HomeMy WebLinkAboutReso 034-88 DII LeaseAgmtJHI-IW:CFA:dfd
Febn,~.~!ieS8
RESOLUTION NO. 34 - 88
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN
APPROVING AMENDMENT OF LEASE AGREEMENT WITH DUBLIN
INFORMATION, INC., APPROVING FORM OF TRUST AGREEMENT,
APPROVING FORM OF OFFICIAL STATEMENT AND SALE OF NOT
TO EXCEED $17,500,000 1988 REFUNDING CERTIFICATES
OF PARTICIPATION, AND APPROVING RELATED DOCUMENTS
AND OFFICIAL ACTION
F7854
WHEREAS, the City of Dublin (the "City") and Dublin Information, Inc. (the
"Corporation") have heretofore entered into that certain Lease Agreement Relating to
Public Facilities Project No. I dated as of December 18, 1985, (the "Original Lease") by
and between the Corporation as lessor and the City as lessee, with respect to the land
and civic center improvements described more fully therein (the "Project"); and
WHEREAS, the City has determined that it is in the economic interests of the
City at this time to provide for the refmancing of the City's existing obligations under the
Original Lease and to provide additional funds to the City to finance the completion of
the Project, and to that end the Corporation and the City propose to enter into that
certain First Amended and Restated Lease Agreement dated as of March 1, 1988, (the
"Lease Agreement") by and between the Corporation as lessor and the City as lessee,
amending and restating the Original Lease in full; and
WHEREAS, for the purpose of obtaining the moneys required for such purposes,
the Corporation proposes to assign and transfer certain of its rights under the Lease
Agreement to The Bank of California, N.A. as trustee (the "Trustee") pursuant to that
certain Assignment Agreement dated as of March 1, 1988, by and between the
Corporation as assignor and the Trustee as assignee; and
WHEREAS, in consideration of such assignment and the execution of that certain
Trust Agreement dated as of March 1, 1988, (the "Trust Agreement") by and among the
Corporation, the City and the Trustee, the Trustee will execute and deliver 1988
Refunding Certificates of Participation (Civic Center Project) in the principal amount of
not to exceed $17,500,000 (the ~Certi~cates of Participation"), each evidencing an
undivided fractional interest in the Lease Payments made by the City under the Lease
Agreement; and
WHEREAS, Rauscher Pierce Refsnes, Inc. as prospective underwriter of the
Certificates of Participation (the "Underwriter"), has informed the Corporation and the
City that it intends to submit an offer to purchase the Certificates of Participation, and in
connection with the remarketing of the Certificates of Participation the .Underwriter has
caused to be prepared an Official Statement describing the Certificates of Participation;
and
WHEREAS, the City Council approves of said transactions as being in the public
interests of the City;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Dublin as follows:
Section 1. Amendment of Lease Agreement. The City Council hereby
approves the amendment of the Original Lease pursuant to the Lease Agreement in
substantially the form on file with the City Clerk together with any changes therein or
additions thereto deemed advisable by the City Manager. The City Council hereby
authorizes and directs the Mayor to execute, and the City Clerk to attest and affrx the
seal of the City to, said form of the Lease Agreement for and in the name of the City.
The schedule of lease payments set forth in Appendix A to the Lease Agreement shall
conform to the schedule of principal and interest payments represented by the
Certificates of Participation, determined pursuant to Section 3 hereof.
Section 2. Trust Agreement. The City Council hereby approves the Trust
Agreement in substantially the form on fde with the City Clerk together with any
changes therein or additions thereto deemed advisable by the City Manager. The City
Council hereby authorizes and directs the Mayor to execute, and the City Clerk to attest
and affLx the seal of the City to, said form of the Trust Agreement for and in the name of
the City.
Section 3. Sale of Certificates. The City Council hereby approves the sale of
the Certificates of Participation to the Underwriter pursuant to that certain Contract of
Purchase among the City, the Trustee and the Underwriter, in substantially the form on
file with the City Clerk, together with any changes therein or additions thereto deemed
advisable by the City Manager or the Finance Director, whose execution of said
agreement shall be conclusive evidence of his approval of any such changes or additions.
The Certificates of Participation shall be substantially as described in the form of Official
Statement on file with the City Clerk and hereinafter approved. The City Manager, or in
his absence the Finance Director, is hereby authorized and directed for and in the name
and on behalf of the City to execute and deliver said form of Contract of Purchase upon
submission of a proposal by the Underwriter to purchase the Certificates of Participation,
which proposal is acceptable to the City Manager or the Finance Director, as the case
may be; provided, however, that the purchase price to be paid for the Certificates of
Participation by the Underwriter shall be at least ninety-seven and one-half percent
(97-1/2%) of the par value thereof, and the net interest cost represented by the
Certificates of Participation shall not exceed eight percent (8%) per annum. The City
Manager, or in his absence the Finance Director, is hereby delegated the authority to
approve the terms of any offer by the Underwriter to purchase the Certificates of
Participation, provided that such offer is in form and substance acceptable to the City
Manager or the Finance Director, as the case may be, and is within the limitations set
forth in this Resolution.
Section 4. Official Statement. The City Council hereby approves the
preliminary Official Statement describing the Certificates of Participation, in the form
submitted by the Underwriter and on file with the City Clerk, together with any changes
therein or additions thereto deemed advisable by the City Manager, whose execution of
said agreement shall be conclusive evidence of his approval of any such changes or
additions. The Underwriter is hereby authorized to distribute the Official Statement in
connection with the marketing of the Certificates of Participation. The City Manager is
hereby authorized and directed to approve any changes in or additions to the final form
of such Official Statement as the City Manager shall deem advisable, and to execute said
final Official Statement for and in the name and on behalf of the City.
Section 5. Official Actions. The Mayor, Finance Director, the City Manager,
the City Clerk and all other officers of the City are each authorized and directed in the
name and on behalf of the City to make any and all assignments, certificates,
requisitions, agreements, notices, consents, instruments of conveyance, warrants and
other documents, including but not limited to an escrow agreement relating to the
refunding of the Original Lease, which they or any of them might deem necessary or
appropriate in order to consummate any of the transactions contemplated by the
documents approved pursuant to this Resolution.
Section 6. Effective Date. This Resolution shall take effect from and after the
date of its passage and adoption.
PASSED AND ADOPTED this 1st day of March, 1988, by the following vote:
AYES: Councilmembers Hegarty, Moffatt, Snyder, Vonheeder
and Mayor Jeffery
NOES: None
ABSENT:
(S E A L)
None
Attest:
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14011-04
JHHW:CFA:dfs
l~ebn.,... , 11, 1988
~671
AMENDED AND RESTATED LEASE AGREEMENT
Dated as of February 1, 1988
by and between
DUBLIN INFORMATION, INC.
as lessor
and the
CITY OF DUBLIN, as lessee
F7671.TOC
TABLE OF CONTENTS
SECTION 1.1.
SECTION 1.2.
ARTICLE I
DEFINITIONS; EFFECT OF THIS LEASE
Definitions ...................................................................................2
Effect of this Lease Agreement ....................................................3
SECTION 2.1.
SECTION 2.2.
ARTICLE II
COVENANTS, REPRESENTATIONS AND WARRANTIES
Covenants, Representations and Warranties of the
City .....................................................................................5
Covenants, Representations and Warranties of the
Corporation. ........................................................................6
SECTION 3.1.
SECTION 3.2.
ARTICLE Ifl
DEPOSIT OF MONEYS;
COMPLETION OF THE PROJECT
Deposit of Moneys .......................................................................8
Completion of the Project ........................................... .................8
SECTION 4.1.
SECTION 4.2.
SECTION 4.3.
SECTION 4.4.
SECTION 4.5.
SECTION 4.6.
SECTION 4.7.
ARTICLE IV
AGREEMENT TO LEASE; TERMINATION OF
THIS LEASE; LEASE PAYMENTS
Lease ...........................................................................................9
Term of Agreement ....................: .................................................9
Possession ...................................................................................9
Lease Payments ..........................................................................9
Quiet Enjoyment .........................................................................11
Title ........................................................... .................................11
Additional Payments ...................................................................12
ARTICLE V
Page
MAINTENANCE; TAXES; INSURANCE; AND OTHER MATTERS
SECTION 5.1.
SECTION 5.2.
SECTION 5.3.
SECTION 5.4.
SECTION 5.5.
SECTION 5.6.
SECTION 5.7.
SECTION 5.8.
SECTION
SECTION
Maintenance, Utilities, Taxes and Assessments ..........................13
Modification of Project .................................................................13
Public Liability and Property Damage Insurance ....................... ,. 14
Fire and Extended Coverage Insurance .......................................14
Rental Interruption Insurance .....................................................15
Title Insurance ............................................................................15
Insurance Net Proceeds; Form of Policies ....................................15
Advances .....................................................................................15
5.9. Installation of City's Equipment ..................................................16
5.11. Liens .......................................................... ...............................16
ARTICLE VI
DAMAGE, DESTRUCTION AND EMINENT DOMAIN;
USE OF NET PROCEEDS
SECTION 6.1. Eminent Domain; Abatement ......................................................17
SECTION 6.2. 'Application of Net Proceeds .........................................................17
SECTION 6.3. Abatement of Rental in the Event of Damage or
Destruction ............................... ...............~ ...........................17
ARTICLE VII
DISCLAIMER OF WARRANTIES; ACCESS
SECTION 7.1. Disclaimer of Warranties .............................................................18
SECTION 7.2. Access to the Project ...................................................................18
SECTION 7.3. Release and Indemnification Covenants ...................................... 18
ARTICLE VIII
ASSIGNMENT, SUBLEASING AND AMENDMENT
SECTION 8.1. Assignment by the Corporation ...................................................19
SECTION 8.2. Assignment and Subleasing by the City ......................................19
SECTION 8.3. Amendment of Lease Agreement .............................................. .... 19
ii
SECTION 9.1.
SECTION 9.2.
SECTION 9.3.
SECTION 9.4.
SECTION 9.5.
SECTION 9.6.
SECTION 9.7.
Page
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Events of Default Defined ...................~ .....................................~. 20
Remedies on Default ....................................................................20
No Remedy Exclusive ..................................................................22
Agreement to Pay Attorneys' Fees and Expenses ........................ 22
No Additional Waiver Implied by One Waiver ............................. 22
Application of Proceeds ...............................................................22
Trustee and' Certificate Owners to Exercise Rights ......................22
SECTION 10.1.
SECTION 10.2.
SECTION 10.3.
SECTION 10.4.
SECTION 10.5.
ARTICLE X
PREPAYMENT OF LEASE PAYMENTS
Security Deposit ........................................................................23
Optional Prepayment .............~ ...................................................23
Mandatory Prepayment From Net Proceeds of
Insurance or Eminent Domain .............................................23
Mandatory Prepayment From. Unused Project
Funds ..................................................................................24
Credit for Amounts on Deposit ..................................................24
SECTION 11.1.
SECTION 11.2.
SECTION 11.3.
SECTION 11.4.
SECTION 11.5.
SECTION 11.6.
SECTION 11.7.
SECTION 11.8.
SECTION 11.9.
ARTICLE XI
MISCELLANEOUS
Notices .......................................~ ..............................................25
Binding Effect ...........................................................................25
SeverabilityL ..............................................................................25
Net-net-net Lease ............................~ .......................................25
Further Assurances and Corrective Instn ments. ...................... 25
Execution in Counterparts .................~ .......................................26
Applicable Law ...........................................................................26
Corporation and City Representatives .......................................26
Captions ....................................................................................26
AMENDED AND RESTATED LEASE AGREEMENT
THIS AMENDED AND RESTATED~LErEc~E AGREEMENT (this "Lease.
Agreement"), dated for convenience as of Fob~{aiy 1, 1988, is by and between the
DUBLIN INFORMATION, INC., a nonprofit corporation duly organized and existing
under the laws of the State of California (the "Corporation"), and the CITY OF DUBLIN,
a municipal corporation duly organized and existing under the laws of the State of
California (the "City");
WITNESSETH:
WHEREAS, the Corporation has been formed for the purpose of assisting the City
in financing the acquisition, construction and improvement of property which is of benefit
to the City; and
WHEREAS, in order to provide funds for the acquisition, construction and
improvement of land and civic center improvements (the "Project"), the Corporation and
the City have heretofore entered into the Lease Agreement Relating to Public Facilities
Project No. 1, dated as of December 18, 1985,h(the "Original Lease") by and between the
Corporation as lessor and the City as lessee of the Project; and
WHEREAS, the City has determined that it is in the economic interests of the City
at this time to provide for the re~nancing of the City's existing obligations Under the
Original Lease and to provide additional funds to finance the completion of the Project,
and to that end the Corporation and the City wish to enter into this Amended and
Restated Lease Agreement for the purpose of amending and restating the Original Lease
in full; and
WHEREAS, for such purposes the Corporation proposes to assign and transfer to
the Trustee certain of its rights under the Lease Agreement, and in con id~eration of such
assignment and the execution of the Trust Agreement dated as of Fo~a~l, 1988, by.
and among the City, the Corporation and The Bank of California, N.A., as trustee (the
"Trustee"), the Trustee has agreed to execute and deliver 1988 Refunding Certificates of
Participation, each evidencing a direct, undivided fractional interest in the Lease
Payments to be paid by the City under the Lease Agreement;
NOW, THEREFORE, in consideration of the above premises and of the mutual
covenants hereinafter contained and for other good and valuable consideration, the
parties hereto agree as follows:
NOW, THEREFORE, for and in consideration of the premises and the material
covenants hereinafter contained, the parties hereto hereby formally covenant, agree and
bind themselves as follows:
ARTICLE I
DEFINITIONS; EFFECT OF THIS LEASE
SECTION 1.1. Def'mitions. Unless the context clearly otherwise requires or
unless otherwise defined herein, the capitalized terms in this Lease Agreement shall have
the respective meanings specified in the Trust Agreement. In addition, the following
terms heretofore defined in this Lease. Agreement and the following terms defined in this
Section 1.1 shall, for all purposes of this Lease Agreement, have the respective meanings
herein specified.
"Comvletion Date" means ~he date on which the City shall file or cause to be filed
with the Corporation and the Trustee a certificate of the architect with respect thereto
stating that the acquisition, construction and improvement of the Project has been
completed substantially in conformity with the plans and specifications therefor.
"1988 Lease Payment Date" means each January 15 and July 15 during the Term
of this Lease Agreement, beginning July 15, 1988.
"1988 Lease Payments" means the amounts payable by the City pursuant to
Section 4.4(a)(ii) hereof, including any prepayment thereof pursuant to Article X.
"Original Lease" means the Lease Agreement Relating to Public Facilities Project
No. I dated as of December 18, 1985, by and between the Corporation as lessor and the
City as lessee.
"Original Lease Payments" means (a) prior to the date of recordation hereof, all of
the amounts required to be paid by the City pursuant to Section 3.05 of the Original
Lease as set forth in Exhibit C attached to the Original Lease; and (b) from and after the
date of recordation hereof, all of the amounts required to be paid by the City from the
Escrow Fund pursuant to Section 4.4(a)(i) hereof and as set forth in Exhibit C attached
hereto.
'Pro. iect' means the land described in Exhibit B attached hereto and by this
reference incorporated herein, together with all improvements and facilities constructed
and improved thereon. In the event the City elects to add any new property in
substitution for former property pursuant to Section 5.10, from and after the date of such
substitution such former property shall cease to constitute part of the Project and such
new property shall become part of the Project.
"Project Costs" means, with respect to the Project, all costs of acquisition,
construction, improvement and equipping of the Project which are paid from moneys on
deposit in the Project Funds~ including but not limited to:
(a) all costs required to be paid to any person under the terms of
any agreement for or relating to the acquisition, construction, improvement
or equipping of the Project;
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(b) obligations incurred for labor and materials in connection with
the acquisition, construction, improvement or equipping of the Project;
(c) the cost of performance or other bonds and any and all types of
insurance that may be necessary or appropriate to have in effect during the
course of acquisition, construction, improvement or equipping of the Project;
(d) all costs of engineering and architectural services, including the
actual out-of-pocket costs of the Corporation or any agent of the
Corporation for test borings, surveys, estimates, plans and specifications
and preliminary investigations therefor, development fees, sales
commissions, and for supervising construction, as well as for the
performance of all other duties required by or consequent to the proper
acquisition, construction, improvement or equipping of the Project;
(e) any sums required to reimburse the Corporation or any agent of
the Corporation for advances made for any of the above items or for any
other costs incurred and for work done which are properly chargeable to the
acquisition, construction, improvement or equipping of the Project;
(f) all financing costs incurred in connection with such acquisition,
construction, improvement or equipping, including but not limited to Costs
of Issuance and other costs incurred in connection with the execution and
delivery of the Certificates, the Trust Agreement and this Lease Agreement;
and
(g) the interest components of the Lease Payments coming due and
payable prior to the Completion Date.
"Rental Period" means each period during the Term of this Lease Agreement
commencing on and including the day immediately following an Interest Payment Date
and extending to and including the next succeeding Interest Payment Date; except that
the first Rental Period shall commence on the Completion Date and extend to and
including the next succeeding Interest Payment Date.
"Term of this Lease Agreement" means the time during which this Lease
Agreement is in effect, as provided in Section 4.3.
"Trust Agreement" means the Trust Agreement, and dated as of February 1, 1988,
by and among the Trustee, the Corporation and the City, together with any duly
authorized and executed amendments thereto.
SECTION 1.2. Effect of this Lease Agreement. The City and the Corporation
hereby agree that this Lease Agreement amends and restates in full the Original Lease.
The Corporation hereby agrees to cause the Trustee to deposit into the Escrow Fund an
amount sufficient to provide for the payment in full of the remaining Original Lease
Payments pursuant to the provisions of the remaining Original Lea~e and Section
4.4(a)(i) hereof. Upon the recordation of this Lease Agreement and the deposit into the
Escrow Fund as aforesaid, the Original Lease, in the form heretofore executed and
.3
delivered by the City and the Corporation, shall thereupon be of no further force and
effect and shall be deemed to be restated in full hereby.
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ARTICLE H
COVENANTS, REPRESENTATIONS AND WARRANTIES
'SECTION 2.1. Covenants, Representations and Warranties of the City. The
City makes the following covenants, representations and warranties to the Corporation
as of the date of the execution and delivery of this Lease Agreement:
(a) Due Organization and Existence. The City is a m-nicipal
corporation duly organized and validly existing under the laws of the State
of California, has full legal right, power and authority to enter into this
Lease Agreement and the Trust Agreement and to carry out and
consummate all transactions contemplated hereby and thereby, and by
proper action the City has duly authorized the execution and delivery of
this Lease Agreement and the Trust Agreement.
(b) Due Execution. The representatives of the City executing this
Lease Agreement and the Trust Agreement are fully authorized to execute
the same.
(c) Valid, Binding and Enforceable Obligations. This Lease
Agreement and the Original Lease, the Agency Agreement and the Trust
Agreement has been duly authorized, executed and delivered by the City
and constitute the legal, valid and binding agreements of the City
enforceable against the City in accordance with their respective terms.
(d) No Conflicts. The execution and delivery of this Lease
Agreement and the Original Lease, the Agency Agreement and the Trust
Agreement, the consummation of the transactions herein and therein
contemplated and the fulf~lment of or compliance with the terms and
conditions hereof, do not and will not conflict with or constitute a violation
or breach of or default (with due notice or the passage of time or both)
under any applicable law or administrative rule or regulation, or any
applicable court or administrative decree or order, .or any indenture,
mortgage, deed of trust, lease, contract or other agreement or inst~_~ment to
which the City is a party or by which it or its properties are otherwise
subject or bound, or result in the creation or imposition of any prohibited
lien, charge or encumbrance of any nature whatsoever upon any of the
property or assets of the City, which conflict, violation, breach, default,
lien, charge or encumbrance would have consequences that would
materially and adversely affect the consummation of the transactions
contemplated by this Lease Agreement and the Original Lease, the Agency
Agreement and the Trust Agreement or the financial condition, assets,
properties or operations of the City or its properties.
(e) Consents and Approvals. No consent or approval of any trustee
or holder of any indebtedness of the City or of the voters of the City, and no
consent, permission, authorization herein or therein contemplated, except
as have been obtained or made and as are in full force and effect.
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f) No Litigation. There is no action, suit, proceeding, inquiry or
investigation before or by any court or federal, state, m-nicipal or other
governmental authority pending or, to the knowledge of the City after
reasonable investigation, threatened against or affecting the City or the
assets, properties or operations of the City which, if determined adversely
to the City or its interests, would have a material and adverse effect upon
the cons~_~mmation of the transactions contemplated by or the validity of
this Lease Agreement or the Original Lease, the Agency Agreement or the
Trust Agreement, or upon the financial condition, assets, properties or
operations of the City, and the City is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental authority, which default
might have consequences that would materially and adversely affect the
consummation of the transactions contemplated by this Lease Agreement or
the Original Lease, the Agency Agreement or the Trust Agreement or the
financial conditions, assets, properties or operations of the City or its
properties.
SECTION 2.2. Covenants, Representations and Warranties of the
Corporation. The Corporation makes the following covenants, representations and
warranties as the basis for its undertakings herein contained:
(a) Due Organization and Existence. The Corporation is a nonprofit
public benefit corporation duly organized and validly existing under the
laws of the State of California, has full legal right, power and authority to
enter into this Lease Agreement, the Trust Agreement and the Assignment
Agreement and to carry out and cons~_~mmate all transactions contemplated
hereby and thereby, and by proper action the Corporation has duly
authorized the execution and delivery of this Lease Agreement, the Trust
Agreement and the Assignment Agreement.
(b) Due Execution. The representatives of the Corporation
executing this Lease Agreement, the Trust Agreement and the Assignment
Agreement are fully authorized to execute the same.
(c) Valid, Binding and Enforceable Obligations. This Lease
Agreement, the Original Lease, the Agency Agreement, the Trust
Agreement and the Assignment Agreement have been duly authorized,
executed and delivered by the Corporation and constitute the legal, valid
and binding agreements of the Corporation with the Corporation,
enforceable against the Corporation in accordance their respective terms.
(d) No Conflicts. The execution and delivery of this Lease
Agreement, the Original Lease, the Agency Agreement, the Trust
Agreement and the Assignment Agreement, the cons-mmation of the
transactions herein and therein contemplated and the fulfillment of or
compliance with the terms and conditions hereof, do not and will not
conflict with or constitute a violation or breach of or default (with due
notice or the passage of time or both) under any applicable law or
administrative rule or regulation, or any applicable court or administrative
-6-
decree or order, or any indenture, mortgage, deed of trust, lease, contract
or other agreement or instrument to which the Corporation is a party or by
which it or its properties are otherwise subject or bound, or result in the
creation or imposition of any prohibited lien, charge or encumbrance of any
nature whatsoever upon any of the property or assets of the Corporation,
which conflict, violation, breach, default, lien, charge or encumbrance would
have consequences that would materially and adversely affect the
consummation of the transactions contemplated by this Lease Agreement
and by the Original Lease, the Agency Agreement and the Trust
Agreement, or the financial condition, assets, properties or operations of
the Corporation or its properties.
(e) Consents and Approvals. No consent or approval of any trustee
or holder of any indebtedness of the Corporation, and no consent,
permission, authorization, order or license of, or filing or registratiox~ with,
any governmental authority is necessary in connection with the execution
and delivery of this Lease Agreement, the Original Lease, the Agency
Agreement, the Trust Agreement or the Assignment Agreement, or the
consnmmation of any transaction herein or therein contemplated, except as
have been obtained or made and as are in full force and effect.
(f) No Litigation. There is no action, suit, proceeding, inquiry or
investigation before or by any court or federal, state, municipal or other
governmental authority pending or, to the knowledge of the Corporation
after reasonable investigation, threatened against or affecting the
Corporation or the assets, properties or operations of the Corporation
which, if determined adversely to the Corporation or its interests, would
have a material and adverse effect upon the consummation of the
transactions contemplated by or the validity of this Lease Agreement, the
Original Lease, the Agency Agreement, the Trust Agreement or the
Assignment Agreement, or upon the financial condition, assets, properties
or operations of the Corporation, and the Corporation is not in. default with
respect to any order or decree of any court or any order, regulation or
demand of any federal, state, municipal or other governmental authority,
which default might have consequences that would materially and
adversely affect the cons-mmation of the transactions contemplated by this
Lease Agreement, the Original Lease, the Agency Agreement, the Trust
Agreement or the Assignment Agreement or the financial conditions,
assets, properties or operations of the Corporation or its properties.
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ARTICLE III
DEPOSIT OF MONEYS;
COMPLETION OF THE PROJECT
SECTION 3.1. Deposit of Moneys. On the Closing Date, the Corporation shall
cause to be deposited with the Trustee the proceeds of sale of the Certificates. Pursuant
to Section 4.01 of the Trust Agreement, the amount of $ shall be deposited in
the Reserve Fund, the interest components of the Lease Payments in the amount of
$ shall be deposited in the Lease Payment Fund, the amount of $
shall be transferred to the Escrow Bank for deposit in the Escrow Fund, and the
remaining balance of said amount shall be deposited in the 1988 Project Fund.
SECTION 3.2. Completion of the Project. The City, as agent of the
Corporation under the Agency Agreement, agrees with due diligence to complete the
acquisition, construction, improvement and equipping of the Project in accordance with
the Agency Agreement and with plans and specifications or purchase orders or
agreements approved by the City. The City shall finance direct payment, or
reimbursement to itself for the payment, of the project Costs from amounts on deposit in
the Project FundS. pursuant to Section 4.02 of the Trust Agreement. The City hereby
covenants that the construction, improvement and equipping of the Project will be
substantially completed, in accordance with the Agency Agreement and with plans and
specifications approved by the City, on or before ,198_.
Upon completion of the acquisition, construction, improvement and equipping of
the Project from amounts in the Project Funds satisfactory to the Corporation, but in any
event not later than thirty (30) days following such completion, the City Representative
shall execute and deliver to the Corporation and the Trustee a certificate of completion
stating that the acquisition, construction, improvement and equipping of the Project has
been completed, identifying the date of such completion and identifying the total Project
Costs of the Project.
If the acquisition, construction, improvement and equipping of the Project is not
completed, for any reason whatsoever, by , 198_, this Lease Agreement
shall not be void or voidable; but in that event the remaining 1988 Lease Payments shall,
with respect to the period between such date and the time when the City takes or is
required hereunder to take possession thereof, be payable solely from the sources
identified in Section 4.4(e) and the City shall not be obligated to pay the 1988 Lease
Payments from any other source of funds or property of the City whatsoever.
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ARTICLE IV
AGREEMENT TO LEASE; TERMINATION OF
THIS LEASE; LEASE PAYMENTS
SECTION 4.1. Lease. Pursuant to the Original Lease, the Corporation presently
leases the Project to the City and the City presently leases the Project from the
Corporation. ThroughOut the Term of this Lease Agreement the Corporation shah
continue to lease the Project to the City and the City shall continue to lease the Project
from the Corporation, upon the terms and conditions set forth in this Lease.
SECTION 4.2. Term of Agreement. The Term of this Lease Agreement has
heretofore commenced pursuant to the Original Lease. The term of the Original Lease
shall be deemed to be continued under and during the Term of this Lease Agreement.
The Term of this Lease Agreement shall commence on the date of recordation hereof and
shah end on February 1, 2010, unless such term is extended as hereinafter provided. If
on February 1, 2010, the Trust Agreement shall not be discharged pursuant to Section
13.01 thereof, the~he Term of this Lease Agreement shall be extended until the date of
such discharge, but not beyond February 1, 2020. If prior to February 1, ,2010, the Trust
Agreement shall be discharged pursuant to Section 13.01 thereof, the Term of this Lease
Agreement shall thereupon end. The provisions of this Section 4.2 are subject in all
respects to the provisions of Section 6.1 relating to the termination of this Lease in the
event of eminent domain proceedings with respect to the Project.
SECTION 4.3. Possession. The Corporation hereby agrees that upon the
substantial completion of the Project or any component thereof, the City will take
possession of the Project or such component hereunder.
SECTION 4.4. Lease Payments.
(a) Obligation to Pay.
(i) Original Lease Payments. Pursuant to the Original Lease, the
City has heretofore agreed to pay the Prior Lease Payments at the times
and in the amounts set forth in Section 3.05 of the Original Lease and
Exhibit C attached to the Original Lease. The City shall continue to pay
the Original Lease Payments on the respective dates and in the respective
amounts set forth in Exhibit C attached hereto and by this reference
incorporated herein. Notwithstanding any provision of the Original Lease
or this Lease Agreement to the contrary, from and after the Closing Date
the obligation of the City to pay the Original Lease Payments shall be a
special obligation of the City payable solely from the ~mounts on deposit
with the Escrow Bank in the Escrow Fund pursuant to and in accordance
with the Escrow Agreement.
(ii) 1988 Lease Payments. Subject to the provisions of Section 3.2
and Articles VI and X hereof, the City agrees to pay to the Corporation, its
successors and assigns, the 1988 Lease Payments (denominated into
components of principal and interest) for the Project in the r, espective
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amounts specified in Exhibit A, to be due and payable on the Interest
Payment Dates each of the respective 1988 Lease Payment Dates specified
in Exhibit A, and to be deposited by the City with the Trustee on each of
the 1988 Lease Payment Dates spec'.ffied in E~hibit A. Any amount held in
the Lease Payment Fund on any 1988 Lease Payment Date (other. than
amounts resulting from the prepayment of the 1988 Lease Payments in part
but not in whole pursuant to Article X and other than srnounts required for
payment of past due principal or interest represented by any Certificates
not presented for payment) shah be credited towards the 1988 Lease
Payment then required to be paid hereunder; and no 1988 Lease Payment
need be deposited with the Trustee on any 1988 Lease Payment Date if the
amounts then held in the Lease Payment Fund are at least equal to the
Lease Payment then required to be deposited with the Trustee. The 1988
Lease Payments payable in any Rental Period shah be for the use of the
Project for such Rental Period.
(b) Effect of Prepayment. In the event that the City prepays all remaining 1988
Lease Payments in full pursuant to Article X, the City's obligations under this Lease
shall thereupon cease and terminate, including but not limited to the City's obligation to
pay 1988 Lease Payments under this Section 4.4; subject, however, to the provisions of
Section 10.1 in the case of prepayment by application of a security deposit. In the event
that the City. prepays the 1988 Lease Payments in part but not in whole pursuant to
Sections 10.2, 10.3 or 10.4, the principal components of the remaining 1988 Lease
Payments shall be reduced in inverse order of 1988 Lease Payment Date in the case of
such prepayment pursuant to Section 10.2, and on a pro rata basis in the case of such
prepayment pursuant to Sections 10.3 or 10.4, in integral multiples of $5000 and the
interest component of each remaining 1988 Lease Payment shah be reduced by the
aggregate corresponding amount of interest which would otherwise be payable with
respect to the Certificates thereby prepaid pursuant t6 Section 3.01 of the Trust
Agreement.
(c) Rate on Overdue Payments. In the event the City should fail to make any of
the payments required in this Section 4.4, the payment in default shall continue as an
obligation of the City until the amount in default shall have been fully paid, and the City
agrees to pay the same with interest thereon, from-the date of default to the date of
payment at the net effective rate of interest per annum then represented by the
Outstanding Certificates.
(d) Fair Rental Value. The 1988 Lease Payments for. the Project during each
Rental Period shall constitute the total rental for the Project for each Rental Period, and
shall be paid by the City in each Rental Period for and in consideration of the right of the
use and occupancy of, and the continued quiet use and enjoyment of the Project during
each Rental Period. The parties hereto have agreed and determined that the total 1988
Lease Payments for the Project represent the fair rental value of the Project. In making
such determination, consideration has been given to the estimated Project Costs of the
Project, other obligations of the parties under this Lease, the uses and purposes which
may be served by the Project and the benefits therefrom which will accrue to the City and
the general public.
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(e) Source of Payments; Budget and Appropriation. Prior to the date of
substantial completion of the Project, the 1988 Lease Payments shall be payable solely
from amounts on deposit in the Project Funds_., the Reserve Fund and the Lease Payment
Fund, or from any earnings on the investments of amounts held under the Trust
Agreement. Following the Completion Date of the Project, the 1988 Lease Payments
allocable thereto shall be payable from any source of available funds of the City, subject
to the provisions of Articles VI and X.
The City covenants to take such action as may be necessary to include all 1988
Lease Payments following the date of substantial' completion of the Project in each of its
annual budgets during the Term of this Lease Agreement and to make the necessary
_~_nnual appropriations for all such 1988 Lease Payments. During the Term of this Lease
Agreement, the City will furnish to the Trustee a certificate of the City Representative
stating that the 1988 Lease Payments have been included in the final budget of the City
for the current Fiscal Year, such certificate to be filed within thirty (30) days after the
adoption of such budget and in any event no later than September i in the calendar year
in which the City adopts such budget. The covenants on the part of the .City herein
contained shall be deemed to be and shall be construed to be duties imposed by law and
it shall be the duty of each and every public official of the City to take such action and do
such things as are required by law in the performance of the official duty of such officials
to enable the City to carry out and perform the covenants and agreements in this Lease
agreed to be carried out and performed by the City.
(f) Assignment. The City understands and agrees that all 1988 Lease Payments
have been assigned by the Corporation to the Trustee in trust, pursuant to the
Assignment Agreement, for the benefit of the Owners of the Certificates, and the City
hereby assents to such assignment. The Corporation hereby directs the City, and the
City hereby agrees to pay to the Trustee at the Trust Office of the Trustee, all of the 1988
Lease Payments payable by the City pursuant to this Section 4.4 and all amounts
payable by the City pursuant to Article X.
SECTION 4.5. Quiet Enjoyment. During the Term of this Lease Agreement,
the Corporation shall provide the City with quiet use and enjoyment of the Project, and
the City shall during such Term peaceably and quietly have and hold and enjoy the
Project, without suit, trouble or hindrance from the Corporation, except as expressly set
forth in this Lease Agreement. The Corporation will, at the request of the City and at
the City's cost, join in any legal action in which the City asserts its right to such
possession and enjoyment to the extent the Corporation may lawfully do so.
Notwithstanding the foregoing, the Corporation shall have the right to inspect the Project
as provided in Section 7.2.
SECTION 4.6. Title. During the Term of this Lease Agreement, the Corporation
shall hold title to the Project and any and all additions which comprise fixtures, repairs,
replacements or modifications to the Project, except for those fixtures, repairs,
replacements or modifications which are added to the Project by the City at its own
expense and which may be removed without damaging the Project and except for any
items added to the Project by the City pursuant to Section 5.9. In the event the City
exercises its right to substitute any new property for former property as provided in
Section 5.10, all right, title and interest of the Corporation in and to such former
property shall be transferred to and vested in the City, without the necessity of any
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additional doc;~ment of transfer; and title to such new property shall thereupon be vested
in the Corporation, without the necessity of any additional document of transfer.
If the City prepays the 1988 Lease Payments in full pursuant to Article X or
makes the security deposit permitted by Section 10.1, or pays all 1988 Lease Payments
during the Term of this Lease Agreement as the same become due and payable, all right,
title and interest of the Corporation in and to the Project shall be transferred to and
vested in the City. The Corporation agrees to take any and all steps and execute and
record any and all documents reasonably required by the City to consnmmate any such
transfer of title.
SECTION 4.7. Additional Payments. In addition to the 1988 Lease Payments,
the City shall pay when due all costs and expenses incurred by the Corporation to comply
with the provisions of the Trust Agreement, including without limitation all Costs of
Issuance (to the extent not paid from amounts on deposit in the Project Funds), annual
compensation due to the Trustee and all of its reasonable costs payable as a result of the
performance of and compliance with its duties under the Trust Agreement, and all costs
and expenses of attorneys, auditors, engineers and accountants.
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ARTICLE V
MAINTENANCE; TAXES; INSURANCE; AND OTHER MATTERS
SECTION 5.1. Maintenance, Utilities, Taxes and Assessments. Throughout
the Term of this 'Lease Agreement, as part of the consideration for the rental of the
ProjeCt, all improvement, repair and maintenance of the Project shah be the responsibility
of the City, and the City shah pay for or otherwise arrange for the payment of all utility
services supplied to the Project, which may include, without limitation, janitor senrice,
security, power, gas, telephone, light, heating, water and all other utility services, and
shall pay for or otherwise arrange for the payment of the cost of the repair and
replacement of the Project resulting from ordinary wear and tear or want of care on the
part of the City or any assignee or sublessee thereof. In exchange for the 1988 Lease
Payments herein provided, the Corporation agrees to provide only the Project, as
hereinbefore more specifically set forth. The City waives the benefits of subsections 1
and 2 of Section 1932, Section 1933(4) and Sections 1941 and 1942 of the California
Civil Code, but such waiver shall not limit any of the rights of the City under the terms of
this Lease.
The City shall also pay or cause to be paid all taxes and assessments of any type
or nature, if any, charged to the Corporation or the City affecting the Project or the
respective interests or estates therein; provided that with respect to special assessments
or other governmental charges that may lawfully be paid in installments over a period of
years, the City shall be obligated to pay only such installments as are required to be paid
during the Term of this Lease Agreement as and when the same become due.
The City may, at the City's expense and in its name, in good faith contest any
such taxes, assessments, utility and other charges and, in the event of any such contest,
may permit the taxes, assessments or other charges so contested to remain unpaid during
the period of such contest and any appeal therefrom unless the Corporation shall notify
the City that, in the opinion of Independent Counsel, by nonpayment of any such items,
the interest of the Corporation in the Project will be materially endangered or the Project
or any part thereof will be subject to loss or forfeiture, in which event the City shall
promptly pay such taxes, assessments or charges or provide the Corporation with full
security against any loss which may result from nonpayment, in form satisfactory to the
Corporation and the Trustee.
SECTION 5.2. Modification of Project. The City shaH, at its own expense,
have the right to remodel the Project or to make additions, modifications and
improvements to the Project. All additions, modifications and improvements to the
Project, but not any additional buildings or improvements shall thereafter comprise part
of the Project and be subject to the provisions of this Lease Agreement. Such additions,
modifications and improvements shall not in any way dnmage the Project or cause it to
be used for purposes other than those authorized under the provisions of state and
federal law; and the Project, upon completion of any additions, modifications and
improvements made thereto pursuant to this Section, shall be of a value which is not
substantially less than the value of the Project immediately prior to the making of such
additions, modifications and improvements. The City will not permit any mechanic's or
other lien to be established or remain against the Project for labor or materials furnished
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in connection with any remodeling, additions, modifications, improvements, repairs,
renewals or replacements made by the City pursuant to this Section; provided that if any
such lien is established and the City shah first notify or cause to be notified the
Corporation of the City's intention to do so, the City may in good faith contest any lien
filed or established against the Project, and in such event may permit the items so
contested to remain undischarged and unsatisfied during the period of such contest and
any appeal therefrom and shall provide the Corporation with full security against any
loss or forfeiture which might arise from the nonpayment of any such item, in form
satisfactory to the Corporation. The Corporation will cooperate fully in any such contest,
upon the request and at the expense of the City.
SECTION 5.3. Public Liability and Property Damage Insurance. The City
shall maintain or cause to be maintained, following the Completion Date and continuing
thereafter throughout the Term of this Lease Agreement, but only if and to the extent
available at reasonable cost from reputable insurers, a standard comprehensive general
insurance policy or policies in protection of the Corporation, City, and their respective
members, officers, agents and employees. Said policy or policies shall provide for
indemnification of said parties against direct or contingent loss or liability for damages
for bodily and personal injury, death or property d~mage occasioned by reason of the
operation of the Project. Said policy or policies shall provide coverage. in the minim~_~m
liability limits of $1,000,000 for personal injury or death of each person and $3,000,000
for personal injury or deaths of two or more persons in each accident or event (subject to
a deductible of not to exceed $250,000), and in a minimum amount of $150,000 (subject
to a deductible of not to exceed $75,000) for damage to property resulting from each
accident or event. Such public liability and property damage insurance may, however, be
in the form of a single limit policy in the amount of $3,000,000 covering all such risks,
subject to a deductible of not to exceed $250,000. Such liability insurance may be
maintained as part of or in conjunction with any other liability insurance coverage
carried by the City, and may be maintained in whole or in part in the form of self-
insurance by the City, subject to the provisions of Section 5.7. The Net Proceeds of such
liability insurance shall be applied toward extinguishmerit or satisfaction of the liability
with respect to which the Net Proceeds of such insurance shah have been paid.
SECTION 5.4. Fire and Extended Coverage Insurance. The City shall
procure and maintain, or cause to be procured and maintained, following the Completion
Date and continuing thereafter throughout the Term of this Lease Agreement, insurance
against loss or damage to any structures constituting any part of the Project by fnce and
lightning, with extended coverage and vandalism and malicious mischief insurance, and
earthquake insurance (but as to earthquake insurance, only in the event and to the
extent such insurance is available at reasonable cost from reputable insurers). Said
extended coverage insurance shall, as nearly as practicable, cover loss or damage .by
explosion, windstorm, riot, aircraft, vehicle damage, smoke and such other hazards as are
normally covered by such insurance. Such insurance shall be in an amount at least equal
to the lesser of (a) the aggregate principal amount of the Outstanding Certificates, or (b)
one hundred percent (100%) of the replacement cost of the Project. Such insurance may
be subject to deductible clauses of not to exceed $100,000 for any one loss to the Project
with respect to the Project and such earthquake insurance may be subject to a deductible
clause of not to exceed ten percent (10%) of said replacement cost for any one loss to the
Project. Such insurance may be maintained as part of or in conjunction with any other
fire and extended coverage insurance carried by the City and may be maintained in whole
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or in part in the form
5.7. The Net Proceeds
of serf-insurance by the City, subject to the provisions of Section
of such insurance shall be applied as provided in Section 6.2.
SECTION 5.5. Rental Interruption Insurance. The City shah procure, and
maintain, or cause to be procured and maintained, following the Completion Date and
continuing thereafter throughout the Term of this Lease Agreement, rental interruption
or use and occupancy insurance to cover loss, total or partial, of the use of any structures
constituting any part of the Project as a result of any of the hazards covered in the
insurance required by Section 5.4, in an amount at least equal to the m_s~rn~_~m 1988
Lease Payments payabl~e during any two Fiscal Years. The Net Proceeds of such
insurance shall be paid to the Trustee and deposited in the Lease Payment Fund, and
shall be credited towards the payment of the 1988 Lease Payments in the order in which
such 1988 Lease Payments come due and payable. Such insurance may be mnintoined in
whole or in part in the form of self-insurance by the City, subject to the provisions of
Section 5.7.
SECTION 5.6. Title Insurance. Prior to or concurrent with the recordation
hereof, the City shall provide,. at its own expense, a CLTA title insurance policy in the
amount of not less than the aggregate principal amount of the Certificates, insuring the
City's leasehold estate in the Project hereunder. Such title insurance may be provided in
whole or in part in the form of an endorsement to any policy previously obtained by the
City with respect to any portion of the Project site, and for purposes of computing the
amount of insurance maintained hereunder the amount provided in any such prior policy
shall be credited thereto. All Net Proceeds received under such policy shah be deposited
with the Trustee in the Lease Payment Fund and shah be credited towards the
prepayment of the remaining 1988 Lease Payments pursuant to Section 10.3.
SECTION 5.7. Insurance Net Proceeds; Form of Policies. Each policy of
insurance required by Sections 5.4, 5.5 and 5.6 shah n_sme the Trustee as loss payee so
as to provide that all proceeds thereunder shall be payable to the Trustee. The City shall
pay or cause to be paid when due the premiums for aH insurance policies required by this
Lease. All such policies shall provide that the Trustee shall be given thirty (30) days~
notice of each expiration, any intended cancellation thereof or reduction of the coverage
provided thereby. The Trustee shall not be responsible for the sufficiency of any
insurance herein required and shah be fully protected in accepting payment on account of
such insurance or any adjustment, compromise or settlement of any loss. The City shall
cause to be delivered to the Trustee annually, within sixty (60) days following the close of
each Fiscal Year, a certificate stating that the insurancescoverage required by this Lease
~ in full force and effect.
In the event that any insurance required pursuant to Sections 5.3 or 5.4 shah be
provided in the form of self-insurance, the City shall ~e with the Trustee annually,
within ninety (90) days following the close of each Fiscal Year, a statement of the risk
_manager of the City or an independent insurance advisor engaged by the City identifying
the extent of such self-insurance and stating the determination that the City maintains
sufficient reserves with respect thereto. In the event that any such insurance shah be
provided in the form of self-insurance by the City, the City shall not be obligated to make
any payment with respect to any insured event except from such reserves.
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SECTION 5.8. Advances. If the City shall fail to perform any of its obligations
under this Article, the Corporation shall take such action as may be necessary to cure
such failure, including the advancement of money, and the City shall be obligated to
repay all such advances as additional rental hereunder, with interest at the net effective
rate per annum then represented by the Outstanding Certificates.
SECTION 5.9. Installation of City's Equipment. The City may at any time
and from time to time, in its sole discretion and at its own expense, install or permit to be
installed other items of equipment or other personal property in or upon the Project. All
such items shah remain the sole property of the City, in which neither the Corporation
nor the Trustee shall have any interest, and may be modified or removed by the City at
any time provided that the City shall repair and restore any and all damage to the
Project resulting from the installation, modification or removal of any such items.
Nothing in this Lease shall prevent the City from purchasing or leasing items to be
installed pursuant to this Section under a lease or conditional sale agreement, or subject
to a vendor's lien or security agreement, as security for the unpaid portion of the
purchase price thereof, provided that no such lien or security interest shall attach to any
part of the Project.
SECTION 5.10. Substitution of Property. The City shah have the right to
substitute for any portion of the Project any property acquired other than from moneys in
the Project Funds, but only: (a) by providing the Corporation and the Trustee with a
written certificate of the City Representative stating that (i) the market value of such
property at least equals the market value of such item of the Project, and (ii) such
property has useful life at least equal to the remaining useful life of such item of the
Project; (b) by conveying or causing to be conveyed to the Corporation title to such
property free and clear of all encumbrances and liens other than such as the City and the
Authority consent to in writing;t,(c) by delivering or causing to be delivered to the
Corporation a bill of sale or other instrument conveying title thereto; and (d) bv causing
Exhibit B hereto to be amended to reflect such substitution and causing a copy of this
Lease Agreement as so amended to be recorded in the office of the Alameda County
Record_.e.r_. All costs ~nd expenses incurred in connection with substitution, including
without limitation the cost of acquiring such property, shall be borne by the City. The
City shall not be entitled to any abatement whatsoever of Lease Payments hereunder by
reason of any such substitution. The' City shall mail notice of any proposed substitution
under this Section to Moody's and S&P by first class mail, postage prepaid.
SECTION 5.11. Liens. The City shall not, directly or indirectly, create, incur,
ass~rne or suffer to exist any mortgage, pledge, lien, charge, enc-mbrance or clnirn on or
with respect to the Project, other than as herein contemplated. Except as expressly
provided in this Article, the City shall promptly, at its own expense, take such action as
may be necessary to duly discharge or remove any such mortgage, pledge, lien, charge,
enc~_~mbrance or claim, for which it is responsible, if the same shall arise at any time.
The City shah reimburse the Corporation for any expense incurred by it in order to
discharge or remove any such mortgage, pledge, lien, charge, enc~_~mbrance or claim.
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ARTICLE VI
DAMAGE, DESTRUCTION AND EMINENT DOMAIN;
USE OF NET PROCEEDS
SECTION 6.1. Eminent Domain; Abatement. If all of the Project shall be
taken permanently under the power of eminent domain or sold to a government
threatening to exercise the power of eminent domain, the Term of this Lease Agreement
shall cease with respect to the Project as of the day possession shah be so taken. If less
than all of the Project shall be taken permanently, or if all of the Project or any part
thereof shall be taken temporarily, under the power of eminent domain, (a) this Lease
shah continue in full force and effect and shall not be terminated by virtue of such taking
and the parties waive the benefit of any law to the contrary, and (b) there shall be a
partial abatement of 1988 Lease Payments as a result of the application of the Net
Proceeds of any eminent domain award to the prepayment of the principal components of
the 1988 Lease Payments hereunder, in an amount to be agreed upon by the City and the
Corporation such that the resulting 1988 Lease Payments represent fair consideration for
the use and occupancy of the remaining usable portion of the Project.
'SECTION 6.2. Application of Net Proceeds. The Net Proceeds of any
insurance award resulting from any damage to or destruction of the Project by fire or
other casualty shall be paid to the Trustee, as assignee of the Corporation under the
Assignment Agreement, and deposited in the Insurance and Condemnation Fund by the
Trustee and applied as set forth in Section 6.01 of the Trust Agreement. The Net
Proceeds of any eminent domain award resulting from any event described in Section 6.1
hereof shah be paid by the City to the Trustee and deposited in the Insurance and
Condemnation Award Fund and applied as set forth in Section 6.02 of the Trust
Agreement.
SECTION 6.3. Abatement of Rental in the Event of Damage or Destruction.
The amount of 1988 Lease Payments shall be abated, during any period in which by
reason of damage or destruction (other than by eminent domain which is hereinbefore
provided for) there is substantial interference with the use and occupancy by the City of
the Project or any portion thereof. The amount of such abatement shah be agreed upon
by the City and the Corporation such that the resulting 1988 Lease Payments represent
fair consideration for the use and occupancy of the portions of the Project not damaged or
destroyed. Such abatement shall continue for the period commencing with such damage
or destruction and ending with the substantial completion of the work of repair or
reconstruction. In the event of any such damage or destruction, this Lease shall continue
in full force and effect and the City waives any right to terminate this Lease by virtue of
any such damage and destruction. Notwithstanding the foregoing, there shall be no
abatement of 1988 Lease Payments allocable to the Project under this Section 6.3 to the
extent that the proceeds of rental interruption insurance or amounts in the Reserve Fund
are available to pay 1988 Lease Payments which would otherwise be abated under this
Section 6.3, it being hereby declared that such proceeds and amounts constitute a special
fund for the payment of the 1988 Lease Payments.
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ARTICLE VII
DISCLAIMER OF WARRANTIES; ACCESS
SECTION 7.1. Disclaimer of Warranties. The Corporation and the Trustee
make no warranty or representation, either express or implied, as to the value, design,
condition, merchantability or fitness for any particular purpose or fitness for the use
contemplated by the City of the Project, or any other representation or warranty with
respect to the Project. In no event shall the Corporation be liable for incidental, indirect,
special or consequential damages, in connection with or arising out of this Lease
Agreement or the Trust Agreement for the existence, furnishing, functioning or City~s use
of the Project.
SECTION 7.2. Access to the Project. The City agrees that the Corporation and
any Corporation RepreSentative, and the Corporation's successors or assigns, shall have
the right at all reasonable times to enter upon and to examine and inspect the Project.
The City further agrees that the Corporation, any Corporation Representative and the
Corporation~s successors or assigns shall have such rights of access to the Project as may
be reasonably necessary to cause the proper maintenance of the Project in the event of
failure by the City to perform its obligations hereunder.
SECTION 7.3. Release and Indemnification Covenants. The City shall and
hereby agrees to indemnify and save the Corporation and the Trustee and their
respective officers, agents, successors and assigns harmless from and against all claims,
losses and damages, including legal fees and expenses, arising out of (a) the use,
maintenance, condition or management of, or from any work or thing done on the Project
by the City, (b) any breach or default on the part of the City in the performance of any of
its obligations under this Lease, (c) any act or negligence of the City or of any of its
agents, contractors, servants, employees or licensees with respect to the Project, (d) any
act or negligence of any sublessee of the City with' respect to the Project, or (e) the
construction of the Project or the authorization of payment of the Project Costs. No
indemnification is made under this Section or elsewhere in this Lease for any negligence
or intentional misconduct by the Corporation or the Trustee, or their respective officers,
agents, employees, successors or assigns.
18
ARTICLE VIII
ASSIGNMENT, SUBLEASING AND AMENDMENT
SECTION 8.1. Assignment by the Corporation. The Corporation's rights
under this Lease, including the right to receive and enforce payment of the 1988 Lease
Payments to be made by the City under this Lease have been assigned to the Trustee
pursuant to the Assignment Agreement, to which assignment the City hereby consents.
SECTION 8.2. Assignment and Subleasing by the City. This Lease
Agreement may not be assigned by the City. The City may further sublease the Project
or any portion thereof, but only with the written consent of the Corporation and subject
to all of the following conditions:
(a) This Lease Agreement and the obligation of the City to make
1988 Lease Payments hereunder shall remain obligations of the City.
(b) The City shall, within thirty (30) days after the delivery thereof,
furnish or cause to be furnished to the Corporation and the Trustee a true
and complete copy of such sublease.
(c) No such sublease by the City shall cause the Project to be used
for a purpose other than as may be authorized under the provisions of the
laws of the State.
(d) The City shall furnish the Corporation and the Trustee with a
written opinion of an attorney or firm of attorneys experienced in the
issuance of obligations described in section 103 of the Tax Code, stating
that such sublease does not cause the interest components of the 1988
Lease Payments to become subject to federal or State personal income
taxes.
SECTION 8.3. Amendment of Lease Agreement. Without the prior written
consent of the Trustee, the City will not alter, modify or cancel, or agree or consent to
alter, modify or cancel this Lease Agreement, excepting only such alteration or
modification as may be permitted by Article _1~.,. ?f the Trust Agreement.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
SECTION 9.1. Events of Default Defined. Any one or more of the following
events shah constitute an Event of Default hereunder:
(a) Failure by the City to pay any 1988 Lease Payment or other
payment required to be paid hereunder at the time specified herein, and the
continuation of such failure for a period of ten (10) days.
(b) Failure by the City to observe and perform any covenant,
condition or agreement on its part to be observed or performed, other than
as referred to in clause (i) of this Section, for a period of thirty (30) days
after written notice specifying such failure and requesting that it be
remedied has been given to the City by the Corporation, the Trustee, or the
Owners of not less than twenty-five percent (25%) in aggregate principal
_~mount of Certificates then Outstanding; provided, however, if the failure
stated in the notice can be corrected, but not within such 30-day period,
the Corporation, the Trustee and such Owners shall not unreasonably
withhold their consent to an extension of such time if corrective action is
instituted by the City within the applicable period and diligently pursued
until corrected.
(c) The f~ling by the City of a voluntary petition in bankruptcy, or
failure by the City promptly to lift any execution,. garnishment or
attachment, or adjudication of the City as a bankrupt, or assignment by the
City for the benefit of creditors, or the entry by the City into an agreement
of composition with creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the City in any proceedings instituted
under the provisions of the Federal Bankruptcy Code, as amended, or
under any similar acts which may hereafter be enacted.
SECTION 9.2. Remedies on Default. Whenever any Event of Default shall
have happened and be continuing, the Corporation may exercise any or all remedies
available pursuant to law or granted pursuant to this Lease; provided that
notwithstanding anything herein or in the Trust Agreement to the contrary, there shall
be no right under any circumstances to accelerate the 1988 Lease Payments or otherwise
declare any 1988 Lease Payments not then in default to be immediately due and payable.
Each and every covenant hereof to be kept and performed by the City is expressly made a
condition and upon the breach thereof the Corporation may exercise any and all rights of
entry and re-entry upon the Project, and also, at its option, with or without such entry,
may terminate this Lease; provided, that no such termination shall be effected either by
operation of law or acts of the parties hereto, except only in the manner herein expressly
provided. Upon the occurrence of an Event of Default and notwithstanding any re-entry
by the Corporation, the City shall, as herein expressly provided, continue to remain liable
for the payment of the 1988 Lease Payments and/or damages for breach of this Lease and
the performance of all conditions herein contained and, in any event such rent and/or
-20-
dsmages shall be payable to the Corporation at the time and in the manner as herein
provided, to wit:
(a) In the event the Corporation does not elect to terminate this Lease in
the manner hereinafter provided for in subparagraph (b) hereof, the City agrees to and
shall remain liable for the payment of all 1988 Lease Payments and the performance of
all conditions herein contained and shall reimburse the Corporation for any deficiency
arising out of the re-leasing of the Project, or, in the event the Corporation is unable to
re-lease the Project, then for the full amount of all 1988 Lease Payments to the end' of
the Term of this Lease Agreement, but said 1988 Lease Payments and/or deficiency shall
be payable only at the same time and in the same manner as hereinabove provided for
the payment of 1988 Lease Payments hereunder, notwithstanding such entry or re-entry
by the Corporation or any suit in unlawful detainer, or otherwise, brought by the
Corporation for the purpose of effecting such re-entry or obtaining possession of the
Project or the exercise of any other remedy by the Corporation. The City hereby
irrevocably appoints the Corporation as the agent and attorney-in-fact of th~ City to
enter upon and re-lease the Project in the event of default by the City in the performance
of any covenants herein contained to be performed by the City and to remove all personal
property whatsoever situated upon the Project to place such property in storage or other
suitable place in the County of Alameda for the account of and at the expense of the City,
and the City hereby exempts and agrees to save harmless the Corporation from any
~osts, loss or damage whatsoever arising or occasioned by any such entry upon and re-
leasing of the Project and the removal and storage of such property by the Corporation or
its duly authorized agents in accordance with the provisions herein contained. The City
hereby waives any and all claims for damages caused or which may be caused by the
Corporation in re-entering and taking possession of the Project as herein provided and
all claims for damages that may result from the destruction of or injury to the Project and
all claims for damages to or loss of any property belonging to the City that may be in or
upon the Project. The City agrees that the terms of this Lease constitute full and
sufficient notice of the right of the Corporation to re-lease the Project in the event of such
re-entry without effecting a surrender of this Lease, and further agrees that no acts of
the Corporation in effecting such re-leasing shall constitute a surrender or termination of
this Lease irrespective of the term for which such re-leasing is made or the terms and
conditions of such re-leasing, or otherwise, but that, on the contrary, in the event of such
default by the City the right to terminate this Agreement shall vest in the Corporation to
be effected in the sole and exclusive manner hereinafter provided for in subparagraph (b)'
hereof. The City further waives the fight to any rental obtained by the Corporation in
excess of the 1988 Lease Payments and hereby conveys and releases such excess to the
Corporation as additional rental hereunder.
(b) Upon the occurrence of an Event of Default, the Corporation may at its
election terminate this Lease and re-lease all or any portion of the Project; provided that
any such termination shall not operate to terminate the rights and remedies granted to
the Corporation pursuant to this Article IX. In the event of the termination of this Lease
by the Corporation and in the manner hereinafter provided on account of default by the
City (and notwithstanding any re-entry upon the Project by the Corporation in any
manner whatsoever or the re-leasing of the Project), the City nevertheless agrees to pay
to the Corporation all costs, loss or damages howsoever arising or occurring payable at
the same time and in the same manner as is herein provided in the case of payment of
1988 Lease Payments. Any surplus received by the Corporation from such re-leasing
-21-
shall be credited towards the 1988 Lease Payments next coming due and payable.
Neither notice to pay rent or to deliver up possession of the premises given pursuant to
law nor any proceeding in unlawful detainer taken by the Corporation shall of itself
operate Ito terminate this Lease, and no termination of this Lease on account of default by
the City shall be or become effective by operation of law, or otherwise, unless and until
the Corporation shall have given written notice to the City of the election on the part of
the Corporation to terminate this Lease. The City covenants and agrees that no
surrender of the Project and/or the Site or of the remainder of the Term hereof or any
termination of this Lease shall be valid in any manner or for any purpose whatsoever
unless stated or accepted by the Corporation by such written notice.
SECTION 9.3. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Corporation is intended to be exclusive and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Lease or now
or hereafter existing at law or in equity. No delay or omission to exercise any right or
power accruing upon the occurrence of any Event of Default shah impair any such right
or power or shall be construed to be a waiver thereof, but any such right and power may
be exercised from time to time and as often as may be deemed expedient. In order to
entitle the Corporation to exercise any remedy reserved to it in this Article it shall not be
necessary to give any notice, other than such notice as may be required in this Article or
by law.
SECTION 9.4. Agreement to Pay Attorneys' Fec~, and Expenses. In the event
either party to this Lease Agreement should default under any of the provisions hereof
and the nondefaulting party should employ attorneys or incur other expenses for the
collection of moneys or the enforcement or performance or observance of any obligation or
agreement on the part of the defaulting party herein contained, the defaulting party
agrees that it will on demand therefor pay to the nondefaulting party the reasonable fees
of such attorneys and such other expenses so incurred by the nondefaulting party.
SECTION 9.5. No Additional Waiver Implied by One Waiver. In the event
any agreement contained in this Lease should be breached by either party and thereafter
waived by the other party, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other breach hereunder.
SECTION 9.6. Application of Proceeds. All net proceeds received from the re-
lease of the Project under this Article IX, and all other amounts derived by the
Corporation or the Trustee as a result of the occurrence of an Event of Default, shall be
transferred to the Trustee promptly upon receipt thereof and shall be deposited by the
Trustee in the Lease Payment Fund to be applied to the 1988 Lease Payments in order of
1988 Lease Payment Date.
SECTION 9.7. Trustee and Certificate Owners to Exercise Rights. Such
rights and remedies as are given to the Corporation under ~his Article IX have been
assigned by the Corporation to the Trustee under the Assignment Agreement, to which
assignment the City hereby consents. Such rights and remedies shall be exercised by the
Trustee and the Owners of the Certificates as provided in the Trust Agreement.
-22-
ARTICLE X
PREPAYMENT OF LEASE PAYMENTS
SECTION 10.1. Security Deposit. Notwithstanding any other provision of this
Lease Agreement, the City may on any date secure the payment of 1988 Lease Payments
in whole or in part by depositing with the Trustee an amount of cash which, together
with amounts on deposit in the Lease Payment Fund, the Insurance and Condemnation
Fund and the Reserve Fund, is either (a) sufficient to pay all unpaid 1988 Lease
Payments, including the principal and interest components thereof, in accordance with
the 1988 Lease Payment schedule set forth in E,~hibit A, or (b) invested in whole or in
part in Federal Securities in such amount as will, in the opinion of an independent
certified public accountant, together with interest to accrue thereon and together with
any cash which is so deposited, be fully sufficient to pay such 1988 Lease Payments when
due pursuant to Section 4.4(a) or when due on any optional prepayment date pursuant to
Section 10.2, as the City shall instruct at the time of said deposit. In the event of a
security deposit pursuant to this Section with respect to all unpaid Lease Payments, all
obligations of the City under this Lease Agreement, and all security provided by this
Lease Agreement for said obligations, shall cease and terminate, excepting only the
obligation of the City to make, or cause to be made, all of 1988 Lease Payments from
such security deposit, and pursuant to Section 4.6, title to the Project shall vest in the
City on the date of said deposit automatically and without further action by the City or
the Corporation. Said security deposit shall be deemed to be and shall constitute a
special fund for the payment of 1988 Lease Payments in accordance with the provisions
of this Lease Agreement.
SECTION 10.2. Optional Prepayment. The City may exercise its option to
exercise its option to prepay the principal components of the 1988 Lease Payments in
whole, or in part in any integral multiple of $5,000, on any Interest Payment Date on or
after February 1, 199_, by paying a prepayment price equal to the aggregate principal
components of the 1988 Lease Payments to be prepaid, together with the interest
component of the 1988 Lease Payment required to be paid on such date and together
with a prepayment penalty equal to the aggregate premium required to be paid upon the
corresponding prepayment of the Certificates pursuant to Section 3.01(a) of the Trust
Agreement. Such prepayment price. shah be. deposited by the Trustee in the Lease
Payment Fund to be applied to the prepayment of Certificates pursuant to Section 3.01(a)
of the Trust Agreement. The City shall give the Trustee written notice of its intention to
exercise its option not less than forty-five (45) days in advance of the date of exercise.
SECTION 10.3. Mandatory Prepayment From Net Proceeds of Insurance or
Eminent Domain. The City shall be obligated to prepay the 1988 Lease Payments in
whole on any date or in part on any Interest Payment Date, from and to the extent of any
Net Proceeds of insurance award or condemnation award with respect to the Project
theretofore deposited in the Lease Payment ~'~und for such purpose pursuant to Article VI
hereof and Article VI of the Trust Agreement. The City and the Corporation hereby
agree that such Net Proceeds, to the extent remaining after payment of any delinquent
1988 Lease Payments, shall be credited towards the City's obligations under this Section
10.3.
-23~
SECTION 10.4. Mandatory Prepayment From Unused Project Funds. The
shall be obligated to prepay the Lease Payments on the first Interest Payment Date for
which notice of redemption of Certificates can be timely given following the earlier of (a)
December 1, 1990, or such later date as may be permitted in the opinion of Bond
Counsel, or (b) the Completion Date, from and to the extent of any amounts then
remaining on deposit in the Project Funds and transferred to the Trustee for such
purpose pursuant to Section 4.02 of the Trust Agreement. The City and the Corporation
hereby agree that such amounts, to the extent rema~mng after payment of any delinquent
Lease Payments, shall be credited towards the City's obligations under this Section 10.4.
SECTION 10.5. Credit for Amounts on Deposit. In the event of prepayment of
the principal components of ~the 1988 Lease Payments in full under this Article X, such
that the Trust Agreement shall be discharged by its terms as a result of such
prepayment, all amounts then on deposit in the Lease Payment Fund, the Project Funds
or the Reserve Fund shall be credited towards the amounts then required to be so
prepaid.
City
-24-
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Notices. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed to have been received 48 hours
after deposit in the United States mail in registered or certified form with postage fully
prepaid:
If to the City:
City Manager
City of Dublin
6500 Dublin Boulevard
~Post Office Box 2340
Dublin, California 94568
If to the Corporation:
Chairman
Dublin Information, Inc.
6500 Dublin Boulevard
Post Office Box 2340
Dublin, California 94568
If to the Trustee:
The Bank of California, N.A.
400 California Street
Sar~ Francisco, California 94104
Attention:
SECTION 11.2. Bind/ng Effect. This Lease shah inure to the benefit of and
shall be binding upon the Corporation and the City and their respective successors and
assigns.
SECTION 11.3. Severability. In the event any provision of this Lease shall be
held invalid or unenforceable by any court of competent jurisdiction, such holding shall
not invalidate or render unenforceable any other provision hereof.
SECTION 11.4. Net-net-net Lease. This Lease shall be deemed and construed
to be a "net-net-net lease" and the City hereby agrees that the 1988 Lease Payments
shall be an absolute net return to the Corporation, free and clear of any expenses,
charges or set-offs whatsoever.
SECTION 11.5. Further Assurances and Corrective Instruments. The
Corporation and the City agree that they will, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such supplements
hereto and such further instruments as may reasonably be required for correcting any
inadequate or incorrect description of the Project hereby leased or intended so to be or for
carrying out the expressed intention of this Lease.
-25-
SECTION 11.6. Execution in Counterparts. This Lease may be executed in
several counterparts, each of which shall be an original and all of which shah constitute
but one and the same instrument.
SECTION 11.7. Applicable Law. This Lease shall be governed by and
construed in accordance with the laws of the State of California.
SECTION 11.8. Corporation and City Representatives. Whenever under the
provisions of this Lease the approval of the Corporation or the City is required, or the
Corporation or the City is required to take some action at the request of the other, such
approval or such request shall be given for the Corporation by a Corporation
Representative and for the City by a City Representative, and any party hereto shall be
authorized to rely upon any such approval or request.
SECTION 11.9. Captions. The captions or headings in this Lease are for
convenience only and in no way define, limit or describe the scope or intent of any
provisions or Section of this Lease Agreement.
-26-
IN WITNESS WHEREOF, the Corporation and the City have caused this Lease
Agreement to be executed in their respective names by their duly authorized officers, all
as of the date first above written.
CITY OF DUBLIN, as lessee
By
Mayor
Attest:
By:
City Clerk
DUBLIN INFORMATION, INC., as lessor
By
Chaiman
(S E A, L)
Attest:
By:
Secretary
-27-
EXltIBIT A
SCHEDULE OF 1988 LEASE PAYMENTS
1988 Lease Principal Interest 1988 Lease
Payment Date Component Component Payment
July 15, 1988
January 15, 1989
July 15, 1989
January 15, 1990
July 15, 1990
January 15, 1991
July 15, 1991
January 15, 1992
July 15, 1992
January 15, 1993
July 15, 1993
January 15, 1994
July 15, 1994
January 15, 1995
July 15, 1995
January 15, 1996
July 15, 1996
January 15, 1997
July 15, 1997
January 15, 1998
July 15, 1998
January 15, 1999
July 15, 1999
January 15, 2000
July 15, 2000
January 15, 2001
July 15, 2001
January 15, 2002
July 15, 2002
January 15, 2003
July 15, 2003
January 15, 2004
July 15, 2004
* A portion of the first 1988 Lease Payment in the amount of $
the Closing Date pursuant to Section 3.1.
is payable on
-28-
1988 Lease
Payment Date
January 15, 2005
July 15, 2005
January 15, 2006
July 15, 2006
January 15, 2007
July 15, 2007
January 15, 2008
July 15, 2008
January 15, 2009
July 15, ~2009
January 15, 2010
Principal
Component
Interest
Component
1988 Lease
Payment
-29-
EXHIBIT B
DESCRIPTION OF PROJECT SITE
-30-
EXttlBIT C
SCHEDULE OF ORIGINAL LEASE PAYMENTS
Original Lease Principal Interest Original Lease
Payment Date Component Component Payment
August 1, 1986
February 1, 1987
August 1, 1987
February 1, 1988
August 1, 1988
February 1, 1989
August 1, 1989
February 1, 1990
August 1, 1990
February 1, 1991
August 1, 1991
February 1, 1992
August 1, 1992
February 1, 1993
August 1, 1993
February 1, 1994
August 1, 1994
February 1, 1995
August 1, 1995
February 1, 1996
August 1, 1996
31.
14011-04
MANKE. D
(
JHH'W:CFA:dfs February 11, 1988
TO $}-~IOV~ CHANG.~t~
4,,/~ _~
FF662
TRUST AGREEMENT
~P~Lcr~
Dated as of February 1, 1988
RE-CEIVE'!~.
FEB 1 ~, 1988
CiTY OF DUBLig
by and among
THE BANK OF CALIFORNIA, as trustee
DUBLIN INFORMATION, INC.
and the
CITY OF DUBLIN
Relating to
$
1988 Refunding Certificates of Participation
(Civic Center Project)
F7662 .TOC
TABLE OF CONTENTS
page
Section 1.01.
Section 1.02.
ARTICLE I
DEFINITIONS
Definitions ...............................~ .....................................................2
Legal Authority.., ..........................................................................9
Section 2.01.
Section 2.02.
Section 2.03.
Section 2.04.
Section 2.05.
Section 2.06.
Section 2.07.
Section 2.08.
Section 2.09.
Section 2.10.
Section 2.11.
Section 2.12.
ARTICLE II
THE CERTIFICATES OF PARTICIPATION
Authorization ................................................................................10
Date ..............................................................................................10
Maturity; Interest Rates ...............................~ ................................10
Form of Certificates; Interest .........................................................10
Form ..............................................................................................11
Execution .......................................................................................11
Transfer and Exchange ..................................................................11
Certificates Mutilated, Lost, Destroyed or Stolen ...........................11
Payment ........................................................................................12
Execution of Documents and Proof of Ownership .... : ......................12
Temporary Certificates ..................................................................13
Registration Books .........................................................................13
ARTICLE III
PREPAYMENT OF CERTIFICATES
Section 3.01. Prepayment ...................................................................................14
Section 3.02. Selection of Certificates for Prepayment ........................................15
Section 3.03. Notice of Prepayment ....................................................................15
Section 3.04. Partial Prepayment of Certificates .................................................16
Section 3.05. Effect of Notice of Prepayment .......................................................16
Section3.06. Purchase of Certificates .................................................................16
Section 4.01.
Section 4.02.
Section 4.03.
Page
ARTICLE IV
DISPOSITION OF PROCEEDS;
PROJECT FUND AND RESERVE FUND
Application of Proceeds ..................................................................17
Project Funds ................................................................................17
Reserve Fund .................................................................................17
Section 5.01.
Section 5.02.
Section 5.03.
Section 5.04.
Section 5.05.
ARTICLE V
LEASE PAYMENTS; LEASE PAYMENT FUND
Assignment of Rights in Lease Agreement ........... , .........................19
Establishment of Lease Payment Fund ..........................................19
Deposits ..............? ..........................................................................19
Application of Moneys ...................................................................19
Surplus ..........................................................................................19
Section 6.01.
Section 6.02.
Section 6.03.
ARTICLE VI
INSURANCE AND CONDEMNATION FUND
Establishment of Insurance and Condemnation-Fund;
Application of Net Proceeds of Insurance Award ................. 20
Deposit and Application of Net Proceeds of Eminent
Domain Award ....................................................................20
Cooperation ...................................................................................21
Section 7.01.
Section 7.02.
Section 7.03.
Section 7.04.
Section 7.05.
Section 7.06.
Section 7.07.
ARTICLE VII
MONEYS fIN FUNDS; SPECIAL ARBITRAGE COVENANTS
Held in Trust .................................................................................22
Investments Authorized .................................................................22
Accounting ....................................................................................22
Allocation of Earnings ...................................................................22
Valuation and Disposition of Investments ......................................22
No Arbitrage ..................................................................................23
Rebate of Excess Investment Earnings to United
States ..................................................................................23
Section 8.01.
Section 8.02.
Section 8.03.
Section 8.04.
Section 8.05.
Section 8.06.
Section 8.07.
Section 8.08.
Section 8.09.
Section 8.10.
Section 8.11.
Section 8.12.
Section 8.13.
Pagre
ARTICLE VIII
THE TRUSTEE
Appointment of Trustee .................................................................25
Acceptance of Trusts .....................................................................25
Fees, Charges and Expenses of Trustee .........................................28
Notice to Certificate Owners of Default ..........................................28
Intervention by Trustee .................................................................28
Removal of Trustee ........................................................................28
Resignation by Trustee .................................. ................................28
Appointment of Successor Trustee ............................~ ....................29
Merger or Consolidation ................................................................29
Concerning any Successor Trustee .................................................29
Appointment of Co-Trustee ...........................................................29
Non-Liability of Trustee ...... ; .........................................................30
Nature of Trust Engagement .........................................................30
Section 9.01.
Section 9.02.
Section 9.03.
Section 9.04.
Section 9.05.
Section 9.06.
ARTICLE IX
MODIFICATION OR AMENDMENT OF AGREEMENTS
Amendments Permitted .................................................................32
Procedure for Amendment with Written Consent of
Certificate Owners ...............................................................32
Disqualified Certificates .................................................................33
Effect of Supplemental Agreement ........ ~ ......................... ...............33
Endorsement or Replacement of Certificates Delivered
After Amendments ..............................................................34
Amendatory Endorsement of Certificates .......................................34
Section 10.01.
Section 10.02.
Section 10.03.
Section 10.04.
Section 10.05.
Section 10.06.
ARTICLE X
COVENANTS; NOTICES
Compliance With and Enforcement of Lease
Agreement ........................ ...................................................35
Observance of Laws and Regulations ...........................................35
Prosecution and Defense of Suits ..... : ...........................................35
Recordation and Filing .................................................................'35
Tax Covenants ........................................................................~ ....35
Further Assurances .....................................................................36
nl
Section 11.01.
Section 11.02.
Section 11.03.
Section 11.04.
Section 11.05.
Page
ARTICLE XI
LIMITATION OF LIABILITY
Limited Liability of City ..........................................; ....................37
No Liability of the Corporation for Trustee
Performance ........................................................................37
Indemnification of Trustee ...........................................................37
Opinion of Counsel ......................................................................37
Limitation of Rights to Parties and Certificate
Owners ................................................................................37
Section 12.01.
Section 12.02.
Section 12.03.
Section 12.04.
Section 12.05.
Section 12.06.
Section 12.07.
Section 12.08.
Section 12.09.
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
OF CERTIFICATE OWNERS
Assignment of Rights ...................................................................39
Remedies .....................................................................................39
Application of Funds ....................................................................39
Institution of Legal Proceedings ................................. .................40
Non-waiver ................................................: ................................40
Remedies Not Exclusive ...............................................................40
Power of Trustee to Control Proceedings ................... ~ ..................40
Limitation on Certificate Owners' Right to Sue ............................40
Possession of Certificates by Trustee Not Required ...................... 41
Section 13.01.
Section 13.02.
Section 13.03.
Section 13.04.
Section 13.05.
Section 13.06.
Section 13.07.
Section 13.08.
Section 13.09.
Section 13.10.
Section 13.11.
Section 13.12.
ARTICLE XIII
MISCELLANEOUS
Defeasance ...................................................................................42
Records ........................................................................................42
Notices .........................................................................................42
Payment of Certificates After Discharge of Trust
Agreement ...........................................................................43
Governing Law ............................................................................43
Binding Effect; Successors ...........................................................43
Corporation and City Representatives .........................................44
Execution in Counterparts ...........................................................44
Delivery of Cancelled Certificates .................................................44
Headings ....................................................................................44
Waiver of Notice ..........................................................................44
Separability of Invalid Provisions ................................................44
TRUST AGREEMENT
THIS AGREEMENT, made and entered into as of ,F~ob~.a~ 1, 1988, is by and
among THE BANK OF CALIFORNIA, N.A., a national banking association organized
and existing under the laws of the United St. ates of America (the "Trustee"), DUBLIN
INFORMATION, INC., a nonprofit public benefit corporation duly organized and existing
under the laws of the State of California (the "Corporation"), and the CITY OF DUBLIN,
a municipal corporation duly organized and existing under the laws of the State of
California (the "City"),
WITNESSETH:
WHEREAS, the City and the Corporation have heretofore entered into that certain
Lease Agreement Relating to Public Facilities Project No. 1, dated as of December 18,
1985, by and between the Corporation as lessor and the City as lessee,N(the "Original
Lease") with respect to the land and civic center improvements described more fully
therein (the "Project"); and
WHEREAS, the City has determined that it is in the economic interests of the City
at this time to provide for the refmancing of the City's existing obligations under the
Original LeaseNand to provide additional funds to the' City to finance the completion of
the Project, and to that end the Corporation and the City hav~ed into that certain
First Amended and Restated Lease Agreement dated as of February 1, 1988, (the "Lease
Agreement") by and between the Corporation as lessor and the City as lessee, amending
and restating the Original Lease in full; and
WHEREAS, for such purposes the Corporation proposes to assign and transfer to
the Trustee certain of its rights under the Lease Agreement, and in consideration of such
assignment and the execution of this Trust Agreement, the Trustee has agreed to execute
and deliver 1988 Refunding Certificates of Participation each evidencing a direct,
undivided fractional interest in the Lease Payments to be made by the City under the
Lease Agreement, as so amended;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Def'mitions. Unless the context otherwise requires, the terms
defined in this Section shall, for all purposes of this Trust Agreement, have the meanings
specified in this Section 1.01. In addition, all terms defined in the Lease Agreement and
not otherwise defined herein shall have the respective mesnings specified in the Lease
Agreement.
"Agency 'Agreement" means the Agency Agreement Relating to Public Facilities
Project No. 1, dated as of December 18, 1985, by and between the Corporation and the
City, as originally executed or as thereafter amended pursuant to any duly authorized
and executed amendments thereto.
"Assignment Agreement" means the Assignment Agreement, dated as of February
1, 1988, by and between the Corporation as assignor and the Trustee as assignee, as
originally executed or as thereafter amended pursuant to any duly authorized and
executed amendments thereto.
"Authorized Investments" ,means any securities in which the City may legally
invest funds s_ub_j_ect to its control.
"Bond Counsel" means any attorney or firm of attorneys of nationally recognized
expertise with respect to legal matters relating' to obligations the interest on which is
excludable from gross income pursuant to Section 103 of the Tax Code.
"Business Day" means a day of the week on which the Trustee is not required or
authorized to remain closed and on which the New York Stock Exchange is open.
"Certificate Proceeds" means the face amount of the Certificates, plus accrued
interest and premium, if any, less original issue discount and less the proceeds thereof
deposited in a reserve fund.
"Certificates" means the $ aggregate principal amount of 1988
Refunding Certificates of Participation (Civic Center Project) to be executed and delivered
pursuant hereto.
"City" means the City of Dublin, a municipal corporation duly organized and
existing under the laws of the State of California.
"City Representative" means the City Manager or Treasurer of the City or any
other person authorized by resolution of the City Council of the City to act on behalf of
the City under or with respect to this Agreement.
"Closing Date" means February , 1988, being the day when the Certificates of
Participation, duly executed by the Trustee, are delivered to the Original Purchaser.
-2-
,Corporation" means the Dublin Information, Inc., a nonprofit public benefit
corporation duly organized and existing under the laws of the State of California.
"Corporation Renresentative" means the^President, Chief Financial Officer or
Secretary of the Corporation, or any other person authorized by resolution of the
Corporation to act on behalf of the Corporation under or with respect to this Agreement.
"Costs of Issuance" means all items of expe_nse directly or indirectly payable by or
reimbursable to the City or the Corporation relating to the execution and delivery of the
Lease Agreement, /x the execution, sale and delivery of the Certificates or the
administration o~ th,e~E_s_crow Agreement, including but not limited to filing and recording
~osts, settlement costs, p~nting costs, reproduction and binding 'costs, initial fees and
charges of the Trustee and the Escrow Bank (which shah include legal fees and the first
annual administration fee of the Trustee and the Escrow Bank), financing discounts,
legal fees and charges, insurance fees and charges, financial and other professional
consultant fees, costs of rating agencies for credit ratings, fees for execution,
transportation and safekeeping of the Certificates and charges and fees in connection
with the foregoing.
"Escrow Agreement" means the Escrow Deposit and Trust Agreement dated the
Closing Date, by and between the City and the Escrow Bank.
"Escrow Bank" means The, ..B_a.n.k...~f California, N.A., or any successor thereto
acting as escrow bank pursuant to the Escrow Agreement.
"Escrow Fund" means the fund by that name established and held by the Escrow
Bank pursuant to the Escrow Deposit and Trust Agreement.
"Event of Default" means an event of default under the Lease Agreement, as
defined in Section 9.1 thereof.
"Excess Investment Earnings~' means an amount equal to the sum of:
(a) the excess of
(i) the aggregate amount earned from and after the Closing Date on
all Nonpurpose Obligations in which Gross Proceeds are invested (other
than amounts attributable to an excess described in this paragraph (a)),
over
(ii) the amount that would have. been earned if the Yield on such
Nonpurpose Obligations (other than amounts attributable to an excess
described in this paragraph (a)) had been equal to the Yield on the Lease
Payments,
plus (b) any income attributable to the excess described in paragraph (a).
"Federal Securities" means any of the following which are noncallable and which
at the time of investment are legal investments under the laws of the State of California
for trust funds held by the Trustee:
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(a) direct general obligations of the United States of America
(including obligations issued or held in book entry form on the books of the
Department of the Treasury of the United States of America); and
(b) obligations of any agency, department or instp,rnentality of the
United States of America the timely payment of principal of and interest on
which are fully guaranteed by the United States of America.
"Fiscal Year" means the twelve-month period beginning on July I of any year and
ending on^June 30 of the next succeeding year, or any other twelve-month period
selected by the City as its fiscal year.
"Gross Proceeds" means and includes all of the following amounts:
(a) the proceeds remaining from the sale of the Certificates
foEowing payment of all costs of issuance relating thereto, including
accrued interest but excluding underwriter's discount, original issue
discount (if any) and excluding any such proceeds which become transferred
proceeds (determined in .accordance with applicable Tax Regulations) of
obligations issued to refund the Lease Payments in whole or in part;
(b) amounts received at any time from the investment of any
proceeds described in the preceding clause (a) or from the investment in
Nonpurpose Obligations, plus any profits and less any losses on such
investments, excluding such amounts which become transferred proceeds
(determined in accordance with applicable Tax Regulations) of obligations
issued to refund the Lease Payments in whole or in part;
(c) amounts, other than amounts described in the preceding
clauses (a) and (b), which are held in the Lease Payment Fund and any
other fund or account which is reasonably expected to be used to pay
principal or interest represented by the Certificates;
(d) amounts in the Reserve Fund or any other fund established as
a reasonably required reserve or replacement fund;
(e) Investment 'Property pledged as security for payment of
principal or interest represented by the Certificates by an ultimate obligor,
a related person or the City;
(f) any amounts, other than _smounts described in the preceding
clauses (a) through (e), used to pay principal or interest represented by the
Certificates; and
(g) smounts received as a result of the investment of any amounts
described in this definition.
"Independent Counsel" means an attorney duly admitted to the practice of law
before the highest court of the state in which such attorney maintains an office and who
is not an employee of the Corporation, the Trustee or the City.
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"Information Services" means Financial Information, Inc.'s - "Daily Called Bond
Service", 30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302, Attention:
Editor; Kenny Information Services' "Called Bond Service,~ 55 Broad Street, 28th Floor,
New York, New York 10004; Moody's Investors Service "Municipal and Government," 99
Church Street, 8th Floor, New York, New York 10007, Attention: Municipal News
Reports; Standard & Poor~s Corporation "Called Bond Record," 25 Broadway, 3rd Floor,
New York, New York 10004; and, 'in accordance with then current guidelines of the
Securities and Exchange Commission, such other addresses and/or such other services.
providing information with respect to called bonds as the City may designate in a written
request delivered to the Trustee.
"Insurance and Condemnation Fund" means the fund by that name to be
established and held by the Trustee pursuant to Section 6.01.
"Interest Payment Date" means August 1, 1988, and the first day of each August
and February thereafter so long as any Certificates are Outstanding.
"Investment Property" means any security (as said term is defined in Section
165(g)(2)(A) or (B) of the Tax Code), obligation, annuity contract or investment-type
property, excluding obligations the interest on which is excluded from gross income under
Section 103 of the Tax Code, for federal income tax purposes.
"Lease Agreement" means the Amended and Restated Lease Agreement dated as
of February 1, 1988, by and between the Corporation as lessor and the City as lessee, as
originally executed or as thereafter amended pursuant to any duly authorized and
executed amendments thereto.
"Lease Payment Fund" means the fund by that name established and held by the
Trustee pursuant to Section 5.02.
"Lease Payments" means all payments required to be paid by the City pursuant to
Section 4.4(a)(ii) of the Lease Agreement, including any prepayment thereof pursuant to
Article X of the Lease Agreement.
"Minimum Rating" means: (a) with respect to any Permitt~ed Investment acquired
as an investment of amounts on deposit in the Reserve Fund, a rating of A or better by
Moody's and a rating of A or better by S&P; and (b) with respect to any Permitted
Investment acquired as any investment of amounts on deposit in any other fund or
account held by the Trustee hereunder, a rating of A or better by Moodyes or a rating of
A or better by S&P. In the event the rating system of Moody's or S&P with respect to
any particular Permitted Investment does not including a rating category of A, the term
"A or better" as used in the preceding sentence shall mean one of the two highest general
rating categories applicable to such Permitted Investment (determined without regard to
any refinement or gradation of such rating category by a m~merical modifier, a plus or a
minus sign, or otherwise).
"Moody's" means Moody's Investors Service and its successors.
"Net Proceeds" means any insurance proceeds or eminent domain award
(including any proceeds of sale to a governmental entity under threat of the exercise of
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eminent domain powers), paid with respect to the Project, to the extent remaining after
payment therefrom of all expenses incurred in the collection thereof.
"1985 Project Fund" means the fund by that name established and held by the
City pursuant to Section 4.02.
"1988 Project Fund" means the fund by that name established and held by the
City pursuant to Section 4.02 .....
"Nonl~urpose Obligation" means any Investment Property which is acquired with
the proceeds of the Certificates and is not acquired in order to carry out the
governmental purpose of the Certificates.
Original Purchaser" means Rauscher Pierce Refsnes, Inc. as original purchaser of
the Certificates.
'Outstanding", when used as of any particular time with respect to Certificates,
means all Certificates theretofore executed and delivered by the Trustee under this
Agreement except -
(a) Certificates theretofore cancelled by the Trustee or surrendered
to the Trustee for cancellation;
(b) Certificates for the payment or prepayment of which funds or
Federal Securities in the necessary amount shall have theretofore been
deposited with the Trustee pursuant to Section 13.01; and
(c) Certificates in lieu of or in exchange for which other Certificates
shall have been executed and delivered by the Trustee pursuant to Section
2.08.
"Owner", when used with respect to a Certificate means the person in whose name
the ownership of such Certificate shall be registered on the Registration Books.
'Permitted Investments" means any of the following which at the time of
investment are legal investments under the laws of the State of California for the moneys
proposed to be invested therein:
(a) FederalSecurities;
(b) any of the. _fo_l_lowing__Q~i_ga__ti_ons or indebtedness issued or
guaranteed by any of the following federal agencies and entities: (i) senior
debt obligations of the Federal Home Loan Bank System; (ii) participation
certificates of the Federal Home Loan Mortgage Corporation; (iii)
mortgage-backed securities or senior debt obligations of the Federal
National Mortgage Association; or (iv) senior debt obligations of the
Student Loan Marketing Association.
(c) interest-bearing demand or time deposits (including certificates
of deposit) in federal or state chartered savings and loan associations or in
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federal or state banks (including the Trustee), provided that: (i) in the case
of a savings and loan association, such demand or t'nne deposits shah be
fully insured by the Federal Savings and Loan Insurance Corporation, or
the unsecured obligations of such savings and loan association shall ha~
Minimum Rating; and (ii) in the case of a bank, such demand or time
~ieposits shall be fully insured by the Federal Deposit Insurance
Corporation, or the unsecured obligations of such bank (or the unsecured
obligations of the parent bank holding company of which such bank is the
lead bank) shall~have a Minimum Rating;
(d)I commercial paper~having a Minimum Rating or backed by a
letter of credit or line of ~redit which has a Minim,m Rating;
(e) obligations issued by any corporation organized and operating
within the United States of America having assets in excess of
$500,000,000 which obligations~have a Minimum Rating;
(f) money market funds the policy of _which is to invest solely in
Federal Securities or in obligations which are fully collateralized by Federal
Securities, or^which have a Min'_nn~_~rn Rating;
(g) any investment agreement, guarantee or other investment
vehicle or security,' in form and substance satisfactory to the Trustee,
issued by, secured by or otherwise representing the general obligations of a
financial institution whose long-term unsecured general obligations~haVe a
Minimum Rating;
(h) obligations the interest on which is exempt from federal income
taxation under Section 103 of the Tax Code, and which have a Minimum
Rating; and
(i) banker's accep~ances of commercial banks (which banks must be
rated for unsecured debt at the time of investment and reinvestment in one
of the two highest classifications established by S&P and Moody's)
maturing not more than 360 days after the date of purchase.
"Private Business Use" means use directly or indirectly in a trade or business
carried on by a natural person or in any activity carried on by a person other than a
natural person, excluding, however, use by a governmental unit and use as a member of
the general public.
Fund.
"Project Funds~means, collectively, the 1985 Project Fund and the 1988 Proj.ect
"Purchase Price", for the purpose of computation of the Yield on the Lease
Payments, has the same meaning as the term "issue price" in Sections 1273(b) and 1274
of the Tax Code, and, in general, means the initial offering price to the public (not
including bond houses and brokers, or similar persons or organizations acting in the
capacity of underwriters or wholesalers) at which price a substantial amount of the
Certificates are sold or, if the Certificates are privately placed, the price paid by the
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Original Purchaser or the acquisition cost of the Original Purchaser. The term "Purchase
Price," for the purpose of computation of the Yield of Nonpurpose Obligations, means the
fair market value of the Nonpurpose Obligations on the date of use of Gross Proceeds for
acquisition thereof, or if later, on the date that Investment Property constituting a
Nonpurpose Obligation becomes a Nonpurpose Obligation.
"Rebate Calculation Period" means the twelve month period from and including
the Closing Date or any anniversary of the Closing Date and extending to but not
including the next succeeding anniversary of the Closing Date, or any other period
prescribed in the Tax Regulations as a period during which Excess Investment Earnings
must be calculated.
'Rebate Fund" means the fund by that name established and held by the Trustee
pursuant to Section 7.07(c).
"Record Date" means the close of business on the fifteenth (15th) day of the month
preceding each Interest Payment Date, whether or not such fifteenth (15th) day is a
Business Day.
"Registration Books" means the records maintained by the Trustee pursuant to
Section 2.12 for registration of the ownership and transfer of ownership of the
Certificates.
"Reserve Fund" means the fund by that name established and held by the Trustee
pursuant to Section 4.03.
"Reserve Requirement" means an amount equal to [insert amount equal to 10% of
Certificate nroceeCls, maximum annual debt service or 125% of average annual debt
service, whichever is less]:
"Securities Depositories" means The Depository Trust Company, 711 Stewart
Avenue, Garden City, New York 11530, Fax-(516) 227-4039 or 4190; Midwest Securities
Trust Company, Capital Structures-Call Notification, 440 South LaSalle Street, Chicago,
Illinois 60605, Fax-(312) 663-2343; Philadelphia Depository Trust Company,
Reorganization Division, 1900 Market Street, Philadelphia, Pennsylvania 19103,
Attention: Bond Department, Dex-(215) 496-5058; and, in accordance with then current
guidelines of the Securities and Exchange Commission, such other addresses and/or such
other securities depositories as the City may designate in a written request of the City
delivered to the Trustee.
"S&P" means Standard & Poor's Corporation and its successors.
"Tax Code" means the Internal Revenue Code of 1986. Any reference herein to a
provision of the Tax Code shall include all applicable Tax Regulations promulgated with
respect to such provision.
'Tax Regulations" means temporary and permanent regulations promulgated
under the Tax Code.
"Term Certificates" means the Certificates maturing on February 1, 20
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"Trust A~reement" or "Agreement" means this Trust Agreement, as originally
executed or as thereafter amended pursuant to any amendments hereto permitted to be
made hereunder.
"Trust Office" means the corporate trust office of the Trustee at 400 California
Street, San Francisco, California 94104, or at such other address or addresses designated
by tI~e Trustee in written notice fled with the City, the Corporation and the Owners.
~Trustee" means The Bank of California, N.A., or any successor thereto acting as
Trustee pursuant to this Trust Agreement.
"Yield" means that yield which, when used in computing the present worth of all
payments of principal and interest (or other payments in the case of Nonpurpose
Obligations which require payments in a form not characterized as principal and interest)
on a Nonpurpose Obligation or on the Lease Payments, produces an amount equal to the
Purchase Price of such Nonpurpose Obligation or the Lease Payments, all computed as
prescribed in the applicable Tax Regulations.
Section' 1.02. Legal Authority. Each of the parties hereby represents and
warrants that it has full legal authority and is duly empowered to enter into this
Agreement, and has taken all actions necessary to authorize the execution of this
Agreement by the officers and persons signing it.
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ARTICLE H
THE CERTIFICATES OF PARTICIPATION
Section 2.01. Authorization. The Trustee is hereby authorized and directed
upon written request from the Corporation to prepare, execute and deliver, to the
Original Purchaser, Certificates in an aggregate principal amount of
Dollars ($ ) evidencing'direct, undivided
fractional ownership interests of the Owners thereof in the Lease Payments.
Section 2.02. Date. Each Certificate shah be dated as of the date of its execution
and interest represented thereby shall be payable from the Interest Payment Date next
preceding the date of execution thereof, ~_mless: (a) it is executed after a Record Date and
on or before the following Interest Payment Date, in which event interest represented
thereby shah be payable from such Interest Payment Date; or (b) it is executed on or
before July 15, 1988, in which event interest represented thereby shall be payable from
the Closing Date; provided, however, that if, as of the date of any Certificate, interest
represented by any Certificate is in default, interest represented by such Certificate shall
be payable from the Interest Payment Date to which interest has previously been paid or
made available for payment with respect to such Certificate.
Section 2.03. Maturity; Interest Rates. Principal represented by the
Certificates shall be payable on February i in each of the respective years and in the
respective amounts, and interest represented thereby shall be computed at the respective
rates, as follows:
Maturity Date Principal Interest Maturity Date Principal Interest
(Februa.ry 1) Amount Rate (February 1) Amount Rate
(TO COME)
Section 2.04. Form of Certificates; Interest. The Certificates shall be delivered
in the form of fully registered Certificates without coupons in the denomination of $5,000
or any integral multiple thereof, except that no Certificate shall represent principal
payable in more than one year. The Certificates shall be assigned such alphabetical and
numerical designation as shall be deemed appropriate by the Trustee.
Interest represented by the Certificates shall be payable on each Interest Payment
Date to and including the date of maturity or prepayment, whichever is earlier, as
provided in Section 2.09. Said interest shall represent the portion of Lease Payments
designated as interest and coming due on each of the respective Interest Payment Dates.
The share of the portion of Lease Payments designated as interest with respect to any
Certificate shall be computed by multiplying the portion of Lease Payments designated as
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principal represented by such Certificate by the rate of interest represented by such
Certificate (on the basis of a 360-day year of twelve 30-day months).
Section 2.05. Form. The Certificates shall be substantially in the form set forth
in Exhibit A attached hereto and by this reference incorporated herein.
Section 2.06. Execution. The Certificates shall be executed by and in the name
of the Trustee by the manual signature of an authorized signatory of the Trustee. If any
person whose signature appears on any Certificate ceases to be an authorized signatory
before the date of delivery of said Certificate, such signature shall nevertheless be as
effective as if such person had remained an authorized signatory until such date.
Section 2.07. Transfer and Exchange.
(a) Transfer of Certificates. The registratio.n of any Certificate may, in accordance
with its terms, be transferred upon the Registration Books by the person in whose name
it is registered, in person or by his duly authorized attorney, upon surrender of such
Certificate for cancellation at the Trust Office of the Trustee, accompanied by delivery of
a written instrument of transfer in a form approved by the Trustee, duly executed.
Whenever any Certificate or Certificates shall be surrendered for registration of transfer,
the Trustee shall execute and deliver a new Certificate or Certificates of the same
maturity, interest rate and aggregate principal amount, in any authorized denominations.
(b) Exchange of Certificates. Certificates may be exchanged at the Trust Office of
the Trustee, for a like aggregate principal amount of Certificates of other authorized
denominations of the same interest rate and maturity. The Trustee may require the
payment by the Certificate Owner requesting such exchange of any tax or other
governmental charge required to be paid with respect to such exchange.
(c) Limitations on Transfer or Exchange. The Trustee may refuse to transfer or
exchange either (i) any Certificate during the fifteen-day period prior to the date
established by the Trustee for the selection of Certificates for redemption or (ii) the
portion of any Certificate^selected by the Trustee for redemption as to which notice of
redemption has been mailed pursuant to the provisions of Section 3.02.
Section 2.08. Certificates Mutilated, Lost, Destroyed or Stolen. If any
Certificate shall become mutilated, the Trustee, at the expense of the Owner of such
Certificate, shall execute and deliver a new Certificate of like principal ~rnount, interest
rate and maturity in replacement for the Certificate so mutilated, but only upon
surrender to the Trustee of the Certificate so mutilated. Every mutilated Certificate so
surrendered to the Trustee shall be cancelled by it and redelivered by the Trustee to the
City. If any Certificate shall be lost, destroyed or stolen, evidence of such loss,
destruction. or theft must be submitted to the Trustee, and, if such evidence is
satisfactory to the Trustee and, if~the City and the Trustee are indemnified in form
satisfactory to the Trustee shall be given, the Trustee, at the expense of the Certificate
Owner, shall execute and deliver a new Certificate of like principal amount, interest rate
and maturity and numbered as the Trustee shall determine in lieu of and in replacement
for the Certificate so lost, destroyed or stolen. The Trustee may require payment of an
appropriate fee for each replacement Certificate delivered under this Section 2.08 and of
the expenses which may be incurred by the Trustee in carrying out the duties under this
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Section 2.08. Any Certificate issued under the provisions of this Section 2.08 in lieu of
any Certificate alleged to be lost, destroyed or stolen shall be equally entitled to the
benefits of this Agreement with all other Certificates secured by this Agreement. The
Trustee shall not be required to treat both the original Certificate and any replacement
Certificate as being Outstanding for the purpose of determining the principal amount of
Certificates which may be executed and delivered hereunder or for the purpose of
determining any percentage of Certificates Outstanding hereunder, but both the original
and replacement Certificate shall be treated as one and the same. Notwithstanding any
other provision of this Section 2.08, in lieu of delivering a replacement for a Certificate
which has been mutilated, lost, destroyed or stolen, and which has matured, the Trustee
may make payment with respect to such Certificate upon receipt of indemnity satisfactory
to the Trustee.
Section 2.09. Payment. Payment of interest represented by any Certificate on
any Interest Payment Date shall be made to the person appearing on the Registration
Books as the Owner thereof as of the close of business on the Record Date immediately
preceding such Interest Payment Date, such interest to be paid by check or draft mailed
to such Owner on such Interest Payment Date, by first class mail, postage prepaid. The
principal and prepayment price represented by the Certificates at maturity or upon prior
prepayment shall be payable in lawful money of the United States of America upon
surrender of the Certificates at the Trust Office of the Trustee.
Section 2.10. Execution of Documents and Proof of Ownership. Any
request, direction, consent, revocation of consent, or other instrq~ment in writing required
or permitted by this Agreement to be signed or executed by Certificate Owners may be in
any number of concurrent instn~ments of similar tenor, and may be signed or executed by
such Owners in person or by their attorneys or agents appointed by an instrument in
writing for that purpose, or by any bank, trust company or other depository for such
Certificates. Proof of the execution of any such instrument, or of any instrument
appointing any such attorney or agent, and of the ownership of Certificates shall be
sufficient for any purpose of this Agreement (except as otherwise herein provided), if
made in the following manner:
(a) The fact and date of the execution by any Owner or his attorney
or agent of any such instrument and of any instrument appointing any such
attorney or agent, may be proved by a certificate, which need not be
acknowledged or verified, of an officer of any bank or trust company located
within the United States of America, or of any notary public, or other
officer authorized to take acknowledgemerits of deeds to be recorded in such
jurisdictions, that the persons signing such instruments acknowledged
before him the execution thereof. Where any such instrument is executed
by an officer of a corporation or association or a member of a partnership
on behalf of such corporation, association or partnership, such certificate
shall also constitute sufficient proof of his authority.
(b) The fact of the ownership of Certificates by any person and the
amount, the maturity and the numbers of such Certificates and the date of
his holding the same shall be proved by the Registration Books.
Nothing contained in this Section 2.10 shall be construed as limiting the Trustee
to such proof, it being intended that the Trustee may accept any other evidence of the
matters herein stated which the Trustee may deem sufficient. Any request or consent of
the Owner of any Certificate shall bind every future Owner of the same Certificate in
respect of anything done or suffered to be done by the Trustee in pursuant of such
request or consent.
Section 2.11. Temporary Certificates. The Certificates may be issued in
temporary form exchangeable for definitive Certificates when ready for delivery. Any
temporary Certificates may be printed, lithographed or typewritten, shall be of
Authorized Denominations, shall be in fully registered form without coupons and may
contain such reference to any of the provisions of this Trust Agreement as may be
appropriate. Every temporary Certificate shah be executed by the Trustee upon the same
conditions and in substantially the same manner as the definitive Certificates. If the
Trustee delivers temporary Certificates it will execute and deliver definitive Certificates
as promptly thereafter as practicable, and thereupon the temporary Certificates may bel
surrendered, for cancellation, in exchange therefor at the Trust Office of the Trustee who
shall execute and deliver in exchange for such temporary Certificates an equal aggregate
principal amount of definitive Certificates of authorized denominations. Until so
exchanged, the temporary Certificates shall be entitled to the same benefits under this
Trust Agreement as definitive Certificates executed and delivered hereunder.
Section 2.12. Registration Books. The Trustee shall keep or cause to be kept
sufficient records for the registration and registration of transfer of the Certificates,
which shall at all reasonable times be open to inspection by the City and the Corporation
during regular business hours; and, upon presentation for such purpose, the Trustee
shaH, under such reasonable regulations as it may prescribe, register or transfer or cause
to be registered or transferred, on the Registration Books, Certificates as hereinbefore
provided.
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ARTICLE III
PREPAYMENTOF CERTWICATES
Section 3.01. Prepayment.
(a) Optional Prepayment. The Certificates maturing on or before February 1,
199_, are not subject to optional prepayment prior to the respective stated maturities.
The Certificates maturing on or after February 1, 199_, are subject to optional
prepayment in whole, or in part in inverse order of maturity and by lot within a maturity,
on any Interest Payment Date, from prepayments of the Lease Payments made at the
option of the City pursuant to Section 10.2 of the Lease Agreement, beginning on
February 1, 199_, at a prepayment price (expressed as a percentage of the principal
amount to be prepaid), together with accrued interest represented thereby to' the date
fixed for prepayment, as follows:
Prepayment Prepayment
Dates ' Price
(TO COME)
(b) Prepayment From Net Proceeds of Insurance or Condemnation. The
Certificates are subject to mandatory prepayment .on any date, in whole,~or in part on
anyhmaturities on a pro rata basis and by lot within a maturity, from the Net Proceeds of
insurance or eminent domain proceedings credited towards the prepayment of the Lease
Payments by the City pursuant to Section 10.3 of the Lease Agreement, at a prepayment
price equal to 100% of the principal amount to be prepaid, together with accrued interest
represented thereby to the date fixed for prepayment.
(c) Prepa.yment From Unexpended Project Funds. The Certificates are also
subject to mandatory prepayment in whole, or in part among maturities on a pro rata
basis and by lot within a maturity, from the amounts (if any) transferred to the Trustee
by the City from the Project Fund. s and deposited by the Trustee in the Lease Payment
Fund for such purpose pursuant to the last paragraph of Section 4.02, on the firs~
Interest Payment Date following such transfer for which notice of prepayment can be
timely given, at a prepayment price equal to 100% of the principal amount to be prepaid,
together with accrued interest represented thereby to the date fixed for prepayment,
without premh~m.
(d) Sinking Fund Prepa.yment. The Term Certificates are also subject to
mandatory sinking fund prepayment by lot on February i in each year beginning
February 1, , from the principal components of the Lease Payments required to be
paid with respect to each of such dates, at a prepayment price equal to 100% of the
principal amount to be prepaid, together with accrued interest represented thereby to the
prepayment date, as follows:
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Sinking Fund
Prepayment Date
(February 1)
Principal Amount
To Be Prepaid
(TO COME)
Section 3.02. Selection of Certificates for Prepayment. Whenever provision is
made in this Agreement for the prepayment of Certificates and less than all Outstanding
Certificates of any maturity are called for prepayment, the Trustee shall select
Certificates of such maturity for prepayment by lot. For the purposes of such selection,
Certificates shah be deemed to be composed of $5,000 portions, and any such portion
may be separately prepaid. The Trustee shall promptly notify the City and the
Corporation in writing of the Certificates or portions thereof so selected for prepayment.
Section 3.03. Notice of Prepayment. When prepayment is authorized or
required pursuant to Section 3.01 hereof, the Trustee shah give notice of the prepayment
of the Certificates on behalf and at the expense of the City. Such notice shall state the
prepayment date and prepayment price and, if less than all of the then Outstanding
Certificates are to be called for prepayment, shall designate the CUSIP numbers of the
Certificates to be prepaid and the numbers of the Certificates to be prepaid Coy giving the
individual number of each Certificate or by stating that all Certificates between two
stated numbers, both inclusive, have been called for prepayment or by stating that all of
the Certificates of one or more maturities have been called for prepayment), and shall
require that such Certificates be then surrendered, at the option of the respective Owners
thereof, at the Trust Office of the Trustee for prepayment at said prepayment price,
giving notice also that further interest represented by the Certificates will not accrue
after the prepayment date. SUch notice shah further state that on the specified date
there shall become due and payable, the principal and premium, if any, represented by
each Certificate together with accrued interest represented thereby to said date, and that
from and after such date interest represented thereby shall cease to accrue and be
payable.
Notice of such prepayment shah be mailed by first class mail with postage
prepaid, to the Information Services and to the Securities Depositories, and to the
Owners of Certificates designated for prepayment at their respective addresses appearing
on the Registration Books, at least thirty (30) days but not more than sixty (60) days
prior to the prepayment date, which notice shall, in addition to setting forth the above
information, set forth, in the case of each Certificate called only in part, the portion of the
principal represented thereby which is to be prepaid; provided that neither failure to
receive such notice so mailed nor any defect in any notice so mailed shall affect the
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sufficiency of the proceedings for the prepayment of such Certificates or the cessation of
accrual of interest represented thereby from and after the prepayment date.
Section 3.04. Partial Prepayment of Certificates. Upon surrender of any
Certificate prepaid in part only, the Trustee shall execute, authenticate and deliver to the
Owner thereof, at the expense of the City, a new Certificate or Certificates of authorized
denominations equal in aggregate principal amount to the unprepaid portion-of the
Certificate surrendered and of the snrne interest rate and the same maturity.
Section 3.05. Effect of Notice of Prepayment. Moneys for the prepayment
(including the interest to the applicable date of prepayment), of Certificates having been
set aside in the Lease Payment Fund, the Certificates shall become due and payable on
the date of such prepayment, and, upon presentation and surrender thereof at the Trust
Office of the Trustee, said Certificates shall be paid at the unpaid principal nrnount (or
applicable portion thereof)' represented thereby plus interest accrued and unpaid to said
date of prepayment.
If, on said date of prepayment, moneys for the prepayment of all the Certificates to
be prepaid, together with interest to said date of prepayment, shall be held by the
Trustee so as to be available therefor on such date of prepayment, then, from and after
said date of prepayment, interest represented by the Certificates shall cease to accrue
and become payable. All moneys held by the Trustee for the prepayment of Certificates
shall be held in trust forl the account of the Owners of the Certificates so to be prepaid.
Section 3.06. Purchase of Certificates. In lieu of prepayment of Certificates as
provided in this Article HI, amounts held by the Trustee for such prepayment shall, at
the written request of the City Representative, be applied by the Trustee to the purchase
of Certificates at public or private sale as and when and at such prices (including
brokerage, accrued interest and other charges) as the City may in its discretion direct,
but not to exceed the prepayment price which would be payable if such Certificates were
prepaid. The aggregate principal amount of Certificates of the same maturity purchased
in lieu of prepayment pursuant to this Section 3.06 shall not exceed the aggregate
principal amount of Certificates of such maturity which would otherwise be subject to
such prepayment.
ARTICLE IV
DISPOSITION OF PROCEEDS;
PROJECT FUND AND RESERVE FUND
Section 4.01. Application of Procccds. The proceeds received by the Trustee
from the sale of the Certificates shah forthwith be set aside by the Trustee in the
following respective funds and in the following order of priority:
(a) The Trustee shall deposit in the Lease Payment Fund an _amount
equal to $
(b) The Trustee shall deposit in the Reserve Fund the amount of
which equals the Reserve Requirement.
(c) The Trustee shall transfer to the Escrow Bank the amount of
for deposit in the Escrow Fund.
(d) The Trustee shall deposit the remainder of such proceeds in the
198~8 Project Fund.
Section 4.02. Project Funds. The City shall establish a special fund designated
as the/~1985 Project Fund" and a separat~d designated as the '19aS Project Fund",
which shall be held and administered solely for the purposes set forth herein: '-' On the
Closing Date, the City shall: (a) deposit in the 1985 Project Fund all amounts then on
deposit in the construction account established pursuant to Section 4.02 of the Trust
Agreement Relating to' Public Facilities Project No. 1, dated as of December 18, 1985, by
and between the Corporation and the City, and (b) deposit in the 1988 Project Fund a
portion of the proceeds of the Certificates transferred to the City by the Trustee pursuant
to Section 4.01(d). The City shall disburse moneys in the Project Funds from time to
time to finance direct payment of the Project Costs and the Costs of Issuance, or to
reimburse itself for Project Costs or Costs of Issuance advanced from any other source of
funds of the City. In making any payment of Project Costs and Costs of Issuance, the
City shall have the sole discretion to make such payment from the 1985 Project Fund or
the 1988 Project Fund, or both.
On the earlier of (a) the date on which the City files with the Trustee a certificate
stating that the Project has been completed, or (b) December 1, 1990, or such later date
as may be permitted in the opinion of Bond Counsel, the C~.~.y shall withdraw all
remaining moneys in the Project Funds and transfer such moneys to the Trustee for
depositbin the Lease Payment Fund. Such moneys shall be applied by the Trustee to
prepay the Lease Payments pursuant to Section 10.4 of the Lease Agreement and thereby
prepay the Certificates pursuant to Section 3.01(c).
Section 4.03~ Reserve Fund. The Trustee shall establish a special fund
designated as the "Reserve Fund" to be held by the Trustee in trust for the benefit of the
City and the Owners of the Certificates, and applied solely as provided herein. Moneys
in the Reserve Fund shall be held in trust as a reserve for the payment when due of the
Lease Payments on behalf of the City. Except in the event and to the extent the City
-17-
directs the Trustee to deposit earnings on the investment of amounts in the Reserve Fund
into the Rebate Fund pursuant to Section 7.07(c), the Trustee shall deposit in the Lease
Payment Fund, to be credited towards payment of the Lease Payments, any earnings on
the investment of moneys in the Reserve Fund./~ If on any Interest Payment Date the
moneys available in the Lease Payment Fund do not equal the amount of the Lease
Payment then coming due and payable, the Trustee shall apply the moneys available in
the Reserve Fund to make such payments on behalf of the City by transferring the
amount necessary for this purpose to the Lease Payment Fund. Upon receipt of any
delinquent Lease Payment with respect to which moneys have been advanced from the
Reserve Fund, such Lease Payment shall be deposited in the Reserve Fund to the extent
of such advance.
If on any Interest Payment Date the moneys on deposit in the Reserve Fund and
the Lease Payment Fund (excluding amounts required for payment of principal, interest
and redemption premium, if any, represented by any Certificates theretofore having come
due but not presented for payment) are sufficient to pay all Outstanding Certificates,
including all principal, interest and redemption premi-ms (if any) represented thereby,
the Trustee shall, upon the written request of the City, transfer all amounts then on
deposit in the Reserve Fund to the Lease Payment Fund to be applied for such purpose to
the payment of the Lease Payments on behalf of the City. Any amounts remaining in the
Reserve Fund on the date of payment in full, or provision for such payment as provided
in Section 13.01, of all obligations represented by the Outstanding Certificates, but only
following the deposit into the Rebate Fund of an amount sufficient or estimated to be
sufficient to satisfy all obligations of the City under Section 7.07(c) resulting from such
payment or provision for payment, shall be withdrawn. by the Trustee and at the written
request of the City applied towards such payment or paid to the City.
18
ARTICLE V
LEASE PAYMENTS; LEASE PAYMENT FUND
Section 5.01. Assignment of Rights in Lease Agreement. The Corporation
has in the Assignment Agreement transferred, assigned and set over to the Trustee
certain of its rights under the Lease Agreement, including but not limited to all of the
Corporation's rights to receive and collect all of the Lease Payments and all other
amounts required to be deposited in the Lease Payment Fund. All Lease Payments and
such other amounts to which the Corporation may at any time be entitled shall be paid
directly to the Trustee, and all of the Lease Payments collected or received by the
Corporation shall be deemed to be held and to have been collected or received by the
Corporation as the agent of the Trustee, and if received by the Corporation at any time
shall be deposited by the Corporation with the Trustee within one Business Day after the
receipt thereof, and all such Lease Payments and such other amounts shah be forthwith
deposited by the Trustee upon the receipt thereof in the Lease Payment Fund, except as
provided in Section 4.03.
Section 5.02. Establishment of Lease Payment Fund. The Trustee shall
establish a special fund designated as the "Lease Payment Fund". All moneys at any
time deposited by the Trustee in the Lease Payment Fund shall be held by the Trustee in
trust for the benefit of the City and the Owners of the Certificates. So long as any
Certificates are Outstanding, neither the City nor the Corporation shall have any
beneficial right or interest in the Lease Payment Fund or the moneys deposited therein,
except only as provided in this Agreement, and such moneys shah be used and applied by
the Trustee as hereinafter set forth.
Section 5.03. Deposits. There shall be deposited in the Lease Payment Fund all
Lease Payments received by the Trustee, including any moneys received by the Trustee
for deposit therein pursuant to Sections 4.01(a), 4.02, 5.01 or Article VI, or Section 10.1
of the Lease Agreement, and any other moneys required to be deposited therein pursuant
to the Lease Agreement or pursuant to this Agreement.
Section 5.04. Application of Moneys. All amounts in the Lease Payment Fund
shall be used and withdrawn by the Trustee solely for the purpose of paying the
principal, interest and prepayment premiums (if any) represented by the Certificates as
the same shall become due and payable, in accordance with the provisions of Article II
and Article HI.
Section 5.05. Surplus. Any surplus remaining in the Lease Payment Fund, after
prepayment and payment of all Certificates, including premi~ms and accrued interest (if
any) and payment of any applicable fees and. expenses to the Trustee, or provision for
such prepayment or payment having been made to the satisfaction of the Trustee, shall
be withdrawn by the Trustee and remitted to the City.
-19-
ARTICLE VI
INSURANCE AND CONDEMNATION FUND
Section 6.01. Establishment of Insurance and Condemnation Fund;
Application of Net Proceeds of Insurance Award. Any Net Proceeds of insurance
against accident to or destruction of any structure constituting any part of the Project
collected by the City in the event of any such accident or destruction shall be paid to the
Trustee pursuant to Section 6.2 of the Lease Agreement and deposited by the Trustee
promptly upon receipt thereof in a special fund designated as the "Insurance and
Condenmation Fund". If the City determines and notifies the Trustee in writing of its
determination, within ninety (90) days following the date of such deposit, that the
replacement, repair, restoration, modification or improvement of the Project is not
economically feasible or in the best interests of the City, then such Net Proceeds shall be
promptly transferred by the Trustee to the Lease Payment Fund and applied to the
prepayment of Lease Payments pursuant to Section 10.3 of the Lease Agreement and the
corresponding prepayment of Certificates pursuant to Section 3.01(b). All Net Proceeds
deposited in the Insurance and Condemnation Fund and not so transferred to the Lease
Payment Fund shall be applied to the prompt replacement, repair, restoration,
modification or improvement of the damaged or destroyed portions of the Project by the
City, upon receipt of written requisitions of the City Representative stating with respect
to each payment to be made (a) the name and address of the person, firm or corporation
to whom payment is due, (b) the amount to be paid and (c) that each obligation
mentioned therein has been properly incurred, is a proper charge against the Insurance
and Condemnation Fund, has not been the basis of any previous withdrawal, and
specifying in reasonable detail the nature of the obligation, accompanied by a bill or a
statement of account for such obligation. In the event of damage or destruction of the
Project in full, such Net Proceeds may be transferred to the Lease Payment Fund to be
used to redeem Outstanding Certificates only if such Net Proceeds, together with other
available moneys, are sufficient to cause the redemption of all Outstanding Certificates.
Any balance of the Net Proceeds remaining after the City shah file a written certificate
with the Trustee stating that such work has been completed shall be paid to the City.
Section 6.02. Deposit and Application of Net Procccds of Eminent Domain
Award. If all or any part Of the Project shall be taken by eminent domain proceedings
(or sold to a government threatening to exercise the power of eminent domain) the Net
Proceeds therefrom shall be deposited with the Trustee in the Insurance and
Condemnation Fund, pursuant to Section 6.2 of the Lease Agreement, and shall be
applied and disbursed by the Trustee ~as follows:
(a) If the City has given written notice to the Trustee of its
determination that (i) such eminent domain proceedings have not
materially affected the interest of the City in the Project or the ability of the
City to meet any of its obligations under the Lease Agreement, and (ii) that
such proceeds are not needed for the replacement of the Project, and the
City has given written notice to the Trustee of such determination, the
Trustee shah transfer such proceeds to the Lease Payment Fund to be
credited towards the payment of the Lease Payments as the same become
due and payable.
-20-
(b) If the City has given written notice to the Trustee of its
determination that (i) such eminent domain proceedings have not
materially affected the interest of the City in the Project or the ability of the
City to meet any of its obligations under the Lease Agreement, and (ii) such
proceeds are needed for the replacement of the Project, the Trustee shall
pay to the City, or to its order, from said proceeds such amounts as the
City may expend for such replacement, upon the filing of requisitions of the
City Representative meeting the requirements of Section 6.01.
(c) If (i) less than all of the Project shall have been taken in such
eminent domain proceedings or sold to a government threatening the use of
eminent domain powers, and if the City has given written notice to the
Trustee of its determination that such eminent domain proceedings have
materially affected the interest of the City in the Project or the ability of the
City to meet any of its obligations under the Lease Agreement or (ii) all of
the ,Project shall have been taken in such eminent domain proceedings, then
the Trustee shall transfer such proceeds to the Lease Payment Fund to be
credited toward the prepayment of the Lease Payments pursuant to Section
10.3 of the Lease Agreement and applied to the prepayment of Certificates
in the manner provided in Section 3.01(b).
In making any such determination under this Section 6.02, the City may obtain,
but shall not be required to obtain, at its expense, the report of an independent engineer
or other independent professional consultant, a copy of which shall be filed with the
Trustee. Any such determination by the City shall be final.
Section 6.03. Cooperation. The Corporation and the Trustee (in its capacity as
loss payee under any policy of insurance) shall cooperate fully with the City at the
expense of the City in the prosecution or defense of any prospective or pending
condemnation proceeding with respect to the Project or any portion thereof.
-21-
ARTICLE VII
MONEYS IN FUNDS; SPECIAL ARBITRAGE COVENANTS
Section 7.01. Held in Trust. The moneys and investments held by the Trustee
under this Agreement are irrevocably held in trust for the benefit of the City and the
Owners of the Certificates solely for the purposes herein specified, and such moneys, and
any income or interest earned thereon, shall be expended only as provided in this
Agreement, and shall not be subject to .levy or attachment or lien by or for the benefit of
any creditor of the Corporation, the Trustee, the City or the Owner of any Certificates.
Section 7.02. Investments Authorized. Amounts held in the Project Funds
shall be invested by the City in any Authorized Investments. Upon the written request of
the City fled with the Trustee from time to time, moneys held by the Trustee in any fund
or account hereunder shah be invested and reinvested by the Trustee in Permitted
Investments selected by the City and specified in such written request of the City, which
mature not later than the date such moneys are required or estimated by the City to be
required to be expended hereunder. In the absence of any written request of the City
directing the investment of uninvested moneys held by the Trustee hereunder, the
Trustee shall invest such moneys in Federal Securities or in Permitted Investments
described in clause (~D_~of the definition thereof, which mature not later than the date such
moneys are required or estimated by the Trustee to be required to be expended
hereunder. Such investments, if registrable, shall be registered in the name of the
Trustee, as trustee or in the name of its nominee, and shah be held by the Trustee. The
Trustee may purchase or sell to itself or any affdiate, as principal or agent, investments
authorized by this Section 7.02. Such investments and reinvestments shall be made
giving full consideration to the time at which funds are required to be available. The
Trustee may act as purchaser or agent in the making or disposing of any investment.
/
Section 7.03. Accounting. The Trustee shall furnish to the City, not less than
monthly, an accounting of all investments made by the Trustee. The Trustee shah not be
responsible or liable for any loss suffered in connection with any investment of funds
made by it in accordance with Section 7.02.
Section 7.04. Allocation of Earnings. Subject to the provisions of Sections 4.03
and 7.07, any income, profit or loss on such investments shall be deposited in or charged
to the respective funds from which such investments were made.
Section 7.05. Valuation and Disposition of Investments. For the purpose of
determir~ing the amount in any fund, the value of Permitted Investments credited to such
fund shall be calculated at the cost thereof, excluding. accrued interest and brokerage
commissions, if any.
The Trustee may sell at the best price obtainable, or present for prepayment, any
Permitted Investment so purchased by the Trustee whenever it shall be necessary in
order to provide moneys to meet any required payment, transfer, withdrawal or
disbursement from the fund to which such Permitted Investment is credited, and the
Trustee shall not be liable or responsible for any loss resulting from any such Permitted
Investment.
Section 7.06. No Arbitrage. The City shall not take, or permit or suffer to be
taken by the Trustee or otherwise, any action with respect to the Gross Proceeds which,
if such action had been reasonably expected to have been taken, or had been deliberately
and intentionally taken, on the Closing Date, would have caused the obligations
represented by the Certificates to be "arbitrage bonds" within the meaning of Section
148(a) of the Tax Code.
Section 7.07. Rebate of Excess Investment Earnings to United States.
(a) Duties of City in General. The City shah calculate, or caused to be calculated,
Excess Investment Earnings in accordance with subsection (b) and shall assure payment
of an amount equal to Excess Investment Earnings to the United States in accordance
with subsections (c) and (d).
(b) Calculation of Excess Investment Earnings. Prior to the last day of the first
Rebate Calculation Period, the City shah calculate, and shah provide written notice to the
Trustee of, the Excess Investment Earnings described in paragraph (a) of the definition of
Excess Investment Earnings. Prior to the last day of each succeeding Rebate Calculation
Period and on the date of the payment of the Lease Payments in full, the City shall
calculate, or caused to be calculated, and shall provide written notice to the Trustee of,
the _~rnount of Excess Investment Earnings. Said calculations shah be made or caused to
be made by the City in accordance with the Tax Regulations.
(c) Rebate Fund and Deposits Therein; Payment to the United States. Upon the
calculation by the City of the amount of Excess Investment Earnings with respect to any
Rebate Calculation Period pursuant to the preceding subsection (b), the City shall fie
with the Trustee a written request of the City directing the Trustee to deposit into the
Rebate Fund (which the Trustee hereby agrees to establish and hold in trust hereunder)
a like amount of interest, profits and other income next to be received from the
investment of moneys in any funds and accounts established hereunder (which funds and
accounts shah be designated in such written request of the City). The City hereby
covenants to direct the Trustee to deposit into the Rebate Fund, from the interest, profits
and other income derived from the investment of moneys in any funds and accounts
established hereunder, the amount of all Excess Investment Earnings which are required
to be deposited in the Rebate Fund hereunder. The City further covenants to direct the
Trustee to pay from the Rebate Fund the amount of all Excess Investment Earnings
required to be rebated to the United States in installments with the first payment to be
made not later than thirty (30) days after the end of the fifth Rebate Calculation Period
and with subsequent payments to be made not later than five (5) years after the
preceding payment was due. The City shall assure that each such installment is in an
amount equal to at least ninety percent (90%) of the amount of Excess Investment
Earnings with respect to the Gross Proceeds as of the close of the computation period.
Not later than sixty (60) days after the payment of the Lease Payments in full, the City
shah direct the Trustee to pay, and for such purpose shall provide amounts to the
Trustee from any legally available source of funds, to the United States of America all
rem_~ining unpaid Excess Investment Earnings. The City shah remit payments to the
United States of America at the address prescribed by the applicable Tax Regulations as
the same may from time to time be in effect with such reports and statements as may be
prescribed by such Tax Regulations.
-23 -
(d) Further Obligation of City. The City shah assure that Excess Investment
Earnings are not paid or disbursed except as required in this Section. To that end the
City shah assure that' investment transactions are on an arm's length basis and that
Nonpurpose Obligations are acquired at their fair market value. In the event that
Nonpurpose Obligations consist of certificates of deposit or investment contracts,
investment in such Nonpurpose Obligations shall be made in accordance with the
procedures described in applicable Tax Regulations as from time to time in effect.
(e) Maintenance of Records. The City shah keep, and retain for a period of six (6)
years following the payment of the Lease Payments in full, records of the determluations
made pursuant to this Section 7.07 in accordance with the Tax Regulations.
(f) Independent Consultants. In order to provide for the administration of this
Section 7.07, the City may provide for the employment of independent attorneys,
accountants and consultants compensated on such reasonable basis as the City may
deem appropriate.
(g) Trustee Compliance. The Trustee shah conclusively be deemed to have
complied with the provisions of. this section if it follows the directions of the City, and
shall not be required to take any actions hereunder in the absence of directions from the
City.
ARTICLE VIII
THE TRUSTEE
Section 8.01. Appointment of Trustee. The Bank of California, N.A. is hereby
appointed Trustee by the Corporation and the City for the purpose of receiving all
moneys required to be deposited with the Trustee hereunder and to allocate, use and
apply the same as provided in this Agreement. The Corporation and the City agree that
they will maintain a Trustee having a corporate trust office in California, with a
combined capital and surplus of at least Fifty Million Dollars ($50,000,000), and subject
to supervision or examination by Federal or state authority, so long as any Certificates
are Outstanding. 'If such bank or trust company publishes a report of condition at least
annually pursuant to law or to the requirements of any supervising or examining
authority above referred to then for the purpose of this Section 8.01 the combined capital
and surplus of such bank or trust company shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
The Trustee is hereby authorized to pay or prepay the Certificates when duly
presented for payment at maturity, or on prepayment, or on purchase by the Trustee as
directed by the City prior to maturity in accordance with Section 3.06, and to cancel all
Certificates upon payment thereof. The Trustee shall keep accurate records of all funds
administered by it and of all Certificates paid and discharged. The Trustee shall be
compensated for its services rendered pursuant to the provisions of this Agreement.
Section 8.02. Acceptance of Trusts. The Trustee hereby accepts the trusts
imposed upon it by this Trust Agreement, and agrees to perform said trusts, but only
upon and subject to the following express terms and conditions:
(a) The Trustee, prior to the occurrence of an Event of Default and after'
curing of all Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Trust Agreement. In case
an Event of Default has occurred (which has not been cured or waived) the Trustee may
exercise such of the rights and powers vested in it by this Trust Agreement, and shall use
the same degree of care and skill in their exercise, as is consistent with the fiduciary
responsibilities of a trustee.
(b) No provision in this Trust Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the performance
of any. of its duties hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(c) The Trustee may execute any of the trusts or powers hereof and
perform the duties required of it hereunder by or through attorneys, agents, or receivers,
and shall be entitled to advice of counsel concerning all matters of trust and its duty
hereunder, and the Trustee shall not be answerable for the default or misconduct of any
· such attorney, agent, or receiver selected by it with reasonable care and without
negligence or intentional misconduct. The Trustee shall not be answerable for the
exercise of any discretion or power under this Trust Agreement or for anything whatever
-25-
in connection with the funds and accounts established hereunder, except only for its own
negligence or intentional misconduct.
(d) The Trustee shall not be responsible for any recital, statement or
representation of the City or the Corporation herein or in the Lease Agreement or the
Certificates, or for any of the supplements thereto or inst,n~ments of further assurance, or
for the sufficiency of the security for the Certificates, and the Trustee shah not be bound
to ascertain or inquire as to the observance or performance of any covenants, conditions
or agreements on the part of the Corporation or the City under the Lease Agreement.
(e) The Trustee shah not be accountable for the use of any Certificates
delivered hereunder. The Trustee may become the Owner of Certificates secured hereby
with the same rights which it would have if not the Trustee; may acquire and dispose of
other bonds or evidence of indebtedness of the City with the same rights it would have if
it were not the Trustee; and may act as a depository for and permit any of its officers or
directors to act as a member of, or in any other capacity with respect to, any committee
formed to protect the rights of Owners of Certificates, whether or not such committee
shall represent the Owners of the majority in aggregate principal amount of the
Certificates then Outstanding.
(f) In the absence of negligence or intentional misconduct on its part, the
Trustee shall be protected in acting upon any notice, request, consent, certificate, order,
affidavit, letter, telegram or other paper or document believed by it to be genuine and
correct and .to have been signed or sent by the proper person or persons. Any action
taken or omitted to be taken by the Trustee without negligence or intentional misconduct
pursuant to this Trust Agreement upon the request or authority or consent of any person
who at the time of making such request or giving such authority or consent is the Owner
of any Certificate, shall be conclusive and binding upon all future Owners of the same
Certificate and upon Certificates issued in exchange therefor or in place thereof. The
Trustee shall not be bound to recognize any person as an Owner of any Certificate or to
take any action at his request unless such Certificate shall be deposited with the Trustee
or satisfactory evidence of the ownership of such Certificate shall be furnished to the
Trustee.
(g) As to the existence or non-existence of any fact or as to the sufficiency
or validity of any instrument, paper or proceeding, the Trustee shall be entitled to rely
upon a certificate signed by a Corporation Representative or a City Representative as
s;,fficient evidence of the facts therein contained. Prior to the occurrence of an Event of
Default of which the Trustee has been given notice or is deemed to have notice, as
provided in Section 8.02(i) hereof, the Trustee shall also be at liberty to accept a similar
certificate to the effect that any particular dealing, transaction or action is necessary or
expedient, but may at its discretion secure such further evidence deemed by it to be
necessary or advisable, but shall in no case be bound to secure the same. The Trustee
may accept a certificate of a Corporation Representative or a City Representative to the
effect that an authorization in the form therein set forth has been adopted by the
Corporation or the City, as the case may be, as conclusive evidence that such
authorization has been duly adopted, and is in full force and effect.
(h) The permissive right of the Trustee to do things en,,merated in this
Trust Agreement shall not be construed as a duty and it shall not be answerable for
-26-
J
other than its negligence or intentional misconduct. The immunities and exceptions from
liability of the Trustee shall extend to its officers, directorS, employees and agents.
(i) The Trustee shall not be required to take notice or be deemed to have
notice of any Event of Default hereunder except failure by the City to make any of the
Lease Payments to the Trustee required to be made by the City pursuant to the Lease
Agreement or failure by the Corporation or the City to file with the Trustee any
document required by this Trust Agreement or the Lease Agreement to be so filed
subsequent to the delivery of the Certificates, unless the Trustee shall be specifically
notified in writing of such default by the Corporation, the City or by the Owners of at
least twenty-five percent (25%) in aggregate principal amount of Certificates then
Outstanding and all notices or other instn~ments required by this Trust Agreement to be
delivered to the Trustee must, in order to be effective, be delivered at the Trust Office of
the Trustee, and in the absence of such notice so delivered the Trustee may conclusively
assume there is no Event of Default except as aforesaid.
(j) At any and all reasonable times the Trustee, and its duly authorized
agents, attorneys, experts, engineers, accountants and representatives, shall have the
right fully to inspect the Project, including all books, papers and records of the
Corporation or the City pertaining to the Project and the Certificates, and to take such
memoranda from and with regard thereto as may be desired.
(k) The Trustee shall not be required to give any bond or surety in respect
of the execution of the said trusts and powers or otherwise in respect of the premises.
(1) Notwithstanding anything elsewhere in this Trust Agreement with
respect to the execution of any Certificates, the withdrawal of any cash, the release of
any property, or any action whatsoever within the purview of this Trust Agreement, the
Trustee shall have the right, but shall not be required, to demand any showings,
certificates, opinions, appraisals or other information, or corporate action or evidence
thereof, in addition so that by the terms hereof required as a condition of such action, by
the Trustee deemed 'desirable for the purpose of establishing the right of the Corporation
to the execution of any Certificates, the withdrawal of any cash, or the taking of any
other action by the Trustee.
(m) Before taking the action referred to in Section 12.02 hereof the Trustee
may require that a satisfactory indemnity bond be furnished by the Owners of the
Outstanding Certificates, or any of them, for the reimbursement of all expenses to which
it may be put and to protect it against all liability, except liability which is adjudicated to
have resulted from its gross negligence or wilful default in connection with any such
action.
(n) All moneys received by the Trustee shall, until used or applied or
invested as herein provided, be held in trust for the purposes for which they were .
received but need not be segregated from other funds except to the extent required by
law.
(o) The Trustee shall not be responsible for the validity or invalidity of the
Lease Agreement, the legal authority of the City to pay moneys pursuant to the Lease
Agreement, or the value of or title to the premises upon which the Project is located.
-27-
(p) The Trustee shah not be liable with respect to any action taken or
omitted to be taken by it, without negligence or intentional misconduct, in accordance
with the direction of the Owners of a majority in aggregate principal amount of the
Outstanding Certificates relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Agreement.
Section 8.03. Fees, Charges and Expenses of Trustee. The Trustee shall be
entitled to payment and reimbursement for reasonable fees for its services rendered
hereunder and all advances, counsel fees (including expenses) and other expenses
reasonably and necessarily made or incurred by the Trustee in connection with such
services. Upon an Event of Default, but only upon an Event of Default, the Trustee shah
have a first lien with fight of payment prior to payment on account of principal of,
premium, if any, and interest on any Certificate upon the amounts held hereunder for the
foregoing fees, charges and expenses incurred by it respectively.
Section 8.04. Notice to Certificate Owners of Default. If an Event of Default
occurs of which the Trustee has been given or is deemed to have notice, as provided in
Section 8.02(i), then the Trustee shall promptly give written notice thereof by first class
mail, postage prepaid, to the Owner of each Certificate at the addresses set forth in the
Registration Books, unless such Event of Default shall have been cured before the giving
of such notice; provided, however that unless such Event of Default consists of the failure
by the City to make any Lease Payment when due, the Trustee may elect not to give such
notice if and so long as the Trustee in good faith determines that it is in the best
interests of the Certificate Owners not to give such notice.
Section 8.05. Intervention by Trustee. In any judicial proceeding to which the
Corporation or the City is a party which, in the opinion of the Trustee and its counsel,
has a substantial bearing on the interests of Owners of the Certificates, the Trustee may
intervene on behalf of the Certificate Owners, and subject to Section 8.02(1), shall do so if
requested in writing by the Owners of at least twenty-five percent (25%) in aggregate
principal amount of Certificates then Outstanding. The rights and obligations of the
Trustbe under this Section 8.05 are subject to the approval of a court of competent
jurisdiction.
Section 8.06. Removal of Trustee. The City may, upon 'at least thirty (30) days'
prior written notice and with the consent of the Corporation, remove the Trustee initially
appointed, and any successor thereto, by an instrument or concurrent instruments in
writing delivered to the Trustee and the Corporation, and may appoint a successor or
successors thereto; provided that any such successor shall be a bank or trust company
meeting the requirements set forth in Section 8.01.
Section 8.07. Resignation by Trustee. The Trustee and any successor Trustee
may at any time resign by giving thirty (30) days' written notice by registered or certified
mail to the City and the Corporation. Upon receiving such notice of resignation, the City
shall promptly appoint a successor Trustee. Any resignation or removal of the Trustee
and appointment of a successor Trustee shah become effective upon acceptance of
appointment by the successor Trustee. Upon such acceptance, the City shall give notice
thereof, by first class mail postage prepaid, to the Certificate Owners at their respective
addresses set forth on the Registration Books..
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Section 8.08. Appointment of Successor Trustee. In the event of the removal
or resignation of the Trustee pursuant to Sections 8.06 or 8.07, respectively, the City
shall promptly appoint a successor Trustee. In the event the City shah for any reason
whatsoever fail to appoint a successor Trustee within thirty (30) days following' the
delivery to the Trustee of the instrument described in Section 8.06 or within thirty (30)
days following the receipt of notice by the City pursuant to Section 8.07, the Trustee may
apply to a court of competent jurisdiction for the appointment of a successor Trustee
meeting the requirements of Section 8.01. Any such successor Trustee appointed by such
court shall become the successor Trustee hereunder notwithstanding any action by the
City purporting to appoint a successor Trustee following the expiration of lsuch ninety-
day period.
Section 8.09. Merger or Consolidation. Any company or association into which
the Trustee may be merged or converted or with which it may be consolidated or any
company resulting from any merger, conversion or consolidation to which it shall be a
party or any company or association to which the Trustee may sell or transfer all or.
substantially all of its corporate trust business, provided that such company or
association shall be eligible under Section 8.01, shall be the successor to the Trustee and
vested with all of the title to the trust estate and all of the trusts, powers, discretions,
immunities, privileges and all other matters as was its predecessor, without the execution
or fling of any paper or further act, anything herein to the contrary notwithstanding.
Section 8.10. Concerning any Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its or his predecessor and
also the Corporation and the City an instrument in writing accepting such appointment
hereunder and thereupon such successor, without any further act, deed or conveyance,
shall become fully vested with all the estates, properties, rights, powers, trusts, duties
and obligations of its predecessors; but such predecessor shall, nevertheless, on the
written request of the Corporation, or of its successor, execute and deliver an instrument
transferring to such successor all the estates, properties, rights, powers and trusts of
such predecessor hereunder; and every predecessor Trustee shah deliver all securities
and moneys held by it as the Trustee hereunder to its successor. Should any instn~ment
in writing from the Corporation be required by any successor Trustee for more fully and
certainly vesting in such successor the estate, rights, powers and duties hereby vested or
intended to be vested in the predecessor, any and all such instruments in writing shaH,
on request, be executed, acknowledged and delivered by the Corporation. The resignation
of any Trustee and the instr~ment or instruments removing any Trustee and appointing
a successor hereunder, together with all other inst~_~ments provided for in this Article
VIII, shall be filed or recorded by the successor Trustee in each recording office where the
Assignment Agreement shall have been filed or recorded.
Section 8.11. Appointment of Co-Trustee. It is the purpose of this Trust
Agreement that there shall be no violation of any law of any jurisdiction (including
particularly the law of the State) denying or restricting the right of banking corporations
or associations to transact business as Trustee in such jurisdiction. It is recognized that
in case of litigation under this Trust Agreement or the Lease Agreement, and in
particular in case of the enforcement of either on default, or in case the Trustee deems
that by reason of any present or future law of any jurisdiction it may not exercise any of
the powers, rights or remedies herein granted to the Trustee or hold title to the
properties, in trust, as herein granted, or take any other action which may be desirable
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or necessary in connection therewith, it may be necessary-that the Trustee appoint an
additional individual or institution as a separate or co-trustee. The following provisions
of this Section 8.11 are adapted to these ends.
In the event that the Trustee appoints an additional individual or institution as a
separate or co-trustee, each and every remedy, power, right, cl_n_im, demand, cause of
action, immunity, estate, title, interest and lien expressed or intended by this Trust
Agreement to be exercised by or vested in or conveyed to the Trustee with respect thereto
shall be exercisable by and vest in such separate or co-trustee but only to the extent
necessary to enable such separate or co-trustee to exercise such powers, rights and
remedies, and every covenant and obligation necessary to the exercise thereof by such
separate or co-trustee shall run to and be enforceable by either of them.
Should any instrument in writing from the Corporation be required by the
separate trustee or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to him or it such properties, rights, powers, trusts, duties and
obligations, any and all such instruments in writing shall, on request, be executed,
acknowledged and delivered by the Corporation. In case any separate trustee or co-
trustee, or a successor to either, shall die, become incapable of acting, resign or be
removed, all the estates, properties, rights, powers, trusts, duties and obligations of such
separate trustee or co-trustee, so far as permitted by law, shall vest in and be exercised
by the Trustee until the appointment of a new trustee or successor to such separate
trustee or co-trustee.
Section 8.12. Non-Liability of Trustee. No provision of this Trust Agreement
shall require the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of its duties hereunder or in the exercise of any of its rights or
powers if it shall have reasonable grounds for believing repayment of such funds or
adequate indemnity is not reasonably assured to it.
The Trustee makes no representation or warranty, express or implied as to the
title, value, design, compliance with specifications or legal requirements, quality,
durability, operation, condition, merchantability or fitness for any particular purpose or
fitness for the use contemplated by the City or Corporation of the Project. In no event
shall the Trustee be liable for special or consequential damages in connection with or
arising from the Lease Agreement for the existence, furnishing or use of the Project.
The Trustee shah not be: (a) responsible for the sufficiency or enforceability of the
Lease Agreement or the assignment under the Assignment Agreement of its rights to
receive Lease Payments; (b) deemed to have knowledge of any Event of Default unless
and until it shall have actual knowledge thereof; and (c) accountable for the use or
application by the City or Corporation of any funds which the Trustee has released under
this Trust Agreement.
Section 8.13. Nature of Trust Engagement. The Trustee undertakes to
perform such duties and only such duties as are specifically set forth in the Trust
Agreement and no implied covenants or obligations shall be read into the Trust
Agreement against the Trustee. In accepting the trusts hereby created, the Trustee acts
solely as Trustee and not in its individual capacity and all persons, including without
limitation the Owners, the City and the Corporation, having any claim against the
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Trustee arising from the Trust Agreement shall look only to the funds and accounts
hereunder for payment except as otherwise provided herein; provided, however, that
nothing in this sentence is intended or shah be construed to apply to, or limit the source
of, claims against the Trustee arising from the negligence or intentional misconduct of the
Trustee. Under no circumstances shall the Trustee be liable in its individual capacity for
the payment of the obligations represented by the Certificates.
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ARTICLE IX
MODIFICATION OR AMENDMENT OF AGREEMENTS
Section 9.01. Amendments Permitted. This Agreement and the rights and
obligations of the Owners of the Certificates and the Lease Agreement and the rights and
obligations of the parties thereto, may be modified or amended at any time by a
supplemental agreement which shall become effective when the written consents of the
Owners of a majority in aggregate principal amount of the Certificates then Outstanding,
exclusive of Certificates disqualified as provided in Section 9.03, shall have been filed
with the Trustee. No such modification or amendment shall (a) extend or have the effect
of extending the fixed maturity of any Certificate or reducing the interest rate
represented thereby or extending the time of payment of interest, or reducing the amount
of principal represented thereby or reducing any premium payable upon the prepayment
thereof, without the express consent of the Owner of such Certificate, or (b) reduce or
have the effect of reducing the percentage of Certificates required for the affirmative vote
or written consent to an amendment or modification of the Lease Agreement, or (c)
modify any of the rights or obligations of the Trustee without its written assent thereto.
Any such supplemental agreement shah become effective as provided in Section 9.02.
This Agreement and the rights and obligations of the Owners of the Certificates
and the Lease Agreement and the rights and obligations of the respective parties thereto,
may be modified or amended at any time by a supplemental agreement, without the
consent of any such Owners, but only to the extent permitted by law and only (a) to add
to the covenants and agreements of any party, other covenants to be observed, or to
surrender any right or power herein or therein reserved to the Corporation or the City,
(b) to cure, correct or supplement any ambiguous or defective provision contained herein
or therein, (c) in regard to questions arising hereunder or thereunder, as the parties
hereto or thereto may deem necessary or desirable and which shah not, in the opinion of
Bond Counsel, materially adversely affect the interests of the Owners of the Certificates,
(d) to modify the legal description of the Project site to conform to the requirements of
title insurance or otherwise to add or delete property descriptions to reflect accurately the
description of the parcels intended to be included therein or to effectuate the substitution
of property pursuant to Section 5.10 of the Lease A~reement, or (e) if and to the extent
permitted in the opinion of Bond Counsel filed with the Trustee, the City and the
Corporation, to delete or modify any of the provisions hereof or thereof relating to the
exemption from federal income taxation of interest represented by the Certificates. Any
such supplemental agreement shall become effective upon execution and delivery by .the
parties hereto or thereto as the case may be.
Section 9.02. Procedure for Amendment with Written Consent of
Certificate Owners. This Agreement and the Lease Agreement may be amended by
supplemental agreement as provided in this Section 9.02 in the event the consent of the
Owners of the Certificates is required pursuant to Section 9.01. A copy of such
supplemental agreement, together with a request to the Certificate Owners for their
consent thereto, shall be mailed by the Trustee to each Owner of a Certificate at his
address as set forth on the Registration Books, but failure to mail copies of such
supplemental agreement and request shall not affect the validity of the supplemental
agreement when assented to as in this Section provided.
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Such supplemental agreement shall not become effective unless there shall be ~ed
with the Trustee the written consents of the Owners of a majority in aggregate principal
amount of the Certificates then Outstanding (exclusive of Certificates disqualified as
provided in Section 9.03) and a notice shah have been mailed as hereinafter in this
Section provided. Each such consent shall be effective only if accompanied by proof of
ownership of the Certificates for which such consent is given, which proof shall be such
as is permitted by Section 2.10'. Any such consent shall be binding upon the Owner of
the Certificate giving such consent and on any subsequent Owner (whether or not such
subsequent Owner has notice thereof) ~_mless such consent is revoked in writing by the
Owner giving such consent or a subsequent Owner by f~ling such revocation wi~h the
Trustee prior to the date when the notice hereinafter in this Section provided for has
been mailed.
After the Owners of the required percentage of Certificates shah have filed their
consents to such supplemental agreement, the Trustee shah mail a notice to the Owners
of the Certificates in the manner hereinbefore provided in this Section for the mailing of
such supplemental agreement of the notice of adoption thereof, stating in substance that
such supplemental agreement has been consented to by the Owners of the required
percentage of Certificates and will be effective as provided in this Section (but failure to
mail copies of said notice shall not affect the validity of such supplemental agreement or
consents thereto). A record, consisting of the papers required by this Section to be filed
with the Trustee, shall be conclusive proof of the matters therein stated. Such
supplemental agreement shall become effective upon the mail of such last-mentioned
notice, and such supplemental agreement shall be deemed conclusively binding upon the
parties hereto and the Owners of all Certificates at the expiration of sixty (60) days after
such filing, except in the event of a final decree of a court of competent jurisdiction
setting aside such consent in a legal action or equitable proceeding for such purpose
commenced within such sixty (60) day period.
Section 9.03. Disqualified Certificates. Certificates owned or held by or for the
account of the City or by any person directly or indirectly controlled or controlled by, or
under direct or indirect common control with the City (except any Certificates held in any
pension or retirement fund) shall not be deemed Outstanding for the purpose of any vote,
consent, waiver or other action or any calculation of Outstanding Certificates provided for
in this Agreement, and shall not be entitled to vote upon, consent to, or take any other
action provided for in this Agreement.
Section 9.04. Effect of Supplemental Agreement. From and after the time any
supplemental agreement becomes effective pursuant to this Article IX, this Agreement or
the Lease Agreement, as the case may be, shall be deemed to be modified and amended
in accordance therewith, the respective rights, duties and obligations of the parties hereto
or thereto and all Owners of Certificates Outstanding, as the case may be, shall
thereafter be determined, exercised and enforced hereunder subject in all respects to such
modification and amendment, and all the terms and conditions of any supplemental
agreement shall be deemed to be part of the terms and conditions of this Agreement or
the Lease Agreement, as the case may be, for any and all purposes.
Each Certificate Owner shall certify to the Trustee whether the Certificates as to
which such consent is given are disqualified as provided in Section 9.03.
Section 9.05. Endorsement or Replacement of Certificates Delivered After
Amendments. The Trustee may determine that Certificates delivered after the effective
date of any action taken as provided in this Article IX shall bear a notation, by
endorsement or otherwise, in form approved by the Trustee, as to such action. In that
case, upon demand on the Owner of any Certificate Outstanding at such effective date
and presentation of his Certificate for the purpose at the Trust Office of the Trustee, a
suitable notation shall be made on such Certificate. The Trustee may determine that the
delivery of substitute Certificates, so modified as in the opinion of the Trustee is
necessary to conform to such Certificate Owners' action, which substitute Certificates
shall thereupon be prepared, executed and delivered. In that case, upon demand on the
Owner of any Certificate then Outstanding, such substitute Certificate shall be
exchanged at the Trust Office of the Trustee, without cost to such Owner, for a
Certificate of the same character then Outstanding, upon surrender of such Outstanding
Certificate.
Section 9.06. Amendatory Endorsement of Certificates. The provisions of
this Article IX shall not prevent any Certificate Owner from accepting any amendment as
to the particular Certificates held by him, provided that proper notation thereof is made
on such Certificates.
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ARTICLE X
COVENANTS; NOTICES
Section 10.01. Compliance With and Enforcement of Lease Agreement. The
City covenants and agrees with the Owners of the Certificates to perform all obligations
and duties imposed on it under the Lease Agreement. The Corporation covenants and
agrees with the Owners of the Certificates to perform all obligations and duties imposed
on it under the Lease' Agreement.
The City will not do or permit anything to be done, or omit or refrain from doing
anything, in any case where any such act done or permitted to be done, or any such
omission of or refraining from action, would or might be a ground for cancellation or
termination of the Lease Agreement by the Corporation thereunder. The Corporation
and the City, immediately upon receiving or giving any notice, communication or other
document in any way relating to or affecting their respective estates, or either of them, in
the Project, which may or can in any manner affect such estate of the City, will deliver
the same, or a copy thereof, to the Trustee.
Section 10.02. Observance of Laws and Regulations. The City will well and
truly keep, observe and perform all valid and lawful obligations or regulations now or
hereafter imposed on it by contract, or prescribed by any law of the United States, or of
the State, or by any officer, board or commission having jurisdiction or control, as a
condition of the continued enjoyment of any and every right, privilege or franchise now
owned or hereafter acquired by the City, including its right to exist and carry on business
as a municipal corporation, to the end that such rights, privileges and franchises shall be
maintained and preserved, and shall not become abandoned, forfeited or in any manner
impaired.
Section 10.03. Prosecution and Defense of Suits. The City shall promptly,
upon request of the Trustee or any Certificate Owner, from time to time take such action
as may be necessary or proper to remedy or cure any defect in or cloud upon the title to
the Project, whether now existing or hereafter developing and shall prosecute all such
suits, actions and other proceedings as may be appropriate for such purpose and shall
indemnify and save the Trustee and every Certificate Owner harmless from all loss, cost,
damage and expense, including attorneys' fees, which they or any of them may incur by
reason of any such defect, cloud, suit, action or proceeding.
Section 10.04. Recordation and Filing. The City shall record and file the
Lease Agreement or a memorandum thereof, the Assignment Agreement and all such
documents as may be required by law (and shall take all further actions which may be
necessary or be reasonably required by the Trustee), all in such manner, at such times
and in such places as may be required by law in order fully to preserve, protect and
perfect the security of the Trustee and the Certificate Owners.
Section 10.05. Tax Covenants. (a) Private Business Use Limitation. The City
shall assure that (i) not in excess of ten percent (10%) of the Certificate Proceeds is used
for Private Business Use if, in addition, the payment of more than ten percent (10%) of
the principal or ten percent (10%) of the interest due with respect to the Certificates is,
-35-
under the terms of the Certificates or any underlying arrangement, directly or indirectly,
secured by any interest in property used or to be used for a Private Business Use or in
payments in respect of property used or to be used for a Private Business Use or is to be
derived from payments, whether or not to the City, in respect of property or borrowed
money used or to be used for a Private Business Use. In the event that both (A) in
excess of five percent (5%) of the Certificate Proceeds are used for a Private Business
Use, and (B) an amount in excess of five percent (5%) of the principal components or five
percent (5%) of the interest components of the Certificates is, under the terms of this
Agreement or any underlying arrangement, directly or indirectly secured by any interest
in property used or to be used for said Private Business Use or in payments in respect of
property used or to be used for a Private Business Use or is to be derived from payments,
whether or not to the City, in respect of property or borrowed money used or to be used
for a Private Business Use; and (ii) and that, in the event that both (A) in excess of five
percent (5%) of the Certificate Proceeds are used for a Private Business Use, and (B) an
s_mount in excess of five percent (5%) of the principal components or five percent (5%) of
the interest components of the Certificates is, under the terms of this Agreement or any
underlying arrangement, directly or indirectly secured by any interest in property used or
to be used for said Private Business Use or in payments in respect of property used or to
be used for said Private Business Use or is to be derived from payments, whether or not
to the City, in respect of property or borrowed money used or to be used for said Private
Business Use, then said excess over said five percent (5%) amount used for a Private
Business Use shall be used for a Private Business Use related to the governmental
purposes of the Certificates.
(b) Private Loan Limitation. The City shall assure that no more than five
percent (5%) of the Certificate Proceeds are used, directly or indirectly, to make or
finance a loan (other than loans constituting Nonpurpose Obligations or assessments) to
persons other than state or local government units.
(c) Federal Guarantee Prohibition. The City shall not take any action or permit
or suffer any action to be taken if the result of the same would be to cause the
Certificates to be "federally guaranteed" within the meaning of Section 149C0) of the Tax
Code.
Section 10.06. Further Assurances. The Corporation and the City will make,
execute and deliver any and all such further resolutions, instn~ments and assurances as
may be reasonably necessary or proper to carry out the intention or to facilitate the
performance of this Agreement and the Lease Agreement, and for the better assuring and
confirming unto the Owners of the Certificates the rights and benefits provided herein.
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ARTICLE XI
LIMITATION OF LIABILITY
Section 11.01. Limited Liability of City. Except for the payment of Lease
Payments when due in accordance with the Lease Agreement and the performance of the
other covenants and agreements of the City contained in said Agreement and this Trust
Agreement, the City shah have no pecuniary obligation or liability to any of the other
parties or to the Owners of the Certificates with respect to this Agreement or the terms,
execution, delivery or transfer of the Certificates, or the distribution of Lease Payments
to the Owners by the Trustee, except as expressly set forth herein.
Section 11.02. No Liability of the Corporation for Trustee.Performance.
Neither the City nor the Corporation shall have any obligation or liability to ;any of the
other parties or to the Owners of the Certificates with respect to the performance by the
Trustee of any duty imposed upon it under this Agreement.
Section 11.03. Indemnification of Trustee. The Corporation and the City shall
indemnify and save the Trustee, its directors, officers, agents and employees harmless
from and against all claims, losses, costs, expenses, liability and damages, including legal
fees and expenses, arising out of (a) the use, maintenance, condition or management of,
or from any work or thing done on, the Project by the Corporation or the City, (b) any
breach or default on the part of the Corporation or the City in the performance of any of
their respective obligations under this Trust Agreement and any other agreement made
and entered into for purposes of the Project, (c) any act of negligence of the Corporation
or the City or of any of their respective agents, contractors, servants, employees,
licensees with respect to the Project, (d) any act of negligence of any assignee of, or
purchaser from the Corporation or the City or of any of its or their respective agents,
contractors, servants, employees or licensees with respect to the Project, (e) the
authorization of payments from the Project Funds, (i~ the actions of any other party,'
including but not limited to the ownership, operation or use of the Project by the
Corporation or the City, or (g) the Trustee's exercise and performance of its powers and
duties hereunder. No indemnification will be made under this Section 11.03 or elsewhere
in this Trust Agreement for the negligence or intentional misconduct by the Trustee, its
officers, agents, employees, successors or assigns. The Corporation's and the City's
obligations hereunder shall remain valid and binding notwithstanding maturity and
payment of the Certificates.
Section 11.04. Opinion of Counsel. Before being requiredto take any action,
the Trustee may require an opinion of Independent Counsel acceptable to the Trustee, or
an opinion of Bond Counsel acceptable to the Trustee with respect to any federal tax
matters, or a verified certificate of any party hereto, or both, concerning the proposed
action. If it does so in good faith, Trustee shall be absolutely protected in relying on any
such opinion or certificate obtained by the Trustee.
Section 11.05. Limitation of Rights to Parties and Certificate Owners.
Nothing in this Agreement or in the Certificates expressed or implied is intended or shall
be construed to give any person other than the City, the Corporation, the Trustee and the
Owners of the Certificates, any legal or equitable right, remedy or claim under or in
37
respect of this Agreement or any covenant, condition or provision hereof; and all such
covenants, conditions and provisions are and shall be for the sole and exclusive benefit of
the City, the Corporation', the Trustee and said Owners.
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
OF CERTIFICATE OWNERS
Section 12.01. Assignment of Rights. Pursuant to the Assignment Agreement
the Corporation has transferred, assigned and set over to the Trustee all of the
Corporation's rights and duties in and to the Lease Agreement (excepting only the
Corporation's rights under Sections 4.7, 7.3 and 9.4 thereof), including without limitation
all of the Corporation~s rights to exercise such rights and remedies conferred on the
Corporation pursuant to the Lease Agreement as may be necessary or convenient (a) to
enforce payment of the Lease Payments and any other amounts required to be deposited
in the Lease Payment Fund or the Insurance and Condemnation Fund, and (b) otherwise
to exercise the Corporation's rights and take any action to protect the interests of the
Trustee or the Certificate Owners in an Event of Default.
Section 12.02. Remedies. If an Event of Default shall happen, then and in each
and every such case during the continuance of such Event of Default, the Trustee may,
and upon request of the Owners of a majority in aggregate principal amount of the
Certificates then Outstanding shaH, exercise any and all remedies available pursuant to
law or granted pursuant to the Lease Agreement; provided, however, that
notwithstanding anything herein or in the Lease Agreement to the contrary, there shall
be no right under any circ~_~rnstances to accelerate the maturities of the Certificates or
otherwise to declare any Lease Payment not then in default to be immediately due and
payable.
Section 12.03. Application of Funds. All moneys received by the Trustee
pursuant to any right given or action taken under the provisions of this Article XII or
Article IX of the Lease Agreement shall be applied by the Trustee in the order following
upon presentation of the several Certificates, and the stamping thereon of the payment if
only partially paid, or upon the surrender thereof if fully paid -
First, to the payment of the costs and expenses of the Trustee and of
the Certificate Owners in declaring such Event of Default and in taking any
remedial action with respect thereto, including reasonable compensation to
its or their agents, attorneys and counsel;
Second, to the payment of the whole amount then owing and unpaid
with respect to the Certificates for principal and interest, with interest on
the overdue principal and installments of interest at the net effective rate of
interest per annum then represented by the Outstanding C~rtificates (but
such interest on overdue installments of interest shall be paid only to the
extent funds are available therefor following payment of principal and
interest and interest on overdue principal, as aforesaid), and in case such
moneys shah be insufficient to pay in full the whole amount so owing and
unpaid with respect to the Certificates, then to the payment of such
principal and interest without preference or priority of principal over
interest, or of interest over principal, or of any installment of interest over
any other installment of interest, ratably to the aggregate of such principal
and interest.
Section 12.04. Institution of Legal Proceedings. If one or more Events of
Default shall happen and be continuing, the Trustee in its discretion may, and upon the
written request of the Owners of a majority in principal amount of the Certificates then
Outstanding, and upon being indemnified to its satisfaction therefor, shall, proceed to
protect or enforce its rights or the rights of the Owners of Certificates by a suit in equity
or action at law, either for the specific performance of any covenant or agreement
contained herein, or in aid of the execution of any power herein granted, or by mandamus
or other appropriate proceeding for the enforcement of any other legal or equitable
remedy as the Trustee shall deem most effectual in support of any of its rights or duties
hereunder.
Section 12.05. Non-waiv{~r. Nothing in this Article XII or in any other
provision of this Agreement or in the Certificates, shall affect or impair the obligation of
the City, which is absolute and unconditional, to pay or prepay the Lease Payments as
provided in the Lease Agreement. No delay or omission of the Trustee or of any Owner
of any of the Certificates to exercise any right or power arising upon the happening of
any Event of Default shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein, and every power and
remedy given by this Article XII to the Trustee or to the Owners of Certificates may be
exercised from time to time and as often as shall be deemed expedient by the Trustee or
the Certificate Owners.
Section 12.06. Remedies Not Exclusive. No remedy herein conferred upon or
reserved to the Trustee or to the Certificate Owners is intended to be exclusive of any
other remedy, and every such remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing, at law or in equity or
by statute or otherwise.
Section 12.07. Power of Trustee to Control Proceedings. In the event that
the Trustee, upon the happening of an Event of Default, shall have taken any action, by
judicial proceedings or otherwise, pursuant to its duties hereunder, whether upon its own
discretion or upon the request of the Owners of a majority in aggregate principal amount
of the Certificates then Outstanding, it shall have full power, in the exercise of its
discretion for the best interests of the Owners of the Certificates, with respect to the
continuance, discontinuance, withdrawal, compromise, settlement or other disposal of
such action; provided, however, that the Trustee shah not discontinue, withdraw,
compromise or settle, or otherwise dispose of any litigation pending at law or in equity,
without the consent of a majority in aggregate principal amount oft he Certificates
Outstanding.
Section 12.08. Limitation on Certificate Owners' Right to Sue. No Owner of
any Certificate issued hereunder shall have the right to institute any suit, action or
proceeding at law or in equity, for any remedy under or upon this Agreement, unless (a)
such Owner shall have previously given to the Trustee written notice of the occurrence of
an Event of Default hereunder; (b) the Owners of at least twenty-five percent (25%) in
aggregate principal amount of all the Certificates then Outstanding shall have made
written request upon the Trustee. to exercise the powers hereinbefore granted or to
-40-
institute such action, suit or proceeding in its own name; (c) said Owners shah have
tendered to the Trustee reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request; and (d) the Trustee shah have refused or
omitted to comply with such request for a period of sixty (60) days after such written
request shah have been received by, and said tender of indemnity shall have been made
to, the Trustee.
Such notification, request, tender of indemnity and refusal or omission are hereby
declared, in every case, to be conditions precedent to the exercise by any Owner of
Certificates of any remedy hereunder; it being understood and intended that no one or
more Owners of Certificates shah have any right in any manner whatever by his or their ~
action to enforce any right under this Agreement, except in the manner herein provided,
and that all proceedings at law or in equity with respect to an Event of Default shall be
instituted, had and maintained in the manner herein provided and for the equal benefit
of all Owners of the Outstanding Certificates.
Section 12.09. Possession of Certificates by Trustee Not Required. All rights
and remedies granted to or exercisable by the Trustee hereunder or under the Lease
Agreement may be exercised by the Trustee without possession of any of the Certificates
or the production thereof at the trial or other proceeding relative thereto, and any suit,
action or proceeding instituted by the Trustee hereunder or under the Lease Agreement
shall be brought in its name for the benefit of all of the Owners of such Certificates,
subject to the provisions of this Trust Agreement.
-41-
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Defeasance. If and when the obligations represented by any
Outstanding Certificates shall be paid and discharged in any one or more of the following
ways:
(a) by well and truly paying or causing to be paid the principal of
and interest and redemption premiums (if any) represented by such
Certificates Outstanding, as and when the same become due and payable;
or
(b) by depositing with the Trustee or any other fiduciary, under an
escrow deposit and trust agreement, security for the payment of Lease
Payments relating to such Certificates as more particularly described in
Section 10.1 of the Lease Agreement, said security to be held by the
Trustee as agent for the City to be applied by the Trustee to pay or prepay
such Lease Payments as the same become due, pursuant to Section 10.1 of
the Lease Agreement -
notwithstanding that such Certificates shall not have been surrendered for payment, all
rights hereunder of the Owners of such Certificates and all obligations of the Corporation,
the Trustee and the City with respect to such Certificates shall cease and terminate,
except only the obligations of the Trustee under Sections 2.07 and 2.08, and the
obligation of the Trustee or such other fiduciary to pay or cause to be paid, from Lease
Payments paid by or on behalf of the City from funds deposited pursuant to paragraph
(b) of this Section, to the Owners of such Certificates not so surrendered and paid all
s-ms represented thereby when due and in the event of deposits pursuant to paragraph
(b), such Certificates shall continue to represent undivided' fractional interests of the
Owners thereof in Lease Payments under the Lease Agreement.
Any funds held by the Trustee, at the time of discharge of the obligations
represented by all Outstanding Certificates as a result of one of the events described in
paragraphs (a) or (b) of this Section, which are not required for the payment to be made
to Owners, shall, upon payment in full of all fees and expenses of the Trustee (including
attorneys' fees) then due, be paid over to the City.
Section 13.02. Records. The Trustee shall keep complete and accurate records
of all moneys received and disbursed under this Agreement, which shall be available for
inspection by the City, the Corporation, and any Owner, or the agent of any of them, at
any reasonable time during regular business hours.
Section 13.03. Notices. All written notices to be given under this Agreement
shall be given by mail or personal delivery to the party entitled thereto at its address set
forth below, or at such address as the party may provide to the other party in writing
from time to time. Notice shah be effective upon deposit in the United States mail,
postage prepaid or, in the case of personal delivery, upon delivery to the address set forth
below:
-42-
If to the City:
If to the Corporation:
If to the Trustee:
City Manager
City of Dublin
6500 Dublin Boulevard
Post Office Box 2340
Dublin, California 94568
Chief Financial Officer
Dublin Information, Inc.
6500 Dublin Boulevard
Post Office Box 2340
Dublin, California 94568
The Bank of California, N.A.
400 California Street
San Francisco, California 94104
Attention:
Section 13.04. Payment of Certificates After Discharge of Trust Agreement.
Notwithstanding any provisions of this Trust Agreement, but subject to any applicable
laws of the State of California relating to the escheat of funds or property, any moneys
held by the Trustee in trust for the payment of the principal or interest represented by
any Certificates and remaining unclaimed for six (6) years after the principal represented
by all of the Certificates has become due and payable (whether at maturity or upon call
for redemption or by acceleration as provided in this Trust Agreement), if such moneys
were so held at such date, or six (6) years after the date of deposit of such moneys if
deposited after said date when all of the Certificates became due and payable, shall be
repaid to the City free from the trusts created by this Trust Agreement upon receipt of an
indemnification agreement acceptable to the City and the Trustee indemnifying the
Trustee with respect to claims of Owners of Certificates which have not yet been paid,
and all liability of the Trustee with respect to such moneys shall thereupon cease;
provided, however, that before the repayment of such moneys to the City as aforesaid,
the Trustee may (at the cost of the City) first mail, by f~rst class mail postage prepaid, to
the Owners of Certificates which have not yet been paid, at the respective addresses
shown on the Registration Books, a notice, in such form as may be deemed appropriate
by the Trustee with respect to the Certificates so payable and not presented and with
respect to the provisions relating to the repayment to the City of the moneys held for the
payment thereof.
Section 13.05. Governing Law. This Agreement shall be construed and
governed in accordance with the laws of the State of California, without giving effect to
principles of conflicts of law of the State. of California.
Section 13.06. Binding Effect; Successors. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and assigns.
Whenever in this Agreement either the Corporation, the City or the Trustee is named or
referred to, such reference shall be deemed to include the successors or assigns thereof,
and all the covenants and agreements in this Agreement contained by or on behalf of the
Corporation, the City or the Trustee shall bind and inure to the benefit of the respective
successors and assigns thereof whether so expressed or not.
-43-
Section 13.07. Corporation and City Representatives. Whenever under the
provisions of this Agreement the Corporation or the City is required or permitted to take
some action, including but not limited to the giving of any approval or the execution of
some request, direction or other instrument, such action shall be made on behalf of the
Corporation by an Corporation Representative and on behalf of the City by a City
Representative., and any party hereto shall be fully authorized to rely upon any such
action by an Corporation Representative or a City Representative.
Section 13.08. Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shah constitute
but one and the s_~_me agreement.
Section 13.09. Delivery of Cancelled Certificates. Whenever in this
Agreement provision is made for the surrender to or cancellation by the Trustee of any
Certificates, the Trustee shall cancel and, if so directed in writing by the City
Representative, destroy such Certificates and shall deliver a certificate of destruction
with respect thereto to the City.
Section 13.10. Headings. The headings or titles of the several Articles and
Sections hereof, and any table of contents appended to copies hereof, shall be solely for
convenience of reference and shall not affect the meaning, construction or effect of this
Agreement. All references herein-to "Articles", "Sections", and other subdivisions are to
the corresponding Articles, Sections or subdivisions of this Agreement; and the words
"herein", "hereof', "hereunder" and other words of similar import refer to this Agreement
as a whole and not to any particular Article, Section or subdivision hereof.
Section 13.11. Waiver of Notice. Whenever in this Agreement the giving ~f
notice by mail or otherwise is required, the giving of such notice may be waived in writing
by the person entitled to receive such notice and in any case the giving or receipt of such
notice shall not be a condition precedent to the validity of any action taken in reliance
upon such waiver.
Section 13.12. Separability of Invalid Provisions. In case any one or more of
the provisions contained in this Agreement or in the Certificates shall for any reason be
held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality
or unenforceability shall not affect any other provision of this Agreement, and this
Agreement shall be construed as if such invalid or illegal or unenforceable provision had
never been contained herein. The parties hereto hereby declare that they would have
entered into this Agreement and each and every other section, paragraph, sentence,
clause or phrase hereof and authorized the delivery of the Certificates pursuant thereto
irrespective of the fact that any one or more sections, paragraphs, sentences, clauses or
phrases of this Agreement may be held illegal, invalid or unenforceable.
-44-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
THE BANK OF CALIFORNIA, N.A., as
Trustee
Vice President
By
Assistant Vice President
DUBLIN INFORMATION, INC.
(S E A L)
Attest:
Chairman
By:
Secretary
CITY OF DUBLIN
By
Mayor
(SEAL)
Attest:
City Clerk
-45-
EXItlBIT A
(FORM OF CERTIFICATE OF PARTICIPATION)
(TO COME)
-46-
Brown & Wood
Draft of 2/17/88
PRELIMINARY OFFICIAL STATEMENT DATED February~2-~, 1988
NEW ISSUE
In the opinion of Jones Hall Hill & White, A Professional
LaW Corporation, San Francisco, California, Special Counsel,
subject, however to certain qualifications described herein,
under existing law, the portion of lease payments designated as
and comprising interest and received by the owners of the
Certificates is excluded from gross income for federal income
tax purposes, such interest is not an item of tax preference
for purposes of the federal individual and corporate'
alternative minimum taxes, although it is included in adjusted
net book income and current earnings in computing the
alternative minimum tax imposed on certain corporations. In
the further opinion of Special Counsel, such interest is exempt
from California personal income taxes. See "TAX EXEMPTION"
herein.
$ ·
1988 REFUNDING CERTIFICATES OF PARTICIPATION
(Civic Center Project)
Evidencing and Representing a Fractional Undivided Interest
of the Owners Thereof inLease Payments
to Be Made by the
Dated:
Fcb~ uary 1, 1988
CITY OF DUBLIN
Due: February 1,
as shown below
The Certificates are being sold to provide (i) funds' to
refund outstanding City of Dublin 1985 Certificates of
Participation originally sold to finance the Civic Center
complex and (ii). additional moneys to complete the Civic Center.
Interest represented by the Certificates is payable
semiannually on February 1 and August 1 of each year,
commencing August 1, 1988, by check mailed to the registered
owner thereof. Principal due with respect to the Certificates
is payable at the principal corporate trust office of Bank of
California, N.A., the Trustee, in San Francisco, California.
The Certificates are deliverable as fully registered
Certificates in denominations of $5,000 or any integral
multiple thereof (not exceeding the principal amount maturing
in any one year).
The Certificates are subject to optional and mandatory
prepayment, as described herein, prior to their stated
maturities.
The City has covenanted in the Lease to make all Lease
Payments provided for therein to Dublin Information, Inc., the
Lessor, subject to complete or partial abatement of such Lease
Payments resulting from failure to complete construction in a
timely manner or from substantial interference with use and
possession by the City of the Project caused by material damage
or destruction of the Project or condemnation thereof. The
City has also covenanted in the Lease to take such action as
may be necessary to include such Lease Payments in its annual
budgets and to make the necessary annual appropriations
therefor.
THE OBLIGATION OF THE CITY TO PAY LEASE PAYMENTS DOES NOT
CONSTITUTE A DEBT OF THE CITY, THE STATE OF CALIFORNIA OR ANY
POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR RESTRICTION NOR
DOES IT CONSTITUTE AN OBLIGATION FOR WHICH THE CITY IS
OBLIGATED TO LEVY OR PLEDGE ANY FORM OF TAXATION OR FOR WHICH
THE CITY HAS LEVIED OR PLEDGED ANY FORM OF TAXATION.
SERIAL CERTIFICATES*
~ Maturity /)Maturity
Date Interest Price or Date
(February l) Amount Rate Yield (February l)
$ % $ $ % $
Amount
Interest Price or
Rate Yield
% Term/)Certificates Due February l, -- Price
(Plus Accrued Interest from Fe~rua~} 1, 1988)
The Certificates are offered when, as and if sold and received
by the Underwriter, subject to approval as to their legality by
Special Counsel, Jones Hall Hill & White, A Professional Law
Corporation, San Francisco, California. Certain legal matters'
will be passed upon for the Underwriter by Brown & Wood, San
Francisco, California, and for the City by the City Attorney.
It is anticipated that the Certificates in definitive form will
be available for delivery in New York, New York, on or about
March , 1988.
Rauscher Pierce Refsnes, Inc.
Dated: March __, 1988
*Subject to change.
This Preliminary Official Statement and the Information contained herein are subject to completion or amendment. Under no
circumstances shall this Preliminary Official Statement constitute an offer to sell or the solicitation 'of an offer to buy nor shall
there be any sale of these securities ~n any jurisdiction ~n which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such jurisdiction.
No dealer, broker, salesperson or other person has been
authorized by the City, the Lessor or the Underwriter to give
any information or to make any representations other than those
contained herein and, if given or made, such other information
or representations must not be relied upon as having been
authorized by any of the foregoing. This Official Statement
does not constitute an offer to sell or the solicitation of an
offer to buy, nor shall there be any sale of the Certificates
by any person in any jurisdiction in which it is unlawful for
such person to make such offer, solicitation or sale.
This Official Statement is not to be construed as a
contract with the purchasers of the Certificates. Statements
contained in this Official Statement which involve estimates,
~forecasts or matters of opinion, whether or not expressly so
described herein, are intended solely as such and are not to be
construed as a representation of fact.
Statements contained in this Official Statement which
involve estimates, forecasts or matters of opinion, whether or
not expressly so described herein, are intended solely as such
and are not to be construed as a representation of facts. The
information and expressions of opinions herein are subject to
change without notice and neither delivery of this Official
Statement nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no
change in the affairs of the Lessor or the City since the date
hereof. This Official Statement and its distribution have been
duly authorized and approved by the Board of Directors of the
Lessor and the City Council of the City. This Official
Statement is submitted in connection with the sale of the
Certificates referred to herein and may not be reproduced or
used, in whole or in part, for any other purpose.
IN CONNECTION WITH THIS .OFFERING, THE UNDERWRITER MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN
THE MARKET PRICE OF THE CERTIFICATES AT A LEVEL ABOVE THAT
WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
CITY OF DUBLIN, CALIFORNIA
4Georgean V~_Dheeder
· Peter J. Hegarty
City Council
Linda J. Jeffery
Mayor
Paul C. Moffatt
Peter W. Snyder
City Staff
Richard C. Ambrose
City Manager
Paul Rankin
Assistant to the City Manager
Phillip Molina
Administrative Services/Finance Director
Special Counsel
Jones Hall Hill & White
A Professional Law Corporation
San Francisco, California.
Trustee
Bank of California, N.A.
San Francisco, California
TABLE OF CONTENTS
INTRODUCTION .............................................
THE REFUNDING PLAN .......................................
THE CERTIFICATES .........................................
General Provisions ........................... i .........
Transfer and Exchange ..................................
Prepayments ............................................
Manner of Selection of Certificates for Prepayment .....
Notice of Prepayment ...................................
Partial Prepayment of Certificates .....................
Trustee ................................................
Security for the Certificates ..........................
Lease Payment Schedule ................................
ESTIMATED SOURCES AND USES OF FUNDS ......................
THE PROJECT ..............................................
RISK FACTORS .............................................
Lease Not a General Obligation .........................
City's Lease Payments ..................................
No Liability by the Lessor to the Owners ...............
Limited Recourse on Default ............................
Abatement ..............................................
No Acceleration Upon Default ...........................
Insolvency or Bankruptcy of the Lessor .................
CONSTITUTIONAL AND STATUTORY LIMITATIONS ON TAXES AND APPROPRIATIONS ............................
Recent Initiative Statute Affecting Local Taxes ........
CITY OF DUBLIN FINANCIAL INFORMATION ..................... City Budget ............................................
General Fund Financial Summary .........................
CITY OF DUBLIN ...........................................
General ................................................
Population .............................................
Labor Relations ........................................
Property Taxation ......................................
CITY OF DUBLIN DIRECT AND OVERLAPPING
BONDED DEBT STATEMENT ..................................
THE CITY'S ECONOMY .......................................
Economic Structure .....................................
Employment .............................................
Building and Construction ..............................
Community Facilities ...................................
Education ..............................................
Transportation .........................................
Utilities ..............................................
Parks and Recreation ...................................
Page
TABLE OF CONTENTS (continued)
Page
LESSOR ...................................................
UNDERWRITING .............................................
RATING ...................................................
TAX EXEMPTION ............................................
VERIFICATION OF MATHEMATICAL ACCURACY ....................
LITIGATION ...............................................
APPROVAL OF LEGALITY .....................................
OTHER MATTERS ............................................
APPENDIX A - Audited General Purpose Financial
Statements, as of June 30, 1987 ........................
APPENDIX B - Summary of Principal Legal Documents ........
APPENDIX C - Form of Opinion of Special Counsel ..........
1988 REFUNDING CERTIFICATES OF PARTICIPATION.
(Civic Center Project)
Evidencing and Representing Fractional Undivided
Interests of the Owners Thereof in
Lease Payments to be Made by the
CITY OF DUBLIN,
CALIFORNIA
INTRODUCTION
This Official Statement, including the cover page and the
appendices, sets forth certain information in connection with
the offering of the 1988 Refunding Certificates of
Participation (Civic Center Project) (the "Certificates") in
the aggregate principal amount of $ * to refund the 1985
City of Dublin Certificates of Participation (the "1985
Certificates") and to provide additional funds for the Project
as described below. See "THE PROJECT." The Certificates
evidence and represent fractional undivided interests of the
registered owners thereof (the "Owners") in lease payments (the
"Lease Payments") to be made by the City of Dublin (the "City")
to Dublin Information, Inc. (the "Lessor") as rental for
certain facilities (as described herein) to be used by the City
pursuant to an Amended and Restated Lease Agreement, dated as
of February 1, 1988 (the "Amended Lease"), between the City and
the Lessor. The rights of the Lessor to receive payments under
the Amended Lease will be assigned to Bank of California, N.A.,
as Trustee (the "Trustee") under an Assignment Agreement, dated
as of February 1, 1988 (the "Assignment Agreement"), whereby
the Lessor shall assign to the Trustee for the benefit of the
Owners its rights (i) to Lease Payments payable by the City
under the Amended Lease and (ii) to enforce amounts payable
upon default. In addition, under the Trust Agreement, dated as
of February 1, 1988, among the City, the Trustee and the Lessor
(the "Trust Agreement"), the Lease Payments are irrevocably
pledged to the- payment of the principal and interest
represented by the Certificates. The Certificates are being
executed and delivered pursuant to the Trust Agreement.
In general, the City is required to pay to the Trustee all
of the Lease Payments required under the Amended Lease, subject
*Subject to change.
1739031/2
to completion of construction of the Project and subject to
complete or partial abatement of such Lease Payments resulting
from substantial interference with the use and possession by
the City of the Project caused by material damage, destruction
or condemnation thereof. See "RISK FACTORS" and "APPENDIX B -
SUMMARY OF PRINCIPAL LEGAL DOCUMENTS." Under the Amended
Lease, the City is also required to pay any taxes, assessments,
insurance premiums or maintenance and repair costs in
connection with the Project. The City has also covenanted in
the Amended Lease to take such action as may be necessary to
include the Lease Payments in its annual budgets and to make
the necessary annual appropriations therefor. For certain
financial information with respect to the City, see "CITY OF
DUBLIN FINANCIAL INFORMATION" and "APPENDIX A."
THE REFUNDING PLAN
A portion of the proceeds of the Certificates, together
with a portion of the monies deposited in funds and accounts
established with respect to the 1985 Certificates will be
deposited in an escrow fund (the "Escrow Fund") established by
Bank of California, NoA., as escrow bank (the "Escrow Bank")
pursuant to an Escrow Deposit and Trust Agreement, dated as of
February 1, 1988 (the "Escrow Agreement"), by and among the
City, the Lessor and the Escrow Bank. The Escrow Fund will be
A invested in. bills, certificates of indebtedness. notes. bonSs
or similar securities which are direct obligations of. or the
Drincipal and interest of which securities are guaranteed by
.the United States; the interest and principal payments from
which will secure, and are calculated to provide sufficient
funds to pay principal with respect to the 1985 Certificates on
their respective payment or prepayment dates and interest which
will become due with respect to the 1985 Certificates on such
payment or prepayment dates. The Escrow Bank is irrevocably
committed to pay the principal and interest with respect to the
1985 Certificates required, but only from monies available in
the Escrow Fund.
THE CERTIFICATES
General Provisions
The Certificates will be executed and delivered in the
aggregate principal amount of $ * The Certificates
are deliverable in fully registered form in denominations of
$5,000 or any integral multiples thereof (not exceeding the
* Subject to change.
1739031/2
2
principal amount maturing in any one year). Certificates will
be dated as of the date of their execution and interest
represented thereby will be payable from the February 1 or
August 1 (each an "Interest Payment Date") next preceding the
date of execution thereof, unless: (a) it is executed after
the close of business on the fifteenth day of the month
immediately preceding an Interest Payment Date and, in which
event interest represented thereby shall be payable from such
Interest Payment Date; or (b) it is executed on or before
Ju~y 15, 1988, in which event interest represented thereby
shall be payable from February 1, 1988.
The interest represented by the Certificates will be
calculated from February 1, 1988, at the rates per annum set
forth on the cover page hereof, payable semiannually on
February 1 and August 1 of each year commencing August 1, 1988,
and will represent the sum of the portions of the Lease
Payments designated as interest components coming due on the
Interest Payment Dates in each year.
The principal represented by the Certificates will be
payable, subject to prior prepayment, on February 1 in each of
the designated years (each a "Certificate Payment Date") and in
the principal amounts set forth on the cover page hereof.
Certificates with a Certificate Payment Date of February 1,
20 represent, in the aggregate, the principal components of
the Lease Payments due on February 1, 20 through February 1,
prepayment on such dates. Certificates with
Certificate Payment Dates other than February 1, 20__ evidence
and represent the principal component of the Lease Payments
coming due on their respective Certificate Payment Dates.
Interest with respect to the Certificates is payable by
check or draft mailed to the Owners of the respective
Certificates by first class mail, postage prepaid at the
addresses appearing on the Certificate registration books of
the Trustee as of the close of business on the 15th day of the
month immediately preceding the Interest Payment Date.
Principal due with respect to the Certificates is' payable upon
surrender at the principal corporate trust office of Bank of
California, in San Francisco, California.
Transfer and Exchanqe
Any Certificate may, in accordance with its terms, be
transferred by the person in whose name it is registered, in
person or by his duly authorized attorney, upon surrender of
.such Certificate for cancellation at the principal corporate
office of the-Trustee in San Francisco, California, accompanied
1739031/2
3
by delivery of a written instrument of transfer in a form
approved by the Trustee, duly executed.
Certificates may be exchanged at the principal corporate
office of the Trustee in San Francisco, California, for a like
aggregate principal amount of Certificates of other authorized
denominations of the same maturity and interest rate. The
Trustee may require the payment by the Owner requesting such
exchange of any tax or other governmental charge required to be
paid with respect to such exchange.
The Trustee will not be required to transfer or exchange
either (i) any Certificate during the fifteen days prior to the
date established by the Trustee for the selection of
Certificates for prepayment or (ii) the portion of any
Certificate as to which notice of prepayment has been mailed by
the Trustee.
Prepayments
The Certificates are subject to mandatory prepayment in
whole on any date or in part on any4~ate among maturities on a
pro rata basis and by lot within a maturity, from the proceeds
of insurance or eminent domain proceedings credited towards the
prepayment of the Lease Payments by the City pursuant to the
Amended Lease, at a prepayment price equal to 100% of the
principal amount to be prepaid plus accrued interest
represented thereby to the date fixed for prepayment.
The Certificates payable on February 1, 20 are subject
to mandatory prepayment prior to their state~ Certificate
Payment Date in part on February 1 of each year on and after
February 1, 20__, by lot, from and in the amount of the
principal components of the Lease Payments due and payable on
such dates, at a prepayment price equal to 100% of the
principal amount to be prepaid plus accrued interest
represented thereby to the date of prepayment, without
premium, The amounts of mandatory' prepayments are set forth in
the following table:
1739031/2
MANDATORY PREPAYMENT SCHEDULE
Certificate
Payment
Date
Amount
Certificate
Payment
Date
February 1,
February 1,
February 1,
February 1,
'February 1,
February 1,
February 1,
February 1,
February 1,
Amount
*Final maturity.
The Certificates are also subject to mandatory prepayment
in whole, or in part among maturities on a pro rata basis and
by lot within a maturity, from the amounts (if any) of unused
Certificate proceeds~ on alg_~y. Interest Paym~t Date on or after
~ebruary 1, 20 for which notice of prepayment can be timely
given, at a prepayment price equal to 100% of the principal
amount to be prepaid, plus accrued interest represented thereby
to the date fixed for prepayment, without premium.
The Certificates payable on or before February 1, 199__
shall not otherwise be subject to prepayment before their
respective stated Certificate Payment Dates.
The Certificates payable on or after Febr'uary 1, 199 will
also be subject to prepayment prior to their respective stated
Certificate Payment Dates, at the option of the City, as a
whole, or in part in inverse order of such Payment Dates and by
lot within any such Payment Date if less than all of the
Certificates of such Payment Date are to be prepaid from
prepayments of the Lease Payments made at the option of t'he
City pursuant to the Amended Lease, beginning February 1, 199_,
at a prepayment price (expressed as a percentage of the
principal amount to be prepaid), together with accrued interest
represented thereby to the date fixed for prepayment as follows:
Prepayment Date
Prepayment Price
1739031/2
5
Manner of Selection of Certificates for Prepayment
Whenever less than all of the outstanding Certificates
payable on any Certificate Payment Date are called for
prepayment, the Trustee will select Certificates for prepayment
by lot. The Trustee will promptly notify the City and the
Lessor in writing of the Certificates selected for prepayment.
Notice of Prepayment
Notice of prepayment will be mailed by first class mail,
postage prepaid, to, among others, the Owners of Certificates
designated for prepayment at their addresses appearing on the
Certificate registration books, at least 30 days but not more
than 60 days prior to the prepayment date.
Partial Prepayment of Certificates
Upon surrender by the Owner of a Certificate for partial
prepayment, the Trustee will execute and deliver to the Owner
of such surrendered Certificate, a new Certificate or
Certificates which shall be of authorized denominations equal
in aggregate principal amount to the unprepaid portion of the
Certificate surrendered and of the same interest rate and the
same Certificate Payment Date.
Trustee
Bank of California, N.A., San Francisco, California, has
been appointed as Trustee. The Trustee will receive all of the
proceeds of the Certificates and will disburse such proceeds in
conformity with the Trust Agreement. In addition to holding
and administering various funds of the City, the Trustee will
invest the funds held in trust and will be the recipient of the
Lease Payments payable by the City for the Project. The
Trustee will also act as paying agent for the purpose of
disbursing payments of interest and principal with respect to
the Certificates. The Trustee' will act as certificate
registrar and will execute all Certificates.
Security for the Certificates
General. Each Certificate represents a fractional
undivided interest in Lease Payments to be made by the City to
the Lessor under the Amended Lease. The Lessor, pursuant to
the Assignment Agreement and the Trust Agreement, has assigned
all its rights to receive Lease Payments under the Amended
Lease to the Trustee for the benefit of the Owners of the
Certificates. Additionally, under the Trust Agreement, the
Lease Payments are irrevocably pledged to the payment of the
1739031/2
6
principal and interest represented by the Certificates. Lease
Payments are subject to complete or partial abatement, however,
in the event of loss or substantial interference in the use and
possession of all or any portion of the Project by the City
caused by damage, destruction or condemnation of the Project.
In the case of damage or destruction, the amount of abatement
will be agreed upon by the City and the Lessor such that the
resulting Lease Payments represent fair consideration for the
use and occupancy of the portions of the Project not damaged or
destroyed0 Such abatement shall continue for the period
commencing with the date of such damage or destruction and
ending with the substantial completion of the work of repair or
reconstruction of the Project. If the entire Project or so
much thereof as to render the remainder unusable for the
purposes for which it was used by the City is taken under the
power of eminent domain or sold to a governmental entity
threatening to exercise the power of eminent domain, the
proceeds therefrom will be used to prepay the Certificates. If
less than the entire Project is taken under the power of
eminent domain and the remainder is usable for the purposes for
which it was used by the City at the time of such taking, then
Lease Payments will be subject to a partial abatement in an
amount to be agreed upon by the City and the Lessor such that
the resulting Lease Payments represent fair consideration for
the use and occupancy of the portions of the Project not
damaged or destroyed.
Additional lease payments due from the City to the Trustee
include amounts sufficient to pay certain taxes and assessments
charged with respect to the Project and administrative costs of
the Lessor. The City is also responsible for repair and
maintenance of the Project during the term of the Amended Lease.
THE CITY HAS COVENANTED IN THE AMENDED LEASE TO TAKE SUCH
ACTION AS MAY BE NECESSARY TO INCLUDE ALL SUCH LEASE PAYMENTS
IN ITS ANNUAL BUDGETS AND TO MAKE THE NECESSARY ANNUAL
APPROPRIATIONS THEREFOR.' SUCH OBLIGATION AND THE OBLIGATION TO
MAKE LEASE PAYMENTS DO NOT CONSTITUTE DEBTS OF THE CITY, THE
STATE OF CALIFORNIA OR ANY POLITICAL SUBDIVISION THEREOF WITHIN
THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY DEBT LIMITATION
NOR OBLIGATIONS OF THE CITY FOR WHICH THE CITY IS OBLIGATED OR
PERMITTED TO LEVY OR PLEDGE ANY FORM OF TAXATION OR FOR WHICH
THE CITY HAS LEVIED OR PLEDGED ANY FORM OF TAXATION.
Should the City default in its payment obligation under the
Amended Lease, the Trustee, as assignee of the Lessor, may
retain the Amended Lease and hold the City liable for all Lease
Payments on an annual basis and have the right to re-enter and
re-let the Project. Such re-entry and re-letting will not
effect a surrender of the Amended Lease. Alternatively, the
1739031/2
7
Trustee may terminate the Amended Lease and proceed against the
City to recover damages pursuant to the Amended Lease. Due to
the specialized nature of the Project, no assurance can be
given that the Trustee will be able to re-let the Project so as
to provide rental income sufficient to make principal and
interest payments with respect to the Certificates in a timely
manner, and the Trustee is not empowered to sell the Project
for the benefit of the Owners of the Certificates.
Reserve Fund. A Reserve Fund (the "Reserve Fund") will be
established with the Trustee pursuant to the Trust Agreement
and will be funded from proceeds of the Certificates in an
amount equal to $ and thereafter maintained in an amount
equal to the lesser of 10% of the principal amount of the
Certificates, 125% of average annual Lease Payments or the
maximum amount of Lease Payments remaining to be paid by the
City during any twelve-month period. Amounts in the Reserve
Fund are to be used for the payment of Lease Payments when such
Lease Payments have been abated in whole or in part or when
other monies of the City are not otherwise available to make
such Lease Payments.
Lease Interruption Insurance. Under the terms of the
Amended Lease, the City is required to obtain rental
interruption or use and occupancy insurance on the Project to
cover a partial or total loss of the use of the structures
constituting the Project in an amount at least equal to the
maximum Lease Payments payable during any two,.fiscal years.
Lease Payment Schedule
Lease Payments are required to be paid by the City under
the Amended Lease on each January 15 and July 15, commencing
July 15, 1988. Pursuant to the Trust Agreement, the Lease
Payments will be deposited in the Lease Payment Fund and
applied to pay the principal and interest represented by the
Certificates in accordance with the following schedule:
1739031/2
8
Certificate Principal Interest Total
Payment Dates Component Component Payment
Total
* To be funded partially by proceeds of the Certificates.
** Represents mandatory prepayments.
*** Final Certificate Payment Date.
1739031/2
ESTIMATED SOURCES AND USES OF FUNDS*
The proceeds to be received from the sale of the
Certificates (including accrued interest as described below)
and certain monies relating to the 1985 Certificates are
anticipated to be applied as follows:
Sources of Funds
Principal amount of Certificates .................. ~
1985 Funds [to be described] ......................
Total Sources .................................. ~
Uses of Funds
Deposit to the Escrow Fund ........................ $
Deposit to Project Fund ...........................
Deposit to Lease Payment Fund .....................
Deposit to Reserve Fund ........................... '
Total Uses ..................................... *
* Subject to change.
(1) The above-described de{~6~l~lus , of accrued interest from
February 1, 1988 to ~bru~a!~y , 1988 equals Capitalized Interest for
the period February i~1~---r988 t~' .
(2) Estimated reinvestment rate of % on Lease Payment Fund, Reserve
Fund, and Project Fund.
THE PROJECT
Since its incorporation in 1982, the City has occupied
leased space in a commercial office complex.
In 1984, a subcommittee of the City Council undertook a
review of potential sites for construction of a Civic Center to
provide adequate space for City needs as well as for Dublin
Police Services, a contract service of the Alameda County
Sheriff's Department.
In 1986, the City purchased a 10 acre site adjacent to a
23 acre sports park currently under the jurisdiction of a
special district. The City anticipates obtaining title to the
park property on July 1, 1988 as part of an agreement with the
Dublin San Ramon Services District and the City of San Ramon.
See "CITY OF DUBLIN - Assumption of Fire and Park Services from
Dublin San Ramon Services District."
The City Council approved the final schematic design on
January 28, 1987. The design consists of two-semicircular
1739031/2
10
wings with a central courtyard. One wing contains a City
Council chamber, administrative offices, and a regional meeting
room. The second wing is designed as a police facility. This
building contains a dispatch area, administrative offices,
evidence room, training area, emergency operations center and
other support facilities.
The construction contract was awarded to Dickman-Nourse,
Inc. ("Dickman-Nourse") by the City Council on December 21,
1987. The Contractor completed bonding and insurance
requirements and was given a notice to proceed on January 25,
1988. The City Council conducted a formal groundbreaking on
Saturday, January 30, 1988. The contract calls for substantial
completion by April 2, 1989.
Dickman-Nourse Inc., Mountain View, California, was formed
in July 1985 through the merger of Dickman Builders, inc. and
Engstrum and Nourse. The firm reports that they do
approximately $24 million of business each year focusing on 6
to 7 projects at a time which range in value between $2 million
and $12 million.
The two firms which have emerged as Dickman-Nourse have a
long history of constructing projects in the Bay Area. Dickman
Construction Inc. was established in 1953 and changed its name
to Dickman Builders Inc. in 1966. Engstrum & Nourse was formed
in 1955. Dickman-Nourse focuses on public or quasi-public
construction projects.
The following outline identifies some of the projects that
Dickman-Nourse has completed:
Project Owner Cost
(in millions)
Enqstrum & Nourse
Primate Discovery Center
Braun Music Center
& Campbell Recital Hall
San Francisco Zoo
Stanford University
$5.3
8
Dickman Builders Inc
Collider Experiment Hall
Center Core Hospital
Menlo Park
Building 66-Laboratory
Foster City Elementary
Stanford University
Veterans Administration
University of California
at Berkeley
San Mateo School District
8.5
16.4
8.0
2.9
1739031/2
11
Dickman-Nourse, Inc.
Ginzton Laboratory
Environ Safety Facility
Life Science Bldg.
Bulk Mail Center-Richmond
Stanford University 1.2
Stanford University 3.196
University of California
at Berkeley 6.753
United States Post Office 3.2
RISK FACTORS
The following factors, along with the other information in
this Official Statement, should be considered by potential
investors in evaluating purchase of the Certificates.
Lease Not a General Obliqation
The obligation of the City to make Lease Payments does not
constitute an obligation of the City for which the City must
levy or pledge any form of taxation or for which the City has
levied or pledged any form of taxation, nor does it constitute
a debt or indebtedness of the City, the State of California or
any of its political subdivisions, within the meaning of any
constitutional or statutory debt limitation or restriction.
City's Lease Payments
The City's Lease Payments and other payments.due under the
Amended Lease (including payment of costs of improvements,
repair and maintenance of the Project, taxes and other
governmental charges and assessments levied against the
Projects) are not secured by any pledge of taxes or other
revenues of the City, but are payable from any funds lawfully
available to the City. In the event the City's revenue sources
are less than its total obligations, the City could choose to
fund other municipal services before making Lease Payments.
The same result could occur if, because of State Constitutional
limits on expenditures, the City is not permitted to
appropriate and spend all of its available revenues. For a
discussion of the City's° current appropriation limits, see
"CONSTITUTIONAL AND STATUTORY LIMITATIONS ON TAXES AND
APPROPRIATIONS."
No Liability by the Lessor to the Owners
Except as expressly provided in the Trust Agreement, the
Lessor shall not have any obligation or liability to the Owners
of the Certificates with respect to the payment when due of the
Lease Payments by the City, or with respect to the observance
or performance by the City of other agreements, conditions,
1739031/2
12
covenants and terms required to be observed or performed by it
contained in the Amended Lease or the Trust Agreement, or with
respect to the performance by the Trustee of any obligation
required to be performed by it contained in the Trust Agreement.
Limited Recourse on Default
If the City defaults on its obligations to make Lease
Payments with respect to the Project, the Trustee, as assignee
of the Lessor, may retain the Amended Lease and hold the City
liable for all Lease Payments on an annual basis and will have
the right to re-enter and re-let the Project. Such re-entry
and re-letting shall not effect a surrender of the Amended
Lease. Alternatively, the Trustee may terminate the Amended
Lease and proceed against the City to recover damages pursuant
to the Amended Lease. Due to the specialized nature of the
Project, no assurance can be given that the Trustee will be
able to re-let the Projects so as to provide rental income
sufficient to make principal and interest payments with respect
to the Certificates in a timely manner, and the Trustee is not
empowered to sell the Project for the benefit of the Owners of
the Certificates. Any suit for money damages would be subject
to limitations on legal remedies against cities in California,
including a limitation on enforcement of judgments against
funds needed to serve the public welfare and interest. See
"APPENDIX B - SUMMARIES OF PRINCIPAL LEGAL DOCUMENTS -- The
Amended Lease -- Default by City."
Abatement
In the event the construction of the Project is not
completed or in the event of loss or substantial interference
in the use and possession of all or any portion of the Project
by the City caused by material damage or destruction to or
condemnation of the Project, Lease Payments will be subject to
abatement. In the event the Project could not be replaced
during the period of time that proceeds of the City's rental
interruption insurance will be available in lieu of Lease
Payments plus the period for which funds are available from the
Reserve Fund, or in the event that casualty insurance proceeds °
or condemnation proceeds are insufficient to provide for
complete repair or replacement of the Project or prepayment of
the Certificates, there could be insufficient funds to cover
payments to Owners in full.
No Acceleration Upon Default
If the City defaults on its obligations to make Lease
Payments, the Trustee may have limited ability to re-let the
Project so as to preserve the tax exempt nature of the interest
1739031/2
13
component of the Lease Payments and the Certificates. In the
event of a default, there is no available remedy of
acceleration of the total Lease Payments due over the term of
the Amended Lease. The City will only be liable for Lease
Payments on an annual basis, and the Trustee would be required
to seek a separate judgment each year for that year's Lease
Payments.
Insolvency or Bankruptcy of the Lessor
Title to the Project will be held by the Lessor throughout
the term of the Amended Lease. Therefore, the title to the
Project may be considered property of the estate of the Lessor
which may be disposed of by abankruptcy court in the event of
a bankruptcy, insolvency or similar proceeding by or against
the Lessor.
CONSTITUTIONAL AND STATUTORY LIMITATIONS ON TAXES
AND APPROPRIATIONS
Article XIIIA of the California Constitution limits the
taxing powers of California public agencies. Article XIIIA
provides that the maximum ad valorem tax on real property
cannot exceed one percent of the "full cash value" of the
property, and effectively prohibits the levying of any other ad
valorem property tax exceptl as discussed below. "Full cash
value" is defined as the County Assessor's valuation of real
property as shown on the 1975~76 tax bill under "full cash
value" or, thereafter, the appraised value of real property
when purchased, newly constructed, or a change in ownership has
occurred after the 1975 assessment. The full cash value is
subject to annual adjustment to reflect inflation at a rate not
to exceed two percent or a reduction in the consumer price
index or comparable local data, or to reflect reductions in
property value caused by damage, destruction or other factors.
The foregoing limitation does not apply to ad valorem taxes
or special assessments to pay the interest and redemption
charges on any indebtedness approved by the voters before
July 1, 1978 or any bonded indebtedness for the acquisition or
improvement of real property approved by two-thirds of the
votes cast by the voters voting on the proposition.
Article XIIIB of the California Constitution limits the
amount of appropriations of the state and of local governments
for "proceeds of taxes" to the amount of appropriations of the
entity for the prior year, adjusted for changes in the cost of
living, population and services provided. The City had
appropriation limits of $9,670,616 for 1987-88 and $7,672,746
1739031/2
14
for 1986-87 compared to actual appropriations subject to such
limits of $7,806,431 and $6,782,995, respectively.
Recent Initiative Statute Affecting Local Taxes
On November 4, 1986, California voters approved an
initiative statute known as Proposition 62. This statute
(i) requires that any tax for general governmental purposes
imposed by local governments be approved by resolution or
ordinance adopted by a two-thirds vote of the governmental
entity's legislative body and by a majority vote of the
electorate of the governmental entity; (ii) requires that any
special tax (defined as taxes levied for other than general
governmental purposes) imposed by a local governmental entity
be approved by a two-thirds vote of the voters within that
jurisdiction; (iii) restricts the use of revenues from a
special tax to the purposes or for the service for which the
special tax was imposed; (iv) prohibits the imposition of ad
valorem taxes on real property by local governmental entities
except as permitted by Article XIIIA of the California
Constitution; (v) prohibits the imposition of transaction taxes
and sales taxes on the sale of real property by local
governments; (vi) requires that any tax imposed by a local
government on or after August 1, 1985 be ratified by a majority
vote of the electorate within two years of the adoption of the
initiative or be terminated by November 15, 1988;
(vii) requires that, in the event a local government fails to
comply with the provisions of this measure, a reduction in the
amount of property tax revenue allocated to such local
government occur in an amount equal to the revenues received by
such entity attributable to the tax levied in violation of the
initiative~ and (viii) permits these provisions to be amended
exclusively by the voters of the State of California.
CITY OF DUBLIN FINANCIAL INFORMATION
City Budqet
The City adopts a final budget annually by June 30 for the
following fiscal year. The City Manager prepares a proposed
budget which is presented to the Council. The proposed budget
may be modified by the City Council of the City (the "Council")
during the budget hearing process. After the hearings, a final
budget is adopted.
The 1987-88 proposed budget was presented to the Council on
June 16, 1987. Budget hearings commenced on June 23, 1987 and
were completed on June 23, 1987. The Council adopted a budget
on June 23, 1987.
1739031/2
15
Throughout the fiscal year, all revenues and appropriations
are subject to review and since the budget must remain
balance, any overall reduction in revenues would require a
reduction in appropriations,
1739031/2
16
FISCAL
YEARS
CITY OF DUBLIN
GENERAL FUNDSBUDGETS
1985-86 THROUGH FISCAL
YEAR
1987-88
General Government
_ Actual
1985'86
Actual
1986-87
Approved
1987-88
Cit~ Council
City Manager
Legal Services
Finance
Building Management
Insurance
Elections
Non-Departmental
Public Safety
50,420.00 ~ 62,075.00
193,230.00 222,953.00
76,167.00 80,510.00
50,946.00 117,855.00
106,570.00 1,499,101.00
104,500.00 103,878.00
-- 4,300.00
-- 200,000.00
88,880.00
255,438.00
76,400.00
138,970.00
1,398,490.00
136,600.00
5,000.00
341,402.00
Police Services
Crossing Guards
Animal Control
Traffic Signals & Safety
Disaster Preparedness
Transportation
1,214,110.00
16,600.00
48,800.00
59,600.00
26,700.00
1,584,915.00
13,800.00
45,548.00
42,200.00
23,600.00
1,849,634.00
22,200.00
42,000.00
9,500.00
20,250.00
Street Maintenance
Public Works Administration
Street Sweeping
Street Tree Maintenance
Street Landscape Maintenance
Paratransit Services
Health & Welfare Services
134,786.00
73,740.00
53,400.00
112,030.00
13,061.00
188,410.00
122,002.00
74,400.00
132,450.00
15,694.00
104,400.00
159,318.00
52,500.00
67,500.00
224,050.00
14,586.00
Vector Control Services
Culture & Leisure Services
8,925.00
6,000.00
15,500.00
Library Services
Recreation
Park Maintenance
Senior Citizen Activities
Community Cable TV
69,741.00
264,430.00
27,500.00
40,000.00
91,984.00
358,977.00
26,300.00
103,500.00
409,000.00
66,900.00
20,000.00
1739031/2
17
Community Development
Planning
Building Safety
Engineering
SUBTOTAL GENERAL FUND
Contingency
TOTAL GENERAL FUND
REVENUES OF THE GENERAL FUND
TOTAL G/F BUDGETED
EXPENDITURES
Transfer to other funds
Transfer from other funds
Excess Resources <Deficiency>
281,990.00
262,450.00
515,127.00
$3,804,823.00
.00
$3,804,823.00
409,780.00
287,700.00
489,589.00
$6,204,021.00
.00
$6,204,021.00
521,530.00
329,892.00
453,650.00
$6,927,090.00
.00
$6,927,090.00
$7,771,367.00 $8,450,679.00 $8,984,760.00
(3,804,823.00) (6,204,021.00) (6,927,090.00)
(4,238,056.00) (5,095,151.00) (893,714.00)
22,876.00 832,500.00 415,660.00
($248,636.00) ($2,015,993.00) $1,579,616.00
.¥
The amounts of the Transfers to Other Funds shown on the General Fund
Approved Budgets statement were prepared during the budget process.
Figures showing the actual amounts transferred are presented on the
Statement of Revenues, Expenditures and Changes in Fund Balance General
Fund.
The Civic Center project is accounted for in the Dublin Information
Inc. Enterprise Funds (DII). The members of the Board of Directors of
DII are the City Council members plus the City Manager.
The Fund Balance Transfers on the Statement of Revenues, Expenditures
and Changes in Fund Balances General Fund, represent the dedication of
a portion of the General Fund, Fund Balance for the Civic Center
project and the delineation of the reserves from the General Fund to
the Enterprise Fund of the Civic Center Project. Below is a detail
analysis of each transfer. These amounts are taken directly from the
audited financial statements which are a part of this Official
Statement:
Fund Balance Transfer Out in the General Fund for 6/30/87 equal
$500,000. This is the transfer of General Fund cash to the Civic
Center Project and was shown as Fund Balance Transfers In within
the Civic Center Project.
The Operating Transfers Out in the General Fund for 6/30/87 equal
$886,347.00 and represent advances to various Capital Improvement
projects. This amount is reflected in the audit on page #4.
1739031/2
18
Fund Balance Transfer Out for 6/30/86 equals $3,125,115, and are
shown as Fund Balance Transfers In as detailed below:
1. Reserves Transferred to DII $3,100,000.00
2. Cash to establish the Internal Service Fund 25,115.00
$3,125,115.00
The Operating Transfers Out in the General Fund for 6/30/86 equal
$3,594,211 and represent advances to various Capital Improvement
projects. This amount is shown in the Audit for the Year Ended
June 30, 1986 page #4.
Changes in the Fund Balance from one year to the next are detailed
in the audit for each respective year and reproduced below:
GENERAL FUND
Fund Balance 6/30/85
Trust Fund Refundable deposit
Due to other funds
Prepaid expenses
Reserve accrual leave
Shannon Center Lease
ADJUSTED FUND BALANCE 6/30/85
$8,317,722.00
17,399.00
(47,320.00)
(7,139.00)
24,700.00
2,000.00
$8,307,362.00
Fund Balance 6/30/86
Reserve accrual leave
Other
ADJUSTED FUND BALANCE 6/30/87
$6,123,739.00
11,504.00
11.00
$6,135,254.00
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19
General Fund Financial Summary
The information contained in the following table is
summarized from audited financial statements for fiscal years
1984-85 through 1986-87.
1739031/2
20
FOR
CITY OF DUBLIN
STATEMENT OF REVENUES, EXPENDITURES AND
CHANGES IN FUND BALANCES
GENERAL FUND
THE YEARS ENDED JUNE 30, 1985, 1986 AND
1987
REVENUES
Taxes
Licenses and permits
Intergovernmental
Charges for Services
Use of Money and Property
Fines and Forfeitures
Other Revenues
EXPENDITURES
General Government
Public Safety
Highways and Streets
Health and Welfare
Community Development
Culture and Leisure
Capital Outlay
Revenue in Excess or
<less> than Expenditures
Other Financing Sources
Operating transfers in
Operating transfers out
(uses)
REVENUES AND OTHER
FINANCING SOURCES IN
EXCESS OR (LESS) THAN
EXPENDITURES AND OTHER
USES
FUND BALANCE TRANSFER
FUND BALANCE BEGINNING
FUND BALANCE END OF YEAR
6/30/85 6/30/86 6/30/87
$4,738,818.00 $5,062,103.00
333,982.00 410,243.00
785,881.00 1,057,247.00
260,217.00 682,324.00
909,651.00 956,215.00
15,162.00 13,524.00
149,099.00 24,147.00
$7,192,810.00 $8,205,803.00
$361,392.00 *542,616.00
1,317,734.00 1,522,434.00
65,571.00 335,819.00
· 00 2,461.00
602,567.00 961,541.00
215,696.00 295,191.00
30,308.00 32,824.00
$2,593,268.00 $3,692,886.00
4,599,542.00
26,978.00
(1,099,806.00)
($1,072,828.00)
3,526,714.00
.00
4,791,008.00
$8,317,722.00
4,512,917.00
22,786.00
(3,594,211.00)
($3,571,425.00)
941,492.00
(3,125,115.00)
8,307,362.00
$6,123,739.00
$5,837,811.00
586,320.00
795,353.00
593,407.00
773,939.00
15,690.00
37,890.00
$8,640,410.00
$2,208,131.00
1,611,762.00
429,287.00
2,985.00
1,062,858.00
349,863.00'
36,734.00
$5,701,620.00
2,938,790.00
.00
(886,347.00)
($886,347.00)
2,052,443.00
(500,000.00)
6,135,254.00
$7,687,697.00
Source: Compiled from the City's financial statements for the individual
years.
1739031/2
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A copy of the City's Audited General Purpose Financial
Statements for the fiscal year ended June 30, 1987 is attached
as Appendix A to this Official Statement. Audited financial
statements for prior years are available upon request from the
Finance Department of the City.
CITY OF DUBLIN
General
The City of Dublin is located in the Tri-Valley in Alameda
County. The City is bordered to the south by the City of
Pleasanton and to the north by the City of San Ramon. The City
is 395 miles north of Los Angeles and 35 miles southeast of
San Francisco, and is only a twenty-five minute drive from San
Jose and Oakland.
The City was incorporated on February 1, 1982.
Council has five members all elected at large.
The City
Interstate Freeways 580 and 680 intersect in Dublin and
allow easy access to the stable economy of the East Bay.
Residential areas are located 125 to 360 feet above sea level
with average temperatures of 80° in the summer and 60° in the
winter.
City Growth
At the time of its incorporation in 1982, the City covered
4.1 square miles. Since that time, the City has annexed 78.74
acres of land to the west which is primarily residential in
nature and 2,713.47 .acres of primarily governmentally-owned
land to the east and now covers 8.5 square miles.
Population
The following table presents population data for the City,
Alameda County and the State of California since 1983.
CITY, COUNTY AND STATE POPULATION DATA
City of Alameda State of
Year Dublin County California
1983 15,103 1,155,500 24,944,700
1984 15,557 1,172,300 25,415,300
1985 15,608 1,187,000 25,857,464
1986 17,793 1,208,200 26,636,961
1987 21,477 1,214,100 27,292,700
Source: California Department of Finance Annual Reports.
1739031/2
22
Labor Relations
The City currently contracts with public
entities to provide many of its services.
and private
The City of Dublin has 22 regular positions. The City's
Recreation Department uses temporary part-time employees. Its
staffing level varies between 10 - 15 employees. Additionally,
the City has 43 persons providing services pursuant to four
contracts.
The City does not have
represent City employees.
any labor
organizations which
Property Taxation
City property taxes are assessed and collected by Alameda
County (the "County") at the same time and on the same rolls as
the County, all special district and school district taxes are
collected. Assessed valuations are based upon 100% of market
value.
For assessment and collection purposes, property is
classified either as "secured" or "unsecured", and is listed,
accordingly, on separate parts of the assessment roll. The
"secured roll" is that part of the assessment roll containing
State assessed property, and property the taxes on which are a
lien on real property, sufficient, in the opinion of the County
Assessor, to secure payment of the taxes. All other property
is assessed on the "unsecured roll."
The following table presents a summary of assessed
valuations in the City for fiscal years 1982-83 through 1987-88.
ASSESSED VALUE
Fiscal
Year SECURED UNSECURED EXEMPT
1982-83
1983-84
1984-85
1985-86
1986-87
1987-88
$452,445,772
508,609,723
549,919,514
635,026,686
760,496,777
~ 845,253,961
$52,149,934
62,296,499
64,760,035
74,740,855
82,214,150
~ 85,253,484
$20,395,200
21,061,600
21,077,000
21,938,000
22,332,800
~23,660,000
Source: Auditor-Controller of Alameda County.
1739031/2
23
Assumption of Fire And Park Services From Dublin San Ramon
Services District
Prior to incorporation, the Dublin area received some
services from the Dublin San Ramon Services District
("DSRSD"). This special community services district was
organized to provide park, fire, water and sewer services to
the City of Dublin and a portion of the City of San Ramon. The
two cities have negotiated with representatives of the special
district to allow the respective cities to assume
responsibility for the provision of general fund municipal
services.
On July 1, 1988, DSRSD will transfer title and
responsibility for the parks and aquatics facilities it owns
within the City of Dublin, to the City, including approximately
37 acres of improved parkland, a community center and a
community swim center.
DSRSD will also .transfer responsibility for the provision
of fire suppression and prevention services to the newly formed
Dougherty Regional Fire Authority (the "Authority"). The
Authority is a joint powers authority formed by the Cities of
Dublin and San Ramon and will be governed by city council
members from each city. The Authority's sole source of income
will be derived from the two cities.
In order to support these additional obligations, the
Cities of Dublin and San Ramon will receive all the applicable
revenues and reserves from DSRSD. City staff have reviewed the
financial projections with the DSRSD Finance Director and the
Alameda County Auditor. The City estimates that it will incur
$2,085,000 in additional expenses as a result of the transfer
of service responsibility. The current estimates project that
the City will receive $2,155,000 in annual revenues and a
one-time transfer of $2,650,000 in reserves from DSRSD. DSRSD
has further agreed to transfer its appropriations limitation to
the Cities of Dublin and San Ramon'on a proportionate basis.
The appropriations limit transfer to the City of Dublin will be
$1,992,548. Those appropriations fnnded by proceeds of taxes
and subject to the limitations are estimated at $2,032,000, or
approximately $39,452 more than the .appropriations limit
transferred by DSRSD to the City.
This transaction will consolidate the provision of
municipal services to area residents. DSRSD will continue to
provide water and sewer services. The majority of the revenues
being transferred are in the form of an increased share of
property tax revenue.
1739031/2
24
CITY OF DUBLIN
DIRECT AND OVERLAPPING BONDED DEBT STATEMENT
1987-88 Assessed Valuation: $930,507,445
DIRECT AND OVERLAPPING BONDED DEBT:
% Applicable
Alameda County General Fund Obligations
Alameda County Superintendent of Schools
Oakland-Alameda County Coliseum Authority
Bay Area Rapid Transit District
Alameda County Flood Control
District, Zone #7
South County Joint Community
College District
Amador Valley Joint Union High School
District and Certificates of
Participation
Livermore Valley Joint Unified
School District and Certificates
of Participation
Murray School District and
Certificates of Participation
Pleasanton'Joint School District
and Certificates of Participation
Dublin-San Ramon Community Services
District, I.D. #1
Bay Area Pollution Control Authority
City of Dublin Certificates of Participation
TOTAL GROSS DIRECT AND OVERLAPPING
BONDED DEBT
Less: Oakland-Alameda County
Coliseum Authority
TOTAL NET DIRECT AND OVERLAPPING
BONDED DEBT
1,993%
1.993
0.997
0.758
12,572
4.772
21.213-21.838
0.003
40.501-41.526
0.090-0.097
57,417
0,354
100.
(100% self-supporting)
Debt 2/1/88
3,278,783
186,943
168,259
3,516,741
176,636
57,502
1,004,810
283
564,600
646
180,863
2,188
11,615,000(1)
$20,753,254
168,259
$20,584,995
(1) Excludes refunding certificates of participation to be sold.
Ratios to Assessed Valuation:
Direct Debt 1.25%
Total Gross Debt 2.23%
Total Net Debt 2.21%
SHARE OF AUTHORIZED AND UNSOLD BONDS:
Amador Valley Joint Union
High School District .................................. $ 74,882
Murray School District .................................. $289,556
Pleasanton Joint School District ........................ $ 778
STATE SCHOOL BUILDING AID REPAYABLE AS OF 6/30/87:
Source: California Municipal Statistics, Inc.
$4,082,008
1739031/2
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THE CITY'S ECONOMY
Economic Structure
A_Ihe City of Dublin has approximately ~70 retail outlets
serving the Tri-Valley area ranging from large department
stores and discount stores to small individualized service
stores. The Stoneridge Shopping Center is located across 1-580
approximately one mile from the City of Dublin.
EmPloyment
The following table shows the major employers in the City.
MAJOR EMPLOYERS
Employer
Mervyn's/Department Store
Lucky Stores Inc./
Headquarters for Retail Grocery Co.
Hexcel Corporation/Mfg.
Structural Honeycomb Resins,
Adhesives, & Glass Fabrics
International Clinical Laboratories, Inc./ 180
Medical Laboratory
Toys R Us/Retail Toy Store 126
Automation Electronics Corp./ 100+
Manufacturer's of Telephone Mgt. Systems &
Call Sequences
Tri-Valley Herald/Daily Newspaper 100
Unisource/Wholesale Paper Products 100
Distribution
Target Stores/Retail Department Store 100
Micro Porcelain Dental Laboratory, Inc./ 90
Dental Laboratory
Employees
200
200
180
Source: City of Dublin:
1739031/2
26
The following table shows employment figures for Alameda
nty for the years 1981 through 1986.
ALAMEDA COUNTY EMPLOYMENT
Annual Averages (in thousands)
1981 1982 1983 19841 1985 1986
Civilian Labor Force 579.6 604.0 603.6 608.3 611.8 638.0
Employment 540.2 547.5 551.9 566.8 571.4 599.3
Unemployment 39.4 56.4 51.7 41.4 40.4 38.7
Unemployment Rate 6.8% 9.3% 8.6% 6.8% 6.6% 6.1%
Cou
1 1984 figures based on monthly.averages through September 1984.
Not adjusted for seasonal changes.
Source: California Employment Development Department.
CITY OF DUBLIN
TAXABLE TRANSACTIONS
(in thousands of dollars)
1983 1984 1985 1986
Apparel Stores 5 7,925.00
General Merchandise Stores 40,469.00
Drug Stores
Food Stores 18,049.00
Eating and Drinking Places 20,741.00
Home Furnish and Appliances 10,083.00
Building Material and
Farm Implements 16,880.00
Auto Dealers and
Auto Supplies 69,774.00
Service Stations 21,101.00
Other Retail Stores 31,825.00
Retail Stores Totals 236,847.00
All Other Outlets 47,836.00
Total All Outlets 5284,683.00
, 8,703.00 * 9
39,703.00 39
6,402.00 6
26,052.00 32
23,480.00 25
19,869.00 22
20,870.00 25
76,998.00 93
21,224.00 21
31,472.00 40
274,773.00 316
51,931.00 50
3326,704.00 5366
,570.00 $11,681.00
,534.00 39,746.00
,414.00 7,042.00
,796.00 32,780.00
,170.00 24,356.00
,150.00 23,439.00
,098.00 27,705.00
,116.00 128,390.00
,869.00 15,088.00
,471.00 38,409.00
,188.00 348,636.00
,213.00 59,131.00
,401.00 5407,767.00
Source: California State Board of Equalization.
1739031/2
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Building and Construction
The following table" shows the value
issued in the City between 1983 and 1987.
CITY OF DUBLIN
BUILDING PERMIT VALUATION
(in thousands of dollars)
of building permits
Residential
New single-dwelling
New multi dwelling
Additions, alterations
1983' 1984 1985 1986 1987
Total Residential
0 $ 2,216 $21,954 $43,931 $28,482
0 21,018 1,325 1,560 32,974
218 1,415 761 1,016 1,442
Non-Residential
New commercial
New industrial
Other
Additions, alterations
218 24,649 24,040 46~508 62,898
Total Non-residential
TOTAL VALUATION
0 2,870 2,443 2,857 4,309
783 0 9,307 1,290 350
63 844 571 911 782
1,353 3,132 4,978 4~922 11,509
Number of new dwelling unit
Single dwelling
Multi-dwelling
2~199 6,846 17,299 9,980 16,950
$2,417 $31,495 $41,339 $56,488 79,848
0 20 203 388 251
0 625 40 26 756
Total Units 0 645 243 414 1007
Source: Security Pacific National Bank, "California Construction Trends"
and City of Dublin Building Division.
* First full year of operation of City.
Community Faci 1 ities
The Dublin Library is one of the 12 branches of the Alameda
County Library System. The Library is a well-used resource in
the community and, as a result of City funding and support, the
facility is open seven days a week. The entire system provides
access to approximately 800,000 volumes.
1739031/2
28
The City also operates Shannon Community Center. This
facility provides space to accommodate various community
meetings, instructional classes, and recreational activities as
well as staff offices. The facility is also rented to area
residents for social functions, such as wedding receptions and
public dances. Shannon Center is one of' several recreation
sites which will be transferred to the City on July 1, 1988.
See "CITY OF DUBLIN - Assumption of Fire And Park Services From
Dublin San Ramon Services District."
In early 1988 the City of Dublin proceeded with the
alteration and renovation of a former schooll facility. Once
completed this building will house senior citizens' programs.
The location is a former school multi-purpose room which
contains kitchen facilities and will be structured as a senior
citizen drop-in program.
In addition to the public facilities located in Dublin,
several privately owned businesses provide recreational
opportunities for area residents. Due to the city's location,
it has become a central point for the location of various
entertainment-related businesses. This includes an ice skating
rink, a bowling alley, and two large movie theater complexes
containing a total of 12 screens.
HosDitals
The City of Dublin does not have a hospital within City
limits; however, nearby hospitals such as Eden Hospital located
in CastroValley, Valley MemorialHospital located in Livermore
and Kaiser Permanente Hospital located in Walnut Creek are
among those serving the City of Dublin.
Churches
Valley Christian Center
Family Bible Church
Parkway Baptist Church
St. Raymond's Catholic Church
Eagles Nest Christian Fellowship of No. California
California Community Church
Church of Jesus Christ of Latter-Day Saints
Lutheran Church of the Resurrection - ALC
St. Phillip Lutheran Church
John Knox Presbyterian Church
1739031/2
29
Financial Institutions
Community First National Bank
Hibernia Bank
Sanwa Bank of California
Tri-Valley National Bank
Wells Fargo Bank
Homestead Savings
Great Western Bank
Bank of America
Education
A new unified school district has been created as a result
of an election conducted in November of 1987. The new district
will provide kindergarten through 12th grade education within
the City. Its boundaries are contiguous with those of the
City. The new district will formally assume responsibilities
beginning July 1, 1988.
The new district will operate Dublin High School, Wells
Intermediate School, and Fredericksen, Nielsen, and Murray
Elementary Schools. These schools will serve students from
kindergarten through 12th grade.
There are also two private schools located within the
City. Valley Christian Center operates the Valley Christian
School, a kindergarten through 8th grade program, located at a
former public school site. The Valley Christian Center also
operates a high school located on Christian Center property in
the western foothills. St. Raymond.'s Catholic Church has
recently implemented a school which operates a kindergarten
through 5th grade program. St. Raymond's has plans to increase
its curriculum through the 8th grade in the upcoming years.
[Information to come on colleges/universities.]
Transportation
The City of Dublin is located-at the intersection of
Interstate 580 and Interstate 680. These interstates serve as
major transportation corridors to and from the City. CalTrans
has begun planning for the widening of Interstate 680 which
runs North/South through the local valley. Oakland
International Airport is an approximately 20 minute drive.
BART has approved the extension of a line from Hayward to
the City of Dublin. Current projections are that the service
could be in place by as early as 1995. The new Dublin station
will be located approximately one mile west of the Project.
BART currently provides express bus service from the Cityto
its Hayward station.
30
1739031/2
Local bus service is provided by the Livermore Amador
Valley Transit Authority (LAVTA). This is a joint powers
authority with representatives from the cities of Dublin,
Livermore and Pleasanton and from Alameda County. The City
also participates in a joint powers authority which provides
Para-Transit Services to its elderly and handicapped residents.
The City Council undertook a comprehensive review of all
major arterials after incorporation. The purpose of the review
was to identify ultimate roadway configurations under projected
development scenarios. The review has provided the basis for
several capital improvement projects. The 1986-91 Capital
Improvement Program identifies nearly $12.5 million of street
improvement projects, with approximately $5.6 million of
projects anticipated to be complete by the end of the 1987-88
fiscal year.
Utilities
Gas & Electricity - Pacific Gas and Electric
Telephone - Pacific Bell
Cable Television - Viacom Cablevision
Garbage Service - Dublin-Livermore Disposal, which is a
division of Oakland Scavenger Company ("OSC"). OSC is
currently owned by Waste Management Inc..,. which provides
collection services and operation of the sanitary landfill.
The landfill is not located in the City of Dublin.
Water and Sewer - These services are provided by DSRSD.
Parks and Recreation
The City's Recreation Department is responsible for
providing recreation programs for the residents of the City.
Programs are offered on a quarterly basis and are publicized
through the "Schedule of Recreation Classes and Programs"
mailed to residents four times a year.
i739031/2
31
The Department currently offers programs in the following
areas:
Preschool Classes (2-5 years)
Leisure Enrichment Classes (All ages)
Afterschool Playground Program (1-6 grades)
Summer Playground Program (6-12 years)
Summer Youth Employment Program (13-21 years)
Special Events
Volleyball Leagues (Adult)
Teen Programs (trips & dances)
Additionally, the Department is in the
developing aquatic and senior citizen programs.
process of
There are currently 69 acres of developed parkland within
the City of Dublin, as follows':
Dublin Sports Grounds
Mape Park
Shannon Park & Community Center
Stagecoach Park
Valley Community Swim Center
In addition, there are three new neighborhood parks under
construction: Kolb - 5 acres, Dolan - 5 acres, and Alamo Creek
- 8 acres. ~ 100-acre site has also been designated for a
future park. Within the next four years it is anticipated that
there will be 187 acres of developed parkland within the City.
LESSOR
[TO COME]
1739031/2
32
UNDERWRITING
The Certificates will be purchased by Rauscher Pierce
Refsnes, Inc., San Francisco, California (the "Underwriter").
The Underwriter has agreed to purchase the Certificates at a
price equal to $ , plus accrued interest. The
initial public offering prices set forth on the cover page may
be changed by the Underwriter. The Underwriter may offer and
sell the Certificates to certain dealers and others at prices
lower than the public offering prices set forth on the cover
page hereof. The Contract of Purchase between the City and the
Underwriter provides that the Underwriter will purchase all of
the Certificates if any are purchased.
RATING
Moody's Investors Service ("Moody's") has given the
Certificates a rating Of . Any desired
explanation of the significance of such rating should be
obtained from the rating agency furnishing the same. The City
furnished to such rating agency certain information and
materials with respect to the Certificates and the City.
Generally, rating agencies base their ratings on the
information and materials so furnished to them and on
investigations, studies and assumptions by the rating
agencies. There is no assurance that such rating will be
retained for any given period of time or that it will not be
lowered or withdrawn entirely if, in the judgment of the agency
originally establishing the rating, circumstances so warrant.
Any such change in or withdrawal of such rating could have an
adverse effect on the market price of the Certificates.
TAX EXEMPTION
In the opinion of Jones Hall Hill & 'White, A Professional
Law Corporation, San Francisco, California, subject, however,
to the qualifications set forth below, under existing law, the
portion of the Lease Payments designated as and comprising
interest and received by the owners of the Certificates is
excluded from gross income for federal income tax purposes,
such interest is not an item of tax preference for purposes of
the federal alternative minimum tax imposed on individuals and
corporations, provided, however, that, for the purpose of
computing the alternative minimum tax imposed on such
corporations (as defined for federal income tax purposes), such
interest is taken into account in determining adjusted net book
income (adjusted current earnings for taxable years beginning
after December 31, 1989).
1739031/2
33
The opinions set forth in the preceding sentences are
subject to the condition that the City comply with all
requirements of the Internal Revenue Code of 1986 (the "Code")
that must be satisfied subsequent to the delivery of the Lease
Agreement in order that such interest be, or continue to be,
excluded from gross income for federal income tax purposes.
The City has covenanted to comply with each such requirement.
Failure to comply with certain of such requirements may cause
the inclusion of such interest in gross income for federal
income tax purposes to be retroactive to the date of delivery
of' the Lease Agreement. Special Counsel expresses no opinion
regarding other federal tax consequences arising with respect
to the Lease Agreement and the Certificates.
Prospective purchasers of the Certificates should be aware
that (i) with respect to insurance companies subject to the tax
imposed by section 831 of the Code, for taxable years beginning
after December 31, 1986, section 832(b)(5)(B)(i) reduces the
deduction for loss reserves by 15% of the sum of certain items,
including interest payable with respect to the Certificates,
(ii) for taxable years beginning after December 31, 1986 and
before January 1, 1992, interest payable with respect to the
Certificates earned by some corporations could be subject to
the environmental tax imposed by section 59A of the Code,
(iii) for taxable years beginning after December 31, 1986,
interest payable with respect to the Certificates earned by
certain foreign corporations doing business in the United
States could be subject to a branch profits tax imposed by
section 884 of the Code, (iv) passive investment income,
including interest payable with respect to the Certificates,
may be subject to federal income taxation under section 1375 of
the Code for subchapter S corporations that have subchapter C
earnings and profits at the close of the taxable year if
greater than 25% of the gross receipts of such subchapter S
corporation is passive investment income and (v) section 86 of
the Code requires recipients of certain Social Security and
certain Railroad Retirement benefits to take into account, in
determining gross income, receipts or accruals of interest
payable with respect to the Certificates.
In the further opinion of Special Counsel, such interest is
exempt from California personal income taxes.
VERIFICATION OF MATHEMATICAL ACCURACY
independent certified public accountants,
upon delivery'of thg Certificates, will deliver a report on the
mathematical accuracy of certain computations contained in the
schedules provided to them, which are based on assumptions and
1739031/2
34
information provided by the Underwriter on behalf of the City,
relating to the sufficiency of the principal of and interest on
the securities on deposit in the Escrow Fund to pay, when due,
principal of and interest on the 1985 Certificates.
The report of will include the statement
that the scope of their engagement is limited to reviewing the
mathematical accuracy of the computations contained in the
schedules provided to them, and that they have no obligation to
update their report because of events occurring, or data or
information coming to their attention, subsequent to the date
of their report.
LITIGATION
Upon the delivery of the Certificates, the City will
provide its certificate that there is no litigation of any
nature now pending against the City or, to the knowledge of its
officers, threatened, seeking to restrain or enjoin the
execution or delivery of the Amended Lease or Trust Agreement
or the issuance or sale of the Certificates or in any way
contesting the validity of the Amended Lease, Trust Agreement,
or the Certificates or any proceedings of the City taken with
respect to such execution, delivery or sale, or the application
of any monies or security provided for the payment of the Lease
Payments or the use of the Certificate proceeds.
There are several lawsuits and claims pending against the
City. The aggregate amount of uninsured liabilities of the
City which may. result from such suits and claims, as determined
by City Attorney, will not, in the opinion of the City
Attorney, materially affect the City's finances or impair its
ability to pay the Lease Payments.
APPROVAL OF LEGALITY
At the time of the delivery of the Certificates, Jones Hall
Hill & White,~San Francisco, California, Special Counsel, will
deliver its opinion, substantially in the form attached hereto
as Appendix C. Certain legal matters will be passed upon for
the Underwriterby Brown & Wood, San Francisco, California, and
for the City by the City Attorney.
OTHER MATTERS
This Official Statement is not to be construed as a
contract or agreement between the City and the purchasers or
1739031/2
35
any of the Owners of Certificates. Any statement made in this
Official Statement involving matters of opinion, whether or not
expressly so stated, are intended merely as an opinion and not
as representations of fact. The information and expressions of
opinion herein are subject to change without notice and neither
the delivery of this Official Statement nor any sale made
hereunder shall, under any circumstances, create any
implication that there has been no change in affairs in the
City since the date hereof. All references to the Trust
Agreement, the Site Lease, the Amended Lease and the Assignment
Agreement are brief outlines of certain provisions thereof.
Such outlines do not purport to be complete and reference is
made to such documents for a.~ full and complete statement of
such provisions.
The execution and delivery of this Official Statement have
been duly authorized by the City.
CITY OF DUBLIN
By
1739031/2
36
APPENDIX A
June 30, 1987 Audited Financial Statements
1739031/2
A-1
APPENDIX B
[To come from Special Counsel.]
1739031/2
B-1
APPENDIX C
[To come from Special Counsel. ]
1739031/2
C-1
Brown & Wood
Draft of 2-22-88
1988 REFUNDING CERTIFICATES OF PARTICIPATION
(Civic Center Project)
Evidencing and Representing the Fractional
Undivided Interests of the
Owners thereof in Lease Payments to be made by the
CITY OF DUBLIN
CONTRACT OF PURCHASE
March __, 1988
City of Dublin
6500 Dublin Boulevard
Dublin, California 94568
Ladies and Gentlemen:
Rauscher Pierce Refsnes, Inc., as underwriter (the
"Underwriter"), does hereby offer to enter into this Contract
of Purchase with you, the City of Dublin, a municipal'
corporation organized under the laws of the State of California
(the "City") under a Lease (as hereinafter defined) with the
City, for the purchase by the Underwriter and the execution and
delivery to be caused by the City, Dublin Information, Inc.
(the "Lessor") and The Bank of California, N.A., as trustee
(the "Trustee"), of the 1988 Refunding Certificates of
Participation (Civic Center Project), specified below. This
offer is made subject to acceptance by the City prior to 11:59
P.M., San Francisco time, on the date hereof, and, upon such
acceptance, this Contract of Purchase shall be in full force
and effect in accordance with its terms and shall be binding
upon the City and the Underwriter. All terms not defined
herein shall have the meanings set forth in the Official
Statement hereinafter mentioned.
1. Upon the terms and conditions and upon the basis of
the representations herein set forth the 'Underwriter hereby
agrees to purchase and the City agrees to cause the Trustee to
deliver to the Underwriter all (but not less than all) of the
$ aggregate principal amount of the 1988 Refunding
Certificates of Participation (Civic Center Project) (the
"Certificates") to be dated February 1, 1988 and having
maturities and representing interest at the rates set forth in
the Official Statement, at an aggregate purchase price of
$ plus interest accrued thereon to the d~te of
Closingas ~efined in Section 4 hereof. Each Certificate shall
evidence an undivided interest of the owner thereof in lease
payments (the "Lease Payments") to be paid by the City as the
rental price for a civic center complex (the "Project"),
pursuant to and as more particularly described in the Amended
and Restated Lease Agreement (the "Lease"), dated as of
February 1, 1988, between the City, as lessee, and the Lessor.
[The real property to be leased by the City in connection with
the acquisition of the Project is more fully described in the
Site Lease (the "Site Lease"), dated as of February 1, 1988,
between the Lessor and the City.] The Lessor's right to
receive the Lease Payments- and to exercise remedies upon
default have been assigned to the Trustee for the benefit of
the Owners pursuant to the Assignment Agreement (the
"Assignment Agreement"), dated as of February 1, 1988, between
the Lessor and the Trustee. [Pursuant to the Agency Agreement
(the "Agency Agreement"), dated as of February 1, 1988, between
the Lessor and the Lessee, the Lessor irrevocably appoints the
Lessee as its agent in connection with the construction of the
Project.]
The Certificates shall be as described in, and shall be
secured under and pursuant to the Trust Agreement (the "Trust
Agreement"), dated as of February 1, 1988, by and among the
City, the Lessor and the Trustee substantially in the form
previously submitted to the Underwriter with only such changes
therein as shall be mutually agreed upon by the Lessor, the
City and the Underwriter. The Certificates shall represent the
proportionate interests of the Owners, as defined in the Trust
Agreement, in the Lease Payments which the City has covenanted
under the Lease to make, and in moneys held under the Trust
Agreement including moneys held in the Reserve Fund thereunder.
2. The City shall deliver or cause to be delivered to the
Underwriter promptly after your acceptance hereof, two copies
of the Official Statement, dated the date hereof relating to
the Certificates approved for distribution by a resolution of
the City (the Official Statement, including the cover pages,
the appendices thereto and all information incorporated therein
by reference and the Preliminary Official Statement, dated as
of March 1988, are hereinafter referred collectively to as
the "officiAl statement," except that if the Official Statement
has been amended between the date thereof and the date of
Closing referred to in Section 4 hereof, the term "Official
2
Statement" shall refer to the Official Statement as so
amended). The Underwriter agrees that it will not confirm the
sale of any Certificates unless the confirmation of sale is
accompanied or preceded by the delivery of a copy of the
Official Statement.
3. The City represents, warrants and covenants to the
Underwriter that:
(a) The City is and will be at the date of Closing a
municipal corporation duly organized and operating pursuant
to and under the laws of the State of California and has
all necessary power and authority to enter into and perform
its duties under [the Site Lease,] the Lease, [the Agency
Agreement,] the Trust Agreement, the Escrow Deposit and
Trust Agreement, dated as of February 1, 1988, by and
between the City, the Lessor and The Bank of California,
N.A., as Escrow Bank (the "Escrow Agreement") and this
Contract of Purchase (collectively, the "Legal Documents")
and, when executed and delivered by the respective parties
thereto, the Legal Documents will constitute legal, valid
and -binding obligations of the City enforceable in
accordance with their respective terms.
(b) By official action of the City prior to or
concurrently with the acceptance hereof, the City has duly
approved the distribution of the PEeliminar.y Official
Statement and the distribution of the Official Statement,
and has duly authorized and approved the execution and
delivery of, and the performance by the City of the
obligations on its part contained in the Legal Documents
and the consummation by it of all other transactions
contemplated by the Official Statement and this Contract of
Purchase.
(c) The execution and delivery of the Legal Documents
and the approval and execution of the Official Statement
and compliance with the provisions on the City's part
contained herein and therein, will not conflict with or
constitute a breach of or default under any law,
administrative regulation, judgment, decree, loan
agreement, indenture, bond, note, resolution, agreement or
other instrument to which the City is a party or is
otherwise subject, nor will any such execution, delivery,
adoption or compliance result in the creation or imposition
of any lien, charge or other security interest or
encumbrance of any nature whatsoever upon any of the
properties or assets of the City under the terms of any
such law, administrative regulation, judgment, decree, loan
agreement, indenture, bond, note, resolution, agreement or
3
other instrument, except as provided by the Legal Document
and the Assignment Agreement.
(d) Both at the date hereof and at the date of
Closing, the statements and information contained in the
Official Statement relating to the City, its functions,
duties and responsibilities are and will be true, correct
and complete in all material respects and the Official
Statement (including any financial and statistical data
contained therein) does not and will not omit any statement
or information which is necessary to make such statements
and information therein, in the light of the circumstances
under which they were made, not misleading in any material
respect.
(e) Except as may be required under blue sky or other
securities laws of any state, there is no consent,
approval, authorization or other order of, or filing with,
or certification by, any regulatory authority having.
jurisdiction over the City required for the execution,
delivery and sale of the Certificates or the consummation
by the City of the other transactions contemplated by the
Official Statement and this Contract of Purchase.
(f) The City is not in breach of or default under any
applicable law or administrative regulation of the State of
California or the United States or any applicable judgment
or decree or any loan agreement, indenture, bond, note,
resolution, agreement or other instrument to which the City
is a party or is otherwise subject, and no event has
occurred and is continuing which, with the passage of time
or the giving of notice, or both, would constitute a
default or an event of default under any such instrument.
(g) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court,
governmental agency, public board or body, pending or
threatened against the City affecting the existence of the
City or the titles of its officers to their respective
offices or seeking to prohibit, restrain or enjoin the
execution or delivery of the Certificates or the City's
covenant to make Lease Payments or in any way contesting or
affecting the validity or enforceability of the
Certificates or the Legal Documents or contesting the
powers of the City or its authority to enter into, adopt or
perform its obligations under any of the foregoing,
including, but not limited to, the consummation of the
transactions relating to the Project as described in the
Official Statement, or contesting in any way the
completeness or accuracy of the Preliminary Official
Statement or the Official Statement~ or any amendment or
supplement thereto, wherein an unfavorable decision, ruling
or finding would materially adversely affect the validity
or enforceability of the Certificates or the Legal
Documents, or in which a final adverse decision could
materially or adversely affect the operations of the City.
(h) The City will furnish such information, execute
such instruments and take such other action in cooperation
with the Underwriter as the Underwriter may reasonably
request in order (1) to qualify the Certificates for offer
and sale under the blue sky or other securities laws and
regulations of such states and other jurisdictions of the
United States as the Underwriter may designate and (2) to
determine the eligibility of the Certificates for
investment under the laws of such states and other
jurisdictions, and will use its best efforts to continue
such qualification in effect so long as required for
distribution of the Certificates.
(i) If between the date of this Contract of Purchase
and the date of the Closing an event occurs, of which the
City has knowledge, which might or would cause the
information relating to the City, its functions, duties and
responsibilities contained in the Official Statement, as
then supplemented or amended, to contain an untrue
statement of a material fact or to omit. to. state. a material
fact required to be stated therein or necessary to make the
information therein, in the light of the~ circumstances
under which it was presented, not misleading, the City will
notify the Underwriter, and if in the opinion of the
Underwriter, such event requires the preparation and
publication of a supplement or amendment to the Official
Statement, the City will cooperate with the Underwriter in
the preparation of an amendment or supplement to the
Official Statement in a form and in 'a manner approved by
the Underwriter, provided all expenses thereby incurred
will be paid for by the City.
(j) If the information relating to the City, its
functions, duties and responsibilities contained in the
Official Statement is amended or supplemented pursuant to
the immediately preceding subparagraph, at the time of each
supplement or amendment thereto and (unless subsequently
supplemented or amended pursuant to such subparagraph) at
all times subsequent thereto up to and including the date
of the Closing, the portions of the Official Statement so
supplemented or amended (including any financial and
statistical data contained therein) will not contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make such information therein, in the light of the
circumstances under which it was presented, not misleading.
(k) The City will take no action and will cause no
action to be taken that would cause the interest with
respect to the Certificates to be subject to federal income
taxation.
(1) The City has not been, is not presently and as a
result of the sale and delivery of the Certificates will
not be in violation of any debt limitation, appropriation
limitation or any other provision of the California
Constitution.
(m) Between the date hereof and the Closing, without
the prior written consent of the Underwriter, the City will
not have issued any bonds, notes or other obligations for
borrowed money on behalf of the City except for such
borrowings' as may be described in or contemplated of the
Official Statement.
(n) The City has not been notified of any listing or
proposed listing by the Internal Revenue Service to the
effect that the City is a bond issuer whose no-arbitrage
certificates may not be relied upon.
(o) Any certificate signed by any officer of the City
and delivered to the Underwriter shall be deemed a
representation and warranty of the City to the Underwriter
as to the statements made therein but not of the person
signing such certificate.
4. At 8:00 a.m., San Francisco time, on March , 1988,
or at such other time or on such earlier or later date as the
Trustee, the City, the Lessor and the Underwriter mutually
agree upon (the "Closing"), the Trustee will deliver or cause
to be delivered to the Underwriter at the offices of Jones,
Hall, Hill & White, A Professional Law Corporation ("Special
Counsel"), San Francisco, California or such other place as the
Trustee, the City, the Lessor and the Underwriter mutually
agree upon, the Certificates in definitive form (all of the
Certificates to be printed in fully registered form), duly
executed and authenticated, together with the other documents
hereinafter mentioned. CUSIP identification numbers shall be
printed on the Certificates, but the failure to print such
number on any Certificate or any error with respect thereto
shall not constitute cause for a failure or refusal by the
Underwriter to accept delivery of, or pay for, the Certificates
in accordance with the terms of this Contract of Purchase. All
6
expenses in relation to the printing of CUSIP numbers on said
Certificates and the CUSIP Service Bureau charge for the
assignment of said numbers shall be paid for by the City from
Certificate proceeds. The Underwriter will accept delivery of
the Certificates and pay the purchase price thereof by
certified or official bank check or checks payable in
immediately available funds to the order of the Trustee in an
amount equal to the purchase price. The Certificates will be
made available for checking and packaging not later than 12:00
noon two business days prior to the Closing. In the event that
temporary Certificates are delivered, the Trustee and the
Lessor will deliver definitive Certificates to the Underwriter
as soon after the Closing as is reasonably possible but in no
event later than 15 days thereafter. The temporary
Certificates will be made available for checking and packaging
not later than 12:00 noon two business days, prior to the
Closing.
5. The Underwriter has entered into this Contract of
Purchase in reliance upon the representations and warranties of
the City contained herein. The Underwriter's obligations under
this Contract of Purchase are and shall be subject to the
following further conditions:
(a) at the time of Closing, the Assignment Agreement
and the Legal Documents all as described in the Official
Statement, shall be in full force and effect. as valid and
binding agreements between or among the various parties
thereto and the Legal Documents, the Assignment Agreement
and the Official Statement shall not have been amended,
modified or supplemented except as may have been agreed to
in writing by the Underwriter, and there shall be in full
force and effect such resolutions as, in the opinion of
Special Counsel, shall be necessary in connection with the
transactions contemplated hereby;
(b) at or prior to the Closing, the Underwriter shall
receive the following documents, in each case satisfactory
in form an°d substance to the Underwriter:
(1) the unqualified approving opinion of Special
Counsel, dated the date of Closing, as to the validity
and tax-exempt status of the Certificates;
(2) a supplementary opinion of Special Counsel
in form and substance satisfactory to the Underwriter,
dated the date of Closing and addressed to the City
and the Underwriter, to the effect that:
(i) the description of the Certificates and
security for the Certificates and statements in
7
the Official Statement under the captions
"INTRODUCTION," "THE REFUNDING PLAN," "THE CERTIF-
ICATES," "CONSTITUTIONAL AND STATUTORY LIMITA-
TIONS ON TAXES AND "APPROPRIATIONS, .... TAX
EXEMPTION," and "APPENDIX B - SUMMARY OF
PRINCIPAL LEGAL DOCUMENTS" insofar as such
statements purport to summarize certain
provisions of the Trust Agreement, [the Site
Lease,] the Lease, [the Agency Agreement,] the
Assignment Agreement, the Escrow Agreement,
California law or federal law and Special
Counsel's opinion with respect to validity and
tax-exemption, are correct and complete to the
best of such counsel's knowledge and belief; and
(ii) assuming due authorization, execution
and delivery by the Trustee of the documents to
which it is a party or which the Trustee has
acknowledged, the Legal Documents and the
Assignment Agreement have been duly authorized,
executed and delivered by the respective parties
thereto and constitute legal, valid and binding
agreements of the parties thereto and are
enforceable in accordance with their respective
terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws
affecting enforcement of creditors' rights and
by the application of equitable principles if
equitable remedies are sought;
(iii) the Certificates are exempt from
registration pursuant to the Securities Act of
1933, as amended, and the Trust Agreement is
exempt from qualification as an indenture
pursuant to the Trust Indenture Act of 1939, as
amended; and
(iv) although they are not passing upon and
do not assume any responsibility for the
accuracy, completeness or fairness of any of the
statements contained in the Official Statement
and make no representation that they have
independently verified the accuracy, completeness
or fairness of any such statements, during the
course of preparation of the Official Statement,
they met in conferences with representatives of
the City, the Trustee, their respective counsels,
the Underwriter, and others, during which
conferences the contents of the Official
Statement and related matters were discussed and
that based on their participation in the
above-mentioned conferences, and in reliance
thereon and on the certificates, opinions and
other documents herein mentioned, they advise
that no information came to their attention which
caused them to believe that the Official
Statement as of the date hereof and as of the
Closing (except for any financial or statistical
data or forecasts included therein, as to which
they express no opinion or view) contained any
untrue statement of a material fact or omitted to
state any material fact required to be stated
therein or necessary to make the statements
therein, in the light of the circumstances under
which they were made, not misleading.
(3) an opinion of the counsel to the City, dated
the date of Closing and addressed to the City and the
Underwriter, in form and. substance satisfactory to the
Underwriter, to the effect that:
(i) the City is a municipal corporation
duly organized and validly existing under the
laws of the State of California;
(ii) the Official Statement has been duly
approved by the City and the descriptions therein
as to the City and the City's obligations under
the Trust Agreement, the Lease, [the Site Lease],
the Escrow Agreement and [the Agency Agreement]
are correct and do not contain an untrue
statement of a material fact and do not omit to
state a material fact required to be stated
therein or necessary to make the information
therein, in the light of the circumstances under
which they were presented, not misleading;
(iii) the resolution of the City approving
and authorizing the execution and delivery of the
Legal Documents and approving the Official
Statement was duly adopted at a meeting of the
governing body of the City which was called and
held pursuant to law and with all public notice
required by law and at which a quorum was present
and acting throughout;
(iv) there is no action, suit, proceeding or
investigation at law or in equity before or by
any court, public board or body, pending or, to
the best of such counsel's knowledge, threatened
9
against or affecting the City, which would
adversely impact the City's ability to complete
the transactions described in and contemplated by
the Official Statement, to restrain or enjoin the
collection of Lease Payments under the Lease, or
in any way contesting or affecting the validity
of the Certificates or the Legal Documents or the
transactions described in and contemplated hereby
and by the Official Statement wherein an
unfavorable decision, ruling or finding would
adversely affect the validity and enforceability
of the Certificates or the Legal Documents or in
which a final adverse decision could materially
adversely affect the operations of the City;
(v) the execution and delivery of the Legal
Documents and the approval of the Official
Statement and compliance with the provisions
thereof and hereof, under the circumstances
contemplated thereby, do not in any material
respect conflict with or constitute on the part
of the City a breach of or default under any
agreement or other instrument to which the City
is a party or by which it is bound or any
existing law, regulation, court order or consent
decree to which the City is subject~
(vi) the Legal ' Documents have been duly
authorized, executed and delivered by the City,
and, assuming due authorization, execution and
delivery by the other parties thereto, constitute
legal, valid and binding agreements of the City
enforceable in accordance with their respective
terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights
and by the application of equitable principles if
equitable remedies are sought~ and
(vii) no authorization, approval, consent, or
other order of any court or governmental body is
required for the valid authorization, execution
and delivery of the Legal Documents and the
approval of the Official Statement or the
consummation by the City of the transactions
contemplated herein and in the Official
Statement, except such as have been obtained and
except such as may be required under state
securities or blue sky laws in connection with
10
the purchase and distribution of the Certificates
by the Underwriter~
(4) the favorable opinion of the counsel to the
Lessor, dated the date of Closing, and addressed to
the City and the Underwriter, in form and substance
satisfactory to the Underwriter to the effect:
(i) the Lessor is a nonprofit public
benefit corporation duly organized, validly
existing and in good standing under the laws of
the State of California;
(ii) the Lessor has full legal power and
adequate corporate authority to enter into the
Legal Documents and the Assignment Agreement and
the full legal power and authority to own its
properties and to carry on its business~
(iii) the Legal Documents and the Assignment
Agreement have been validly authorized, executed
and delivered by the Lessor and, assuming due
authorization, execution and delivery by the
other parties thereto, constitute legal, valid
and binding agreements of the Lessor, enforceable
in accordance with their terms, except as
enforcement thereof may belimited by bankruptcy,
insolvency or other laws affecting enforcement of
creditors' rights and by the application of
equitable principles if equitable remedies are
sought~
(iv) no consent, approval, authorization or
order of any court, regulatory authority or
governmental body is required for the valid
authorization, execution and delivery of the
Legal Documents or the Assignment Agreement or
the consummation by the Lessor of the
transactions -contemplated herein and in the
Official Statement except such as have been
obtained and except such as may be required under
the state securities or blue sky laws in
connection with the purchase and distribution of
the Certificates by the Underwriter~
(v) the Official Statement has been duly
approved by the Lessor and the descriptions
therein as to the Lessor and the Lessor's
obligations under the Trust Agreement, the
Assignment Agreement, the Lease, the Site Lease
11
and the Agency Agreement are correct and do not
contain an untrue statement of a material fact
and do not omit to state a material fact required
to be stated therein or necessary to make the
information therein, in the light of the
circumstances under which they were presented,
not misleading;
(vi) there are no, to the knowledge of such
counsel, legal or governmental proceedings
pending or threatened against the Lessor which
are required to be disclosed in the Official
Statement; and
(vii) the execution and delivery of the Legal
Documents and Assignment Agreement by the Lessor
and performance by the Lessor of its obligations
thereunder will not conflict with or result in a
breach of any of the terms, conditions or
provisions of any agreement or instrument to
which the Lessor is a party or constitute a
default thereunder;
(5) the opinion of counsel to the Trustee, dated
the date of Closing and addressed to the City, the
Lessor and the Underwriter, to the effect that:
(i) the Trustee is a national banking
association with trust powers, duly organized and
validly existing under the laws of the United
States, having the legal authority to exercise
trust powers in the State of California, and has
full power, authority and legal right to execute
and deliver the Trust Agreement and the
Assignment Agreement and to comply with the terms
thereof and perform its obligations thereunder;
(ii) the Trust Agreement and the Assignment
Agreement have each been duly authorized,
executed and delivered by the Trustee and
assuming due authorization, execution and
delivery by the other parties thereto are the
valid, legal and binding agreements of the
Trustee, enforceable in accordance with their
respective terms, except as such enforcement may
be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting
the enforcement of creditors' rights and by the
application of equitable principles if equitable
remedies are sought~ and
12
(iii) no consent, approval, authorization or
other action by any governmental or regulatory
authority having jurisdiction over the Trustee
that has not been obtained is required for the
execution and delivery by the Trustee of the
Trust Agreement and the Assignment Agreement; and
(iv) to the best of such counsel's knowledge
there is no action, suit, proceeding or
investigation at law or in equity before or by
any court, public board or body, pending or, to
the best of such counsel's knowledge, threatened
against or affecting the Trustee, which would
adversely impact the Trustee's ability to
complete the transactions described in and'
contemplated by the Official Statement, or in any
way contesting or affecting the validity of the
Certificates or the Legal Documents or the
transactions described in and contemplated hereby
and by the Official Statement wherein an
unfavorable decision, ruling or finding would
adversely affect the validity and enforceability
of the Certificates or the Legal Documents;
(6) a certificate, dated the date of Closing,
signed by a duly authorized official of the City
satisfactory in form and substance.to. the Underwriter
to the effect that there is no litigation or
proceeding pending or, to the best of his or her
knowledge, threatened against the City (a) to restrain
or enjoin the delivery of any of the Certificates or
the collection. of Lease Payments, (b) in any way
contesting the validity of the Certificates or the
Legal Documents or the authority of the City to enter
into the Legal Documents, (c) in any way contesting
the powers of the City in connection with any action
contemplated by'this Contract of Purchase, or (d) in
which a final adverse decision could materially
adversely affect the operations of the City or its
ability to perform its obligations under the foregoing
agreements;
(7) a certificate, dated the date of Closing,
signed by a duly authorized official of the Lessor
satisfactory in form and substance to the Underwriter
to the effect that to the best of his or her knowledge
no litigation or proceeding is pending or threatened
against the Lessor (a) to restrain or enjoin the
delivery of any of the Certificates or the collection
of Lease Payments (b) in any way contesting the
13
validity of the Certificates, the Legal Documents or
the Assignment Agreement, or the authority of the
Lessor to enter into the Legal Documents or the
Assignment Agreement, or (c) in any way contesting the
powers of the Lessor in connection with any action
contemplated by the foregoing agreements;
(8) a certificate, dated the date of Closing,
signed by a duly authorized official of the Trustee
satisfactory in form and substance to the Underwriter
to the effect that (a) there is no action, suit,
proceeding, inquiry or investigation (an "action") at
law or in equity, before or by any court or
governmental agency, public board or body pending or
threatened seeking to prohibit, restrain or enjoin the
execution of the Certificates or the collection of
Lease Payments intended to pay the principal of and
interest on the Certificates, or pledge thereof, or in
any way contesting or affecting the validity or
enforceability of the Certificates, the Trust
Agreement or the Assignment Agreement, and there is no
action pending or threatened against the Trustee
affecting the existence of the Trustee, or contesting
the powers of the Trustee or its authority to enter
into or perform its obligations under any of the
foregoing agreements, wherein an unfavorable decision,
ruling or finding would adversely affect the validity
of the Certificates, the Trust Agreement or the
Assignment Agreement~ and (b) the execution and
delivery by the Trustee of the Trust Agreement and the
Assignment Agreement and compliance with the terms
thereof will not conflict with, or result in a
violation or breach of, or constitute a default under,
any loan agreement, indenture, bond, note, resolution
or any other agreement or instrument to which the
Trustee is a party or by which it is bound, or any law
or any rule, regulation, order or decree of any court
or governmental agency or both having jurisdiction
over the Trustee or any of its activities or
properties;
(9) two executed or certified copies of each of
the Legal Documents and the Assignment Agreement;
(10) two copies of the
executed on behalf of the City~
Official
Statement,
(11) two certified copies of the general
resolution of the Trustee authorizing the execution
and delivery of Certificates, the Trust Agreement, the
14
acceptance of the Assignment
Contract of Purchase;
Agreement and this
(12) copies of resolutions adopted by the City
and certified by an authorized official of the City
authorizing the execution and delivery of this
Contract of Purchase, the Lease, the Agency Agreement,
the Trust Agreement, the Site Lease and the approval
of the Official Statement;
(13) a certificate of an authorized officer of
the City, dated the date of Closing, confirming as of
such date the representations and warranties of the
City contained in this Contract of Purchase;
(14) copies of resolutions adopted by the Lessor
and certified by the Secretary or Assistant Secretary
of the Lessor, authorizing the execution and delivery
of the Lease, the Trust Agreement, [the Agency
Agreement, the Site Lease] and the Assignment
Agreement;
(15) an opinion of Special Counsel regarding the
effective defeasance of the City of Dublin 1985
Certificates of Participation;
(16) arbitrage certifications By-the City in form
and substance acceptable to Special Counsel and the
Underwriter; and
(17) an opinion of counsel to the Underwriter to
the effect that:
(i) the Certificates are exempt from
registration pursuant to the Securities Act of
1933, as amended, and the Trust Agreement is
exempt from qualification pursuant to the Trust
Indenture Act of 1939, as amended; and
(ii) although they are not passing upon and
do not assume any responsibility for the
accuracy, completeness or fairness of any of the
statements contained in the .Official Statement
and make no representation that they have
independently verified the accuracy, completeness
or fairness of' any such statements, during the
course of preparation of the Official Statement,
they met in conferences with representatives of
the City, the Trustee, their respective counsels,
Special Counsel, the Underwriter, and others,
15
during which conferences the contents of the
Official Statement and related matters were
discussed and that based on their participation
in the above-mentioned conferences, and in
reliance thereon and on the certificates,
opinions and other documents herein mentioned,
they advise that no information came to their
attention which caused them to believe that the
Official Statement as of the date hereof and as
of the Closing (except for any financial or
statistical data or forecasts included therein or
appendices thereto, as to which they express no
opinion or view) contained any untrue statement
of a material fact or omitted to state any
material fact required to be stated therein or
necessary to make the statements therein, in the
light of the circumstances under which they were
made, not misleading; and
(18) such additional legal opinions,
certificates, proceedings, instruments or other
documents as Special Counsel may reasonably request to
evidence compliance by the Trustee with legal
requirements, the truth and accuracy, as of the time
of Closing, of the representations contained herein
and in the Official Statement and the due performance
or satisfaction by the Trustee, the Lessor and the
City at or prior to such time of all agreements then
to be performed and all conditions then to be
satisfied.
(c) All matters relating to this Contract of
Purchase, the Certificates and the sale thereof, the Trust
Agreement, the Lease, the Site Lease, the Assignment
Agreement, the Agency Agreement and the consummation of the
transactions contemplated by this Contract of Purchase
shall have been approved by the Underwriter, which approval
shall not be unreasonably withheld.
If the conditions to the Underwriter's obligations
contained in this Contract of Purchase are not satisfied or if
the Underwriter's obligations shall be terminated for any
reason permitted by this Contract of Purchase, this Contract of
Purchase shall terminate and neither the Underwriter nor the
City shall have any further obligation hereunder. In the event
that the Underwriter fails (other than for a reason permitted
by this Contract of Purchase) to accept and pay for the
Certificates at the Closing, the amount of one percent of the
principal amount of the Certificates shall be full liquidated
damages for such failure and for any and all defaults hereunder
16
on the part of the Underwriter, and the acceptance of such
amount shall constitute a full release and discharge of all
claims and rights of the City against the Underwriter.
7. The Underwriter shall have the right to cancel its
obligations to purchase the Certificates if, between the date
hereof and the Closing regardless of whether any of the
following statements of fact were in existence or known of on
the date of this Contract of Purchase:
(a) the marketability of the Certificates or the
market price thereof, in the opinion of the Underwriter,
has been materially adversely affected by an amendment to
the Constitution of the United States or by any legislation
in or by the Congress of the United States or by the State'
of California, or the recommendation to Congress or
endorsement for passage (by press release, other form of
notice or otherwise) of legislation by the President of the
United States, the Treasury Department of the United
States, the Internal Revenue Service or the Chairman or
ranking minority member of the Committee on Finance of the
United States Senate or the Committee on Ways and Means of
the United States House of Representatives, or the proposal
for consideration of legislation by either such Committee
or by any member thereof, or the presentment of legislation
for the staff of either such Committee, or by the staff of
the Joint Committee on taxation of the Congress of the
United States, or the favorable reporting for passage of
legislation to either House of the Congress of the United
States by a Committee of such House to which such
legislation has been referred for consideration, or any
decision of any federal or state court or any ruling or
regulation (final, temporary or proposed) or official
statement on behalf of the United States Treasury
Department, the Internal Revenue Service or other federal
or State authority affecting the federal or state tax
status of .the City, or the interest on bonds or notes
(including the Certificates);
(b) there shall exist any event which in the
reasonable opinion of the Underwriter either (i) makes
untrue or incorrect in any material respect any statement
or information contained in the Official Statement or
(ii) is not reflected in the Official Statement but should
be reflected therein to make the statements and information
contained therein not misleading in any material respect~
(c) there shall have occurred any new outbreak of
hostilities or other national or international calamity or
crisis, the effect of such outbreak, calamity or crisis on
17
the financial markets of the United States being such as
would make it impracticable, in the reasonable opinion of
the Underwriter, for the Underwriter to sell the
Certificates;
(d) there shall be in force a general suspension of
trading on the New York Stock Exchange or other national
securities exchange, or minimum or maximum prices for
trading shall have been fixed and be in force, or maximum
ranges for prices for securities shall have been required
and be in force on the New York Stock Exchange or such
other exchange, whether by virtue of a determination by
that Exchange or such other exchange or by orders of the
Securities and Exchange Commission or any other
governmental authority;
(e) a general banking moratorium shall have been
declared by either federal, California or New York
authorities having jurisdiction and be in force~
(f) there shall be established any new restrictions
on transactions in securities materially affecting the free
market for securities (including the imposition of any
limitations on interest rates) or the extension of credit
by, or the charge to the net capital requirements of,
underwriters established by the New York Stock Exchange,
the Securities and Exchange Commissionf! any other federal
or state agency or the Congress of the United States, or by
Executive Order;
(g) an adverse event occurs in the affairs of the
Trustee, the Lessor or the City which, in the opinion of
the Underwriter, requires or has required a supplement or
amendment to the Official Statement;
(h) the rating of the Certificates shall have been
downgraded or withdrawn by a national rating service,
which, in the opinion of the Underwriter, materially
adversely affects the market price of the Certificates; or
(i) the Comptroller of the Currency renders an
opinion or issues a regulation which has the effect of
prohibiting the Underwriter from underwriting the
Certificates.
7. The City's obligations hereunder shall be subject to
the following conditions:
(a) the performance by the Lessor of its obligations,
to be performed hereunder at or prior to the Closing;
18
(b) at or before the Closing, the City shall have
received duly executed copies of the letters, documents and
certificates referred to in sections 5(b)(7), 5(b)(8),
5(b)(9), 5(b)(ll), 5(b)(14), and 5(b)(15), and the opinions
referred to in sections 5(b)(1), 5(b)(2), 5(b)(4) and
5(b)(5).
8. After the Closing (a) the City will not adopt any
amendment of or supplement to the Official Statement to which
the Underwriter shall object in writing and (b) if any event
relating to or affecting the Trustee, the Lessor or the City
shall occur as a result of which it is necessary, in the
opinion of the Underwriter, to amend or supplement the Official
Statement in order to make the Official Statement not
misleading in the light of the circumstances existing at the'
time it is delivered to an initial purchaser of the
Certificates, the Trustee, the Lessor and the City will
forthwith prepare and furnish to the Underwriter a reasonable
number of copies of an amendment of or supplement to the
Official Statement (in form and substance satisfactory to
counsel for the Underwriter) which 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 the light
of the circumstances existing at the time the Official
Statement is delivered to an initial purchaser of the
Certificates, not misleading. For the purposes of this section
the Trustee, the Lessor and the City will 'each furnish such
information with respect to itself as the Underwriter may from
time to time request.
9. Whether or not the transactions contemplated by this
Contract of Purchase are consummated, the Underwriter shall be
under no obligation to pay, and the City shall pay from the
proceeds of the Certificates or otherwise, all expenses and
costs of the City and the Corporation incident to the·
performance of their obligations in connection with the
authorization, execution, delivery and the Certificates to the
Underwriter, including, without limitation, -fees and
disbursements of Special Counsel and other professional
advisors employed by the City or the Corporation; costs of
preparation, printing, signing, transportation, delivery and
safekeeping of the Certificates; the interest cost to the
Underwriter to provide immediately available funds to the City;
credit rating(s)~ preparation by an outside vendor of a City
debt statement; word processing by the Underwriter or
otherwise; printing and distribution of the preliminary and
final Official Statements~ Trustee and paying agency fees and
charges; printing, reproducing and binding documents; computer
calculations and verifications thereof; travel by City or
19
Corporation officials~ Closing costs~ fees and expenses of
filing with state securities or blue sky commissions, including
fees of counsel; costs of preparation and reproduction of the
Contract of Purchase. The Underwriter shall pay its
out-of-pocket expenses, except as noted above.
10. The City shall indemnify and hold harmless the
Underwriter and employees and each person who controls the
Underwriter within the meaning of Section 15 of the
Securities Act of 1933, as amended (such Act being herein'
called the "Act" and any such person being herein sometimes
called an "Indemnified Party"), against any and all losses,
claims, damages or liabilities, joint or several, to which such
Indemnified Party may become subject under any statute or at
law or in equity or otherwise, and shall reimburse any such
Indemnified Party for any legal or other expenses incurred by
it in connection with investigating any claims against it and
defending any actions, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon (i) an
allegation or determination that the Certificates should have
been registered under the Act or the Trust Agreement should
have been qualified under the Trust Indenture Act of 1939, as
amended, or (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Official
Statement (including the Appendices thereto), or any amendment
thereof or supplement thereto, or the omission or alleged
omission to state therein a material fact necessary to make the
statements therein not misleading~ provided, however, that the
City shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in that particular part
of the Official Statement, or any amendment thereof or
supplement thereto, under the caption "Underwriting" (in the
case of the Underwriter), or the omission or alleged omission
to state under such caption a material fact necessary to make
the respective statements therein not misleading. This
indemnity agreement shall not be construed as a limitation on
any other liability which the City may otherwise have to any
Indemnified Party.
An Indemnified Party shall, promptly after the receipt of
notice of the commencement of any action against such
Indemnified Party in respect of which indemnification may be
sought against the City, notify the City in writing of the
commencement thereof, but the omission to notify the City of
any such action shall not relieve the City from any liability
which it may have to such Indemnified Party otherwise than
20
under the indemnity agreement contained herein. In case any
such action shall be brought against an Indemnified Party and
such Indemnified Party shall notify the City of the
commencement thereof, the City may, or if so requested by such
Indemnified Party shall, participate therein or assume the
defense thereof, with counsel satisfactory to such Indemnified
Party, and after notice from the City to such Indemnified Party
of an election so to assume the defense thereof, the City will
not be liable to such Indemnified Party under this paragraph
for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation. If the City shall not
have employed counsel to have charge of the defense of any such
action or if an Indemnified Party shall have reasonably
concluded that there may be defenses available to it or them
which are different from or additional to those available to
the City (in which case the City shall not have the right to
direct the defense of such action on behalf of such Indemnified
Party), such Indemnified Party shall have the right to retain
legal counsel of its own choosing and legal and other expenses
incurred by such Indemnified Party shall be borne by the City.
The City shall not be liable for any settlement of any such
action effected without its consent by any Indemnified Party,
but if settled with the consent of the City or if there be a
final judgment or award for the plaintiff in any such action
against the City or any Indemnified Party,~wi~h or without the
consent of the City, the City agrees to indemnify and hold
harmless such Indemnified Party for the amount of any such
settlement, final judgment or award.
In order to provide for just and equitable contribution in
circumstances in which indemnification hereunder is for any
reason held to be unavailable from the City, the City and the
Underwriter shall contribute to the aggregate losses, claims,
damages and liabilities (including any investigation, legal and
other expenses incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claims
asserted, to which the City and-the Underwriter may be subject)
in such proportion so that the Underwriter is responsible for
that portion represented by the percentage that the
underwriting discount set forth in the Official Statement bears
to the public offering price appearing thereon and the City is
responsible for the balance~ provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of
Section ll(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph, each
person, if any, who controls the Underwriter within the meaning
of the Act shall have the same rights to contribution as the
21
Underwriter. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under
this paragraph, notify such party or parties from whom
contribution may be sought, but the omission to so notify such
party from whom .contribution may be sought shall not relieve
the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise
than under this paragraph. No party shall be liable for
contribution with respect to any action or claim settled
without its consent.
11. Any notice or other communication to be given to the
Underwriter under this Contract of Purchase may be given by
delivering the same in writing to Rauscher Pierce Refsnes,
Inc., One California Street, Suite 2630, San Francisco,
California 94111, Attention: Grant M. Hamill. All notices or
communications hereunder by any party shall be given and served
upon each other party. Any notice or communication to be given
the City under this Contract of Purchase may be given by
delivering the same to the City of Dublin, 6500 Dublin
Boulevard, Dublin, California 94568, Attention: Richard C.
Ambrose. The approval of the Underwriter when required
hereunder or the determination of satisfaction as to any
document referred to herein shall be in writing signed by the
Underwriter and delivered to you.
12. This Contract of Purchase is made solely for the
benefit of- the City and the Underwriter (including the
successors or assigns thereof) and no other person shall
acquire or have any right hereunder or by virtue hereof. All
representations, warranties and agreements of the City in this
Contract of Purchase shall remain operative and in full force
and effect regardless of any investigation made by or on behalf
of the Underwriter and shall survive the delivery of and
payment for the Certificates.
13. This Contract' of Purchase may be executed by the
parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
22
This Contract of Purchase shall be governed by the laws of
the State of California.
RAUSCHER PIERCE REFSNES, INC.
Accepted:
By
Title
CITY OF DUBLIN
By
Title
23
ACKNOWLEDGEMENT OF
THE BANK OF CALIFORNIA, N.A.
The undersigned hereby acknowledges receipt of an executed
copy of the Contract of Purchase, dated March , 1988 and
agrees that, upon the execution and delivery of the Trust
Agreement and its acceptance of the appointment as Trustee
thereunder, it shall execute and deliver the Certificates in
accordance with the terms of such Contract of Purchase to the
extent such terms are consistent with the terms of the Trust
Agreement.
THE BANK OF CALIFORNIA, N.A.
By
Title
24
APPENDIX
(a) The Lessor is a non-profit public benefit
corporation duly organized, validly existing and in good
standing under the laws of the State of California and has
all necessary power and authority to enter into and perform
its duties under the Legal Documents and the Assignment
Agreement and, when executed and delivered by the
respective parties thereto, the Legal Documents and the
Assignment Agreement will constitute legal, valid and
binding obligations of the Lessor in accordance with their
respective terms.
(b) By official action of the Lessor, the Lessor has
duly approved the distribution of the Preliminary Official
Statement relating to the Certificates, and the
distribution of the Official Statement, and has duly
authorized and approved the execution and delivery of, and
the performance by the Lessor of the obligations on its
part contained in the Legal Documents and the Assignment
Agreement and the consummation by it of all other
transactions contemplated by the Official Statement and
this Contract of Purchase.
(c) The execution and delivery .of the Legal
Documents, the Assignment Agreement and the approval and
execution of the Official Statement and compliance with the
provisions on the Lessor's part contained herein and
therein, will not conflict with or constitute a breach of
or default under any law, administrative regulation,
judgment, decree, loan agreement, indenture, bond, note,
resolution, agreement or other instrument to which the
Lessor is a party or is otherwise subject, nor will any
such execution, delivery, adoption or compliance result in
the creation or imposition of any lien, charge or other
security interest or encumbrance of any nature whatsoever~
upon any of the properties or assets of the Lessor under
the terms of any such law, administrative regulation,
judgment, decree, loan agreement, indenture, bond, note,
resolution, agreement or other instrument, except as
provided by the' Legal Documents and the Assignment
Agreement.
(d) The statements and information contained in the
Official Statement relating to the Lessor, its functions,
duties and responsibilities are and will be true, correct
and complete in all material respects and the Official
Statement does not and will not omit any statement or
information which is necessary to make such statements and
information therein, in the light of the circumstances
under which they were made, not misleading in any material
respect.
(e) Except as may be required under blue sky or other
securities laws of any state, there is no consent,
approval, authorization or other order of, or filing with,
or certification by, any regulatory authority having
jurisdiction over the Lessor required for the execution,
delivery and sale of the Certificates or the consummation
by the Lessor of the other transactions contemplated by the
Official Statement and this Contract of Purchase.
(f) The Lessor is not in breach of or default under
any applicable law or administrative regulation of the
State of California or the United States or any applicable
judgment or decree or any loan agreement, indenture, bond,
note, resolution, agreement or other instrument to which
the Lessor is a party or is otherwise subject, and no event
has occurred and is continuing which, with the passage of
time or the giving of notice, or both, would constitute a
default or an event of default under any such instrument.
(g) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court,
governmental agency, public board oE .body, pending or
threatened against the Lessor affecting the existence of
the Lessor or the titles of its officers to their
respective offices or seeking to prohibit, restrain or
enjoin the execution or delivery of the Certificates, or in
any way contesting or affecting the validity or
enforceability of the Assignment Agreement, the
Certificates or the Legal Documents, or contesting the
powers of the Lessor or its authority to enter into, adopt
or perform its obligations under any of the foregoing,
including, but not limited to, the consummation of the
transactions relating to the financing of the Project as
described in the Official Statement, or contesting in any
way the completeness or accuracy of the Preliminary
Official Statement or the Official Statement, or any
amendment or supplement thereto, wherein an unfavorable
decision, ruling or finding would materially adversely
affect the validity or enforceability of the Certificates
or the Legal Documents and the Assignment Agreement.
(h) The Lessor covenants that it will not take any
action which would cause interest with respect to the
Certificates to be subject to federal income taxation.
2
(i) Any certificate signed by any officer of the
Lessor and delivered to the Underwriter shall be deemed a
representation and warranty of the Lessor to the
Underwriter as to the statements made,therein but not of
the person signing such certificate.
3
RAUSCHER PIERCE REFSNES, INC.
Date
CITY OF DUBLIN
1988 REFUNDING CI~RTIFICATES OF PARTICIPATION
CIVIC CENTER PROJECT
Current Timetable of Events
March 1, 1988
FEBRUARY MARCH
;B g 10 T¶ 12 13 6 7 ~ gt 10
Event
Resnonslble Party(s)
Feb. 26
March 1
March 2
March 7-8
March 9
March 10-25
March 28
March 29
Receive Ratings
Council approves basic legal documents,
P.O.S, and form of Purchase Contract
Mail P.O.S. and initiate marketing
· Price Certificates
e Subscribe to State & Local Government
Series Bonds for Escrow
Presentation of PurChase Contract
Preparation and review of closing documents
Pre-Closing (2:00 p.m, at JHH&W)
Closing (8:00 a.m. at JHH&W)
RPR
city
RPR
RPR/City
RPR
All Parties
All Parties
All Parties
- :
One California Street, Suite 2630 ' San Franclatch California 94111 ' (41S) 989-2300
Member New York Stock Exchange, lnc,
CiTY OF DUBLIN
REFUNDING & NEW HONEY ISSUE
Estimated Sources and Uses of Funds
SOURCES:
Bond Proceeds
Investment Earnings(I)
Series 1985 Reserve Fund
Series 1985 Debt Service Account Contribution
Accrued Interest
TotaL:
135'723
USES:
Cost of Escrow
New Money Proceeds
CapitaLized Interest(2)
Reserve Fund(3)
Underwriter~s Discount(4)
Costs of Issuance
Accruedlnterest
$12,727,708
3,800,000
1,249,444
1,691,534
257,625
133,856
98,231
$19,958,~98
(1) interest earnings on New Honey Proceeds & CapitaLized Interest.
(2) 21 Months of capitalized interest on New Honey portion & $5.50 miLLion
outstanding from 1985 issue.
(3) Maximum AnnuaL Debt Service.
(4) 1.5~ of Bond Proceeds.
CITY OF DUBLIN
1988 NEW MONEY + REFUNDING CERTIFICATES OF PARTICIPATION
GROSS DEBT SERVICE SCHEDULE
DeLivery Date 0]129188
Date Principat Coupon Interest
Total
08101/88
02/01/89
08/01/89
02/01/90
08/01/90
02/01/91 /.25,000.00 5,750
08/01/91
02/01/92 /*50,000.00 6.000
08/01/92
02/01/93 480,000.00 6.250
08/01/93
02/01/9/* 510,000.00 6.500
08/01/94
02/01/95 540,000.00 6.700
08/01/95
02/01/96 575,000.00 6.800
08/01/96
02/01/97 615,000.00 6.900
08/01/97
02/01/98 660,000.00 7.000
08/01/98
02/01/~9 705,000.00 7.100
08/01/99
02/01/00 755,000.00 7.200
08/01/00
02/01/01 810,000.00 7.:500
08/01/01
02/01/02 870,000.00 7.400
08/01/02
02/01/03 930,000.00 7.500
08/01/03
02/01/~ 1,000,000.00 7.600
08/01/04
02/01/05 1,080,000.00 7.650
08/01/05
02/01/06 1,160,000.00 7.700
08/01/06
02/01/07 1,250,000.00 7,750
08/01/07
02/01/08 1,345,000.00 7.800
08/01/08
02/01/09 1,/.50,000.00 7.850
08/01/0~
02/01/10 1,565,000.00 7.875
526,238.02
631,485.63
6:51,485.6:5
631,485.63
631,485.63
631,485.63
619,266.88
619,266.88
605,766.88
590,766.88
590,766.88
57/.,191.88
57/*,191.88
556,101.88
556, 101.88
536,551.88
536,551.88
515,334.38
515,:534.38
492,234.38
/*92,234.38
467 206.88
/*67 206.88
/*/*0 026.88
440 026.88
/.10 461.88
/.10 461.88
:578 271.88
:578 271.88
:505, :596.88
:505, :596.88
2~,,086.88
26/* , 086 . 88
219,7,26.88
219,/.26.88
170,98~.38
170,98~.38
118,534.38
118,534.38
61,621.88
61,621.88
526,238.02
631,485.63
631,485.63
6:51,485.63
631,485.63
1,056,485.63
619,266.88
1,069,266.88
605,766.88
1,085,766.88
590,766.88
1,100,766.88
574,191.88
1,114,191.88
556,101.88
1,1:51,101.88
536,551.88
1,151,551.88
515,:534.38
1,175,334.38
492,234.38
1,197,234.38
467,206.88
1,222,206.88
440,026.88
1,250,026.88
410,461.88
1,280,461.88
:578,271.88
1,:508,271.88
1,343,:596.88
305,:596.88
1,385,:596.88
264,086.88
1,424,086.88
219,426.88
1,469,426.88
170,989.38
1,515,989.38
118,534.38
1,568,534.38
61,621.88
1,626,621.88
TotaLs: 17,175,000,00
Less Accrued From 03/01/88:
Net Cost:
19,022,937.40
98,231.10
18,924,706.30
36,197,937.40
98,2:51.10
36,099,706.30
Values From Dated Date:
Average Interest Rate
7.55286832
Annual
1,157,723.65
1,262,971.25
1,687,971.25
1,688,533.75
1,691,533.75
1,691,5:53.75
1,688,383.75
1,687,203.75
1,688,103.75
1,690,668.75
1,689,468.75
1,689,41:5.75
1,690,05:5.75
1,690,923.75
1,686,54:5.75
1,686,793.75
1,690,793.75
1,688,173.75
1,688,853.75
1,686,978.75
1,687,068.75
1,688,243.75
36,197,937.40
Bond Years 251,863.7500b
Average L i fe 14. (~456
Vatues From Detivery Date:
Bond Proceeds: 17,175,000.00
True Interest Rate 7.4968/+136
Day Basis is 30/360 (l~unicipat Bond)
CITY OF DUBLIN
REFUNDING AND NEW HONEY CERTIFICATES OF PARTICIPATION
CIVIC CENTER COMPLEX
CASH FLOW ANALYSIS TO SHOW NET DEBT SERVICE
Delivery Date 03129188
Date
GROSS DEBT LESS: LESS:
SERVICE CAPITALIZED RESERVE
INTEREST EARNINGS
a 7.50%
(1)
NET DEBT
SERVICE
02/01/89 1,157,723,65 626,797.86 116,292.95 414,632.84.~
02/01/90 1,262,971,25 622,646.88 126,865.03 513,459.34
02/01/91 1~687,971,25 126,865.03 1,561,106.22
02/01/92 1,688,533.75 126,865.03 1,561,668.72
02/01/93 1,691,533.75 126,865.03 1,564,668.72
02/01/94 1,691,533.75 126,865.03 1,564,668.72
02/01/95 1,688,383,75 126,865.03 1,561,518.72
02/01/96 1,687,203.75 126,865.03 1,560,338.72
02/01/97 1,688,103,75 126,865.03 1,561,238.72
02/01/98 1,690,668.75 126,865.03 1,563,803.72
02/01/99 1,689,468.75 126,865.03 1,562,603.72
02/01/00 1,689,413.75 126,865.03 1,562,548.72
02/01/01 1,690,053.75 126,865.03 1,563,188.72
02/01/02 1,690,923.75 126,865.03 1,564,058.72'
02/01/03 1,686,543,75 126,865.03 1,559,678.72
02/01/04 1,686,793.75 126,865.03 1,559,928.72
02/01/05 1,690,793.75 126,865.03 1,563,928.72
02/01/06 1,688,173.75 126,865.03 1,561,308.72
02/01/07 1,688,853,75 126~865.03 1,561~988.72
02/01/08 1,686,978.75 126,865.03 1,560,113.72
02/01/09 1,687,068,75 126,865.03 1,560,203.72.
02/01/10 1,688,243,75 1,818,398.78 -130,155.03
Totals: 36,197,937.40 1,249,444.74 4,471,992.33 30,476,500.33
1 22 MONTHS OF CAPITALIZED INTEREST ON NEW MONEY & $5.50 MILLION
OUTSTANDING FROM 1985 ISSUE
CITY OF DUBLIN
REFUNDING ONLY PORTION OF 1988 ISSUE
VS
1985 ISSUE
DEMONSTRATION OF DEBT SERVICE SAVINGS
ESTIHATED SOURCES & USES
SOURCES:
Bond Proceeds
Series 1985 Reserve Fund
TotaL:
$13,070,000
1,300,000
$14,370,000
USES:
Cost of Escrow
1988 Reserve Fund (1)
Underwriter~s Discount(1.5%)
Costs of Issuance / Rounding
Total:
Future Value Savings: $320,188.80
Present VaLue Savings: $341,289.00
(see following savings schedule)
(1) Assuned to be equal to the 1985 Reserve Fund
CITY OF DUBLIN, CALIFORNIA
REFUNDING PORTION OF 1988 ISSUE VS 1985 ISSUE
CONPARISON OF GROSS DEBT SERVICE 'SAVINGS SCHEDULE
TIC 1985 BONDS = 9,167'% - TIC 1988 BONDS = 7,50~ (ESTIMATED)
PRESENT VALUE SAVINGS (UNDER ""CHANGE'" COLUHN) = $341,289 (EST ~ 7,486%)
Delivery Date 03/29/88
Date Principat qoupon Interest Annual Refunded Change
08/01/88
02/01/89 100,000.00 5.250
08/01/89
02/01/90 295,000.00 5.500
08/01/90
02/01/91 315,000.00 5.750
08101191
02/01/92 330,000.00 6,000
08/01/92
02/01/93 350,000.00 6.250
08/01/93
02/01/94 370,000.00 6.500
08/01/94
02/01/95 395,000.00 6.700
08/01/95
02/01/96 425,000.00 6,800
08/01/96
02/01/97 455,000,00 6.900
08101197
02/01/98 485,000.00 7.000
08101198
02/01/99 520,000.00 7.100
08/01/99
02/01/00 555,000.00 7.200
08/01/00
02/01/01 600,000.00 7.300
08/01/01
02/01/02 640,000.00 7.400
08/01/02
02/01/03 690,000.00 7.500
08/01/03
02/01/0~ 740,000.00 7,600
08/01/0~
02/01/05 800,000.00 7.650
08/01/05
02/01/06 855,000.00 7.700
08/01/06
02/01/07 925,000.00 7.750
08/01/07
02/01/08 995,000.00 7,800
08/01/08
02/01/09 1,075,000,00 7,850
08/01/09
02/01/10 1,155,000.00 7,875
323,208.08
476,864.38
474,239.38
474,239.38
466,126.88
466,126.88
457,070.63
457,070.63
/447,170.63
447,170.63
436,233.13
436,233.13
424,208.13
424,208.13
410,975.63
410,975.63
396.525.63
396 525.63
380 828.13
380.828.13
363 853.13
363 853.13
345.393.13
345 393.13
325 413.13
325 413.13
303 513.13
303,513.13
279,833.13
279,833.13
253,958.13
253,958.13
225,638.13
225,838.13
195,238.13
195,238.13
162,320.63
162,320.63
126,476.88
126,476.88
87,671.88
87,671.88
45,478.13
45,478.13
900,072.45
1,243,478.75
1,247,253.75
1,244,141.25
1,244,341.25
1,242,466.25
1,243,416.25
1,246,951.25
1,248#051.25
1,246,656.25
1,247,706.25
1,245,786.25
1,250,826.25
1,247,026.25
1,249,666.25
1,247,916.25
1,251,676.25
1,245,476.25
1,249,641.25
1,247,953.75
1,250,343.75
1,245,956.25
1,248,352.50
1,243,727.50
1,247,840.00
1,244,840.00
1,245,160.00
1,243,320.00
1,244,240.00
1,247,400.00
1,247,250.00
1,244,400.00
1,243,850.00
1,245,150.00
1,246,675.00
1,244,037.50
1,247,237.50
1,245,350,00
1,248,375.00
1,245,387.50
1,246,:387.50
1,245,450.00
1,247,112.50
1,245,450.00
27,406,992.50
Totals: 13,070,000.00
Less Accrued From 03/29/88:
Net Cost:
14,016,803.70
,00
14,016,803,70
27,086,803.70
.00
27,086,803.70
-348,280.05
-248.75
-586.25
-698.75
-818.75
-853.75
-823.75
-448.75
801.25
2,256.25
3,856.25
636.25
4,151.25
2,988.75
2,428.75
2,566.25
3,301.25
3,253.75
2,503.75
3,231.25
506.25
-320,188.80
Values From Dated Date:
Average Interest Rate 7.54771322
Bond Years 185,709.27778
Average L ife 14.20882
Vatues From Detivery Date:
Bond Proceeds: 13,0~0,000.00
True Interest Rate 7.48863929
Day Basis is 30/360 (Municipal Bond)
CZTY OF DUBLIN, CALIFORNIA
1985 CERTIFICATES OF PARTICIPATION
CURRENT GROSS DEBT SERVICE
DeLivery Date 03/29/88
Date Principal Coupon Interest
08101188
02101189 195,000.00 7.500
08101189
02101190 205,000.00 7.750
08/01/90
02/01/91 225,000.00 8,000
08/01/91
02/01/92 240,000.00 8,200
08101192
02/01/93 260,000.00 8,400
08101193
02/01194 280,000.00 8.600
08/01/9~
02/01/95 .~05,000.00 8.800
08/01/95
02/01/96 335,000.00 9.000
08/01/96
02/01/97 365,000.00 9,000
08/01/97
02/01/98 395,000.00 9.000
08/01/98
02/01/99 430,000.00 9,000
08101199
02/01/00 470,000.00 9,250
08/01/00
02/01/01 515,000.00 9,250
08/01/01
02/01/02 560,000.00 9.250
08/01/02
02/01/03 615,000.00 9.250
08/01/03
02/01/04 670,000.00 9.250
08/01/04
02/01/05 T35,000.00 9.250
08/01/05
02/01/06 800,000.00 9.250
08101106
02/01/07 875,000.00 9.250
08/01/07
02/01/08 955,000.00 9.250
08/01/08
02/01/09 1,045,000.00 9.250
08101109
02/01/10 1,140,000.00 9.250
Totats: 11,615,000.00
Less Accrued From02/01/88:
Net Cost:
Vatues From Dated Date:
Average Interest Rate
526,676.25
526,676.25
519,363.75
519,363.75
511,420. O0
511,420.00
502,420.00
502,420.00
492,580.00
492,580.00
481,660.00
481,660.00
469,620.00
~69,620.00
456,200.00
456,200.00
441,125. O0
441,125. O0
424,700.00
424,700. O0
406,925.00
406,925.00
387, 575. O0
$87,575. O0
~65,837.50
~65,8~7.50
342,018.75
342,018.75
316,118.75
316 118.75
287.675. O0
287,675. O0
256.687.50
256.687.50
222.693.75
222 693.75
185 693.75
185 693.75
145 225.00
145,225.00
101,056.25
101,056.25
52,725.00
52,725.00
15,791,992.50
169,706.79
15,622,285.71
9.19395249
Totat
526,676.25
721,676.25
519,363.75
724,363.75
511,420.00
736,420.00
502,420.00
742,420.00
492,580.00
752,580.00
481,660.00
761,660. O0
469,620.00
774,620.00
456,200.00
791,200.00
441,125.00
806,125.00
424.700.00
819.700.00
406 925.00
836 925.00
387 575.00
857 575.00
~>5 837.50
880,837.50
342,018.75
902,018.75
316,118.75
931,118.75
287,675.00
957,675.00
256,687.50
991,687.50
222,693.75
1,022,693.75
185,693.75
1,060,693.75
145,225.00
1,100,225.00
101,056.25
1,146,056.25
52,725.00
1,192,725.00
27,406,992.50
169,706.79
27,237,285.71
Annua[
1,248,352.50
1,243,727.50
1,247,840.00
1,244,840.00
1,245,160.00
1,243,320.00
1,244,240.00
1,247,400.00
1,247,250.00
1,244,400.00
1,243,850.00
1,245,150.00
1,246,675.00
1,244,037.50
1,247,237.50
1,245,350.00
1,248,375.00
1,245,387.50
1,246,387.50
1,245,450.00
1,247,112.50
1,245,450.00
27,406,992.50
Bond Years 171,765.0000~.
Average Life 14.78820
VaLues From DeLivery Date:
Bond Proceeds:" 11,615,000.00
True Interest Rate 9.16685091
Day Basis is SO/'zj60 (HunicipaL Bond)