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HomeMy WebLinkAboutMINUTES - 07251989 - 1.66 BOARD OF SUPERVISORS COUNTY OF CONTRA COSTA, CALIFORNIA RESOLUTION NO. $9/499 RESOLUTION OF THE BOARD OF SUPERVISORS OF THE COUNTY OF CONTRA COSTA PROVIDING FOR THE BORROWING OF FUNDS FOR FISCAL YEAR 1989-1990 AND THE ISSUANCE AND SALE OF 1989 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 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 Four Million Nine Hundred Fifty Thousand Dollars ($4, 950,000) principal amount of 1989 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 1989-1990; and WHEREAS, the Board of Education of the District has found and determined that the sum of Four Million Nine Hundred Fifty Thousand Dollars ($4, 950, 000) , when added to the interestpayable 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 1989-1990 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 Fifty Thousand Dollars ($4, 950, 000) by the issuance of said notes; and WHEREAS, pursuant to Section 53856 of the Government Code, certain moneys which will be received by the District for the General Fund of the District during or attributable to Fiscal Year 1989-1990 can be pledged for the payment of the principal of and the interest on said notes (as hereinafter provided) ; and 1628F WHEREAS, in accordance with said request of the District, the Board provided for the public sale of said 1989 Tax and Revenue Anticipation Notes, and at the time and place for the receipt of bids therefor the bid of Security Pacific Merchant Bank (the "Purchaser" ) was the lowest responsible bid received for the purchase thereof, considering the interest rate specified and the premium offered; 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 1989-1990, 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 Fifty Thousand Dollars ($4, 950, 000) principal amount of temporary notes under Sections 53850 et seq. of the Government Code, designated "Mt. Diablo Unified School District 1989 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 August 2, 1989, shall mature (without option of prior redemption) on August 1, 1990, and shall bear interest (computed on the basis of a 360-day year of twelve 30-day months) at the rate of six and twenty-five hunredths per cent (6.25%) 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. 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. Registered ownership of the Note, or any portion thereof, may not thereafter be transferred except as set forth in Section 3 (B) . (B) The Notes shall be initially issued and registered as provided in' Section 3(A) hereof. Registered ownership of such Notes, or any portions thereof, may not thereafter be transferred except: 2 1628F (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; (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; provided, 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 3 1628F 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. (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 his 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 4 1628F 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 or shall be about to mature, 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. 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 . The moneys so borrowed shall be deposited in the General Fund of the District. Section 6. (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 5 1628F are received by the District for the General Fund of the District during or attributable to Fiscal Year 1989-1990 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 1989-1990, 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 pledge, the County agrees to cause to be created and established a special fund, designated the "Mt. Diablo Unified School District 1989 Tax and Revenue Anticipation Note Repayment Fund" (the "Repayment Fund" ) , which fund will be held by the 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 Two Million Dollars ($2,000, 000) of the first installment of secured property taxes to be received by the District which become due and payable on November 1, 1989, and become delinquent after December 10, 1989, and the first Two Million Nine Hundred Fifty Thousand Dollars ($2, 950,000) , 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, 1990, and become delinquent after April 10, 1990 ( such pledged amounts being herein 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, 1990, or by May 31, 1990, as the case may be, then the amount of any deficiency shall be satisfied and made up on such dates or thereafter from any other moneys of 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 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 moneys in the Repayment Fund shall be applied only for the purposes for which the Repayment Fund is created. 6 1626F (C) All Pledged Revenues shall, when received, be deposited in the Repayment Fund. On August 1, 1990, 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 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. (E) The County hereby designates the Notes as "qualified tax-exempt obligations" within the meaning of Section 265(b) (3 ) (B) of the Internal Revenue Code of 1986, as amended. Section 7. The Treasurer or one of his deputies is hereby authorized to manually execute the Notes and the Clerk of the Board and County Administrator or one of his deputies is hereby authorized to manually countersign the Notes. The Clerk of the Board and County Administrator or one of his deputies is hereby authorized to affix the seal of the County to the Notes by manual 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 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 . All the Notes shall be sold to the Purchaser in accordance with the terms of its bid for the Notes presented to this meeting and by reference incorporated herein at a price equal to the principal amount thereof plus a premium of $11, 358. 31 . Section 10. The distribution of the Official Statement in connection with the offering and sale of the Notes, in substantially the form presented to this meeting with such additions, changes or corrections as the Treasurer may approve upon consultation with the District is hereby approved. 7 1628F 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. (B) The County covenants that, in the event it is subject to the rebate requirements of Section 148 of the Code, it shall make 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, shall segregate and set aside from lawfully available sources the amount such calculations may indicate may be required to be paid to the United States Treasury, and shall otherwise at all times 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 Orrick, Herrington & Sutcliffe, as bond counsel for the Notes (the "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 such calculation is required, the County will immediately set aside, from revenues attributable to the 1989-1990 Fiscal Year or, to the extent not available from such revenues, from any other moneys lawfully available, the amount of any such rebate in a separate fund which the County hereby agrees to establish and maintain and designate as the "Mt. Diablo Unified School District 1989 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. 8 1628F (E) Notwithstanding any provision of this section, if the County 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 12 . The Treasurer and the Clerk of the Board and County Administrator are hereby authorized and directed to execute and deliver the Notes to the Purchaser, pursuant to the terms and conditions of the Purchase Agreement. All actions heretofore taken by the officers and agents of the County or the 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 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 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 25th day of July, 1989, by the following vote: AYES: Supervisors Powers, Fanden, Schroder, McPeak, Torlakson NOES: None ABSENT: None Chairman of the Board of Supervisors ATTEST: PHIL BATG=R Clerk of the Board of Supervisors and County Administrator Ay e �Iut/J441 4444 9 1628F jEXHIBIT A UNITED STATES OF AMERICA STATE OF CALIFORNIA COUNTY OF CONTRA COSTA MT. DIABLO UNIFIED SCHOOL DISTRICT 1989 TAX AND REVENUE ANTICIPATION NOTE No I $ THIS NOTE IS PART OF AN ISSUE OF NOTES WHICH HAVE BEEN DESIGNATED BY THE ISSUER AS QUALIFIED TAX-EXEMPT OBLIGATIONS FOR PURPOSES OF SECTION 265(b) (3 ) (B) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. FOR VALUE RECEIVED, the Mt. Diablo Unified School District (the "District" ) , in the County of Contra Costa, State of California, acknowledges itself indebted to and promises to pay to at the office of the Treasurer-Tax Collector of the County of Contra Costa (the "County" ) in Martinez, California the principal sum of DOLLARS ($ ) in lawful money of the United States of America, on AUGUST 1, 1990 together with interest thereon at the rate of PER CENT ( %) per annum (computed on the basis of a 360-day year 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 upon surrender of this Note as the same shall fall due at maturity; provided, however, that 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, "Mt. Diablo Unified School District 1989 Tax and Revenue Anticipation Notes" (the "Notes" ) , in the aggregate principal amount of Four Million Nine Hundred Fifty Thousand Dollars ($4, 950, 000) , all of like date, tenor and effect, made, A-1 1628F executed and given pursuant to and by authority of a resolution (the "Resolution" ) of the Board of Supervisors of the Mt. Diablo Unified School duly passed and adopted on July 25, 1989 (at the request of the District pursuant to a resolution of the Board of Education of the District duly passed and adopted on June 27, 1989) 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. 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 1989-1990. 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 1989-1990 (as provided in the Resolution) , 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. This Note is transferable by the registered owner hereof in person or by such owner' s attorney duly authorized in writing at the office of the Treasurer-Tax Collector of the County, but only in the manner, subject to the limitations and upon payment of the charges provided in the Resolution, and upon surrender and cancellation of this Note. Upon such transfer a new Note or Notes of authorized denominations and for the same aggregate principal amount will be issued to the transferees in exchange herefor . The County may deem and treat the registered owner hereof as the absolute owner hereof for the purpose of receiving payment of or on account of principal hereof and interest due hereon and for all other purposes, and the County shall not be affected by any notice to the contrary. 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 his manual A-2 1628F signature and has caused its official seal to be impressed hereon this 2nd day of August, 1989. COUNTY OF CONTRA COSTA By Treasurer-Tax Collector (SEAL) Countersigned: Clerk of the Board of Supervisors and County Administrator 1 A-3 1628F