardless of (a)
any investigation or any statement in respect thereof made by or on behalf of
the Underwriter, (b) delivery of any payment by the Underwriter for the Notes
hereunder, and (c) any termination of this Note Purchase Agreement.
Section 14. Execution in Counterparts . This Note Purchase Agreement may
be executed in counterparts each of which shall be regarded as an original and
all of which shall constitute one and the same document.
Section 15. Applicable Law. This Note Purchase Agreement shall be
interpreted under, governed by and enforced in accordance with the laws of the
State of California.
Section 16. Notices. Any notices to be given to the Underwriter under
the Note Purchase Agreement shall be given in writing to Bank of America
National Trust and Savings Association, Public Finance Department #3295, at
555 California Street, San Francisco, California, 94104, Attn: Mr. Thomas W.
McQueen. Any notices to be given to the County shall be given in writing to
the County at the office of the Treasurer-Tax Collector of the County of
Contra Costa, 625 Court Street, Martinez, California 94553, Attn:
Treasuer-Tax Collector. Any notices to be given to the District shall be
given in writing to the District at 500 Court Street, Martinez, California
94553, Attn: Comptroller.
0349c-CA345 - 9 -
Section 17. No Assignment. The Note Purchase Agreement has been made by
the County, the District and the Underwriter, and no person other than the
County, the District and the Underwriter or their successors or assigns shall
acquire or have any right under or by virtue of the Note Purchase Agreement.
All of the representations , warranties and agreements contained in the Note
Purchase Agreement shall survive the delivery of and payment by the
Underwriter for the Notes and any termination of the Note Purchase Agreement.
Section 18. Severability. In the event any provision of the Note
Purchase Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
Section 19. Execution. This Note Purchase Agreement may be executed
simultaneously in several counterparts , each of which shall be an original and
all of which shall constitute the same instrument.
BANKAMERICA CAPITAL MARKETS GROUP
(Bank of America NT&SA)
By
Accepted by:
CONTRA COSTA
COMMUNITY COLLEGE DISTRICT COUNTY OF CONTRA COSTA
By By
Comptroller [Deputy] Treasurer-Tax Collector
0349c-CA345 - 10 -