HomeMy WebLinkAboutRESOLUTIONS - 05102004 - 2004-558 Quint &Thimmig LLP 09/07/04
(Pelt. Diablo USD TRAM)
CONTRA COSTA COUNTY
RESOLUTION NO. 004/558
RESOLUTION PROVIDING FOR THE BORROWING OF FUNDS IN
THE NAME OF THE MT. DIABLO UNIFIED SCHOOL DISTRICT FOR
FISCAL YEAR 2004-2005 AND THE ISSUANCE .AND SALE OF 2004
TAX AND REVENUE ANTICIPATION NOTES THEREFOR
RESOLVED, by the Board of Supervisors of Contra Costa County, California, as
follows:
WHEREAS, pursuant to Article 7.6 (commencing with section 53850) of Chapter 4 of
Part 1 of Division 2 of Title 5 of the California Government Code (the "Law"), school
districts organized and existing under the laws of the State of California are authorized to
borrow money by the issuance of temporary notes,the proceeds of which may be used and
expended for any purpose for which the school district is authorized to spend moneys;
WHEREAS, pursuant to the Law, such notes may be issued in the name of such
school districts by the board of supervisors of the county, the county superintendent of
which has jurisdiction over such school district, as soon as possible following receipt of a
resolution of the governing board of such school district requesting such borrowing; and
WHEREAS, the Board of Education of the Mt. Diablo Unified School District (the
"District") has heretofore adopted its resolution on September 28, 2004 (the "District
Resolution"), finding and determining that it is desirable that the District borrow funds in
an amount not to exceed $25,000,000 with respect to the fiscal year 2004-2005 for authorized
purposes of the District, and requesting that the Board of Supervisors (the "Board") of
Contra Costa County(the "County") for that purpose authorize the issuance of and offer for
sale tax and revenue anticipation notes in the name of the District in the principal amount of
not to exceed $25,000,000, under and pursuant to the provisions of the Law;
NOW, THEREFORE, it is hereby DETERMINED and ORDERED as follows:
Section 1. Reeitals True and Correa. All of the recitals herein set forth are true and
correct and the Board so finds and determines.
Section 2. Approval of Request of District. The Board hereby approves the request of
the District for the Board to issue notes in its name.
Section 3. Authorization and Terms of Notea. Solely for the payment of current
expenses, capital expenditures and other obligations payable from the general fund of
District during or allocable to Fiscal Year 2004-2005, and not pursuant to any common plan
of financing, the Board hereby determines to and shall borrow the aggregate principal sum
of not to exceed twenty-five million dollars ($25,000,000) in the name of the District. Such
borrowing shall be by the issuance of temporary notes under the Law, designated "Mt.
Diablo Unified School District (Contra Costa County, California) 2004 Tax and Revenue
Anticipation Notes" (the "Notes"). The Notes shall be dated as of their date of delivery, shall
mature (without option of prior redemption) on such date as shall be determined by the
Superintendent of the District (or the Superintendent's designee) prior to the date of sale of
the Notes, and shall bear interest from their date, payable at maturity, and computed on a
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30-day month/360-day year basis. Both the principal of and interest on the Notes shall be
payable in lawful money of the United States of America, as described below.
Section 4. Form of Notes: Book Entry Cir 1 System. The Notes shall be issued in fully
registered form, without coupons, and shall be substantially in the form and substance set
forth in Exhibit A attached to the District Resolution and by reference incorporated herein,
the blanks in said form to be filled in with appropriate words and figures. The Notes shall
be numbered from 1 consecutively upward, shall be in the denomination of $1,000 each or
any integral multiple thereof.
"CUSIP" identification numbers shall be imprinted on the Notes, but such numbers
shall not constitute a part of the contract evidenced by the Notes and any error or omission
with respect thereto shall not constitute cause for refusal of any purchaser to accept
delivery of and pay for the Notes. In addition, failure on the part of the Board to use such
CUSIP numbers in any notice to registered owners of the Notes shall not constitute an event
of default or any violation of the Board's contract with such registered owners and shall not
impair the effectiveness of any such notice.
Except as provided below, the owner of all of the Notes shall be The Depository
Trust Company, New York, New York ("DTC"), and the Notes shall be registered in the
name of Cede & Co., as nominee for DTC. The Notes shall be initially executed and
delivered in the form of a single fully registered Note in the full aggregate principal
amount of the Notes. The Board may treat DTC (or its nominee) as the sole and exclusive
owner of the Notes registered in its name for all purposes of this .Resolution, and the Board
shall not be affected by any notice to the contrary. The Board shall not have any
responsibility or obligation to any participant of DTC (a "Participant"), any person
claiming a beneficial ownership interest in the Notes under or through DTC or a
Participant, or any other person which is not shown on the register of the Board as being an
owner, with respect to the accuracy of any records maintained by DTC or any Participant or
the payment by DTC or any Participant by DTC or any Participant of any amount in respect
of the principal or interest with respect to the Notes. The County Treasurer, as paying agent,
shall pay all principal and interest with respect to the Notes only to DTC, and all such
payments shall be valid and effective to fully satisfy and discharge the Board's obligations
with respect to the principal and interest with respect to the Notes to the extent of the sum
or sums so paid. Except under the conditions noted below, no person other than DTC shall
receive a Note. Upon delivery by DTC to the Board of written notice to the effect that DTC
has determined to substitute a new nominee in place of Cede & Co., the term "Cede & Co."
in this Resolution shall refer to such new nominee of DTC.
If the Board determines that it is in the best interest of the beneficial owners that they
be able to obtain Notes and delivers a written certificate to DTC to that effect, DTC shall
notify the Participants of the availability through DTC of Notes. In such event, the Board
shall issue, transfer and exchange Notes as requested by DTC and any other owners in
appropriate amounts. DTC may determine to discontinue providing its services with
respect to the Notes at any time by giving notice to the Board and discharging its
responsibilities with respect thereto under applicable law. Under such circumstances (if
there is no successor securities depository), the Board shall be obligated to deliver Notes as
described in this Resolution. Whenever DTC requests the Board to do so, the Board will
cooperate with DTC in taking appropriate action after reasonable notice to (a) make
available one or more separate Notes evidencing the Notes to any DTC Participant having
Notes credited to its DTC account or (b) arrange for another securities depository to
maintain custody of Certificates evidencing the Notes.
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Notwithstanding any other provision of this Resolution to the contrary, so long as
any Note is registered in the name of Cede & Co., as nominee of DTC, all payments with
respect to the principal and interest with respect to such Note and all notices with respect to
such Note shall be made and given, respectively, to DTC as provided in the representation
letter delivered on the date of issuance of the Notes.
Section 5. Ilse of Proceeds. The moneys so borrowed shall be deposited in the
Treasury of the County to the credit of the District to be withdrawn, used and expended by
the District for any purpose for which it is authorized to expend funds from the general
fund of the District, including, but not limited to, current expenses, capital expenditures
and the discharge of any obligation or indebtedness of the District. The County shall have
no responsibility for assuring the proper use of Note proceeds by the District.
All proceeds shall be invested by the County Treasurer-Tax Collector. Unless
otherwise requested by the District in writing, all amounts shall be invested (a) directly in
investments permitted by the laws of the State of California as now in effect and as hereafter
amended, in each case meeting Standard & Poor's Ratings Services criteria for investments,
and in accordance with such procedures and subject to such requirements as the County
Treasurer-Tax Collector or such other appropriate investment officer of the County shall
establish, (b) in the Local Agency Investment Fund maintained by the Treasurer of the State
of California, (c) in the County Pooled Investment Fund, or (d) in investment agreements
with financial institutions with senior unsecured credit ratings of "AA-" or better and
"Aa3" or better from Standard & Poor's Ratings Services and Moody's Investors Service,
respectively.
Section 6. Sgcurity. The principal amount of the Notes, together with the interest
thereon, shall be payable from taxes, revenue and other moneys which are received by the
District for the general fund of the District for the Fiscal Year 2004-2005. As security for the
payment of the principal of and interest on the Notes, the Board, in the name of the District,
hereby pledges the first "unrestricted moneys",as hereinafter defined, to be received by the
County on behalf of the District in the amounts and in the months as shall be determined by
the Superintendent of the District, or his designee, not later than the date of sale of the Notes
(such pledged amounts being hereinafter called the "Pledged Revenues"). The principal of
the Notes and the interest thereon shall constitute a first lien and charge thereon and shall be
paid from the Pledged Revenues. To the extent not so paid from the Pledged Revenues, the
Notes shall be paid from any other moneys of the District lawfully available therefor. In the
event that there are insufficient unrestricted moneys received by the District to permit the
deposit in the Repayment Fund, as hereinafter defined, of the full amount of the Pledged
Revenues to be deposited in any month on the last business day of such month, then the
amount of any deficiency shall be satisfied and made up from any other moneys of the
District lawfully available for the repayment of the Notes and interest thereon. The term
"unrestricted moneys" shall mean taxes, income, revenue and other moneys intended as
receipts for the general fund of the District and which are generally available for the
payment of current expenses and other obligations of the District.
Section 7. Rel2aym Fund. There is hereby created a special fund to be held on
behalf of the District by the County Treasurer-Tax Collector separate and distinct from all
other County and District funds and accounts designated the "Mt. Diablo Unified School
District (Contra Costa County, California) 2004 Tax and Revenue Anticipation Notes
Repayment bund" (the "Repayment Fund") and applied as directed in this Resolution. Any
money placed in the Repayment Fund shall be for the benefit of the registered owners of the
Notes, and until the Notes and all interest thereon are paid or until provision has been made
for the payment of the Notes and the interest thereon through the maturity thereof, the
moneys in the Repayment bund shall be applied solely for the purposes for which the
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Repayment Fund is created, provided, however, that any interest earned on amounts
deposited in the Repayment Fund shall periodically be transferred to the general fund of
the District.
During the pledge months to be determined by the Superintendent of the District, or
his designee, not later than the date of sale of the Notes, all Pledged Revenues shall be
deposited into the Repayment Fund. On the maturity date of the Notes, the County
Treasurer-Tax Collector shall transfer to DTC the moneys in the Repayment Fund necessary
to pay the principal of and interest on the Notes then due and, to the extent said moneys are
insufficient therefor, an amount of moneys from the District"s general fund which will
enable payment of the full principal of and interest on the Notes at maturity. DTC will
thereupon make payments of principal and interest on the Notes to the DTC Participants
who will thereupon make payments to the beneficial owners of the Notes. Any moneys
remaining in the Repayment Fund after the Notes and the interest thereon have been paid,
or provision for such payment has been made, shall be transferred to the District's general
fund.
Section 8. Deposit and Investment of Repayment Fund. All Moneys in the Repayment
Fund shall be invested by the County Treasurer-Tax Collector. Unless otherwise requested
by the District in writing, all amounts shall be invested (a) directly in investments permitted
by the laws of the State of California as now in effect and as hereafter amended, in each case
meeting Standard & Poor's Ratings Services criteria for investments, and in accordance with
such procedures and subject to such requirements as the County Treasurer-Tax Collector or
such other appropriate investment officer of the County shall establish, (b) in the Local
Agency Investment Fund maintained by the Treasurer of the State of California, (c) in the
County Pooled Investment Fund, or (d)in investment agreements with financial institutions
with senior unsecured credit ratings of ""AA-" or better and "'Aa3" or better from Standard
& Poor's Ratings Services and Moody's Investors Service, respectively.
Section 9. Execution of Notes. The Notes shall be executed in the manner set forth in
the District Resolution.
Section 10. Transfer of Notes. Any Note may, in accordance with its terms, but only if
the District determines to no longer maintain the book entry only status of the Notes, DTC
determines to discontinue providing such services and no successor securities depository
is named or DTC requests the Treasurer-Tax Collector to deliver Note certificates to
particular DTC Participants, be transferred, upon the books required to be kept pursuant to
the provisions of Section 12 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 at the
office of the Treasurer-Tax Collector, accompanied by delivery of a written instrument of
transfer in a form approved by the Treasurer-Tax Collector, duly executed.
Whenever any Note or Notes shall be surrendered for transfer, the Treasurer-Tax
Collector shall execute and deliver a new Note or Notes, for life aggregate principal
amount.
Section 11. Exchange of Notes. Notes may be exchanged at the office of the Treasurer-
Tax Collector for a like aggregate principal amount of Notes of authorized denominations
and of the same maturity.
Section 12. Note Register. The Treasurer-Tax Collector shall keep or cause to be kept
sufficient books for the registration and transfer of the Notes if the book entry only system is
no longer in effect and, in such case, the Treasurer-Tax Collector shall register or transfer or
cause to be registered or transferred, on said books, Notes as herein before provided. While
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the book entry only system is in effect, such books need not be kept as the Notes will be
represented by one Note registered in the name of Cede & Co., as nominee for DTC.
Section 13. Te, porary Notes. The Notes may be initially issued in temporary form
exchangeable for definitive Notes when ready for delivery. The temporary Notes may be
printed, lithographed or typewritten, shall be of such denominations as may be determined
by the Treasurer-Tax Collector, and may contain such reference to any of the provisions of
this Resolution as may be appropriate. Every temporary Note shall be executed by the
Treasurer-Tax Collector upon the same conditions and in substantially the same manner as
the definitive Notes. If the Treasurer-Tax Collector issues temporary Notes he will execute
and furnish definitive Notes without delay, and thereupon the temporary Notes may be
surrendered for cancellation, in exchange therefor at the office of the Treasurer-Tax
Collector and the Treasurer-Tax Collector shall deliver in exchange for such temporary
Notes an equal aggregate principal amount of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall be entitled to the same
benefits pursuant to this Resolution as definitive Notes executed and delivered hereunder.
Any costs borne by the County for the exchange of the Notes will be reimbursed by the
District.
Section 14. Notes 1Vlutilated, Lost,--Destroyed or Stolen. If any Note shall become
mutilated the Treasurer-Tax Collector, at the expense of the registered owner of said Note,
shall execute and deliver a new Note of like maturity and principal amount in exchange
and substitution for the Note so mutilated, but only upon surrender to the Treasurer-Tax
Collector of the Note so mutilated. Every mutilated Note so surrendered to the Treasurer-
Tax Collector shall be canceled by it and delivered to, or upon the order of, the Treasurer-
Tax Collector. If any Note shall be lost, destroyed or stolen, evidence of such loss,
destruction or theft may be submitted to the Treasurer-Tax Collector and, if such evidence
be satisfactory to the Treasurer-Tax Collector and indemnity satisfactory to it shall be given,
the Treasurer-Tax Collector, at the expense of the registered owner, shall execute and
deliver a new Note of like maturity and principal amount in lieu of and in substitution for
the Note so lost, destroyed or stolen. The Treasurer-Tax Collector may require payment of a
sum not exceeding the actual cost of preparing each new Note issued under this Section 14
and of the expenses which may be incurred by the Treasurer-Tax Collector in the premises.
Any Note issued under the provisions of this Section 14 in lieu of any Note alleged to be
lost, destroyed or stolen shall constitute an original additional contractual obligation on the
part of the Board whether or not the Note so alleged to be lost, destroyed or stolen be at any
time enforceable by anyone, and shall be equally and proportionately entitled to the
benefits of this Resolution with all other Notes issued pursuant to this Resolution. This
Section 14 will not be in effect so long as DTC book entry is utilized.
Section 15. Covenants and Warranties. Based on the representations and covenants of
the District, it is hereby covenanted and warranted by the Board that all representations and
recitals contained in this Resolution as to the County are true and correct, and that the
Board has reviewed all proceedings heretofore taken relative to the authorization of the
Notes and has found, as a result of such review, and hereby finds and determines that all
acts, conditions and things required by law to exist, happen and be performed precedent to
and in the issuance of the Notes have existed, happened and been performed in due time,
form and manner as required by law, and the Board is duly authorized to issue the Notes in
the name of the District and incur indebtedness in the manner and upon the terms provided
in this Resolution. The Board 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 prompt collection and enforcement of the taxes, revenue, cash
receipts and other moneys pledged hereunder in accordance with law and for carrying out
the provisions of this Resolution.
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Section 16. Sale of Notes. The preparation by the District's financial advisor of an
official statement describing the Nates (the "Official Statement") in connection with the
offering and sale of the Notes is hereby approved. The actions of the District's financial
advisor, on behalf of the District and the Board, in distributing the Official Statement to
such municipal bond brokers-dealers, to such banking institutions and to such other
persons as may be interested in purchasing the Notes therein offered for sale, are hereby
approved.
The District's financial advisor, on behalf of the District and the Board, is authorized
to identify a purchaser for the Notes and to negotiate an interest rate and purchase price for
the Notes, so long as the true interest cost to the District does not exceed eight percent (8%).
The definitive principal amount of Notes to be issued shall be determined by the District's
financial advisor, on behalf of the District and the Board, at the time of sale of the Notes to
the purchaser identified. The County Treasurer-Tax Collector is hereby authorized and
directed to accept an offer from such purchaser, for and in the name of the Board, by notice
to the successful bidder. The County Treasurer-Tax Collector is hereby authorized to
execute a Note purchase agreement or other document in connection with such award.
The District's financial advisor is hereby delegated the responsibility of negotiating,
receiving, opening and analyzing bids submitted for the purchase of the Notes and to
report the results thereof to the County Treasurer-Tax Collector.
Section 17. PreparationNxeaWQn- of Closing Documents. Quint &
Thimmig LLP, as bond counsel to the District, is directed to cause suitable Notes to be
prepared showing on their face that the same bear interest at the rate aforesaid, and to cause
the blank spaces therein to be filled in to comply with the provisions of this Resolution in
accordance with the identified purchaser of the Notes, and to procure their execution by the
proper officers, and to cause the Notes to be delivered when so executed to DTC on behalf
of the identified purchaser therefor upon the receipt of the purchase price by the County
Treasurer-Tax Collector on behalf of the District.
The Treasurer-Tax Collector or any other officer of the County are further
authorized and directed to make, execute and deliver to the purchaser or purchasers of the
Notes (a) a certificate in the form customarily required by purchasers of bonds of public
corporations generally, certifying to the genuineness and due execution of the Notes, and
(b) a receipt in similar form evidencing the payment of the purchase price of the Notes
which receipt shall be conclusive evidence that said purchase price of the Notes has been
paid and has been received on behalf of the District. Any purchaser or subsequent taker or
holder of the Notes is hereby authorized to rely upon and shall be justified in relying upon
any such certificate or receipt with respect to the Notes. Such officers and any other officers
of the District or of the County are hereby authorized to execute any and all other
documents required to consummate the sale and delivery of the Notes.
Section 18. LimAed Liability. Notwithstanding anything to the contrary contained
herein, in the Notes or in any other document mentioned herein, neither the Countv nor the
Board shall have any liability hereunder or by reason hereof or in connection with the
transactions contemplated hereby and the Notes shall be payable solely from the moneys of
the District available therefor as set forth in Section 6 hereof.
Section 19. Reimbursement of County Costs. The District shall reimburse the County
for all costs and expenses incurred by the County, its officials, officers, agents, and
employees in issuing or otherwise in connection with the Notes.
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Section. 20. Effective Date. This resolution shall take effect from and after its adoption.
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I hereby certify that the foregoing resolution was duly adopted at a nweting of the
Board of Supervisors of Contra Costa County held on the 12th day of October, 2004, by the
following vote:
AYES, and in favor of, Supervisors:
NOES, Supervisors:
ABSENT, Supervisors:
By
Chair, Board of Supervisors
ATTEST":
Clerk of the Board of Supervisors
Quint&Thimmig LLP 09/07/04
09/28/04
MT. DIABLO UNIFIED SCHOOL DISTRICT
RESOLUTION NO. 04/05-13
RESOLUTION REQUESTING THE BOARD OF SUPERVISORS OF
CONTRA COSTA COUNTY TO ISSUE TAX AND REVENUE
ANTICIPATION NOTES IN THE NAME OF THE MT. DIABLO UNIFIED
SCHOOL DISTRICT FOR FISCAL YEAR 2004-2005 IN THE PRINCIPAL
AMOUNT OF NOT TO EXCEED$25,000,000 AND AUTHORIZING THE
SALE THEREOF AND AUTHORIZING PREPARATION OF AN OFFICIAL
STATEMENT IN CONNECTION THEREWITH
RESOLVED, by the Board of Education of the Mt. Diablo Unified School District (the
"District"),as follows:
WHEREAS, school districts organized and existing under the laws of the State of
California are authorized by Article 7.6 (commencing with section.53350) of Chapter 4 of Part 1
of Division 2 of Title 5 of the California Government Code (the "Law") to borrow money by the
issuance of temporary notes, the proceeds of which may be used and expended for any purpose
for which the school district is authorized to spend moneys;and
WHEREAS, pursuant to the Law, such notes may be issued in the name of such school
district by the board of supervisors of the county, the county superintendent of which has
jurisdiction over such school district,as soon as possible following receipt of a resolution of the
governing board of such school district requesting such borrowing;and
WHEREAS,the District has determined that it is desirable that the District borrow funds
in an amount not to exceed $25,000,000 with respect to fiscal year 2004-20105 for authorized
purposes of the District;
NOW,THEREFORE,it is hereby DETERMINED and ORDERED as follows:
Section 1, Request. The Board of Supervisors (the "'Board") of Contra Costa County (the
"County") is hereby requested to issue tax and revenue anticipation notes in the name of the
District in the principal amount of not to exceed$25,000,000 (the "Notes"), under and pursuant
to the provisions of the Law.
Section 2. Limitation on Maximum Amount. The principal amount of Notes,when added
to the interest payable thereon, shall not exceed eighty-five percent (85%) of the estimated
amount of the uncollected taxes,revenue and other moneys of the District for the general fund
of the District attributable to Fiscal Year 2004-2005, and available for the payment of the notes
and the interest thereon.
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Section 3. PIS. The Notes shall be obligations of the District and shall be secured by a
pledge of and first lien and charge against the first "unrestricted moneys," as hereinafter
defined, in the amounts and in the months as shall be determined by the Assistant
Superintendent, Administrative Services (or his designee), not later than the date of sale of the
Notes (the "Pledged Revenues"). To the extent not so paid from the Fledged Revenues, the
Notes shall be paid from any other moneys of the District lawfully available therefor. In the
event that there are insufficient unrestricted moneys received by the District to permit the
deposit in the Repayment Fund (as hereinafter defined) of the full amount of the Pledged
Revenues to be deposited in any month on the last business day of such month, then the
amount of any deficiency shall be satisfied and made up from any other moneys of the District
lawfully available for the repayment of the Notes and interest thereon. The term. "unrestricted
moneys" shall mean taxes, income, revenue and other moneys intended as receipts for the
general fund of the District and which are generally available for the payment of current
expenses and other obligations of the District.
Section 4. Approval of Issuance Resolution. The resolution entitled "RESOLUTION
PROVIDING FOR THE BORROWING OF FUNDS IN THE NAME OF THE MT. DIABLO
UNIFIED SCHOOL DISTRICT FOR FISCAL YEAR 2004-2005 AND THE ISSUANCE AND
SALE OF 20€34 TAX AND REVENUE ANTICIPATION NOTES THEREFOR" (the "Issuance
Resolution"), to be adopted by the Board, in substantially the form on file with the Secretary of
the Board of Education,together with any additions to or changes therein deemed necessary or
advisable by the Board, is hereby approved. The Notes shall be dated as of their date of
delivery, shall mature(without option of prior redemption) on such date as shall be determined
by the Assistant Superintendent, Administrative Services (or his designee), prior to the date of
sale of the Notes,and shall bear interest from their date, payable at maturity, and computed on
a 30-day month/360-day year basis.
Section 5. Form of Notes;Execution of Notes.
(a) The Notes shall be issued in fully registered form, 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 and figures.
The Notes shall be numbered from 1 consecutively upward, shall be in the denomination of
$1,000 each or any integral multiple thereof.
(b) The Notes shall be executed in the name of the District,with the manual or facsimile
signature of the County Treasurer-Tax Collector or one or more of his duly authorized deputies
and the manual or facsimile counter-signature of the Clerk of the Board of Supervisors
(although at least one of such signatures shall be manual) with the seal of the Board impressed
thereon, and said officers are hereby authorized to cause the blank spaces thereof to be filled in
as may be appropriate.
Section 6. Official Statement. The Board of Education hereby authorizes the preparation
by the District's financial advisor of an official statement describing the Notes (the "Official
Statement"). The Board of Education authorizes the distribution by the District's financial
advisor of the Official Statement to prospective purchasers of the Notes, and authorizes and
directs the Assistant Superintendent, Administrative Services (or his designee), on behalf of the
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District to deem"finalY' pursuant to Mule 15c212 under the Securities Exchange Act of 1934 (the
"Rule") the Official Statement prior to its distribution by the District's financial advisor. The
execution of the Official Statement, which shall include such changes and additions thereto
deemed advisable by the Assistant Superintendent, Administrative Services, or any other
qualified officer of the District and such information permitted to be excluded from the Official
Statement pursuant to the Rule, shall be conclusive evidence of the approval of the Official
Statement by the District.
The Assistant Superintendent, Administrative Services (or his designee), is separately
authorized and directed to execute the Official Statement and a statement that the facts
contained in the Official Statement,and any supplement or amendment thereto (which shall be
deemed an original part thereof for the purpose of such statement) were, at the time of sale of
the Notes,true and correct in all material respects and that the Official Statement did not,on the
date of sale of the Notes, and does not, as of the date of delivery of the Notes, contain any
untrue statement of a material fact with respect to the District or omit to state material facts
with respect to the District required to be stated where necessary to mare any statement made
therein not misleading in the light of the circumstances under which it was made.The Assistant
Superintendent, Administrative Services (or his designee), shall take such further actions prior
to the signing of the Official Statement as are deemed necessary or appropriate to verify the
accuracy thereof.
Section 7. Sale of the Notes. The Official Statement is approved for distribution in the
offering and sale of the Notes.
The District's financial advisor,on behalf of the District and the Board,is authorized and
directed to cause the Official Statement to be distributed to such municipal bond broker-dealers,
to such banking institutions and to such other persons as may be interested in purchasing the
Notes therein offered for sale. The District's financial advisor, on behalf of the District and the
Board, is authorized to identify a purchaser for the Notes and to negotiate an interest rate and
purchase price for the Notes,so long as the net interest cost to the District does not exceed eight
percent (8%). The definitive principal amount of Notes to be issued shall be determined by the
District's financial advisor, on behalf of the District and the Board, at the time of sale of the
Notes to the purchaser identified.
Section 8. Tax Covenants
(a) Private Activity Bond Limitation. The District shall assure that the proceeds of the
Notes are not so used as to cause the Notes to satisfy the private business tests of section 141(b)
of the Code (as hereinafter defined) or the private loan financing test of section 141(c) of the
Code.
(b) Federal Guarantee Prohibition. The District shall not tape any action or permit or suffer
any action to be taken if the result of the same would be to cause any of the Notes to be
"federally guaranteed" within the meaning of section 149(b) of the Code.
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(c) Rebate Requirement. The District shall take any and all actions necessary to assure
compliance with section 148(f) of the Code,relating to the rebate of excess investment earnings,
if any,to the federal government,to the extent that such section is applicable to the Notes.
(d) No Arbitrage. The District shall not take, or permit or suffer to be taken any action
with respect to the proceeds of the Notes which,if such action had been reasonably expected to
have been taken,or had been deliberately and intentionally taken, on the date of issuance of the
Notes would have caused the Notes to be "arbitrage bonds" within the meaning of section 148
of the Code.
(e) Maintenance of Tax-Exemption. The District shall take all actions necessary to assure
the exclusion of interest on the Notes from the gross income of the registered owners of the
Notes to the same extent as such interest is permitted to be excluded from gross income under
the Code as in effect on the date of issuance of the Notes.
For purposes of this Section 8, the term "Code" means the Internal Revenue Code of
1986 as in effect on the date of issuance of the Notes or (except as otherwise referenced herein)
as it may be amended to apply to obligations issued on the date of issuance of the Notes,
together with applicable proposed, temporary and final regulations promulgated, and
applicable official public guidance published,under the Code.
Section 9. Continuing Disclosure. The District hereby covenants and agrees that it will
comply with and carry out all of the provisions of the Continuing Disclosure Certificate.
Notwithstanding any other provision of this resolution, failure of the District to comply with
the Continuing Disclosure Certificate shall not be considered an event of default;however, any
holder or beneficial owner of the Notes may, take such actions as may be necessary and
appropriate to compel performance, including seeking mandate or specific performance by
court order.
For purposes of this Section 9, the term "Continuing Disclosure Certificate" means that
certain Continuing Disclosure Certificate executed by the District and dated the date of issuance
and delivery of the Nates,as originally executed and as it may be amended from time to time in
accordance with the terms thereof. For purposes of this Section 9, the term "Participating
Underwriter" shall have the meaning ascribed thereto in the Continuing Disclosure Certificate.
Section 10. No Temporary Transfers. It is hereby covenanted and warranted by the
District pursuant to Article XVI, Section 6 of the Constitution of the State of California that it
will not request the County Treasurer-Tax Collector to make temporary transfers of funds in the
custody of the County Treasurer-Tax Collector to meet any obligations of the District during the
2004--2005 fiscal year.
Section 11. Further Authorization. All actions heretofore taken by the officers and agents
of the District with respect to the sale and issuance of the Notes are hereby approved, and the
Superintendent, Assistant Superintendent, Administrative Services, the Secretary of the Board
and any and all other officers of the District are hereby authorized and directed for and in the
name and on behalf of the District, to do any and all things and take any and all actions relating
to the execution and: delivery of any and all certificates, requisitions, agreements and other
-4-
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 the Issuance
Resolution and this resolution.
The District hereby authorizes the Assistant Superintendent, Administrative Services,or
his designee,to execute an agreement for bond counsel services by and between the District and
Quint & Thimmig LLP, and an agreement for financial advisory services by and between the
District and Government Financial Strategies, Inc.,which firms are hereby appointed to serve as
bond counsel and financial advisor, respectively, for the Notes. All costs incurred by the Board
or the District in connection with the issuance of the Notes,including but not limited to printing
of any official statement, rating agency costs, bond counsel fees and expenses, underwriting
discount and costs, paying agent fees and expenses, the cost of printing the Notes, and any
compensation owing to any officers or employees of the Board, the County or the District for
their services rendered in connection with the issuance of the Notes, shall be payable by
District.
Section 12. Indemnification.The District shall indemnify and hold harmless, to the extent
permitted by law, the County and its officers and employees (the "Indemnified Parties"),
against any and all losses, claims, damages or liabilities, joint or several, to which such
Indemnified Parties may become subject,because of action or inaction related to the Notes. The
District shall also reimburse the Indemnified Parties for any legal or other expenses incurred in
connection with investigating or defending any such claims or actions.
Section 13, Effective Date. This resolution shall take effect from and after its adoption.
I hereby certify that the foregoing resolution was duly adopted at a meeting of the Board
of Education of the Mt. Diablo Unified School District held on the 28th day of September, 2004,
by the following vote:
AYES,and in favor of,Board Members:Allen,Eberhart,Leal,Mayo,Treece
NOES: None
ABSENT: None
By
Secretary of Board of Educatio
-5-
EXHIBIT A
Board of Supervisors of Contra Costa County,California
in the Name of the
MT. DIABLO UNIFIED SCHOOL DISTRICT
(Contra Costa County,California)
2004 TAX AND REVENUE ANTICIPATION NOTE
INTEREST RATE: MATURITY DATE: ISSUE DATE: CUSIP:
% 20U5 ,2004
REGISTERED OWNER:CEDE&CO.
PRINCIPAL SUM: DOLLARS
The MT. DIABLO UNIFIED SCHOOL DISTRICT, Contra Costa County, State of
California (the "District"), acknowledges itself indebted, and promises to pay, to the Registered
Owner stated above, or registered assigns (the "Owner"), on the Maturity Date stated above,
the Principal Sum stated above, in lawful money of the United States of America, and to pay
interest thereon in like lawful money at the rate per annum stated above, all payable on the
Maturity Date stated above,calculated on the basis of 360-day year comprised of twelve 30-day
months.
It is hereby certified,recited and declared that this Note is one of an authorized issue of
notes in the aggregate principal amount of dollars ($ ), all of like
tenor, issued pursuant to the provisions of a resolution of the Board of Supervisors (the
"Board") of Contra Costa County (the "County") duly passed and adopted on October 12, 2004
(the "Resolution"), and pursuant to Article 7.6 (commencing with section 53850) of Chapter 4,
Part 1, Division 2, Title 5, of the California Government Code, and that all conditions, things
and acts rewired to exist, happen and be performed precedent to and in the issuance of this
Note exist,have happened and have 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, revenue and other moneys which are received by the County on behalf of the
District for Repayment Fund of the District (as defined in the Resolution) for the Fiscal Year
2004-2005. As security for the payment of the principal of and interest on the Notes, the Board,
in the name of the District,has pledged the first "unrestricted moneys", as hereinafter defined
(a) in an amount equal to percent (�%} of the principal amount of the Notes to be
Exhibit A
Page 1
received by the County on behalf of the District in (b) in an amount equal to
percent (_%) of the principal amount of the Notes to be received by the County on
behalf of the District in . (c) in an amount equal to percent (_%) of the
principal amount of the Notes to be received by the County on behalf of the District in
199_,,, (d) in an amount equal to percent(_%) of the principal amount of the Notes to
be received by the County on behalf of the District in , and (e) in an amount equal
to all interest due on the Notes at maturity to be received by the County on behalf of the District
in (such pledged amounts being hereinafter called the "Pledged Revenues"). The
principal of the Notes and the interest thereon shall constitute a first lien and charge thereon
and shall be paid from the Pledged Revenues. To the extent not so paid from the Pledged
Revenues, the Notes shall be paid from any other moneys of the District lawfully available
therefor. The term"unrestricted moneys" shall mean taxes, income, revenue and other moneys
intended as receipts for the general fund of the District and which are generally available for the
payment of current expenses and other obligations of the District.
The Notes are issuable as fully registered notes, without coupons, in denominations of
$1,000 each or any integral multiple thereof. Subject to the limitations and conditions as
provided in the Resolution, Notes may be exchanged for a like aggregate principal amount of
Notes of other authorized denominations and of the same maturity.
`Ite Notes are not subject to redemption prior to maturity.
This Note is transferable by the Owner hereof,but only under the circumstances, in the
manner and subject to the limitations provided in the Resolution. Upon registration of such
transfer a new Note or Notes, of authorized denomination or denominations, for the sante
aggregate principal amount and of the same maturity will be issued to the transferee in
exchange for this Note.
The Board may treat the Owner hereof as the absolute owner hereof for all purposes and
the Board shall not be affected by any notice to the contrary.
Unless this certificate is presented by an authorized representative of The Depository
Trust Company to the issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment is made to
Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede &Co.,has an interest herein.
IN WITNESS WHEREOF, the Board of Supervisors of Contra Costa County, California
has caused. this Note to be issued in the name of the District and to be executed by the manual
signature of the County Treasurer-Tax Collector and countersigned by the facsimile signature of
the Clerk of the Board,all as of the Issue Date stated above.
BOARD OF SUPERVISORS OF CONTRA
COSTA COUNTY
Exhibit A
Page 2
By
Treasurer-Tax Collector
{SEAL}
Countersigned:
Clerk of the Board
Exhibit A
Page 3
_. _. _. _.._..........._..
.... ....... ...__ _ _ . ...... ...................
ASSIGNMENT
For value received the undersigned hereby sells,assigns and transfers unto
(Name,Address and Tax Identification or Social Security Number of Assignee)
the within registered Note and hereby irrevocably constitute(s)and appoints(s)
attorney,
to transfer the same on the Note register of the Treasurer-Tax Collector with full power of substitution in
the premises.
Dated:
Signature:
Note: The signature(s) on this Assignment must
correspond with the name(s)as written on the face of
the within Note in every particular without alteration
or enlargement or any change whatsoever.
Signature Guaranteed:
Note: Signature(s)must be guaranteed by a qualified
guarantor.
Exhibit A
Page 4
Quint &Thinmig LLP 09/07/04
MT. DIABLO UNIFIED SCHOOL DISTRICT
(Centra Costa County, California)
2004 TAX AND REVENUE ANTICIPATION NOTES
NOTE PURCHASE AGREEMENT
October 27, 2004
Board of Supervisors
Contra Costa County
651 Pine Street, 11th Floor
Martinez, CA 94533
Board of Education
Mt. Diablo Unified School District
1936 Carlotta Drive
Concord, CA 94519-1397
Ladies and Gentlemen:
The undersigned (the "Underwriter"), acting on behalf of ourselves, offer to enter
into this agreement with Contra Costa County, California (the "County"), and the Mt.
Diablo Unified School District (the "District"), which, upon your acceptance hereof, will be
binding upon the District, the County and the Underwriter. This offer is made subject to the
acceptance of the Note Purchase Agreement by the County and the District and written
delivery of such acceptance to the Underwriter at or prior to 11:59 P.M., Pacific Time, on
the day next proceeding the day of Closing, as hereinafter defined.
1. Purchase and Sale of the Notes. Upon the terms and conditions and in reliance
upon the representations, warranties and agreements herein set forth, the Underwriter
hereby agrees to purchase from the District for reoffering to the public, and the District
hereby agrees to sell to the Underwriter for such purpose, all (but not less than all) of
$---.00 aggregate principal amount of the District's 2004 Tax and Revenue
Anticipation Notes (the "Notes") issued in the name of the District by the County;
provided, that during the period from the execution of the Note Purchase Agreement to
and including the Closing date thereof, the District may retain the right to reduce the
aggregate principal amount of the Notes in order to comply with applicable federal tax law
once determined.
The Notes shall be dated the date of delivery thereof, which date is anticipated to be
November 10, 2004, shall bear interest at a rate of % per annum, and shall mature on
November 9, 2005. The purchase price to be paid by the Underwriter for the Notes shall
include a premium offered by the Underwriter for purchase of the Notes of $
making the aggregate purchase price for the Notes$
13008.07
2. The Notes. The Notes shall be described in, and shall be issued and secured
pursuant to the provisions of the Resolution of the County adopted October 12, 2004 (the
"County Resolution"), at the request of the District pursuant to a resolution adopted
September 28, 2004 (the "District .Resolution") (collectively, the "Resolutions"), and Article
7.6, Chapter 4, Part 1, Division 2, Title 5 (commencing with section 53850) of the California
Government Code (the ""Act").
3. of Do um _nts. The District hereby approves and authorizes the Underwriter
to use, in connection with the offer and sale of the Notes, this Note Purchase Agreement and
an Official Statement, in a form to be jointly approved by the District and the Underwriter
(which, together with all appendices thereto and with such changes therein and
supplements thereto consented to by the Underwriter, is herein called the "Official
Statement"), the Resolutions and all information contained herein and therein and all of the
documents, certificates or statements furnished by the District or the County to the
Underwriter in connection with the transaction contemplated by this Note Purchase
Agreement.
4.Public Offeringof Notes. The Underwriter agrees to make a bona fide public
offering of all the Notes at the initial public offering price or yield to be set forth on the
cover page of the Official Statement. A certificate is being delivered by the Underwriter in
connection with the issuance of the Notes (and as a condition of closing) wherein the
Underwriter states and certifies to the District that the initial reoffering price of the Notes to
the general public (excluding bond houses, brokers, or similar persons or organizations
acting in the capacity of underwriters or wholesalers), at which price at least ten percent
(101%)of the Notes were sold, is as set forth on the cover page of the Official Statement.
Subsequent to such initial public offering, the underwriter reserves the right to
change such initial public offering price or yield as it deems necessary in connection with
the marketing of the Notes.
5.Delivery of Official Statement. Prior to the closing, the District shall deliver to the
Underwriter such reasonable number of the Official Statement (as supplemented and
amended from time to time) as the Underwriter shall reasonably request as necessary to
comply with Rule 15c2-12 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934 (the "Rule") and with Rule C-32 and all other applicable rules of the
Municipal Securities Rulemaking Board. The District agrees to deliver such Official
Statement within five (5) business days after the execution thereof. The Underwriter will not
confirm the sale of any Notes unless the confirmation of sale is accompanied or preceded by
the delivery of a copy of the Official Statement.
6.QosIng. At 8:00 A.M., Pacific Time, on November 10, 2004, or such other time or
such other date as shall have been mutually agreed upon by the District and the
Underwriter (the "Closing"'), the District will deliver to the Underwriter, through the
facilities of the Depository Trust Company in New York, New York, or at such other place
as the District and the Underwriter may mutually agree upon, the Notes in definitive form,
duly executed, together with other documents hereinafter mentioned; and the Underwriter
will accept such delivery and pay the purchase price thereof in immediately available
funds to the order of the County on behalf of the District. The Notes will be initially issued
in the form of a separate single fully registered note. Upon initial issuance, the ownership of
such Notes shall be registered in the registration books kept at the County in the name of
Cede & Co., as the nominee of the Depository Trust Company. Notwithstanding anything to
the contrary herein contained, if for any reason whatsoever, the Notes shall not have been
delivered by the District to the Underwriter prior to the close of business, Pacific Time on
December 10, 2004, then the obligation to purchase Notes hereunder shall terminate and be
-2-
of no further force or effect with respect to the obligations of the District and the
Underwriter under Section 11 hereof.
y 4 a a t f the t . The County hereby
represents, warrants and agrees with the Underwriter that:
(a) The County is a political subdivision duly organized and validly existing under
the laws of the State of California, with the power to issue the Notes pursuant to the Act.
(b) At or prior to the Closing, (i) the County will have taken all action required to be
taken by it to authorize the issuance and delivery of the Notes; (ii) the County has full legal
right, power and authority to enter into this Note Purchase Agreement and to adopt the
County resolution, and the County has full legal right, power and authority to issue and
deliver the Notes to the Underwriter in the name of the District and the County has full
legal right, power and authority to perform its obligations under each such document or
instrument, and to carry out and effectuate the transaction contemplated by this Note
Purchase Agreement and the Resolutions; (iii) the execution and delivery or adoption of,
and the performance by the County of the obligations contained in the Note, the Resolutions
and this Note Purchase Agreement have been duly authorized and such authorization shall
be in full force and effect at the time of the Closing; (iv) this Note Purchase Agreement
constitutes a valid and legally binding obligation of the County; and, (v) the County has
authorized the consummation by it of all transactions contemplated by this Note Purchase
Agreement.
(c) No consent, approval, authorization., order, filing, registration, qualification,
election or referendum of or by any person, organization, court or governmental agency or
public body whatsoever is required in connection with the issuance, delivery or sale of the
Notes or the consummation of the other transactions effected or contemplated herein or
hereby, except for such actions as may be necessary to qualify the Notes for offer and sale
under the Blue Sky and or other securities laws and regulations of such states and
jurisdictions of the United States as the Underwriter may designate.
(d) The issuance of the Notes, the execution, delivery and performance of this Note
Purchase Agreement, the Resolutions and the Notes, and compliance with the provisions
hereof do not conflict with or constitute on the part of the County a violation of or a default
under, the Constitution of the State of California or any other existing law, charter,
ordinance, regulation, decree order or resolution and do not conflict with or result in a
violation or breach of, or constitute a default under, any agreement, indenture, mortgage,
lease or other instrument to which the County is a party or by which it is bound or to which
it is subject.
(e) To the best of the County's knowledge, no action, suit, proceeding, hearing or
investigation is pending or threatened against the County: (i) in any way affecting the
existence of the County or in any way challenging the respective powers of the several
offices of the titles of the officials of the County to such offices; or (ii) seeking to restrain or
enjoin the sale, issuance or delivery of any of the Notes, the application of the proceeds of
the sale of the Notes, or the collection of the principal and interest on the Notes, or the
pledge thereof, or in any way contesting or affecting the validity or enforceability of the
Notes, this Note Purchase Agreement or the Resolutions or contesting the powers of the
County or its authority with respect to the Notes, the Resolutions or this Note Purchase
Agreement; or (iii) in which a final adverse decision could (a) materially adversely affect
the operations of the County or the consummation of the transactions contemplated by this
Note Purchase Agreement of the Resolutions, (b) declare this Nate Purchase Agreement to
be invalid or unenforceable in whole or in material part, or (c) adversely affect the exclusion
3-
of the interest paid on the Notes from gross income for federal income tax purposes and the
exemption of such interest from California personal income taxation.
(f) Any certificates signed by any officer of the County and delivered to the
Underwriter shall be deemed a representation and warranty by the County, as the case may
be, to the Underwriter as to the statements made therein but not of the person signing the
same.
g, and r t f the District. The District hereby
represents, warrants and agrees with the Underwriter that.
(a) The District is a school district duly organized and validly existing under the
laws of the State of California, with the power to request the issuance of the Notes pursuant
to the Act.
(b) At or prior to the Closing, (i) the District will have taken all action required to be
taken by it to authorize the issuance and delivery of the Notes; (ii) the District has full legal
right, power and authority to enter into this Note Purchase Agreement and to adopt the
District Resolution, and the District has full legal right, power and authority to perforin its
obligations under each such document or instrument, and to carry out and effectuate the
transaction contemplated by this Note Purchase Agreement and the Notes Resolution; (iii)
the execution and delivery or adoption of, and the performance by the District of the
obligations contained in the Notes, the Resolutions and this Note Purchase Agreement have
been duly authorized and such authorization shall be in full farce and effect at the time of
the Closing; (iv) this Note Purchase Agreement constitutes a valid and legally binding
obligation of the County and the District; and (v) the County and the District have each
authorized the consummation by it of all transactions contemplated by this Note Purchase
Agreement.
(c) No consent, approval, authorization, order, filing, registration, qualification,
election or referendum, of or by any person, organization, court or government agency or
public body whatsoever is required in connection with the issuance, delivery or sale of the
Notes or the consummation of the other transactions effected or contemplated herein or
hereby, except for such actions as may be necessary to qualify the Notes for offer and sale
under the Blue Sky and or other securities laws and regulations of such states and
jurisdictions of the United States as the Underwriter may designate.
(d) The issuance of the Notes, the execution, delivery and performance of this Note
Purchase Agreement, the Resolutions and the Notes, and compliance with the provisions
hereof do not conflict with or constitute on the part of the District a violation of or default
under, the Constitution of the State of California or any other existing law, charter,
ordinance, regulation, decree order or resolution and do not conflict with or result in a
violation or breach of, or constitute a default under, any agreement, indenture, mortgage,
lease or other instrument to which the District is a party or by which it is bound or to which
it is subject.
(e) To the best of the District's knowledge, no action, suit, proceeding, hearing or
investigation is pending or (to the knowledge of the District) threatened against the District:
(i) in any way affecting the existence of the District or in any way challenging the respective
powers of the several offices of the titles of the officials of the District to such offices; or (ii)
seeking to restrain or enjoin the sale, issuance or delivery of the Notes, the application of the
proceeds of the sale of the Notes, or the collection of the revenue or assets of the District
pledged or available to pay the principal and interest on the Notes, or the Pledge thereof, or
in any way contesting or affecting the validity or enforceability of the Notes, this Note
-4-
Purchase Agreement or the .Resolutions or contesting the powers of the District or its
authority with respect to the Notes, the Resolutions or this Note Purchase Agreement; or
(iii)in which a final adverse decision could (a) materially adversely affect the operations of
the District or the consummation of the transactions contemplated by this Note Purchase
Agreement and the Resolutions, (b) declare this Dote Purchase Agreement to be invalid or
unenforceable in whole or in material part, or (c) adversely affect the exclusion of the
interest paid on the Notes from gross income for federal income tax purposes and the
exemption of such interest from California personal income taxation.
(f) Between the date hereof and the date of the Closing, the District has not, without
prior written consent of the Underwriter, borrowed any additional moneys except for such
borrowings as may be described in or contemplated by the official Statement.
(g) The District has not been notified of any listing or proposed listing by the Internal
Revenue Service to the effect that the District is a bond issuer whose arbitrage certificates
may not be relied upon.
(h) Any certificates signed by any officer of the District and delivered to the
Underwriter shall be deemed a representation and warranty by the District, as the case may
be, to the Underwriter as to the statements made therein but not of the person signing the
same.
9.Covenants of the PhWrict, The District covenants and agrees with the Underwriter
that:
(a) The District will furnish such information, execute such instruments, and take
such action in cooperation with the Underwriter if and as the Underwriter may reasonably
request in order to qualify the Notes for offer or sale under the Blue Sky or other securities
laws and regulations or such states and jurisdictions, provided, however, that the District
shall not be required to consent to process in any jurisdiction.
(b) The District will apply the proceeds from the sale of the Motes for the purposes
specified in the Resolutions: and
(c) For a period of 90 days after the Closing or until such time (if earlier) as the
Underwriter shall no longer hold any of the Notes for sale, the District will adopt any
amendment of or supplement to the Official Statement if any event relating to or affecting
the District shall occur as a result of which it is necessary to amend or supplement the
Official Statement in order to make the Official Statement not misleading in light of the
circumstances existing at the time it is delivered to the purchaser. Any information
supplied by the District for inclusion in any amendment or supplement to the Official
Statement will amend or supplement the Official Statement so that it will not contain an
untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances existing at the time the Official
Statement is delivered to a purchaser, not misleading.
(d) Conditions and Closing. The Underwriter has entered into this Note Purchase
Agreement in reliance upon the representations and warranties of the County and the
District contained herein and the performance by the District of its obligations hereunder,
both as of the date hereof and as of the date of Closing. The Underwriter's obligations under
this Nate Purchase Agreement are and shall be subject, at the option of the Underwriter, to
the following further conditions at the Closing:
(e) The representations and warranties of the County and the District contained
herein shall be true, complete and correct in all material respects as of the date hereof and as
of the date of Closing, as if made at and as of the Closing, and the statements made in all
certificates and other documents delivered to the Underwriter at the Closing pursuant
hereto shall be true, complete and correct in all material respects on the date of the Closing;
and the County and the District shall be in compliance with each of the agreements made by
it in this Note Purchase Agreement.
(f) At the time of the Closing, (i) the Official Statement, this Note Purchase
Agreement and the Resolutions shall be in full force and effect and shall not have been
amended, modified or supplemented except as may have been agreed to in writing by the
Underwriter; (ii) all actions under the Act which, in the opinion of the firm of Quint &
Thimig LLP, bond counsel ("Bond Counsel"), shall be necessary in connection with the
transactions contemplated hereby, shall have been duly taken and shall be in full force and
effect; and, (iii) the County and the District shall perform or have performed all of their
obligations required under or specified in the Resolutions, the Note Purchase Agreement or
the Official Statement to be performed at or prior to the Closing.
(g) No decision, ruling or finding shall have been entered by any court or
governmental authority since the date of this Vote Purchase Agreement (and not reversed
on appeal or otherwise set aside), or to the best knowledge of the County and the District,
pending or threatened or contesting in any way the completeness or accuracy of the Official
Statement.
(h) No order, decree or injunction of any court of competent jurisdiction, nor any
order, ruling or regulation of the Securities and Exchange Commission, shall have been
issued or made with the purpose or effect of prohibiting the issuance, offering or sale of the
Notes as contemplated hereby and no legislation shall have enacted, or a bill favorably
reported for adoption, or a decision by a court established under Article III of the
Constitution of the United States rendered, or a ruling, regulation, proposed regulation or
official statement by or on behalf of the Securities and Exchange Commission or other
governmental agency having jurisdiction of the subject matter shall be made or issued, to
the effect that the Notes or any securities of the County or of any similar body of the type
contemplated herein are not exempt from the registration, qualification or other
requirements of the Securities Act of 1933, as amended and as then in effect, or the Trustee
Indenture Act of 1939, as amended and as then in effect.
(i) At or prior to the date of the Closing, the Underwriter shall receive one copy of
the following documents in each case dated as of the Closing Date and satisfactory in form
and substance to the Underwriter:
(1) An approving opinion of Bond Counsel, as to the Notes, addressed to the
District
(2) A letter setting forth that the Underwriter can rely upon the approving
opinion of Bond Counsel.
(3) A certificate signed by appropriate officials of the District to the effect that
there is no action, suit, proceeding, inquiry or investigation, at law or in equity,
before or by any court or public body, pending, or to his or her knowledge,
threatened against the District or contesting in any way the completeness or accuracy
of the Official Statement (but in lieu of or in conjunction with such certification the
Underwriter may, at its sole discretion, accept certificates, opinions of the District
Counsel or Bond Counsel, that in their opinion the issues raised in any such pending
-6-
or threatened litigation are without substance and that the contentions of all
plaintiffs therein are without merit).
(4) A certificate signed by appropriate officials of the County and the District
to the effect that(i) the representation, agreements and warranties of the County and
the District herein are true and correct in all material respects as of the date of
Closing; (ii) the County and the District have complied with all the terms of the
Resolutions and. this Note Purchase Agreement to be complied with by the Closing
and such documents are in full force and effect; (iii) such officials have reviewed the
Official Statement and on such basis certifies that the Official Statement does not
contain any untrue statement of a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which they
are made, not misleading.
(5) A non-arbitrage certificate of the District in form satisfactory to Bond
Counsel.
(6) Evidence satisfactory to the Underwriter that the Notes shall have been
rated "SP-2+" by Standard &Poor's Ratings Services (or such other equivalent rating
as such rating agency may give) and that such rating has not been revoked or
downgraded.
(7) A certificate, together with fully executed copies of the Resolutions, of the
District Clerk to the effect that (i) such copies are true and correct copies of the
Resolutions; and (ii) that the Resolutions were duly adopted and have not been
modified, amended rescinded or revoked and are in full force and effect on the date
of the Closing.
(8) Such additional legal opinion, certificates, proceedings, instruments and
other documents as the Underwriter may reasonably request to evidence compliance
(i) by the County and the District with legal requirements; (ii) the truth and
accuracy, as of the time of Closing, of the representations of the County and the
District herein contained and of the Official Statement; and, (iii) the due
performance or satisfaction by the County and the District at or prior to such time of
all agreements then to be performed and all conditions then to be satisfied by the
District.
If the County and/or the District shall be unable to reasonable satisfy the conditions
requested by the Underwriter to evidence compliance with the terms and conditions set
forth in this Dote Purchase Agreement, the Underwriter's obligations for the purchase of the
Notes shall be terminated for any reason permitted by this Note Purchase Agreement, and
this Note Purchase Agreement may be canceled by the Underwriter at, or at any time prior
to, the time of Closing. Notice of such cancellation shall be given to the County and the
District in writing, or by telephone or telegraph confirmed in writing. Notwithstanding any
provision herein to the contrary, the performance and any and all obligations of the County
and the District hereunder and the performance of any and all conditions contained herein
for the benefit of the Underwriter may be waived by the Underwriter in writing at its sole
discretion.
The Underwriter shall also have the right to cancel its obligation to purchase the
Notes, by written notice to the County and the District, if between the date hereof and the
Closing: (i) any event occurs or information becomes known, which, in the reasonable
professional judgment of the Underwriter, makes untrue any statement of a material fact set
forth in the Official Statement or results in an omission to state a material fact necessary to
-7-
make the statements therein,in light of the circumstances under which they were made, not
misleading; (ii) the market for the Notes or the market price of the Notes or the ability of the
Underwriter to enforce contracts for the sale of the Notes shall have been materially and
adversely affected, in the reasonable professional judgment of the Underwriter, by (a)
legislation has been referred by consideration, or by the legislature of the State of California
(the "State"), or a decision rendered by a court of the United States or the State or by the
United States Tax Court, or a ruling, order, or regulation (final or temporary) made by the
Treasury Department of the United States or the Internal Revenue service or there federal or
State authority, which would have the effect of changing, directly or indirectly, the federal
income tax consequences or State tax consequences of interest on obligations of the general
character of the Notes in the hands of the holders thereof, or (b) any new outbreak of
hostilities or other national or international calamity or crisis, the effect of such outbreak on
the financial markets of the United States begin such as, in the judgment of the Underwriter,
would affect materially and adversely the ability of the Underwriter to market the Notes, or
(c) a general suspension of trading on the New York Stock Exchange, or fixing of minimum
or maximum prices for trading or maximum ranges for prices for securities on the New
York Stock Exchange, whether by virtue or a determination by that Exchange or by order of
the Securities and Exchange Commission or any other governmental authority having
jurisdiction, or (d) a general banking moratorium declared by either federal or State
authorities having jurisdiction; or (iii) additional material restrictions not in force or being
enforced as of the date hereof shall have been imposed upon trading in securities generally
by any governmental authority or by any national securities exchange which, in the opinion
of the Underwriter, materially adversely affect the market price for the Notes.
11Conditi -tQ Oblizationsi i t. The performance by the
County and the District of their obligations is conditioned upon (i) the performance by the
Underwriter of its obligations hereunder, and (ii) receipt by the District and the
Underwriter of opinions and certificates being delivered at the Closing by persons and
entities other than the County and the District.
12. Expem=. The District shall pay the expenses incident to the performance of its
obligations hereunder from the proceeds of the Notes (or from any other source of available
funds of the District) which expenses include and are limited to: (i) the cost of the
preparation and reproduction of the Resolutions; (ii) the fees and disbursements of Bond
Counsel; (iii) the fees and disbursements of Financial Advisor; (iv) the costs of the
preparation, printing and delivery of the Notes; (v) the costs of the preparation, printing
and delivery of the Official Statement and any amendment or supplement thereto in the
quantity requested by the Underwriter, and, (vi) rating fees of Standard & boor's Ratings
Group.
All other costs and expenses incurred by the Underwriter as a result of or in
connection with the purchase of the Nates shall be borne by the Underwriter, including, but
not limited to: (i) clearing house fees, (ii) DTC fees; (iii) CUSIP fees; (iv) CDIAC fees; (v)
PSA fees, (vi) MSRB fees; and, (vii) costs or fees of qualifying the Notes for offer and sale in
various states chosen by the Underwriter and the costs or fees of preparing Blue Sky or
legal investment memoranda to be used in connection therewith.
13. &2tices. Any notice or other communication to be given under this Note
Purchase Agreement (other than the acceptance hereof as specified in the first paragraph
hereof) may be given by delivering the same in writing if to the County, to the Treasurer-
Tax Collector of Contra Costa County, if to the District, to the Director of Fiscal Services, or
if to the Underwriter to the attention of
14. tal of- Representations and WarL4nfiga. This Note
Purchase Agreement when accepted by the District in writing as heretofore specified shall
constitute the entire agreement among the County, the District and the Underwriter. This
Note Purchase Agreement is made solely for the benefit of the County, the District and the
Underwriter (including the successors or assigns of the Underwriter). No person shall
acquire or have any rights hereunder or by virtue hereof. All the representations, warranties
and agreements of the County and the District in this Note Purchase Agreement shall
survive regardless of (a) any investigation or any statement in respect thereof made by or on
behalf of the Underwriter, (b) delivery of and payment by the Underwriters for the Notes
hereunder, and (c) any termination of this Note Purchase Agreement.
15. Execution in Cgunterp�. This Note Purchase Agreement may be executed in
several counterparts each of which shall be regarded as an original of all of which shall
constitute one and the same document.
16. tn)12li able Law. This Note Purchase Agreement shall be interpreted, governed
and enforced -Mi accordance with the law of the State of California.
Very truly yours,
By Authorized Representative
The foregoing is hereby agreed to and
accepted as of the date first written above:
CONTRA COSTA COUNTY
By William J. Pollacek,
Treasurer-Tax Collector
MT. DIABLO UNIFIED SCHOOL
DISTRICT
By Richard Nicoll,
Assistant Superintendent,
Administrative Services
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Quint &Thimmig LLP 09/07/04
CONTINUING DISCLOSURE CERTIFICATE
This Continuing Disclosure Certificate (the "'Disclosure Certificate") is executed and
delivered by the MT. DIABLO UNIFIED SCHOOL DISTRICT (the. "District") in connection
with the issuance by the Board of Supervisors of Contra Costa County (the "Board") in the
name of the District of $ Mt. Diablo Unified School District (Contra Costa
County, California) 2004 Tax and Revenue Anticipation Notes (the "Notes"). The Notes are
being issued pursuant to a resolution adopted by the Board of Education of the District on
September 28, 2004, and a resolution adopted by the Board on October 12, 2004
(collectively, the "Resolution"). The District covenants and agrees as follows:
Section 1. Purpose of the Disclosure ertificate. This Disclosure Certificate is being
executed and delivered by the District for the benefit of the holders and beneficial owners
of the Notes and in order to assist the Participating Underwriters in complying with S.E.C.
Rule 15c2-12(b)(5).
Section 2. Definitions. In addition to the definitions set forth in the Resolution, which
apply to any capitalized term used in this Disclosure Certificate unless otherwise defined
in this Section, the following capitalized terms shall have the following meanings:
"Dissemination Agent"shall mean the District, or any successor Dissemination Agent
designated in writing by the District and which has filed with the District a written
acceptance of such designation.
"Listed Events" shall mean any of the events listed in Section3(a) of this Disclosure
Certificate.
".National Repository" shall mean any Nationally Recognized Municipal Securities
Information Repository for purposes of the Rule.
"Participating Underwriter" shall mean any of the original underwriters of the Notes
required to comply with the Rule in connection with offering of the Notes.
"Rule" shall mean Rule 1 5c2-12(b)(5) adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as the same may be amended from
time to time.
"State Repository,"shall mean any public or private repository or entity designated by
the State of California as a state repository for the purpose of the Rule and recognized as
such by the Securities and Exchange Commission. As of the date of this Disclosure
Certificate, there is no State Repository.
Section 3. ,Rel2 rting ofSignificant Events.
(a) Pursuant to the provisions of this Section 3, the District shall give, or cause to be
given, notice of the occurrence of any of the following events with respect to the Notes, if
material:
13008.07
(i) Principal and interest payment delinquencies.
(ii)Non-payment related defaults.
(iii) Unscheduled draws on debt service reserves reflecting financial difficulties.
(iv) Unscheduled draws on credit enhancements reflecting financial difficulties.
(v) Substitution of credit or liquidity providers, or their failure to perform.
(vi)Adverse tax opinions or events affecting the tax-exempt status of the security.
(vii) Modifications to rights of security holders.
(viii) Contingent or unscheduled bond calls.
(ix)Defeasances.
(x) Release, substitution, or sale of property securing repayment of the securities.
(xi) Rating changes.
(b) Whenever the District obtains knowledge of the occurrence of a Listed Event, the
District shall as soon as possible determine if such event would be material under
applicable Federal securities law.
(c) If the District determines that knowledge of the occurrence of a Listed Event
would be material under applicable Federal securities law, the District shall promptly file a
notice of such occurrence with each National Repository or with the Municipal Securities
Rulemaking Board and with each State Repository. Notwithstanding the foregoing, notice
of Listed Events described in subsections (a)(viii) and (ix) need not be given under this
subsection any earlier than the notice (if any) of the underlying event is given to holders of
affected Notes pursuant to the Resolution.
Section 4. Termination ofReporting Obligation. The District's obligations under this
Disclosure Certificate shall terminate upon the legal defeasance, prior redemption or
payment in full of all of the Notes. If such termination occurs prior to the final maturity of
the Notes, the District shall give notice of such termination in the same manner as for a
Listed Event under Section 3(c).
Section 5. Dissemination Agent. The District may, from time to time, appoint or
engage a Dissemination Agent to assist it in carrying out its obligations under this
Disclosure Certificate, and may discharge any such Agent, with or without appointing a
successor Dissemination Agent. The initial Dissemination Agent shall be the District.
Section b. Amendment; Waiver. Notwithstanding any other provision of this
Disclosure Certificate, the District may amend this Disclosure Certificate, and any
provision of this Disclosure Certificate may be waived, provided that the following
conditions are satisfied:
(a) if the amendment or waiver relates to the provisions of Section 3(a) it may only be
made in connection with a change in circumstances that arises from a change in legal
requirements, change in law, or change in the identity, nature, or status of an obligated
person with respect to the Notes, or type of business conducted;
(b) the undertakings herein, as proposed to be amended or waived, would, in the
opinion of nationally recognized bond counsel, have complied with the requirements of the
Rule at the time of the primary offering of the Notes, after taking into account any
amendments or interpretations of the Rule,as well as any change in circumstances; and
(e) the proposed amendment or waiver either (i) is approved by holders of the Notes
or (ii) does not, in the opinion of the Trustee or nationally recognized bond counsel,
materially impair the interests of the holders or beneficial owners of the Notes.
-2-
Section 7. Additional Information. Nothing in this Disclosure Certificate shall be
deemed to prevent the District from disseminating any other information, using the means
of dissemination set forth in this Disclosure Certificate or any other means of
communication, or including any other information in any notice of occurrence of a Listed
Event, in addition to that which is required by this Disclosure Certificate. If the District
chooses to include any information in any notice of occurrence of a Listed Event in addition
to that which is specifically required by this Disclosure Certificate, the District shall have
no obligation under this Disclosure Certificate to update such information or include it in
any future notice of occurrence of a Listed Event.
Section 8. Default. In the event of a failure of the District to comply with any provision of
this Disclosure Certificate any holder or beneficial owner of the Notes may take such
actions as may be necessary and appropriate, including seeking mandate or specific
performance by court order, to cause the District to comply with its obligations under this
Disclosure Certificate. A default under this Disclosure Certificate shall not be deemed an
Event of Default under the Resolution, and the sole remedy under this Disclosure
Certificate in the event of any failure of the District to comply with this Disclosure
Certificate shall be an action to compel performance.
Section 9. Duties Immunities and Liabilities of Dissemination Agent. The
Dissemination Agent shall have only such duties as are specifically set forth in this
Disclosure Certificate, and the District agrees to indemnify and save the Dissemination
Agent, its officers, directors, employees and agents, harmless against any loss, expense and
liabilities which it may incur arising out of or in the exercise or performance of its powers
and duties hereunder, including the costs and expenses (including attorneys fees) of
defending against any claim of liability, but excluding liabilities due to the Dissemination
Agent's negligence or willful misconduct. The obligations of the District under this Section
shall survive resignation or removal of the Dissemination Agent and payment of the Notes.
Section 14. Beneficiaries. This Disclosure Certificate shall inure solely to the benefit
of the District, the Dissemination Agent, the Participating Underwriters and holders and
beneficial owners from time to time of the Notes, and shall create no rights in any other
person or entity.
Date: [Closing Date]
MT. DIABLO UNIFIED SCHOOL
DISTRICT
By
Richard Nicoll,
Assistant Superintendent,
Administrative Services
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Quint &Thinunig LLP 09/07/04
FORM OF .FINAL OPINION OF BOND COUNSEL
[Letterhead of Quint & Thimmig LLP]
[Closing Date]
Board of Education
Mt. Diablo Unified School District
1936 Carlotta Drive
Concord, California 94519
OPINION: $ Mt. Diablo Unified School District(Contra Costa County, California) 2004
Tax and Revenue Anticipation Nates
Members of the Board of Education:
We have acted as bond counsel to the Mt. Diablo Unified School District (the
"District") in connection with the issuance by the Board of Supervisors of Contra Costa
County (the "Board") of $ principal amount of Mt. Diablo Unified School
District (Contra Costa County, California) 2004 Tax and Revenue Anticipation Notes, dated
November 13, 2004 (the `Notes"), pursuant to .Article 7.6 (commencing with section 53850),
Chapter 4, Part 1, Division 2, Title 5 of the California Government Code, a resolution
adopted by the Board. of Education of the District on September 28, 2004 (the "District
Resolution"), and a resolution adopted by the Board on October 12, 2004 (the "Board
Resolution" and, collectively, the "Resolutions"). We have examined the law and such
certified proceedings and other papers as we deemed necessary to render this opinion.
As to questions of fact material to our opinion, we have relied upon representations
of the Board contained in the Board Resolution and of the District in the District Resolution
and in the certified proceedings and certifications of public officials and others furnished to
us, without undertaking to verify such facts by independent investigation.
Based upon our examination, we are of the opinion, as of the date hereof, that:
1. The District is duly created and validly existing as a school district with the power
to perform its obligations under the District Resolution, to cause the Board to issue the
Notes in its name and to perform its obligations under the Board Resolution and the Notes.
2. The District Resolution has been duly adopted by the District. The Board
Resolution has been duly adopted by the Board and creates a valid first lien on the funds
pledged under the Board Resolution for the security of the Notes.
3. The Notes have been duly authorized, issued and delivered by the Board and are
valid and binding ,general obligations of the District enforceable in accordance with their
terms.
13008.07
Board of Education of the [Closing Late]
__ ILDiahlallnifie Schoo Distriic
4. The interest on the Nates is excluded from gross income for federal income tax
purposes and is not an item of tax preference for purposes of the federal alternative
minimum tax imposed on individuals and corporations; it should be noted, however, that,
for the purpose of computing the alternative minimum tax imposed on corporations (as
defined for federal income tax purposes), such interest is taken into account in determining
certain income and earnings. The opinions set forth in the preceding sentence are subject to
the condition that the District comply with all requirements of the Internal Revenue Code of
2986 that must be satisfied subsequent to the issuance of the Notes in order that interest
thereon be, or continue to be, excluded from gross income for federal income tax purposes.
The District has covenanted to comply with each such requirement. Failure to comply with
certain of such requirements may cause the inclusion of interest on the Notes in gross
income for federal income tax purposes to be retroactive to the date of issuance of the
Notes. We express no opinion regarding other federal tax consequences arising with respect
to the Notes.
5.The interest on the Notes is exempt from personal income taxation imposed by the
Mate of California.
The rights of the owners of the Notes and the enforceability thereof may be subject to
bankruptcy, insolvency, moratorium and other similar laws affecting creditors' rights
heretofore or hereafter enacted and their enforcement may,be subject to the exercise of
judicial discretion in accordance with general principles of equity.
Respectfully submitted,
TO: BOARD OF SUPERVISORS Contra
,M
FROM: JOHN SWEETEN, COUNTY ADMINISTRATOR Costa
t
DATE: October 12, 2004 '���"
sr� c
County
SUBJECT: MT. DIABLO UNIFIED SCHOOL DISTRICT
$25,000,000 2004 TAX AND REVENUE ANTICIPATION NOTES C44
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS:
1. ADOPT Resolution 2004/53&_ authorizing, on behalf of Mt. Diablo Unified School District, the sale
and issuance of Tax and Revenue Anticipation Notes in an amount not to exceed $25,000,000.
FISCAL. IMPACT
There is no fiscal impact to the County related to this item.
BACKGROUND
Under state law, the Contra Costa County Board of Supervisors is required to authorize the sale and
issuance of tax and revenue anticipation notes (TRANS)for school districts within the County. No financial
obligation Is assumed with these authorizations. The County's Treasurer/Tax Collector Is the paying agent
for these notes.
The Mt. Diablo Unified School District is issuing these TRANS to meet financial needs of the District for the
fiscal year 2004-2005.
CONSEQUENCES OF NEGATIVE ACTION
Without the Contra Costa County Board of Supervisors authorization, Mt. Diablo Unified School District
would not be able to issue the tax and revenue anticipation notes, thereby delaying or prohibiting payment
of necessary school expenses.
CONTINUED ON ATTACHMENT: x YES SIGNATURE:
----�.�.,----____._n .. .�....__. __........ ....._ __.__ _...__. .._ .._
_.,RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMME ION OF BOARD C MITTEE
-_,—,-APPROVE OTHER
ACTION OF BO ON OCTA t R 1Z,„2004 At'PRC3vE As RECOMMENDED OTHER
VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE
AND CORRECT COPY OF AN ACTION TAKEN
UNANIMOUS(ABSENT G' .'�--�" } AND ENTERED ON THE MINUTES OF THE
BOARD OF SUPERVISORS ON THE DATE
AYES: NOES: SHOWN.
ASSENT: ABSTAIN:
ATTESTED
CONTACT: Laura Lockwood JOHN SWEET N,CLERK OF THE BOARD
OF SUPERVISORS AND COUNTY
ADMINISTRATOR
CC: Jason Crapo
John Sweeten.County Administrator
Quint&Thimmig
t !
BY EPUTY