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HomeMy WebLinkAboutRESOLUTIONS - 09171991 - 91-618 BOARD OF SUPERVISORS COUNTY OF CONTRA COSTA, CALIFORNIA RESOLUTION NO. RESOLUTION OF THE BOARD OF SUPERVISORS OF THE COUNTY OF CONTRA COSTA PROVIDING FOR THE BORROWING OF FUNDS FOR FISCAL YEAR 1991-1992 AND THE ISSUANCE AND DIRECTING THE PUBLIC SALE OF 1991 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 Five Million Dollars ($5, 000, 000) principal amount of 1991 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 1991-1992 ; and WHEREAS, the Board of Education of the District has found and determined that the sum of Five Million Dollars ($5, 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 1991-1992 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, Five Million Dollars ($5, 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, revenues, cash receipts and other moneys which will be received by the District for the General 4822F RESOLUTION NO. 91/619 Fund of the District during or attributable to Fiscal Year 1991-1992 can be pledged for the payment of the principal of and the interest on said notes (as hereinafter provided) ; 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 1991-1992 , and not pursuant to any common plan of financing, the County hereby determines to and shall issue (for and on behalf of the District) Five Million Dollars ($5, 000, 000) principal amount of temporary notes under Sections 53850 —t seq. of the Government Code, designated the "Mt . Diablo Unified School District 1991 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 October 9 , 1991, shall mature (without option of prior redemption) on October 9 , 1992, and shall bear interest (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 twelve per cent (12%) 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 I. (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 : (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 2 4822F 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).1 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 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 . 3 4822F (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 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 4 4822F 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 . There is hereby established a separate fund in the County treasury for the purpose of insuring 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 1991 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 moneys held by the 5 4822F Treasurer in the Proceeds Fund shall be invested as permitted by Section 53601 of 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 all funds otherwise available for such purposes that are not restricted funds , as demonstrated by the accounting records of the District . . If on the date that is six (6) months from the date of issuance of the Notes , amounts previously withdrawn from the Proceeds Fund do not exceed ninety per cent (90%) of the proceeds of the Notes, 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 (the "Code" ) . If on any date that is six ( 6) months or less from the date of issuance of the Notes , amounts previously withdrawn from the Proceeds Fund exceed ninety per cent (90%) of the proceeds of the Notes, the District may transfer all amounts on deposit in the Proceeds Fund to its General Fund to be used and expended for any purpose for which it is authorized to expend funds from its General Fund. For purposes of this paragraph of Section 5 , the "proceeds" of the Notes are equal to the initial offering price of the Notes to the public, as certified to by the Purchaser . 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 1991-1992 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 1991 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: ( 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 May 31, 1992 , 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 6 4822F maturity, from the Unrestricted Revenues to be received by the District during the month ending June 30 , 1992 , together with an amount sufficient (net of anticipated earnings on moneys in the Repayment Fund) to satisfy and make up any deficiency in the Repayment Fund with respect to the prior month. 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 moneys 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 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. (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 October 9 , 1992 , 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 . (F) 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 . 7 4822F 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 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 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 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 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 1991-1992 Fiscal Year or, to the extent not available from 8 4822F 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 1991 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 . (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 10 . The Notes shall be offered for public sale on Wednesday, October. 2 , 1991, in accordance with the Official Notice of Sale attached hereto, labeled Exhibit B and by reference incorporated herein, which notice is hereby adopted and approved by the Board, and the Treasurer (or his duly authorized representative) is hereby authorized to award the Notes to the best bidder therefor . Section 11 . Government Financial Strategies , Inc . , 1228 N Street , Suite 13 , 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 in substantially the form hereinafter set forth, together with copies of the Official Statement in preliminary form for the Notes dated August 27 , 1991, in substantially the form now on file with the Clerk of the Board, which Official Statement in preliminary form for the Notes is hereby adopted and. approved by the Board, subject to such changes as may be approved by County Counsel of the County and Bond Counsel , and which Official Statement in preliminary form for the Notes was approved and deemed final by the District as of its date within the meaning of 9 4822F Rule 15c2-12 promulgated under the Securities Exchange Act of 1934 (except for the omission of certain final pricing, rating and related information as permitted by said rule) . Section 12 . The Clerk of the Board is hereby authorized and directed to publish a copy of a notice of intention to sell the Notes, in substantially the form attached hereto, labeled Exhibit C and by reference incorporated herein, in The Daily Bond Buyer once not later than September 17, 1991. 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 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 17th day of September, 1991, by the following vote: AYES: Supervisors Fanden, Schroder , McPeak, Torlakson, .Powers NOES: None ABSENT: None Chairmen of the Board of Supervisors ATTEST: PHIL BATCHELOR Clerk of the Board of Supervisors and County Administrator T �y �V Deputy 10 4822F