HomeMy WebLinkAbout1998-07-13 City Council (9)TO:
FROM:
DATE:
SUBJECT:
9/PIC-I City of PMo Alto
City Manager’s Report
HONORABLE CITY COUNCIL
CITY MANAGER DEPARTMENT:ADMINISTRATIVE
SERVICES
JULY 13, 1998 CMR:296:98
APPROVAL OF GOLF COURSE IMPROVEMENT PROJECT
FINANCING DOCUMENTS, AND AUTHORIZATION FOR STAFF
TO EXECUTE THE SALE OF AN AMOUNT NOT TO EXCEED
$8,600,000 IN CERTIFICATES OF PARTICIPATION TO FINANCE
GOLF COURSE IMPROVEMENTS
REPORT IN BRIEF
In July 1997, Council approved a Budget Amendment Ordinance to fund construction of the
golf course improvement capital project and directed staff to return with the necessary bond
documents to finance the project (CMR:327:97). Staff advised Council that with its
approval, bonds would be issued in approximately Spring 1998.
Golf course construction is underway, and staff is ready to execute the financing. Council
approval is now required in order to sell an amount not to exceed $8,600,009 in Certificates
of Participation (COPs) through a competitive sale process on August 4, 1998. The actual
bond sale will most likely be less than $8,600,000, but will depend on what happens with
interest rates prior to August 4.
To utilize COPs, cities must set up a nonprofit corporation. The City established a separate
legal entity in 1983, the Palo Alto Public Improvement Corporation (PIC). Up until this year,
the Board of Directors of the PIC consisted of ex-Council members that meet annually in
order to satisfy its articles of incorporation. To make for a more expeditious financing
process, and to allow for more future flexibility, bond counsel has drafted a resolution as part
of this package in which the City Council agrees to a change in the PIC bylaws (already
approved by the existing Board) that names the City Council as the Board of Directors of
the PIC.
CMR:296:98 Page 1 of 8
RECOMMENDATION
1.Staff recommends that the City Council:
o Approve a Resolution Approving, Authorizing, and Directing Execution of
Certain Lease Financing Documents, Approving Official Notice of Sale,
Approving a Preliminary Official Statement, and Authorizing and Directing
Certain Actions with Respect Thereto. These documents include the
acceptance by Council of the role as and duties of, the Board of Directors of
the Palo Alto Public Improvement Corporation.
Authorize staff to execute the sale of an amount not to exceed $8,600,000 in
Certificates of Participation to finance golf course improvements.
Staff recommends that the Council, acting as the Board of Directors of the Public
Improvement Corporation:
O Approve a Resolution Approving, Authorizing, and Directing Execution of
Certain Lease Financing Documents, Approving Official Notice of Sale,
Approving a Preliminary Official Statement,. and Authorizing and Directing
Certain Actions with Respect Thereto.
This second action will be taken during a separate meeting of the Corporation
that will be held during the Council meeting on this item.
BACKGROUND
In July 1997, Council approved a Budget Amendment Ordinance that included funding for
construction of the golf course improvement capital project and directed staff to return with
the necessary bond documents to finance the project (CMR:327:97). (Funding for design,
interim course improvements, and financial advisory services had already been appropriated
over the.previous months..) Staff advised Council that with its approval, bonds would be
issued in approximately Spring 1998. Council had, in 1996, approved a Resolution stating
that the City intended to issue financial obligations to fund the golf course improvements.
DISCUSSION
Council approval is .required in order to sell an amount not to exceed $8,600,000 in
Certificates of Participation (COPs) through a competitive sale process on August 4, 1998.
The City should receive funding from that sale on August 18. In a competitive sale, the City
is assisted by its financial advisor, Public Financial Management (PFM), in receiving and
evaluating bids submitted by underwriters to purchase the COPs. Underwriters are
investment banking firms, and the winning bidder will resell the COPs to investors, typically
CMR:296:98 Page 2 of 8
institutional investors like mutual funds. The bid with the lowest interest cost will be
awarded by the City. COPs are well known and accepted in the financial markets. The City,
with its excellent financial reputation, will have no problems selling the COPs in the market.
Certificates of Participation as a Financing Vehicle
COPs are technically a share of a stream of future lease payments purchased by investors.
They are not considered "debt" of the City, and are therefore exempt from the California
Constitution’s voter requirements, although they are regulated securities. The State
Constitution limits local governments from increasing general bonded indebtedness without
a two-thirds vote of the electorate. Therefore, absent a vote, virtually the only financing
vehicles available for the golf course improvement project is the issuance of Certificates of
Participation (COPs).
This form of financing has become a predominant form of financing in California. During
1997, the dollar value of COPs sold.by local governments in California exceeded the dollar
value of General Obligation Bonds, which do require a two-thirds voter approval. COPs
were used to fmance Civic Center garage seismic improvements in the early 1980’s, and to
make subsequent fire safety improvements to the Civic Center tower and seismically retrofit
the Police wing.
To utilize COPs as a financing vehicle, the City established a separate legal entity in 1983,
in this case a nonprofit corporation, the Palo Alto Public Improvement Corporation (PIC).
Documents presented to the Council in this package include those necessary for the PIC to
enter into a long-term lease of the Golf course from the City and then issue COPs on the
financial market. The proceeds from the issuance will be used to refinance the 1978 Golf
Course Lease Revenue Bonds and to finance the new golf course capital improvements.
Additional documents before Council include an agreement whereby the~S~ty agrees to lease
the golf course back from the PIC over 20 years and make. annual lease payments for the golf
course. Investors in the bond market are purchasing a share of the future stream of lease
payments that the City will make to a third party trustee for leasing the Golf Course back
from the PIC.(This form of transaction is often referred to as a lease-leaseback
arrangement.)
Financing Steps Taken To Date
Staff from the Administrative Services Department has worked with a financial advisor,
Public Financial Management (PFM) to assemble a COPs financing structure, and with staff
from the Attorney’s Office and with bond counsel (Jones Hall) to draft the legal documents
attached to this staff report. Staff from Administrative Services, Public Works, and
Community Services Departments, along with the Mayor and the City Manager are
scheduled to make presentations to two rating agencies (Moody’s and Standard and Poor’s)
on July 15. The rating is expected to be delivered to staff on July 29.
CMR:296:98 page 3 of 8
In order to make a more efficient financing process, staffhas also worked with bond counsel
to take the following actions:
When the City issued golf course lease revenue bonds in 1978, it did so by setting up
a nonprofit corporation, the Palo Alto Golf Course Corporation. On June 9, 1998 the
Golf Course Corporation met to approve staff’s taking various actions, including
refinancing the 1978 Lease Revenue Bonds and termination of the existing City lease
of the Golf Course. After the 1978 Bonds are fully retired on September 1, 1998,
another meeting of the Golf Course Corporation will be convened in order to dissolve
that body.
On June 29, 1998 the existing Board of the PIC (consisting of former City Council
Members Leland Levy, Kirke Comstock, Ellen Fletcher, Gail Woolley, and Betsy
Bechtel [absent]), approved a resolution changing the bylaws of the PIC. The bylaws
have been conditionally changed, subject to Council approval, to make the City
Council the Board of Directors of the PIC. That change will allow for a more
efficient financing process, and will reduce administrative costs. The City Council
will act as the Board, which is the prevailing arrangement for local govemments
throughout California. The resolution recommended for Council approval and
includes a clause that it (the Council) accepts its role as the PIC Board.
The City Council will be required to meet annually as the Board of the PIC, in
conjunction with a regularly scheduled Council meeting, and will take the actions it
needs to take annually (approve minutes and review financial statements). The time
commitment for this meeting is approximately 15 minutes annually. The Board has
no substantive oversight responsibilities, as it assigns all rights to receive lease
payments over to the Trustee (U.S. Bank Trust) for the benefit of the COPs investors.
Documents Submitted for Council Approval:
The following documents need Council’s approval before the COP’s can be sold by a
competitive sale on August 4. The documents below are grouped according to actions that
the City Council must approve, and those that the City Council acting as the Board of
Directors of the PIC must approve. Most of the documents below require approval of both
bodies, since they are agreements between the two parties. A separate agenda has been
prepared for the July 13 meeting in order for the Council, acting as the PIC Board, to take
the actions it needs to take. as that Board. Procedurally, during discussion of this Council
agenda item, the PIC Board meeting will be opened. Both meetings will be underway
concurrently, until the necessary resolutions have been approved by both the Council and the
Board. After that, the Board will adjourn and the Council will continue on with its regular
agenda.
CMR:296:98 Page 4 of 8
City Council Approval
Resolution Approving, Authorizing, and Directing Execution of Certain Lease
Financing Documents, Approving Official Notice of Sale, Approving a Preliminary
Official Statement, and Authorizing and Directing Certain Actions with Respect
Thereto
By approving this resolution, the City Council affirms that it accepts its
designation as the Board of Directors of the PIC. The resolution further
authorizes the Mayor, City Manager, the Administrative Services Director or
their designee to sign and execute various documents, and to make any
changes to those documents that are minor in nature. Council is also
approving as to form the Preliminary Official Statement containing
information material to the offering and sale of the COPs. The documents
staff will sign with Council’s approval are:
O A termination of the existing Lease between the City and the Golf
Course Corporation dating from 1977. The Golf Course Corporation
was set up as the financing vehicle for the 1978 golf course financing
much like the PIC was set up for the 1983 Civic Center financing. The
Golf Course Corporation Board has already met and approved this
existing lease cancellation from its side, and canceling this lease will
allow the old bonds to be defeased and will allow the City to enter into
a new lease agreement with the PIC;
o Property Lease of the golf course site between the City and the Public
Improvement Corporation (PIC). In this documer~[~, the _City is granting
a 20 year lease to the PIC.
o A Lease Agreement between the PIC, now acting as lessor, and the
City. In this document, the City agrees to lease back the golf course
and its improvements from the PIC for 20 years. The City agrees in this
document to make the lease payments that will be sold to investors
through the Certificates of Participation;
A Trust Agreement between the City, the PIC, and U.S. Bank Trust
National Association, the financial institution that will act as Trustee
over the life of the COPs. In this agreement, the Trustee is instructed
to set up the proceeds from the financing into separate funds for
construction, for lease payment, and for a reserve fund. This agreement
CMR:296:98 Page 5 of 8
further specifies that the City shall make its lease payments directly to
the Trustee, and not through the PIC.
0 An escrow agreement between the Golf Course Corporation, the City,
and U.S. Trust Bank National, acting as Escrow Agent. This agreement
provides for the full payment and retirement of the existing golf course
bonds on September 1, 1998.
O An official Notice of Sale to the investment community seeking bids to
be received at the law offices of Jones Hall at 9:00 a.m. on August 4,
1998.
o Continuing Disclosure Certificate
Approval by the City. Council Acting as Board of Directors of the Public Irnprovement
Corporation
Resolution Approving, Authorizing, and Directing Execution of Certain Lease
Financing Documents, Approving Official Notice of Sale, Approving a Preliminary
Official Statement, and Authorizing and Directing Certain Actions with Respect
Thereto
o Assignment Agreement Dated August 1, 1998 by and between the Palo
Alto Public Improvement Corporation and U.S..Bank Trust National
Association, as trustee. (This document is the only one that the City
Council, acting as the Council, does not also approve.) This document
transfers all rights and responsibilities to the City’s lease payments
from the PIC to the Trustee for the benefit of the owners of the COPs.
These rights and responsibilities include the right to collect lease
payments from the City, to enforce payment of the lease, and take
action to protect the rights of the COP holders.
o Property Lease;
o Lease Agreement;
o Trust Agreement.
RESOURCE IMPACT
Council approval is needed in order to sell not to exceed $8,600,000 in COPs. No additional
budget appropriation is needed. Funds have already been appropriated for construction,
CMR:296:98 Page 6 of 8
design, interim course improvements, and financial advisory services. Issuance costs
(underwriters fees, bond counsel fees, rating agency fees, etc.) will be paid through the sale,
in much the same way that closing costs are paid in a home sale escrow process. A detailed
cost breakdown is shown as Attachment A. Council approval is needed for the attached legal
documents, which will give staff the authority to execute a sale of COPs through a
competitive sale process on August 4, 1998. Funding from that sale will be received on
August 18.
The precise dollar amount of the financing will not be known until competitive bids are
received from bidding underwriting firms on August 4, and will depend on the true interest
rate that the City has to pay for the COPs. The lower the interest rate, the less the total
financing costs annually and over time. Interest rates have been fairly stable recently, and
the City’s financial advisor, PFM, has estimated the interest rate that the City will pay in
today’s interest rate environment to be around 5.25 percent. However, the bids will not be
received until about 30 days from the time this report is being written, and much can change
in the bond market over that time period. Depending on what happens between now and
August 4, it is probable that the interest rates will be close to 5.25 percent.
The above amount, $8,600,000, is larger than the estimate provided in CMR:327:97 in July
1997 for two reasons. First, staff and the financial advisor recommend defeasing the existing
(1978) golf course bonds, totaling $650,000, due to the favorable interest rates now available.
Second, staff has added dollars as a contingency in the unlikely event interest rates rise
significantly in the next month. Bonds will not exceed this amount and should, in fact, be
lower.
By entering into the attached legal documents, the City is entering into a long-term lease
arrangement. The bond documents obligate the General Fund to make~l~e lease payments
to cover the COPs on an annual basis. ~ ~ --
Depending on final interest rates in effect, annual lease payments by the City should average
around $675,000. Within one year of the golf course greens’ grow-back period after the golf
course improvements are completed, golf course revenues should fully fund the costs of the
lease payments, as well as all golf course operating budget costs, i.e., with no impact on the
General Fund. Staff and PFM projects that golf fees will need to be raised in the 2000-01
budget in order to generate sufficient revenues. After golf fees are raised, they will match
the average fees of Bay Area public golf courses.
POLICY IMPLICATIONS
Approval of the attached financing documents is consistent with prior Council policy
direction and with the Golf Course Master Improvement Plan. The City Council approved
CMR:296:98 Page 7 of 8
a Resolution on April 22, 1996, stating that the City intended to issue financial obligations
to improve the golf course (CMR:233:96).
TIMELINE
Key upcoming dates include:
July 15
July 29
August 4
August 18
September 1
March 1, 1999
Rating agency presentations
City obtains ratings
Bids from underwriters received. Assuming bids are acceptable, City
accepts the highest price bidder (i.e., the bidder with lowest interest
cost).
COPs sale closing.
Final payment (principal) on current Golf Course Lease Revenue
Bonds, (existing bonds defeased).
First principal payment due on new COPs.
ENVIRONMENTAL REVIEW
Authorizing staff to sell COPs is not a project under the Califomia Environmental Quality
Act (CEQA). The City Council approved a Mitigated Negative Declaration for the golf
course improvement project itself in May 1995 (CMR:248:95). The Mitigated Negative
Declaration determined that any potential impacts can be mitigated to levels of less than
significance and will be incorporated into the design of the project. .,~,_
PREPARED BY:Jim Steele, Manager of Investments and Debt, Administrative
Services Department
APPROVED BY:
CITY MANAGER APPROVAL:
Services
CC: Palo Alto Golf Advisory Committee
Manager
CMR:296:98 Page 8 of 8
Attachment A
Golf Course Financing Costs
(estimated)
Item
Construction Costs
Design Costs Already Incurred
Financial Advisor Costs
Already Incurred or
Encumbered
Interim Improvement Expenses
Already Incurred
Bond Reserve
Issuance Costs:
Refunding of 1978 Golf
Course Lease Revenue Bonds
Contingency for Unlikely
Increase in Interest Rates
TOTAL Issuance Costs Not
to Exceed
Dollars
$5,7O0,000
Construction began in
May, and is scheduled
for completion in
November.
$430,000
$40,000
$230,000
$700,000 (estimate)
$400,000 (estimate)
Underwriter Fees
Legal Fees
Rating Agency Fees
$650,000
$450,000
$8,600,000
Will go to
1. City of Palo Alto for costs
already incurred.
2. U.S. Bank Trust (trustee)
to be held in a trust account
pending completion of con-
struction and progress
payment authorization from
City to pay contractors.
1. City of Palo Alto for
costs already incurred.
1. City of Palo Alto for
costs already incurred
1. City of Palo Alto for
costs already incurred
U.S. Bank Trust, and will
earn inte~st
Unknown until certificates
sale
Unknown
Jones Hall
Moody’s and Standard and
Poor’s
U.S. Bank Trust, acting as
Trustee, will pay off
current bond holders
CITY OF PALO ALTO
RESOLUTION NO.
A RESOLUTION APPROVING, AUTHORIZING AND DIRECTING
EXECUTION OF CERTAIN LEASE FINANCING DOCUMENTS,,
APPROVING OFFICIAL NOTICE OF SALE, APPROVING A PRELIMINARY OFFICIAL
STATEMENT, AND AUTHORIZING AND DIRECTING CERTAIN ACTIONS
WITH RESPECT THERETO
The Council of the City of Palo Alto does hereby resolve as follows:
WHEREAS, the City of Palo Alto Golf Course Corporation (the "Golf Course
Corporation") issued its $1,800,000 Lease Revenue Bonds, Series 1978 (the "1978 Bonds"), the
proceeds of which were used to construct improvements to the Palo Alto municipal golf course
(the "Golf Course"), a new clubhouse and pro shop and necessary appurtenances therefor (the
"1978 Project"); and
WHEREAS, the 1978 Bonds were issued pursuant to Resolution No. 78-2, entitled "A
Resolution Authorizing the Issuance of Golf Course Lease Revenue Bonds of the City of Palo
Alto Golf Course Corporation and Providing for the Issuance of Series 1978 Thereof", adopted
by the Board of Directors of the Golf Course Corporation on February 14, 1978 (the "1978 Bond
Resolution"); and
WHEREAS, in order to secure the 1978 Bonds, the City of Palo Alto (the "City") and the
Golf Course Corporation entered into a Lease of Golf Course Facility (as amended), dated
October 3, 1977 (the "1977 Lease"), under which the Base Rent (as defined in the 1977 Lease) to
be paid by the City was calculated to be sufficient to pay debt service on the 1978 Bonds; and
WHEREAS, the City wishes to finance additional improVements to the Golf Course,
including upgrading five fairways and various traps, trees and greens; cons~ting new storm
drain facilities; replacing the existing irrigation system; upgrading the driving range; and
.installing new cart paths (the "1998 Project"); and
WHEREAS, the City has determined to refinance the 1978 Bonds and finance the 1998
Project by entering into a Lease Agreement, dated as of August 1, 1998, between the Palo Alto
Public Improvement Corporation (the "Corporation") and the City (the "Lease Agreement"); and
WHEREAS, for the purpose of obtaining the moneys required to be deposited by it with
U.S. Bank Trust National Association (the "Trustee") to pay for financing the 1998 Project and
refunding the 1978 Bonds, the Corporation proposes to assign and transfer certain of its rights
under the Lease Agreement to the Trustee, and in consideration of such assignment and the
execution of a Trust Agreement, dated as of August 1, 1998, among the Trustee, the City and
the Corporation (the "Trust Agreement"), the ’Trustee has agreed to execute and deliver
certificates of participation, each evidencing a fractional interest in the lease payments made by
the City under the Lease Agreement;
WHEREAS, in connection therewitl~, it is in the public interest and for the public benefit
that the City authorize and direct execution of the Lease Agreement and certain other financing
documents in connection therewith; and
WHEREAS, it is appropriate at this time for the City Council to serve as the Board of
Directors of the Corporation; and
WHEREAS, pursuant to the City’s authorization, Jones Hall, A Professional Law
Corporation, as disclosure counsel to the City, has prepared and presented to the City a form
of preliminary official statement containing information material to the offering and sale of the
certificates of participation described below (the "Preliminary Official Statement"); and
WHEREAS, the documents below specified have been filed with the City, and the
members of the City Council, with the aid of its staff, have reviewed said documents;
NOW, THEREFORE, it is hereby ORDERED and DETERMINED, as follows:
Section 1. The below-enumerated documents be and are hereby approved, and the
Mayor, the City Manager, the Administrative Services Director or a designee appointed by any
such officer (in each case, an "Authorized Officer") are hereby separately authorized and
directed to execute said documents, with such changes, insertions and omissions as may be
approved by such official, and the City Clerk is hereby authorized and directed to attest to
such Authorized Officer’s signature:
(a) a Property Lease, relating to the lease of the Palo Alto Municipal Golf
Course (the "Site"), between the Corporation and the City, dated as of June 1, 1998 (the
"Property Lease");
(b) a Lease Agreement, relating to the Site and the 1998 Project (together, the
"Leased Property"), between the Corporation, as lessor, and the City, as lessee (the
"Lease Agreement"), so long as the stated term of the Lease Agreement does not extend
beyond August 1, 2028, so long as the principal amount of the Lease Agreement does
not exceed $8,600,000 and so long as the lease payments payable by the City under the
Lease Agreement in any twelve-month period, beginning on June 2 and ending on the
succeeding June 1, do not exceed $830,000;
(c) a Trust Agreement, by and among the Corporation, the C4~,_and the Trustee,
relating to the execution and delivery of certificates of participation evidencing the
fractional interests of the owners thereof in lease payments to be made by the City under
the Lease Agreement (the "Certificates of Participation");
(d) an Escrow Deposit and Trust Agreement, between the City, the Golf Course
Corporation and U.S. Bank Trust National Association, as escrow bank (the "Escrow
Bank"), relating to the creation and funding of an escrow deposit for the 1978 Bonds;
and
(e) A Termination of Lease Agreement, relating to the termination of the 1977
Lease, between the Golf Course Corporation and the City.
Section 2. The City Council hereby authorizes and directs the competitive sale of the
Certificates in accordance with the Notice of Sale in substantially the form on file with the City
Clerk, together with any changes therein or additions thereto deemed advisable by the Director
¯ of Administrative Services. The Authorized Officer is authorized and directed for and in the
name and on behalf of the City to accept the best bid for the sale of the Certificates, asdetermined in accordance with the Notice of Sale.
.-2D
Section 3. Pursuant to Section 53692 of the Government Code, Jones Hall, as bond
counsel to the City, is hereby authorized and directed to cause the Notice of Intention to Sell
Certificates, in substantially the form on file with the City Clerk, together with any changes
therein or additions thereto deemed advisable by the Director of Administrative Services, to be
published once in The Bond Buyer. Such publication shall be made not later than fifteen (15)
days prior to the date set for receipt of bids on the Certificates.
Section 4. The City Council hereby accepts the designation by the Board of Directors of
the Corporation of the members of the City Council of the City as the members of the Board of
Directors of the Corporation. From and after the adoption of this Resolution, the Corporation
shall be governed by a Board of Directors made up of the members of the City Council of the
City of Palo Alto.
Section 5. The Authorized Officer, the City Clerk and other officials of the City are
hereby authorized and directed to execute such other agreements, documents and certificates as
may be necessary to effect the purposes of this resolution and the lease financing and
refinancing herein authorized.
Section 6. To the best of the City’s knowledge, information and belief, the Preliminary
Official Statement contains no untrue statement of a material fact with respect to the City or
omits to state a material fact with respect to the City required to be stated where necessary to
make any statement made therein not misleading in the light of the circumstances under which it
was made.
Section 7. The City hereby approves, and hereby deems nearly final within the meaning
of Rule 15c2-12 of the Securities Exchange Act of 1934, the preliminary Official Statement
describing the Certificates of Participation, in the form on file with the Director of
Administrative Services. The Financial Advisor is hereby authorized to distribute the Official
Statement in connection with the sale of the Certificates of Participation. The Authorized
Officer is hereby authorized and directed to (a) execute and deliver to the purchaser of the
Certificates of Participation a certificate deeming the preliminary Official Statement to be nearly
final as of its date, (b) approve any changes in or additions to cause such Official Statement to
be put in final form, and (c) execute said final Official Statement for and in the name and on
behalf of the City.
Section 8. The Authorized Officers are separately authorized to approve corrections and
additions to the Preliminary Official Statement by supplement or amendment thereto, or
otherwise as appropriate, provided that any such corrections or additions shall be necessary to
cause the information contained therein to conform with facts material to the Certificates of
Participation, or to the proceedings of the City or such corrections or additions are in form
rather than in substance.
Section 9. The Mayor, the City Manager and the Administrative Services Director are
separately authorized and directed to cause the Preliminary Official Statement to be brought
into the form of a final official statement (the "Final Official Statement") and to execute said
Final Official Statement, dated as of the date of the sale of the Certificates of Participation,
and the City Manager and Administrative Services Director are separately authorized and
directed to execute a statement that the facts contained in the Final Official Statement, and any
supplement or amendment thereto (which shall be deemed an original part thereof for the
purpose of such statement) were, at the time of sale of the Certificates of Participation, true
and correct in aH material respects and that the Final Official Statement did not, on the date of
sale of the Certificates of Participation, and does not, as of the date of delivery of the
Certificates of Participation, contain any untrue statement of a material fact with respect to the
City or omit to state material facts with respect to the City required to be stated where
necessary to make any statement made therein not misleading in the light of the circumstances
under which it was made. The Mayor, the City Manager or the Adn~nistrative Services Director
shall take such further actions prior to the signing of the Final Official Statement as are deemed
necessary or appropriate to verify the accuracy thereof.
Section 10. The Final Official Statement, when prepared, is approved for distribution in
connection with the offering and sale of the Certificates of Participation.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:
City Clerk
APPROVED AS TO FORM:
Senior Assistant City Attorney
Mayor
City Manager
Director of Administrative Services
Director of Community Services
PLEASE RECORD, AND
WHEN RECORDED, RETURN TO:
JONES HALL,
A Professional Law Corporation
650 California Street, 18th Floor
San Francisco, California 94108
Attention: William H. Madison, Esq.
THIS TRANSACTION IS EXEMPT FROM CALIFORNIA DOCUMENTARY
TRANSFER TAX PURSUANT TO SECTION 11922 OF THE CALIFORNIA
REVENUE AND TAXATION CODE. THIS DOCUMENT IS EXEMPT FROM
RECORDING FEES PURSUANT TO SECTION 6103 OF THE CALIFORNIA
GOVERNMENT CODE.
TERMINATION AGREEMENT
(LEASE OF GOLF COURSE FACILITY (AS AMENDED))
THIS TERMINATION AGREEMENT is made and entered into as of
August 1, 1998, by and between the CITY OF PALO ALTO GOLF COURSE
CORPORATION, a nonprofit corporation duly organized and existing under the
laws of the State of California (the "Golf Course Corporation") and the CITY OF
PALO ALTO, a chartered municipal corporation organized and existing under
the laws of the State of California (the "City");
WITNESSETH:
WHEREAS, the Golf Course Corporation issued its $1,800,000 Lease
Revenue Bonds, Series 1978 (the "1978 Bonds"), the proceeds of which were used
to construct improvements to the Palo Alto municipal golf course (the "Golf
Course"), a new clubhouse and pro shop and necessary appurtenances therefor
(the "1978 Project"); and
WHEREAS, the 1978 Bonds were issued pursuant to Resolution No. 78-
2, entitled "A Resolution Authorizing the Issuance of Golf Course Lease Revenue
Bonds of the City of Palo. Alto Golf Course Corporation and Providing for the
Issuance of Series 1978 Thereof’, adopted by’th6 Board of Directors of the Golf
Course Corporation on February 14, 1978 (the "1978 Bond Resolution"); and
WHEREAS, in order to secure the 1978 Bonds, the City and the Golf
Course Corporation entered into a Lease of Golf Course Facility (as amended),
dated October 3, 1977 (the "1977 Lease"), under which the Base Rent (as defined
in the 1978 Lease) to be paid by the City was calculated to be sufficient to pay
debt service on the 1978 Bonds; and
WHEREAS, the City wishes to finance additional improvements to the
Golf Course, including upgrading five fairways and various traps, trees and
greens; constructing new storm drain facilities; replacing the existing irrigation
systemi upgrading the driving range; and installing new cart paths (the ’"1998
Project"); and
WHEREAS, the City and the Palo Alto Public Improvement Corporation
(the "Corporation") have determined to refund the 1978 Bonds and finance the
1998 Project by entering into a Lease Agreement, dated as of August 1, 1998,
between the Corporation and the City (the "Lease Agreement’); and
WHEREAS, for the purpose of obtaining the moneys required to refund
the 1978 Bonds and finance the 1998 Project, the Corporation proposes to assign
and transfer certain of its rights under the Lease Agreement to U.S Bank Trust
National Association (the "Trustee"), and in consideration of such assignment
and the execution of a Trust Agreement, dated as of August 1, 1998, among the
Trustee, the City and the Corporation (the "Trust Agreement"), the Trustee has
agreed to execute and deliver certificates of participation, in the principal
amount of $. (the "1998 Certificates") each evidencing a fractional
interest in the lease payments made by the City under the Lease Agreement, to
provide the moneys required herein to be deposited by the Corporation;
WHEREAS, the City and the Golf Course Corporation propose to make a
deposit of moneys and Federal Securities from the proceeds of the 1998
Certificates and to appoint the Escrow Bank as their agent for the purpose of
applying said deposit to the payment of debt service on the 1978 Bonds in
accordance with the instructions provided by that certain Escrow Deposit and
Trust Agreement, dated as of August 1, 1998, among the City, the Golf Course
Corporation and the Trustee, as Escrow Bank, and to the payment and
redemption of the 1978 Bonds in accordance with the 1978 Bond Resolution, and
the Escrow Bank desires to accept said appointment; and
WHEREAS, in connection with the delivery of the Lease Agreement, it is
necessary to terminate the 1977 Lease;
NOW, THEREFORE, for and in consideration of the premises and the
material covenants hereinafter contained, the parties hereto here .l~formally
covenant, agree and bind themselves as follows:
Section 1. Termination of 1977 Lease. The 1977 Lease is hereby
terminated with respect to the land and related real property described more
fully in Exhibit A attached hereto and by this reference incorporated herein.
Section 2. Recordation Hereof. The City shall, at its expense, cause a
copy of this Termination Agreement to be recordedin the Santa Clara County
Recorder’s Office. The City and the Corporation shall execute any and all
documents, and take any and all actions, as may be required to accomplish the
termination of the 1977 Lease with respect to the land and real property
described in Exhibit A attached hereto, and the discharge of the 1977 Lease of
record with respect to such land and real property.
Section 3. Execution in Counterparts. This Termination Agreement may
be executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
-2-
Section 4. Applicable Law. This Termination Agreement shall be
governed by and construed in accordance with the laws of the State of
California.
-3-
IN WITNESS WHEREOF, the Corporation and the City have caused this
Termination Agreement to be executed in their respective names by their duly
authorized officers, all as of the date first above written.
CITY OF PALO ALTO GOLF
COURSE CORPORATION, as
lessee and sublessor
By
Attest:
By
CITY OF PALO ALTO, as lessor
and sublessee
[S E AL]
Attest:
By
City Manager
By
City Clerk
APPROVED:
FIRST TRUST NATIONAL
ASSOCIATION, as Successor
Trustee to Bank of America
National Trust and Savings
Association
By
-4-
EXHIBIT A
Legal Description
[to come]
26005-47 JH:WHM:cco PROPOSED FINAL 07/01/98
PLEASE RECORD, AND
WHEN RECORDED, RETURN TO:
William H. Madison, Esq.
Jones Hall, A Professional Law Corporation
650 California Street, 18th Floor
San Francisco, California 94108
PROPERTY LEASE
Dated as of August 1, 1998
by and between the
CITY OF PALO ALTO,
as Lessor
and the
PALO ALTO PUBLIC IMPROVEMENT CORPORATION,
as Lessee
TABLE OF CONTENTS
PROPERTY LEASE
Section 1.01.
Section 1.02.
Section 1.03.
Section 1.04.
Section 2.01.
Section 2.02.
Section 3.01.
Section 3.02.
Section 3.03.
Section 3.04.
Section 3.05.
Section 5.01.
Section 5.02.
Section 5.03.
Section 5.04.
Section 5.05.
Section 5.06.
Section 5.07.
Section 5.08.
Section 5.09.
Section 5.10.
Section 5.11.
EXHIBIT A
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Definitions ...........................................................................................................2
Article and Section Headings ................................................................................2
References to Agreement ......................................................................................2
Number and Gender ......................: .....................................................................2
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Representations, Covenants and Warranties of the City ..........................................3
Representations, Covenants and Warranties of Corporation ....................................3
ARTICLE III
AGREEMENT TO LEASE; TERM OF
PROPERTY LEASE; PROPERTY LEASE PAYMENT
Lease ...................................................................................................................4
Term ....................................................................................................................4
Property Lease Payment .......................................................................................4
Title .....................................................................................................................4
No Merger ...........................................................................................................4
ARTICLE W
EMINENT DOMAIN; NET PROCEEDS
Eminent Domain ..................................................................................................5
Application of Net Proceeds ..................................................................................5
ARTICLE V
MISCELLANEOUS
Liens ....................................................................................................................6
Assignment and Subleasing by the Corporation ....................................................6
Amendment ..........................................................................................., .............6
Notices .................................................................................................................6
Binding Effect .......................................................................................................6
Severability ..........................................................................................................6
Further Assurances and Corrective Instruments .....................................................6
Execution in Counterparts .....................................................................................7
Applicable Law ....................................................................................................7
Corporation and City Representatives ...................................................................7
Captions ..........: ....................................................................................................7
DESCRIPTION OF SITE ....................................................................................A-1
PROPERTY LEASE
THIS PROPERTY LEASE, dated for convenience as of August 1, 1998, by and between
the CITY OF PALO ALTO, a chartered municipal corporation duly organized and existing
under the Constitution and laws of the State of California, as lessor (the "City"), and the PALO
ALTO PUBLIC IMPROVEMENT CORPORATION, a nonprofit public benefit corporation duly
formed, organized and acting pursuant to the laws of the State of California (the
"Corporation"), as lessee; and
WI TNE S S E TH:
WHEREAS, the City of Palo Alto Golf Course Corporation (the "Golf Course
Corporation") issued its $1,800,000 Lease Revenue Bonds, Series 1978 (the "1978 Bonds"), the
proceeds of which were used to construct improvements to the Palo Alto municipal golf course
(the "Golf Course"), a new clubhouse and pro shop and necessary appurtenances therefor (the
"1978 Project"); and
WHEREAS, the 1978 Bonds were issued pursuant to Resolution No. 78-2, entitled "A
Resolution Authorizing the Issuance of Golf Course Lease Revenue Bonds of the City of Palo
Alto Golf Course Corporation and Providing for the Issuance of Series 1978 Thereof’, adopted
by the Board of Directors of the Golf Course Corporation on February 14, 1978 (the "1978 Bond
Resolution"); and
WHEREAS, in order to secure the 1978 Bonds, the City and the Golf Course
Corporation entered into a Lease of Golf Course Facility (as amended), dated October 3, 1977
(the "1977 Lease"), under which the Base Rent (as defined in the 1978 Lease) to be paid bythe
City was calculated to be sufficient to pay debt service on the 1978 Bonds; and
WHEREAS, the City wishes to finance additional improvements to the Golf Course,
including upgrading five fairways and various traps, trees and greens; constructing new storm
drain facilities; replacing the existing irrigation system; upgrading the ~6ving range; and
installing new cart paths (the "Project"); and ~ ~ -
WHEREAS, the City has determined to refinance the 1978 Bonds and finance the
Project by entering into this Property Lease, and a Lease Agreement, dated as of August 1,
1998, between the Corporation and the City (the "Lease Agreement"); and
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:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. All terms specifically defined in the Trust Agreement dated
as of August 1, 1998 by and among U.S. Bank Trust National Association, as trustee, the
Corporation and the City (the "Trust Agreement") shall have the same respective meanings
when used herein. In addition, the following terms defined in this Section 1.01 shall have the
respective meanings herein set forth when used herein.
"Lease Agreement" means the Lease Agreement, dated as of August 1, 1998, by and
between the Corporation as lessor and the City as lessee, together with any duly authorized
and executed amendments thereto.
"Permitted Encumbrances" means, as of any particular time: (i) liens for general ad
valorem taxes and assessments, if any, not then delinquent; (ii) the Assignment Agreement; (iii)
this Property Lease and the Lease Agreement; (iv) the Trust Agreement; (v) any right or claim of
any mechanic, laborer, materialman, supplier or vendor not filed or perfected in the manner
prescribed by law; (vi) easements, rights of way, mineral rights, drilling rights and other rights,
reservations, covenants, conditions or restrictions which exist of record as of the date on which
the Certificates are delivered to the purchasers thereof and which the City certifies in writing
will not materially impair the use of the Site for the Project; and (vii) easements, rights of way,
mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions
established following the date of recordation of this Property Lease and to which the
Corporation and the City consent in writing.
"Property Lease" means this Property Lease, together with any duly authorized and
executed amendments hereto.
"Property Lease Payment" means the payment required to be paid by the Corporation
on the Closing Date pursuant to Section 3.03.
"Site" means the real property located in the City described in Exhibit A_hereto, together
with all improvements located thereon as of the Closing Date.
Section 1.02. Article and Section Headings. Unless otherwise specified, references to
Articles, Sections, and other subdivisions of this Property Lease are to be designated Articles,
Sections, and other subdivisions of this Property Lease as originally executed. The headings or
titles of the several articles and sections, and the table of contents appended to copies hereof,
shall be solely for convenience of reference and shall not affect the meaning, construction or
effect of the provisions hereof.
Section 1.03. ~. The words "hereoF’, "herein", "hereunder", and
words of similar import refer to this Property Lease as a whole.
Section 1.04. n r. The singular form of any word used herein,
including terms defined as provided in Section 1.01, shall include the plural, and vice versa.
The use of a word of any gender shall include all genders.
-2-
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.01. Representations, Covenants and Warranties of the~. The City
represents, covenants and warrants to the Corporation as follows:
(a) Due Organization and Existence. The City is a chartered municipal
corporation duly organized and existing under the Constitution and laws of the State.
(b) Authorization. The laws of the State authorize the City to enter into this
Property Lease and to enter into the transactions contemplated by and to carry out its
obligations under this Property Lease, and the City has duly authorized and executed
this Property Lease.
(c) No Violations. Neither the execution and delivery of this Property Lease nor
the fulfillment of or compliance with the terms and conditions hereof nor the
consummation of the transactions contemplated hereby, conflicts with or results in a
breach of the terms, conditions or provisions of any restriction or any agreement or
instrument to which the City is now a party or by which the City is bound, or constitutes
a default under any of the foregoing, or results in the creation or imposition of any lien,
charge or encumbrances whatsoever upon any of the property or assets of the City, or
upon the Site or the Project, except Permitted Encumbrances.
Section 2.02. R .r n " venants and Warr n" r r i . The
Corporation represents, covenants and warrants to the City as follows:
(a) Due Organization and Existence. The Corporation is a nonprofit public
benefit corporation duly formed, operating and existing under the laws of the State; has
power to enter into the Property Lease; is possessed of full power to sublease real and
personal property; and has duly authorized the execution and delivery of this Property
Lease.
(b) Authorization. The laws of the State authorize the Corporation to enter into
this Property Lease and to enter into the transactions contemplated by and to carry out.
its obligations under this Property Lease, and the Corporation has duly authorized and
executed this Property Lease.
(c) No Violations. Neither the execution and delivery of this Property Lease nor
the fulfillment of or compliance with the terms and conditions hereof, nor the
consummation of the transactions contemplated hereby, conflicts with or results in a
breach of the terms, conditions or provisions of any restriction or any agreement or
instrument to which the Corporation is now a party or by which the Corporation is
bound, or constitutes a default under any of the foregoing, or results in the creation or
imposition of any lien, charge or encumbrance whatsoever upon any of the property or
assets of the Corporation, or upon the Project or the Site, except Permitted
Encumbrances.
AGREEMENT TO LEASE; TERM OF
PROPERTY LEASE; PROPERTY LEASE PAYMENT
Section 3.01. ~_e_a.~. The City hereby leases the Site to the Corporation, and the
Corporation hereby leases the Site from the City, upon the terms and conditions set forth in this
Property Lease.
Section 3.02. Term. The term of this Property Lease shall commence on the Closing
Date and shall end on September 1, 2018, unless such term is extended as hereinafter provided.
If on September 1, 2018, the Trust Agreement shall not be discharged by its terms, then the Term
of this Property Lease shall be extended until the Trust Agreement shall be discharged by its
terms (but in no event beyond September 1, 2028). If prior to September 1, 2018, the Trust
Agreement shall be discharged by its terms, the Term of this Property Lease shall thereupon
end.
Section 3.03. Property Lease Payment. The Corporation hereby agrees to pay to the
City, as rental for the use and occupancy of the Project and the Site during the term of this
Property Lease, the amount of Dollars ($ ) which shall
be due and payable on the Closing Date, and which shall be deemed to have been paid when
the proceeds of the Certificates are deposited with the Trustee. No further amounts shall be
due and payable by the Corporation to the City under this Property Lease.
Section 3.04..TJ~. Title to the Site shall reside in the City, and during the term of this
Property Lease, the City shall hold title to the Site and any and all additions which comprise
fixtures, repairs, replacements or modifications to the Site, including those fixtures, repairs,
replacements or modifications which are added to the Site by the City at its own expense and
which may be removed without damaging the Project and including any items added to the Site
by the City pursuant to Section 5.8 of the Lease Agreement.
Section 3.05. ~LQ.~gxg~. It is the express intention of the parties hereto that this
Property Lease and the obligations of the parties hereunder shall be and remain separate and
distinct from the Lease and the obligations of the parties thereunder, and that during the term
of the Lease no merger of title or interest occur or be deemed to occur as aresult of the position
of the City as lessee under the Lease and as lessor under this Property Lease, or the position of
the Corporation as lessee under this Property Lease.
ARTICLE IV
EMINENT DOMAIN; NET PROCEEDS
Section 4.01. Eminent Domain. If all of the Site 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 Property Lease shall cease as of the day possession shall be so taken.
If less than all of the Site shall be taken permanently, or if all of the Site or any part thereof shall
be taken ternporarily, under the power of eminent domain, this Property Lease shall 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.
Section 4.02. Application of Net Proceeds. The Net Proceeds of any insurance award
resulting from any damage to or destruction of the Site or any improvements thereon by fire or
other casualty, and the Net Proceeds of any eminent domain award resulting from any event
described in Section 4.01 hereof, shall be applied as set forth in Section 6.2(a) of the Lease
Agreement. All such Net Proceeds shall be paid to the City or the Trustee as their interests may
appear under the Lease Agreement, and the Corporation hereby waives any and all right, .title
and interest which it may have in and to any such Net Proceeds by virtue of its estate in the Site
under this Property Lease.
ARTICLE V
MISCELLANEOUS
Section 5.01. L_Li.i.i.i.iK~. The Corporation shall not, directly or indirectly, create, assume or
suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to the
Site, other than the respective rights of the Corporation and the City as herein provided and
Permitted Encumbrances.
Section 5.02. Assignment and Subleasing by the Corporation. For the purpose of
providing funds to enable the Corporation to pay the Property Lease Payment on the Closing
Date, the Corporation has leased the Site and the Project (the "Leased Property") to the City
pursuant to the Lease Agreement. The Corporation shall not have the right to further sublease
or to assign any of its interests under this Property Lease in and to the Leased Property or any
portion thereof.
Section 5.03. Amendment. Without the prior written consent of the Trustee, the
Corporation and the City will not alter, modify or cancel, or agree or consent to alter, modify or
cancel this Property Lease, excepting only such alteration or modification as may be permitted
by Article X of the Trust Agreement.
Section 5.04. ~. 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 Clerk
City of Palo Alto
P. O. Box 10250
Palo Alto, CA 94303
If to the Corporation:Palo Alto Public Improvement Corporation
c/o City Clerk
P. O. Box 10250 ’~ --
Palo Alto, CA 94303
If to the Trustee:U.S. Bank Trust National Association
One California Street, 4th Floor
San Francisco, CA 94111
The Corporation, the Trustee and the City, by notice given hereunder, may designate
different addresses to which subsequent notices, certificates or other communications will be
sent.
Section 5.05. ~. This Property Lease shall inure to the benefit of and shall
be binding upon the Corporation and the City and, their respective successors and assigns.
Section 5.06. v~B..e,,Ked.a]~[~. In the event any provision of this Property 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 5.07. h iv m . 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 Site
hereby leased or intended so to be or for carrying out the expressed intention of this Property
Lease.
Section 5.08. Execution in Counterparts. This Property Lease may be executed in
several counterparts, each of which shallbe an original and all of which shall constitute but one
and the same instrument.
Section 5.09. ~.l~plicable Law. This Property Lease shall be governed by and construed
in accordance with the laws of the State.
Section 5.10. Gorporation and. City, Representatives. Whenever under the provisions of
this Property 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 an Corporation Representative and for the City by
an Corporation Representative, and any party hereto shall be authorized to rely upon any such
approval or request.
Section 5.11.. Captions. The captions or headings in this Property Lease are for
convenience only and in no way define, limit or describe the scope or intent of any provisions or
Section of this Property Lease.
IN WITNESS WHEREOF, the Corporation has caused this Property Lease to be
executed in its name by its duly authorized officers and sealed with its corporate seal; and the
City has caused this Property Lease to be executed in its name by its duly authorized officers
and sealed with its corporate seal, as of the date first above written.
CITY OF PALO ALTO,
By
City Manager
(s E A L)
Attest:
By
City Clerk
PALO ALTO PUBLIC IMPROVEMENT
CORPORATION,
(S E A L)
By
President
Attest:
By
Secretary
STATE OF CALIFORNIA
COUNTY OF
) ss
)
On before me,, Notary
Public, personally appeared , personally known to me or
proved to me on the basis of satisfactory evidence tO be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
EXHIBIT A
DESCRIPTION OF SITE
A-1
26005-47 JH:WHM:cco PROPOSED FINAL 07/01/98
PLEASE RECORD, AND
WHEN RECORDED, RETURN TO:
William H. Madison, Esq.
Jones Hall, A Professional Law Corporation
650 California Street, 18th Floor
San Francisco, California 94108
LEASE AGREEMENT
Dated as of August 1, 1998
by and between the
PALO ALTO PUBLIC IMPROVEMENT CORPORATION,
as Lessor
and the
CITY OF PALO ALTO,
as Lessee
TABLE OF CONTENTS
LEASE AGREEMENT
Section 1.1.
Section 1.2.
Section 1.3.
Section 1.4.
Section 1.5.
Section 2.1.
Section 2.2.
Section 3.1.
Section 3.2.
Section 3.3.
Section 3.4.
Section 3.5.
Section 3.6.
Section 4.1.
Section 4.2.
Section 4.3.
Section 4.4.
Section 4.5.
Section 4.6.
Section 4.7.
Section 5.1.
Section 5.2.
Section 5.3.
Section 5.4.
Section 5.5.
Section 5.6.
Section 5.7.
Section 5.8.
ARTICLE I
DEFINITIONS AND EXHIBITS
Definitions ...........................................................................................................2
Article and Section Headings ................................................................................3
References to Agreement ......................................................................................3
Number and Gender ............................................................................................3
Exhibits ................................................................................................................3
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Representations, Covenants and Warranties of the City ..........................................4
Representations~ Covenants and Warranties of Corporation ....................................4
ARTICLE III
DEPOSIT OF MONEYS; ACQUISITION AND
CONSTRUCTION OF THE PROJECT;
SUBSTITUTION AND REMOVAL OF LEASED PROPERTY
Deposit of Moneys ................................................................................................6
Acquisition and Construction of Project ........., ........................................................6
Payment of Construction Costs ..............................................................................6
Payment of Costs of Issuance .................................................................................6
Substitution of Leased Property .............................................................................6
Removal of Property from Leased Property ...........................................................7
ARTICLE W
AGREEMENT TO LEASE; TERM OF LEASE AGREEMENT;
LEASE PAYMENTS
Agreement to Lease ...........................................................................~ ..................9
Term of Lease Agreement .....................................................................................9
Lease Payments ....................................................................................................9
Quiet Enjoyment...: ...................................................................................: ........10
Title...............................; ......................, ............................................................10
Additional Payments ..........................................................................................11
No Merger .........................................................................................................11
ARTICLE V
MAINTENANCE; TAXES; INSURANCE; AND OTHER
MATTERS
Maintenance, Utilities, Taxes and Assessments ....................................................12
Modification of Project .........................................................................................12
Public Liability and Property Damage Insurance .................................................13
Fire and Extended Coverage Insurance ...............................................................13
Insurance Net Proceeds .......................................................................................13
Self-lnsurance .....................................................................................................14
Advances ...........................................................................................................14
Installation of City’s Equipment ...........................................................................14
-i-
Section 5:9.
Section 5.10.
Section 6.1.
Section 6.2.
Section 6.3.
Section 7.1.
Section 7.2.
Section 7.3.
Section 8.1.
Section 8.2.
Section 8.3.
Section 9.1.
Section 9.2.
Section 9.3.
Section 9.4.
Section 9.5.
Section 9.6.
Section 9.7.
Section 10.1.
Section 10.2.
Section 10.3. ¯
Section 10.4.
Liens ..................................................................................................................14
Compliance With Property Lease ........................................................................15
ARTICLE VI
DAMAGE, DESTRUCTION AND EMINENT DOMAIN;
USE OF NET PROCEEDS
Eminent Domain ................................................................................................16
Application of Net Proceeds ................................................................................16
Abatement of Rental in the Event of Damage or Destruction ................................16
ARTICLE VII
DISCLAIMER OF WARRANTIES; ACCESS
Disclaimer of Warranties .....................................................................................18
Access to the Leased Property ...................................................... .......................18
Release and Indemnification Covenants ...............................................................18
ARTICLE VIII
ASSIGNMENT, LEASING AND AMENDMENT
Assignment by the Corporation ..........................................................................19
Assignment and leasing by the City ...................................................................19
Amendment of Lease Agreement ........................................................................19
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
ARTICLE X
PREPAYMENT OF LEASE PAYMENTS
Security Deposit ...................................................... ...........................................23
Prepayment .......................................................................................................23
Mandatory Prepayment.., ................ ...................................................................23
Credit for Amounts on Deposit ............................................................................23
oil-
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.
EXHIBIT A
EXHIBIT B
ARTICLE XI
MISCELLANEOUS
Notices ...............................................................................................................24
Binding Effect .....................................................................................................24
Severability ........................................................................................................24
Net-net-net Lease ................................................................................................24
Further Assurances and Corrective Instruments ...................................................24
Execution in Counterparts ......................................................................’ ..............24
Applicable Law ..................................................................................................24
Corporation and City Representatives .................................................................24
Captions .............................................................................................................25
SCHEDULE OF LEASE PAYMENTS ’. ...........A-1
DESCRIPTION OF SITE .....................................................................................B-1
-III-
LEASE AGREEMENT
THIS LEASE AGREEMENT, dated for convenience as of August 1, 1998, by and
between the PALO ALTO PUBLIC IMPROVEMENT .CORPORATION, a nonprofit public
benefit corporation formed, operating and acting pursuant to the laws of the State of California
(the "Corporation") as lessor, and the CITY OF PALO ALTO, a chartered municipal
corporation duly organized and existing under the Constitution and laws of the State of
California, as lessee (the "City");
WI TNE S S E TH:
WHEREAS, the City of Palo Alto Golf Course Corporation (the "Golf Course
Corporation") issued its $1,800,000 Lease Revenue Bonds, Series 1978 (the "1978 Bonds"), the
proceeds of which were used to construct improvements to the Palo Alto municipal golf course
(the "Golf Course"), a new clubhouse and pro shop and necessary appurtenances therefor (the
"1978 Project"); and
WHEREAS, the 1978 Bonds were issued pursuant to Resolution No. 78-2, entitled "A
Resolution Authorizing the Issuance of Golf Course Lease Revenue Bonds of the City of Palo
Alto Golf Course Corporation and Providing for the Issuance of Series 1978 Thereot~’, adopted
by the Board of Directors of the Golf Course Corporation on February 14, 1978 (the "1978 Bond
Resolution"); and
WHEREAS, in order to secure the 1978 Bonds, the City of Palo Alto (the "City") and the
Golf Course Corporation entered into a Lease of Golf Course Facility (as amended), dated
October 3, 1977 (the "1977 Lease"), under which the Base Rent (as defined in the 1978 Lease) to
be paid by the City was calculated to be sufficient to pay debt service on the 1978 Bonds; and
WHEREAS, the City wishes to finance additional improvements to the Golf Course,
including upgrading five fairways and various traps, trees and greens; constructing new storm
drain facilities; replacing the existing irrigation system; upgrading the driving range; and
installing new cart paths (the "Project"); and
WHEREAS, the ,City has determined to refinance the 1978 Bonds and finance the
Project by entering into this Lease Agreement; and
WHEREAS, the Corporation will establish a trust pursuant to the Trust Agreement and
direct the Trustee to execute and deliver the Certificates representing undivided fractional
interests in the Lease Payments to and including the earlier of the maturity or redemption of the
Certificates; and
WHEREAS, the City is authorized under its charter and the Constitution and the laws
of the State of California to enter into this Lease Agreement for the purposes and subject to the
terms and conditions set forth herein.
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:
ARTICLE I
DEFINITIONS AND EXHIBITS
Section 1.1. Definitions. All terms specifically defined in the~Trust Agreement shall
have the same respective meanings when used herein. In addition, the following terms defined
in this Section 1.1 shall have the respective meanings herein set forth when used herein.
"Code" means the Internal Revenue Code of 1986, as amended.
"Escrow Bank" means U.S. Bank Trust National Association.
"Escrow Deposit and Trust Agreement" means that certain Escrow Deposit and Trust
Agreement, dated as of August 1, 1998, among the Escrow Bank the City and the Golf Course
Corporation.
"Escrow Fund" means the escrow fund created under the Escrow Deposit and Trust
Agreement.
"Golf Course Corporation" means the City of Palo Alto Golf Course Corporation, a
nonprofit corporation organized and existing under the general nonprofit corporation law of the
State of California, and its successors and assigns.
"Lease Agreement" means this Lease Agreement, together with any duly authorized and
executed amendments hereto.
"Lease Payment Date" means February 15 and August 15 of each year during the Term
of this Lease Agreement, commencing February 15, 1999.
"Leased Property" means the Site, as improved by the Project.
"1977 Lease Agreement" means that certain Lease of Golf Course E~ty (as amended),
dated October 3, 1977, between the City and the Golf Course Corporation.
"Original Purchaser" means the first purchaser of the Certificates upon their delivery by
the Trustee.
"Permitted Encumbrances" means, as of any particular time: fi) liens for general ad
valorem taxes and assessments, if any, not then delinquent; (ii) the Assignment Agreement; (iii)
the Property Lease and this Lease Agreement; (iv) any right or claim of any mechanic, laborer,
materialman, supplier or vendor not filed or perfected in the manner prescribed by law; (v)
easements, rights of way, mineral rights, drilling rights and other rights, reservations, covenants,
conditions or restrictions which exist of record as of the Closing Date and which the City
certifies in writing will not materially impair the use of the Site for the Project; and (.vi)
easements, rights of way, mineral rights, dr’.fll, ing rights and other rights, reservations, covenants,
conditions or restrictions established following the date of recordation of this Lease Agreement
and to which the Corporation and the City consent in writing.
"Project" means the improvements to be made to the Palo Alto Municipal Golf Course,
including upgrading five fairways and various traps, trees and greens; constructing new storm
drain facilities; replacing the existing irrigation system; upgrading the driving range; and
installing new cart paths, and other miscellaneous improvements, all located on the Site.
"Property Lease" means the Property Lease, dated as of August 1, 1998, by and
between the City as lessor and the Corporation as lessee, together with any duly authorized
and executed amendments thereto.
"Property Lease Payment, means the payment required to be paid by the Corporation
on the Closing Date pursuant to Section 3.03 of the Property Lease.
"Regulations" means temporary and permanent regulations promulgated under the Code.
"Rental Period" means each twelve-month period during the Term of this Lease
Agreement commencing on September 2 in any year and ending on the next succeeding
September 1, except that the first rental period shall commence on August 1, 1998.
"Site’s means all of that certain real property located in the City described in Exhibit B
hereto, together with all improvements thereon as of the Closing Date, on which the Project is to
be constructed.
"Trust Agreement" means the Trust Agreement dated as of August 1, 1998 by and
among Trustee, the Corporation and the City relating to the Certificates.
Section 1.2. Article and Section Headings. Unless otherwise specified, references to
Articles, Sections, and other subdivisions of this Lease Agreement are to be designated Articles,
Sections, and other subdivisions of this Lease Agreement as originally executed. The headings
or titles of the several articles and sections, and the table of contents appended to copies
hereof, shall be solely for convenience of reference and shall not affect the meaning, construction
or effect of the provisions hereof.
Section 1.3. n r The words "hereof’, "herein", "hereunder", and
words of similar import refer to this Lease Agreement as a whole.
Section 1.4. Number and Gender. The singular form of any word used herein, including
terms defined as provided in Section 1.1, shall include the plural, and vice versa. The use of a
word of any gender shall include all genders. ~ __ ~
Section 1.5. ~ The following Exhibits are attached to, and by reference made a
part of, this Lease Agreement:
Exhibit A: The schedule of Lease Payments to be paid by the City hereunder with
respect to the Leased Property, showing the date and amount of each such Lease Payment.
Exhibit B: The description of the real property constituting the Site.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.1. Representations. Covenants and W~rr~nties of the City. The City
represents, covenants and warrants to the Corporation as follows:
(a) Due Organization and Existence. The City is a chartered municipal
corporation duly organized and existing under the Constitution and laws of the State.
(b) Authorization. The laws of the State authorize the City to enter into the
Property Lease, this Lease Agreement and the Trust Agreement and to enter into the
transactions contemplated by and to carry out its obligations under all of the aforesaid
Agreements, and the City has duly authorized and executed all of the aforesaid
Agreements.
(c) No Violations. Neither the execution and delivery of the Property Lease, this
Lease Agreement or the Trust Agreement, nor the fulfillment of or compliance with the
terms and conditions hereof or thereof, nor the consummation of the transactions
contemplated hereby or thereby, conflicts with or results in a breach of the terms,
conditions or provisions of any restriction or any agreement or instrument to which the
City is now a party or by which the City is bound, or constitutes a default under any of
the foregoing, or results in the creation or imposition of any lien, charge or encumbrances
whatsoever upon any of the property or assets of the City, or upon the Site or the
Project, except Permitted Encumbrances.
(d) Possession of Site. The City has heretofore taken possession of the Site.
(e) Private Activity Bond Limitation. The City shall assure that the proceeds of
the Bonds are not so used as to cause the Bonds to satisfy the private business tests of
section 141(b) of the Code or the private loan financing test of section 141(b) of the
Code or the private loan financing test of section 141(c) of the Code.
(f) 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 Lease
Payments to be "federally guaranteed" within the meaning of section 149(b) of the Code
and Regulations promulgated thereunder.
Section 2.2. I~e4,resentations. Covenants and Warranties of Corporation~ The
Corporation represents, covenants and warrants to the City as follows:
(a) Due Organization and Existence. The Corporation is a nonprofit public
benefit corporation duly organized, operating and existing under the laws of the State of
California; has power to enter into the Property Lease, this Lease Agreement, the
Assignment Agreement and the Trust Agreement; is possessed of full power to lease real
and personal property; and has duly authorized the execution and delivery of all of the
aforesaid Agreements.
(b) No Encumbrances. The Corporation will not pledge the Lease Payments or
any other amounts derived from the Project or the Site and from its other rights under
this Lease Agreement, and will not mortgage or encumber the Project or the Site, except
as provided under the terms of the Property Lease, this Lease Agreement, the
Assignment Agreement or the Trust Agreement.
(c) No Violations. Neither the execution and delivery of the Property Lease, this
Lease Agreement, the Assignment Agreement or the Trust Agreement, nor the fulfillment
of or compliance with the terms and conditions hereof or thereof, nor the consummation
of the transactions contemplated hereby or thereby, conflicts with or results in a breach
of the terms, conditions or provisions of any restriction or any agreement or instrument
to which the Corporation is now a party or by which the Corporation is bound, or
constitutes a default under any of the foregoing, or results in the creation or imposition
of any Lien, charge or encumbrance whatsoever upon any of the property or assets of the
Corporation, or upon the Project or the Site, except Permitted Encumbrances.
(d) No Assignments. Except as provided herein, the Corporation will not assign
this Lease Agreement, its right to receive Lease Payments from the City, or its duties and
obLigations hereunder to any other person, firm or corporat’~on so as to impair or violate
the representations, covenants and warranties contained in this Section 2.2.
ARTICLE 1~I
DEPOSIT OF MONEYS; ACQUISITION AND
CONSTRUCTION OF THE PROJECT;
SUBSTITUTION AND REMOVAL OF LEASED PROPERTY
Section 3.1. Deposit of Money_~ On the Closing Date, the Corporation shall cause to be
deposited with the Trustee the proceeds of the sale of the Certificates. Pursuant to Section 3.01
of the Trust Agreement, the accrued interest with respect to the Certificates shall be deposited
in the Lease Payment Fund, the amount of $ shall be deposited in the Reserve Fund,
$. shall be deposited in the Costs of Issuance Fund, $ shall be
deposited in the Escrow Fund, and the remainder of such proceeds shall be deposited into the
Construction Fund.
Section 3.2. Acquisition and Construction of the Project. The Corporation hereby
appoints the City as its agent for the purposes of construction, installation and equipping of the
Project. The City, as agent of the Corporation, shall cause the construction, installation and
equipping of the Project, to be performed diligently to the end that the Project will be
substantially completed in accordance with the aforesaid plans and specifications on or prior
to Upon completion, the City shall file a Certificate of Completion with the
Trustee. In addition, in the event that the costs of acquiring, delivering and installing the Project
or any portion thereof are greater than the amount of money deposited in or transferred to the
Construction Fund, together with investment earnings thereon, the City agrees if, under such
circumstances, it nonetheless desires to construct, deliver or install such portion of the Project,
to deposit into the Construction Fund an amount of money necessary to pay such increased
Construction Costs, but only from legally available funds, if any.
Section 3.3. Payment of Construction Costs. Payment for the acquisition, construction,
installation and equipping of the Project shall be made from the moneys deposited in the
Construction Fund, which moneys shall be disbursed for such purpose in accordance and upon
compliance with Section 3.02 of the Trust Agreement.
Section 3.4. Payment of Costs of Issuance. Payment of Costs of Issuance shall be made
from the moneys deposited in the Costs of Issuance Fund, which moneys shall be disbursed for
such purpose in accordance and upon compliance with the Trust Agreement.
Section 3.5. Substitution of Leased Property. The City shall have, and is hereby
granted, the option at any time and from time to time during the Term of this Lease, to
substitute other land, facilities, improvements or other property (a "Substitute Property") for the
Leased Property or any portion thereof (a "Former Property"), provided that the City shall
satisfy all of the following requirements which are hereby declared to be conditions precedent to
such substitution:
(a) The City shall notify S&P and Moody’s in writing of such substitution, which
notice shall contain the certification that all conditions set forth in this Section 3.5 are
met with respect to such substitution;
(b) The City shall take all actions and shall execute all documents required to
subject such Substitute Property to the terms and provisions of this Lease, including the
filing with the Corporation and the Trustee an amended Exhibit B which adds thereto a
description of such Substitute Property and deletes therefrom the description of such
Former Property, and including the recordation of this Lease or a memorandum hereof
with respect to such Substitute Property in the office of the Santa Clara County
Recorder;
(c) The City shall certify in writing to the Corporation and the Trustee, such
certification to be accompanied by an appraisal prepared by an appraiser who is
independent of the City, that the estimated fair market value and the estimated fair
rental value of such Substitute Property are at least equal to estimated fair market value
and the estimated fair rental value, respectively, of such Former Property, except that
the estimated fair market value of such Substitute Property, together with the portion of
the Leased Property remaining after the removal of the Former Property, shall not be
required to exceed the aggregate principal components of the unpaid Lease Payments;
(d) The City shall certify in writing to the Corporation and the Trustee that such
Substitute Property serves the public purposes of the City and constitutes property
which the City is permitted to lease under the laws of the State of California;
(e) The City shall certify in writing to the Corporation and the Trustee that the
estimated useful life of such Substitute Property at least extends to the date on which
the final Lease Payment becomes due and payable hereunder;
(f) The City shall obtain a CLTA policy of title insurance meeting the
requirements of Section 5.4 with respect to such Substitute Property; and
(g) The Substitute Property shall not cause the City to violate any of its
covenants, representations and warranties made herein or in the Trust Agreement.
From and after the date on which all of the foregoing conditions precedent to such
substitution are satisfied, the Term of this Lease shall cease with respect to the Former Property
and shall be continued with respect to the Substitute Property, and all references herein to the
Former Property shall apply with full force and effect to the Substitute Project. The City shall
not be entitled to any reduction, diminution, extension or other modification of the Lease
Payments whatsoever as a result of such substitution.
Section 3.6. Removal of Provertv from Leased Property. The C~ty shall have, and is
hereby granted, the option at any tinge a~d from time to tim~ during the ~Ferm ~f this Lease, to
remove any property from the description of the Leased Property, provided that the City shall
satisfy all of the following requirements which are hereby declared to be conditions precedent to
such removal:
(a) The City shall receive written evidence from S&P and Moody’s that such
removal will not cause the withdrawal or reduction of the rating then assigned to the
Certificates by S&P and Moody’s;
(b) The City shall file with the Corporation and the Trustee an amended Exhibit
B, which deletes therefrom the description of the property to be removed;
(c) The City shall obtain a report of an independent appraiser certifying that the
appraised .value of the Leased Property which will remain following such removal is not
less than the aggregate principal amount of the Outstanding Certificates;
(d) The City shall obtain and cause to be filed with the Trustee and the
Corporation an opinion of Bond Counsel stating that such removal is permitted
hereunder and does not cause interest with respect to the Certificates to become
includable in the gross income of the Certificate Owners for federal income tax purposes.
From and after the date on which all of the foregoing conditions, precedent to such
removal are satisfied, the Term of this Lease shall cease with respect to the property which is so
removed. The City shall not be entitled to any reduction, diminution, extension or other
modification of the Lease Payments whatsoever as a result of such removal.
ARTICLE IV
AGREEMENT TO LEASE; TERM OF LEASE AGREEMENT;
LEASE PAYMENTS
Section 4.1. Agreement to Lease. The Corporation hereby subleases the Leased
Property to the City, and the City hereby subleases the Leased. Property from the Corporation,
upon the terms and conditions set forth in this Lease Agreement.
Section 4.2. Term of Lease Agreement, The Term of this Lease Agreement shall
commence on August 1, 1998 and shall end on September 1, 2018 unless such term is extended
as hereinafter provided. If on September 1, 2018, the Trust Agreement shall not be discharged
by its terms, then the Term of this Lease Agreement shall be extended until the Trust Agreement
shall be discharged by its terms (but in no event beyond September 1, 2028). If prior to
September 1, 2018, the Trust Agreement shall be discharged by its terms, the Term of this Lease
Agreement shall thereupon end.
.Section 4.3. Lease Payments. (a) Obligation to Pay. Subject to the provisions of
Articles VI and X, the City agrees to pay to the Corporation, its successors and assigns, as
rental for the use and occupancy of the Leased Property hereunder during each Rental Period,
the Lease Payments (denominated into components of principal and interest) for the Leased
Property in the respective amounts specified in Exhibit A, to be due and payable on the
respective Lease Payment Dates specified in Exhibit A.
Any amount held in the Lease Payment Fund on any Lease Payment Date (other than
amounts resulting from the prepayment of the Lease Payments in part but not in whole
pursuant to Article X and other than amounts required for payment of past due principal or
interest represented by any Certificates not presented for payment) shall be credited towards
the Lease Payment then due and payable; and no Lease Payment need be made on any Lease
Payment Date if the amounts then held in the Lease Payment Fund and available for such
purpose are at least equal to the Lease Payment then required to be paid. The Lease Payments
for the Leased Property payable in any Rental Period shall be for the~e of the Leased
Property during such Rental Period. The City has determined, and hereby warrants to the
Corporation, that in the event the Leased Property is not functional as a golf course, the Leased
Property has value to the City and its residents as open space, and the City acknowledges that
Lease Payments will continue to be due and payable for the use and possession of the Leased
Property, notwithstanding the fact that the Leased Property is not functional as a golf course.
(b) Effect of Prepayment. In the event that the City prepays all remaining Lease
Payments, including any premium, if any, in full pursuant to Article X, the City’s obligations
under this Lease Agreement shall thereupon cease and terminate, including but not limited to
the City’s obligation to pay Lease Payments under this Section 4.3; 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 purchases the Leased Property pursuant to Section 10.2, the amount paid
pursuant to Section 10.2 shall be credited entirely towards the prepayment in full or in part of
the Lease Payments. In the event that the City prepays the Lease Payments in part but not in
whole pursuant to Section 10.3 as a result of any insurance award or condemnation award with
respect to the Leased Property, such prepayment shall be credited entirely towards the
prepayment of the Lease Payments as follows: (i) the principal components of the remaining
Lease Payments shall be reduced on a pro rata basis in integral multiples of $5,000; and (ii) the
interest component of the remaining Lease Payments shall be reduced by the aggregate
corresponding amount of interest which would otherwise be payable with respect to the
Certificates thereby redeemed pursuant to Section 4.01(c) of the Trust Agreement:
(c) Fair Rental Value. The Lease Payments for the Leased Property for each Rental
Period shall constitute the total rental for the Project and Site during 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 Leased Property during
each Rental Period. The parties hereto have agreed and determined that the total Lease
Payments for the Leased Property do not exceed the fair rental value of the Leased Property.
In making such determination, consideration has been given to the estimated value of the Leased
Property, the obligations of the parties under the Property Lease and this Lease Agreement, the
uses and purposes which may be served by the Leased Property and the benefits therefrom
which will accrue tothe City and the general public.
(d) Budget and Appropriation. The City covenants to take such action as may be
necessary to include all Lease Payments due hereunder in each of its budgets during the Term of
this Lease Agreement and to make the necessary annual appropriations for all such Lease
Payments, except to the extent such Lease Payments are payable from amounts on deposit in
the Lease Payment Fund. During the Term of this Lease Agreement, the City will furnish to the
Trustee a certificate that the Lease Payments due in the applicable fiscal year have been
included in the City’s budget for such fiscal year within thirty (30) days after the adoption of
each 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 Agreement agreed to be carried out and performed by
the City.
(e) Assignment. The City understands and agrees that all 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 its
Principal Corporate Trust Office, all payments payable by the City pursuant to this Section 4.4
and all amounts payable by the City pursuant to Article X.
Section 4.4. ~ The Corporation shall provide the City with quiet use
and enjoyment of the Leased Property, and the City shall, for the remainder of the Term of this
Lease Agreement, peaceably and quietly have and hold and enjoy the Leased Property, 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 Leased Property as provided in Section 7.2.
Sec’tion 4.5. ~ Title to the Leased Property shall be in the City and during the term
of this Lease Agreement, the City shall hold title to the Leased Property and any and all
additions which comprise fixtures, repairs, replacements or modifications to the Leased
Property, including those fixtures, repairs, replacements or modifications which are added to
the Leased Property by the City at its own expense and which may be removed without
damaging the Leased Property and including any items added to the Leased Property by the
City pursuant to Section 5.8 hereof. Such title shall be governed by the provisions of Section 3.4
of the Property Lease during the term of the Property Lease.
If the City prepays the Lease Payments in full pursuant to Article X or makes the
security deposit permitted by Section 10.1, or pays all Lease Payments during the Term of this
Lease Agreement as the same become due and payable, all right, title and interest of the
Corporation under the Property Lease in and to the Leased Property (determined in accordance
with Sections 3.1 or 3.4 thereof) shall be terminated. The Corporation agrees to take any and
all steps and execute and record any and all documents reasonably required by the City to
consummate any such termination of leasehold estate.
Section 4.6. Additional Payments. In addition to the Lease Payments, the City shall
pay when due, during the term of the Lease Agreement, 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 Costs of Issuance
Fund), compensation due to the Trustee and all reasonable costs and expenses of auditors,
engineers and accountants.
Section 4.7. No Merger. It is the express intention of the parties hereto that this Lease
Agreement and the obligations of the parties hereunder shall be and remain separate and
distinct from the Property Lease and the obligations of the parties thereunder, and that during
the term of the Property Lease no merger of title or interest shall occur or be deemed to occur as
a result of the position of the City as lessor under the Property Lease and as lessee hereunder,
or as a result of the position of the Corporation as lessee under the Property Lease and as
lessor under this Lease Agreement.
-11-
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 Leased Property, all
improvement, repair and maintenance of the Leased Property shall be the responsibility of the
City, and the City shall pay for or otherwise arrange for the payment of all utility services
supplied to the Leased Property, which may include, without limitation, janitor service,
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 Leased
Property resulting from ordinary wear and tear or want of care on the part of the City or any
assignee or lessee thereof. In exchange for the Lease Payments herein provided, the Corporation
agrees to provide only the Leased Property, as hereinbefore more specifically set forth. The
City waives the benefits of subsections 1 and 2 of Section 1942 of the California Civil Code,
and waives the right to make repairs at the expense of the Corporation or in lieu thereof, vacate
under Section 1942 of the California Civil Code, and all similar rights under the statues of
similar effect, but such waiver shall not limit any of the rights of the City under the terms of this
Lease Agreement.
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 Leased Property or the
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 Leased Property 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 shall, at its own expense, have the right
to remodel the Leased Property or to make additions, modifications and improvements to the
Leased Property. All additions, modifications and improvements shall thereafter comprise
part of the Leased Property and be subject to the provisions of this Lease Agreement. Such
additions, modifications and improvements shall not in any way damage the Leased Property
or cause it to be used for purposes other than those authorized under the provisions of state
and federal law; and the Leased Property, 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 Leased Property 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 or the Site for labor or materials furnished 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 shall 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
Leased Property, 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, throughout the Term of this Lease Agreement, 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 damage occasioned by reason of the operation of
the Leased Property. Said policy or policies shall provide coverage in the minimum 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, and in a minimum amount of
$150,000 (subject to a deductible clause of not to exceed $250,000, or such higher amount as
the City shall determine, provided that such higher deductible shall be considered a self insured
retention which shall meet the requirements of Section 5.6 hereof) for damage to property
resulting from each accident or event. Suchpublic liability and property damage insurance may,
however, be in the form of a single limit policy in the amount of $3,000,000 per occurrence
covering all such risks. 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 5.6
hereof). The proceeds of such liability insurance shall be applied toward extinguishment or
satisfaction of the liability with respect to which the proceeds of such insurance shall have been
paid.
Section 5.4. Fire and Extended Coverage Insurance: Title Insurance. fi) The City shall
procure and maintain, or cause to be procured and maintained, throughout the remainder of the
Term of this Lease Agreement, insurance against loss or damage to any structures constituting
any part of a Project by fire and lightning, with extended coverage and vandalism and
malicious mischief insurance. 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
equal to 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. Such insurance
may be maintained as part of or in conjunction with any other fire and extended 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 5.6 hereof). The City hereby assigns to the
Corporation all right of the City to collect and receive Net Proceeds under any of said policies,
which right has been assigned by the Corporation to the Trustee pursuant to the Assignment
Agreement. The Net Proceeds of such insurance shall be applied as provided in Section 6.2(a).
(ii) The City shall procure, and deliver to the Trustee on the Closing Date, a title
insurance policy which insures the leasehold estate created under this Agreement, in an amount
equal to the principal amount of the Certificates of Participation.
Section 5.5. n Pr "F m f P li i Each policy of insurance required
by Sections 5.4 and 5.5 hereof shall provide that all proceeds thereunder shall be payable to the
Trustee as and to the extent required hereunder. All policies of insurance required by this Lease
Agreement and any statements of self-insurance shall be in form satisfactory to the Trustee.
The City shall pay or cause to be paid when due the premiums for all insurance policies
required by this Lease Agreement. 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 shall be fully protected in accepting payment on account of such
insurance or any adjustment, compromise or settlement of any loss agreed to by the Trustee.
The City shall cause to be delivered to the Trustee annually evidence that the insurance policies
required by this Lease Agreement are in full force and effect.
Section 5.6. Advances. If the City shall fail to perform any of its obligations under this
Article the Corporation may, but shall not be obligated to, 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 soon as possible, with interest at the rate of ten percent (10%) per
annum from the date of the advance to the date of repayment.
Section 5.7. 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 Leased Property. All such items shall
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 Agreement 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 or the Site.
Section 5.8. ~ The City shall not, directly or indirectly, create, incur, assume or
suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to the
Project or the Site, other than the respective rights of the Corporation and the City as herein
provided and Permitted Encumbrances. 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, encumbrance or claim, for which it is
responsible, if the same shall arise at any time. The City shall reimburse the Corporation for
any expense incurred by it in order to discharge or remove any such mortgage, pledge, lien,
charge, encumbrance or claim.
Section 5.9. _Compliance With Property. Lease. During the term~f the~roperty Lease,
the City will observe and perform all agreements and obligations on its behalf required to be
observed and performed thereunder. The City will not take any action or permit any action
within its control to be taken which constitutes or which, if not corrected, with the passage of
time or with notice, or both, would constitute or cause to occur any default under the Property
Lease.
ARTICLE VI
DAMAGE, DESTRUCTION AND EMINENT DOMAIN;
USE OF NET PROCEEDS
Section 6.1. Eminent Domain. If the Leased Property 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 as of the day possession shall be
so taken. If less than all of the Leased Property shall be taken permanently, or if the Leased
Property or any part thereof shall be taken temporarily, under the power of eminent domain, (1)
this Lease Agreement shall 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 (2) there shall
be a partial abatement of Lease Payments as a result of the application of the Net Proceeds of
any eminent domain award to the prepayment of the Lease Payments hereunder, in an amount
to be agreed upon by the City and the Corporation such that the resulting Lease Payments
represent fair consideration for the use and occupancy of the remaining usable portion of the
Leased Property. The City covenants to contest any eminent domain award which is
insufficient to either : (i) redeem the Certificates in whole, if all of the Leased Property is
condemned; or (ii) redeem a pro rata share of Certificates, in the event that less than all of the
Leased Property is condemned.
Section 6.2. Application of Net Proceeds.. (a) From Insurance Award. The Net
Proceeds of any insurance award resulting from any damage to or destruction of any 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 for
application as set forth in Section 6.01 of the Trust Agreement.
(b) From Eminent Domain Award. The Net Proceeds of any eminent domain award
resulting from any event described in Section 6.1 hereof shall be paid to the Trustee, as assignee
of the Corporation under the Assignment Agreement, and deposited in the Insurance and
Condemnation Fund for application as set forth in Section 6.02 of the Trust Agreement.
Section 6.3. Abatement of Rental in the Event of Damage or DeStruction, (i) Subject to
the provisions of paragraph (ii), the amount of 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 (other than any portions of the Project described in Section 5.2) or the Site or
any portion thereof. The amount of such abatement shall be agreed upon by the City and the
Corporation such that the resulting Lease Payments represent fair consideration for the use and
occupancy of the portions of the Leased Property 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 Agreement shall continue in full force and effect and the City waives
any right to terminate this Lease Agreement by virtue of any such damage and destruction.
However, notwithstanding any other provisions of this Section 6.3, there shall be no abatement
of Lease Payments under this Section 6.3 to the extent that the proceeds of an eminent domain
or insurance award are available to pay Lease Payments, or to the extent that moneys are
available in the Lease Payment Fund or the Reserve Fund, it being hereby declared that such
proceeds and amounts constitute special funds for the payment of the Lease Payments.
(ii) Notwithstanding the provisions of paragraph (i) above, the City hereby declares
and represents that the Leased Property has intrinsic value to the residents of the City as open
space, whether or not the Leased Property is actually operational as a golf course, and the City
represents that the Lease Payments represent fair consideration for use and possession of the
Leased Property as open space, notwithstanding any damage or destruction to the Leased
Property which interferes with its use as a golf course.
ARTICLE VII
DISCLAIMER OF WARRANTIES; ACCESS
Section 7.1. Disclaimer of Warranties. The Corporation makes 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 Leased
Property, or any other representation or warranty with respect to the Leased Property. 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, the Property Lease or the Trust
Agreement for the existence, furnishing, functioning or City’s use of the Leased Property.
Section 7.2. Access to the Leased Pro.p_.eL~ 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 Leased Property.
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 Leased Property as
may be reasonably necessary to cause the proper maintenance of the Leased Property in the
event of failure by the City to perform its obligations hereunder.
Section 7.3. Release and Indemnification Covenant~. The City shall and hereby agrees
to indemnify and save the Corporation and its officers, agents, successors and assigns harmless
from and against all claims, losses and damages, including legal fees and expenses, arising out
of (i) the use, maintenance, condition or management of, or from any work or thing done on the
Leased Property by the City, (ii)any breach or default on the part of the City in the
performance of any of its obligations under this Lease Agreement, (iii) any act or negligence of
the City or of any of its agents, contractors, servants, employees or licensees with respect to the
Leased Property, or (iv) any act or negligence of any lessee of the City with respect to the
Leased Property. No indemnification is made under this Section or elsewhere in this Lease
Agreement for willful misconduct, negligence, or breach of duty under this Lease Agreement by
the Corporation, its officers, agents, employees, successors or assigns.
ARTICLE VIII
ASSIGNMENT, LEASING AND AMENDMENT
Section 8.1. Assignment by the Com. oration. The Corporation’s rights under this Lease
Agreement, including the right to receive and enforce payment of the Lease Payments to be
made by the City under this Lease Agreement have been assigned to the Trustee pursuant to the
Assignment Agreement, to which assignment the City hereby consents.
Section 8.2. A i~t and leasing by the City.. This Lease Agreement may not be
assigned by the City. The City may further lease any of the Leased Property or any portion
thereof, but only with the written consent of the Corporation and subject to all of the following
conditions:
(i) This Lease Agreement and the obligation of the City to make Lease Payments
hereunder shall remain obligations of the City; and
(ii) 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 lease; and
(iii) No such lease by the City shall cause the Leased Property to be used for a
purpose other than as may be authorized under the provisions of the Constitution and
laws of the State; and
(iv) The City shall furnish the Corporation and the Trustee with a written
opinion of Bond Counsel, stating that such lease does not cause the interest components
of the Lease Payments to become subject to federal or State personal income taxes.
(v) The Trustee shall receive a favorable opinion from counsel to the City on
items (i), (iii) and (iv) above.
Section 8.3. Amendment-of Lease A~ 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 X of the Trust Agreement.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.1. Events of Default Defined. The following shall be "events of default" under
this Lease Agreement and the terms "events of default" and "default" shall mean, whenever they
are used in this Lease Agreement, with respect to the Project, any one or more of the following
events:
(i) Failure by the City to pay any Lease Payment when due and payable
hereunder, or failure to pay any other payment when due and payable hereunder.
(ii) 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)
or clause (ii) 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 five percent (5%) in.
aggregate principal amount of Certificates then outstanding; provided, however, if the
failure stated in the notice can be corrected, but not within the applicable 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 the default is corrected.
(iii) The filing by the City of a voluntary petition in bankruptcy under Title 11 of
the United States Code or any substitute or successor statute.
Section 9.2. ~ Whenever any event of default referred to in Section
9.1 hereof shall have happened and be continuing, it shall be lawful for the Corporation to
exercise any and all remedies available pursuant to law or granted pursuant to this Lease
Agreement; provided, however, that notwithstanding anything herein or in the Trust Agreement
to the contrary, there shall be no right under any circumstances to accelerate the Lease
Payments or otherwise declare any 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 Leased Property, and also, at its option, with or
without such entry, may terminate this Lease Agreement; provided, that no such termination
shall be effected either by operation of law or acts ofthe parties hereto, except only in the
manner herein expressly provided. In the event of such 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 Lease Payments and/or damages for breach of this Lease Agreement
and the performanc.e of all conditions herein contained and, in any event such rent and/or
damages 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 Agreement
in the manner hereinafter provided for in subparagraph (b) hereof, the City agrees to and
shall remain liable for the payment of all 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 Leased Property, or, in the event the Corporation does
not re-lease the Leased Property, then for the full amount of all Lease Payments to the
end of the Term of this Lease Agreement, but said Lease Payments and/or deficiency
shall be payable only at the same time and in the same manner as hereinabove provided
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for the payment of 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
Leased Property 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 the
City to enter upon and re-lease the Leased Property 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 Leased Property to place
such property in storage or other suitable place in the City of Palo Alto, 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 costs, loss or damage whatsoever arising or
occasioned by any such entry upon and re-leasing of the Leased Property 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 Leased Property as herein provided and all claims for
damages that may result from the destruction of or injury to the Site or the Project and
all claims for damages to or loss of any property belonging to the City that may be in or
upon the Leased Property. The City agrees that the terms of this Lease Agreement
constitute full and sufficient notice of the right of the Corporation to re-lease the Leased
Property in the event of such re-entry without effecting a surrender of this Lease
Agreement, and further agrees that no acts of the Corporation in effecting such re-leasing
shall constitute a surrender or termination of this Lease Agreement 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 Lease 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 right to any rental obtained by the Corporation in excess of the Lease
Payments and hereby conveys and releases such excess to the Corporation as
compensation to the Corporation for its services in re-leasing the Leased Property.
(b) In an event of default hereunder, the Corporation may terminate this Lease
Agreement and re-lease all or any portion of the Leased Property. In the event of the
termination of this Lease Agreement by the Corporation in the ~nner hereinafter
provided on account of default by the City (and notwithstanding any re-entry upon the
Leased Property by the Corporation in any manner whatsoever or the re-leasing of the
Leased Property), 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 Lease Payments. Any surplus
received by the Corporation from such re-leasing shall be the absolute property of the
Corporation and the City shall have no right thereto, nor shall the City be entitled to any
credit in the event of a deficiency in the rentals received by the Corporation from the
Project and/or the Site. 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 to terminate this Lease Agreement, and no
termination of this Lease Agreement 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 Agreement. The City covenants and agrees that no surrender of the
l~roject and/or the Site or of the remainder of the Term hereof or any termination of this
Lease Agreement 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 Remed$!~LclR,~dy~ No remedy herein conferred upon or reserved to the
Corporation is intended to be exclusive and every such remedy shah be cumulative and shall be
in addition to every other remedy given under this Lease Agreement or now or hereafter existing
at law or in equity. No delay or omission to exercise.any right or power accruing upon any
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. A r m n r ’ F and ExpensesL 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 Wi~iver, In the event any agreement
contained in this Lease Agreement 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 shah not be
deemed to waive any other breach hereunder.
Section 9.6. Application of Proceeds All net proceeds received from the re-lease or
other disposition of the Leased Property under this Article IX, and all other amounts derived by
the Corporation or the Trustee as a result of an event of default hereunder, 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 Lease Payments in order of payment date.
Section 9.7. Trustee and C_~iificate Owners to Exercise Rights. Such rights and
remedies as are given to the Corporation under this Article IX have been assigned by the
Corporation to the Trustee under the Trust 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. :~ ~7
-21-
ARTICLE X
PREPAYMENT OF LEASE PAYMENTS
Section 10.1. ~¢urity Deposit. Notwithstanding any other provision of this Lease
Agreement, the City may on any date secure the payment of Lease Payments by a deposit with
the Trustee of: fi) 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 sufficient to
pay all unpaid Lease Payments, including the principal and interest components thereof, in
accordance with the Lease Payment Schedule set forth in Exhibit A, or (ii) Federal Securities
together with cash, if required, in such amount as will, in theopinion of an independent certified
public accountant, together with interest to accrue thereon and, if required, all or a portion of
moneys or Federal Securities then on deposit in the Lease Payment Fund, the Insurance and
Condemnation Fund and the Reserve Fund, be fully sufficient to pay all unpaid Lease Payments
on their respective Lease Payment dates or on any purchase option date as set forth in 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, 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, Lease Payments from such security
deposit, and title to the Leased Property shall be affected thereby as described in Section 4.6.
Said security deposit shall be deemed to be and shall constitute a special fund for the payment
of Lease Payments in accordance with the provisions of this Lease Agreement.
Section 10.2. Prepa.vment: Purchase Option. The City may exercise its option to prepay
the principal component of the Lease Payments, in whole or in part, on any date on or after
September 1, 2008, by paying a prepayment price equal to the aggregate or a portion of the
unpaid principal components of the remaining.Lease Payments, together with the interest
component of the Lease Payment required to be paid on such date, and premium due, if any.
Such prepayment price shall be deposited by the Trustee in the Lease Payment Fund to be
applied to the redemption of Certificates pursuant to Section 4.01(a) of the Trust Agreement.
The City shall give the Trustee notice of its intention to exercise its option not less than forty-
five (45) days in advance of the date of exercise. In the event the City prepays the entire
unpaid principal component of the Lease Payments in whole, the City will be deemed to have
purchased the Project and title to the Project shall thereupon vest in the City, free and clear of
any encumbrance created by this Agreement
Section 10.3. Mandatory. Prepayment, The City shall be obligated to prepay the Lease
Payments for the Leased Property, in whole or in part on any date, from and to the extent of
any Net Proceeds of insurance award or condemnation award with respect to the Leased
Property have theretofore been deposited with the Trustee in the Lease Payment Fund for such
purpose pursuant to Article VI hereof. Such proceeds shall be applied to the prepayment of the
principal component of the Lease Payments and the. Prepayment of the Certificates in
accordance with Article VI of the Trust Agreement.
Section 10.4. ff.,,~lL~L~K_~unts on Deposi_L In the event of prepayment of the
principal components of the 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, a!l amounts then on
deposit in the Lease Payment Fund or the Reserve Fund shall be credited towards the amounts
then required to be so prepaid.
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 Clerk
City of Palo Alto
P. O. Box 10250
Palo Alto, CA 94303
If to the Corporation:Palo Alto Public Improvement Corporation
c/o City Clerk
P. O. Box 10250
Palo Alto, CA 94303
If to the Trustee:U.S. Bank Trust National Association
One California Street, 4th Floor
San Francisco, CA 94111
The Corporation and the City, by notice given hereunder, may designate different
addresses to which subsequent notices, certificates or other communications will be sent.
Section 11.2. Binding Effect. This Lease Agreement shall 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 Agreement 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. ~ This Lease Agreement shall be deemed and construed
to be a "net-net-net lease" and the City hereby agrees that the 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 C_orrecti’ve 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 Site
or the Project hereby leased or intended so to be or for carrying out the expressed intention of
this Lease Agreement.
Section 11.6. x i n " This Lease Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall constitute but one
and the same instrument.
Section 11.7. ~ This Lease Agreement shall be governed by and
construed in accordance with the laws of the State.
Section 11.8. Corporation and City. Representative~, Whenever under the provisions of
this Lease Agreement 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 o~ the other, such
approval or such request shall be given for the Corporation by a Corporate 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. ~ The captions or headings in this Lease Agreement 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.
IN WITNESS WHEREOF, the Corporation has caused this Lease Agreement to be
executed in its corporate name by its duly authorized officers and sealed with its corporate
seal; and the City has caused this Lease Agreement to be executed in its name by its duly
authorized officers and sealed with its corporate seal, as of the date first above written.
PALO ALTO PUBLIC IMPROVEMENT
CORPORATION,
as Lessor
Attest:
President
Secretary
CITY OF PALO ALTO,
as Lessee
(S E A L)
Attest:
City Manager
City Clerk
City Attorney
Assistant City Manager
Administrative Services Director
Community Services Director
EXHIBIT A
:SCHEDULE OF LEASE PAYMENTS
TOTAL LEASE
EXHIBIT B
DESCRIPTION OF SITE
B-1
26005-47 JH:WHM:cco PROPOSED FINAL 07/01/c~8
TRUST AGREEMENT
Dated as of August 1, 1998
by and among
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee,
PALO ALTO PUBLIC IMPROVEMENT CORPORATION
and the
CITY OF PALO ALTO
Relating to
$_
City of Palo Alto
Certificates of Participation ¯
(Golf Course Improvements and Refinancing Project),
Series 1998
TABLE OF CONTENTS
TRUST AGREEMENT
Section 1.01.
Section 1.02.
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.
Section 3.01.
Section 3.02.
Section 3.03.
Section 3.04.
Section 4.01.
Section 4.02.
Section 4.03.
Section 4.04.
Section 4.05.
Section 5.01.
Section 5.02.
Section 5.03.
Section 5.04.
Section 5.05.
Section 6.01.
Section 6.02.
Section 6.03.
ARTICLE I
DEFINITIONS
Definitions .......................................... .................................................................3
Authorization .......................................................................................................9
ARTICLE II
THE CERTIFICATES OF PARTICIPATION
Authorization .................................................................................., ...................10
Date ........................................................: ..........................................................10
Maturities ...........................................................................................................10
Form of Certificates .............................................................................................10
Form..................................................................................................................11
Execution ...........................................................................................................11
Transfer and Exchange .......................................................................................11
Certificates Mutilated, Lost, Destroyed or Stolen ...................................................11
Payment ..................................................................................................2 .........12
Execution of Documents and Proof of Ownership .................................... .............12
Registration Books ..............................................................................................12
Use of Depository ...............................................................................................12
ARTICLE III
DISPOSITION OF PROCEEDS; RESERVE FUND;
COSTS OF ISSUANCE FUND AND CONSTRUCTION FUND
Application of Proceeds .......................................................................................16
Reserve Fund .....................................................................................................16
Costs of Issuance Fund ........................................................................................16
Construction Fund ..............................................................................................17
ARTICLE IV
PREPAYMENT OF CERTIFICATES ~- -
Prepayment .......................................................................................................18
Selection of Certificates for Prepayment ...............................................................18
Notice of Prepayment .........................................................................................18
Partial Prepayment of Certificate .........................................................................19
Effect of Notice of Prepayment....; ........................................................................19
ARTICLE V
LEASE PAYMENTS; LEASE PAYMENT FUND
Assignment of Rights in Lease Agreement ..........................................................20Establishment of Lease Payment Fund ...............~ ................................................20
Deposits .............................................................................................................20Application of Moneys ........................................................................................20
Surplus..............................................................................................................20
ARTICLE VI
INSURANCE AND CONDEMNATION FUND
INSURANCE; EMINENT DOMAIN
Establishment of Insurance and Condemnation Fund ...........................................21
Application of Net Proceeds of Eminent Domain Award .......................................21
Cooperation ........................................................................................................22
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Section 7,01,
Section 7,02,
Section 7,03.
Section 7,04.
Section 7,05,
Section 7.06,
Section 7,07,
Section 8,01,
Section 8,02,
Section 8,03,
Section 8,04,
Section 8,05,
Section 9,01,
Section 9,02,
Section 9,03,
Section 9,04,
Section 9,05,
Section 9,06,
Section 10,01,
Section 10,02,
Section 10,03,
Section 10,04,
Section 10,05,
Section 10,06,
Section 11,01,
Section 11,02,
Section 11,03,
Section 11,04,
Section 11,05,
Section 12,01,
Section 12,02,
Section 12,03,
Section 12,04,
Section 12,05,
Section 12,06,
Section 12,07,
Section 12,08,
ARTICLE VII
MONEYS IN FUNDS
Held in Trust ......................................................................................................23
Investments Authorized ....................................................................................:, 23
Accounting .........................................................................................................23
Allocation of Earnings .........................................................................................23
Valuation of Investments .....................................................................................23
Commingling of Investment Securities and Disposition of Investments ................23
No Arbitrage ......................................................................................................24
ARTICLE VIII
THE TRUSTEE
Compensation of the Trustee ...............................................................................25
Removal of Trustee .......................,. .....................................................................25
Appointment of Agent ........................................................................................25
Merger or Consolidation .....................................................................................25
Protection and Rights of the Trustee ....................................................................25
ARTICLE IX
MODIFICATION OR AMENDMENT OF AGREEMENT
Amendments Permitted ......................................................................................27
Procedure for Amendment with Written Consent of Certificate Owners ................27
Disqualified Certificates, ,; ...................................................................................28
Effect of Supplemental Agreement ......................................................................28
Endorsement or Replacement of Certificates Delivered After Amendments ...........28.
Amendatory Endorsement of Certificates .............................................................29
ARTICLE X
COVENANTS; NOTICES
Compliance With and Enforcement of Lease Agreement ......................................30
Prosecution and Defense of Suits ............................~ .............................................30
Recordation and Filing .......................................................................................30
No Federal Guarantee ........................................................................................30
Continuing Disclosure .................................................................................. ......30
Further Assurances .........................................................¯ ....................................30
ARTICLE XI
LIMITATION OF LIABILITY
Limited Liability of City .....................................................................................32No Liability for Trustee Performance ...................................................................32Indemnification ..................................................................................................32Opinion of Counsel .............................................................................................32
Limitation of Rights to Parties and Certificate Owners ..........................................32
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES OF CERTIFICATE
OWNERS
Assignment of Rights .....: ..................................................................................;33
Remedies ...........................................................................................................33Application of Funds ..........................................................................................33Institution of Legal Proceedings ................ ...........................................................33
Non-waiver .........................................................................................................33
Remedies Not Exclusive ......................................................................................34
Power of Trustee to Control Proceedings ..............................................................34Limitation on Certificate Owners’ Right to Sue .....................................................34
-ii-
Section 13.01.
Section 13.02.
Section 13.03.
Section 13.04.
ARTICLE XIII
DEFEASANCE
Discharge of Trust Agreement ............................................................................35
Discharge of Liability on Certificates..... ...............................................................35
Deposit of Money or Securities with Trustee .........................................................36
Payment of Certificates After Discharge of Trust Agreement ................................36
Section 14.01.
Section 14.02.
Section 14.03~
Section 14.04.
Section 14.05.
Section 14.06:
Section 14.07.
Section 14.08.
Section 14.09.
ARTICLE XIV
MISCELLANEOUS
Records ..............................................................................................................37
Notices ...............................................................................................................37
Governing Law ..................................................................................................37
Binding Effect .....................................................................................................37
Execution in Counterparts ...................................................................................37
Destruction of Cancelled Certificates ....................................................................37
Headings ...........................................................................................................37
Waiver of Notice .................................................................................................38
Separability of Invalid Provisions ........................................................................38
EXHIBIT A FORM OF CERTIFICATE OF PARTICIPATION
TRUST AGREEMENT
THIS TRUST AGREEMENT, made and entered into as of August 1, 1998, by and
among U.S. BANK TRUST NATIONAL ASSOCIATION, a~ national banking association
organized and existing under the laws of the United States of America (the "Trustee"), the
PALO ALTO PUBLIC IMPROVEMENT CORPORATION, a nonprofit public benefit
corporation duly formed, organized operating and acting pursuant to the laws of the State of
California (the "Corporation"), and the CITY OF PALO ALTO, a chartered municipal
corporation duly organized and existing under the Constitution and laws of the State of
California (the "City");
WI TNE S S E TH:
WHEREAS, the City of Palo Alto Golf Course Corporation (the "Golf Course
Corporation") issued its $1,800,000 Lease Revenue Bonds, Series 1978 (the "1978 Bonds"), the
proceeds of which were used to construct improvements to the Palo Alto municipal golf course
(the "Golf Course"), a new clubhouse and pro shop and necessary appurtenances therefor (the
"1978 Project"); and
WHEREAS, the 1978 Bonds were issued pursuant to Resolution No. 78-2, entitled "A
Resolution Authorizing the Issuance of Golf Course Lease Revenue Bonds of the City of Palo
Alto Golf Course Corporation and Providing for the Issuance of Series 1978 Thereof~’, adopted
by the Board of Directors of the Golf Course Corporation on February 14, 1978 (the "1978 Bond
Resolution"); and
WHEREAS, in order to secure the 1978 Bonds, the City of Palo Alto (the "City") and the
Golf Course Corporation entered into a Lease of Golf Course Facility (as amended), dated
October 3, 1977 (the "1977 Lease"), under which the Base Rent (as defined in the 1977 Lease) to
be paid by the City was calculated to be sufficient to pay debt service on the 1978 Bonds; and
WHEREAS, the City wishes to finance additional improvements to the Golf Course,
including upgrading five fairways and various traps, trees and greens; c~bnstructing new storm
drain facilities; replacing the existing irrigation system; upgrading the driving range; and
installing new cart paths (the "1998 Project"); and
WHEREAS, the City has determined to refinance the 1978 Bonds and finance the 1998
Project by entering into a Lease Agreement, dated as of August 1, 1998, between the City and
the Corporation (the "Lease Agreement"); and
WHEREAS, the Corporation will establish a trust pursuant to this Trust Agreement and
direct the Trustee to execute and deliver the Certificates representing undivided fractional
interests in the Lease Payments; and
WHEREAS, for the purpose of obtaining the moneys required to be deposited into the
funds and accounts established hereunder and under the Escrow Deposit and Trust Agreement
(as defined herein), the Corporation proposes to assign and transfer certain of its rights under
said Lease Agreement to the Trustee, and in consideration of such assignment and the execution
of this Trust Agreement, the Trustee has agreed to execute and deliver City of Palo Alto
Certificates of Participation (Golf Course Improvements and Refinancing Project), Series 1998,
each evidencing an undivided fractional interest in the Lease Payments made by the City under
the Lease Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
-2-
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context otherwise requires, the terms~defined in
this Section 1.01 shall, for all purposes of this Trust Agreement, have the meanings herein
specified. In addition, any terms defined in the Lease Agreement and not otherwise defined
herein shall have the respective meanings given such terms in the Lease Agreement.
"Assignment Agreement" means the Assignment Agreement, dated as of August 1, 1998,
by and between the Corporation and the Trustee, together with any duly authorized and
executed amendments thereto.
"Bond Counsel" means any attorney or firm of nationally recognized expertise with
respect to legal matters relating to obligations the interest on which is exempt from federal
income taxation 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.
"Certificates" means the $ aggregate principal amount of City of Palo Alto
Certificates of Participation (Golf Course Improvements and Refinancing Project), Series 1998,
to be executed and delivered pursuant hereto.
"City" means the City of Palo Alto, a charter city and political subdivision duly
organized and existing under the Constitution and the laws of the State.
"City Representative" means the City Manager, the Assistant City Manager or the
Director of Administrative Services of the City or any other person authorized by resolution of
the City Council to act on behalf of the City under or with respect to this Trust Agreement and
the Lease Agreement.
"Closing Date" means the date upon which there is an exchang’~~ of the Certificates for
the proceeds representing the purchase of the Certificates by the Original Purchasers.
"Code" means the Internal Revenue Code of 1986, as amended.
"Construction Costs" means all costs of payment of, or reimbursement for, acquisition,
design, construction, installation and equipping of the Project, including but not limited to,
architect and engineering fees, construction contractor payments, costs of feasibility and other
reports, inspection costs, performance bond premiums and peffnit fees.
"Construction Fund" means the fund by that name established and held by the Trustee
pursuant to Section 3.04 hereof.
"Corporation Representative" means the President or Vice President 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 Trust Agreement and the Lease Agreement.
"Corporation" means the Palo Alto Public Improvement Corporation, a nonprofit public
benefit corporation duly formed, organized, operating and existing under the laws of the State,
and its successors and assigns.
"Corporate Trust Office" means the corporate trust office of the Trustee. at
, Attention: , or at such other address designated by
the Trustee in written notice filed with the City, the Corporation and the Owners.
"Costs of Issuance" means all items of expense directly or indirectly payable by or
reimbursable to the City or the Corporation relating to the execution, sale and delivery of the
Certificates, including but not limited to settlement costs, printing costs, reproduction and
binding costs, initial fees and charges of the Trustee, financing discounts, legal fees and charges,
bond insurance or title, 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.
"Costs of Issuance Fund" means the fund by that name established and held by the
Trustee pursuant to Section 3.03 hereof.
"Counsel" means any attorney at iaw or law firm (who or which may be counsel for the
City, the Trustee or the Corporation and which counsel is satisfactory to the City and the
Trustee).
"Escrow Fund" means the Escrow Fund created under the Escrow Deposit and Trust
Agreement.
"Escrow Bank" means U.S. BANK TRUST NATIONAL ASSOCIATION, acting as
Escrow Bank under the Escrow Deposit and Trust Agreement.
"Escrow Deposit and Trust Agreement" means that certain Escrow Deposit and Trust
Agreement, dated as of August 1, 1998, between the City, the City of Palo Alto Golf Course
Corporation and the Escrow Bank.
"Event of Default" means an event of default under the Lease Agreement, as defined in
Section 9.1 thereof.
"Fair Market Value" means the price at which a willing buyer would purchase the
investment from a willing seller in a bona fide, arm’s length transaction (determined as of the
date the contract to purchase or sell the investment becomes binding) if the investment is traded
on an established securities market (within the meaning of section 1273 of the Code) and,
otherwise, the term "Fair Market Value" means the acquisition price in a bona fide arm’s length
transaction (as referenced ’above) if (i) the investment is a certificate of deposit that is acquired
in accordance with applicable regulations under the Code, (ii) the investment is an agreement
with specifically negotiated withdrawal or reinvestment provisions and a specifically
negotiated interest rate (for example, a guaranteed investment contract, a forward supply
contract or other investment agreement) that is acquired in accordance with applicable
regulations under the Code, (iii) the investment is a United States Treasury Security--State and
Local Government Series that is acquired in accordance with applicable regulations of the
United States Bureau of Public Debt, or (iv) any commingled investment fund in which the City
and related parties do not own more than a ten percent (10%) beneficial interest therein if the
return paid by the fund is without regard to the source of the investment.
"Fiscal Year" means each twelve-month period beginning on July 1 of any year and
ending on August 30 of the succeeding year, or any other twelve-month period hereafter
adopted by the ’City as its official fiscal year period.
"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.
"Insurance and Condemnation Fund" means the fund by that name established and held
by the Trustee pursuant to Section 6.01.
"Investment Secu~rities" means any of the following which at the time of investment are
legal investments under the laws of the State of California for trust funds held by the Trustee:
1. Direct and general obligations of the United States of America, or obligations
that are unconditionally guaranteed as to payments of principal and interest by the
United States of America, including (in the case of direct and general obligations of the
United States of America) evidences of direct ownership of proportionate interests in
future interest or principal payments of such obligations. Investments in such
proportionate interests must be limited to circumstances wherein (a) a bank or trust
company acts as custodian and holds the underlying United States obligations; (b) the
owner of the investment is the real party in interest and has the right to proceed directly
and individually against the obligor of the underlying United States obligations; and (c)
the underlying United States obligations are held in safekeeping in a special account,
segregated from the custodian’s general assets, and are not available to satisfy any claim
of he custodian, any person claiming through the custodian, or any person to whom the
custodian may be obligated. The obligations described in this paragraph are hereinafter
called "United States Obligations".
2. Obligations issued or guaranteed by the following instrumentalities or
agencies:
(a)Federal Home Loan Banks;
(b)Government National Mortgage Association;
(c)Farmers Home Administration;
(d)Federal Home Loan Mortgage corporation;
(e)Federal Housing Administration; and
(f)Federal National Mortgage Association.
3. Direct and general long-term obligations of any state or commonwealth of the
United States, to the payment of which the full faith and credit of the state or
commonwealth is~pledged and that are rated "Aaa" by Moody’s and "AAA" by S&P.
4. Direct and general short-term obligations of any state or commonwealth, to
the payment of which the full faith and credit of the state or commonwealth is pledged
and that are rated in the highest rating category by Moody’s and S&P.
5. Interest-bearing demand or time deposits issued by state ’ banks or trust
companies or national banking.associations that are members of the Federal Deposit
Insurance Corporation (FDIC) or by savings and loan associations that are members of
the Federal Savings and Loan Insurance Corporation (FSLIC). These deposits must (a)
be continuously and fully insured by FDIC or FSLIC and be with banks whose debt is
rated at least P-1 or Aa by Moody’s and at least A-l+ or AA by S&P, or (b) be secured
by United States Obligations at the levels described in the last paragraph of this
definition and (if such deposits have maturities of not more than 365 days) be with
banks the short-term debt of w~hich is rated "A-l+" by S&P and P-1 by Moody’s or (if
such deposits have maturities of more than 365 days) be with banks the long-term debt
of which is rated "AA" or better by S&P and "Aa" or better by Moody’s. The United
States Obligations must be held by the Trustee (who shall not be the provider of the
collateral), or by any Federal Reserve Bank or authorized depositary, as custodian for
the Trustee. The Trustee shall have a perfected first lien in the United States Obligations
serving as collateral and such collateral shall be free from all third-party liens and
claims.
6. Repurchase agreements, the maturities of which are 30 days or less, or are due
on demand, entered into with financial institutions such as banks or trust companies
organized under state law or national banking associations, insurance companies, or
government bond dealers reporting to, trading with, and recognized as a primary dealer
by, the Federal Reserve Bank of New York and a member of the Security Investors
Protection Corporation or with a dealer or parent holding company, in each such case
the debt of which is rated at least "A" or "P-l" by Moody’so Such repurchase
agreements shall be in respect of United States Obligations and (except repurchase
agreements with institutions whose debt or commercial paper is rated "Aaa" or "P-I" by
Moody’s) shall be collateralized by United States Obligations, and the provisions of the
repurchase agreement shall meet the following additional criteria:
(i) the Trustee (who shall not be the provider of the collateral) or a third
party acting solely as agent for the Trustee has possession of the United States
Obligations;
(ii) failure to maintain the requisite collateral levels will require the
Trustee to liquidate the United States Obligations immediately;
(iii) the Trustee has a perfected, first priority security interest in the
United States Obligations; and
(iv) the United States Obligations are free and clear of third-party liens,
and in the case of an SIPC broker, were not acquired pursuant to a repurchase or
reverse repurchase agreement.
7. Pre-refunded municipal obligations rated "AAA" by S&P and "Aaa" by
Moody’s and meeting the following conditions:
(a) the municipal obligations are (i) not to be redeemed prior to maturity
or the Trustee has been given irrevocable instructions concerning their calling and
redemption and (ii) the issuer has covenanted not to redeem such municipal
obligations ’other than as set forth in such instructions;
(b) the municipal obligations are secured by cash or United States
Obligations that may be applied only to interest, principal, and premium
payments of such municipal obligations;
(c) the principal of and interest on the United States Obligations (plus
any cash in the escrow fund) are sufficient to meet the liabilities on the municipal
obligations;
(d) the United States Obligations serving as security for the municipal
obligations are held by an escrow agent or trustee; and
(e) the United States Obligations (plus any cash in the escrow fund) are
not available to satisfy any other claims, including those against the trustee or
escrow agent.
8. Prime commercial paper of a United States corporation, finance company or
banking institution if such commercial paper is rated at least "PI" by Moody’s and at
least "A-l+" by S&P and if such commercial paper is stated to mature in not more than
270 days.
9. Shares of a diversified open-end management investment company (as
defined in the Investment Company Act of 1940) or shares in a regulated investment
company (as defined in Section 851 (a) of the Internal Revenue Code of 1986, as
amended) that is a money market fund that has been rated in the highest rating category
by S&P.
10. State pooled investment funds and invested in any one or more of the
investments described in paragraphs 1 through 9 of this definition; provided that any
share or unit participation in such funds shall be held directly by, or registered in the
name of, the Trustee.
11. Banker’s acceptances drawn on and accepted by commercial banks
(including the Trustee and any affiliate of the Trustee) having a combined unencumbered
capital, surplus and retained earnings of not less than $30,000,000 and whose notes or
commercial paper are rated in either of the two highest rating categories by Moody’s (if
the Bonds are then rated by Moody’s) and S&P (if the Bonds are then rated by S&P).
12. Money market funds restricted to obligations issued or guaranteed as to
payment of principal and interest by the full faith and credit of the United States of.
America, including such funds for which the Trustee or an affiliate acts as investment
advisor or provides other services.
13. Investment Agreements which are approved in writing by Moody’s and S&P.
14. Shares in a California common law trust established pursuant to Title 1,
Division 7, Chapter 5 of the California Government Code which invests exclusively in
investments permitted by Section 53635 of Title 5, Division 2, Chapter 4 of the
California. Government Code, as it may be amended; i.e., the California Arbitrage
Management Program (CAMP).
"Lease Agreement" means the Lease Agreement dated as of August 1, 1998, by and
between the Corporation as lessor and the City as lessee, together with any further duly
authorized and executed amendments thereto.
"Lease Default Event" means any of the events specified in Section 9.1 of the. Lease
Agreement.
"Lease Payments" means all payments required to be paid by the City pursuant to
Section 4.4 of the Lease Agreement, including any prepayment thereof pursuant to Article X of
the Lease Agreement.
"Lease Payment Fund" means the fund by that name established and held by the Trustee
pursuant to Section 5.02.
"Lease Term" means the period during which the Lease is in effect as specified in the
Lease Agreement.
"Moody’s" means Moody’s Investors Service, of New York, New York or its successors.
"Net Proceeds" means any insurance proceeds or condemnation award in excess of
$50,000, paid with respect to the Project or the Site, to the extent remaining after payment
therefrom of all expenses incurred in the collection thereof.
"Original Purchaser" means , as original purchaser of the Certificates.
"Outstanding", when used as of any particular time with reference to Certificates, means
(subject to the provisions of Section 9.03) all Certificates theretofore, or thereupon being,
executed and delivered by the Trustee under this Trust Agreement except (1) Certificates
theretofore cancelled by the Trustee or surrendered to the Trustee for cancellation; (2)
Certificates with respect to which all liability of the City shall have been discharged in
accordance with Section 13.02, including Certificates (or portions of Certificates) referred to in
Section 13.04; and (3) Certificates for the transfer or exchange of or in lieu of or in substitution
for which other Certificates shall have been executed and delivered by the Trustee or the Tender
Agent pursuant to this Trust Agreement.
"Owner" or "Certificate Owner", when used with respect to a Certificate means the
person in whose name the ownership of such Certificate shall be registered.
"Payment Date" means (i) with respect to the interest on the Certificates, March 1, 1999,
and the first day of each September and March thereafter so long as any Certificates are
Outstanding hereunder, and (ii) with respect to the principal of the Certificates, .September 1,
1999 and each September thereafter so long as the Certificates are Outstanding, terminating
September 1,2018.
"Principal Amount" means the total unpaid principal component of the Lease Payments
due under Section 4.4 of the Lease Agreement.
"Project" means improvements to the Palo Alto Municipal Golf Course, including
upgrading five fairways and various traps, trees and greens; constructing new storm drain
facilities; replacing the existing irrigation system; upgrading the driving range; and installing new
cart paths, and other miscellaneous improvements, located on that certain property described
in Exhibit B to the Lease Agreement.
"Rating Category" means any generic rating category of Moody’s or S&P, without regard
to any refinement of such category by plus or minus sign or by numerical or other qualifying
designation.
"Record Date" means the close of business on the fifteenth day of the month preceding
each Payment Date, whether or not such fifteenth day is a Business Day.
"Registration Books" means the records maintained by the Trustee pursuant to Section
2.11 for registration and transfer of ownership of the Certificates.
"Regulations" means temporary and permanent regulations promulgated under the Code.
"Reserve Fund" means the fund established and held by the Trustee pursuant to Section
3.02 of this Trust Agreement.
"Reserve Requirement" means, as of the date of calculation, an amount equal to the lesser
of (i): ten percent (10%) of the original Principal Amount; (ii) 125% of average annual Lease
Payments; or (iii) maximum annual Lease Payments.
"Site" means the real property described in Exhibit A attached to the Property Lease,
together with all improvements located thereon as of the Closing Date.
"S&P" means Standard & Poor’s Corporation, of New York, New York, or its successors.
"State" means the State of California.
"Tax Code" means the Internal Revenue Code of 1986, as amended, or any federal
statutes enacted in lieu of the Internal Revenue Code of 1986. Any reference herein to a
provision of the Tax,Code shall include all applicable regulations of the United States
Department of the Treasury promulgated be deemed to be and shall refer to any statute of
similar import enacted in lieu or in amendment of such section or contained in any federal
statutes enacted in lieu of the Internal Revenue Code of 1986.
"Term of the Lease Agreement" means the time during which the Lease Agreement is in
effect, as provided in Section 4.2 of the Lease Agreement.
"Trust Agreement" or "Agreement" means this Trust Agreement, together with any
amendments or supplements hereto permitted to be made hereunder.
"Trustee" means U.S. Bank Trust National Association, a national banking association
organized under the laws of the United States of America or any successor thereto acting as
Trustee pursuant to this Trust Agreement.
"Written Request of the Corporation" means an instrument in writing signed by the
Corporation Representative.
"Written Request of the City" means an instrument in writing signed by the City
Representative.
Section 1.02. Authorization. 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.
-9-
ARTICLE II
THE CERTIFICATES OF PARTICIPATION
Section 2.01. Authorization. The Trustee is hereby authorized and directed to prepare,
execute and deliver to the Original Purchasers, City of Palo Alto Certificates of Participation
(Golf Course Improvements and Refinancing Project), Series 1998, in an aggregate principal
amount of Dollars ($ ) evidencing undivided fractional
interests in the Lease Payments.
Section 2.02. ~ Each Certificate shall be dated as of the date of its execution
(except that each Certificate delivered to the Original Purchaser shall be dated as of August 1,
1998), and interest with respect thereto shall be payable from the Payment Date next preceding
the date of execution thereof, unless: (i) it is executed as of a Payment Date, in which event
interest represented thereby shall be payable from such Payment Date; or (ii) it is executed after
a Record Date and before the following Payment Date, in which event interest represented
thereby shall be payable from such Payment Date; or (iii) it is executed on or before February
15, 1999, in which event interest represented thereby shall be payable from August 1, 1998;
provided, however, that if, as of the date of any Certificate, interest represented by such
Certificate is in default, interest represented by such Certificate shall be payable from the
Payment Date to which interest represented thereby has previously been paid or made available
for payment.
Section 2.03. Maturities: Interest Rates. The Certificates shall mature on September 1,
as follows:
Year Amount Interest Rate
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 may have principal maturing in more than
one year. The Certificates shall be assigned such alphabetical and numerical designation as
shall be designated by the Trustee. ~
Interest represented by the Certificates shall be payable on each 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 during the Rental Period preceding each Payment Date. The proportionate share of the
portion of Lease Payments designated as interest represented by any Certificate shall be
computed by multiplying the portion of Lease Payments designated as principal represented by
such Certificate by the rate of interest applicable to such Certificate (on the basis of a 360-day
year of twelve 30-day months).
Section 2.05. ~ 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 officer of the Trustee. If any officer whose
signature appears on any Certificate ceases to be such officer before the date of delivery of such
Certificate, such signature shall nevertheless be as effective as if the officer had remained in
office until such date. Any Certificate may be executed on behalf of the Trustee by such person
as at the actual date of the execution of such Certificate shall be the proper officer of the
Trustee.
Section 2.07..Transfer and Exchange., (a) Transfer of Certificates. The registration 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 Corporate 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, authenticate and deliver a new Certificate or Certificates of
the same maturity and aggregate principal amount, in any authorized denominations.
(b) Exchange of Certificates. Certificates may be exchanged at the Corporate Trust
Office of the Trustee, for a like aggregate principal amount of Certificates of other authorized
denominations of the same maturity. The City shall pay any costs of the Trustee incurred in
connection with such exchange, except that 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.
Section 2.08..Certificates Mutilated, Lost, Destroyed or Stolen. If any Certificate shall
become mutilated, the Trustee, at the expense of the Owner of said Certificate, shall execute
and deliver a new Certificate of like tenor and maturity in exchange arid substitution 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 to, or upon the orderof, the City. If any Certificate shall be lost, destroyed or
stolen, evidence of such loss, destruction or theft may be submitted to the Trustee, and, if such
evidence is satisfactory to the Trustee and, if an indemnity 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 tenor and maturity and numbered as the Trustee shall determine in lieu of and
in substitution for the Certificate so lost, destroyed or stolen. The Trustee may require payment
of an appropriate fee for each new 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 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 and proportionately 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 duplicate 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 duplicate Certificate shall be
treated as one and the same. Notwithstanding any other provision of this Section 2.08, in lieu
of delivering a new Certificate in exchange for a Certificate which has been mutilated, lost,
-11-
destroyed or stolen, and which has matured, the Trustee may make payment with respect to
such Certificate.
Section 2.09. p~yment. Payment of interest due with respect to any Certificate on any
Payment Date shall be made to the person appearing on the Registration Books as the Owner
thereof as of the Record Date immec~iately preceding such Payment Date, such interest to be
paid by check or draft mailed to such Owner at his address as it appears on the Registration
Books or at such other address as he may have filed with the Trustee for that purpose. The
principal, interest 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 at the Corporate Trust Office .of the Trustee.
Section 2.10. Execution of Documents and Proof of Ownership. Any request, direction,
consent, revocation of consent, or other instrument in writing required or permitted by this~
Agreement to be signed or executed by Certificate Owners may be in any number of concurrent
instruments 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. 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 shall 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 acknowledgments 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 l~ing the same shall
be proved by the Registration Books.
Nothing contained in this Article II 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 pursuance of such request or consent.
Section 2.11. Registration Books. The Trustee shall keep or cause to be kept, at its
Corporate Trust Office, sufficient records for the registration and registration of transfer of the
Certificates, which shall at all times be open to inspection by the City and the Corporation;
and, upon presentation for such purpose, the Trustee shall, 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.
Section 2.12. ~ Notwithstanding any provision of this Trust
Agreement to the contrary:
(a) Pursuant to the Certificate Purchase Agreement, at the request of the Original
Purchasers named therein, the Certificates shall be initially issued registered in the name
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of "Cede & Co.," as nominee of The Depository Trust Company, the depository
designated by the Original Purchasers, and shall be evidenced by one Certificate
maturing on each of the maturity dates set forth in Section 2.03 of this Trust Agreement
to be in a denomination corresponding to the total principal therein designated to
mature on such date. Registered ownership of such Certificates, or any portions thereof,
may not thereafter be transferred except:
(1) to any successor of The Depository Trust Company or its nominee, or
of any substitute depository designated pursuant to clause (2) of this subsection
(a) (’substitute depository"); provided that any successor of The Depository
Trust Company or substitute depository shall be qualified under any applicable
laws to provide the service proposed to be provided by it;
(2) to any substitute depository not objected to by the City or the
Trustee, upon (i) the resignation of The Depository Trust Company or its
successor (or any substitute depository or its successor) from its functions as
depository or (ii) a determination by the City that The Depository Trust
Company or its successor is no longer able to carry out its functions as
depository; provided that any such substitute depository shall be qualified
under any applicable laws to provide the services proposed to be provided by it;
or
(3) to any person as provided below, upon (i) the resignation of The
Depository Trust Company or its successor (or any substitute depository or its
successor) from its functions as depository or (ii) a .determination by the City
that The Depository Trust Company or its successor is no longer able to carry
out its functions as depository; provided that no substitute depository which is
not objected to by the City and the Trustee can be obtained.
(b) In the case of any transfer pursuant to clause (1) or clause (2) of Section
2.12(a) hereof, upon receipt of all outstanding Certificates by the Trustee, together with
a Written Request of the City to the Trustee, a single new Certificate shall be executed
and delivered for each maturity of such Certificate then outstanding, registered in the
name of such successor or such substitute depository, or their nominees, as the case may
be, all as specified in such Written Request of the City. In the case of any transfer
pursuant to clause (3) of Section 2.12(a) hereof, upon receipt of all outstanding
Certificates by the. Trustee together with a Written Request of the City, new Certificates
shall be executed and delivered in such denominations and registered in the names of
such persons as are requested in a Written Request of the City provided the Trustee
shall not be required to deliver such new Certificates within a period less than 60 days
from the date of receipt of such a Written Request of the City.
(c) In the case of partial prepayment or an advance refunding of any Certificates
evidencing all of the principal maturing in a particular year, The Depository Trust
Company shall deliver the Certificates to the Trustee for cancellation and re-registration
to reflect the amounts of such reduction in principal.
(d) The City and the Trustee shall be entitled to treat the person in whose name
any Certificate is registered as the absolute Owner thereof for all purposes of this Trust
Agreement and any applicable laws, notwithstanding any notice to the contrary received
by the Trustee or the City; and the City and the Trustee shall have no responsibility for
transmitting payments to, communication with, notifying or otherwise dealing with any
beneficial owners of the Certificates. Neither the City nor the Trustee will have any
responsibility or obligations, legal or otherwise, to the beneficial owners or to any other
party including The Depository Trust Company or its successor (or substitute
depository or its successor), except for the registered owner of any Certificate.
(e) So long as all outstanding Certificates are registered in the nam~ of Cede &
Co. or its registered assign, the City and the Trustee shall reasonably cooperate with
Cede & Co., as sole registered Owner, or its registered assign in effecting payment of the
principal of and prepayment premium, if any, and interest on the Certificates by
arranging for payment in such manner that funds for such payments are properly
identified and are made immediately available on the date they are due.
(f) So long as all outstanding Certificates are registered in the name of Cede &
Co. or its registered assign (hereinafter, for purposes of this subjection (f), the "Owner"):
(1) All notices and payments addressed to the Owners shall contain the
Certificates" CUSIP number.
(2) Notices to the Owner shall be forwarded by hand delivery (with
receipt) or overnight courier to:
Muni Reorganization Manager
Reorganization Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530
or certified or registered United States mail to:
Muni Reorganization Manager
Reorganization Department
The Depository Trust Company
P.O. Box 876
Garden City, New York 11530
(3) ’Payments of interest on the Certificates shall be made payable to the
order of "Cede & Co." and shall be delivered to the order of the Owner, in next
day funds on each applicable August I and September 1. Such payments shall
be addressed as follows:
Manager, Cash Receipts, Dividends
The Depository Trust Company
7 Hanover Square, 22nd Floor
New York New York 10004
(4) Payments of the principal on the Certificates shall be received by the
Owner, in next day funds on each applicable August 1. Payments of the
principal shall be made payable to Cede & Co., and shall be addressed as
follows:
Muni Vault Supervisor
Vault Department
The Depository Trust Company
55 Water Street - 2nd Sub Level
New York, New York 10041
(5) The Owner may request payments of interest or principal to be made
other than as described in Section 2.12(f)(3) and Section 2.12(f)(4) above as
requested by such Owner, and the Trustee and the City shall reasonably
cooperate with respect to the provision for such payment to the extent otherwise
permitted under this Trust Agreement.
(6) The Owner may direct the Trustee in writing to use any other address
or department as the address or department to which payments of the interest or
principal or notices may be sent.
(7) The Owner shall in writing provide the Trustee with examples of
signatures of those authorized to act on its behalf, which shall be subject to
change and the Trustee shall accept direction in writing from such persons or
their designated successors on behalf of the registered Certificate.
(g) Reference is hereby made to the Letter of Representations directed to the
Depository Trust Company and executed by the City and the Trustee in form hereto
attached and incorporated herein by reference, providing for certain actions by the City
and the Trustee under specified circumstances; in the event of conflict between the
provisions of this Trust Agreement and said Letter of Representations, the latter shall
control.
ARTICLE III
DISPOSITION OF PROCEEDS; RESERVE FUND;
COSTS OF ISSUANCE FUND AND CONSTRUCTION FUND
Section 3.01. Application of Proceeds. The proceeds received by the Trustee from the
sale of the Certificates shall forthwith be set aside by the Trustee in the following respecti~ie
funds and in the following order of priority:
(a) The Trustee shall deposit in the Lease Payment Fund an amount equal to the
portion of the Lease Payment which represents accrued interest due and payable on the
Closing Date by the City under the Lease Agreement ($ ).
(b) The Trustee shall deposit an amount equal to $
Fund;
to the Reserve
(c) The Trustee shall deposit an amount equal to $
Issuance Fund;
in the Costs of
(d) The Trustee shall transfer to the Escrow Bank an amount equal to $ ..... ,
for deposit to the Escrow Fund;
(e) The Trustee shall deposit the balance ($
Fund.
’ ) to the Construction
Section 3.02. Ke~Kedy_~F_I~:I~ The Trustee shall establish a special fund designated as
the "Reserve Fund" to be held separate and apart from all other funds and moneys held by the
Trustee in trust for the benefit of the Owners of the Certificates, and applied solely as provided
herein. All moneys at any time on deposit in the Reserve Fund shall be applied solely as
provided in this Section 3.03. If on any Payment Date the moneys available in the Lease
Payment Fund do not equal the amount of the principal and interest and prepayment premiums
(ff any) represented by the Certificates then coming due and payable, the,~ustee shall apply
the moneys available in the Reserve Fund to make delinquent Lease 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 or portion thereof with respect to which moneys have
been advanced from the Reserve Fund, such Lease Payment or portion thereof shall be
deposited in the Reserve Fund to the extent of such advance. If on any Payment Date the
moneys on deposit in the Reserve Fund and the Lease Payment Fund (excluding amounts
required for payment of principal, interest and prepayment 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 prepayment premiums (if any),
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 to the payment of the Lease
Payments on behalf of the City, and such moneys shall be distributed to the Owners of
Certificates in accordance with Article II. Any amounts remaining in the Reserve Fund on the
date of payment in full or provision for such payment of all Outstanding Certificates shall be
withdrawn by the Trustee and at the Written Request of the City applied towards such
payment or paid to the City.
Section 3.03. ~ The Trustee shall establish a special fund
designated as the "Costs of.Issuance Fund"; shall keep such fund separate and apart from all
other funds and moneys held by it; and shall administer such fund as provided herein. There
shall be deposited in the Costs of Issuance Fund the proceeds of the Certificates deposited
therein pursuant to Section 3.01(c), and any other funds from time to time deposited with the
Trustee for such purpose. The moneys in the Costs of Issuance Fund shall be disbursed to pay
the Costs of Issuance from time to time upon the receipt of Written Requests of the City setting
forth the amounts to be disbursed for payment or reimbursement of Costs of Issuance and the
name and address of the person or persons to whom said amounts are to be disbursed, stating
that the amounts to be disbursed are for Costs of Issuance properly chargeable to the Costs of
Issuance Fund. Any amounts remaining in the Costs of Issuance Fund on the date one hundred
and twenty (120) days after the Closing Date shall be withdrawn therefrom by the Trustee and
transferred to the Lease Payment Fund.
Section 3.04. Construction Fund. The Trustee shall establish and maintain a separate
fund to be known as the "Construction Fund". The Trustee shall disburse moneys in the
Construction Fund from time to time, for the purpose of paying the Construction Costs. Each
such disbursement shall be documented by a requisition which shall: (a) identify the total
amount of such costs to be paid pursuant to such requisition, including all items of cost in such
detail as may be available to the City; and (b) state with respect to such disbursement (i) the
requisition number, in sequential order, (ii) the amount to be disbursed for payment of such
costs, and (iii) that each item of cost identified therein has been properly incurred, constitutes
payment of a Construction Cost and has not been the basis of any previous disbursement.
Upon completion of the Project and following payment of all Construction Costs, the
Construction Fund shall be closed and transferred to the Lease Payment Fund.
ARTICLE IV
PREPAYMENT OF CERTIFICATES
Section 4.01. Prepayment. (a) Optional Prepayment. The Certificates maturing on or
before September 1, 2008, are not subject to optional prepayment prior to their respective
stated maturities. The Certificates maturing on or after September 1, 2009, are subject to
optional prepayment on any date on or after September 1, 2008, in whole or in part, from
prepayments of the Lease Payments made at the option of the City pursuant to Section 10.2 of
the Lease Agreement, at a prepayment price equal to the principal amount thereof to be prepaid
together with accrued interest to the prepayment date at the prepayment price (expressed as
~ percentages of the principal amount of Certificates or portions thereof to be prepaid) set forth
in the following table, together with accrued interest to the date fixed for prepayment:
Prepayment Dates
Prepayment
Price
On or after September 1, 2008 and prior to August 31, 2009
On or after September 1, 2009 and prior to August 31, 2010
On or after September 1, 2010 and thereafter
101.0%
100.5
100.0
(b) Prepayment From Net Proceeds of Insurance and Condemnation. The Certificates
are also subject to prepayment on any Payment Date, in whole or in part, from the Net
Proceeds of insurance or condemnation with respect to the Project and the Site, which Net
Proceeds are deposited in the Lease Payment Fund and credited towards the prepayment of
the Lease Payments made by the City pursuant to Section 10.3 of the Lease Agreement, at a
prepayment price equal to the principal amount of the Certificates to be prepaid, together with
accrued interest to the date fixed for prepayment, without premium.
Section 4.02. Selection of Certificates for Pre~ Whenever provision is made in
this Agreement for the prepayment of Certificates and less than all Outstanding Certificates are
called for prepayment, the Trustee-shall select Certificates for prepayment from the
Outstanding Certificates not previously called for prepayment, among maturities on a pro rata
basis in integral multiples of $5,000 and by lot within a maturity in any manner deemed fair by
the Trustee. For the purposes of such selection, Certificates shall 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 so selected for prepayment.
Section 4.03. i _ o m When prepayment is authorized or required
pursuant to Section 4.01, the Trustee shall give notice of the prepayment of the Certificates.
Such notice shall specify: (a) that the Certificates or a designated portion thereof are to be
prepaid, (b) the date of prepayment, and (c) the place or places where the prepayment will be
made. Such notice shall further state that on the specified date there shall become due and
payable upon each Certificate, the principal and premium, if any, together with interest accrued
to said date, and that from and after such date interest represented thereby shall cease to
accrue and be payable.
Notice of such prepayment shall be mailed by first class mail to the respective Owners
of Certificates designated for prepayment at their addresses appearing on the Registration
Books, at least fifteen (15) days but not more than forty-five (45) 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 thereof 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 sufficiency of the proceedings for the prepayment of such
Certificates.
Section 4.04. Pi~rtial Prepayment of Certificate. 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
same interest rate and the same maturity.
Section 4.05. Effect of Notice of Prepayment~ Notice having been given as aforesaid,
and moneys for the prepayment (including the interest to the applicable date of prepayment
and including any applicable premium), having been set aside in the Lease Payment Fund, the
Certificates shall become due and payable on said date of prepayment, and, upon presentation
and surrender thereof at the Corporate Trust Office of the Trustee, said Certificates shall be
paid at the unpaid principal amount (or applicable portion thereof) with respect thereto, 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, and, if notice of prepayment thereof shall
have been given as aforesaid, then, from and after said date of prepayment, interest
represented by said Certificates shall cease to accrue and become payable. All moneys held by
or on behalf of the Trustee for the prepayment of Certificates shall be held in trust for the
account of the Owners of the Certificates so to be prepaid.
All Certificates paid at maturity or prepaid prior to maturity pursuant to the provisions
of this Article IV shall be cancelled upon surrender thereof and delivered to the City.
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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 in
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 pursuant to the Lease Agreement or pursuant hereto. 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 shall be forthwith deposited by the Trustee upon the receipt thereof in
the Lease Payment Fund (except as provided in Section 3.02).
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
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 shall be used
and applied by the Trustee as hereinafter set forth.
Section 5.03. ~ There shall be deposited in the Lease Payment Fund all Lease
Payments received by the Trustee (except as provided in Section 3.02), including any moneys
required to be deposited therein pursuant to the Lease Agreement or pursuant to this
Agreement, and including any other moneys required to be credited towards payment of the
Lease Payments.
Section 5.04. Application of Moneys. All amounts in the Lease~ayment Fund shall beused and withdrawn by the Trustee solely for the purpose of paying th~ principal, interest and
prepayment premiums (if any) with respect to the Certificates as the same shall become due
and payable, in accordance with the provisions of Article II and Article IV.
Section 5.05. ~ Any surplus remaining in the Lease Payment Fund, after
prepayment and payment of all Certificates, including premiums and accrued interest (if any)
and payment of any applicable fees 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.
ARTICLE VI
INSURANCE AND CONDEMNATION FUND
INSURANCE; EMINENT DOMAIN
Section 6.01. Establishment of Insurance and Condemnation Fund:
Proceeds of Insurance Award. The provisions of this Section are subject to Section 4.02 of the
Property Lease. 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 by the City pursuant to Section 6.2(a) of the
Lease Agreement and deposited by the Trustee promptly upon receipt thereof in a special fund
designated as the "Insurance and Condemnation 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 interest 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 4.01(b)(i); provided, that such transfer shall only be
made if the amount transferred is sufficient to prepay the principal amount of Certificates
attributable to the portion of the Project damaged or destroyed, determined on the basis of the
ratio resulting from dividing the cost of the portion of the Project so damaged or destroyed by
the total cost of the Project. 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 Requests of the City stating with
respect to each payment to be made (i) the name and address of the person, firm or corporation
to whom payment is due, (ii) the amount to be paid and (iii) 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.
Any balance of the Net Proceeds remaining after such work has been completed shall be paid to
the City. The preceding sentence notwithstanding, before the remaining Net Proceeds are paid
to the City by the Trustee, the City shall deliver to the Trustee a certificate stating that the
Project has been replaced, repaired, restored, modified or improved with the Net Proceeds to
the extent that the City has full use, occupancy and enjoyment of the Project.
Section 6.02. Application of Net Proceeds of Eminent Domain Award. The provisions
of this Section are subject to Section 4.02 of the Property Lease. If all or any part of the Project
or the Site 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(b) of the Lease
Agreement and shall be applied and disbursed by the Trustee as follows:
(a) If all of the Project and the Site shall have been taken in such eminent domain
proceedings or sold to a government threatening the use of eminent domain powers, or if
the City has given written notice to the Trustee of its determination that such proceeds
are not needed for repair or rehabilitation of the Project, the Trustee shall transfer such
proceeds to the Lease Payment Fund to be credited towards the prepayments of the
Lease Payments required to be paid pursuant to Section 6.2(b) of the Lease Agreement
and applied to the prepayment of Certificates in the manner provided in Section
4.01 (b)(i).
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(b) If less than all of the Project and the Site 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 proceeds are needed for repair, rehabilitation or replacement of
the Project and Site, the Trustee shall pay to the City, or to its order, from said proceeds
such amounts as the City may expend for such repair or rehabilitation, upon the filing of
Written Requests of the City in the form and containing the provisions set forth in
Section 6.01.
Section 6.03. Cooperation. The Corporation and the Trustee shall cooperate fully with
the City at the expense of the City in filing any proof of loss with respect to any insurance
policy maintained pursuant to Article V of the Lease Agreement and in the prosecution or
defense of any prospective or pending condemnation proceeding with respect to the Project or
the Site or any portion thereof. ~
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ARTICLE VII
MONEYS IN FUNDS
Section 7.01. Held in Trust. The moneys and investments held by the Trustee under
this Trust Agreement are irrevocably held in. trust for the Certificates, and for the purposes
herein specified, and such moneys shall be expended only as provided in this Trust Agreement,
and shall not be subject to levy or attachment or lien by or for the benefit of any creditor of (i)
the City, (ii) the Trustee, (iii) the Corporation or (iv) the Owner of Certificates.
Section 7.02. Investments Authorized, All moneys in any of the funds established
pursuant to this Trust Agreement shall be invested by the Trustee, and, upon Written Request of
the City, shall be invested as directed by the City, solely in Investment Securities.
Investment Securities may be purchased at Fair Market Value. Moneys in all funds other
than the Reserve Fund shall be invested in Investment Securities maturing not later than five (5)
years from the date said investment is made.
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 shall 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 Earning~ Any income, profit or loss on such investments in
any of the funds other than the Reserve Fund shall be deposited in or charged to the respective
funds from which such investments were made. Investment earnings on the Reserve Fund, to
the extent said earnings are not needed to maintain the Reserve Fund at the Reserve
Requirement, shall be transferred to the Lease Payment Fund as set forth in Section 3.02 hereof
to pay principal of, interest on and premium, if any, on the Certificates as the same shall
become due and payable.
Section 7.05. Valuation of Investments, In computing the amount in any ’fund or
account, Investment Securities shall be valued at the market price thereof. With respect to all
funds and accounts except the Reserve Fund, valuation shall occur annually, prior to the
adoption of the City’s budget. Investment Securities in the Reserve Fund shall be valued
annually, except in the event of a withdrawal from the Reserve Fund, whereupon they shall be
valued immediately after such withdrawal and monthly thereafter until the Reserve Fund is at
its required level.
Section 7.06. ~ of Investment Securities and Disposition of Investments,
Investments in all funds may be commingled for purposes of making, holding or disposing of
investments, notwithstanding provisions herein for transfer to or holding in particular funds
amounts received or held by the Trustee hereunder, provided that the Trustee shall at all times
account for such investments strictly in accordance with the funds to which they are credited
and otherwise as provided in this Trust Agreement. The Trustee may act as principal or agent
in the making or disposing of any investment.
The Trustee may sell at the best price obtainable, or present for prepayment, any
Investment Securities so purchased whenever it shall be necessary to provide moneys to meet
any required payment, transfer, withdrawal or disbursement from the fund to which such
Investment Securities is credited, and the Trustee shall not be liable or responsible for any loss
resulting from any investment made pursuant to this Section 7.06.
Section 7.07. NO Arbitra~, 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 of the Certificates 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 Lease Agreement to be an
"arbitrage bond" within the meaning of section 148(a) of the Code and Regulations promulgated
thereunder.
ARTICLE VIII
THE TRUSTEE
Section 8.01. ~ompensation of the Trustee. The City shall from time to time, as agreed
upon between the City and the Trustee, pay to the Trustee reasonable compensation for its
serviCes, and shall reimburse the Trustee for all its advances and expenditures, including but not
limited to advances to, and fees and expenses of, independent appraisers, accountants,
consultants, counsel, agents and attorneys-at-law or other experts employed by it in the
exercise and performance of its powers and duties hereunder.
Section 8.02. Removal of Trustee. The City and the Corporation may by written
agreement between themselves, or the Owners of a majority in aggregate principal amount of all
Certificates Outstanding may by written request, at any time and for any reason, remove the
Trustee and any successor thereto, and shall thereupon appoint a successor or successors
thereto. Any such successor shall be a bank or trust company in good standing, duly
authorized to exercise trust powers and subject to examination by federal or State authority
having a combined capital (exclusive of borrowed capital) and surplus of at least Fifty Million
Dollars ($50,000,000). 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 purposes of this Section 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 conditions so published.
The Trustee may at any time resign by giving written notice to the City and the
Corporation and by giving to the Certificate Owners notice by mailing such notice to the
registered owners of the Certificates. Upon receiving such notice of resignation, the City shall
promptly appoint a successor Trustee by an instrument in writing; provided, however, that in
the event that the City does not appoint a successor Trustee within thirty (30) days following
receipt of such notice of resignation, the resigning Trustee may petition the appropriate court
having jurisdiction to appoint a successor Trustee. Any resignation or removal of the Trustee
and appointment of a successor Trustee shall become effective upon acceptance of appointment
by the successor Trustee. Upon such acceptance, the City shall mail notice thereof to the
Certificate Owners at their respective addresses set forth on the Certificate registration books
maintained pursuant to Section 2.12.
Section 8.03. Appointment of Agent, The Trustee may appoint an agent to exercise
any of the powers, rights or remedies granted to the Trustee under this Trust Agreement, and to
hold title to property or to take any other action which may be desirable or necessary.
Section 8.04. Merger or Consolidatio__~ Any company 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 to which the
Trustee may sell or transfer all or substantially all of its corporate trust business (provided that
such company shall be eligible under Section 8.02) shall be the successor to the Trustee without
the execution or filing of any paper or further act, anything herein to the contrary
notwithstanding.
Section 8.05. i n R" h f h T The Trustee shall be protected and
shall incur no liability in acting or proceeding in good faith upon any resolution, notice, telegram,
request, consent, waiver, certificate, statement, affidavit, voucher, bond, requisition or other
paper or document which it shall in good faith believe to be genuine and to have been passed or
signed by the proper board or person or to have been prepared and furnished pursuant to any
of the provisions of this Trust Agreement, and the Trustee shall be under no duty to make any
investigation or inquiry as to any statements contained or matters referred to in any such
instrument, but may accept and rely upon the same as conclusive evidence of the truth and
accuracy of such statements. The Trustee may consult with counsel, who may be counsel to the
Corporation, with regard to legal questions, and the opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken or suffered by it hereunder
in good faith in accordance therewith.
Whenever in the administration of its duties under this Trust Agreement, the Trustee
shall deem it necessary or desirable that a matter be proved or established prior to taking or
suffering any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed), shall be deemed to be conclusively proved and established by the
certificate of the City Representative or the Corporation Representative and such certificate
shall be full warranty to the Trustee for any action taken or suffered under the provisions of this
Trust Agreement upon the faith thereof, but in its discretion the Trustee may, in lieu thereof,
accept other evidence of such matter or may require such additional evidence as to it may seem
reasonable.
The Trustee may become the Owner of the Certificates with the same rights it would
have if it were not the Trustee; may acquire and dispose of other bonds or evidences of
indebtedness of the City with the same rights it would have if it were not the Trustee; and may
act as a depositary 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
principal amount of the Certificates then Outstanding.
The recitals, statements and representations by the City and the Corporation contained
in this Trust Agreement or in the Certificates shall be taken and construed as made by and on
the part of the City and the Corporation, as the case may be, and not by the Trustee, and the
Trustee does not assume, and shall not have, any responsibility or obligation for the correctness
of any thereof.
The Trustee may execute any of the trusts or powers hereof and .4~6rform 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. The Trustee shall not be answerable for the exercise of any
discretion or power under’ this Trust Agreement or for anything whatever in connection with the
funds and accounts established hereunder, except only for its own gross negligence or willful
misconduct.
ARTICLE IX
MODIFICATION OR AMENDMENT OF AGREEMENT
Section 9.01. Amendments Permitted. This Agreement and the rights and obligations
of the parties hereto 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 at least sixty percent (60%) 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 (1) extend or have the effect of extending the fixed maturity of
any Certificate or reducing the interest rate with respect thereto or extending the time of
payment of interest, or reducing the amount of principal thereof or reducing any premium
payable upon the prepayment thereof, without the express consent of the Owner of such
Certificate, or (2) 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 (3) modify any of the rights or obligations of the Trustee without its written
assent thereto. Any such supplemental agreement shall become effective as provided in Section
9.02.
This Agreement and the rights and obligations of the parties hereto 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 (1) 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 City, (2) to cure, correct or supplement any ambiguous or defective provision
contained herein or therein so long as such modification or amendment is not inconsistent with
any other provision contained herein, (3) in regard to questions arising hereunder or thereunder,
as the parties hereto or thereto may deem necessary or desirable and which shall not adversely
affect the interests of the Owners of the Certificates, (4) to correct any incorrect property
description or (5) to make such additions, deletions or modifications as may be necessary to
assure compliance with section 148(f) of the Code relating to requ~re~Jvrebate of Excess
Investment Earnings to the United States or otherwise as may be necessarY] to a~sure exemption
from federal income taxation of the interest component of the Lease Payments. 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. ~or Amendment with Written Consent of Certificate Own red~
This Agreement and the Lease Agreemen[ 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
receive copies of such supplemental agreement and request shall not affect the validity of the
supplemental agreement when assented to as in this Section provided.
Such supplemental agreement shall not become effective unless there shall be filed with
the Trustee the written consents of the Owners of sixty percent (60%) in aggregate principal
amount of the Certificates then Outstanding (exclusive of Certificates disqualified as provided
in Section 9.03) and a notice shall 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)
unless such consent is revoked in writing by the Owner giving such consent or a subsequent
Owner by filing such revocation with 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 shall have filed their
consents to such supplemental agreement, the Trustee shall 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 receive 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 mailing 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 mailing, 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 controlling 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 A~ 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
theretoand all Owners of Certificates Outstanding, as the case may be, shall thereafter be
determined, exercised and enforced hereunder subject in all respects to ~ach 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.
The Trustee may require each Certificate Owner, before his consent provided for in this
Article IX shall be deemed effective, to reveal 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~ Delivered .After
~ 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 of
the Owner of any Certificate Outstanding at such effective date and presentation of his
Certificate for the purpose at the Corporate 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 of the Owner of any Certificate then Outstanding,
such substitute Certificate shall be exchanged at the Corporate 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 Certifici~tes. 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 i~nd 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 an event ofdefault under or a ground for
cancellation or termination of the Lease Agreement. 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 any Site, 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. Prosecution and Defense of Suits. The Corporation and 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 and the Site, 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 10.03. Recordation and Filing. The City shall record and file the Lease
Agreement, 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 10.04. No Federal Guarantee, The Corporation and the City shall take no
action nor permit nor suffer any action to be taken if the result of the same would cause the
Lease Payments or the Certificates to be a federally guaranteed obligation within the meaning of
Section 103(h) of the Tax ’Code.
Section 10.05. Continuing Disclosure, The City hereby covenants and agrees that it will
comply with and carry out all of the provisions Of that certain Continuing Disclosure Certificate
executed by the City as of the Closing Date, as originally executed and as it may be amended
from time to time in accordance with its terms. Notwithstanding any other provision of this
Lease, failure of the City to comply with such Continuing Disclosure Certificate shall not
constitute an Event of Default; provided, however, that any Participating Underwriter (as such
term is defined in such Continuing Disclosure Certificate ) or any Owner or beneficial owner of
the Bonds may take such actions as may be necessary and appropriate to compel performance
by the City of its obligations under this Section, including seeking mandate or specific
performance by court order.
Section 10.06. Further Assuranc.eI~ The Corporation and the City will make, execute
and deliver any and all such further resolutions, instruments 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 Ci .ty. 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 the Lease Agreement and herein, the City shall have no
pecuniary obligation or liability to any of the other parties or to the Owners of the Certificates
with respect to this Trust Agreement or the terms, execution, delivery or transfer of the
Certificates, or the distribution of Lease Payments to the Owners by the Trustee.
Section 11.02. No Liability 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 Trust Agreement, except where the City or the Corporation, as the case may be, has
given specific direction to the Trustee to take certain actions.
Section 11.03. Indemnification, The Corporation and the City agree to indemnify and
save the Trustee harmless from and against all claims, suits and actions brought against it, or to
which it is made a party, and from all losses and damages suffered by it as a result thereof,
where and to the extent such claim, suit or action arises out of the actions of any other party to
this Agreement including but not limited to the ownership, operation or use of the Projects and
the Sites by the City. Such indemnification shall not extend to claims, suits and actions brought
against the Trustee for failure to perform and carry out the duties specifically imposed upon
and to be performed by it pursuant to this Trust Agreement.. In the event the Corporation or the
City is required to indemnify the Trustee as herein provided, the Corporation or the .City shall
be subrogated to the rights of the Trustee to recover such losses ordamages from any other
person or entity.
Section 11.04. Opinion of Counsel, Before being required to take any action, the
Trustee may require an opinion of Independent Counsel acceptable to the Trustee, which
opinion shall be made available to the other parties hereto upon request, which counsel may be
counsel to any of the parties hereto, or a verified certificate of any party hereto, or both,
concerning the proposed action. If it does so in good faith, Trustee shall be protected in relying
thereon.
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, the Owners of the Certificates,
any legal or equitable right, remedy or claim under or in 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 Right~, Pursuant to the Assignment Agreement the
Corporation has transferred, assigned and set over to the Trustee all of the Corporation’s rights
in and to the Lease Agreement (excepting on the Corporation’s rights under Sections 5.8, 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 (i) 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
Award Fund, and (ii) 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 as provided in Article IX of the Lease Agreement shall, 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 circumstances 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, 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, and in case such moneys shall 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. i i i 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. -/~haIlaaK~Ke~ Nothing in this Article X|I or in any other provision of this
Agreement or in the Certificates, shall affect or impair the obligation of the City to pay or
prepay the Lease Payments in accordance with and subject to the terms and provisions of the
Lease Agreement, or affect or impair the right of action, which is also absolute and
unconditional, of the Certificate Owners to institute suit to enforce and collect such payment.
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 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 shall 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 of the
Certificates Outstanding; provided, that the provisions of this Section 12.07 shall only be
effective if the Municipal Bond Insurance Policy is not in full force and effect.
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 institute such action, suit or proceeding in its own
name; (c) said Owners shall have tendered to the Trustee reasonable ~demnity against the
costs, expenses and liabilities to be incurred in compliance with such request; and (d) the
Trustee shall have refused or omitted to comply with such request for a period of sixty (60)
days after such written request shall 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 shall 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.
The right of any Owner of any Certificate to receive payment of said Owner’s
proportionate interest in the Lease Payments as the same become due, or to institute suit for the
enforcement of such payment, shall not be impaired or affected without the consent of such
Owner, notwithstanding the foregoing provisions of this Section or any other provision of this
Agreement.
ARTICLE XIII
DEFEASANCE
Section 13.01. Discharge of Trust Agreement, The Certificates may be paid by the City
in any of the following ways, provided that the City also pays or causes to be paid any other
sums payable hereunder by the City:
(a) by paying or causing to be paid the Principal Amount relating to the
Certificates, together with interest thereon, as and when the same become due and
payable ;
(b) by depositing with the Trustee, in trust, at or before maturity, money or
securities in the necessary amount (as provided in Section 13.03) to pay or prepay all
Certificates then Outstanding ; or
(c) by delivering to the Trustee, for cancellation by it, all of the Certificates then
Outstanding.
If the City shall also pay or cause to be paid all other sums payable by the City
hereunder, then and in that case, at the election of the City (evidenced by a Written Request of
the City, filed with the Trustee, signifying the intention of the City to discharge all such
indebtedness and this Trust Agreement), and notwithstanding that any Certificates shall not
have been surrendered for payment, this Trust Agreement and the pledge of Lease Payments
and other assets made under this Trust Agreement and all ovenants,-agreements and other
obligations of the City under this Trust Agreement shall cease, terminate, become void and be
completely discharged and satisfied. In such event, upon the Written Request of the City, the
Trustee shall cause an accounting for such period or periods as may be requested by the City to
be prepared and filed with the City and shall execute and deliver to the City all such
instruments as may be necessary or desirable to evidence such discharge and satisfaction, and
the Trustee shall pay over, transfer, assign or deliver all moneys or securities or other property
held by it pursuant to this Trust Agreement which are not required for the payment or
prepayment of Certificates not theretofore surrendered for such payment or prepayment to the
City.
Section 13.02. Discharge of Liability on Certificate~, Upon the deposit with the
Trustee, in trust, at or before maturity, of money or securities in the necessary amount (as
provided in Section 13.03) to pay or prepay any Outstanding Certificates (whether upon or
prior to their respective maturities or the prepayment date of such Certificates), provid6d that,
if such Certificates are to be prepaid prior to maturity, notice of such prepayment shall have
been given as provided in Article IV or provision satisfactory to the Trustee shall have been
made for the giving of such notice, then all liability of the City in respect of such Certificates
shall cease, terminate and be completely discharged, and the Owner thereof shall thereafter be
entitled 0nly to payment out of such money or securities deposited with the Trustee as
aforesaid for their payment, subject, however, to the provisions of Section 13.04.
The City may at any time surrender to the Trustee for cancellation by it any Certificates
previously issued and delivered, which the City may have acquired in any manner whatsoever,
and such Certificates, upon such surrender and cancellation, shall be deemed to be paid and
retired.
Section 13.03. Deposit of Money or Securiti~ with Trustee. Whenever in this Trust
Agreement it is provided or permitted that there be deposited with or held in trust by the
Trustee money or securities in the necessary amount to pay or redeem any Certificates, the
money or securities so to be deposited or held may include money or securities held by the
Trustee in the funds established pursuant to this Trust Agreement and shall be--
(a) lawful money of the United States of America in an amount equal to the
principal amount of such Certificates and all unpaid interest thereon to maturity, except
that, in the case of Certificates which are to be prepaid prior to maturity and in respect
of which notice of such prepayment shall have been given as provided in Article IV or
provision satisfactory to the Trustee shall have been made for the giving of such notice,
the amount to be deposited or held shall be the principal amount of such Certificates
and all unpaid interest thereon to the prepayment date; or
(b) Defeasance Obligations (as defined below), the principal of and interest on
which when due will provide money sufficient to pay the principal of and all unpaid
interest to maturity, or to the prepayment date, as the case may be, on the Certificates
to be paid or prepaid, as such principal and interest become due, provided that, in the
case of Certificates which are to be prepaid prior to the maturity thereof, notice of such
prepayment shall have been given as provided in Article IV or provision satisfactory to
the Trustee shall have been made for the giving of such notice;
provided, in each case, that the Trustee shall have been irrevocably instructed (by the
terms of this Trust Agreement or by Written Request of the City) to apply such money to the
payment of such principal and interest with respect to such Certificates,
For purposes of this Section, "Defeasance Obligations" shall mean the United States
Obligations and Prerefunded Municipal Obligations defined in paragraphs (1) and (3) of the
definition of Investment Securities.
Section 13.04. Payment of Certificates After Discharge of Trust A~,rcement,
Notwithstanding any provisions of this Trust Agreement, any moneys held by the Trustee in
trust-for the payment of the Principal Amount relating to any Certificates, together with interest
thereon and remaining unclaimed for six years after the Principal Amount.~l~lating to all of the
Certificates has become due and payable (whether at maturity or upon call for prepayment as
provided in this Trust Agreement), if such moneys were so held at such date, or two 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 City and 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 to the Owners of Certificates
which have not yet been paid, at the 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.
ARTICLE XIV
MISCELLANEOUS
Section 14.01. 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 time during
regular business hours.
Section 14.02. ~ 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 shall 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:
If to the City:City Clerk
City of Palo Alto
P. O. Box 10250
Palo Alto, CA 94303
If to the Corporation:Palo Alto Public Improvement Corporation
c/o City Clerk
P. O. Box 10250
Palo Alto, CA 94303
If to’ the Trustee:U.S. Bank Trust National Association
One California Street, 4th Floor
San Francisco, CA 94111
Section 14.03. Governing Law, This Agreement shall be construed and governed in
accordance with the laws of the State.
Section 14.04. Binding Effect: Successo.~ 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.
Section 14.05. Execution in Counterp0rts, This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same agreement.
Section 14.06. ~on of Cancelled Certificates. Whenever in this Agreement
provision is made for the surrender to or cancellation by the Trustee and the delivery to the City
of any Certificates, the Trustee may, upon the request of the City Representative, in lieu of such
cancellation and delivery, destroy such Certificates and deliver a certificate of such destruction
to the City..
Section 14.07. ~ 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 14.08. Waiver of Notice. Whenever in this Agreement the giving of 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 14.09. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
UoSo BANK TRUST
ASSOCIATION, as Trustee NATIONAL
Title:
Authorized Officer
PALO ALTO PUBLIC IMPROVEMENT
CORPORATION
President
(S E A L)
Attest:
Secretary
CITY OF PALO ALTO
(S E A L)
Attest:
City Manager
City Clerk
-39-
EXHIBIT A
(FORM OF CERTIFICATE OF PARTICIPATION)
CITY OF PALO ALTO
CERTIFICATE OF PARTICIPATION
(Golf Course Improvement and Refinancing Project), Series 1998
Evidencing the Undivided Fractional Interest of the Owner
Hereof in Lease Payments to be Made by the
CITY OF PALO ALTO, CALIFORNIA
As Rental For Certain Property Pursuant
to a Lease Agreement With the
City of Palo Alto Public Improvement Corporation
ORIGINAL ISSUE DATE: RATE OF INTEREST:MATURITY DATE:CUSIP
REGISTERED OWNER:
PRINCIPAL AMOUNT:
THIS IS TO CERTIFY THAT the Registered Owner identified above, or registered
assigns, as the registered owner (the :’Registered Owner") of this Certificate of Participation (the
"Certificate") is the owner of an undivided fractional interest in Lease Payments under the
Lease Agreement dated as of August 1, 1998, by and between the Palo Alto Public
Improvement Corporation, a nonprofit public benefit corporation duly formed and acting under
the laws of the State of California (the "Corporation"), and the City of Palo Alto, a charter city
and political subdivision duly organized and existing under the Constitution and the laws of
the State of California the ("City") (the" Lease Agreement") which Lease Payments and certain
other rights and interests under the Lease Agreement have been assigned to , as
trustee (the "Trustee"), having a corporate trust office in San Francisco, California (the
"Corporate Trust Office").
The Registered Owner of this Certificate is entitled to receive, subject to the terms of the
Lease Agreement, on the Maturity Date identified above, the Principal Amount identified
above, representing a portion of the Lease Payments designated as principal, and to receive on
March 1, 1999 and semiannually thereafter on September 1 and March 1 of each year (the
"Payment Dates") until payment in full of said principal, the Registered Owner’s proportionate
share of the Lease Payments designated as interest coming due during the interest period
immediately preceding each of the Payment Dates; provided that interest with respect hereto
shall be payable from the Payment Date next preceding the date of execution of this Certificate
unless (i) this Certificate is executed on a Payment Date, in which event interest shall be
payable from such Payment Date, or (ii) this Certificate is executed, after the close of business
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on the fifteenth (15th) day of the month immediately preceding a Payment Date and prior to
such Payment Date, in which event interest shall be payable from such Payment Date, or (iii)
unless this Certificate is executed on or before February 15, 1999, in which event interest shall
be payable from August 1, 1998. Said proportionate share of the portion of the Lease
Payments designated as interest is the result of the multiplication of the aforesaid portion of the
Lease Payments designated as principal by the Rate of Interest per annum identified above.
Said amounts are payable in lawful money of the United States of America in the case of
principal and interest at maturity upon presentation hereof at the Corporate Trust Office of the
Trustee, and in the case of interest prior to maturity by check or draft mailed by the Trustee to
the Registered Owner hereof at the address as it appears on the registration books of the
Trustee.
This Certificate has been executed and delivered by the Trustee pursuant to the terms of
a Trust Agreement by and among the Trustee, the Corporation and the City, dated as of August
1, 1998 (the "Trust Agreement"). The City has certified that it is authorized to enter into the
Lease Agreement and the Trust Agreement under the constitution and laws of the State of
California, for the purpose of leasing certain land and public improvements from the
Corporation. Reference is hereby made to the Lease Agreement and the Trust Agreement
(copies of which are on file at the Corporate Trust Office of the Trustee) for a description of the
terms on which the Certificates are delivered, the rights thereunder of the owners of the
Certificates, the rights, duties and immunities of the Trustee and the rights and obligations of
the City under the Lease Agreement, to all of the provisions of the Lease Agreement and the
Trust Agreement the Registered Owner of this Certificate, by acceptance hereof, assents and
agrees.
The City is obligated under the Lease Agreement to pay Lease Payments from any
source of available funds. The obligation of the City to pay the Lease Payments does not
constitute an obligation of the City 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. The obligation of the
City to pay Lease Payments does not constitute a debt of the City, the State of California or
any of its political subdivisions, and does not constitute an indebtedness within the meaning of
any constitutional or statutory debt limitation or restriction.
To the extent and in the manner permitted by the terms of th~Trust Agre4ment, theprovisions of the Trust Agreement may be amended by the parties thereto With the written
consent of the owners of at least sixty percent (60%) in aggregate principal amount of the
Certificates then outstanding, and may be amended without such consent under certain
circumstances; provided that no such amendment shall adversely affect the interests of the
owners of the Certificates or shall impair the right of any owner to receive in any case such
owner’s proportionate share of any Lease Payment in accordance with such owner’s Certificate.
This Certificate is transferable by the Registered Owner hereof, in person or by his
attorney duly authorized in writing, at th.e Corporate Trust Office of the Trustee, but only in the
manner, subject to the limitations and upon payment of the charges, if any, provided in the
Trust Agreement and upon surrender and cancellation of this Certificate. Upon such transfer a
new Certificate or Certificates, of authorized denomination or denominations and of the same
maturity, for the same aggregate principal amount will be delivered to the transferee in exchange
herefor. The City, the Corporation and the Trustee may treat the registered owner hereof as the
absolute owner hereof for all purposes, whether or not this Certificate shall be overdue, and the
City, the Corporation and the Trustee shall not be affected by any notice to the contrary.
The Certificates maturing on or ~before September 1, 2008, are not subject to optional
prepayment prior to their respective stated maturities. The Certificates maturing on or after
September 1, 2009, are subject to optional prepayment on any date on or after September 1,
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2008, in whole or in part, from prepayments of the Lease Payments made at the option of the
City pursuant to Section 10.2 of the Lease Agreement, at a prepayment price equal to the
principal amount thereof to be prepaid together with accrued interest to the prepayment date at
the prepayment price (expressed as percentages of the principal amount of Certificates or
portions thereof to be prepaid) set forth in the following table, together with accrued interest to
the date fixed for prepayment:
Prepayment Dates
Prepayment
Price
On or after September 1, 2008 and prior to August 31, 2009
On or after September 1, 2009 and prior to August 31, 2010
On or after September.I, 2010 and thereafter
101.0%
100.5
100.0
The Certificates are also subject to prepayment on any Payment Date in whole, or in
part among maturities on a pro rata basis and by lot within a maturity, from the Net Proceeds
of insurance or condemnation with respect to the Leased Premises, which Net Proceeds are
deposited in the Lease Payment Fund and credited towards the prepayment of the Lease
Payments made by the City pursuant to Section 10.3 of the Lease Agreement, at a prepayment
price equal to the principal amount thereof to be prepaid together with accrued interest to the
date fixed for prepayment, without premium.
To the extent that the Trustee shall have prepaid Certificates in part pursuant to the
prepayment provisions of Section 4.01 of the Trust Agreement, the amount of the Certificates to
be prepaid in subsequent years pursuant to this paragraph will be reduced to correspond to the
principal components of the Lease Payments prevailing following such redemption, determined
as set forth in Section 4.4(b) of the Lease Agreement.
As provided in the Trust Agreement, notice of prepayment shall be mailed, not less than
fifteen (15) nor more than forty-five (45) days before the prepayment date, to the registered
owner of the Certificate to be prepaid, but neither failure to receive such notice nor any defect in
the notice so mailed shall affect the sufficiency of the proceedings for prepayment.
If this Certificate is called for prepayment and payment is duly provided therefor as
specified in the Trust Agreement, interest represented hereby shall cease to accrue from and
after the date fixed for prepayment.
Unless this Certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Trustee for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co., or to such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
IN WITNESS WHEREOF, this Certificate has been executed and delivered by
, as trustee, acting pursuant to the Trust Agreement.
Execution Date:
Authorized Officer
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(FORM OF ASSIGNMENT)
For value received, the undersigned do(es) hereby sell, assign and transfer unto
(Name, Address and Tax Identification or Social Security Number of Assignee)
the within Bond and do(es) hereby irrevocably constitute and appoint
, attorney, to transfer the same on the registration books of the Trustee, with full
power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE:Signature(s) must be guaranteed by an
eligible guarantor
NOTICE: The signature on this assignment must
correspond with the name(s) as
written on the face of the within Bond
in every particular without alteration
or enlargement or any change
whatsoever.
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26005-47 JH:WHM:cco PROPOSED FINAL 07/01/c~8
ESCROW DEPOSIT AND TRUST AGREEMENT
by and among the
CITY OF PALO ALTO GOLF COURSE CORPORATION,
the
CITY OF PALO ALTO,
and
U.S. BANK TRUST NATIONAL ASSOCIATION
as Escrow Bank
Dated as of August 1, 1998
Relating To:
City of Palo Alto Golf Course Corporation
$1,800,000 (Original Principal Amount)
Lease Revenue Bonds, Series 1978
ESCROW DEPOSIT AND TRUST AGREEMENT
This Escrow Deposit and Trust Agreement is made and entered into as of the 1st day of
August, 1998, by and between the CITY OF PALO ALTO, a chartered municipal corporation.
duly organized and existing under the laws of the State of California (the "City"), the PALO
ALTO GOLF COURSE CORPORATION, a nonprofit corporation organized under the general
nonprofit corporation laws of the State of California (the "Golf Course Corporation"), and U.S.
BANK TRUST NATIONAL ASSOCIATION, a national banking association organized and
existing under the laws of the United States of America, having a corporate trust office in the
City of San Francisco, California (the "Escrow Bank");
WITNESSETH:
WHEREAS, the Golf Course Corporation issued its $1,800,000 Lease Revenue Bonds,
Series 1978 (the "1978 Bonds"), the proceeds of which were used to construct improvements to
the Palo Alto municipal golf course (the "Golf Course"), a new clubhouse and pro shop and
necessary appurtenances therefor (the "1978 Project"); and
WHEREAS, the 1978 Bonds were issued pursuant to Resolution No. 78-2, entitled "A
Resolution Authorizing the Issuance of Golf Course Lease Revenue Bonds of the City of Palo
Alto Golf Course Corporation and Providing for the Issuance of Series 1978 Thereof’, adopted
by the Board of Directors of.the Golf Course Corporation on February 14, 1978 (the "1978 Bond
Resolution"); and
WHEREAS, in order to secure the 1978 Bonds, the City and the Golf Course
Corporation entered into a Lease of Golf Course Facility (as amended), dated October 3, 1977
(the "1977 Lease"), under which the Base Rent (as defined in the 1978 Lease) to be paid by the
City was calculated to be sufficient to pay debt service on the 1978 Bonds; and
WHEREAS, the City wishes to finance additional improvements ~ _the Golf Course,
including upgrading five fairways and various traps, trees and greens; constructing new storm
drain facilities; replacing the existing irrigation system; upgrading the driving range; and
installing new cart paths (the "1998 Project"); and
WHEREAS, the City and the Palo Alto Public Improvement Corporation (the
"Corporation") have determined to refund the 1978 Bonds and finance the 1998 Project by
entering into a Lease Agreement, dated as of August 1, 1998, between the Corporation and the
City (the "Lease Agreement"); and
WHEREAS, for the purpose of obtaining the moneys required to refund the 1978 Bonds
and finance the 1998 Project, the Corporation proposes to assign and transfer certain of its
rights under the Lease Agreement to U. S. Bank Trust National Association (the "Trustee"), and
in consideration of such assignment and the execution of a Trust Agreement, dated as of August
1, 1998, among the Trustee, the City and the Corporation (the "Trust Agreement"), the Trustee
has agreed to execute and deliver certificates of participation, in the principal amount of
$ (the "1998 Certificates") each evidencing a fractional interest in the lease
payments made by the City under the Lease Agreement, to provide the moneys required herein
to be deposited by the Corporation;
WHEREAS, the City and the Golf Course Corporation propose to make a deposit of
moneys and Federal Securities from the proceeds of the 1998 Certificates and to appoint the
Escrow Bank as their agent for the purpose of applying said deposit to the payment of debt
service on the 1978 Bonds in accordance with the instructions provided by this Escrow Deposit
and Trust Agreement and to the payment and redemption of the 1978 Bonds in accordance
with the 1978 Bond Resolution, and the Escrow Bank desires to accept said appointment; and
WHEREAS, the Escrow Bank has full powers to act with respect to the irrevocable
escrow created herein and to perform the duties and obligations to be undertaken pursuant to
this Escrow Deposit and Trust Agreement:
NOW, THEREFORE, in consideration of the above premises and of the mutual promises
and covenants herein contained, the parties hereto DO HEREBY AGREE as follows:
Section 1. Appointment of Escrow Bank, The City hereby appoints the Escrow Bank as
escrow holder for all purposes of this Escrow Deposit and Trust Agreement, and the Escrow
Bank hereby accepts such appointment..
Section 2. Establishment of Escrow Fund. There is hereby created by the City and the
Golf Course Corporation with, and to be held by, the Escrow Bank, as security for the payment
of the debt service on the 1978 Bonds, an irrevocable escrow to be held in escrow by the Escrow
Bank on behalf of the City and the Golf Course Corporation and for the benefit of the owners of
the 1978 Bonds, said escrow to be designated the "City of Palo Alto Golf Course Corporation
1978 Refunding Escrow Fund" (the "Escrow Fund"). All moneys and Federal Securities in the
Escrow Fund are hereby irrevocably transferred to the Escrow Bank, as security for payment of
the debt service on the 1978 Bonds, to be held by the Escrow Bank in escrow for the benefit of
the owners of the 1978 Bonds, except as specified in Section 6 and Section 7 hereof. If at any
time the Escrow Bank shall receive actual knowledge that the moneys and Federal Securities in
the Escrow Fund will not be sufficient to make any payment required by Section 6 hereof, the
Escrow Bank shall notify the City of such fact and the City shall immediately cure such
deficiency.
Section 3. Deposit into Escrow Fund, Concurrently with the delivery of the 1998
Certificates, the City and the Corporation shall cause: (i) $ of the proceeds
of sale thereof, in immediately available funds, to be transferred to the Escrow Bank for deposit
in the Escrow Fund; and (ii) $ from the Reserve Fund for the 1978 Bonds to be
transferred to the Escrow Bank for deposit to the Escrow, for a total deposit of
$ Any moneys remaining in the funds and accounts established under the
1978 Bond Resolution, including any investment earnings received after the Closing Date, will be
transferred to the Trustee, for deposit to the Lease Payment Fund, and such funds and
accounts will be closed.
Section 4. Investment of Deposit in Escrow Fund. The Escrow Bank shall invest
$of the moneys deposited into the Escrow Fund pursuant to the preceding
section in the Federal Securities set forth in Exhibit A attached hereto and by this reference
incorporated herein (the "Escrowed Federal Securities") and the remaining $ in
cash uninvested. The Escrowed Federal Securities shall be deposited with and held by the
Escrow Bank in the Escrow Fund solely for the uses and purposes set forth herein.
Section 5. i i i n f i. The City hereby instructs the
Escrow Bank as its agent to apply the moneys and Escrowed Federal Securities deposited in the
Escrow Fund pursuant to Section 3 hereof to pay the principal of and interest on the 1978
Bonds on September 1, 1998, and to pay the redemption price of all then outstanding 1978
Bonds on September 1, 1998 at a redemption price equal to the principal amount thereof, plus a
premium equal to one-quarter of one percent (1/4 of 1%) for each year or fraction of a year
between the redemption date and the date of maturity of the 1978 Bonds, but not to exceed
three percent (3%), all pursuant to and in accordance with the provisions of Section 204 of the
1978 Bond Resolution and in the amounts set forth in Exhibit B attached hereto and by this
reference incorporated herein.
Section 6. Remaining Money~, The Escrow Bank shall hold uninvested money, if any,
remaining from time to time in the Escrow Fund until needed for payment of the debt service on
the 1978 Bonds in accordance with Section 5 hereof; provided, however, that such moneys may
be invested or reinvested at such interest rates as the Escrow Bank shall be directed in writing
by the City, but only if such written directions shall be accompanied by an opinion, of nationally
recognized bond counsel that investment in accordance with such directions will not affect, for
federal income tax purposes, the exclusion from gross income for purposes of federal income
taxes of the interest payable with respect to the Certificates or payable on the 1978 Bonds.
Any interest income resulting from investment or reinvestment of moneys pursuant to this
Section 6 shall be paid to the City promptly, after, and only upon, the payment and redemptionin full of the 1978 Bonds.
Section 7. Substitution of Federal Securities. The City may at any time direct the
Escrow Bank to substitute Federal Securities then issued by the United States of America for
any or all of the Federal Securities then deposited in the Escrow Fund, provided that any such
direction and substitution shall be accompanied with a certification of an independent certified
public accountant or firm of certified public accountants of favorable national reputation
experienced in the refunding of obligations of political subdivisions that the Federal Securities
then to be so deposited in the Escrow Fund, together with interest to be derived therefrom, shall
be in an amount at all times at least sufficient to make the payments specified in Section 5
hereof and, further, to be accompanied with an opinion of nationally recognized bond counsel
that the substitution will not affect, for federal income tax purposes, the exclusion from gross
income for purposes of federal income taxes of the interest payable with respect to the
Certificates or payable on the 1978 Bonds. In the event that, following any such substitution of
Federal Securities pursuant to this Section 7, there is an amount of moneys or Federal Securities
in excess of an amount sufficient to make the payments required by Section 5 hereof, such
excess shall be paid to the City.
Section 8. Notice of Redemption. The City hereby instructs the Escrow Bank to take all
steps required to redeem all outstanding 1978 Bonds on September 1, 1998 (the "Redemption
Date"), at a redemption price equal to the principal amount thereof, plus a premium equal to
one-quarter of one percent (1/4 of 1%) for each year Or fraction of a year between the.
redemption date and the date of maturity of the 1978 Bonds, but not to exceed three percent
(3%), together with accrued interest represented thereby to the redemption date. Pursuant to
Section 405 of the 1978 Bond Resolution, at the expense of the City, the Escrow Bank shall
cause to be mailed and published, notice of the redemption of the 1978 Bonds.
Section 9. ~plication of Certain Terms of the 1978 Bond Resolution, All of the terms
of the 1978 Bond Resolution regarding the making of payments of principal, premium, if any,
and interest on the 1978 Bonds are incorporated in this Escrow Deposit and Trust Agreement
as if set forth in full herein. Provisions of the 1978 Bond Resolution relating to the resignation
and removal of a trustee shall be the procedure to be followed with respect to any resignation or
removal of the Escrow Bank hereunder.
Section 10. i r B k The Escrow Bank hereby acknowledges
that it has received on the date hereof partial compensation for its duties under this Escrow
Deposit and Trust Agreement representing its first year administration fees, except that the
City shall indemnify and hold harmless the Escrow Bank for out-of-pocket costs such as
mailing costs, redemption expenses, legal fees and other costs and expenses relating hereto and,
in addition, fees, costs and expenses relating to the purchase of any Federal Securities, but
under no circumstances shall amounts deposited in the Escrow Fund be deemed to be available
for said purposes. The City and the Escrow Bank hereby agree that the Escrow Bank shall be
paid its subsequent annual administration fees, as billed, plus appropriate out-of-pocket
expenses.
Section 11. Liabilities and Obligations of Escrow Bank. The Escrow Bank shall have no
obligation to make any payment or disbursement of any type or incur any financial liability in
the performance of its duties under this Escrow Deposit and Trust Agreement unless the City
shall have deposited sufficient funds with the Escrow Bank. The Escrow Bank may rely and
shall be protected in acting upon the written instructions of the City or its agents relating to any
matter or action as Escrow Bank under this Escrow Deposit and Trust Agreement.
The Escrow Bank undertakes such duties as specifically set forth herein and no implied
duties or obligations shall be read into this Escrow Deposit and Trust Agreement against the
Escrow Bank.
The City hereby assumes liability for, and hereby agrees (whether or not any of the
transactions contemplated hereby are consummated) to indemnify, protect, save and hold
harmless the Escrow Bank and its respective successors, assigns, agents and servants from and
against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits,
costs, expenses and disbursements (including legal fees and disbursements) of whatsoever kind
and nature which may be imposed on, incurred by, or asserted against, at any time, the Escrow
Bank (whether or not also indemnified against by any other person under any other agreement
or instrument) and in any way relating to or arising out of the execution and delivery of this
Escrow Deposit and Trust Agreement, the establishment of the Escrow Fund, the retention of
the moneys therein and any payment, transfer or other application of moneys or securities by
the Escrow Bank in accordance with the provisions of this Escrow Deposit. and Trust
Agreement, or as may arise by reason of any act, omission or error of the Escrow Bank made in
good faith in the conduct of its duties; provided, however, that the City shall not be required to
indemnify the Escrow Bank against its own negligence or misconduct. The indemnities
contained in this Section 11 shall survive the termination of this Escrow Deposit and Trust
Agreement. % __
The Escrow Bank and its respective successors, assigns, agents and servants shall not be
held to any personal liability whatsoever, in tort, contract, or otherwise in connection with the
execution and delivery of this Agreement, the establishment of the Escrow Fund, the acceptance
of the moneys or any securities deposited therein, the purchase of the securities to be purchase
pursuant hereto, the retention of such securities or the proceeds thereof, the sufficiency of the
securities or any uninvested moneys held hereunder to accomplish the defeasance of the 1978
Bonds, or any payment, transfer or other application of moneys or securities by the Escrow
Bank in accordance with the provisions of this Agreement or by reason of any non-negligent act,
non-negligent omission or non-negligent error or the Escrow Bank made in good faith in the
conduct of its duties. The recitals of fact contained in the "whereas" clauses herein shall be
taken as the statement of the City and the Escrow Bank assumes no responsibility for the
correctness thereof. The Escrow Bank make no representations as to the sufficiency of the
securities to be purchased pursuant hereto and any uninvested moneys to accomplish the
redemption of the 1978 Bonds pursuant to the 1978 Bond Resolution or to the validity of this
Agreement as the City and, except as otherwise provided herein, the Escrow Bank shall incur no
liability in respect thereof. The Escrow Bank shall not be liable in connection with the
performance of its duties under this Agreement except for its own negligence, willful misconduct
or default, and the duties and obligations of the Escrow Bank shall be determined by the
express provisions of this Agreement. The Escrow Bank may consult with counsel, who may or
may not be counsel to the City, and in reliance upon the written opinion of such counsel shall
have full and complete authorization and protection in respect of any action taken, suffered or
omitted by it in good faith in accordance therewith. Whenever the Escrow Bank shall deem it
necessary or desirable that a matter be proved or established prior to taking, suffering, or
omitting any action under this Agreement, such matter (except the matters set forth herein as
specifically requiring a certificate of a nationally recognized firm of independent certified public
accountants or an opinion of counsel) may be deemed to be conclusively established by a
written certification of the City.
Section 12. ~ All written notices to be given under this Escrow Deposit and
Trust Agreement shall be given by mail to the party entitled thereto at its address set forth
below, or at such address as the party may provide to the other parties in writing from time to
time.
If to the City:
If to the Corporation:
City Clerk
City of Palo Alto
P. O. Box 10250
Palo Alto, CA 94303
Palo Alto PublicImprovement Corporation
c/o City Clerk
P. O. Box 10250
Palo Alto, CA 94303
If to the Trustee:U.S. Bank Trust National Association
One California Street, 4th Floor
San Francisco, CA 94111
Section 13. California Law.. This Escrow Deposit and Trust Agreement shall be
construed and governed in accordance with the laws of the State of California.
Section 14. ~k~ara~ail[l~ Any provision of this Escrow Deposit and Trust Agreement
found to be prohibited by law shall be ineffective only to the extent of such prohibition, and
shall not invalidate the remainder of this Escrow Deposit and Trust Agreement.
Section 15. i "n n This Escrow Deposit and Trust Agreement may
be executed in counterparts and each of said counterparts shall be deemed an original for all
purposes of this Escrow Deposit and Trust Agreement. All of such counterparts taken together
shall be deemed to be one and the same instrument.
Section 16. Merger or Consolidation oLF~K~t.9..~u1KK Any company into which the
Escrow Bank may be merged or converted or with which may be consolidated or any company
resulting from any merger, conversion or consolidation to which it shall be a party or any
company to which the Escrow Bank may sell or transfer all or substantially all of its corporate
trust business, provided such company shall be eligible to act as Trustee under the Trust
Agreement and the 1978 Bond Resolution, shall be the successor hereunder to the Escrow Bank
without the execution or filing of any paper or any further act.
Section 17. ~ i Once the 1978 Bonds have been
redeemed and paid in full, the Golf Course Corporation may dissolve itself. In such case, the
City shall be considered to the successor interest to the Golf Course Corporation under this
Agreement.
IN WITNESS WHEREOF, the Escrow Bank, the Corporation and the City have each
caused this Escrow Deposit and Trust Agreement to be executed by their duly authorized
officers all as of the date first above written.
CITY OF PALO ALTO
By:.
CityManager
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Escrow Bank
By:
Authorized Officer
CITY OF PALO ALTO GOLF COURSE
CORPORATION
By:.
EXHIBIT A
SCHEDULE OF ESCROWED FEDERAL SECURITIES
Security Type Maturity Principal Interest Rate
EXHIBIT B
PAYMENT AND REDEMPTION SCI-~DULE OF
1978 BONDS
Payment Date
Sept. 1, 1998
Principal
$625,000
Redemption
Interest Premium Total Payment
OFFICIAL NOTICE OF SALE
CITY OF PALO ALTO
Certificates of Participation
(Golf Course Improvements and Refinancing Proj ect), Series 1998
Evidencing the Direct, Undivided Fractional Interests of the Owners
Thereof in Lease Payments to be Made by the
CITY OF PALO ALTO
(Santa Clara County, California)
As the Rental for Certain Property Pursuant
to a Lease’ Agreement with the
Palo Alto Public Improvement Corporation
NOTICE IS HEREBY GIVEN that sealed proposals will be received by the City
of Palo Alto (Santa Clara County, California) (the "City"), at the offices of Jones Hall,
A Professional Law Corporation, 650 California Street, 18th Floor, San Francisco,
California 94108, on
TUESDAY, AUGUST 4,1998
at 9:00 a.m. (Pacific Time) for the purchase of approximately $ principal
amount of City of Palo Alto Certificates of Participation (Golf Course Improvements
and Refinancing Project), Series 1998, evidencing the direct, undivided fractional
interests of the owners thereof in lease payments to be made by the City as the rental for
certain property pursuant to a lease agreement with the Palo Alto Public Improvement
Corporation (the "Certificates"). The City may postpone the date or change the time of
the sale to any subsequent date or any other time by providing notification through
Munifacts News Service 24 hours prior to the scheduled date and time of sale. The
actual principal amount of the Certificates may vary, higher or lower, as a function of
how the actual interest rates affect the amount of capitalized interest and the size of the
reserve fund and as a function of the actual discount taken by the successful bidder. The
definitive principal amount will be determined on the date of sale.
TERMS OF THE CERTIFICATES
DATE; FORM; DENOMINATION: The Certificates will be dated as of August 1,
1998, and will be executed and delivered in non-negotiable, fully registered form,
without coupons, in the denomination of $5,000 each or any whole multiple thereof
pursuant to a Trust Agreement, dated as of August 1, 1998 (the "Trust Agreement"), by
and among the City, the Corporation and U. S. Bank Trust National Association, San
Francisco, California, as trustee (the "Trustee"). Reference is made to the Trust
Agreement and the Lease Agreement for further details regarding the terms and
provisions of the Certificates.
The Certificates when executed and delivered will be registered in the name of
Cede & Co., as nominee of the Depository Trust Company, New York, New York
("DTC"), which bank will act as securities depository for the Certificates. Individual
purchase of interests in the Certificates will be made in book-entry form only, in the
principal amount of five thousand dollars ($5,000) or any integral multiple thereof, and
purchases of such interests will not receive certificates representing their interest in the
Certificates. DTC will receive payment from the Trustee of the interest and principal
and redemption premiums, if any, evidenced and represented by the Certificates in
lawful money of the United States of America, and DTC will, in turn, remit such
payments to the participants in the DTC system for subsequent disbursement to the
purchasers of interests in and beneficial owners of the Certificates.
MATURITIES: The Certificates will mature on September 1 in each of the years,
and in the amounts, as follows:
Year Principal Year Principal
(September 1.)Amount (September 1)Amount
ADJUSTMENT OF PRINCIPAL AMOUNTS: The City reserVes the right to
increase or decrease the principal amount of any maturity of the Certificates by as much
as 10% as the City deems advisable in order to accomplish the optimal sizing of.the
Certificate issue. Notice of such increase or decrease shall be given to the successful
bidder as soon as practicable following the notification of award, as described below.
No such adjustment will have the effect of altering the basis upon which the best bid is
determined; provided, however, that any such increase or decrease shall result in a pro rata
increase or decrease, as the case may be, in the amount of discount or premium on the
purchase of the Certificates. ~_
INTEREST: Interest with respect to the Certificates will be payable from August
1, 1998, at such rate or rates to be fixed upon the sale thereof, payable semiannually on
each March 1 and September 1 (each, an "Interest Payment Date"), commencing March
1, 1999.
PAYMENT: The Certificates and the interest with respect thereto are payable in
lawful money of the United States of America, interest being payable by check mailed to
the registered owners thereof at the address shown on the Certificate registration books
maintained by the Trustee on the 15th day of the month preceding an Interest Payment
Date. Principal will be payable upon surrender at the principal corporate trust office of
the Trustee in Los Angeles, California.
TRANSFER AND EXCHANGE: Transfer of ownership of a Certificate or
Certificates shall be made by exchanging the same for a new Certificate or Certificates
and transferring the registration of such Certificate or Certificates on the Certificate
registration books maintained by the Trustee at its principal corporate trust office in Los
Angeles, California.
2
OPTIONAL REDEMPTION: The Certificates ma.turing on or before September
1, 2008, are not subject to optional prepayment prior to their respective stated
maturities. The Certificates maturing on or after September 1, 2009, are subject to
optional prepayment on any date on or after September 1, 2008, in whole or in part,
from prepayments of the Lease Payments made at the option of the City pursuant to
Section 10.2 of the Lease Agreement, at a prepayment price equal to the principal
amount thereof to be prepaid together with accrued interest to the prepayment date at
the prepayment price (expressed as percentages of the principal amount of Certificates
or portions thereof to be prepaid) set forth in the following table, together with accrued
interest to the date fixed for prepayment:
Prepayment Dates
Prepayment
Price
On or after September 1, 2008 and prior to August 31, 2009
On or after September 1, 2009 and prior to August 31, 2010
On or after September 1, 2010 and thereafter "
101.0%
101.5
100.0
INSURANCE, TITLE INSURANCE AND CONDEMNATION REDEMPTION:
The Certificates are subject to redemption (but not in a total redemption amount of less
than $5,000) in whole or in part on any Interest Payment Date, from the net proceeds of
any insurance, title insurance or condemnation award credited towards the prepayment
of Lease Payments, at a redemption price equal to the principal amount thereof, together
with accrued interest to the date fixed for redemption, without premium.
PURPOSE: The proceeds of the Certificates will be applied to refund lease
revenue bonds issued by the City of Palo Alto Golf Course Corporation in 1978 in the
original principal amount of $1,800,000 ($625,000 presently outstanding), and to
construct certain improvements to the Palo Alto Municipal Golf Course (the "Golf
Course").
SECURITY: The Certificates represent direct, undivided fractional interests in
Lease Payments. In general, the C!ty is required to pay to the Truste~ SF~ffied amountsas rental for the Golf Course (the’ Leased Property"), which are desig~fied to-be sufficient
in both time and amount to pay the principal and premium (if any) and interest due
with respect to the Certificates. The City’s obligation to pay Lease Payments shall be in
consideration of the use and occupancy of the Leased Property from any source of
legally available funds of the City. The City has covenanted under the Lease Agreement
to take such action as may be necessary to include all Lease Payments in its annual
budgets and to make the necessary annual appropriations therefor.
The obligation of the City to make Lease Payments does not constitute an
obligation of the City for which the City is obligated to levy or pledge any form of
taxation. Neither the Certificates nor the obligation of the City to pay Lease Payments
constitute a debt of the City, the State of California or any of its political subdivisions
within the meaning of the Constitution of the State of California.
TAX-EXEMPT STATUS: In the opinion of Jones Hall, A Professional Law
Corporation, San Francisco, California, Special Counsel, subject, however to certain
qualifications, 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 alternative minimum tax imposed on individuals and
3
corporations, although for the purpose of computing the alternative minimum tax
imposed on certain corporations, and such interest is taken into account in determining
certain income and earnings. In the further opinion of Special Counsel, such interest is
exempt from California personal income taxes.
In the event that, prior to the delivery of the Certificates (a) the interest on other
obligations of the same type and character shall be declared to be subject to taxation
(either at the time of such declaration or at any future date) under any federal income
tax laws, either by the terms of such laws or by ruling of a federal income tax authority
or official which is followed by the Internal Revenue Service, or by decision of any
federal court, or (b) any federal income tax law is enacted which will have a substantial
adverse effect upon the owners of the Certificates as such, the successful bidder may, at
its option, prior to the tender of the Certificates, be relieved of its obligation to purchase
the Certificates, and in such case the deposit accompanying its bid will be returned.
LEGAL OPINION: The legal opinion of Jones Hall, A Professional Law
Corporation, San Francisco, California, Special Counsel, approving the validity of the
Lease Agreement and the Certificates will be furnished to the successful bidder without
cost. A copy of the legal opinion, certified by the official in whose office the original is
filed, will be printed on each Certificate without charge to the successful bidder.
TERMS OF SALE
FORM OF BID; MAXIMUM DISCOUNT: All bids must be for not less than all of
the Certificates hereby offered for sale and for not less than ninety-nine percent (99%) of
the aggregate par value thereof plus accrued interest to the delivery date. The amount of
any discount specified in any bid shall not exceed one percent (1.0%) of the aggregate
principal amount of the Certificates. Each bid must be enclosed in a sealed envelope
with the envelope and bid clearly marked "Proposal for Purchase of the City of Palo
Alto Certificates of Participation". Each bid must be in accordance with the terms and
conditions set forth in this notice. Bids may be mailed or delivered in care of the
financial advisor at the address mentioned above, but must be received by the date and
time of sale set forth above. ~ ¯ -
TELEFAX BID: Bidders may submit their bid by telefax. Neither the City nor
Public Financial Management takes any responsibility for any difficulties in receiving fax
transmittals prior to the deadline for receipt of bids. A bid will be deemed received if
the bid form is in the process of printing in the facsimile machine in the offices of Jones
Hall bythe deadline of 9:00 a.m. Please allow sufficient time for the bid to be
transmitted, as there is a time delay (typically 2-3 minutes) between the sending and
receipt of facsimile transmissions. The fax numbers to be used for this purpose are
(415) 391-5784, 391-5791, 391-5772, 391-5773 or 391-5774.
BID DEPOSIT: A good faith deposit ("Deposit") in the form of a certified or
cashier’s check or a financial surety bond (a "Financial Surety Bond’) in the amount of
$79,000, payable to the order of the City of Palo Alto, is required for each bid to be
considered. If a check is used, it must accompany each bid. If a Financial Surety Bond
is used, it must be from an insurance company licensed to issue such a bond in the State
of California, and such bond must be submitted to the City or the City’s financial
advisor prior to the opening of the bids. The Financial Surety Bond must identify each
bidder whose Deposit is guaranteed by such Financial Surety Bond.
If the Certificates are awarded to a bidder utilizing a Financial Surety
Bond, then that bidder is required to submit its Deposit to the City in the form of a
cashier’s check (or wire transfer such amount as instructed by the City) not later than
3:30 p.m. Pacific Daylight Time, on the next business day following the day of award. If
such Deposit is not received by that time, the Financial Surety Bond may be drawn by
the City to satisfy the Deposit requirement° In the event the bidder fails to honor its
accepted bid, the Deposit will be retained by the City.
If the Certificates are awarded to a bidder utilizing a certified or cashier’s
check, the check accompanying ~iny accepted proposal will be held by the City following
the award to the successful bidder. If, after the award of the Certificates, the successful
bidder fails to complete its purchase on the terms stated in its proposal, the check will
be cashed by the City and the proceeds thereof will be retained by the City.
If the successful bidder completes its purchase of the Certificates on the
terms stated in its proposal, its Deposit will be applied to the purchase of the
Certificates on the date of delivery of the Certificates. The check accompanying each
unaccepted proposal will be made available for recovery by each unsuccessful bidder.
No interest will be paid upon the deposit made by any bidder.
INTEREST RATE: Bidders must specify the rate or rates of interest which shall
be payable with respect to the Certificates. The maximum rate bid may not exceed
twelve percent (12%) per annum. Interest with respect to the Certificates is payable
semiannually on each March 1 and September 1, commencing March 1,199e). Bidders
will be permitted to bid different rates of interest but (a) each interest rate specified in
any bid must be in a multiple of one-twentieth (1/20) or one-eighth (1/8) of one percent;
(b) interest with respect to no Certificate shall be payable at more than one rate of
interest; (c) interest with respect to each Certificate shall be computed from August 1,
1998, to its stated maturity date at the interest rate specified in the bid, payable
semiannually as set forth above; (d) interest with respect to all Certificates maturing at
any one time shall be payable at the same rate of interest; (e) any premium must be
paid as part of the purchase price, and no bid will be accepted which contemplates the
waiver of any interest or other concession by the bidder as a substitut~r payment in
full of the purchase price; and (f) the maximum annual (Septemb~ 1~ to-August 31)
amount of Lease Payments resulting from the bid shall not exceed $830,000.
BASIS OF AWARD: Unless all bids are rejected, the Certificates will be
awarded to the bidder whose bid represents the lowest true interest cost ("TIC") to the
City. The TIC will be that nominal annual interest rate which, when compounded
semiannually and used to discount to the dated date of the Certificates all payments of
principal and interest payable with respect to the Certificates, results in an amount
equal to the principal amount of such Certificates, plus the amount of premium offered,
if any, less the amount of discount offered, if any (disregarding for ~the purposes of the
calculation the accrued interest to the date of delivery of the Certificates). In the event
that two or more bidders offer bids for the Certificates at the same lowest TIC, the City
will determine which bid will be accepted by lot in such matter as the City determines.
ESTIMATE OF TRUE INTEREST COST: Each bidder is requested, but not
required, to state in its bid the total true interest cost and the percentage true interest
cost (determined as described above) represented by the bid, which shall be considered
as informative only and not binding on either the bidder or the City.
RIGHT OF REJECTION: The Director of Administrative Services of the City,
pursuant to authority delegated to her by the City Council of the City, reserves the right,
in his sole discretion, to reject any and all bids and to waive any irregularity or
informality in any bid.
PROMPT AWARD: The Director of Administrative Services of the City,
pursuant to authority delegated to her by the City Council of the City, will take action
awarding the sale of the Certificates or reject all bids not later than twenty-six (26)
hours after the expiration of time herein prescribed for the receipt of bids and until such
expiration of time all bids received shall be irrevocable. Unless such time of award is
waived by the successful bidder, the award may be made after the expiration of the
specified time if the bidder shall not have given to the City notice in writing of the
withdrawal of such proposal. Notice of the award will be given promptly to the
successful bidder.
RIGHT OF CANCELLATION: The successful bidder shall have the right, at its
option, to cancel its purchase of the Certificates if the City shall fail to cause the
execution and delivery of the Certificates and tender the same for delivery within 60
days from the date of sale thereof, and in such event the successful bidder shall be
entitled to the return of the deposit accompanying its bid.
CERTIFICATION OF REOFFERING PRICE: The successful bidder shall be
required, as a condition to the delivery of the Certificates, to certify to the City in writing
that, within one-half hour after the award, (i) the Certificates were expected to be
reoffered in a bona fide public offering, and (ii) the price at which the Certificates was
expected to be sold to the public, in form and substance satisfactory to the City and to
Special Counsel.
CALIFORNIA DEBT AND INVESTMENT ADVISORY COMMISSION: The City
has duly notified the California Debt and Investment Advisory Commission of the
proposed sale of the Certificates. Payment of all fees to the California Debt Advisory
Commission in connection with the execution, sale and delivery of the Certificates shall
be the sole responsibility of the successful bidder, and not of the City.
NO LITIGATION: There is no litigation pending concerning the validity of the
Certificates, the existence of the City or the entitlement of the officers thereof to their
respective offices, and the successful bidder will be furnished a no-litigation certificate
certifying to the foregoing as of and at the time of delivery of the Certificates.
’ CUSIP NUMBERS: It is anticipated that CUSIP numbers will be printed on the
Certificates, but neither the failure to print such numbers on any Certificates nor any
error with respect thereto shall constitute cause for a failure or refusal by the purchaser
thereof to accept delivery of and pay for the Certificates in accordance with the terms
hereof. All expenses in relation to the printing of CUSIP numbers on the Certificates
shall be paid for by the City; provided, however, that the CUSIP Service Bureau charge
for the assignment of said numbers shall be the responsibility of and shall be paid for by
the purchaser.
OFFICIAL STATEMENT: A copy of the preliminary Official Statement and any
other information concerning the proposed financing will be furnished upon request to
the financial advisor of the City, Public Financial Management, 505 California Street,
Suite 800, San Francisco, California 94111, telephone (415) 982-5544. Such preliminary
Official Statement is in a form "deemed final" by the City for purposes of SEC Rule
15c2-12 (b)(1) but is subject to revision, amendment and completion. The City will
provide the successful bidder up to 250 copies of printed copies of the final Official
Statement at no cost. if the successful bidder requires more than 250 copies of the final
Official Statement, the successful bidder will be required to pay the additional printing
costs associated with said additional copies.
CONTINUING DISCLOSURE: In order to assist bidders in complying with
S.E.C. Rule 15c2-12(b)(5), the City will undertake, pursuant to the Trust Agreement and
a Continuing Disclosure Certificate, to provide certain annual financial information and
notices of the occurrence of certain events, if material. A description of this undertaking
is set forth in the Preliminary Official Statement and will also be set forth in the Final
Official Statement.
DISCLOSURE CERTIFICATE: The City will deliver to the purchaser of the
Certificates a certificate of an official of the City, dated the date of Certificate delivery,
stating that as of the date thereof, to the best of the knowledge and belief of said
official, the Official Statement does not contain an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not misleading, and
further certifying that the signatory knows of no material adverse change in the condition
of the City which would make it unreasonable for the purchaser of the Certificates to
rely upon the Official Statement in connection with the resale of the Certificates.
Dated: July 23, 1998
By: /s/
City of Palo Alto
OFFICIAL BID FORM
PROPOSAL FOR THE PURCHASE OF
$
CITY OF PALO ALTO
Certificates of Participation
(Golf Course Improvements and Refinancing Project), Series 1998
Evidencing the Direct, Undivided Fractional Interests of the Owners
Thereof in Lease Payments to be Made by the
CITY OF PALO ALTO
(Santa Clara County, California)
As the Rental for Certain Property Pursuant to a Lease Agreement with the
Palo Alto Public Improvement Corporation
August 4, 1998
City Council
City of Palo Alto
c/o Jones Hall, A Professional Law Corporation
650 California Street, 18th Floor
San Francisco, California 94108
FAX: (415) 391-5784
(415) 391-5791
(415) 391-5772
(415) 391-5773
(415) 391-5774
NAME OF BIDDER:
(If faxed)
Ladies and Gentlemen:
We offer to purchase the $ City of Palo Alto Certificates of Participation (Golf
Course Improvements and Refinancing Project), Series 1998, evidencing the direct, undivided fractional
interests of the owners thereof in lease payments to be made by the City of Palo Alto to the Palo Alto
Public Improvement Corporation (the "Certificates"), in the principal amounts, on September 1 in the
years and payable as to interest as follows:
Year Principal Interest "
(September 1)Amount Rate
and to pay therefor the principal amount thereof, plus a premium of $.or minus adiscount on the aggregate principal amount of the Certificates. of $(making an aggregatesum of $ ), plus interest accrued from September 1, 1998, to the date of delivery thereof.
This proposal is made subject to all the terms and conditions of the Official Notice of Sale for said
Certificates dated July 23, 1998, all of which terms and conditions are made a part hereof as fully as
though set forth in full in this proposal. This proposal is subject to acceptance, in whole or in part,
within twenty-six (26) hours after the expiration of the time for the receipt of proposals, as specified in
said Official Notice of Sale. We hereby request that (not to exceed 250, unless we offer the pay
the costs of printing such additional copies of the final Official Statement) printed copies of the Official
Statement pertaining to the Certificates be furnished us in accordance with the terms of said Official
Notice of Sale.
The following is our computation made as provided in the Official Notice of Sale, but not
constituting any part of the foregoing, of the net interest cost under the foregoing proposal:
Total Interest
Less Premium
Plus Discount
True Interest Cost
True Interest Rate
Following is a list of the members of our account on whose behalf this bid is made°
Respectfully submitted,
Name of firm_
Account Manager
By
Address_
Name, address and phone number of Bidder’s representative to be contacted regarding closing
procedures:
Name
Address_
Phone
2
CONTINUING DISCLOSURE CERTIFICATE
This CONTINUING DISCLOSURE CERTIFICATE (the "Disclosure Certificate") is
executed and delivered by the CITY OF PALO ALTO (the "City") in connection with the
execution and delivery of its $ City of Palo Alto Certificates of Participation
(Golf Course Capital Improvements and Refinancing Project) Series 1998 (the "Certificates").
The Certificates are being executed and delivered pursuant to a Trust Agreement, dated as of
June 1, 1998 (the "Trust Agreement"), by and among U.S. Bank Trust National Association, as
trustee (the "Trustee"), the City and the Palo Alto Public Improvement Corporation (the
"Corporation"). The City covenants and agrees as follows:
Section 1. Purpose of the Disclosure Certificate. This Disclosure Certificate is being
executed and delivered by the City for the benefit of the holders and beneficial owners of the
Certificates and in order to assist the Participating Underwriters in complying with S.E.C. Rule
15c2-12(b)(5).
Section 2. Definitions. In addition to the definitions set forth in the Trust Agreement,
which apply to any capitalized term used in this Disclosure Certificate unless otherwise defined
in this Section 2, the following capitalized terms shall have the following meanings:
"Annual Report" shall mean any Annual Report provided by the City pursuant to, and as
described in, Sections 3 and 4 of this Disclosure Certificate.
"Dissemination Agent" shall mean the City, or any successor Dissemination Agent
designated in writing by the City and which has filed with the City and the Trustee a written
acceptance of such designation.
"Listed Events" shall mean any of the events listed in Section 5(a) of this Disclosure
Certificate.
"National Repository" shall mean any Nationally Recognized Municipal Securities
Information Repository for purposes of the Rule. Information on the National Repositories as of
a particular date is available on the Internet at www.sec.gov/consumer/nrmsir.htm.
"Participating Underwriter" shall mean any of the original underwriters of the Certificates
required to comply with the Rule in connection with offering of the Certificates.
"Repository" shall mean each National Repository and each State Repository.
"Rule" shall mean Rule 15c2-12(b)(5) adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as the same may be amended from time
to time.
"State Repository" shall mean any public or private repository or entity designated by the
State of California as a state repository for the purpose of the Rule and recognized as such by
the Securities and Exchange Commission. As of the date of this Disclosure Certificate, there is
no State Repository.
Section 3. Provision of Annuol Reports.
(a) The City shall, or shall cause the Dissemination Agent to, not later than March 1
after the end of the City’s fiscal year (which fiscal year currently ends on June 30), commencing
with the report for the 1997-98 fiscal year, provide to each Repository an Annual Report which
is consistent with the requirements of Section 4 of this Disclosure Certificate with a copy to the
Trustee. Not later than fifteen (15) Business Days prior to said date, the City shall provide the
Annual Report to the Dissemination Agent (if other than the City). The Annual Report may be
submitted as a single document or as separate documents comprising a package, and may
include by reference other information as provided in Section 4 of this Disclosure Certificate;
provided that the audited financial statements of the City may be submitted separately from
the balance of the Annual Report, and later than the date required above for the filing of the
Annual Report if not available by that date. If the City’s fiscal year changes, it shall give notice
of such change in the same manner as for a Listed Event under Section 5(c). The City shall
provide a written certification with each Annual Report furnished to the Dissemination Agent
and the Trustee to the effect that such Annual Report constitutes the Annual Report required, to
be furnished by the City hereunder.
(b) If the City is unable to provide to the Repositories an Annual Report by the date
required in subsection (a), the City shall, by written direction, cause the Dissemination Agent to
provide to each Repository and to the Municipal Securities Rulemaking Board and each State
Repository (with a copy to the Trustee) a notice, in substantially the form attached as Exhibit
A.
(c) The Dissemination Agent shall:
(i) determine each year prior to the date for providing the Annual Report the
name and address of each National Repository and each State Repository, if any; and
(ii) if the Dissemination Agent is other than the City, file a report with the City
certifying that the Annual Report has been provided pursuant to this Disclosure
Certificate, stating the date it was provided and listing all the Repositories to which it
was provided.
Section 4. Content of Annual Reports. The City’s Annual Report>shall contain or
incorporate by reference the following:
(a) Audited Financial Statements prepared in accordance with generally accepted
accounting principles as promulgated to apply to governmental entities from time to time by the
Governmental Accounting Standards Board. If the City’s audited financial statements are not
available by the time the Annual Report is required to be filed pursuant to Section 3(a), the
Annual Report shall contain unaudited financial statements in a format similar to the financial
statements contained in the final Official Statement, and the audited financial statements shall
be filed in the same manner as the Annual Report when they become available.
(b) Unless otherwise provided in the audited financial statements filed on or prior to the
annual filing deadline for Annual Reports provided for in Section 3 above, financial information
and operating data with respect to the City for the preceding fiscal year, substantially similar to
that provided in the corresponding tables and charts in the official statement for the
Certificates:
(i)general fund summary of revenues and expenditures in substantially the form of
Table No. 1;
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
general fund balance sheet in substantially the form of Table No. 2;
general fund budget in substantially the form of Table No. 3;
tax revenues by source in substantially the form of Table No. 4;
sales tax information, including the level of taxable transactions in the City, in
substantially the form of Tables No. 5 and 6; ~
assessed valuation of property in the City and the current property tax levy in
substantially the form of Table No. 7;
a list of top ten property owners in the City in substantially the form of Table
No. 8;
(viii) description of outstanding general fund debt and lease obligations;
(ix)table of direct and overlapping debt in substantially the form of Table 9; and
(x)summary of the City’s investment portfolio for the preceding fiscal year in
substantially the form of Table No. 10.; and
Any or all of the items listed above may be included by specific reference to other
documents, including official statements of debt issues of the City or related public
entities, which have been submitted to each of the Repositories or the Securities and
Exchange Commission. If the document included by reference is a final official
statement, it must be available from the Municipal Securities Rulemaking Board. The
Cityshall cl~early identify each such other document so included by reference.
(c) In addition to any of the information expressly required to be provided under this
Disclosure Certificate, the City shall provide such further material information, if any, as may
be necessary to make the specifically required statements, in the light of the circumstances under
which they are made, not misleading.
Section 5. Reporting of Si~tificant Events.
(a) Pursuant to the provisions of this Section 5, the City shall give, or cause to be given,
notice of the occurrence of any of the following events with respect to the Certificates, if
material:
(i)Principal and interest payment delinquencies.
(ii)Non-payment related defaults.
(iii)Unscheduled draws on debt service reserves reflecting financial
difficulties.
(iv)Unscheduled draws on credit enhancements reflecting financial
difficulties.
(v) Substitution of credit or liquidity providers, or their failure to perform.
3
(vi)
(vii)
(v i)
(ix)
(x)
(xi)
Adverse tax opinions or events affecting the tax-exempt status of the
security.
Modifications to rights of Certificate holders.
Contingent or unscheduled redemption of Certificates.
Defeasances.
Release, substitution, or sale of property securing repayment of the
securities.
Rating changes~
(b) Whenever the City obtains knowledge of the occurrence of a Listed Event, the City
shall as soon as possible determine if such event would be material under applicable Federal
securities law.
(c) If the City determines that knowledge of the occurrence of a Listed Event would be
material under applicable Federal securities law, the City shall, by written direction, cause the
Dissemination Agent to promptly file a notice of such occurrence with the Municipal Securities
Rulemaking Board and each State Repository with a copy to the Trustee, together with written
direction to the Trustee whether or not to notify the Certificate holders of the filing of such
notice. In the absence of any such direction, the Trustee shall not send such notice to the
Certificate holders. Notwithstanding the foregoing, notice of Listed Events described in
subsections (a)(viii) and (ix) need not be given under this subsection any earlier than the notice
(if any) of the underlying event is given to holders of affected Certificates pursuant to .the Trust
Agreement.
Section 6. Termination of Reporting Obligation. The City’s obligations under this
Disclosure" Certificate shall terminate upon the legal defeasance, prior redemption or payment in
full of all of the Certificates. If such termination occurs prior to the final maturity of the
Certificates, the City shall give notice of such termination in the same manner as for a Listed
Event under Section 5(c).
Section 7. Dissemination Agent. The City may, from time to time, appoint or engage a
Dissemination Agent to assist it in carrying out its obligations under this Disclosure Certificate,
and may discharge any such Dissemination Agent, with or without ~ppointing a successor
Dissemination Agent. The initial Dissem’,m_ation Agent shall be the Cit’~. Any DisseminationAgent may resign by providing thirty days written notice to the City and the Trustee.
Section 8. Amendment; .Waiver. Notwithstanding any other provision of this Disclosure
Certificate, the City may amend this Disclosure Certificate, and any provision of this Disclosure
Certificate may be waived, provided that the following conditions are satisfied:
(a) if the amendment or waiver relates to the provisions of Sections 3(a), 4 or 5(a), it
may only be made in connection with a change in circumstances that arises from a change in
legal requirements, change in law, or change in the identity, nature, or status of an obligated
person with respect to the Certificates, or type of business conducted;
(b) the undertakings herein, as proposed to be amended or waived, would, in the
opinion of nationally recognized bond counsel, have complied with the requirements of the Rule
at the time of the primary offering of the Certificates, after taking into account any amendments
or interpretations of the Rule, as well as any change in circumstances; and
(c) the proposed amendment or waiver either (i) is approved by holders of the
Certificates in the manner provided in the Indenture for amendments to the Indenture with the
consent of holders, or (ii) does not, in the opinion of nationally recognized bond counsel,
materially impair the interests of the holders or beneficial owners of the Certificates.
If the annual financial information or operating data to be provided in the Annual
Report is amended pursuant to the provisions hereof, the first annual financial information filed
pursuant hereto containing the amended operating data or financial information, shall explain,in narrative form, the reasons for the amendment and the impact of the change in the type of
operating data or financial information being provided.
If an amendment is made to the undertaking specifying the accounting principles to be
followed in preparing financial statements, the annual financial information for the year in
which the change is made shall present a comparison between the financial statements or
information prepared on the basis of the new accounting principles and those prepared on the
basis of the former accounting principles. The comparison shall include a qualitative discussion
of the differences in the accounting principles and the impact of the change in the accounting
principles on the presentation of the financial information, in order to provide information to
investors to enable them to evaluate the ability of the City to meet its obligations. To the extent
reasonably feasible, the comparison shall be quantitative. A notice of the change in the
accounting principles shall be sent to the Repositories in the same manner as for a Listed Event
under Section 5(c).
Section 9. Additional InfQrm~tiQn. Nothing in this Disclosure Certificate shall be deemed
to prevent the City from disseminating any other information, using the means of dissemination
set forth in this Disclosure Certificate or any other means of communication, or including any
other information in any Annual Report or notice of occurrence of a Listed Event, in addition to
that which is required by this Disclosure Certificate. If the City chooses to include any
information in any Annual Report or notice of occurrence of a Listed Event in addition to that
which is specifically required by this Disclosure Certificate, the City shall have no obligation
under this Disclosure Certificate to update such information or include it in any future Annual
Report or notice of occurrence of a Listed Event.
Section 10. Default. In the event of a failure of the City to comply with any provision of
this Disclosure Certificate the Trustee, at the written direction of any Participating Underwriter
or the holders of at least 25% aggregate principal amount of Outstanding Certificates, shall, but
only to the extent moneys or other indemnity, satisfactory to the Trustee~s been furnished to
the Trustee to hold it harmless from any loss, costs, liability or expense, inciuding fees and
expenses of its attorneys, and any additional fees of the Trustee or any holder or beneficial
owner of the Certificates may take such actions as may be necessary and appropriate, including
seeking mandate or specific performance by court order, to cause the City to comply with its
obligations under this Disclosure Certificate. A default under this Disclosure Certificate shall
not be deemed an Event of Default under the Trust Agreement, and the sole remedy under this
Disclosure Certificate in the event of any failure of the City to comply with this Disclosure
Certificate shall be an action to compel performance.
Section 11. Duties, Immunities i~nd Lii~bilities Qf Dis~.emination Agent. The
Dissemination Agent and the Trustee shall have only such duties as are specifically set forth in
this Disclosure Certificate, and the City agrees to indemnify and save the Dissemination Agent
and the Trustee, their officers, directors, employees and agents, harmless against any loss,
expense and liabilities which they may incur arising out of or in the exercise or performance of
its powers and duties hereunder, including the costs and expenses (including attorneys fees) of
defending against any claim of liability, but excluding liabilities due to the Dissemination
Agent’s or the Trustee’s respective negligence or willful misconduct. The Dissemination Agent
shall be paid compensation by the City for its services provided hereunder in accordance with
its schedule of fees as amended from time to time and all expenses, legal fees and advances
made or incurred by the Dissemination Agent in the performance of its duties hereunder. The
Dissemination Agent and the Trustee shall have no duty or obligation to review any information
provided to it by the City and shall not be deemed to be acting in any fiduciary capacity for the
City, the Certificate holders or any other party. The obligations of the City under this Section
shall survive resignation or removal of the Dissemination Agent and payment of the
Certificates.
Section 12. Beneficiaries. Yl"his Disclosure Certificate shall inure solely to the benefit of
the City, the Trustee, the Dissemination Agent, the Participating Underwriters and holders and
beneficial owners from time to time of the Certificates, and shall create no rights in any other
person or entity.
Date: August ~ 1998
CITY OF PALO ALTO
By
EXHIBIT A
NOTICE TO MUNICIPAL SECURITIES RULEMAKING BOARD AND EACH STATE
REPOSITORY OF FAILURE TO FILE ANNUAL REPORT
Name of Issuer:
Name of Issue:
Date of Issuance:
CITY OF PALO ALTO
$. City of Palo Alto Certificates of Participation (Golf Course
Capital Improvements and Refinancing Project), Series 1998
August .__, 1998
NOTICE IS HEREBY GIVEN that the City has not provided an Annual Report with
respect to the above-named Certificates as required by Section 10.06 of the Trust Agreement,
dated as of June 1, 1998, by and among U.S. Bank Trust National Association, as trustee, the
City and the Palo Alto Public Improvement Corporation. The City anticipates that the Annual
Report will be filed by
Dated:
CITY OF PALO ALTO
cc: Trustee
By
Aol
PRELIMINARY OFFICIAL STATEMENT DATED
NEW ISSUE - BOOK-EN~TR~
,1998
Ratings:
Moody’s: _Standard & Poor’s:
See "RATINGS" herein.
In the opinion of]ones Hail, A Professiona! Law Corporation, San Francisco, California, Special Counsel, subject, however, to certainqualifications described herein, under existing law, the interest repre~sented by the Certificates is excluded from gross income for federal
~’nco~ne tax purposes and such interest is not an item of tax preference for purpos-es of federa l alternative minimu m ta~ imposed on l~ndibiduals
and corporations although for the purpose of computing the alternative minimum tax imposed on certain corporations, such interest is taken
into account in determin- ing,,cerlain income and earnings. In the further opinion of Special Counsel, such int erest is exempt from Californiapersonal income taxes. See TAX MATTERS" herein. ¯
$
City of Palo Alto
Certificates of Participation
(Golf Course Capital Improvements and Refinancing Project)’Series 1998
Evidencing Proportionate Undivided Interests in
Lease Payments to be’Made by the
CITY OF PALO ALTO
As the Rental for Certain Leased Property Pursuant to a
Lease Agreement with the
PALO ALTO PUBLIC IMPROVEMENT CORPORATION
Dated: August 1, 1998 Due: September 1, as shown below
The Certificates evidence and represent proportionate undivided interests of the Owners thereof in the Lease Payments
(which include principal and interest components) to be made by the City of Palo Alto, a chartered municipal corvoration (the
"City") for the right to the use of certain real property and improvements constituting the City’s municipal golf course (the
’,’Leased P.rop~e.rty") ~ursuant t.o.tha~t .cer~in Lease Agreement, dated as of Augu,s,t 1, 1998 (the "Lease Agreement"), by andoetween tl~e t_ity, as lessee, ann ~e l’alo Alto Public Improvement Corporation (the Corporation"), as lessor The Certificates are
b__e.ing executed and de!ivered to provide funds to (i) £mance the acqu-isition and construction of"certain in~provements for the
t~ityrs golf course (the ’Project"), (ii) provide funds to. refund on a current basis the outstanding City of Pal-o Alto Golf CourseCorporation Lease Revenue Bonds, Series 1978 (the ’1978 Bonds"), (iii) fund a reserve fund for the Certificates, and (iv) paycertain costs incurred in connection with the execution and delivery of the Certificates. Interest represented by the Certificates ~s
payable on March 1, 1999 and each September 1 and March 1 thereafter.
The City has covenanted in the Lease Agreement to make the Lease Payments for the Leased Property as provided for
therein, to include all such Lease Payments in each of its budgets and to make the necessary annual appropriations for all such
Lease Payments.
T The Certifica~t.es w~fl,1 b~e ~i,’tially de~,,v, ered only in book-entry form, registered to Cede & Co. as nominee of The Depositoryrust l:ompany, l"~ew ~orK, l"~ew York (DTC"), which will act as securities depository of the Certificates. Interest and principal
represented by the Certificates are payable by U.S. Bank Trust National Association, San Francisco, California, as Trustee, to
,,D, TC, which remits such payments to its Participants for subsequ,e, nt distribution to the beneficial owners of the Certificates. See’THE CERTIFICATES - Book-Entry Only System" and "- General.
The Certificates are subject to prepayment prior to maturity as described herein. See "THE CERTIFICATES -
Prepayment."
The obligation of the City to make the Lease Payments does not constitute a debt of the City or the State of California
o.r of any polit!cal subdiv_isio.n, thereof within the meaning of any constitutional or statutory d~bt limit or restriction, and
noes not co, nst~te, a.n. ob~ligat~on_ for which the Citer or the State of California is obligated to levy or pledge any form oftaxation or ~or which me ~ity or the State of Caligom~a levied or pledged any form of taxation.
This cover page contains information for reference only. Investors must read the entire Official Statement to obtaininformation essential in making an informed investment decision.See "RISK FACTORS" for a discussion of factors that should be
considered, in addition to the other matters set forth herein, in evaluating the investment quality of the Certificates.
Maturity Principal Interest Price or Maturity Principal Interest Price or(.September I)~~Xi.e~(~~]~~[to come]
The Certificates will be sold and awarded by competitive bid held on Tuesday, August 4, 1998 as set forth in the Official Notice of Sale dated July 23,
1998. The Certificates will be offered when, as and if executed and delivered and received by the Underwriter, subject to the approval as to their legality by
Jones Hall, A Pro~essional Law Corporation, San Francisco, California, Special Counsel. Jones Hall, A Professional Law Corporation, is also acting as
Disclosure Counsel to the City. In addition, certain legal matters will be passed upon for the City and the Corporation by the City Attorney. It is anticipated
that the Certificates in definitive form will be available for delivery to DTC in New York, New York on or about August 18,1998.
Dated: August __, 1998
Preliminary; subject to change.
No dealer, broker, salesperson or other person has been authorized by the City or the
Corporation to give any information or to make any representations with respect to the
Certificates other than those contained in this Official Statement 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
any 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 an offer, solicitation or sale.
This Official Statement shall not 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 representations of facts.
The information contained in this Official Statement has been furnished by the City, the
Corporation and other sources which are believed to be reliable. Summaries and references to
statutes and documents in this Official Statement do not purport to be comprehensive or
definitive and are qualified in their entireties by reference to each such statute or document. 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 City, the Corporation
or any other parties described herein since the date hereof.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVERALLOT
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. THE UNDERWRITER MAY OFFER AND SELL THE
CERTIFICATES TO CERTAIN DEALERS AND DEALER BANKS AND BANKS ACTING AS
AGENT AND OTHERS AT PRICES LOWER THAN THE PUBLIC OFFERING PRICES
STATED ON THE COVER PAGE HEREOF AND SAID PUBLIC OFFERING PRICES MAY BE
CHANGED FROM TIME TO TIME BY THE UNDERWRITER.
THE CERTIFICATES HAvE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, IN RELIANCE UPON AN EXEMPTION CONTAINED IN
SUCH ACT. THE CERTIFICATES HAVE NOT BEEN REGISTERED OR~Q~ALIFIED UNDER
THE SECURITIES LAWS OF ANY STATE.
CITY OF PALO ALTO
CITY COUNCIL MEMBERS
Dick Rosenbaum, Mayor
Micki Schneider, Vice Mayor
Sandy Eakins, Council Member
Dena Mossar, Council Member
Victor Ojakian, Council Member
Gary Fazzino, Council Member
Joseph Huber, Council Member
Liz Kniss, Council Member
Lanie Wheeler, Council Member
CITY STAFF
June Fleming, City Manager
Emily Harrison, Assistant City Manager
Carl L. Yeats, Director of Administrative Services
Ariel Pierre Calonne, City Attorney
William Vinson, City Auditor
Gloria L. Young, City Clerk
FINANCIAL ADVISOR
Public’Financial Management, Inc.
¯ San Francisco, California
SPECIAL COUNSEL and DISCLOSURE COUNSEL
Jones Hall, A Professional Law Corporation
San Francisco, California
TRUSTEE and ESCROW AGENT
U.S. Bank Trust National Association
San Francisco, California
TABLE OF CONTENTS
INTRODUCTION ............................................................................................................................1
CONTINUING DISCLOSURE ........................................................................................................2
THE FINANCING PLAN ................................................................................................................3
Estimated Sources and Uses of Funds ............... ......, ..........................., ....................................3
Refunding of the 1978 Bonds .....................................................................................................4
The Project .................... .............................................................................................................4
THE CERTIFICATES ..........................................................................................................~ ............4
General .......................................................................................................................................4
Registration, Transfers and Exchanges ........................................................................................5
Prepayment ................................................................................................................................5
Book-Entry Only System ....................................................~ ......................................................7
LEASE PAYMENT SCHEDULE ....................................................................................................9
THE PROJECT .................................................................................................................................9
SECURITY AND SOURCES OF PAYMENT FOR THE CERTIFICATES ....................................10
Nature of the Certificates ................................................... ......................................................10
Covenant to Appropriate Funds for Rental Payments ...........................................................10
Abatement ................................................................................................................................10
Action on Default .............................~ ......................................................................................11
Reserve Fund ............................................................................................................................11
Lease Payments .......................................................................................................................12
Additional Payments ..... ..........................................................................................................12
Insurance ..................................................................................................................................12
Substitution or Release of Leased Property ............................................................................13
RISK FACTORS .............................................................................................................................14General Considerations - Security for the Certificates ...........................................................14Eminent Domain ......................................................................................................................15Abatement ................................................................................................................................15Limited Recourse on Default ...................................................................................................16
Limitation on Remedies ..............................................................................~..-.: .....................16Substitution or Release of Leased Property ............................................................................16
Loss of Tax Exemption ....................................~ .......................................................................17
Seismic Considerations .............................................................................................................17
No Liability of Corporation to the Owners ..................................: ..........................................17
Relevant Pending Litigation .....................................................................................................17
CONSTITUTIONAL AND STATUTORY LIMITATIONS ON TAXES AND
APPROPRIATIONS .......................................................................................................................19
Article XIIIA of the California Constitution ............................................................................19
Legislation Implemen~ng Article XIIIA ....................................................................................19
Article XIIIB of the California Constitution .............................................................................19
Proposition 62 .................................................................................................. ........................20Proposition 218 ..................................................................................................... ...................20
Unitary Property ......................................................................................................................21
Future Initiatives .................................................................. .....................................................22
THE CORPORATION ........................................................i ......................................i ...................22
THE CITY .......................................................................................................................................22
CITY FINANCES ...........................................................................................................................22
Accounting Policies and Financial Reporting ..........................................................................22
General Fund Financial Summary ............................................................................................23
Budgetary Process ....................................................................................................................25
Comparison of Budget to AcVaal Performance .......................................................................25
Tax Receipts .............................................................................................................................27
Sales Taxes ...............................................................................................................................27
Property Taxes .........................................................................................................................28
Rental Income ...........................................................................................................................31
Outstanding General Fund Debt and Lease Obligations ........................................................31
Direct and Overlapping Debt ..................................................................................................31
Investment of City Funds .........................................................................................................32
TAX MATTERS ............................................................................................................................34
CERTAIN LEGAL MATTERS .......................................................................................................35
LITIGATION ..................................................................................................................................35
FINANCIAL ADVISOR .................................................................................................................35
UNDERWRITING ..........................................................................................................................36
RATINGS .......................................................................................................................................36
MISCELLANEOUS ........................................................................................................................36
APPENDIX A -
APPENDIX B -
APPENDIX C -
APPENDIX D -
APPENDIX E o
Summary of Principal Legal Documents ........................................................A-1
General Information About the City of Palo Alto ...........................................B-1
Audited Financial Statements of the City for the Year Ended
~une 30, 1997 ....................................................................................................C-1
Proposed Form of Special Counsel Opinion ..................................................D-1
Form of Continuing Disclosure Certificate ......................................................E-1
ii
OFFICIAL STATEMENT
CITY OF PALO ALTO
Certificates of Participation
(Golf Course Capital Improvements and Refinancing Project)
Series 1998
IN’I~ODUCTION
This Official Statement (which includes the cover page and Appendices hereto) (the
"Official Statement") provides certain information concerning the execution, sale and delivery of
the City of Palo Alto, a chartered municipal corporation (the "City") Certificates of
Participation (Golf Course Capital Improvements and Refinancing Project) Series 1998 (the
"Certificates").
The Certificates are being executed and delivered in denominations of $5,000 or any
integral multiple thereof. Interest will accrue on the principal components of each Certificate at
the applicable interest rate (as set forth on the cover hereof) from August 1, 1998 until its date
of maturity or prior prepayment, with interest becoming payable on each March 1 and
September 1, commencing March 1, 1999. The Certificates are subject to prepayment as
described herein. See "THE CERTIFICATES - Prepayment."
The net proceeds of the sale of the Certificates will be used to (i) finance the acquisition
and construction of certain improvements to the City’s golf course, (ii) provide funds to refund
on a current basis the outstanding City of Palo Alto Golf Course Corporation (the "Prior
Corporation") Lease Revenue Bonds, Series 1978 (the "1978 Bonds"), (iii) fund a reserve fund
for the Certificates, and (iv) pay certain costs incurred in connection with the execution and
delivery of the Certificates.
The Certificates evidence and represent undivided fractional interests of the registered
owners (the "Owners") thereof in Lease Payments (as defined herein) to be made by the City to
the Palo Alto Public Improvement Corporation (the "Corporation") for the right to the use and
occupancy of certain real property and improvements constituting the City’s existing municipal
golf course (the "Site") and the improvements to be constructed with the proceeds of the
Certificates (the "Project," and together with the Site, the "Leased Property"). The Leased
Property will be leased by. the City from the Corporation pursuant to a Lease Agreement, dated
as of August 1, 1998 (the "Lease Agreement"), between the City, as lessee, and the Corporation,
as lessor. In order to facilitate the conveyance accomplished by the Lease Agreement, the City
will lease the Site to the Corporation pursuant to a Property Lease, dated as of August 1, 1998
(the "Property Lease").
The Certificates wfl!. be executed and d.e.livered pursuant to a Trust Agreement, dated asof August 1, 1998 (the Trust Agreement’), by and among U.S. Bank Trust National
Association, San Francisco, California, as trustee (the "Trustee"), the City and the Corporation.
The Trustee and the Corporation will enter into an Assignment Agreement, dated as of
August 1, 1998 (the "Assignment Agreement"), pursuant to which the Corporation will assign to
the Trustee for the benefit of the Owners of the Certificates substantially all of the
* Preliminary, subject to change.
Corporation’s right, title and interest in and to the Lease Agreement, including its right to
receive the Lease Payments scheduled to be paidby the City due under the Lease Agreement.
The City covenants under the Lease Agreement to take such action as may be necessary
to include all Lease Payments due under the Lease Agreement in the operating budget for each
Fiscal Year and to make the necessary annual appropriations therefor, subject to abatement as
described herein.
Lease Payments are subject to complete or partial abatement in the event and to the
extent that there is substantial interference with the City’s right to use and occupancy of the
Project or any portion thereof. Abatement of Lease Payments under the Lease Agreement, to the
extent payment is not made from alternative sources as set forth below, would result in all
Certificate Owners receiving less than the full amount of principal and interest represented by
the Certificates. However, the City has declared in the Lease Agreement that the Leased
Property has intrinsic value to the residents of the City as open space, whether or not the
Leased Property is actually operational as a golf course, and that the Lease Payments represent
fair consideration for use and possession of the Leased Property as open space,
notwithstanding any damage to or destruction of the Leased Property which interferes with its
use as a golf course. Thus, the City does not anticipate that any foreseeable damage to or
destruction of the Leased Property (as opposed to loss from condemnation or title defect) will
interfere with its use and occupancy of the Leased Property. For this reason, the City is not
securing rental interruption insurance with respect to the Leased Property. See "THE PROJECT"
and RISK FACTORS - Abatement" herein. To the extent proceeds of aneminent domain or
insurance award, including self-insurance, are available to pay Lease Payments, or to the extent
that moneys are available in the Lease Payment Fund or the Reserve Fund, Lease Payments (or
a portion thereof) may be made during periods of abatement.
THE OBLIGATION OF THE CITY TO MAKE THE LEASE PAYMENTS DOES NOT
CONSTITUTE A DEBT OF THE CITY OR THE STATE OF CALIFORNIA (THE "STATE") OR
OF ANY POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY DEBT LIMIT OR RESTRICTION, AND DOES NOT
CONSTITUTE AN OBLIGATION FOR WHICH THE CITY OR THE STATE IS OBLIGATED
TO LEVY OR PLEDGE ANY FORM OF TAXATION OR FOR WHICH THE CITY OR THE
STATE HAS LEVIED OR PLEDGED ANY FORM OF TAXATION.
The summaries or references to the Trust Agreement, the Lease Agreement, the
Assignment Agreement, the Escrow Agreement and other documents, agreements and statutes
referred to herein, and the description of the Certificates included in this Official Statement, do
not purport to be comprehensive Or definitive, and such summaries, references and descriptions
are qualified in their entireties by reference to. each such document or statute. All capitalized
terms used. in this Official Statement (unless otherwise defined herein) which are defined in the
Trust Agreement or the Lease Agreement shall have the meanings set forth therein, some of
which are summarized in "APPENDIX A - Summary of Principal Legal Documents."
CONTINUING DISCLOSURE
The City has covenanted for the benefit of the holders and beneficial owners of the
Certificates to provide certain financial information and operating data relating to the City by
no later than March 1 following the end of the City’s fiscal year (which fiscal year currently
ends on June 30), commencing with the report for the 1997-98 Fiscal Year (the "Annual Report"),
and to provide notices of the occurrence of certain enumerated events, if material. The City will
file, or cause to be filed, the Annual Report with each Nationally Recognized Municipal
Securities Information Repository, and with the appropriate State information depository, if
any. The City will file, or cause to be filed, the notices of material events with the Municipal
Securities Rulemaking Board (and with the appropriate State information depository, if any).
The specific nature of the information to be contained in the Annual Report or the notices of
material events is set forth below in "APPENDIX E - Form of Continuing Disclosure Certificate."
These covenants have been made in order to assist the Underwriter in complying with S.E.C.
Rule 15c2-12(b)(5). The City has never failed to comply, in all material respects, with an
undertaking pursuant to said Rule.
THE FINANCING PLAN
Estimated Sources and Uses of Funds
The Trustee will receive the proceeds from the sale of the Certificates, upon delivery of
the Certificates to the purchasers thereof, and will use such proceeds, exclusive of accrued
interest, as set forth in the following table.
Estimated Sources and Uses of Funds
Sources of Funds
Par Amount of Certificates
Less: Original Issue Discount
Less: Underwriter’s Discount
Funds Relating to the 1978 Bonds
Total Sources
Deposit to Construction Fund
Deposit to Escrow Fund
Deposit to Reserve Fund (1)
Deposit to Cost of Issuance Fund (2)
Total Uses
(1)Equal to the Reserve Requirement with respect to the Certificates.
(2)Includes legal, financial advisory, rating agency and printing costs, and other miscellaneous costs of
issuance.
Refunding of the 1978 Bonds
A certain portion of the proceeds of the Certificates will be used to refund on a current
basis the remaining outstanding portion of the Prior Corporation’s Lease Revenue Bonds, Series
1978 (the "1978 Bonds"). The 1978 Bonds were issued pursuant to Resolution 78-2 of the City,
adopted February 14, 1978, entitled "A Resolution Authorizing the Issuance of Golf Course
Lease Revenue Bonds of the City of Palo Alto Golf Course Corporation and Providing for the
Issuance of Series 1978 Thereof" (the "1978 Bond Resolution"). As of the date hereof, the 1978
Bonds are outstanding in the principal amount of $625,000. The Prior Corporation issued the
1978 Bonds for the purpose of financing the acquisition of certain improvements to the existing
Palo Alto Municipal Golf Course, including a new clubhouse and pro shop and certain related
appurtenances and equipment.
Proceeds of the Certificates used for refunding, together with certain funds held in the
funds and accounts related to the 1978 Bonds and made available through the defeasance of
the 1978 Bonds, will be deposited in an Escrow Fund to be established pursuant to an Escrow
Agreement, dated as of August 1, 1998, by and between the City and U.S. Bank Trust National
Association, as escrow agent ("Escrow Agent"). Certain of those moneys will be used to
purchase Escrowed Federal Securities (as defined in the Escrow Agreement). The Escrowed
Federal Securities, including interest thereon, together with other moneys held uninvested in
trust by the Escrow Agent, will be applied to redeem all remaining 1978 .Bonds on the first
possible optional redemption date (September 1, 1998) at a redemption price equal to the
principal amount to be redeemed, plus a redemption premium. Such redemption premium
equals one-quarter of one percent for each year or fraction of a year between the redemption
date and the date of maturity of the 1978 Bonds, but may not exceed three percent. The deposit
with the Escrow Agent will result in the defeasance of the 1978 Bonds pursuant to the
provisions of the 1978 Bond Resolution as of the Closing Date.
The Escrowed Federal Securities and other moneys held by the Escrow Agent are pledged to the
payment of the 1978 Bonds. Neither the principal of the Escrowed Federal Securities deposited with the
Escrow Agent nor the interest thereon shall be available for the payment of principal of and interest with
respect to the Certificates.
The Project
A certain portion of the proceeds of the Certificates will be used to fund the acquisition
and construction of improvements to the City’s municipal golf course, including upgrading five
fairways and various traps, tees and greens; constructing new storm drain facilities; replacing
the existing irrigation system; repositioning and refencing the driving range; and installing new
cart paths. See ’THE PROJECT" herein.
General
THE CERTIFICATES
The Certificates evidence and represent proportionate undivided interests of the Owners
thereof in the principal and interest components of Lease Payments to be made by the City
pursuant to the Lease Agreement.
The Certificates will be executed and delivered in principal amounts of $5,000 or
integral multiples thereof. Interest represented by each Certificate will accrue on the principal
components represented by such Certificate at the applicable interest rate from August 1, 1998
until its date of maturity or prior prepayment, with interest becoming payable on each March 1
and September 1 (each, an !’Interest Payment Date"), commencing March 1, 1999.
Interest evidenced by each Certificate will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
Registration, Transfers and Exchanges
The Certificates will be executed and delivered as fully registered Certificates, registered
in the name of Cede & Co., as nominee of The Depository Trust Company, New York, New
York ("DTC"), and will be available to actual purchasers of the Certificates (the "Beneficial
Owners") in the denominations set forth above, under the book-entry system maintained by
DTC, only through brokers and dealers who are or act through DTC Participants (as defined
herein) as described herein. Beneficial Owners will not be entitled to receive physical delivery of
the Certificates. See "THE CERTIFICATES - Book-Entry Only System." In the event that the
book-entry-only system is no longer used with respect to the Certificates, the Certificates will be
registered and transferred in accordance with the Trust Agreement. See "THE CERTIFICATES -
Book-Entry Only System."
Prepayment
Optional Prepayment. The Certificates maturing on or before September 1, 2008 are not
subject to optional prepayment prior to their respective stated maturities. The Certificates
maturing on or after September 1, 2009 are subject to prepayment on any date on or after
September 1, 2008, in whole or in part, from prepayments of the Lease Payments made at the
option of the City pursuant to the Lease Agreement, at a prepayment price equal to the
principal amount thereof to be prepaid together with accrued, interest to the prepayment date at
the prepayment price (expressed as percentages of the principal amount of Certificates or
portions thereof to be prepaid) set forth in the following table, together with accrued interest to
the date fixed for prepayment.
September 1, 2008 and prior to August 31, 2009
September 1, 2009 and prior to August 31, 2010
September 1, 2010 and thereafter
101.0%
100.5
100.0
Prepayment from Net Proceeds of Insurance and Condemnation. The Certificates are also
subject to prepayment on any Payment Date, in whole or in part, from the Net Proceeds of
insurance or condemnation with respect to the L~ased Property, which Net Proceeds are
deposited in the Lease Payment Fund and credited towards the prepayment of the Lease
Payments made by the City pursuant to the Lease Agreement, at a prepayment price equal to
the principal amount of the Certificates to be prepaid, together with accrued interest to the date
fixed for prepayment, without premium.
Mandatory Sinking Account Payments. The Certificates maturing on September 1, 20__ are
subject to prepayment prior to their stated maturity, in part, by lot, from Mandatory Sinking
Account Payments, on any September 1 on or after September 1, 20_ at the principal amount
thereof and accrued interest represented thereby on the date fixed for prepayment, without
premium, according to the following schedule:
Mandatory Sinking Payment Date Principal Amount
Selection of Certificates for Prepayment. Whenever less than all of the outstanding
Certificates are to be prepaid on any one date, other than for any Mandatory Sinking Account
Payments, the Trustee shall select Certificates for prepayment from the Outstanding
Certificates not previously called for prepayment, among maturities on a pro rata basis in
integral multiples of $5,000 and by lot within a maturity in any manner deemed fair by the
Trustee. For the purposes of such selection, Certificates shall 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 so selected for prepayment.
Notice of Prepayment. The Trustee will give notice of the prepayment of the Certificates.
Such notice shall specify: (a) that the Certificates or a designated portion thereof are to be
prepaid, (b) the date of prepayment, and (c) the place or places where the prepayment will be
made. Such notice shall further state that on the specified date there shall become due and
payable upon each Certificate, the principal and premium, if any, together with interest accrued
to said date, and that from and after such date interest represented thereby shall cease to
accrue and be payable. -~--
Notice of such prepayment shall be mailed by first class mail to the respective Owners
of Certificates designated for prepayment at their addresses appearing on the Registration
Books, at least fifteen (15) days but not more than forty-five (45) 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 thereof 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 sufficiency of the proceedings for the prepayment of such
Certificates.
If a Certificate is 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 same interest rate and the same maturity.
Effect of Prepayment. If notice of prepayment has been duly given and moneys for the
payment of the prepayment price of the Certificates to be prepaid are held by the Trustee, then
the Certificates shall become due and payable on said date of prepayment, and, upon
presentation and surrender thereof at the Corporate Trust Office of the Trustee, said
Certificates shall be paid at the unpaid principal amount (or applicable portion thereof) with
respect thereto, plus interest accrued and unpaid to said date of prepayment. From and after
said date of prepayment, interest represented by said Certificates shall cease to accrue and
become payable. All moneys held by or on behalf of the Trustee for the prepayment of
Certificates shall be held in trust for the account of the owners of the Certificates so to be
prepaid. All Certificates paid at maturity or prepaid prior to maturity pursuant to the
¯provisions of the Trust Agreement will be canceled upon surrender thereof and delivered to the
City.
Book-Entry Only System
DTC will act as securities depository for the Certificates. The Certificates will be
executed and delivered as fully-registered securities registered in the name of Cede & Co.
(DTC’s partnership nominee). One fully-registered Certificate will be issued for each maturity of
the Certificates, each in the initial aggregate principal amount of such maturity, and will be
deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking Law, a
’banking organization" within the meaning of the New York Banking Law, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants" accounts, thereby eliminating the need for
physical movement of securities certificates. "Direct Participants" include securities brokers and
dealers, banks, trust companies, clearing companies, and certain other organizations. DTC is
owned by a number of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others such as securities brokers and dealers, banks and
trust companies that clear through or maintain a custodial relationship with a Direct
Participagt, either directly or indirectly ("Indirect Participants"). The Rules applicable to DTC
and its Participants are on file with the Securities and Exchange Commission.
Purchases of Certificates under the DTC system must be made by~ or through Direct
Participants, which will receive credit for the Certificates on DTC’s reco~ss~-:The ownership
interest of each Beneficial Owner is in turn to be recorded on the Direct and Indirect
Participants’ records. Beneficial Owners will not receive written confirmation from DTC of their
purchase, but Beneficial Owners are expected to receive written confirmations providing details
of the transaction, as well as periodic statements of .their holdings, from the Direct or Indirect
Participant through which the Beneficial Owner entered into the transaction. Transfers of
ownership interest in the Certificates are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive
Certificates representing their ownership interests in Certificates, except in the event that use of
the book-entry system for the Certificates is discontinued.
To facilitate subsequent transfers, all Certificates deposited by Participants with DTC
are registered in the name of DTC’s partnership nominee, Cede & Co. The deposit of
Certificates with DTC and their registration in the name of Cede & Co. effect no change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Certificates;
DTC’s records reflect only the identity of the Direct Participants to whose accounts such
Certificates are credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their customers.
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Conveyance of notices and other communications by DTC to Direct Participants, by
Direct Participants to Indirect Participants, and by Direct Participants and Indirect
Participants to Beneficial Owners will be governed by arrangements among them, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Prepayment notices will be sent to Cede & Co. If less than all of the Certificates within a
maturity are being prepaid, DTC’s practice is to determine by lot the amount of the interest of
each Direct Participant in such maturity tO be prepaid.
Neither DTC nor Cede & Co. will consent or vote with respect to Certificates. Under its
usual procedures, DTC mails an Omnibus Proxy to the City as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co.’s consenting or voting rights to those Direct
Participants to whose accounts the Certificates are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
Principal and interest payments with respect to the Certificates will be made to DTC.
DTC’s practice is to credit Direct Participants’ accounts on the payment date in accordance
with their respective holdings shown on DTC’s records unless DTC has reason to believe that it
will not receive payment on a payment date. Payments by Participants to Beneficial Owners
will be governed by standing instructions and customary practices, as is the case with securities
held for the accounts of customers in bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC, the Trustee or the City, subject to any
statutory or regulatory requirements as may be in effect from time to time. Payment of principal
and interest to DTC is the responsibility of the City or the Trustee, disbursement of such
payments to Direct Participants will be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners will be the responsibility of Direct and Indirect Participants.
The City and the Trustee cannot and do not give any assurances that DTC will
distribute to Participants, or that Participants or others will distribute payments of principal or
interest with respect to the Certificates paid to DTC or its nominee as the registered Owner, or
any prepayment or other notices, to the Beneficial Owners, or that they will do so on a timely
basis or will serve and act in the manner described in this Official Statement. The City and the
Trustee are not responsible or liable for the failure of DTC or any Participants to make any
payment or give any notice to a Beneficial Owner with respect to the Certific~t~e_s or any error or
delay relating thereto.
The foregoing description of the procedures and record-keeping with respect to
beneficial ownership interests in the Certificates, payment of principal, interest and other
payments with respect to the Certificates to Participants or Beneficial Owners, confirmation
and transfer of beneficial ownership interests in such Certificates and other related transactions
by and between DTC, the Participants and the Beneficial Owners is based on information
provided by DTC. Accordingly, the City takes no responsibility for the accuracy thereof.
Discontinuance of DTC Service. In the event that (a) DTC determines not to continue to act
as securities depository for the Certificates, or (b) the City determines to remove DTC from its
functions as a depository, DTC’s role as securities depository for the Certificates and use of the
book-entry system will be discontinued. If the City fails to select a qualified securities
depository to replace DTC, the City will cause the Trustee to execute and deliver new
Certificates in fully registered form in such denominations numbered in the manner determined
by the Trustee and registered in the names of such persons as are requested by the Beneficial
Owners thereof. Upon such registration, such persons in whose names the Certificates are
registered will become the registered Owners of the Certificates for all purposes.
Transfer and Exchange of Certificates. The following provisions regarding the exchange and
transfer of the Certificates apply only during any period in which the Certificates are not
subject to DTC’s book-entry system. While the Certificates are subject to DTC’s book-entry
system, their exchange and transfer will be effected through DTC and the Participants and will
be subject to the procedures, rules and requirements established by DTC.
The registration 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 Corporate
Trust Office of the Trustee in San Francisco, California, 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, authenticate and deliver a new Certificate or Certificates of the same maturity and
aggregate principal amount, in any authorized denominations.
Certificates may be exchanged at the Corporate Trust Office of the Trustee, for a like
aggregate principal amount of Certificates of other authorized denominations of the same
maturity. The City shall pay any costs of the Trustee incurred in connection with such
exchange, except that 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.
LEASE PAYMENT SCHEDULE
Following is the annual schedule of Lease Payments due with respect to the Certificates.
Interest Principal Interest Annual
[to come]
THE PROJECT
General. The Project consists of improvements to the City’s municipal golf course,
including upgrading five fairways and various traps, tees and greens; constructing new storm
drain facilities; replacing the existing irrigation system; upgrading the driving range; and
installing new cart paths. All of the improvements are in accordance with the City’s Golf
Course Master Improvement Plan. The City will not construct any new buildings as part of the
Project.
Bid Process. Notices inviting formal bids for the Project were issued on January 13, 1998,
with a 49-day bidding period. Bids were received from three contractors, and the bid
submitted by Key Turf Construction, Inc. in the amount of $4,590,520 was accepted by the
City. A contingency of 15 percent was added due to the possibility of unforeseen soil
conditions and unusual ground water problems that might be encountered during construction.
Construction Schedule. The contract calls for completion of the Project within 200
calendar days after the date of the City’s notice to proceed. Extensions and/or reductions may
occur from time to time during the course of the work if effectuated by change orders duly
executed. The City expects the Project to be completed by December 31, 1998.
Construction Budget. The City currently estimates a construction and design budget of
$6,328,000 as set forth below:
Construction Costs
Design Cost Reimbursement
Construction Costs Reimbursement
$5,694,000
458,000
176,000
Total:$6,328,000
The City expects that proceeds of the Certificates, together with interest earnings during
the construction period on funds deposited into the Construction Fund, will be sufficient to
complete acquisition and construction of the Project.
SECURITY AND SOURCES OF PAYMENT FOR THE CERTIFICATES
Nature of the Certificates
Each Certificate evidences and represents a undivided fractional interest in the principal
component of the Lease Payments due under the Lease Agreement on the payment date or
prepayment date of such Certificate, and the interest component of all Lease Payments (based
on the stated interest rate with respect to such Certificate) to accrue from August 1, 1998 to its
payment date or prepayment date, as the case may be.
The Corporation, pursuant to the Assignment Agreement, will assign to the Trustee for
the benefit of the Owners of the Certificates, substantially all of the Corporation’s right, title
and interest in and to the Lease Agreement, including, without limitation, its right to receive
Lease Payments to be paid by the City. The City will pay Lease Payments directly to the
Trustee, as assignee of the Corporation. See "Lease Payments" below.
Covenant to Appropriate Funds for Rental Payments
The City has covenanted in the Lease Agreement to take such action as may be
necessary to include all Lease Payments due under the Lease Agreement in each of its budgets
and to make the necessary annual appropriations therefor, subject to abaS~ement_.
Abatement
Lease Payments are to be paid by the City in each rental period for and in consideration
of the right to use and occupy the Leased Property during each such period. Except as
otherwise provided in the Lease Agreement, Lease Payments will be subject to abatement
during any period in which there is substantial interference with the use and possession of all or
a portion of the Leased Property by the City as the result of material damage, destruction, title
defect or condemnation.
In the Lease Agreement, the City represents that the Leased Property has indic value
to the residents of the City as open space, whether or not the Leased Property is actually
operational as a golf course, and that the Lease Payments represent fair consideration for use
and possession of the Leased Property as open space, notwithstanding any damage to or
destruction of the Leased Property which interferes with its use as a golf course. Consequently,
the City does not anticipate that any foreseeable damage to or destruction of the Leased
Property (as opposed to loss by condemnation or title defect) will interfere with its right to use
or occupy the Leased Property so as to cause abatement of the Lease Payments. For this
reason, the City is not obligated under the Lease Agreement to maintain rental interruption
insurance with respect to the Leased Property. See "THE PROJECT" and "RISK FACTORS -
Abatement" herein.
To the extent proceeds of an eminent domain or insurance award, including self-
insurance, are available to pay Lease Payments, or to the extent that moneys are available in
the Lease Payment Fund or the Reserve Fund, Lease Payments (or a portion thereof) may be
made during periods of abatement.
Action on Default
Should the City default under the Lease Agreement, the Trustee, as assignee of the
Corporation under the Lease Agreement, may exercise any and all remedies available pursuant
to law or granted pursuant to the Lease Agreement; provided, however, that notwithstanding
anything in the Lease Agreement or in the Trust Agreement to the contrary, there is no right
under any circumstances to accelerate the Lease Payments or otherwise declare any Lease
Payments not then in default to be immediately due and payable. The Corporation and the
Trustee (as assignee of the Corporation) has the right to re-enter or repossess the Leased
Property and the right to terminate the Lease Agreement. See "RISK FACTORS - Limited
Recourse on Default" herein.
For a description of the events of default and permitted remedies of the Trustee (as
assignee of the Corporation) contained in the Lease Agreement and the Trust Agreement, see
"APPENDIX A - Summary of Principal Legal Documents" herein.
Reserve Fund
A reserve fund (the "Reserve Fund") is established pursuant to the Trust Agreement and
will be held by the Trustee in trust for the benefit of the Owners of the Certificates. The Reserve
Fund is initially established in the form of the deposit of a portion of Certificate proceeds.
’Moneys in the Reserve Fund will at all times be in the amount of the Reserve Requirement, which
is defined to be, as of the date of calculation, amount equal to the lesser of (i) ten percent (10%)
of the original Principal Amount of the Certificates; (ii) 125% of average annual Lease
Payments; or (iii) maximum annual Lease Payments.
If on any Payment Date the moneys available in the Lease Payment Fund do not equal
the amount of the principal and interest and prepayment premiums (if any) represented by the
Certificates then coming due and payable, the Trustee will apply the moneys available in the
Reserve Fund to make delinquent Lease 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 or portion thereof with respect to which moneys have been advanced from the
Reserve Fund, such Lease Payment or portion thereof shall be deposited in the Reserve Fund to
the extent of such advance.
In addition, moneys on deposit in the Reserve Fund will be applied for the final payment
’on the Certificates.
Pursuant to the Trust Agreement, moneys held by the Trustee in the Reserve Fund will be
invested by the Trustee upon the written request of the City only in Investment Securities (as
defined in the Trust Agreement). Investment earnings on the Reserve Fund, to the extent said
earnings are not needed to maintain the Reserve Fund at the Reserve Requirement, shall be
transferred to the Lease Payment Fund to pay principal of, interest on and premium, if any, on
the Certificates as the same shall become due and payable. Investment Securities in the Reserve
Fund shall be valued annually, except in the event of a withdrawal from the Reserve Fundj
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whereupon they shall be valued immediately after such withdrawal and monthly thereafter until
the Reserve Fund is at its required level.
Lease Payments
For the right to the use and occupancy of the Project and Site, the Lease Agreement
requires the City to make Lease Payments. Scheduled Lease Payments relating to the
Certificates are set forth above under the heading "LEASE PAYMENT SCHEDULE."
THE OBLIGATION OF THE CITY TO MAKE THE LEASE PAYMENTS DOES NOT
CONSTITUTE A DEBT OF THE CITY OR THE STATE OR OF ANY POLITICAL
SUBDIVISION THEREOF WITHIN THE MEANING OF ANY CONSTITUTIONALOR
STATUTORY DEBT LIMIT OR RESTRICTION, AND DOES NOT CONSTITUTEAN
OBLIGATION FOR WHICH THE CITY OR THE STATE IS OBLIGATED TO LEVYORPLEDGE ANY FORM OF TAXATION OR FOR WHICH THE CITY ~OR THE STATE HAS
LEVIED OR PLEDGED ANY FORM OF TAXATION.
Additional Payments
The City is obligated under the Lease Agreement to pay when due, during the term of the
Lease Agreement, in addition to the Lease Payments, all costs and expenses incurred by the
Corporation to comply with the provisions of the Trust Agreement, including without limitation
all Costs of Issuance (as defined in the Trust Agreement), to the extent not paid from amounts
on deposit in the Costs of Issuance Fund, compensation due to the Trustee and all reasonable
costs and expenses of auditors, engineers and accountants.
In addition, throughout the term of the Lease Agreement, all improvement, repair and
maintenance of the Leased Property is the responsibility of the City, and the City shall pay for
or otherwise arrange for the payment of all utility services supplied to the Leased Property, and
shall pay for or otherwise arrange for the payment of the cost of the repair and replacement of
the Leased Property resulting from ordinary wear and tear or want of care on the part of the
City or any assignee or lessee thereof. 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
Leased Property or the 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 the Lease Agreement.
The City agrees in the Lease Agreement that for the term of such Lease Agreement it will
maintain insurance with respect to the Leased Property against the risks and in the amounts
described in the following paragraphs.
Public Liability and Property Damage Insurance. The City is obligated under the Lease
Agreement to maintain a standard comprehensive general insurance policy or policies in
protection of the Authority, 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
damage occasioned by reason of the operation of the Project. Said policy or policies shall
provide coverage in the minimum 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, and in a minimum amount of $150,000 (subject to a deductible clause of not
to exceed $250,000, or such higher amount as the City shall determine, provided that such
-12-
higher deductible shall be considered a self insured retention which shall meet the requirements
the Lease Agreement) 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 per occurrence covering all such risks. Such liability insurance may be
maintained as part of or in conjunction with any other liability insurance coverage carried by the
City. The City is, however, under no obligation to provide insurance against loss or damage
occasioned by the perils of earthquake or flood.
Fire and Extended Coverage Insurance. The City is obligated under the Lease Agreement to
maintain insurance against loss or damage to any structures constituting any part of a Project
by fire and lightning, with extended coverage and vandalism and malicious mischief insurance.
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 equal to !00% of the
replacement cost of the Project. Such insurance may be subject to deductibie clauses of not to
exceed $100,000 for any one loss. Such insurance may be maintained as part of or in
conjunction with any other fire and extended coverage carried by the City. The net proceeds of
such insurance shall be applied as provided in the Lease Agreement.
Title Insurance. The City is obligated under the Lease Agreement to obtain on the Closing
Date a title insurance policy which insures the leasehold estate created under the Lease
Agreement, in an amount equal to the principal amount of the Certificates.
Rental Interruption Insurance. The City is not obligated under the Lease Agreement to
maintain rental interruption or use and occupancy insurance because of its finding in the Lease
Agreement that the Lease Payments represent fair consideration for use and possession of the
Leased Property as open space, notwithstanding any damage to or destruction of the Leased
Property which interferes with its use as a golf course.
Net Proceeds; Form of Insurance. All proceeds of such insurance must be payable to the
Trustee as and to the extent required under the Lease Agreement. All policies of insurance
required by the Lease Agreement must be in form satisfactory to the Trustee. All such policies
must provide that the Trustee shall be given thirty days notice of each expiration, any intended
cancellation thereof or reduction of the coverage provided thereby. The_T~ustee will not be
responsible for the sufficiency of any required insurance and shall be’~ully protected in
accepting payment on account of such insurance or any adjustment, compromise or settlement
of any loss agreed to by the Trustee. The City will cause to be delivered to the Trustee annually
evidence that the insurance policies required by the Lease Agreement are in full force and effect.
Substitution or Release of Leased Property
Substitution of Leased Property. Pursuant to the Lease Agreement, the City has.the optionat any time to substitute other land, facilities, improvements or other property (a ’Substitute
Property") for the Leased Property or any portion thereof (a "Former Property"), provided that
the City shall satisfy certain requirements, including the following:
(a) The City shall notify S&P and Moody~s in writing of such substitution, which
notice shall contain the certification that all such conditions have been met;
(b) The City shall certify in writing to the Corporation and the Trustee, such
certification to be accompanied by an appraisal prepared by an appraiser who is
independent of the City, that the estimated fair market value and the estimated fair
rental value of such Substitute Property are at least equal to estimated fair market value
and the estimated fair rental value, respectively, of such Former Property, except that
the estimated fair market value of such Substitute Property, together with the portion of
the Leased Property remaining after the removal of the Former Property, shall not be
required to exceed the aggregate principal components of the unpaid Lease Payments;
(c) The City shall certify in writing to the Corporation and the Trustee that the
estimated useful life of such Substitute Property at least extends to the date on which
the final Lease Payment becomes due and payable hereunder; and ~ ¯
(d) The City shall obtain a CLTA policy of title insurance meeting the
requirements of the Lease Agreement.
Removal of Property from Leased Property. The City also has the option at any time to
remove any property from the description of the Leased Property, provided that the City
satisfy certain conditions, set forth in the Lease Agreement, including the following:
(a) The City shall receive written evidence from S&P and Moody’s that such
removal will not cause the withdrawal or reduction of the rating then assigned to the
Certificates by S&P and Moody’s;
(b) The City shall obtain a report of an independent appraiser certifying that the
appraised value of the Leased Property which will remain following such removal is not
less than the aggregate principal amount of the Outstanding Certificates; and
(c) The City shall obtain and cause to be filed with the Trustee and the
Corporation an opinion of Bond Counsel stating that such removal does not cause
interest with respect to the Certificates to become includable in the gross income of the
Certificate Owners for federal income tax purposes.
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. However, the
following does not purport to be an exhaustive listing of risks and other considerations which
may be relevant to an investment in the Certificates. In addition, the order in which the
following factors are presented is not intended to reflect the relative importance of any such
risks.
General Considerations - Security for the Certificates
The obligation of the City to make the Lease Payments does not constitute a debt of the
City or the State or of any political subdivision thereof within the meaning of any constitutional
or statutory debt limit or restriction, and does not constitute an obligation for which the City or
the State is obligated to levy or pledge any form.of taxation or for which the City or the State
has levied or pledged any form of taxation.
Although the Lease Agreement does not create a pledge, lien or encumbrance upon the
funds of the City; the City is obligated, subject to abatement, under the L~ase Agreement to pay
the Lease Payments from any source of legally available funds and the City has covenanted in
the Lease Agreement that it will take such action as may be necessary to include all re.ntal
payments due under .the Lease Agreement in its annual budgets and to make necessary annual
appropriations for all such rental payments. The City is currently liable and may become liable
on other obligations payable from general revenues, some of which may have a priority over the
Lease Payments.
The City has the capacity to enter into other obligations which may constitute additional
charges against its revenues. To the extent that additional obligations are incurred by the City,
the funds available to make Lease Payments may be decreased. In the event the City’s revenue
sources are less than its total obligations, the City could choose to fund other activities before
making Lease Payments and other payments due under the Lease Agreement. In that regard, it
should be noted that maintaining a municipal golf course like the Leased Property is not
generally considered to be an "essential" municipal service. As a consequence, the risk that the
City may choose to fund other activities before making Lease Payments is increased.
The City’s ability to collect, budget and appropriate various revenues is subject to
current and future State laws and constitutional provisions, and it is possible that the
interpretation and application of these provisions could result in an inability of the City to pay
the Lease Payments when due. See "RISK FACTORS - Relevant Pending Litigation" and
"CONSTITUTIONAL AND .STATUTORY LIMITATIONS ON TAXES AND
APPROPRIATIONS" herein.
Eminent Domain
If the Leased Property is taken permanently under the power of eminent domain or sold
to .a government threatening to exercise the power of eminent domain, the term of the Lease
Agreement will cease as of the day possession is taken. If less than all of the Leased. Property is
taken permanently, or if the Leased Property or any part thereof is taken temporarily, under the
power of eminent domain, (1) the Lease Agreement will continue in full force and effect and will
not be terminated by virtue of such taking, and (2) there will be a partial abatement of Lease
Payments as a result of the application of the Net Proceeds of any eminent domain award to
the prepayment of the Lease Payments, in an amount to be agreed upon by the City and the
Corporation such that the resulting Lease Payments represent fair consideration for the use and
occupancy of the remaining usable portion of the Leased Property. The City covenants in the
Lease Agreement to contest any eminent domain award which is insufficient to either : (i)
redeem the Certificates in whole, if all of the Leased Property is condemned; or (ii) redeem a
pro rata share of Certificates, in the event that less than all of the Leased Property is
condemned.
Abatement
The Lease Agreement provides that the amount of Lease Payments will be subject to
abatement during any period in which by reason of damage or destruction there is substantial
interference with the use and occupancy by the City of the Leased Property. The amount of
such abatement will be agreed upon by the City and the Corporation such that the resulting
Lease Payments represent fair consideration for the use and occupancy of the portions of the
Leased Property not damaged or destroyed. Such abatement will 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, the Lease
Agreement will continue in full force and effect and the City, in the Lease Agreemenf, waives
any right to terminate the Lease Agreement by virtue of any such damage and destruction..
However, there will be no abatement of Lease Payments to the extent that the proceeds
of an eminent domain or insurance award are available to pay Lease Payments, or to the extent
¯ that moneys are available in the Lease Payment Fund or the Reserve Fund, it being declared in
the Lease Payment Fund that such proceeds and amounts constitute special funds for the
payment of the Lease Payments.
Furthermore, the City has declared and represented in the Lease Agreement that the
Leased Property has intrinsic value to the residents of the City as open space, whether or not
the Leased Property is actually operational as a golf course, and that the Lease Payments
represent fair consideration for use and possession of the Leased Property as open space,
notwithstanding any damage to or destruction of the Leased Property which interferes with its
use as a golf course.
Following the period for which funds are available from the Reserve Fund or other funds
and accounts established under the Trust Agreement for payment of Lease Payments, or in the
event that casualty insurance proceeds are insufficient to provide for complete repair or
replacement of such portion of the Leased Property or prepayment of the Certificates, there
could be insufficient funds to make payments to Owners in full. However, given the nature of
the City’s use of the Leased Property as a municipal golf course, and its finding that the Leased
Property has value as open space, the City does not anticipate that any foreseeable damage to
or destruction of the Project will interfere with its right to use or occupy the Leased Property so
as to cause abatement of the Lease Payments, although title defects could result in abatement of
the Lease Payments.
The Leased Property is currently operational as a municipal golf course.
Limited Recourse on Default; No Acceleration
If the City defaults on its obligation to make Lease Payments, there is no available
remedy of acceleration of the total Lease Payments due over the term of the Lease Agreement.
The City will only be liable for Lease Payments on an annual basis, and the Trustee would be
required to seek a separate judgment in each fiscal year for that fiscal year’s rental payments.
Limitation on Remedies; Bankruptcy
The rights of the Owners of the Certificates are subject to the limitations on legal
remedies against cities in the State, including State constitutional limits on expenditures and
limitations on the enforcement of judgments against funds needed to serve the public welfare
and interest, by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other laws affecting the enforcement of creditors’ rights, by equitable principles,
by the exercise of judicial powers in appropriate cases and by the exercise by the federal and
State governments of their sovereign powers. The opinions of counsel, including Special
Counsel, delivered in connection with the Certificates will be so qualified. Under Chapter 9 of
the Bankruptcy Code (Title 11, United States Code), which governs the bankruptcy proceedings
for public agencies such as the City, there are no involuntary petitions in bankruptcy.
Bankruptcy proceedings, if initiated, or the exercise of powers by the federal or State
government, could subject the owners of the Certificates to judicial discretion and interpretation
of their rights in bankruptcy proceedings or otherwise and consequently may entail risk or
delay, limitation or modification of their rights.
Substitution or Release of Leased Property
As described above (see "SECURITY AND SOURCES OF PAYMENT FOR THE
CERTIFICATES - Release or Substitution of Leased Property"), the Lease Agreement permits
the City to substitute additional real property and/or improvements for existing Leased
Property upon compliance with certain conditions set forth in the Lease Agreement.
In the case of both substitution and release of Leased Property, the Lease Agreement
requires with respect to the value of the remaining Leased Property that its value at least equal
the aggregate principal components of the unpaid Lease Payments and the Outstanding
Certificates. Consequently, a portion of the Leased Property could be replaced with less
valuable property, or could be released altogether. Such replacement or release could have an
adverse impact on the security for the Certificates, particularly if an event requiring abatement
of Lease Payments were to occur subsequent to such substitution or release.
Loss of Tax Exemption
As discussed under the heading "TAX MATTERS," the interest represented by the
Certificates could become includable in gross income for purposes of federal income taxation
retroactive to the date of delivery of the Certificates as a result of acts or omissions of the City
in violation of its covenants in the Trust Agreement and the Lease Agreement. Should such an
event of taxability occur, the Certificates would not be subject to a special prepayment and
would remain Outstanding until maturity or until prepaid under the prepayment provisions
contained in the Trust Agreement.
Seismic Considerations
The City, like much of California, is subject to seismic activity that could result in
interference with its right to use and possession of the Leased Property. There are several major
active fault zones transecting Santa Clara County that could cause "strong ground motion" at
the site of the Leased Property during its useful life. Those major fault zones, listed in order of
proximity to the Leased Property, are the San Andreas, Hay-ward, Calaveras and San Gregorio
faults. The City is not obligated by the Lease Agreement or otherwise to maintain earthquake
insurance with respect to the Leased Property. However, because of the value of the Leased
Property as open space, the City does not anticipate an earthquake requiring abatement of
Lease Payments.
No Liability of Corporation to the Owners
Except as expressly provided in the Trust Agreement, the Corporation will 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 performance by the City of other
agreements and covenants required to be performed by it contained in the Lease Agreement or
the Trust Agreement~ or with respect to the performance by the Trustee of any right or obligation
required to be performed by it contained in the Trust Agreement.
Relevant Pending Litigation
Rider v. City of San Diego. On April 2, 1997, the California Supreme Court granted a
petition for review in the case of Rider v. City of San Diego (1996) 51 Cal.App.4th 1313. The
case involves a financing plan in the City of San Diego pursuant to which the San Diego Unified
Port District (the "Port District") planned to lease the existing Convention Center and an
adjoining site on which expansion was planned to a joint powers entity (the "Convention
Authority") formed by the Port District and the City of San Diego ("San Diego") pursuant to the
Joint Exercise of Powers Act (Gov. Code §6500 et seq.). The Convention Authority planned to
issue bonds to finance the Convention Center expansion. The bonds would be paid by the
Authority from revenues derived from ’base rental payments" made by San Diego under a
financing lease (the "Facility Lease") and "support payments" made by the Port District. San
Diego’s rental obligations under the Facility Lease would be payable from its general fund.
Plaintiffs filed an action against San Diego and the Convention Authority challenging the
validity of the lease-back financing plan. Plaintiffs claimed the financing plan violated (1)
California Constitution Article XVI, Section 18, which prohibits the City from "incur[ring] any
indebtedness ... exceeding inany year the income and revenue provided for such year, without
the assent of two-thirds of the qualified electors" (the "Constitutional Debt Limit") and (2) City
Charter article VII, section 90(a), which expressly prohibits San Diego from issuing bonds
without a two-thirds vote of the electorate.
The trial court granted summary judgment upholding the validity of the Convention
Center financing plan. On appeal, the plaintiffs conceded the financing plan did not violate the
Constitutional Debt Limit, and the Court of Appeal agreed, noting that each of San Diego’s
rental payments was for consideration furnished that year and the lease provisions did not
create present debt for future payments owed. Plaintiffs claimed, however, that provisions of
the City Charter limiting issuance of bonds by San Diego, including the voter approval
requirement, are applicable to the Convention Authority. Plaintiffs cited Section 6509, found in
Article 1 of the Joint Exercise of Power Act, which provides that the power of the Convention
Authority is "subject to the restrictions upon the manner of exercising the power of one of the
contracting parties, which party shall be designated" by the Convention Authority’s joint
powers agreement. San Diego and the Port District designated San Diego as the entity whose
restrictions would bind the Authority.
Defendants countered by citing Section 6587, which was added to the Joint Exercise of
Powers Act, along with other provisions of Article 4 of the Joint Exercise of Powers Act, as part
of the Marks-Roos Local Bond Pooling Act of 1985. Section 6587 declares that Article 4
provides a "complete and supplemental method" of issuing bonds, which "need not comply with
the requirements of any other state laws applicable to the issuance of bonds, including, but not
limited to, other articles, of" the Joint Exercise of Powers Act.
The Court of Appeal held that the Joint Exercise of Powers Act, specifically Article 4,
permits the Convention Authority to issue revenue bonds without voter approval and does not
limit the Convention Authority’s bond issuing powers to the powers of the creating agencies.
One justice, in dissent, while agreeing with the majority on the City Charter/Joint Exercise of
Powers Act decision, wrote that certain remedy provisions in the Facility Lease had the effect
of converting the Facilities Lease into "indebtedness" for purposes of the Constitutional Debt
Limit.
The plaintiffs petitioned for review to the California Supreme Court, and the California
Supreme Court granted review on April 2, 1997. % __
Relevance of Rider to the Lease Agreement and the Certificates. The Lease Agreement an~ the
Certificates are being executed and delivered without the City securing voter approval of the
financing. However, none of the issues relating to the Joint Exercise of Powers Act are raised by
the Lease Agreement or the Certificates.
The City cannot predict the nature of any decision by the California Supreme Court in
Rider, including whether the Court will reach the Constitutional Debt Limit issue. As a result,
the City cannot predict what effect, if any, the Rider case may have on the future market value
of the Certificates.
CONSTITUTIONAL AND STATUTORY LIMITATIONS ON TAXES AND
APPROPRIATIONS
Article XIIIA of the California Constitution
In 1978 California voters approved Proposition 13, adding Article XIIIA to the
California Constitution. Article XIIIA was subsequently amended in 1986, as discussed below.
Article XIIIA limits the amount of any ad valorem tax on real property to 1% of the full cash
value thereof, except that additional ad valorem taxes may be levied to pay debt service on
indebtedness approved by the voters prior to July 1, 1978 and on bonded indebtedness for the
acquisition or improvement of real property which has been approved on or after July 1, 1978
by two-thirds of the voters voting on such indebtedness. Article XIIIA defines full cash value to
mean "the county assessor’s valuation of real property as shown on the 1975-76 tax bill under
"full cash" or thereafter, the appraised value of real property when purchased, newly
constructed, or a change in ownership have occurred after the 1975 assessment." This full cash
value may be increased at a rate not to exceed 2% per year to account for inflation. ’
Article XIIIA has subsequently been amended to permit reduction of the "full cash value"
base in the event of declining property values caused by damage, destruction or other factors, to
provide that there would be no increase in the "full cash value" base in the event of
reconstruction of property damaged or destroyed in a disaster.
Legislation Implementing Artide XIIIA
Legislation has been enacted and amended a number of times since 1978 to implement
Article XIIIA. Under current law, local agencies are no longer permitted to levy directly any
property tax (except to pay voter-approved indebtedness). The 1% property tax is
automatically levied by the county and distributed according to a formula among taxing
agencies. The formula apportions the tax roughly in proportion to the relative shares of taxes
levied prior to 1979, but is subject to legislative change at any time.
Increases of assessed valuation resulting from reappraisals of property due to new
construction, change in ownership .or from the 2% annual adjustment are allocated among the
various jurisdictions in the "taxing area" based upon their respective "situs." Any such allocation
made to a local agency continues as part of its allocation in future years. ~~ ~ -
Article XIIIB of the California Constitution
At the statewide special election on November 6, 1979, the voters approved an initiative
entitled "Limitation on Government Appropriations" which added Article XIIIB to the California
Constitution. Under Article XIIIB, state and local government entities have an annual
"appropriations limit" which limits the ability to spend certain moneys which are called
"appropriations subject to limitation" (consisting of tax revenues and certain state subventions
together called "proceeds of taxes" and certain other funds) in an amount higher than the
"appropriations limit." Article XIIIB does not affect the appropriation of monies which are
excluded from the definition of "appropriations limit" including debt service on indebtedness
existing or authorized as of September 1, 1979, or bonded indebtedness subsequently approved
by the voters. In general terms, the "appropriations limit" is to be based on certain 1978-79
expenditures, and is to be adjusted annually to reflect changes in the consumer price index,
population and services provided by these entities. Among other provisions of Article XIIIB, if
those entities’ revenues in any year exceed the amounts permitted to be spent, the excess would
have to be returned by revising tax rates or fee schedules over the subsequent two years.
Section 7910 of the Government Code of the State of California requires the City to
adopt a formal appropriations limit for each fiscal year. The City’s appropriations limit for
fiscal year 1997-98 is $62.0. The limit was calculated by applying a growth factor of 6.93
percent to the City’s fiscal year 1996-97 limit of $57.9 million. The City’s appropriations
subject to limitation for fiscal year 1997-98 are $51.78 million. This results in an unused
appropriations limit for fiscal year 1997-98 of $10.22 million.
Proposition 62
Proposition 62 was a statutory initiative adding Sections 53720 to 53730, inclusive, to
the California Government Code. It confirmed the distinction between a general tax and special
tax, established by the State Supreme Court in 1982 in City and County of San Francisco v. Farrell,
by defining a general tax as one imposed for general governmental purposes and a special tax
as one imposed for specific purposes. Proposition 62 further provided that no local government
or district may impose (i) a general tax without prior approval of the electorate by majority
vote or (ii) a special tax without such prior approval by two-thirds vote. It further provided
that if any such tax is imposed without such prior approval, the amount thereof must be
withheld from the levying entity’s allocation of annual property taxes for each year that the tax
is collected. By its terms, Proposition 62 applies only to general and special taxes imposed on
or after August 1, 1985. Proposition 62 was generally upheld in Santa Clara County Local
Transportation Authority v. Guardino, a California Supreme Court decision filed September 28,
1995.
In March 1992, the City Council of the City approved a Real Property Transfer Tax (the
"Property Transfer Tax"). The Property Transfer Tax is imposed on the transfer of real
property in the City, at the rate of $3.30 per $1,000 of the value of the consideration so
transferred. In fiscal Year 1996-97, the Property Transfer Tax generated approximately $2.0
million in revenue. In the opinion of the City Attorney, the Property Transfer Tax is not
impacted by Proposition 62 because the City is a charter city. The City’s authority to impose
local taxes under the "home rule" authority of the California Constitution, therefore, cannot be
restricted by a statutory initiative like Proposition 62. The California Supreme Court did not
reach this constitutional issue in Guardino.
Proposition 218 ~ .~
On November 5, 1996, California voters approved Proposition 218-Z-Voter Approval
for Local Government Taxes--Limitation on Fees, Assessments) and ChargestInitiative
Constitutional Amendment. Proposition 218 added Articles XIIIC and XIIID to the California
Constitution, imposing certain vote requirements and other limitations on the imposition of new
or increased taxes, assessments and property-related fees and charges. Proposition 218 states
that all taxes imposed by local governments shall be deemed to be either general taxes or special
taxes. Special purpose districts, including school districts, have no power to levy general taxes.
No local government may impose, extend or increase any general tax unless and until such tax is
submitted to the electorate and approved by a majority vote. No local government may
impose, extend or increase any special tax unless and until such tax is submitted to the
electorate and approved by a two-thirds vote.
Proposition 218 also provides that no tax, assessment, ’ fee or charge shall be assessed
by any agency upon any parcel of property or upon any person as an incident of property
ownership except: (i) the ad valorem property tax imposed pursuant to Article XIII and Article
XIIIA of the California Constitution, (ii) any special tax receiving a two-thirds vote pursuant to
the California Constitution, and (iii) assessments, fees and charges for property related services
as provided in Proposition 218. Proposition 218 then goes on to add voter requirements for
assessments and fees and charges imposed as an incident of property ownership, other than
fees and charges for sewer, water, and refuse collection services. In addition, all assessments
and fees and charges imposed as an incident of property ownership, including sewer, water,
and refuse collection services, are subjected to various additional procedures, such as hearings
and stricter and more individualized benefit requirements and findings. The effect of such new
provisions will presumably be to increase the difficulty a local agency will have in imposing,
increasing or extending such assessments, fees and charges.
Proposition 218 also extended the initiative power to reducing or repealing any local
taxes, assessments, fees and charges. This extension of the initiative power is not limited to
taxes imposed on or after November 6, 1996, the effective date of Proposition 218, and could
result in retroactive repeal or reduction in any existing taxes, assessments, fees and charges,
subject to overriding federal constitutional principles relating to the impairments of contracts.
Like its antecedents, Proposition 218 is likely to undergo both judicial and legislative
scrutiny before its impact on the City and its obligations can be determined. Certain provisions
of Proposition 218 may be examined by the courts for their constitutionality under both State
and federal constitutional law. The City is not able to predict the outcome of any such
examination.
A portion of the City’s general fund revenues are derived from quarterly transfers of
revenues from the City’s water enterprise as required by an amendment to the City Charter
approved by the City’s voters in 1950. For Fiscal Year 1997-98, these transfers accounted for
approximately 2% of the general fund revenues, and the City has budgeted that the transfers
will account for approximately 2% of the 1998-99 general fund revenues. The City believes that
its ability to pay Lease Payments would not be adversely affected if these transfers were
successfully challenged under Proposition 218.
The foregoing discussion of Proposition 218 should not be considered an exhaustive or
authoritative treatment of the issues. The City does not expect to be in a position to control the
consideration or disposition of these issues and cannot predict the timing or outcome of any
judicial or legislative activity in this regard. Interim rulings, final decisions, legislative proposals
and legislative enactments may all affect the impact of Proposition 218 on the Certificates as
well as the market for the Certificates. Legislative and court calendar delays and other factors
may prolong any uncertainty regarding the effects of Proposition 218.
Unitary Property
AB 454 (Chapter 921, Statutes of 1986) provides that revenues derived from most
utility property assessed by the State Board of Equalization ("Unitary Property"), commencing
with the 1988~89 fiscal year, will be allocated as follows: (i) each jurisdiction will receive up to
102% of its prior year State-assessed revenue; and (ii) if county-wide revenues generated from
Unitary Property are less than the previous year’s revenues or greater than 102% of the previous
year’s revenues, each jurisdiction will share the burden of the shortfall or benefit of the excess
revenues by a specified formula. This provision applies to all Unitary Property except
railroads, whose valuation will continue to be allocated to individual tax rate areas.
The provisions of AB 454 do not constitute an elimination of the assessment of any
State-assessed properties nor a revision of the methods of assessing utilities by the State Board
of Equalization. Generally, AB 454 allows valuation growth or decline of Unitary Property to be
shared by all jurisdictions in a county.
Future Initiatives
Article XIIIA, Article XIIIB, Proposition 62 and Proposition 218 were each adopted as
measures that qualified for the ballot through California’s initiative process. From time to time
other initiative measures could be adopted, further affecting the City’s revenues.
THE CORPORATION
The Corporation is a nonprofit, 501(c)(4) corporation formed by the City in 1983 for
the purpose, inter alia, of rendering financial assistance to the City by financing, acquiring,
constructing, improving, leasing and selling buildings, improvements, equipment and other real
and personal property for the benefit of residents of the City and surrounding areas. The City
Council of the City sits as the Board of Directors of the Corporation.
THE CITY
For general and demographic information regarding the City, see "APPENDIX B -
General Information About the City of Palo Alto."
CITY FINANCES
The following selected financial information provides a brief overview of the City’s
finances. This financial information has been extracted from the City’s audited financial
statements and, in some cases, from unaudited information provided by the City’s
Administrative Services Department. The most recent audited financial statements of the City
with an unqualified auditor’s opinion is included as Appendix C hereto. See "APPENDIX C -
Audited Financial Statements of the City for the Year Ended June 30, 1997."
Accounting Policies and Financial Reporting
The accounts of the City are organized on the basis of funds and account groups, each
of which is considered a separate entity. The operations of each fund are accounted for with a
separate set of self-balancing accounts that comprise its assets, liabilities, fund equity,
revenues, and expenditures or expenses, as appropriate. Government resources are allocated to
and accounted for in individual funds based upon the purposes for which they are to be spent
and the means by which the spending activities are controlled. The basis of accounting for all
funds is more fully explained in the "Notes to the City of Palo Alto General Purpose Financial
Statements" contained in Appendix C.
The City Council employs, at the beginning of each fiscal year, an independent certified
public, accountant who, at such time or times as specified by the City Council, at least annually,
and at such other times as he or she shall determine, examines the combined financial
statements of the City in accordance with generally accepted auditing standards, including such
tests of the accounting records and such other auditing procedures as such accountant considers
necessary. As .soon as practicable after the end of the fiscal year, a final audit and report is
submitted by such accountant to the City Council and a copy of the financial statements as of
the close of the fiscal year is published.
General Fund Financial Summary
The information contained in the following tables of revenues, expenditures and changes
in fund balances, and assets, liabilities and fund equity has been derived from the City’s
audited financial statements for the past three fiscal years.
Set forth below are the City’s general fund financial statements for fiscal years 1994-95
through 1996-97, the three most recent fiscal years for which audited financial statements are
available.
Table No. 1
CITY OF PALO ALTO
General Fund - Audited Revenues, Expenditures and Fund Balances
For Fiscal Years 1994-95 through 1996-97
(Dollars in thousands)
REVENUES:
Property taxes
Sales taxes
Utility users’ tax
Transient occupancy tax
Other taxes and fines
Fire protection and emergency communication svs
From other agencies
Service fees and permits
Interest earnings
Rental income
Other
Total Revenues
Fiscal Year Fiscal Year Fiscal Year
$ 7,485 $ 7,854 $ 7,735
14,765 17,895 18,277
5,482 5,098 5,509
3,643 4,279 5,107
4,633 5,092 5,299
4,097 4,073 4,193
349 369 171
7,955 8,380 9,087
2,136 2,699 2,739
9,754 9,644 9,667
62,221 67,066 70,235
EXPENDITURES:
City Council
City Manager
City Attorney
City Clerk
City Auditor
Administrative Services
Information Resources
Human Resources
Public works
Planning and community environment
Public safety- Police
Public safety- Fire
Community services
School site operations
Total Expenditures
109 97 116
968 1,038 918
1,100 1,170 1,162
492 682 600
404 421 426
5,954 6,370 6,921
1,972 -
1,313 1,355 1,546
7,517 6,614 7,339
3,842 3,901 4,320
14,058 14,066 .14,804
11,437 11,739 12,292
12,435 13,019 13,972
65,513 66,464 70,502
(3,292)602 (267)EXCESS OF REVENUES OVER (UNDER) EXPENDITURES
OTHER FINANCING SOURCES (USES):
Operating transfers in
Operating transfers out
Total other financing sources (uses)
EXCESS OF REVENUES AND OTHER FINANCING SOURCES
OVER (UNDER) EXPENDITURES AND OTHER FINANCING USES
FUND BALANCES, BEGINNING OF YEAR
Residual equity transfers in
Residual equity transfers out
FUND BALANCES, END OF YEAR
10,559 11,504 12,759
4,873 5,970 6,290
1,581 6,572 6,023
28,806 25,979 33,6603641,115
$25,979 $33,660 $38,575
Source: City of Palo Alto, Administrative Services Department; Comprehensive Annual Financial Report (1994-95
through 1996-97).
Table No. 2
CITY OF PALO ALTO
General Fund Balance Sheet
As of June 30 for Fiscal Years 1994-95 through 1996-97
(Dollars in thousands)
ASSETS ~
Cash, Cash Equivalents and Investments $23,272 $28,247 $31,760
Receivables, Net:
Accounts 3,681 4,290 5,061
Int6rest 708 926 817
Notes 527 751 703
Interfund receivable 218 106 203
Inventory ~1.648 2086
Total Assets and Other Debits $29,591 $35,968 $40,630
LIABILITIES, FUND EQUITY AND OTHER CREDITS:
Iaab_ili~:
Accounts payable and accrued liabilities
Accrued salaries and benefits
$2,989 $1,636 1,237
62__~3 67.._~2 81.__~_8
Total Liabilities
Fund Equity. and Other Credits:
Fund Balances
Reserved
Unreserved-Designated
6,215 7,540 6,495
Total Fund Equity and Other Credits
TOTAL LIABILITIES, EQUITY AND OTHER CREDITS:$29,591 $35,968 $40,630
Source:City of Palo Alto, Administrative Services Department, Comprehensive Annual Financial Report (1994-95through 1996-97).
Budgetary Process
Budgetary control is maintained by an annual appropriation ordinance, which is
amended by City Council action, as required, throughout the-year. The budget for each. Fiscal
Year is initially presented to the Finance Committee of the City Council, and then to the City
Council as a whole for review, comment and action.
The level of budgetary control (the level at which expenditures may not legally exceed
appropriations) is by department in the General Fund and by fund for the Special Revenue,
Debt Service, Enterprise, and Internal Service Funds. The City utilizes an encumbrance system
to track purchase orders as they are issued, and corresponding appropriation amounts are
reserved for later payment to avoid overcommitment of funds.
Comparison of Budget to Actual Performance
The following table summarizes the City’s adopted budgets for fiscal years 1996-97 and
1997-98, and sets forth actual revenues and expenditures for fiscal year 1996-97 for purposes
of comparison.
Table No. 3
CITY OF PALO ALTO
General Fund o Comparison of Budgeted and Actual
Revenues, Expenditures and Fund Balances
For Fiscal Years 1996-97 and 1997-98
(Dollars in thousands)
REVENUES:
Property taxes
Sales taxes
Utility users tax
Transient occupancy tax
Other taxes and fines
Fire protection and emergency communication services
From other agencies
Service fees and permits
Interest earnings
Rental income
Other
Total Revenues
Budget Actual Budget
$ 7,936 $ 7,735 $ 8,405
18,600 18,277 19,700
5,260 5,509 5,485
4,580 5,107 5,700
5,118 5,299 5,718
4,161 4,193 4,447
166 171 160
8,351 9,087 8,723
2,525 2,739 3,100
9,526 9,667 9,792
69,115 70,235 73,415
EXPENDITURES:
City Council
City Manager
City Attorney
City Clerk
City Auditor
Administrative Services
Human Resources
Public works
Planning and community environment
Public safety- Police
Public safety- Fire
Community services
School site operations
Other (1)
Total Expenditures
132 116 167
1,220 918 1,087
1,418 1,162 1,339
681 600 794
478 426 465
7,611 6,921 7,973
1,608 1,546 1,815
8,214 7,339 8,419
4,922 4,320 4,888
15,396 14,804 15,516
12,587 12,292 12,752
14,672 13,972 14,929
6,223 -~6,086 5,963
75,162 70,502 78,160
EXCESS OF REVENUES OVER (UNDER) EXPENDITURES
OTHER FINANCING SOURCES (USES):
Operating transfers in
Operating transfers out
Total other financing sources (uses)
(6,047)(267)(4,745)
12,775 12,759 12,893
6,280 6,290 7,077
EXCESS OF REVENUES AND OTHER FINANCING
SOURCES OVER (UNDER) EXPENDITURES AND
OTHER FINANCING USES $ 233 $ 6,023 2,332
(1)Includes $1.0 million appro, priated by the City Council for Winter 1998 E1 Nino flood expenses and $1.0million in other contingencms.
Source: City of Palo Alto, Comprehensive Annual Financial Report (1996-97); Administrative Services Department.
Tax Receipts
Taxes received by the City include property taxes, sales taxes, transient occupancy
taxes, utility users taxes and others. Of such taxes, sales taxes (approximately 26.0% of the
City’s 1996-97 General Fund revenues) and property taxes (approximately 11.0% of 1996-97
General Fund revenues), constitute major sources of General Fund revenues. The City believes
that none of the general taxes currently imposed by or for the benefit of the City are affected by
Proposition 62 or Proposition 218. See "CONSTITUTIONAL AND STATUTORY
LIMITATIONS ON TAXES AND APPROPRIATIONS - Proposition 62" and " - Proposition
218" herein.
The following table sets forth tax revenues received by the City for fiscal years 1992-93
through 1996,97 by source:
Table No. 4
CITY OF PALO ALTO
General Fund Tax Revenues by Source
For Fiscal Years 1992-93 through 1996-97
(Dollars in thousands)
Source:
Sales taxes $13,322 $14,635 $14,765 $17,895 $18,277
Property taxes 8,367 7,737 7,485 7,854 7,735
Transient Occupancy Tax 3,109 3,301 3,643 4,279 5,107
Utility Users Tax 5,362 5,455 5,482 5,098 5,509
Other taxes and fines ~~~.~~~
Tot~!$34,493 $36,405 $36,008 $40,218 $41,927
Source: City of Palo Alto, Administrative Services Department, Comprehensive Annual Financial Report (1996-97)
Sales Taxes
Sales tax represents the largest source of revenue to the City.
A sales tax is imposed on retail sales or consumption of personal property. The tax rate
is established by the State Legislature. Effective March 15, 1991, the statewide tax rate is
7.25%. An additional 1.00% is collected in Santa Clara County for transportation purposes.
The State collects and administers the tax, and makes distributions on taxes collected within
the City as follows:
Table No. 5
CITY OF PALO ALTO
Sales Tax Rates
State General Fund ................................................................ .................6.00%
County Transportation Fund (Transp. Dev. Act) .................................0.25
County Transportation Fund .................................................................1.00
City .........................................................................................................1.00
,Total ...........................................................................................8.25
The State’s actual administrative costs with respect to the portion of sales taxes
allocable to the City are deducted before distribution and are determined on a quarterly basis.
The following table shows taxable transactions in the City by type of business during
calendar years 1992 through 1996.
Table No. 6
CITY OF PALO ALTO
Taxable Transactions by Type of Business
For Calendar Years 1992 through 1996
(amounts in thousands)
Retail Stores:
Apparel Stores
General Merchandise
Drug Stores
Food Stores
Packaged Liquor Stores
Eating/Drinking Places
Home fum. & appliances
Bldg. matrl. & farm implmt.
Auto dealers, auto supplies
Service Stations
Other retail stores
Retail Stores Total
$78,890 $ 89,976 $ 98,207 $ 88,777 $ 97,248
201,119 203,560 210,765 228,730 245,357
11.541 10,634 11.367 10,728 11,404
33.766 27,663 26.567 27,079 29,3562,649 3,049 3,440 3.711 3.573
125,114 131,178 134,479 150,765 165,17234,033 35,604 36~335 40,422 42,7267,837 6,764 7,873 12,020 15,77778,589 78,982 94,113 128,775 157,10127,344 27,724 27.358 27,920 32,265
748,273 772,321 813~513 897,212 986,020
All Other Outlets
TOTAL ALL OUTLETS $1,251,236 $1,258,050 $1,295~15 $1,454,307 $1,528,503
Source: California State Board of Equalization.
Property Taxes
Property taxes represent the fourth largest source of General Fund revenue. It has also
been the primary revenue source affected by voter initiatives and legislative actions. With
-28-
approval of Proposition 13, property tax revenues were first curtailed almost 20 years ago
when they were reduced by two-thirds and thereafter limited to 2% annual increases or the CPI,
whichever was less. More recently, certain property taxes have been shifted to schools by the
State Legislature, a shift that resulted in a loss of revenue to the City of approximately $1.2
million. As a result of economic decline in the Silicon Valley during the early 1990’s, thousands
of assessment appeals were filed with the County Assessor resulting in assessment reductions
and therefore property tax reductions.
More recently, the California and the local economies have been revitalized, property
values have risen, and new construction has increased, all of which has been reflected in a
higher level of property tax collections.
Assessed Valuation. All property is assessed using full cash value as defined by Article
XIIIA of the State Constitution. State law provides exemptions from ad valorem property
taxation for certain classes of property such as churches, colleges, non-profit hospitals, and
charitable institutions. See "CONSTITUTIONAL AND STATUTORY LIMITATIONS ON
TAXES AND APPROPRIATIONS," above.
Future assessed valuation growthallowed under Article XIIIA (new construction, certain
changes of ownership, 2% inflation) will be allocated on the basis of "situs" among the
jurisdictions that serve the tax rate area within which the growth occurs. Local agencies and
schools will share the growth of "base" revenues from the tax rate area. Each year’s growth
allocation becomes part of each agency’s allocation in the following year.
For assessment and collection purposes, property is classified as either "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 real property
having a tax lien which is sufficient, in the opinion of the assessor, to secure payment of the
taxes. Unsecured property comprises all property not attached to land such as personal
property or business property. Boats and airplanes are examples of unsecured property.
Unsecured property is assessed on the unsecured roll.
The following table shows assessed valuations and tax levies for fiscal years 1993-94
through 1997-98. Because the City participates in the County’s Teeter Plan (see "County Tax
Loss Reserve Account (’Teeter Plan’)" below), the City receives one hundred percent of taxes
levied.
Table No. 7
CITY OF PALO ALTO
Assessed Value of Taxable Property, and Total Current Tax Levy
Fiscal Years 1993-94 through 1997-98
Fiscal Net Local Public Total Assessed
Total
Current
1993-94 $6,402,351,673 $1,424,823 $1,188,354,269 $7,592,130,765
1994-95 6,531,634,010 1,508,279 1,262,253,577 7,795,395,866
1995-96 6,730,584,206 2,507,660 1,325,835,216 8,058,927,082
1996-97 7,030,558,981 2,410,303 1,173,562,851 8,206,532,1351997-98 7,617,870,091 2,652,384 1,265,100,178 8,885,622,653
(1) Net of homeowners’ exemp~on.
Source: California Municipal Statistics, Inc.
$7,310
7A857,854
7,735
n/a
County Tax Loss Reserve Account ("Teeter Plan"). Santa Clara County has elected to
follow the procedures of Sections 4701 et seq. of the California Revenue and Taxation Code,
known as the "Teeter Plan", as to general taxes entered and collected on the secured tax roll.
Under the Teeter Plan, the County remits tax revenues to the respective taxing agencies, without
regard to the amounts actually collected and without regard to any delinquencies. The County
also remits to the City any supplemental property taxes collected above the original amounts
levied as a result of resale or property improvements completed throughout the year. The
County has established a special fund known as the Tax Loss Reserve Fund for the purpose of
insuring the County against delinquencies. All collections as a result of delinquencies, including
interest and penalties, are retained by the County and are used to restore the balance in such
fund to its necessary balance, if required.
The effect of the Teeter Plan is that the Tax Revenues will be remitted to the City by the
County based on the amount of taxes actually levied, such that the City will receive 100% of the
amounts due to it whether or not any tax payments are delinquent. The City has participated
in the Teeter Plan since fiscal year 1993-94 and, although no assurance can be given, the City
expects that the County will continue to follow, and that the Citywill continue to participate
in, the Teeter Plan during the term of the Certificates.
Table No. 8
CITY OF PALO ALTO
Top Ten Local Secured Taxpayers
Fiscal Year 1997-98
Property
Leland S~nford University (1)
Space Systems & Loral, Inc.
Sun Microsystems Properties, Inc.
3400 Hillview Associates
Harbor Investment Partners
Embarcadero Place Associates
Digital Equipment Corporation
Hamilton Associates 400
Salvatore and Stella Giovannotto
University National Bank
Primary
Various Land Uses
Industrial
Office Building
Manufacturing
Office Building
Office Building
Office Building
Office Building
Office
Office Building
1997-98
Assessed
$1,396,746,283
175,641,319
51~331,827
44,679,681
42,000,000
41~11,422
38,645,373
35,091,794
22,451,988
$1,865,261,445
Percentage of
Net Assessed
(2)
18.34
2.31
0.67
0.59
0.55
0.54
0.51
0.46
0.29
24.49%
(1) Taxable property only.
(2) 1997-98 Local Secured Assessed Valuation: $7,617,870,091.
Source: California Municipal Statistics, Inc.
Rental Income
In fiscal year 1996-97, Rental Income contributed 13.8% of the City’s General Fund
revenues. The primary sources of rental income are charges to the City’s landfill site and
charges to City utilities for use of City land for substations. Rentals are based on an outside
appraisal performed at least every five years.
Outstanding General Fund Debt and Lease Obligations
The City currently has outstanding general fund debt and lease obligations described
below. The City has never defaulted on the payment of principal of or interest on any of its
indebtedness. The City has complied with all significant bond covenants relating to reserve and
sinking fund requirements, proofs of insurance, and budgeted revenues and maintenance costs.
General Lease Revenue Bonds: $1,800,000 Golf Course Corporation Lease Revenue Bonds, Series
1978. $725,000 of the bonds were outstanding as of June 30, 1997. The Bonds are being fully
defeased with Certificate proceeds.
Certificates of Participation: $7,670,000 1992 Certificates of Participation - Civic Center
Improvements (the "Civic Center COPs"). $5,675,000 of the Civic Center COPs were outstanding
as of June 30, 1997. The Civic Center COPs are due in annual serial installments through March
1, 2012. The COPs are being serviced by annually-budgeted transfers from the General Fund to
the Debt Service Fund.
Direct and Overlapping Debt
Contained within the City are overlapping local agencies providing public services which
have issued general obligation Certificates and other types of indebtedness. Direct and
overlapping bonded indebtedness is shown in the following table.
Table 9
CITY OF PALO ALTO
Statement of Direct and Overlapping Debt As of June 1,1998
1997-98 Assessed Valuation: $8,885,622,653
OVERLAPPING TAX AND ASSESSMENT DEBT:
Santa Clara County Flood Control and Water Conservation
District, Zone W-1
Palo Alto Unified School District
Mountain View-Los Altos Union High School District
Cupertino Union School District
Whisman School District
City of Palo Alto Special Assessment Bonds
Midpeninsula Regional Open Space Park District
TOTAL OVERLAPPING TAX AND ASSESSMENT DEBT
% Applicable
0.488%
89.784
1.345
0.008
5.286
100.
13.508
Debt 6/1/98
$ 72,712
110,672,248
507,469
4,473
1,197,899
7,570,000
4383346
$124,408,147
DIRECT AND OVERLAPPING GENERAL FUND OBLIGATION DEBT:
Santa Clara County General Fund Obligations 7.638%
Santa Clara County Board of Education Certificates of Participation 7.638
Foothill Community College District Certificates of Participation 22.533
Mountain View-Los Altos Union High School District
Certificates of Participa tion 1.345
Cupertino Union School District Certificates of Participation 0.008
City of Palo Alto General Fund Obligations 100.
Midpeninsula Regional Open Space Park District
Certificates of Participation 13.508
Santa Clara Valley Water District Certificates of Participation 7.638
El Camino Hospital District Authority 0.085
TOTAL GROSS DIRECT AND OVERLAPPING GENERAL FUND
OBLIGATION DEBT
Less: El Camino Hospital Authority (100% self-supporting)
TOTAL NET DIRECT AND OVERLAPPING GENERAL FUND
OBLIGATION DEBT
$40,405,784
1,578,011
8,644,729
76,262
1,190
7,026,000
6,293,404
10,149,756
2359
$74,177,495
2~359
$74,175,136
(1)
GROSS COMBINED TOTAL DEBT
NET COMBINED TOTAL DEBT
$198,585,642 (2)
$198,583,283
(1)
(2)
Excludes refunding certificates of partcipafion to be sold. Includes Terman School lease purchase
obligations.
Excludes tax and revenue anticipation notes, revenue, mortgage revenue and tax allocation bonds and
non-bonded capital lease obligations.
Ra~ios to Assessed Valuation:
Combined Direct Debt ($7,026,000) ........................................................0.08%
Total Overlapping Tax and Assessment Debt ..........................................1.40%
Gross Combined Total Debt ...................................................................2.23%
Net Combined Total Debt 2.23%
Source: California Municipal Statistics, Inc.
Investment of City Funds
As a chartered city, the City operates its pooled idle cash investments under the
prudent investor rule and in conformance with State law. The City’s Director of Administrative
Services, as treasurer, is charged with the responsibility of safeguarding the City’s assets,
receiving all payments due the City and investing all pooled idle cash. The investment function
is under the supervision of the Manager, Investments, Debt and Projects, who is accountable to
the Assistant Director of Administrative Services. The duties of Manager, Investments, Debt
and Projects includes managing the City’s portfolio of treasury investments, remaining
accountable for the City’s treasury balance, developing and monitoring the City’s cash flow
model and developing long-term revenue and financing strategies and forecasts. In all
circumstances, approval from the Director of Administrative Services is required before selling
securities from the City’s portfolio or before placing an investment with greater than five years’
term.
The Administrative Services Department submits a quarterly report to the City Council
which includes a detailed list of all securities, investments and moneys held by the City, a
report on compliance with the City’s Investment Policy, and an assessment of the City’s ability
to meet its expenditure requirements for the next six months.
The City’s Investment Policy requires review by the City Council annually, as part of the
budget process. The policy’s objective is to maintain the level of investment of all idle funds as
close to 100% as possible and to insure that sufficient funds are always available to meet
current expenditures, while investing in instruments that provide safety, liquidity and yield.
The City’s investment policy and State statutes authorize the City to invest in the
following:
Securities of the U.S. Government or its agencies, which includes callable and
multi-step-up securities, provided that (i) the potential call dates are known at
the time of purchase, (ii) the interest rates at which they "step-up" are known at
the time of purchase, and (ii) the entire face value of the security is redeemed at
the call date;
¯Certificates of deposit (or time deposits);
¯Banker’s acceptance notes;
o Short-term commercial paper (maturing in 180 or fewer days);
~Local Agency Investment Fund;
¯Short-term repurchase agreements;
¯City of Palo Alto bonds;
¯Money market deposit accounts; and
Mutual funds which are limited essentially to the above investments (and further
defined in the City’s Investment Policy).
State statutes require that all deposits be insured or collateralized. Depositories holding
public funds on deposit are required to maintain collateral in the form of a pool of government
securities with a market value of at least 10 percent in excess of the City’s deposit or 50% in
excess of the deposit as collateral in mortgage pools.
Recent events in Orange County and San Diego County prompted sev.eral changes in the
California Government Code regarding the inv, estment of public funds, primarily focusing onimproving accountability and safety. The City s Investment Policy for the 1997-98 fiscal year
which was adopted by the City Council on May 1, 1997, incorporated changes to reflect
compliance with the newly enacted State legislation.
According to the City Treasurer’s Quarterly Report for the second quarter of 1998, the
City has invested funds with a market value totaling approximately $~ million. As of
June 30, 1998, over ~% of the portfolio consisted of Federal agency notes and U.S.
Treasury securities. The average maturity of the portfolio was years. As of June 30,
1998, the market value of the City’s investment portfolio ($) was ~.% of the
investment portfolio’s book value ( $ ).
The following table summarizes certain information relating to the City’s investment
portfolio as of June 30, 1998:
Table 10
CITY OF PALO ALTO
Investment Portfolio Summary
(as of June 30,1998)
A summary of the Treasury Pool as of June .~, 1998 is shown below: [to be modified to
reflect actual composition of City’s investment portfolio]
Type of Investment Book Value Market Value (1)
Cash on Hand
U.S. Treasuries
Federal Government Agencies- Short Term
Federal Government Agencies- Long Term
Mortgage Backed Securities
Medium Term Notes
Collateralized Certificates of Deposits
Total
(1) Market Value as of June 30, 1998
Source: City of Palo Alto
TAX MATTERS
In the opinion of Jones Hall, A Professional Law Corporation, San Francisco, California,
Special Counsel, subject, however, to the qualifications set forth below, under existing law, the
portion of each Lease Payment designated as and comprising interest paid by the City and
received by the registered owners of the Certificates is excluded from gross income for federal
income tax purposes, and is not an item of tax preference for purposes of the federal alternative
minimum tax imposed on individuals and corporations, provided, however, that, for the
purpose of computing the alternative minimum tax imposed on corporations (as defined for
federal income tax purposes), such interest is taken into account in determining certain income
and earnings.
The opinions set forth in the preceding paragraph are subject to the condition that the
City comply with all requirements of the Internal Revenue Code of 1986 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 for the Lease Agreement.
In the further opinion of Special Counsel, interest payable with respect to the
Certificates is exempt from California personal income taxes.
Owners of the Certificates should also be aware that the ownership or disposition of, or
the accrual or receipt of interest payable with respect to, the Certificates may have federal or
state.tax consequences other than as described above. Special Counsel expresses no opinion
regarding any federal or state tax consequences.arising with respect to the Certificates other
than as expressly described above.
CERTAIN LEGAL MATFERS
The legal opinion of Jones Hall, A Professional Law Corporation, San Francisco,
California, Special Counsel, substantially in the form of Appendix D hereto, will be made
available to purchasers at the time of original delivery of the Certificates, and a copy thereof
will accompany each Certificate. Jones Hall is also acting as Disclosure Counsel to the City.
Certain legal matters will be passed upon for the Corporation and theCity by the City
Attorney.
Payment of the fees and expenses of Special Counsel and Disclosure Counsel is
contingent upon the execution and delivery of the Certificates.
LITIGATION
There is no litigation pending or, to the City’s knowledge, threatened in any way to
restrain or enjoin the execution or delivery of the Certificates, the Lease Agreement or the Trust
Agreement, to contest the validity of the Certificates, the Lease Agreement or the Trust
Agreement, or any proceeding of the City with respect thereto. In the opinio.~f the City and its
counsel, there are no lawsuits or claims pending against the City which will~n~erially affect the
City’s finances so as to impair its ability to pay Lease Payments when due.
FINANCIAL ADVISOR
Public Financial Management, Inc., San Francisco, California, served as financial advisor
to the City (the "Financial Advisor") with respect to execution and delivery of the Certificates.
The Financial Advisor assisted the City in the preparation of this Official Statement and in
other matters related to the planning, structuring, execution, and delivery of the Certificates.
The Financial Advisor has not independently verified any of the data contained herein or
conducted a detailed investigation of the affairs of the City to determine the accuracy or
completeness of this Official Statement. Because of its limited participation, the Financial
Advisor assumes no responsibility for the accuracy or completeness of any of the information
contained herein. The Financial Advisor will receive compensation from the City contingent
upon the sale and delivery of the Certificates. The Financial Advisor is an independent
financial advisory firm and is not engaged in the business of underwriting, trading or
distributing municipal securities or other public securities.
UNDERWRITING
The Certificates will be sold pursuant to competitive sale as set forth in the Official
Notice of Sale dated July 23, 1998. Bids will be received by a representative of the City at the
office of Jones Hall, 650 California Street, 18th Floor, San Francisco, California (Phone: 415-
391-5780; Fax: 415-391-5784) at no later than 9:00 a.m. Pacific Time on Tuesday, August 4,
1998 or such other date or time specified by the City through Munifacts News Service 24 hours
prior to the scheduled date and time of sale. The Certificates will be awarded to the bidder
whose bid represents the lowest true interest cost to the City, which will be determined as set
forth in the Official Notice of Sale.
Further information about the Certificates will be furnished upon request to the financial
advisor of the City: Public Financial Management, Inc., 505 Montgomery Street, Ste. 800, San
Francisco, California 94111, Telephone: 415-982-5544.
[To come]
MISCELLANEOUS
Insofar as any statements made in this Official Statement involve matters of opinion or
of estimates, whether or not expressly stated, they are set forth as such and not as
representations of fact. No representation is made that any of the statements will be realized.
Neither this Official Statement nor any statement which may have been made verbally or in
writing is to be construed as a contract with the owners of the Certificates.
During the initial offering period for the Certificates, copies of the Lease Agreement and
Trust Agreement may be obtained, upon written request, from the City. AK~er delivery of the
Certificates copies of such documents may be obtained from the Trustee.
-36--
The execution and delivery of this Official Statement have been duly authorized by the
City Council of the City.
CITY OF PALO ALTO
By:
City Manager
APPENDIX A
SUMMARY OF PRINCIPAL LEGAL DOCUMENTS
A-1
APPENDIX B
GENERAL INFORMATION ABOUT THE CITY OF PALO ALTO
The following information relating to the City of Palo Alto, Santa Clara County,
California (the "City") is supplied solely for purposes of information.
The City is located in northern Santa Clara County, approximately 35 miles south of the
City of San Francisco: Palo Alto was named by an early Spanish exploration party for the tall,
twin trunked redwood tree they camped beneath in 1769. The City has a current population of
approximately 59,900. It is part of the San Francisco Bay metropolitan area. Partly due to the
presence of Stanford University, which is adjacent to the City, Palo Alto is considered the
birthplace of the high technology industry that has made Santa Clara County famous
worldwide as Silicon Valley. The 630-acre Stanford Research Park includes the headquarters of
such prestigious and innovative high-tech leaders as Hewlett-Packard, Varian Associates,
Watkins-Johnson and Alza. Palo Alto is a major employment center, including Stanford
University, Stanford University Medical Center, Lockheed Martin Missiles and Space, Palo
Alto Medical Center, and Xerox. The number of jobs in Palo Alto in 1996-97 was
approximately 90,500.
The City lies within a Mediterranean type climate zone. Temperatures are mild, and
precipitation is concentrated in the winter months.
Munidpal Government
The City of Palo Alto was incorporated in 1894. Its first Charter was granted by the
State of California in 1909, and Palo Alto continues to operate as a charter city. Chartered
cities may establish their own laws and regulations as long as they do not conflict with those of
the State. Municipal operations are conducted under the Council-Manager form of government.
The nine Council Members are elected at large for four-year, staggered terms. The Mayor and
Vice Mayor are elected annually at the first Council meeting in January. The Mayor presides
over all Council meetings. The City Manager is responsible for the operation of all municipal
functions, except .the offices of the City Attorney, City Clerk, and City Auditor. These officials
are appointed by, and report directly to, the City Council.
The City provides a full range of municipal services and maintains municipal electric,
water, gas, wastewater collection, wastewater treatment, storm drainage, and refuse utilities for
the benefit of City residents and businesses. The City’s parks, recreation and cultural facilities
are numerous, and include over 36 parks totaling more than 4,000 acres, a golf course, four
community centers, a Cultural Center, a Community Theater, a Children’s Theater, and a Junior
Museum. The City offers a wide array of social, recreational and cultural events, including
human services for seniors and youth, subsidized child care, classes, concerts, exhibits, team
sports and special events. The City and the Palo Alto Unified School District have an
agreement to jointly fund the costs of maintaining and rehabilitating school athletic fields,
recognizing the significant recreational use of these facilities by the community. In addition, the
City offers a high level of library and public safety services. Palo Alto has six libraries and
seven fire stations providing services throughout the community.
Population
Population figures for the City, Santa Clara County and the State for the last five
years are shown in the following table.
B-1
CITY OF PALO ALTO
Population Estimates
Calendar Years 1993 through 1997
Calendar City of County State of
Year Palo Alto Santa Clara _California
1993 57,009 1,525,448 31,517,000
1994 57,278 1,540,974 31,661,000
1995 57,586 1,551,739 31,910,000
1996 58,800 1,588,282 32,223,000
1997 59,900 1,609,037 32,609,000
Source: State Department of Finance estimates (as of January 1)
City Employees Retirement Program
The City contributes to the California Public Employees Retirement System
("PERS"), an agent multiple-employer public employee retirement system that acts as a
common investment and administrative agent for participating public entities within the
state of California. All permanent City employees are eligible to participate in PERS.
Participants in the plan vest after 5 years of employment. Employees in the plan are
eligible to retire after ages 50 and receive annual retirement benefits calculated based on
age at retirement, years of membership service and the amount of earnings based on the
highest 12 consecutive months average. The City’s payroll for employees covered by
PERS for the year ended June 30, 1997 was $52,217,000 out of a total payroll of
$60,279,000.
Pension costs are recorded as expenditures when paid by monthly contributions
to PERS. At June 30, 1995, the market value of the net assets available for benefits was
$226,947,000. The City’s total overfunded "pension benefits obligation at June 30, 1995
was approximately $22.7 million.
City Insurance Program
The City is self-insured for its general liability, worker’s compensation, and
general and auto liability. The City has chosen to establish risk financing in the Internal
Service Fund where assets are.set aside for claim settlements associated with the above
risks of loss up to certain limits. Excess coverage is provided by the Authority for
California Cities Excess Liabilities ("ACCEL"), a joint powers authority whose purpose
is to develop and fund programs of excess insurance for its member cities. Insurance
coverage is as follows:
Genera! Liability .Worker s Compensation
Up to $1,000,000
Up to $500,000
$1,000,000 to $27,000,000
$500,000 to $2,000,000 Commercial
Amounts in excess of these limits are self-insured.
Property damage risks are covered on a blanket up to $186,579,000 by commercial
insurance purchased from independent third parties. All properties are insured at replacemen, t
cost. For the past five years, there have been no significant reductions in any of the City s
insurance coverage and no settlement amounts have exceeded commercial or ACCEL insurance
coverage.
B-2
Employment and Industry
The City attracts and retains entrepreneurs and skilled professional workers as
the result of a number of factors, including the local economy’s diversity of research and
development firms specializing in electronics, software, Internet, financial and
professional services; the City’s proximity to Stanford University and the synergies
between the University and the City’s research park; the high percentage of the
population with advanced college degrees; and various "quality of life" factors, including
the City’s public school system. The following table shows employment statistics for the
County for the past five years.
METROPOLITAN STATISTICAL AREA (SAN CLARA COUNTY)
Civilian Labor Force, Employment and Unemployment
(Annual Averages)
Civilian Labor Force/23
Employment
Unemployment
Unemployment Rate
Wage and Salarv Emplovmen~
Total All Indu’stries (3)°
Agriculture
Nonagricultural Industries
Mining/Construction
Manufacturing
Transportation, Public Utilities
Wholesale Trade
Retail Trade
Finance, Insurance, Real Estate
Services
Government
1997 (1)
856,200 860,600 867,400 896,600 939,100
797,900 806,900 824,600 864,300 915,800
58,300 53,700 42,800 32,300 23,300
6.8%6.2%4.9%3.6%2.5%
802,000 805,000 836A00 884,000 936,300
5,400 5,100 4,500 4,900 5,300
796,600 799,900 831,900 879,100 931,000
26,300 26,500 28,800 32,800 38,700
231,700 226,000 231,200 246,600 258,100
23,600 23,800 24,000 25,000 26,400
45,500 46,000 48,700 51,600 54,500
112,200 114,300 117,400 121,800 131,300
31,500 30,000 28,700 29,900 30,300
237,900 245,100 265,300 283,600 300,900
87,900 88,300 87,800 87,800 90,800
(1)Preliminary figures as of November, 1997
(2)Labor force data is by place of residence; includes self-employed individu~ unpaid familyworkers, household dome- stic workers, and workers on strike --
(3) Industry employment is by place of work; excludes self-employed individuals, unpaid family
workers, household domestic workers, and workers on strikeSource: S~a~e of California Employment Development Department
B-3
The following table lists the largest employers in the City.
CITY OF PALO ALTO
Major Employers
As of January, 1998
Name of
Company
Products/
Hewlett Packard Company
Space Systems/LORAL
Varian Associates
Palo Alto Medical Foundation
Alza Corporation
Roche Bioscience
VA Palo Alto Health Care
City of Palo Alto
Watkins Johnson
Palo Alto Unified School District
Electronics
Research/Development
Electronics
Health Care
Pharmaceutical Mfg.
Pharmaceutical Mfg.
Health Care
Municipal Government
Electronics
Education
No. of
Employee,s
5,000+
5,000+
1,500 to 2,000
1,500+
1,500+
1,000 to 1,500
1,000+
1,000+
750 to 1,000
750 to 1,000
Source: Palo Alto Chamber of Commerce
Personal Income
"Effective Buying Income" is defined as personal income less personal tax and
nontax payments, a number often referred to as "disposable" or "after-tax" income.
Personal income is the aggregate of wages and salaries, other labor-related income (such
as employer contributions to private pension funds), proprietor’s income, rental income
(which includes imputed rental income of owner-occupants of non-farm dwellings),
dividends paid by corporations, interest income from all sources, and transfer payments
(such as pensions and welfare assistance). Deducted from this total are personal taxes
(federal, state and local), nontax payments (fines, fees, penalties, etc.) and personal
contributions to social insurance. According to U.S. government definitions, the
resultant figure is commonly known as "disposable personal income."
Due to changes implemented in 1996 in the method of calculating Effective
Buying Income, prior years are not directly comparable with statistics for 1996. The
following table summarizes the total effective buying income for the City, the County of
Santa Clara, the State and the United States for the period 1992 through 1996.
EFFECTIVE BUYING INCOME
Calendar Years 1992 through 1996
1993
Total Effective
Buying Income
Median Household
~ Income
City of Palo Alto $ 1,743,968 $58,018
Santa Clara County 30,559,963 50,296
California 509,152,677 37,686
United States 3,916,947,023 33,178
1994 City of Palo Alto $ 1,806,372 $60,447
Santa Clara County 32,148,518 52,488
California 528,958,284 39,330
United States 4,169,724,052 35,056
1995 City of Palo Alto $ 1,878,804 $62,968
’ Santa Clara County 33,688,736 54,778California552,074,838 40,969United States 4,436,178,724 37,070
1996 (1)City of Palo Alto $ 1,725,347 $55,311
Santa Clara County 30,823,435 49,298California477,640,503 34,533United States 3,964,285,118 32,238
1997 (1)City of Palo Alto $ 1,836,496 $58,356
Santa CLara County 32,896,954 52,025
California 492,516,991 35,216
United States 4,161,512,384 33,482
(1) Not comparable with prior years. Effective Buying Income is now based on money income (which does
not take into account sale of property, taxes and social sec~urity paid, receipt of food stamps, etc.) versuspersonal income.
Source: Sales and Marketing Management, The Survey of Buying Power, Demographics USA
B-5
Building Activity
The table below shows the quantity and valuation of building permits issued in
the City during the past five fiscal years. The value of permits in fiscal year 1996-97
increased 48% from fiscal year 1992-93.
CITY OF PALO ALTO
Construction Activity
For Fiscal Years 1992-93 through 1996-97
(Valuations in Thousands)
Fiscal No. of No. of No. of
Permits Valuation Permits Valuation permits Valuation
No. of
Permits Valuatior~
1992-93
1993-94
1994-95
1995-96
1996-97
7 $2,244 388 $68,923 1,079 $33,065
23 2,509 377 61,492 1,081 37,284
20 2,169 364 42,302 1,032 35,563
10 1,256 400 71,015 1,194 58,262
2 41 375 94,444 1,095 57,617
65 $2,506
96 3,823
72 7,055
89 11,052
106 5,874
Source: City of Palo Alto
APPENDIX C
AUDITED FINANCIAL STATEMENTS OF THE CITY
FOR THE YEAR ENDED JUNE 30,1997
C-1
APPENDIX D
PROPOSED FORM OF SPECIAL COUNSEL OPINION
D-1
APPENDIX E
FORM OF CONTINUING DISCLOSURE CERTIFICATE
E-1
PIC 1
PALO ALTO PUBLIC IMPROVEMENT CORPORATION
RESOLUTION NO.
A RESOLUTION APPROVING, AUTHORIZING AND
DIRECTING EXECUTION OF CERTAIN LEASE REFINANCING
DOCUMENTS AND AUTHORIZING AND DIRECTING
CERTAIN ACTIONS WITH RESPECT THERETO
RESOLVED, by the Palo Alto Public Improvement Corporation (the "Corporation"):
WHEREAS, the City of Palo Alto Golf Course Corporation (the "Golf Course
Corporation") issued its $1,800,000 Lease Revenue Bonds, Series 1978 (the "1978 Bonds"), the
proceeds of which were used to construct improvements to the Palo Alto municipal golf course
(the "Golf Course"), a new clubhouse and pro shop and nedessary appurtenances therefor (the
"1978 Project"); and
WHEREAS, the 1978 Bonds were issued pursuant to Resolution No. 78-2, entitled "A
Resolution Authorizing the Issuance of Golf Course Lease Revenue Bonds of the City of Palo
Alto Golf Course Corporation and Providing for the Issuance of Series 1978 Thereot", adopted
by the Board of Directors of the Golf Course Corporation on February 14, 1978 (the "1978 Bond
Resolution"); and
WHEREAS, in order to secure the 1978 Bonds, the City of Palo Alto (the "City") and the
Golf Course Corporation entered into a Lease of Golf Course Facility (as amended), dated
October 3, 1977 (the "1977 Lease"), under which the Base Rent (as defined in the 1978 Lease) to
be paid by the City was calculated to be sufficient to pay debt service on the 1978 Bonds; and
WHEREAS, the City and the Golf Course Corporation have determined to refund the
1978 Bonds; and
WHEREAS, the City and the Corporation have determined to fund certain additional
improvements to the Golf Course, including upgrading five fairways and various traps, trees
and greens; constructing new storm drain facilities; replacing the existing irrigation system;
upgrading the driving range; and installing new cart paths (the "1998 Project") pursuant to that
certain Lease Agreement, dated as of June 1, 1998, between the Corporation and the City (the
"Lease Agreement"); and
WHEREAS, for the purpose of obtaining the moneys required to be deposited by it with
U.S. Bank Trust National Association (the "Trustee") to pay for financing the 1998 Project and
refinancing the 1978 Bonds, the Corporation proposes to assign and transfer certain of its rights
under the Lease Agreement to the Trustee, and in consideration of such assignment and the
execution of a Trust Agreement, dated as of August 1, 1998, among the City, the Corporation
and the Trustee (the "Trust Agreement"), the Trustee has agreed to execute and deliver
certificates of participation, in the principal amount of not to exceed $8,600,000, each
evidencing a fractional interest in the lease payments made by the City under the Lease
Agreement, to provide the moneys required herein to be deposited by the Corporation; and
WHEREAS, in connection therewith, it is in the public interest and for the public benefit
that the Corporation authorize and direct execution, of the Lease Agreement, the Trust
Agreement and certain other financing docttrnents in connection therewith; and
WHEREAS, the documents below specified have been filed with the Corporation, and
the members of the Corporation have reviewed said documents; and
NOW, THEREFORE, it is hereby ORDERED and DETERMINED, as follows:
Section 1. The below-enumerated documents be and are hereby approved, and the
President and the Vice President are hereby separately authorized and directed to execute said
documents, with such changes, insertions and omissions as may be approved by such official,
and the Secretary of the Corporation is hereby authorized and directed to attest to such
official’s signature:
(a) a Property Lease, relating to the Site, between the Corporation and the City;
(b) a Lease Agreement, relating to the lease of the Palo Alto Municipal Golf
Course (the "Site") and the 1998 Project, between the Corporation, as lessor, and the
City, as lessee;
(c) a Trust Agreement, by and among the Corporation, the City and the Trustee,
relating to the financing and the execution and delivery of certificates of participation
evidencing the proportionate interests of the owners thereof in lease payments to be
made by the City under the Lease Agreement (the "Certificates of Participation"); and
(d) an Assignment Agreement, by and between the Corporation and the Trustee,
pursuant to which the Corporation will assign certain of its rights under the Lease
Agreement, including its right to receive lease payments thereunder, to the Trustee.
Section 2. The Bylaws of the Corporation are hereby amended to add a new Section 5 to
the Bylaws, which will replace the Section 5 deleted by Resolution of the outgoing Board of
Directors of the Corporation. The new Section 5 shall read as follows:
Section 5. Officer~. The Mayor of the City shall serve as the President of the
Corporation. The Vice Mayor of the City shall serve as the Vice President of the Corporation.
The City Clerk of the City shall serve as the Secretary of the Corporation. The City Manager of
the City shall serve as the Executive Director of the Corporation, and Director of
Administrative Services of the City shall serve as the Treasurer of the Corporation.
Section 3. The President, Vice President, Executive Director, Treasurer, Secretary and
other officials of the Corporation are hereby authorized and directed to execute such other
agreements, documents and certificates as may be necessary to effect the purposes of this
resolution and the lease financing herein authorized.
-2-
1 hereby certify that the foregoing resolution was duly adopted at a meeting of the Palo
Alto Public Improvement Corporation held on the 13th day of July, 1998, by the following vote:
AYES, and h~ favor of:
NOES:
ABSENT:
Secretary
26005-47
PLEASE RECORD, AND
WHEN RECORDED, RET~TO:
William H. Madison, Esq.
Jones Hall, A Professional Law Corporation
650 California Street, 18th Floor
San Francisco, California 94108
JH:WHM:c¢o PROPOSED FINAL 07/01/98
ASSIGNMENT AGREEMENT
Dated as of August 1, 1998
by and between
PALO ALTO PUBLIC IMPROVEMENT CORPORATION
and
U.S. BANK TRUST NATIONAL ASSOCIATIOI~L
as trustee~ ~ ~
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT, made and entered into as of August 1, 1998, by
and between the PALO ALTO PUBLIC IMPROVEMENT CORPORATION, a joint exercise of
powers agency duly organized and existing under the laws of the State of California (the
"Corporation") and U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United Sates of America, as trustee
(the "Trustee"), under the Trust Agreement hereinafter defined;
WITNESSETH:
In the joint and mutual exercise of their powers, in consideration of the mutual
covenants herein contained, and for other valuable consideration, the parties hereto recite and
agree as follows:
Section 1. Recitals.
(a) The City of Palo Alto Golf Course Corporation (the "Golf Course Corporation")
issued its $1,800,000 Lease Revenue Bonds, Series 1978 (the "1978 Bonds"), the proceeds of
which were used to construct improvements to the Palo Alto municipal golf course (the "Golf
Course"), a new clubhouse and pro shop and necessary appurtenances therefor (the "1978
Project"); and
(b) The 1978 Bonds were issued pursuant to Resolution No. 78-2, entitled "A Resolution
Authorizing the Issuance of Golf Course Lease Revenue Bonds of the City of Palo Alto Golf
Course Corporation and Providing for the Issuance of Series 1978 ThereoF’, adopted by the
Board of Directors of the Golf Course Corporation on February 14, 1978 (the "1978 Bond
Resolution"); and
(c) In order to secure the 1978 Bonds, the City of Palo Alto (the "City") and the Golf
Course Corporation entered into a Lease of Golf Course Facility (as amended), dated October
3, 1977 (the "1977 Lease"), under which the Base Rent (as defined in the 1977 Lease) to be paid
by the City was calculated to be sufficient to pay debt service on the 1978 Bonds; and
(d) The City wishes to finance additional improvements to the Golf Course, including
upgrading five fairways and various traps, trees and greens; constructing new storm drain
facilities; replacing the existing irrigation system; upgrading the driving range; and installing new
cart paths (the "1998 Project"); and
(e) The City has determined to refinance the 1978 Bonds and finance the 1998 Project by
entering into a Lease Agreement, dated as of August 1, 1998, between the City and the
Corporation (the "Lease Agreement"); and
(f) The Corporation will establish a trust pursuant to a Trust Agreement, dated as of
August 1, 1998, among the City, the Corporation, and U.S. Bank Trust National Association, as
Trustee (the "Trust Agreement"), and direct the Trustee to execute and deliver Certificates of
Participation representing undivided fractional interests in the Lease Payments payable by the
City under the Lease Agreement (the "Certificates"); and
(g) Upon deliveryof the Lease Agreement, the Corporation is required to deliver to U.S.
Bank Trust National Association (the "Escrow Bank"), for deposit into the Escrow Fund
established under the Escrow Deposit and Trust Agreement, in addition to other moneys to be
deposited with the Trustee, moneys for the refunding and defeasance of the 1978 Bonds.
Concurrently with the delivery of this Agreement, the Trustee is executing and delivering the
Certificates on behalf of the City in an aggregate face amount of
Dollars ($ ). The proceeds of such sale are anticipated to be sufficient to permit the
Corporation to make the deposits required under the Lease Agreement and the Trust Agreement
and to permit the City to pay therewith the cost of constructing the 1998 Project and refunding
the 1978 Bonds.
(h) Each of the parties has authority to enter into this Assignment Agreement, and has
taken all actions necessary to authorize its respective officers to execute it.
Section 2. Assi~cnment.
The Corporation hereby transfers, assigns and sets over to the Trustee, for the benefit of
the Owners of Certificates executed and delivered under the Trust Agreement, all of the
Corporation’s rights under the Lease Agreement (excepting only the Corporation’s rights under
Sections 5.8, 5.10, 7.3 and 9.4 of the Lease Agreement), including without limitation (1) the right
to receive and collect all of the Lease Payments (including Prepayments thereof) from the City
under the Lease Agreement, and (2) the right to exercise such rights and remedies conferred on
the Corporation pursuant to the Lease Agreement as may be necessary or convenient (i) to
enforce payment of the Lease Payments, prepayments thereof and any other amounts required
to be deposited in the Lease Payment Fund established under the Trust Agreement, or (ii)
otherwise to protect the interests of the Certificate Owners in the event of a default by the City
under the Lease Agreement. All rights assigned by the Corporation shall be administered by the
Trustee in accordance with the provisions of the Trust Agreement and for the equal and
proportionate benefit of the Owners of Certificates.
Section 3. Termination of Rights.
The Trustee, as successor to the 1978 Fiscal Agent, hereby consents to the termination of
its rights under the 1977 Lease Agreement as assignee of the Corpt}ration t~6rsuant to the 1978
Bond Resolution.
Section 4. ~
The Trustee hereby accepts the assignments made herein for the purpose of securing,
equally and proportionately, the payments due pursuant to the Lease Agreement and Trust
Agreement to, and the rights under the Lease Agreement and Trust Agreement of, the Owners of
the Certificates delivered pursuant to the Trust Agreement, all subject to the provisions of the
Trust Agreement.
Section 5. ~
This Assignment Agreement shall confer no rights or impose no duties upon the Trustee
beyond those expressly provided in the Lease Agreement and Trust Agreement.
Section 6. ~
This Assignment Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same instrument.
-2-
IN WITNESS WHEREOF, the parties have executed this Assignment Agreement by their
officers thereuntO duly authorized as of the day and year first written above.
PALO ALTO PUBLIC IMPROVEMENT
CORPORATION
(S E A L)
Attest:
Executive Director
Secretary
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee, and as successor
to the 1978 Trustee
Authorized Officer
STATE OF CALIFORNIA
COUNTY OF
)
) ss
)
On before me,, Notary
Public, personally appeared , personally known to me or
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the,
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.