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HomeMy WebLinkAboutRESOLUTIONS - 06141988 - 88-339 RESOLUTION OF THE BOARD OF SUPERVISORS OF THE COUNTY OF CONTRA COSTA PROVIDING FOR THE BORROWING OF FUNDS FOR FISCAL YEAR 1988-1989 AND THE ISSUANCE AND SALE OF COUNTY OF CONTRA COSTA, CALIFORNIA, 1988-1989 TAX AND REVENUE ANTICIPATION NOTES THEREFOR RESOLUTION NO. 88j_3_3q ` WHEREAS, pursuant to Sections 53850 et seq. of the Government Code of the State of California (the "Government Code" ) , this Board of Supervisors (the "Board" ) has found and determined that the sum of Forty-five Million Dollars ($45, 000,000) is needed for the requirements of the County of Contra Costa (the "County" ) to satisfy obligations payable from the General Fund of the County and that it is necessary that said sum be borrowed for such purpose at this time by the issuance of temporary notes therefor in anticipation of the receipt of taxes, revenue and other moneys to be received by the County for the General Fund of the County allocable to Fiscal Year 1988-1989; and WHEREAS, it appears, and the Board hereby finds and determines, that said sum of Forty-five Million Dollars ($45, 000, 000) , when added to the interest estimated to be payable thereon, does not exceed eighty-five percent (85%) of the estimated amount of the uncollected taxes, income, revenue, cash receipts and other moneys of the County for the General Fund of the County attributable to Fiscal Year 1988-1989 and available for the payment of the principal of and interest on said notes; and WHEREAS, no money has heretofore been borrowed by the County and the County does not contemplate such a financing through the issuance of any temporary notes in anticipation of the receipt of, or payable or secured by, taxes, income, revenue, cash receipts or other moneys of the County received or accrued during or allocable to Fiscal Year 1988-1989; and WHEREAS, pursuant to Section 53856 of the Government Code of the State of California, certain revenues which will be received by the County for the General Fund of the County and attributable to Fiscal Year 1988-1989 can be pledged for the payment of the principal of and interest on said notes; and WHEREAS, Bank of America National Trust and Savings Association (the "Underwriter" ) has submitted an offer to purchase said notes and has submitted a form of contract of 4455S purchase (as finally executed in accordance with Section 3, the "Contract of Purchase" ) to the Board; NOW, THEREFORE, the Board of Supervisors of the County of Contra Costa hereby finds, determines, declares and resolves as follows: Section 1 . Recitals . All of the recitals herein set forth are true and correct, and the Board so finds and determines. Section 2 . Authorization of Issuance. Solely for the purpose of anticipating taxes, income, revenues, cash receipts and other moneys to be received by the County for the General Fund of the County allocable to Fiscal Year 1988-1989, and not pursuant to any common plan of financing, the County hereby determines to and shall borrow the aggregate principal sum of Forty-five Million Dollars ($45, 000, 000) , by the issuance of temporary notes under Sections 53850 et seq. of the Government Code, designated "County of Contra Costa, California, 1988-1989 Tax and Revenue Anticipation Notes" (the "Notes" ) . The Notes shall be in the denomination of $5, 000 or any integral multiple thereof, shall be dated the date of initial issuance thereof, shall mature (without option of prior redemption) on August 1, 1989 or such other date not later than 13 months after the date of issuance of the Notes as shall be designated by the County Administrator of the County, and shall bear interest, payable at maturity and computed on the basis of a 360-day year and twelve 30-day months, at the rate determined in accordance with this Resolution and set forth in the Contract of Purchase as executed and delivered by the County. Both the principal of and interest on the Notes shall be payable, only to the registered owners of the Notes upon surrender thereof, in lawful money of the United States of America, at the office of the Treasurer-Tax Collector of the County (the "Paying Agent" ) . Section 3 . Sale of Notes. The County Administrator of the County or his designee is hereby authorized and directed to negotiate, with the Underwriter, an interest rate, not to exceed seven percent (7%) per annum, on the Notes and the price to be paid to the County for the Notes, which shall not be less than the price at which the same are sold to the public less $10 per thousand of principal amount of Notes, and, if such interest rate and price is acceptable to the County Administrator of the County or his designee, the County Administrator of the County or his designee is hereby further authorized and directed to execute and deliver the Contract of Purchase, substantially in the form presented to this meeting, with such additions, 2 4455S changes and corrections therein as said officer shall require or approve, such approval to be conclusively evidenced by the execution thereof, and to execute and deliver such other documents required to be executed and delivered thereunder, for and in the name and on behalf of the County. Section 4. Disposition of Proceeds of Notes. 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 "1988-1989 Note Fund" (the "Note Fund" ) . The County shall, immediately upon receiving the proceeds of the sale of the Notes, place in the Note Fund all amounts representing principal received from such sale. Amounts held in the Note Fund shall be invested as permitted by Section 53601 of the Government Code provided that no such investments shall be invested in "reverse repurchase agreements" permitted by subsection (i) of said Section 53601, no such investments shall have a maturity later than the date that it is anticipated that such amounts will be required to be expended and such amounts shall not be commingled with any other funds of the County. Amounts in the Note Fund shall be withdrawn and expended by the County for any purpose for which the County is authorized to expend funds from the General Fund of the County, 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. If on the date that is six months from the date of issuance of the Notes, amounts previously withdrawn from the Note Fund do not exceed ninety percent (90%) of the sum of the principal amount of the Notes, the County 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, as amended (the "Code" ) . If on the date that is six months from the date of issuance of the Notes amounts previously withdrawn from the Note Fund exceed ninety percent (90%) of the principal amount of the Notes, the County may transfer all amounts on deposit in the Note Fund to the General Fund to be used and expended by the County for any purpose for which it is authorized to expend funds from the General Fund of the County. Section 5 . Source of Payment. (A) The principal of and interest on the Notes shall be payable from taxes, income, revenue, cash receipts and other moneys which are 3 4455S received by the County for the General Fund of the County for the fiscal year 1988-1989 and which are lawfully available for the payment of current expenses and other obligations of the County (the "Unrestricted Revenues" ) . (B) As security for the payment of the principal of and interest on the Notes, the County hereby pledges to deposit in trust in a special County fund designated as the "1988-1989 Tax and Revenue Anticipation Note Repayment Fund" (the "Repayment Fund" ) : The first Twenty-three Million Dollars ($23, 000, 000) of the Unrestricted Revenues received by the County during the accounting period ending January 12, 1989 (the "Sixth Accounting Period" ) , and the first Twenty-two Million Dollars ($22, 000, 000) , together with an amount sufficient (net of earnings on moneys in the Repayment Fund) to pay the interest on the Notes at maturity, of the Unrestricted Revenues received by the County during the accounting period ending May 11, 1989 (the "Tenth Accounting Period" ) . The amounts pledged by the County for deposit into the Repayment Fund from the Unrestricted Revenues received during each indicated accounting period are hereinafter called the "Pledged Revenues. " _ (C) In the event that there have been insufficient Unrestricted Revenues received by the County by the third business day prior to the end of any such Accounting Period to permit the deposit into the Repayment Fund of the full amount of the Pledged Revenues required to be deposited with respect to such Accounting Period, then the amount of any deficiency in the Repayment Fund shall be satisfied and made up on such date from any other moneys of the County 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" ) or thereafter on a daily basis, when and as such Pledged Revenues and Other Pledged Moneys are received by the County. Section 6. Pledged Revenues. (A) The Pledged Revenues with respect to the accounting period in which received shall be deposited by the Treasurer-Tax Collector of the County in the Repayment Fund commencing the third business day of each respective accounting period, and thereafter at intervals of no more than every five business days, and applied as directed in this Resolution; and the Other Pledged Moneys, if any, shall be deposited by the Treasurer-Tax Collector of the County in the Repayment Fund on the third business day prior to the end of such accounting period, and on each business day thereafter, until the full amount of the moneys required by Section 5(B) has been so deposited in the Repayment Fund; 4 4455S provided that, if on the date that is six months from the date of issuance of the Notes amounts previously withdrawn from the Note Fund do not exceed ninety percent (90%) of the principal amount of the Notes, the amounts to be deposited in the Repayment Fund during the accounting period in which received shall be deposited as soon as received. The principal of and interest on the Notes shall constitute a first lien and charge on, and shall be payable from, moneys in the Repayment Fund. Moneys in the Repayment Fund shall be applied only as hereinafter in this Section 6 provided. (B) The Treasurer-Tax Collector of the County shall use the moneys in the Repayment Fund on the maturity date of the Notes to pay the principal of and interest on the Notes. Any moneys remaining in the Repayment Fund after such . payment, or after provision for such payment has been made, shall be transferred to the General Fund of the County. (C) Moneys in the Repayment Fund shall be invested as permitted by Section 53601 of the Government Code, except that no moneys shall be invested in investments permitted by subsection (i ) (to the extent that subsection (i ) applies to reverse repurchase agreements) of said Section 53601, and no such investments shall have a maturity date later than the maturity date of the Notes. The proceeds of any such investments shall be retained in the Repayment Fund until payment of principal and interest (or provision therefor) has been made in accordance with paragraph (B) , at which time any excess amount shall be transferred to the General Fund of the County. Section 7 . Execution of Notes. The Treasurer-Tax Collector of the County or his designee is hereby authorized to execute the Notes by use of his manual or facsimile signature, and the Clerk of the Board of Supervisors of the County or one of his assistants is hereby authorized to countersign, by manual or facsimile signature, the Notes and to affix the seal of the Board of Supervisors thereto by impressing the seal or by imprinting a facsimile thereon. Said officers are hereby authorized to cause the blank spaces in Exhibit A to be filled in as may be appropriate and to deliver the Notes to the Underwriter in accordance with the terms and provisions of the Contract of Purchase. In the case of Notes executed by facsimile signature of both the Treasurer-Tax Collector of the County and the Clerk of the Board of Supervisors, the Notes shall not be valid unless and until the Paying Agent .shall have manually authenticated such Notes. Section 8. Form of Notes and Certificate of Authentication and Registration. The Notes shall be issued 5 4455S in fully registered form without coupons and the Notes and the Certificate of Registration 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 and figures. Section 9 . Registration, Exchange and Transfer. (A) The Depository Trust Company, New York, . New York, is hereby appointed depository for the Notes. The County Administrator of the County or his designee is hereby authorized to execute and deliver to the depository the Letter of Representations attached as Exhibit B hereto. 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 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 9(B) . (B) The Notes shall be initially issued and registered as provided in Section 9(A) hereof. Registered ownership of the Notes, or any portions thereof, may not thereafter be transferred except: (i ) to any successor of Cede & Co. , as nominee of The Depository Trust Company, or its nominee, or of any substitute depository designated pursuant to clause (ii ) of this subsection (B) ( "Substitute Depository" ) ; provided that any successor of Cede & Co. , as nominee 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 County Administrator of the County, 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 County Administrator of the County to substitute another depository for The Depository Trust Company (or its successor) because The Depository Trust Company (or its successor) 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 6 4455S the County Administrator of the County 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 9, upon receipt of all outstanding Notes by the Paying Agent (together, in the case of a successor paying agent appointed by the County pursuant to Section 12 hereof, with a written request of the County Adminstrator of the County to such successor paying agent designating the Substitute Depository) , a single new Note, which the County shall prepare or cause to be prepared, shall be executed and delivered, registered in the name of any such successor to Cede & Co. or such Substitute Depository, or their nominees, as the case may be, all as specified by the County Administrator of the County or, in the case of a successor paying agent appointed by the County pursuant to Section 12 hereof as specified in the written request of the County Administrator of the County. In the case of any transfer pursuant to clause (iii ) of subsection (B) of this Section 9 upon receipt of all outstanding Notes by the Paying Agent, (together, in the case of a successor paying agent appointed by the County pursuant to Section 12 hereof, with a written request of the .County Administrator of the County to such successor paying agent) , 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 specified by the County Administrator of the County or, in the case of a successor paying agent appointed by the County pursuant to Section 12 hereof, as are requested in such written request of the County Administrator of the County, subject to the limitations of Section 9 hereof, provided that the Paying Agent shall deliver such new Notes as soon as practicable. (D) The County and the Paying Agent shall be entitled to treat the person in whose name any Note is registered as the owner thereof for all purposes of the Resolution and for purposes of payment of principal and interest on such Note, notwithstanding any notice to the contrary received by the Paying Agent or the County; and the County and the Paying Agent 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 Paying Agent 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 successor (or Substitute Depository or its successor) , except to the owner of any Notes and the Paying Agent may rely conclusively on its records as to the identity of the owners of the Notes. 7 4455S (E) Notwithstanding any other provision of this Resolution and so long as all outstanding Notes are registered in the name of Cede & Co. or its registered assigns, the County and the Paying Agent shall cooperate with Cede & Co. or its registered assigns, as sole registered owner, 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 attached hereto as Exhibit B, the provisions of which the Paying Agent 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 9, any Note may, in accordance with its terms, be transferred or exchanged for a like aggregate principal amount in authorized denominations, upon the books required to be kept by the Paying Agent 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 Paying Agent. Whenever any Note shall be surrendered for transfer or exchange, the County shall execute and the Paying Agent shall authenticate, if required, and deliver a new Note or Notes of authorized denominations for a like aggregate principal amount. The Paying Agent shall require the 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 Paying Agent will keep or cause to be kept 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 Paying Agent 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 Paying Agent shall thereupon authenticate, if required, and deliver a new Note of like tenor and number in exchange and substitution for the Note so mutilated, but only upon surrender to the Paying Agent of the Note so mutilated. Every mutilated Note so surrendered to the Paying Agent shall be cancelled by it and delivered to, or upon the 8 4455S order of, the County. If any Note shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the County and the Paying Agent 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 Paying Agent shall thereupon authenticate, if required, and deliver a new Note of like tenor and 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 Paying Agent may pay the same without surrender thereof) . The Paying Agent 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 Paying Agent. 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 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. All Notes surrendered for payment or registration or transfer-, if surrendered to any person other than the Paying Agent, shall be delivered to the Paying Agent and shall. be promptly cancelled by it. The County may at any time deliver to the Paying Agent for cancellation any Notes previously authenticated and delivered hereunder which the County may have acquired in any manner whatsoever, and all Notes so delivered shall promptly be cancelled by the Paying Agent. No Note shall be authenticated in lieu of or in exchange for any Notes cancelled as provided herein, except as expressly permitted hereunder. All cancelled Notes held by the Paying Agent shall be disposed of as directed by the County. Section 10. General Covenants. It is hereby covenanted and warranted by the Board that all representations and recitals contained in this Resolution are true and correct and that the Board and the County, and their 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 taxes, income, revenue, cash receipts and other moneys pledged hereunder in accordance with law and for carrying out the provisions of this Resolution. 9 4455S Section 11 . Tax Covenants; Rebate Fund. (A) The County covenants that 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 referred to in Section 4 hereof, 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. As part of the performance of the covenant contained in the preceding sentence, promptly after six months from the date of the issuance of the Notes, the County will reasonably and prudently calculate the amount of the Note proceeds which have been expended, with a view to determining whether or not the County has met the safe harbor requirements of Section 148(f) (4) (B) (ii ) of the Code with respect to the Notes, and if it has not met such safe harbor requirements, it will reasonably and prudently calculate the amount, if any, of investment profits which must be rebated to the United States and will immediately set aside, from revenues attributable to the 1988-89 Fiscal Year or, to the extent not available from such revenues, from any other moneys lawfully available, the amount of any such rebate in the Fund referred to in paragraph (B) of this Section 11 . (B) The County shall establish and maintain a fund separate from any other fund established and maintained hereunder designated as the "1988-1989 Tax and Revenue Anticipation Note Rebate Fund" and within such Fund there shall be established and maintained two separate accounts designated as the Excess Account and the Earnings Account. There shall be deposited in each account of the Rebate Fund such amounts as are required to be deposited therein in accordance with the written instructions from Bond Counsel pursuant to Section 4 hereof. (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 11, no one other than the owners or former owners 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. 10 4455S (D) The covenants contained in this Section 11 shall survive the payment of the Notes. Section 12 . Paying Agent. The Treasurer-Tax Collector of the County, is hereby appointed as Paying Agent for the Notes. The County hereby directs and authorizes the payment by the Paying Agent of the interest on and principal of the Notes when such become due and payable, from the Repayment Fund in the manner set forth herein. The County hereby covenants to deposit funds in the Repayment Fund at the time and in the amount specified herein to provide sufficient moneys to pay the principal of and interest on the Notes on the day on which they mature. Payment of the Notes shall be in accordance with the terms of the Notes and this Resolution. This appointment shall not preclude the County from appointing a financial institution to act as Paying Agent or one or more successors thereto, all without notice to or the consent of the registered owners of the Notes. Any such successor paying agent shall be or shall have co-paying agent relationships with one or more banks or trust companies with offices in New York, New York. The Paying Agent, initially the Treasurer-Tax Collector of the County, is also appointed as registrar and upon the request of any registered owner, is authorized to record the transfer or exchange of Notes in accordance with the provisions hereof. Section 13 . Official Statement. The proposed form of official statement relating to the Notes, in the form presented to this meeting, is hereby approved with such additions, changes and corrections as the County Administrator of the County may approve. The Underwriter is hereby authorized to distribute such official statement in preliminary form to the potential purchasers of the Notes and is hereby authorized and directed to deliver such official statement in final form to all purchasers of the Notes. Section 14. Approval of Actions. All actions heretofore taken by the officers and agents of the County or this Board of. Supervisors with respect to the sale and issuance of the Notes are hereby approved, confirmed and ratified, and the officers of the County and this Board of Supervisors are hereby authorized and directed, for and in the name and on behalf thereof, 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 11 4455S consummate the lawful issuance and delivery of the Notes in accordance with this Resolution. Section 15 . Proceedings Constitute Contract. The provisions of the Notes and of this Resolution shall constitute a contract between the County and the registered owners of the Notes, and such provisions shall be enforceable by mandamus or any other appropriate suit, action or proceeding at law or in equity in any court of competent jurisdiction, and shall be irrepealable. PASSED AND ADOPTED by the Board of Supervisors of the County of Contra Costa, State of California, this 14th day of June, 1988, by the following vote: AYES: Supervisors Powers , Fanden, McPeak, Schroder, Torlakson. NOES : None. ABSENT: None. Chair of the Board of Supervisors of the County of Contra Costa (Seal ) Attest: PHILIP J. BATCHELOR County Administrator and Clerk of the Board of Supervisors of the County of Contra Costa 12 4455S