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HomeMy WebLinkAboutRESOLUTIONS - 10181994 - 94-516 6-7 BOARD OF SUPERVISORS COUNTY OF CONTRA COSTA, CALIFORNIA RESOLUTION NO.94/516 RESOLUTION OF THE BOARD OF SUPERVISORS OF THE COUNTY OF CONTRA COSTA PROVIDING FOR THE BORROWING OF FUNDS FOR FISCAL YEAR 1994-95 AND THE ISSUANCE AND DIRECTING THE PUBLIC SALE OF 1994-95 TAX AND REVENUE ANTICIPATION NOTES FOR THE MT. DIABLO UNIFIED SCHOOL DISTRICT WHEREAS, pursuant to Sections 53850 to 53858, both inclusive, of the Government Code of the State of California (herein called the "Government Code") (being Article 7.6, Chapter 4, Part 1, Division 2, Title 5 of said Government Code), the Board of Education of the Mt. Diablo Unified School District (the "District") has filed with this Board of Supervisors (the 'Board") a resolution requesting that the Board borrow money for the District by the authorization, issuance and sale of not to exceed twenty million dollars ($20,000,000)principal amount of 1994-95 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 1994-95; and WHEREAS, the Board of Education of the District has found and determined that the sum of twenty million dollars ($20,000,000), when added to the interest payable thereon, does 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 1994-95 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, an amount not to exceed twenty million dollars ($20,000,000) by the issuance of said notes, and to provide for the public sale of said notes to the highest bidder therefor; and WHEREAS, pursuant to Section 53856 of the Government Code, certain taxes, income, revenue, cash receipts and other moneys which will be received by the District for the General Fund of the District during or attributable to Fiscal Year 1994-95 can be pledged for the payment of the principal of and the interest on said notes (as hereinafter provided); SF2356431 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. 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 1994-95, and not pursuant to any common plan of financing, the County hereby determines to and shall issue (for and on behalf of the District) not to exceed twenty million dollars ($20,000,000) principal amount of temporary notes under Sections 53850 et M. of the Government Code, to be designated the "Mt. Diablo Unified School District 1994-95 Tax and Revenue Anticipation Notes" (the "Notes"). The Notes shall be issued in fully registered form in denominations of$5,000 or any integral multiple of$5,000, shall be dated the date of their delivery, shall mature (without option of prior redemption) on the day that is one year subsequent to their date, and shall bear interest (payable at maturity and computed on the basis of a 360-day year of twelve 30-day months) at the rate determined at the time of the sale thereof, but not to exceed six per cent (6%) per annum. Both the principal of and interest on the Notes shall be payable to the registered owners of the Notes, but only upon surrender thereof, in lawful money of the United States of America at the office of the Treasurer-Tax Collector of the County (the "Treasurer") in Martinez, California. The aggregate principal amount, the interest rate, the delivery date, and the final maturity date of the Notes, shall be as determined by the Treasurer upon or prior to the sale of the Notes, and shall be designated by the Treasurer in a Certificate of Award to be executed upon award of the Notes to the purchaser thereof. Section 3. (A) The Notes shall be initially issued and registered in the name of "Cede & Co.," as nominee of The Depository Trust Company, New York, New York (hereinafter, Cede & Co. and The Depository Trust Company are referred to collectively as "The Depository Trust Company") and shall be evidenced by a single Note certificate, in accordance with procedures of The Depository Trust Company. Registered ownership of the Notes, or any portion thereof, may not thereafter be transferred except as set forth in Section 3(B). (B) Registered ownership of the Notes, or any portions thereof, may not thereafter be transferred except: (i) to any successor of The Depository Trust Company, or its nominee, or of any substitute depository designated pursuant to clause (ii) of this subsection (B) (a "Substitute Depository"); provided, that any successor of The Depository Trust Company or Substitute Depository shall be qualified under any applicable laws to provide the service proposed to be provided by it; SF2-35643.1 2 (ii) to any Substitute Depository not objected to by the Treasurer, upon (1) the resignation of The Depository Trust Company or its successor (or any Substitute Depository or its successor) from its functions as depository, or (2) a determination by the Treasurer to substitute another depository for The Depository Trust Company (or its successor) because it is no longer able to carry out its functions as depository; rop vided, that any such Substitute Depository shall be qualified under any applicable laws to provide the services proposed to be provided by it; or (iii) to any person as provided below, upon (1) the resignation of The Depository Trust Company or its successor (or any Substitute Depository or its successor) from its functions as depository, or (2) a determination by the Treasurer to discontinue using a depository. (C) In the case of any transfer pursuant to clause (i) or clause (ii) of subsection (B) of this section, upon receipt of all outstanding Notes by the Treasurer, a single new Note, which the County shall prepare or cause to be prepared, shall be executed and delivered and registered in the name of such successor or such Substitute Depository, or its nominee, as the case may be. In the case of any transfer pursuant to clause (iii) of subsection (B) of this section, upon receipt of all outstanding Notes by the Treasurer, new Notes, which the County shall prepare or cause to be prepared, shall be executed and delivered in such denominations and registered in the names of such persons as are determined by the Treasurer. (D) The County and the Treasurer shall be entitled to treat the person in whose name any Note is registered as the owner thereof for all purposes of this resolution and for purposes of payment of principal and interest on such Note, notwithstanding any notice to the contrary received by the Treasurer or the County; and the County and the Treasurer shall not have responsibility for transmitting payments to, communicating with, notifying, or otherwise dealing with any beneficial owners of the Notes. - Neither the County nor the Treasurer shall have any responsibility or obligation, legal or otherwise, to any such beneficial owners or to any other party, including The Depository Trust Company or its successors (or any Substitute Depository or its successor), except to the registered owner of any Notes, and the Treasurer may rely conclusively on its records as to the identity of the registered owners of the Notes. (E) Notwithstanding any other provisions of this resolution and so long as all outstanding Notes are registered in the name of The Depository Trust Company or its registered assigns, the County and the Treasurer shall cooperate with The Depository Trust Company, as sole registered owner, and its registered assigns in effecting payment of the principal of and interest on the Notes by arranging for payment in such manner that funds for such payments are properly identified and are made available on the date they are due; all in accordance with the letter of representations from the County to The Depository Trust Company, the provisions of which the Treasurer may rely upon to implement the foregoing procedures notwithstanding any inconsistent provisions herein. SF2-35643.1 3 (F) In the case of any transfer pursuant to clause (iii) of subsection (B) of this section, any Note may, in accordance with its terms, be transferred or exchanged for a like aggregate principal amount of Notes in authorized denominations, upon the books required to be kept by the Treasurer pursuant to the provisions hereof, by the person in whose name it is registered, in person or by such person's duly authorized attorney, upon surrender of such Note for cancellation, and, in the case of a transfer, accompanied by delivery of a written instrument of transfer, duly executed in form approved by the Treasurer. Whenever any Note shall be surrendered for transfer or exchange, the County shall execute and the Treasurer shall deliver a new Note or Notes of authorized denominations for a like aggregate principal amount. The Treasurer shall require the registered owner requesting such transfer or exchange to pay any tax or other governmental charge required to be paid with respect to such transfer or exchange. (G) The Treasurer will keep or cause to be kept, at its office in Martinez, California, sufficient books for the registration and transfer of the Notes, which shall at all times be open to inspection by the County. Upon presentation for such purpose, the Treasurer shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on such books, Notes as hereinbefore provided. (H) If any Note shall become mutilated, the County, at the expense of the owner of such Note, shall execute, and the Treasurer shall thereupon deliver a new Note of like tenor bearing a different number in exchange and substitution for the Note so mutilated, but only upon surrender to the Treasurer of the Note so mutilated. If any Note shall be lost, destroyed or stolen, evidence of the ownership thereof, and of such loss, destruction or theft may be submitted to the County and the Treasurer and, if such evidence be satisfactory to both and indemnity satisfactory to them shall be given, the County, at the expense of the owner, shall execute, and the Treasurer shall thereupon deliver a new Note of like tenor and bearing a different number in lieu of and in substitution for the Note so lost, destroyed or stolen (or, if any such Note shall have matured, instead of issuing a substitute Note, the Treasurer may pay the same without surrender thereof). The Treasurer may require payment by the registered owner of a Note of a sum not exceeding the actual cost of preparing each new Note issued pursuant to this paragraph and of the expenses which may be incurred by the County and the Treasurer. Any Note issued under these provisions in lieu of any Note alleged to be lost, destroyed or stolen shall.constitute an original additional contractual obligation on the part of the County whether or not the Note so alleged to be lost, destroyed or stolen shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Resolution with all other Notes secured by this Resolution. (I) All Notes surrendered for payment or registration of transfer, if surrendered to any person other than the Treasurer, shall be delivered to the Treasurer and shall be promptly cancelled by it. The County may at any time deliver to the Treasurer for cancellation any Notes previously delivered hereunder which the County may have acquired in any manner whatsoever, and all Notes so delivered shall promptly be cancelled by the Treasurer. SF2-35643.1 4 No Note shall be delivered in lieu of or in exchange for any Notes cancelled as provided herein, except as expressly permitted hereunder. All cancelled Notes held by the Treasurer shall be disposed of as directed by the County. Section 4. 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 5. There is hereby established a separate fund in the County treasury for the purpose of ensuring the application of the proceeds representing principal received from the sale of the Notes for the purpose specified in Section 2 hereof for which the Notes are to be issued, which separate fund is hereby designated the "Mt. Diablo Unified School District 1994-95 Tax and Revenue Anticipation Note Proceeds Fund" (the "Proceeds Fund"). The District shall, immediately upon receiving the proceeds of the sale of the Notes, place in the Proceeds Fund all amounts representing principal received from such sale. All money held by the Treasurer in the Proceeds Fund shall be invested as permitted by the Government Code, and the proceeds of such investments shall be retained in the Proceeds Fund. Amounts in the Proceeds Fund shall be withdrawn and deposited in the General Fund of the District, and expended for any purpose for which the District is authorized to expend funds from its General Fund, but only after exhausting funds otherwise available for such purposes (which are not restricted funds) and only to the extent that on any given day such other funds are not then available, and for purposes of this paragraph, otherwise available amounts excludes amounts that are held or set aside in a reasonable working capital reserve not exceeding five per cent (5%) of the District's total working capital expenditures from its available funds in Fiscal Year 1993-94; ron vided, that if on the date that is six (6) months from the date of issuance of the Notes, all amounts in the Proceeds Fund (including investment earnings thereon) shall not have been so withdrawn and spent, the District shall promptly notify Orrick, Herrington & Sutcliffe ("Bond Counsel"), and, to the extent of.its power and authority, comply with the instructions from Bond Counsel as to the means of satisfying the rebate requirements of Section 148 of the Internal Revenue Code of 1986. For purposes of this paragraph, the "proceeds" of the Notes are equal to the initial offering price of the Notes to the public, as certified by the purchaser of the Notes. Section 6. (A) The principal of and interest on the Notes 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 for the Fiscal Year 1994-95 and which are lawfully available for the payment of current expenses and other obligations of the District (the "Unrestricted Revenues"). (B) As security for the payment of the principal of and interest on the Notes, the County (for and on behalf of the District) hereby covenants to deposit in trust in a special fund designated as the "Mt. Diablo Unified School District 1994-95 Tax and Revenue Anticipation Note Repayment Fund" (the "Repayment Fund"), which fund will be held by the SF2-35643.1 5 Treasurer acting as the responsible agent to maintain such fund until the payment of the principal of the Notes and the interest thereon: (i) an amount equal to fifty per cent (50%) of the principal amount of the Notes from the Unrestricted Revenues to be received by the District during the month ending April 30, 1995, and (ii) an amount equal to fifty per cent (50%) of the principal amount of the Notes, together with an amount sufficient to pay the interest on the Notes at maturity, from the Unrestricted Revenues to be received by the District during the month ending May 31, 1995, together with an amount sufficient (net of anticipated earnings on money in the Repayment Fund),to satisfy and make up any deficiency in the Repayment Fund. The amounts pledged by the County (for and on behalf of the District) for deposit into the Repayment Fund from the Unrestricted Revenues received, during each indicated month are hereinafter called the "Pledged Revenues." (C) In the event that there have been insufficient Unrestricted Revenues received by the District by the third business day prior to the end of either such month to permit the deposit into the Repayment Fund of the full amount of the Pledged Revenues required to be deposited with respect to such month, then the amount of any deficiency in the Repayment Fund shall be satisfied and made up from any other money of the District lawfully available for the payment of the principal of the Notes and the interest thereon (all as provided in Sections 53856 and 53857 of the Government Code) (the "Other Pledged Moneys") on such date or thereafter on a daily basis, when and as such Pledged Revenues and Other Pledged Moneys are received by the District. (D) Any money placed in the Repayment Fund shall be for the benefit of the registered owners 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 money in the Repayment Fund shall be applied only for the purposes for which the Repayment Fund is created. (E) All Pledged Revenues, and any other deposits required to be made into the Repayment Fund, shall, when received, be deposited in the Repayment Fund. On the date of maturity of the Notes, the money in the Repayment Fund shall be used, to the extent necessary, to pay the principal of and interest on the Notes. Any money 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. (F) Money in the Repayment Fund, to the greatest extent possible, shall be invested by the 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. Section 7. The Treasurer or a duly appointed deputy Treasurer is hereby authorized to manually execute the Notes and the Clerk of the Board and County Administrator or a duly appointed deputy is hereby authorized to manually countersign the Notes. The Clerk of the Board and County Administrator or a duly appointed deputy is hereby authorized to affix SF2-35643.1 6 the seal of the County to the Notes by manual impression thereof. The Treasurer is hereby authorized to cause the blank spaces of the Notes to be filled in as may be appropriate. Section 8. 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 9. (A) The District has represented that it shall not take any action, or fail to take any action, if such action or failure to take such action would adversely affect the exclusion from gross income of the interest payable on the Notes under Section 103 of the Internal Revenue Code of 1986, as amended (as used in this Section 9, the "Code"). Without limiting the generality of the foregoing, the District has covenanted that it will comply with the requirements of the Tax Certificate of the District with respect to the Notes, to be entered into by the District as of the date of issuance of the Notes, and further stipulates that such representation and covenant shall survive payment in full or defeasance of the Notes. (B) In the event the Notes shall be subject to the rebate requirements of Section 148 of the Code, the District shall be responsible for making all calculations in a reasonable and prudent fashion relating to any rebate of excess investment earnings on the proceeds of the Notes due to the United States Treasury, and the Treasurer shall, upon the direction of the District, segregate and set aside from the lawfully available sources held by the Treasurer on behalf of the District, the amount such calculations indicate may be required to be paid to the United States Treasury, and shall otherwise at all times, upon the direction of the District, do and perform all acts and things necessary and within its power and authority, including complying with each applicable requirement of Section 103 and Sections 141 through 150 of the Code and complying with the instructions of Bond Counsel to assure that interest paid on the Notes shall, for the purposes of federal income taxes and California personal income taxation, be excludable from the gross income of the recipients thereof and exempt from such taxation. If so directed by the District, the Treasurer will immediately set aside from District revenues attributable to the 1994-95 Fiscal Year or, to the extent not available from such revenues, from any other money lawfully available, the amount of any such rebate in a separate fund which the Treasurer hereby agrees to establish and maintain on behalf of the District and to designate as the "Mt. Diablo Unified School District 1994-95 Tax and Revenue Anticipation Note Rebate Fund." (C) Notwithstanding any other provision of this resolution to the contrary,upon the County's failure to observe, or refusal to comply with, the covenants contained in this section, no one other than the holders or former holders of the Notes shall be entitled to exercise any right or remedy under this resolution on the basis of the County's failure to observe, or refusal to comply with, such covenants. (D) The covenants contained in this section shall survive the payment of the Notes. SF2-35643.1 7 (E) Notwithstanding any provision of this section, if the District shall provide to the Treasurer an opinion of Bond Counsel that any specified action required under this section is no longer required or that some further or different action is required to maintain the exclusion from gross income for federal income tax purposes of interest on the Notes, the Treasurer and the County may conclusively rely on such opinion in complying with the requirements of this section, and the covenants hereunder shall be deemed to be modified to that extent. Section 10. The form of proposed Official Notice of Sale inviting bids for the Notes, in substantially the form on file with the Clerk of this Board of Supervisors, is hereby approved and adopted as the Official Notice of Sale inviting bids for the Notes, subject to such completion, correction, revision or additions hereafter deemed necessary by the Treasurer upon consultation with the Superintendent of the District(or duly appointed designee) and the financial advisor to the District. Proposals for purchase of the Notes shall be received on behalf of the Clerk of this Board of Supervisors on October 19, 1994 (or on such later date.to which said sale is postponed, as determined by the Treasurer, so long as such date is not later than November 30, 1994), at the hour and place designated in said Official Notice of Sale by the Treasurer, for the purchase of the Notes for cash at not less than their principal amount plus accrued interest thereon, if any, to the date of their delivery, and at the interest rate to be designated in the bid. Section 11. Government Financial Strategies, Inc., 1228 "N" Street, Suite Thirteen, Sacramento, California 95814-5609, as Financial Advisor to the District for the Notes, is hereby authorized and directed to cause to be printed and mailed to prospective bidders for the Notes copies of the Official Notice of Sale, completed by the Treasurer as described in Section 10 hereof, together with copies of the Official Statement in preliminary form for the Notes, in substantially the form now on file with the Clerk of the Board, which preliminary Official Statement has been adopted and approved by the Board of Education of the District, subject to such changes as may be approved by the Superintendent of the District (or duly appointed designee) and the financial advisor to the District. ; Section 12. The publication of the notice of intention to sell the Notes, in substantially the form on file with the Clerk of this Board of Supervisors, subject to such corrections, revisions or additions as may be deemed necessary by the Treasurer upon consultation with the Superintendent of the District (or the designee thereof) and the financial advisor to the District, in The Bond Buyer at least fifteen days prior to the date of public sale of the Notes, as provided in Section 10 hereof, by a Deputy Clerk of the Board is hereby ratified and approved. Section 13. All actions heretofore taken by the officers and agents of the County or the Board with respect to the issuance and sale of the Notes are hereby approved, confirmed and ratified and the officers and agents of the County and the 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 SF2-35643.1 8 i 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. PASSED AND ADOPTED this 18th day of October, 1994, by the following vote: AYES: Supervisors Bishop, DeSaulnier, Torlakson and Powers NOES: None ABSENT: Supervisor Smith Chair of the Board of Supervisors ATTEST: Phil Batchelor Clerk of the Board of Supervisors and County Administrator By Depu CleyY SF2-35643.1 9