HomeMy WebLinkAboutStaff Report 259-07City of Palo Alto
City Manager’s Report
TO:HONORABLE CITY COUNCIL 11
FROM:CITY MANAGER DEPARTMENT:ADMINISTRATIVE
SERVICES
DATE:JUNE 4, 2007 CMR: 259:07
SUBJECT:APPROVAL OF A RESOLUTION AUTHORIZING THE ISSUANCE AND
SALE OF NOT TO EXCEED $1,500,000 OF CLEAN RENEWABLE
ENERGY TAX CREDIT BONDS AND RELATED ACTIONS TO
FINANCE PHOTOVOLTAIC SOLAR PANEL PROJECT COSTS
RECOMMENDATION:
Staff recommends that the City Council approve the attached resolution (Attachment A), to:
1)Authorize the issuance and sale of $1,500,000 of Clean Renewable Energy Bonds
(CREBs) to finance a City photovoltaic solar panel project; and
2)Authorize the City Manager or his designee to approve the Indenture of Trust,
Preliminary Placement Memorandum, and Placement Agreement; and authorize
official actions related thereto.
BACKGROUND
Clean Renewable Energy Bonds (CREBs) are interest-free financing instruments. In lieu of
receiving interest, lenders receive a tax credit against federal income taxes. They can be used for
wind, closed- and open-loop biomass, geothermal, solar energy, small irrigation power, landfill
gas, and other qualifying facilities. Congress authorized up to $800 million of these bonds with
the passage of the Energy Tax Incentives Act of 2005. The City applied for an allocation of
CREBs in late April 2006 (CMR 240:06), and in November 2006 received a $1.5 million CREBs
allocation from the Internal Revenue Service.
The CREBs allocation was granted to the City specifically for use on the Photovoltaic Solar
Panel Project (PE-05001). This project, already in progress, will place solar panels at the
Baylands Interpretive Center, Cubberley Community Center, and Municipal Service Center. Of
the $1.5 million received, $1.38 million will be spent on the project and $0.12 million is
anticipated to be spent on bond issuance expenses. The project expenses to date have been
funded by the Electric Fund’s public benefit monies.
On January 16, 2007, Council approved a "Resolution of the Council of the City of Palo Alto
Declaring Intention to Reimburse Photovoltaic Solar Panel Project Expenditures from Clean
Renewable Energy Bonds to be Issued by the City," enabling the proceeds of the CREBs to be
used to reimburse the Electric Fund for costs already incurred on the project.
CMR:259:07 Page 1 of 3
DISCUSSION
Staff is returning to Council for authorization to issue $1,500,000 in CREBs, to approve the
required financial documents, and to take all necessary actions related to the sale of the CREBs.
The CREBs must be issued on or before December 31, 2007, but it is expected they will be
issued by the end of July.
Due to the unique nature of these tax credit bonds, their small size, and the lack of familiarity
with CREBs in the investment community (CREBs are newly created and unique debt
obligations), they are not good candidates for a competitive bid scenario. Instead, they will be
marketed and sold via a placement agent, using a negotiated sales process. This is a departure
from the City’s practice of seeking competitive bids on its bond issues. The firm of Stone and
Youngberg (S&Y), which has in the past served as the City’s financial advisor on bond sales,
will act as the placement agent for the City and facilitate the sale of the CREBs on a private
placement basis. It has been the City’s standard practice to separate the advisor function from
the underwriting or bond placement function. However, due to the distinctive nature and small
amount of the CREBs issue, as well as S&Y’s considerable experience performing this function,
S&Y was selected as placement agent for this transaction.
Documents Submitted for Council Approval
The Council must approve the attached Resolution before the CREBs can be issued. By
approving this resolution, the City Council authorizes various City officials to sign and execute
documents related to the bond issuance. The Resolution also appoints Stone & Youngberg
placement agent to arrange for the private placement (or sale) of the CREBs, and approves the
following documents:
[]Indenture of Trust
Private Placement Memorandum
[]Placement Agreement
RESOURCE IMPACT
The principal on the CREBs would be repaid with public benefit funds that are required to be set
aside at 2.85% of revenue in the Electric Fund. The maturity data of the CREBs is set by the IRS
at time of sale, but is expected to be from 14 to 16 years, with level amortization required. The
CREBs program allows the Electric Fund to earn interest on the principal that would otherwise
be used in a "pay-as-you-go" manner for the project. Assuming a likely 15-year amortization
period and an annual payment amount of $100,000, with a 5% rate of return on the Electric
Fund, the Fund would earn $0.43 million in present value dollars. This value will be partially
offset by the costs of issuance estimated at $. 12 million.
POLICY IMPLICATIONS
This project is consistent with Council policies, especially with its goal to promote sustainable
energy, and with the Utilities Department’s Strategic Plan.
CMR:259:07 Page 2 of 3
TIME LINE
June 5, 2007
June/July, 2007
TBD
TBD
Print and distribute Placement Memorandum to potential purchasers
Market CREBs
Executive Private Placement Agreement
Pre-close and close bond issue. Deliver bond proceeds
ENVIRONMENTAL REVIEW
The adoption of the attached resolution and documents does not constitute a project under the
California Environmental Quality Act; therefore, no environmental assessment is required.
PREPARED BY:NAGEL~~
Senior Financial Analyst
JOSEPH SACCIO/
Deputy Director, Administr~rtive Services
DEPARTMENT HEAD APPROVAL: /"~~ ar ~~’~
Assistant Director, Administrative Services
CITY MANAGER APPROVAL:
EMILY HARRISON
Assistant City Manager
ATTACHMENTS
Attachment A:
Exhibit A
Exhibit B
Exhibit C
Resolution of the Council of the City of Palo Alto Authorizing the
Issuance and Sale of $1,500,000 of Electric Utility Clean Renewable
Energy Tax Credit Bonds, Approving Indenture of Trust and Preliminary
Placement Memorandum, and Authorizing Official Actions Related
Thereto
Indenture of Trust by and between the City of Palo Alto and U.S. Bank
National Association as Trustee
Placement Agreement
Preliminary Placement Memorandum
Attachment B: Estimated Project Costs and Sources and Uses of Funds
Attachment C: CMR 102:07
CMR:259:07 Page 3 of 3
ATTACHMENT A
RESOLUTION NO.
RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO
AUTHORIZING THE ISSUANCE AND SALE OF $1,500,000 OF
ELECTRIC UTILITY CLEAN RENEWABLE ENERGY TAX CREDIT
BONDS, 2007 SERIES A, APPROVING INDENTURE OF TRUST AND
PRIVATE PLACEMENT MEMORANDUM, AND AUTHORIZING OFFICIAL
ACTIONS RELATED THERETO
The Council
follows:
of the City of Palo Alto does RESOLVE as
SECTION i. Authority. The City is a chartered city and
municipal corporation organized and existing under the
constitution and laws of the State of California, and is duly
empowered as a chartered city to exercise the powers reserved to
it under said constitution with respect to municipal affairs.
SECTION 2. Utility Systems. As an exercise of such powers,
the City has heretofore adopted Chapter 12.28 commencing with
Section 12.28.010) of the Palo Alto Municipal Code (the "Law")
which authorizes the City, when the public interest and necessity
require, by resolution, ~o issue revenue bonds for the purpose of
financing or refinancing the acquisition, construction, extension
or improvement of any utility enterprise system or facility of
the City.
SECTION 3. Clean Renewable Energy Project. The City has
applied for and received allocation under the Clean Renewable
Energy Bond ("CREB") program of the United States Department of
Energy for the cost of acquiring and installing approximately 250
kilowatts (kW) of solar photovoltaic (PV) panels at various City
facilities, consisting of five different kinds of solar panels at
three different locations: i) the Lucy Evans Baylands
Interpretive Center; 2) the Cubberley Community Center; and 3)
the City’s Municipal Services Center (together, the "Project").
SECTION 4. Bonds Proposed. The City, after due
investigation and deliberation, has determined that it is in the
public interest of the City at this time to authorize the
issuance of its revenue bonds in the maximum principal amount of
$1,500,000 (the "Bonds") under the Law, to (i) finance the
Project, and (ii) pay certain costs of issuing the Bonds.
SECTION 5. Placement Agent. Stone & Youngberg LLC (the
"Placement Agent") is hereby appointed to act as placement agent
for the Bonds, and is hereby directed to arrange for the private
placement of the Bonds, in accordance with Section 6 of this
Resolution.
070517jb 0130122
SECTION 6. Authorizatlon of Sale. The City hereby approves
the sale of the Bonds by negotiation with institutions or
individuals (the "Purchasers") identified by the Placement Agent
and approved by the Authorized Official (as defined in Section
7), pursuant to the Placement Agreement, in substantially the
form on file with the City Clerk, together with any changes
therein or additions thereto deemed advisable by the Authorized
Official, whose execution thereof shall be conclusive evidence of
such approval, provided that the principal amount of the Bonds
does not exceed $1,500,000. The Authorized Official is hereby
authorized and directed for and in the name and on behalf of the
City to execute the final form of the Placement Agreement. The
Bonds shall be substant±ally as described in the form of
Placement Memorandum on file with the City Clerk and hereinafter
approved. The term of the Bonds and the tax credit rate for the
Bonds shall be determined by reference to the Federal
Government’s website on CREBs
(https://www.treasurydirect.gov/SZ/SPESRates?type:CREBS).
SECTION 7. Indenture of Trust. The Bonds shall be issued
pursuant to an Indenture of Trust dated as of June i, 2007 (the
"Indenture"), by and between the City and U.S. Bank Trust
National Association, as trustee (the "Trustee"). The Indenture,
in substantially the form on file with the City Clerk, is hereby
approved, and the Mayor, the City Manager and the Director of
Administrative Services (each, an ’~Authorized Official") is
hereby authorized to execute the Indenture when finalized,
following the sale of the Bonds, and the City Clerk is hereby
authorized and directed to attest said Authorized Official’s
signature.
SECTION 8. Private Placement Memorandum. The preliminary
Private Placement Memorandum describing the Bonds, in
substantially the form submitted to the Council, is hereby
approved, subject to whatever additions, deletions and
corrections may be deemed advisable by the Authorized Official
upon consultation with Placement Agent, Private Placement Agent’s
Counsel, Bond Counsel and the City Attorney. The Authorized
Official is hereby separately authorized and directed, upon
consultation with the Placement Agent and Private Placement
Agent’s Counsel, Bond Counsel and the City Attorney, to approve
such changes to the preliminary Private Placement Memorandum as
shall be necessary to cause such preliminary Private Placement
Memorandum to be brought into the form of a final Private
Placement Memorandum, and the Authorized Official is hereby
authorized and directed to execute and deliver copies of the
final Private Placement Memorandum to the purchaser of the Bonds,
at the time of delivery of the Bonds.
070517 jb 0130122
-2-
The Council hereby approves, and hereby deems nearly final
within the meaning of Rule 15c2-12 of the Securities Exchange Act
of 1934 (the "Rule"), the preliminary Private Placement
Memorandum.The Authorized Official is hereby authorized to
execute an appropriate certificate stating the Council’s
determination that the preliminary Private Placement Memorandum
has been deemed nearly final within the meaning of the Rule.
SECTION 9. Distribution of Private Placement Memorandum.
The Placement Agent is hereby authorized and directed to cause
copies of the preliminary Private Placement Memorandum tobe
printed and mailed to prospective bidders for the Bonds.
SECTION I0.Preparation of Bonds.The Director of
Administrative Services is directed to cause the Bonds to be
prepared in accordance with the provisions of the Indenture of
Trust approved in Section 7 and to cause their execution by the
proper officers of the City and authentication by the Trustee and
ro cause the Bonds to be delivered when so executed and
authenticated to or on behalf of the purchaser or purchasers
thereof, upon the receipt of the purchase price therefore.
SECTION ii. Execution of Documents. The Mayor, Vice Mayor,
the City Manager or his designee, City Clerk, City Attorney and
any and all other officers of the City are each authorized and
directed in the name and on behalf of the City to make any and
all certificates, requisitions, agreements, notices, consents,
warrants and other documents, which they or any of them might
deem necessary or appropriate in order to consummate the lawful
issuance, sale and delivery of the Bonds to the original
purchaser thereof.
//
//
//
//
//
//
//
//
070517jb 0130122
-3-
SECTION 12. Effective Date. This resolution shall be
effective upon the date of its adoption.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:APPROVED:
City Clerk
APPROVED AS TO FORM:
Senior Assistant City Attorney
JONES HALL,
A Professional Law Corporation
Will~am H. Madison
Bond Counsel
Mayor
City Manager
Director of Public Works
Director of
Services
Administrative
070517 jb 0130122
-4-
EXHIBIT A
INDENTURE OF TRUST
by and between the
CITY OF PALO ALTO
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee
Dated as of June 1, 2007
Relating to
City of Palo Alto
$1,500,000
Electric Utility Clean Renewable Energy Tax Credit Bonds,
2007 Series A
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; AUTHORIZATION AND PURPOSE OF BONDS;
EQUAL SECURITY
SECTION 1.01. Definitions ................................................................................................................................3
SECTION 1.02. Rules of Construction ............................................................................................................11
SECTION 1.03. Authorization and Purpose of Series A Bonds ..................................................................12
SECTION 1.04. Equal Security ........................................................................................................................12
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.
ARTICLE II
ISSUANCE OF SERIES A BONDS
Terms of Series A Bonds .......................................................................................................13
Redemption of Series A Bonds ............................................................................................13
Form of Series A Bonds ........................................................................................................14
Execution of Series A Bonds ................................................................................................14
Transfer of Series A Bonds ...................................................................................................14
Exchange of Series A Bonds .................................................................................................14
Temporary Bonds ..................................................................................................................15
Bond Registration Books ......................................................................................................15
Bonds Mutilated, Lost, Destroyed or Stolen ......................................................................15
Book Entry System ................................................................................................................15
ARTICLE III
ISSUE OF SERIES A BONDS; PARITY OBLIGATIONS
SECTION 3.01. Issuance of Series A Bonds ...................................................................................................18
SECTION 3.02. Application of Proceeds of Sale of Series A Bonds ...........................................................18
SECTION 3.03. [Reserved] ...............................................................................................................................18
SECTION 3.04. 2007 CREB Project Fund .......................................................................................................18
SECTION 3.05. Cost of Issuance Fund ...........................................................................................................19
SECTION 3.06. Issuance and Incurrence of Parity Obligations ..................................................................19
ARTICLE IV
PLEDGE OF NET REVENUES; FUNDS AND ACCOUNTS
SECTION 4.01. Pledge of Net Revenues, Revenue Fund ............................................................................21
SECTION 4.02. Receipt and Deposit of Revenues ........................................................................................21
SECTION 4.03. Establishment of Funds and Accounts and Allocation of Revenues Thereto ...............21
SECTION 4.04. Surplus ....................................................................................................................................22
SECTION 4.05. Investments ............................................................................................................................22
SECTION 4.06. Valuation; Investments .........................................................................................................23
ARTICLE V
COVENANTS OF THE CITY; SPECIAL TAX COVENANTS
SECTION 5.01. Punctual Payment; Compliance With Documents ............................................................24
SECTION 5.02. Against Encumbrances .........................................................................................................24
SECTION 5.03. Discharge of Claims ..............................................................................................................24
SECTION 5.04. [Reserved] ...............................................................................................................................24
SECTION 5.05. Maintenance and Operation of Electric System in Efficient and Economical
Manner ....................................................................................................................................24
SECTION 5.06. Against Sale ............................................................................................................................24
-i-
SECTION 5.07.
SECTION 5.08.
SECTION 5.09.
SECTION 5.10.
SECTION 5.11.
SECTION 5.12.
SECTION 5.13.
SECTION 5.14.
SECTION 5.15.
SECTION 5.16.
Insurance ................................................................................................................................25
Records and Accounts ..........................................................................................................25
Protection of Security and Rights of Owners .....................................................................25
Against Competitive Facilities .............................................................................................25
Payment of Taxes, Etc ...........................................................................................................26
Rates and Charges .................................................................................................................26
No Priority for Additional Obligations ..............................................................................27
CREB Covenants ....................................................................................................................27
Further Assurances ...............................................................................................................28
Continuing Disclosure ..........................................................................................................28
SECTION 6.01.
SECTION 6.02.
SECTION 6.03.
SECTION 6.04.
SECTION 6.05.
SECTION 6.06.
SECTION 6.07.
SECTION 6.08.
SECTION 6.09.
SECTION 6.10.
SECTION 6.11.
SECTION 6.12.
ARTICLE VI
THE TRUSTEE
Appointment of Trustee .......................................................................................................29
Acceptance of Trusts .............................................................................................................29
Fees, Charges and Expenses of Trustee ..............................................................................31
Notice to Bond Owners of Default ......................................................................................31
Intervention by Trustee ........................................................................................................32
Removal of Trustee ...............................................................................................................32
Resignation by Trustee .........................................................................................................32
Appointment of Successor Trustee .....................................................................................32
Merger or Consolidation ......................................................................................................32
Concerning any Successor Trustee ......................................................................................33
Appointment of Co-Trustee .................................................................................................33
Indemnification; Limited Liability of Trustee ...................................................................34
ARTICLE VII
MODIFICATION AND AMENDMENT OF THE INDENTURE
SECTION 7.01. Amendment by Consent of Bond Owners .........................................................................35
SECTION 7.02. Amendment Without Consent of Bondholders .................................................................35
SECTION 7.03. Disqualified Bonds ................................................................................................................35
SECTION 7.04. Endorsement or Replacement of Bonds After Amendment ............................................36
SECTION 7.05. Amendment by Mutual Consent .........................................................................................36
SECTION 8.01.
SECTION 8.02.
SECTION 8.03.
SECTION 8.04.
SECTION 8.05.
SECTION 8.06.
SECTION 8.07.
SECTION 8.08.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS
Events of Default and Acceleration of Maturities .............................................................37
Application of Funds Upon Acceleration ..........................................................................38
Other Remedies .....................................................................................................................38
Power of Trustee to Control Proceedings ..........................................................................39
Appointment of Receivers ....................................................................................................39
Non-Waiver ............................................................................................................................39
Rights and Remedies of Bond Owners ...............................................................................40
Termination of Proceedings .................................................................................................40
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Limited Liability of City .......................................................................................................41
SECTION 9.02. Benefits of Indenture Limited to Parties .............................................................................41
SECTION 9.03. Discharge of Indenture .........................................................................................................41
SECTION 9.04. Successor Is Deemed Included in All References to Predecessor ...................................42
SECTION 9.05. Content of Certificates ..........................................................................................................42
- ii -
SECTION 9.06. Execution of Documents by Bond Owners ........................................................................42
SECTION 9.07. Waiver of Personal Liability ................................................................................................43
SECTION 9.08. Partial Invalidity ....................................................................................................................43
SECTION 9.09. Destruction of Cancelled Bonds ..........................................................................................43
SECTION 9.10. Funds and Accounts .............................................................................................................44
SECTION 9.11. Notices ....................................................................................................................................44
SECTION 9.12. Unclaimed Moneys ...............................................................................................................44
EXHIBIT A: FORM OF SERIES A BOND
oo,- 111 -
INDENTURE OF TRUST
THIS INDENTURE OF TRUST, dated as of June 1, 2007, by and between the CITY OF
PALO ALTO, a chartered city and municipal corporation organized and existing under the
constitution and laws of the State of California (the "City"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association organized and existing under the laws of the
United States of America, with a corporate trust office in San Francisco, California, and being
qualified to accept and administer the trusts hereby created, as trustee (the "Trustee");
WITNESSETH:
WHEREAS, the City is authorized pursuant to the provisions of Chapter 12.28
(commencing with Section 12.28.010) of the Palo Alto Municipal Code, enacted pursuant to the
charter of the City, to issue its revenue bonds for the purposes of financing improvements to
the Electric System of the City;
WHEREAS, the City has applied for and received allocation from the Internal Revenue
Service under the Clean Renewable Energy Bond ("CREB’) program of the United States
Department of Energy for the cost of acquiring and installing approximately 250 kilowatts (kW)
of solar photovoltaic (PV) panels at various City facilities, and consists of five different kinds of
solar panels at three different locations: 1) the Lucy Evans Baylands Interpretive Center; 2) the
Cubberley Community Center; and 3) the City’s Municipal Services Center (together, the "2007
CREB Project");
WHEREAS, the City, after due investigation and deliberation, has determined that it is
in the interests of the City at this time to provide for the issuance of its revenue bonds under
this Indenture for the purpose of financing the Project, and to that end the City Council has
heretofore adopted its Resolution No. , approving and authorizing the issuance of its
City of Palo Alto Electric Utility Clean Renewable Energy Tax Credit Bonds, 2007 Series A (the
"Series A Bonds") for such purposes;
WHEREAS, in order to provide for the authentication and delivery of the Bonds, to
establish and declare the terms and conditions upon which the Bonds are to be issued and
secured and to secure the payment of the principal thereof, the Council has authorized the
execution and delivery of this Indenture;
WHEREAS, all of the Bonds will be secured by a pledge of the Net Revenues, as defined
herein, and certain other moneys and securities held by the City and the Trustee hereunder;
and
WHEREAS, all acts and proceedings required by law necessary to make the Series A
Bonds, when executed by the City, authenticated and delivered by the Trustee and duly issued,
the valid, binding and legal special obligations of the City, and to constitute this Indenture a
valid and binding agreement for the uses and purposes herein set forth, in accordance with its
terms, have been done and taken; and the execution and delivery of this Indenture have been in
all respects duly authorized;
-1-
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the
payment of the principal of all Bonds at any time issued and Outstanding under this Indenture,
according to their tenor, and to secure the performance and observance of all the covenants and
conditions therein and herein set forth, and to declare the terms and conditions upon and
subject to which the Bonds are to be issued and received, and in consideration of the premises
and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds
by the Owners thereof, and for other valuable considerations, the receipt whereof is hereby
acknowledged, the City does hereby covenant and agree with the Trustee, for the benefit of the
respective Owners from time to time of the Bonds, as follows:
-2-
ARTICLE I
DEFINITIONS; AUTHORIZATION AND PURPOSE OF BONDS;
EQUAL SECURITY
SECTION 1.01. Definitions. Unless the context otherwise requires, the terms defined
in this Section shall for all purposes of this Indenture and of the Series A Bonds and of any
certificate, opinion, request or other documents herein mentioned have the meanings herein
specified.
"Accreted Value" means, with respect to any Capital Appreciation Indebtedness, the
principal amount thereof plus the interest accrued thereon, compounded at the interest rate
thereon on each date as specified therein.
"Authorized Investments" means any of the following, but only to the extent that the
same are acquired at Fair Market Value, which at the time of investment are legal investments
under the laws of the State of California and permitted under the City’s investment policy for
the moneys proposed to be invested therein:
(a) direct obligations of (including obligations issued or held in book entry
form on the books of) the Department of the Treasury of the United States of America;
(b) obligations of any of the following federal agencies which obligations
represent full faith and credit of the United States of America, including: (i) Export-
Import Bank; (ii) Farm Credit System Financial Assistance Corporation, (iii) Farmers
Home Administration; (iv) General Services Administration; (v) U.S. Maritime
Administration; (vi) Small Business Administration; (vii) Government National
Mortgage Association (GNMA); (viii) U.S. Department of Housing & Urban
Development (PHA’s); (ix) Federal Housing Administration and (x) Federal Financing
Bank;
(c) senior debt obligations rated "Aaa" by Moody’s and "AAA" by S&P
issued by the Federal National Mortgage Association or the Federal Home Loan
Mortgage Corporation;
(d) U.S. dollar denominated deposit accounts, federal funds and banker’s
acceptances with domestic commercial banks (including the Trustee and its affiliates)
which have a rating on their short term certificates of deposit on the date of purchase of
"P-I" by Moody’s and "A-I" or "A-l+" by S&P and maturing no more than 360 days after
the date of purchase, provided that ratings on holding companies are not considered as
the rating of the bank;
(e) commercial paper which is rated at the time of purchase in the single
highest classification, "P-I" by Moody’s and "A-l+" by S&P, and which matures not
more than 270 days after the date of purchase;
-3-
(f) investments in a money market fund rated "AAAm" or "AAAm-G" or
better by S&P, including any such money market fund from which the Trustee or its
affiliates receive fees for services to such fund;
(g) pre-refunded municipal obligations defined as follows: Any bonds or
other obligations of any state of the United States of America or of any agency,
instrumentality or local governmental unit of any such state which are not callable at
the option of the obligor prior to maturity or as to which irrevocable instructions have
been given by the obligor to call on the date specified in the notice; and (i) which are
rated, based upon an irrevocable escrow account or fund (the "escrow"), in the highest
rating category of Moody’s and S&P or any successors thereto; or (ii)(A) which are fully
secured as to principal and interest and redemption premium, if any, by an escrow
consisting only of cash or obligations described in paragraph (a) above, which escrow
may be applied only to the payment of such principal of and interest and redemption
premium, if any, on such bonds or other obligations on the maturity date or dates
thereof or the specified redemption date or dates pursuant to such irrevocable
instructions, as appropriate, and (B) which escrow is sufficient, as verified by a
nationally recognized independent certified public accountant, to pay principal of and
interest and redemption premium, if any, on the bonds or other obligations described in
this paragraph on the maturity date or dates thereof or on the redemption date or dates
specified in the irrevocable instructions referred to above, as appropriate;
(h) general obligations of states with a rating of at least "A2/A" or higher by
both Moody’s and S&P;
i) the Local Agency Investment Fund maintained by the State of California,
to the extent any investments of moneys held by the Trustee may be made and
withdrawn directly by, and in the name of, the Trustee; and
the California Asset Management Program (CAMP).
"Authorized Official" means the City Manager, Director of Administrative Services or
Assistant City Manager of the City, or any other officer of the City duly authorized by the
Council for that purpose.
"Bond Counsel" means any attorney at law or firm of attorneys, of nationally
recognized standing in matters pertaining to the federal tax exemption of interest on bonds
issued by states and political subdivisions, and duly admitted to practice law before the highest
court of any state of the United States of America.
"Bond Law" means the charter of the City and the provisions of Chapter 12.28
(commencing with Section 12.28.010), of the Palo Alto Municipal Code, all as in effect on the
Closing Date.
"Bond Registration Books" means the books maintained by the Trustee pursuant to
Section 2.08 for the registration and transfer of ownership of the Series A Bonds.
"Bond Year" means the twelve-month period beginning on the anniversary of the
Closing Date in each year and ending on the day prior to the anniversary date of the Closing
-4-
Date in the following year except that (i) the first Bond Year shall begin on the Closing Date,
and (ii) the last Bond Year may end on a redemption date prior to maturity of the Series A
Bonds.
"Business Day" means any day other than a Saturday, Sunday or a day on which the
Trustee or the Insurance Trustee is authorized by law to remain closed.
"Capital Appreciation Indebtedness" means Parity Obligations on which interest is
compounded and paid less frequently than annually.
"Certificate of the City" means a certificate in writing signed by the City Manager,
Director of Administrative Services or Assistant City Manager of the City, or by any other
officer of the City duly authorized by the Council for that purpose.
"Charges" means prescribed under the Bond Law or any other law of the State by the
Council for the electric energy or the services and facilities of the Electric System.
"Cit~" means the City of Palo Alto, a chartered city and municipal corporation
organized and existing under the Constitution and laws of the State, and any successor thereto.
"Closing Date" means the date upon which there is an exchange of the Series A Bonds
for the proceeds representing the purchase of such Series by the Original Purchasers thereof.
"Cost of Issuance Fund" means the Fund by that name established pursuant to Section
3.05.
"Costs of Issuance" means all expenses incurred in connection with the authorization,
issuance, sale and delivery of the Series A Bonds, including but not limited to compensation,
fees and expenses of the City and the Trustee and their respective counsel, compensation to any
financial consultants and underwriters, legal fees and expenses, tiling costs, costs of
preparation and reproduction of documents and costs of printing.
"Council" means the Council of the City or any other legislative body of the City
hereafter provided for pursuant to law.
"Credit Allowance Date" means: (i) September 15, December 15, March 15 and June 15
of each year while the Series A Bonds are outstanding, commencing September 15, 2007; and
(ii) the final maturity date of the Series A Bonds.
"Credit Support Instrument" means [TO COME].
"Debt Service" means, all amounts becoming due and payable on all Series A Bonds
and Parity Obligations provided, however, that for the purposes of computing Debt Service:
(a) if the Parity Obligations are Variable Rate Indebtedness, the interest rate
thereon for periods when the actual interest rate cannot yet be determined shall be
assumed to be equal to the rate that is ninety percent (90%) of the average RBI during
the twelve (12) calendar month period immediately preceding the date in which the
calculation is made (the "assumed RBI-based rate");
-5-
(b) principal payments on Series A Bonds and principal and interest
payments on Parity Obligations shall be excluded to the extent such payments are to be
paid from amounts on deposit with the Trustee or another fiduciary in escrow
specifically therefor and to the extent that such interest payments are to be paid from
the proceeds of Bonds or Parity Obligations held by the Trustee or another fiduciary as
capitalized interest;
(c) in determining the principal amount due, payment shall (unless a
different subsection of this definition applies for purposes of determining principal
maturities or amortization) be assumed to be made in accordance with any amortization
schedule established for such debt, including any mandatory sinking fund payments or
any scheduled redemption or payment thereof on the basis of Accreted Value, and for
such purpose, the redemption payment or payment of Accreted Value shall be deemed a
principal payment and interest that is compounded and paid as Accreted Value shall be
deemed due on the scheduled redemption or payment date of such Capital
Appreciation Indebtedness;
(d) (i) notwithstanding subsection (a) above, with respect to any Variable
Rate Indebtedness, if (A) the interest rate on such Variable Rate Indebtedness, plus (B)
the payments received and made by the City under a related interest rate swap
agreement with respect to such Variable Rate Indebtedness, are expected to produce a
synthetic fixed rate to be paid by the City (e.g., an interest rate swap agreement under
which the City pays a fixed rate and receives a variable rate which is expected to equal
or approximate the rate of interest on such Variable Rate Indebtedness), the Variable
Rate Indebtedness, as the case may be, shall be treated as bearing such synthetic fixed
rate for the duration of the synthetic fixed rate; and (ii) with respect to any fixed interest
rate Parity Obligations, if (A) the interest rate on such fixed rate Parity Obligations, plus
(B) the payments received and made by the City under an interest rate swap agreement
with respect to such fixed rate Parity Obligations, are expected to produce a synthetic
variable rate to be paid by the City (e.g., an interest rate swap agreement under which
the City pays a variable rate and receives a fixed rate which is expected to equal the rate
of interest on such fixed interest rate Parity Obligations), the fixed interest rate Parity
Obligations, shall be treated as Variable Rate Indebtedness for the duration of the
synthetic variable rate calculated as provided in (a) above; and
(e) if any Parity Obligations include an option or an obligation to tender all
or a portion of such Bonds or Parity Obligations to the City, the Trustee or another
fiduciary or agent and require that such Bonds or Parity Obligations or portion thereof
be purchased if properly presented, then for purposes of determining the amounts of
principal and interest due, the options or obligations to tender shall be treated as a
principal maturity occurring on the first date on which holders or owners thereof may
or are required to tender, except that any such option or obligation to tender shall be
ignored and not treated as a principal maturity, if (1) such Bonds or Parity Obligations
are rated in one of the two highest long-term Rating Categories by Moody’s and by
Standard & Poor’s or such Bonds or Parity Obligations are rated in the highest short-
term note or commercial paper Rating Categories by Moody’s and by Standard & Poor’s
and (2) funds for the purchase price are to be provided by a letter of credit or standby
bond purchase agreement or other liquidity facility.
-6-
"Debt Service Fund" means the fund by that name established and held by the Trustee
pursuant to Section 4.03.
"Defeasance Obligations" means (a) cash, (b) non-callable direct obligations of the
United States of America ("Treasuries"), (c) evidences of ownership of proportionate interests in
future interest and principal payments on Treasuries held by a bank or trust company as
custodian, under which the owner of the investment is the real party in interest and has the
right to proceed directly and individually against the obligor and the underlying Treasuries are
not available to any person claiming through the custodian or to whom the custodian may be
obligated or (d) pre-refunded municipal obligations rated "AAA" and "Aaa" by S&P and
Moody’s, respectively (or any combination thereof).
"Depository" means (a) initially, DTC, and (b) any other Securities Depositories acting
as Depository pursuant to Section 2.10.
"Depository System Participant" means any participant in the Depository’s book-entry
system.
"DTC" means The Depository Trust Company, New York, New York, and its successors
and assigns.
"Electric System" means the electrical system of the City, comprising all facilities for the
generation, transmission and distribution of electric energy.
"Event of Default" means any of the events described in Section 8.01.
"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 Tax 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 certificateof deposit that is
acquired in accordance with applicable regulations under the Tax 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 Tax 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.
"Federal Securities" means any of the following which at the time of investment are
legal investments under the laws of the State for~the moneys proposed to be invested therein:
(a) direct general obligations of the United States of America (including obligations
issued or held in book entry form on the books of the Department of the Treasury of the United
States of America); and
-7-
(b) obligations of any department, agency or instrumentality of the United States of
America the timely payment of principal of and interest on which are unconditionally and fully
guaranteed by the United States of America.
"Fiscal Year" means the period commencing on July I of each year and terminating on
the next succeeding June 30.
"Gross Revenues" means all revenues, which include all charges received for and all
other income and receipts derived by the City from the operation of the Electric System or
arising from the Electric System received by the City from the services, facilities, energy and
distribution of electric energy by the City, including income from investments, but excepting
therefrom (a) all reimbursement charges and deposits to secure service and (b) any charges
collected by any person to amortize, or otherwise relating to the payment of, the uneconomic
portion of costs associated with assets and obligations ("stranded costs") of the Electric System
or of any joint powers agency in which the City participates which the City has dedicated to the
payment of obligations other than the Series A Bonds or any Parity Obligations then
outstanding, the payments of which obligations will be applied to or pledged to or otherwise
set aside for the reduction or retirement of outstanding obligations of the City or any joint
powers agency in which the City participates relating to such "stranded costs" of the City or of
any such joint powers agency to the extent such "stranded costs" are attributable to, or the
responsibility of, the City.
"Improvement" means any addition, extension, improvement, equipment, machinery or
other facilities to or for the Electric System.
"Indenture" means this Indenture of Trust, as originally executed or as it may from time
to time be supplemented, modified or amended by any Supplemental Indenture pursuant to
the provisions hereof.
"Independent Certified Public Accountant" means any certified public accountant or
firm of such accountants appointed and paid by the City, and who, or each of whom:
(a)is in fact independent and not under domination of the City;
(b)does not have any substantial identity of interest, direct or indirect, with
the City; and
(c) is not and no member of which is connected with the City as an officer or
employee of the City, but who may be regularly retained to make annual or other audits
of the books of or reports to the City.
"Independent Consultant" means any financial or engineering consultant (including
without limitation any Independent Certified Public Accountant) with an established
reputation in the field of municipal finance, or firm of such consultants appointed and paid by
the City, and who, or each of whom:
(a)is in fact independent and not under domination of the City;
-8-
(b) does not have any substantial identity of interest, direct or indirect, with
the City; and
(c) is not and no member of which is connected with the City as an officer or
employee of the City, but who may be regularly retained to make annual or other audits
of the books of or reports to the City.
"Information Services" means Financial Information, Inc.’s "Daily Called Bond Service",
30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302, Attention: Editor; Kenny
Information Services’ "Called Bond Service", 55 Broad Street, 28th Floor, New York, New York
10004; Moody’s Investors Service "Municipal and Government," 99 Church Street, 8th Floor,
New York, New York 10007, Attention: Municipal News Reports; Standard & Poor’s
Corporation "Called Bond Record," 25 Broadway, 3rd Floor, New York, New York 10004; and,
in accordance with then current guidelines of the Securities and Exchange Commission, such
other addresses and/or such other services providing information with respect to called bonds
as the City may designate in a Request of the City delivered to the Trustee.
"Maintenance and Operation Costs" means the amount required to pay the expenses of
management, repair and other costs necessary to operate, maintain and preserve the Electric
System in good repair and working order, including but not limited to, the cost of supply and
transmission of electric energy under long-term contracts or otherwise and the expenses of
conducting the Electric System, but excluding depreciation. "Maintenance and Operation
Costs" shall include all amounts required to be paid by the City under contract with a joint
powers agency for purchase of capacity, energy, transmission capability or any other
commodities or services in connection with the foregoing, which contract requires payments by
the City to be made hereunder to be treated as Maintenance and Operation Costs.
"Maximum Annual Debt Service" means, as of the date of calculation, the maximum
amount of Debt Service for the current or any future Fiscal Year.
"Moody’s" means Moody’s Investors Service, a corporation duly organized and existing
under and by virtue of the laws of the State of Delaware, and its successors or assigns, except
that if such corporation shall be dissolved or liquidated or shall no longer perform the functions
of a securities rating agency, then the term "Moody’s" shall be deemed to refer to any other
nationally recognized securities rating agency selected by the City.
"Net Proceeds", when used with reference to any insurance or condemnation award or
sale of property, means the gross proceeds from the sale of property or insurance or
condemnation award with respect to which that term is used remaining after payment of all
expenses (including attorneys’ fees and any extraordinary expenses of the Trustee) incurred in
the collection of such gross proceeds.
"Net Revenues" means, with respect to the Electric System, for any period of
computation, the amount of the Gross Revenues received from the Electric System during such
period, less the amount of Maintenance and Operation Costs of the Electric System becoming
payable during such period.
-9-
"Original Purchasers" means the original purchasers of any Series A Bonds from the
City.
"Outstanding", when used as of any particular time with reference to Bonds, means
(subject to the provisions of Section 7.03) all Series A Bonds theretofore executed, issued and
delivered by the City under this Indenture except -
(a) Series A Bonds theretofore cancelled by the Trustee or surrendered to the
Trustee for cancellation;
(b) Series A Bonds paid or deemed to have been paid within the meaning of
Section 9.03; and
(c) Series A Bonds in lieu of or in substitution for which other Bonds shall
have been executed, issued and delivered by the City pursuant to this Indenture.
"Owner" or "Bond Owner" or "Bondowner", when used with respect to any Bond,
means the person in whose name the ownership of such Bond shall be registered on the Bond
Registration Books.
"Parity Obligations" means all bonds, notes or other obligations (including without
limitation long-term contracts, loans, sub-leases, other legal financing arrangements, interest
rate swap agreements or credit or liquidity enhancement agreements) of the City payable from
and secured by a pledge of and lien upon any of the Net Revenues issued or incurred in
compliance with Section 3.06.
"Principal Payment Date" means
2008, and terminating on ,2
of each year, commencing
"Oualified Project" means capital expenditures incurred by the City within the
meaning of section 54(d)(2) of the Tax Code for any qualified facility determined under Section
45(d) of Tax Code relating to certain wind facilities, closed-loop biomass facilities, open-loop
biomass facilities, geothermal or solar energy facilities, small irrigation power facilities, landfill
gas facilities, trash combustion facilities, refined coal production facilities, qualified
hydropower facilities and Indian coal production facilities.
"RBI" means the Bond Buyer Revenue Bond Index or comparable index of long-term
municipal obligations chosen by the City, and, if no comparable index can be obtained, eighty
percent (80%) of the interest rate on actively traded thirty (30) year United States Treasury
obligations.
"Request of the City" means a request in writing signed by the City Manager, Director
of Administrative Services or Assistant City Manager of the City, or by any other officer of the
City duly authorized by the Council for that purpose.
"Revenue Fund" means the Fund by that name established and held by the Director of
Administrative Services ~ursuant to Section 4.02.
-10-
"S&P" means Standard & Poor’s Corporation, a corporation duly organized and existing
under and by virtue of the laws of the State of New York, and its successors or assigns, except
that if such corporation shall be dissolved or liquidated or shall no longer perform the functions
of a securities rating agency, then the term "S&P" shall be deemed to refer to any other
nationally recognized securities rating agency selected by the City.
"Series A Bonds" or "Bonds" means the City of Palo Alto Electric Utility Clean
Renewable Energy Tax Credit Bonds, 2007 Series A, issued and at any time Outstanding
hereunder.
"State" means the State of California.
"Supplemental Indenture" means any amendment or supplement to this Indenture
entered into in accordance with Article VII hereof.
"Tax Code" means the Internal Revenue Code of 1986 as in effect on the date of issuance
of the Bonds or (except as otherwise referenced herein) as it may be amended to apply to
obligations issued on the date of issuance of the Bonds, together with applicable proposed,
temporary and final regulations promulgated, and applicable official public guidance
published, under the Tax Code.
"Tax Regulations" means temporary and permanent regulations promulgated under the
Tax Code.
"Trust Office" means the corporate trust office of the Trustee at One California Street,
Suite 2100, San Francisco, California 94111, Attention: Corporate Trust Services or such other or
additional offices as may be specified to the City by the Trustee in writing.
"Trustee" means U.S. Bank National Association, appointed by the City to act as trustee
hereunder pursuant to Section 6.01, and its assigns or any other corporation or association
which may at any time be substituted in its place, as provided in Section 6.01.
"2007 CREB Project" means the cost of acquiring and installing approximately 250
kilowatts (kW) of solar photovoltaic (PV) panels at various City facilities, and consists of five
different kinds of solar panels at three different locations: 1) the Lucy Evans Baylands
Interpretive Center; 2) the Cubberley Community Center; and 3) the City’s Municipal Services
Center.
"2007 CREB Project Fund" means the fund by that name established and held by the
Director of Administrative Services pursuant to Section 3.04 of this Indenture.
"Variable Rate Indebtedness" means any indebtedness the interest rate on which is not
fixed at the time of incurrence of such indebtedness, and has not at some subsequent date been
fixed, at a single numerical rate for the entire term of the indebtedness.
SECTION 1.02. Rules of Construction. All references in this Indenture to "Articles,"
"Sections," and other subdivisions are to the corresponding Articles, Sections or subdivisions of
this Indenture; and the words "herein," "hereof," "hereunder," and other words of similar
-11-
import refer to this Indenture as a whole and not to any particular Article, Section or
subdivision hereof.
Words of the masculine gender shall be deemed and construed to include correlative
words of the feminine and neuter genders. Unless the context shall otherwise indicate, words
importing the singular number shall include the plural number and vice versa, and words
importing persons shall include corporations and associations, including public bodies, as well
as natural persons.
SECTION 1.03. Authorization and Purpose of Series A Bonds. The City has reviewed
all proceedings heretofore taken relative to the authorization of the Series A Bonds and has
found, as a result of such review, and hereby finds and determines that all things, conditions,
and acts required by law to exist, happen and/or be performed precedent toand in the issuance
of the Series A Bonds do exist, have happened and have been performed in due time, form and
manner as required by law, and the City is now authorized, as an exercise of the municipal
affairs power of the City as a chartered city under the constitution and laws of the State and
pursuant to the Bond Law and each and every requirement of law, to issue the Series A Bonds
in the manner and form provided in this Indenture. Accordingly, the City hereby authorizes
the issuance of the Series A Bonds pursuant to the Bond Law and this Indenture for the purpose
of providing funds to acquire and construct the 2007 CREB Project and to pay Costs of Issuance
of the Series A Bonds.
SECTION 1.04. Equal Security. In consideration of the acceptance of the Series A
Bonds by the Owners thereof, this Indenture shall be deemed to be and shall constitute a
contract among the City, the Trustee and the Owners from time to time of the Series A Bonds;
and the covenants and agreements herein set forth to be performed on behalf of the City shall
be for the equal and proportionate benefit, security and protection of all Owners of the Series A
Bonds without preference, priority or distinction as to security or otherwise of any of the Series
A Bonds over any of the others by reason of the number or date thereof or the time of sale,
execution or delivery thereof, or otherwise for any cause whatsoever, except as expressly
provided therein or herein.
-12-
ARTICLE II
ISSUANCE OF SERIES A BONDS
SECTION 2.01. Terms of Series A Bonds. The Series A Bonds authorized to be issued
by the City under and subject to the Bond Law and the terms of this Indenture shall be
designated the "City of Palo Alto Electric Utility Clean Renewable Energy Bonds, 2007 Series
A", and shall be issued in the original principal amount of One Million Five Hundred
Thousand Dollars ($1,500,000).
The Series A Bonds shall be issued in fully registered form without coupons in
denominations of $5,000 or any integral multiple thereof, so long as no Series A Bond shall have
more than one maturity date. The Series A Bonds shall mature on i in each of the
years and in the amounts as follows:
Maturity Date Principal Tax Credit
(1)Amount Rate
The Series A Bonds shall not bear interest. Principal of any Series A Bond shall be paid
upon presentation and surrender thereof at the Trust Office of the Trustee in St. Paul,
Minnesota. The principal of the Series A Bonds shall be payable in lawful money of the United
States of America. In lieu of receiving periodic interest payments from the City on the Series A
Bonds, taxpayers that are Owners will receive a federal income tax credit on each Credit
Allowance Date, at a rate equal to that listed opposite each maturity of the Series A Bonds listed
above.
The Series A Bonds shall be dated the Closing Date.
SECTION 2.02. Redemption of Series A Bonds.
The Series A Bonds are not subject to redemption prior to maturity.
-13-
SECTION 2.03. Form of Series A Bonds. The Series A Bonds, the Trustee’s certificate
of authentication, and the assignment to appear thereon, shall be substantially in the form set
forth in Exhibit A attached hereto and by this reference incorporated herein, with necessary or
appropriate variations, omissions and insertions, as permitted or required by this Indenture.
SECTION 2.04. Execution of Series A Bonds. The Series A Bonds shall be signed in
the name and on behalf of the City with the manual or facsimile signatures of its Mayor and its
Director of Administrative Services and attested by the manual or facsimile signature of its City
Clerk under the seal of the City. Such seal may be in the form of a facsimile of the City’s seal
and shall be imprinted or impressed upon the Series A Bonds. The Series A Bonds shall then be
delivered to the Trustee for authentication by it. In case any officer who shall have signed any
of the Series A Bonds shall cease to be such officer before the Series A Bonds so signed shall
have been authenticated or delivered by the Trustee or issued by the City, such Series A Bonds
may nevertheless be authenticated, delivered and issued and, upon such authentication,
delivery and issue, shall be as binding upon the City as though the individual who signed the
same had continued to be such officer of the City. Also, any Series A Bond may be signed on
behalf of the City by any individual who on the actual date of the execution of such Series A
Bond shall be the proper officer although on the nominal date of such Series A Bond such
individual shall not have been such officer.
Only such of the Series A Bonds as shall bear thereon a certificate of authentication in
substantially the form set forth in Exhibit A, manually executed by the Trustee, shall be valid or
obligatory for any purpose or entitled to the benefits of this Indenture, and such certificate of
the Trustee shall be conclusive evidence that the Series A Bonds so authenticated have been
duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture.
SECTION 2.05. Transfer of Series A Bonds. Any Series A Bond may, in accordance
with its terms, be transferred upon the Bond Registration Books by the person in whose name it
is registered, in person or by his duly authorized attorney, upon surrender of such Series A
Bond for cancellation, accompanied by delivery of a written instrument of transfer in a form
approved by the Trustee, fully executed. Whenever any Series A Bond shall be surrendered for
transfer, the City shall execute and the Trustee shall thereupon authenticate arid deliver to the
transferee a new Bond or Bonds of like tenor, maturity and aggregate principal amount.
SECTION 2.06. Exchange of Series A Bonds. Series A Bonds may be exchanged at the
Trust Office of the Trustee, for Series A Bonds of the same tenor and maturity and of other
authorized denominations.
-14-
SECTION 2.07. Temporary_ Bonds. The Bonds may be issued initially in temporary
form exchangeable for definitive Bonds when ready for delivery. The temporary Bonds may be
printed, lithographed or typewritten, shall be of such denominations as may be determined by
the City and may contain such reference to any of the provisions of this Indenture as may be
appropriate. Every temporary Bond shall be executed by the City and be registered and
authenticated by the Trustee upon the same conditions and in substantially the same manner as
the definitive Bonds. If the City issues temporary Bonds, it will execute and furnish definitive
Bonds without delay, and thereupon the temporary Bonds may be surrendered, for
cancellation, in exchange therefor at the Trust Office of the Trustee, and the Trustee shall
authenticate and deliver in exchange for such temporary Bonds an equal aggregate principal
amount of definitive Bonds of authorized denominations. Until so exchanged, the temporary
Bonds shall be entitled to the same benefits under this Indenture as definitive Bonds
authenticated and delivered hereunder.
SECTION 2.08. Bond Registration Books. The Trustee will keep or cause to be kept at
its Trust Office sufficient Bond Registration Books for the registration and transfer of the Bonds,
which shall at all times during regular business hours be open to inspection by the City; 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 said books, Bonds
as hereinbefore provided.
SECTION 2.09. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond shall become
mutilated, the City, at the expense of the Owner of said Bond, shall execute, and the Trustee
shall thereupon authenticate and deliver, a new Bond of like maturity and principal amount in
exchange and substitution for the Bond so mutilated, but only upon surrender to the Trustee of
the Bond so mutilated. Every mutilated Bond so surrendered to the Trustee shall be cancelled
by it and delivered to, or upon the order of, the City. If any Bond issued hereunder shall be
lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the
City and the Trustee and, ff such evidence be satisfactory to them and indemnity satisfactory to
them shall be given, the City, at the expense of the Bond Owner; shall execute, and the Trustee
shall thereupon authenticate and deliver, a new Bond of like maturity and principal amount in
lieu of and in substitution for the Bond so lost, destroyed or stolen (or ff any such Bond shall
have matured or shall have been called for redemption, instead of issuing a substitute Bond the
Trustee may pay the same without surrender thereof upon receipt of indemnity satisfactory to
the Trustee). The City may require payment of a reasonable fee for each new Bond issued
under this Section and of the expenses which may be incurred by the City and the Trustee. Any
Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost,
destroyed or stolen shall constitute an original contractual obligation on the part of the City
whether or not the Bond alleged to be lost, destroyed or stolen be at any time enforceable by
anyone, and shall be equally and proportionately entitled to the benefits of this Indenture with
all other Bonds secured by this Indenture.
SECTION 2.10. Book Entry System.
(a) Original Delivery. The Bonds shall be initially delivered in the form of a
separate single fully registered Bond (which may be typewritten) for each maturity of the
Bonds. Upon initial delivery, the ownership of each such Bond shall be registered on the Bond
Registration Books maintained by the Trustee pursuant to Section 2.08 hereof in the name of the
-15-
Nominee. Except as provided in subsection (c), the ownership of all of the Outstanding Bonds
shall be registered in the name of the Nominee on such Bond Registration Books.
With respect to Bonds the ownership of which shall be registered in the name of the
Nominee, the City and the Trustee shall have no responsibility or obligation to any Depository
System Participant or to any person on behalf of which the City holds an interest in the Bonds.
Without limiting the generality of the immediately preceding sentence, the City and the Trustee
shal! have no responsibility or obligation with respect to (i) the accuracy of the records of the
Depository, the Nominee or any Depository System Participant with respect to any ownership
interest in the Bonds, (ii) the delivery to any Depository System Participant or any other person,
other than a Bond Owner as shown in the Registration Books, of any notice with respect to the
Bonds, including any notice of redemption, (iii) the selection by the Depository of the beneficial
interests in the Bonds to be redeemed in the event the City elects to redeem the Bonds in part,
(iv) the payment to any Depository System Participant or any other person, other than a Bond
Owner as shown in the Registration Books, of any amount with respect to principal of the
Bonds or (v) any consent given or other action taken by the Depository as Owner of the Bonds.
The City and the Trustee may treat and consider the person in whose name each Bond is
registered as the absolute owner of such Bond for the purpose of payment of principal of such
Bond, for the purpose of giving notices of redemption and other matters with respect to such
Bond, for the purpose of registering transfers of ownership of such Bond, and for all other
purposes whatsoever. The Trustee shall pay the principal of the Bonds only to the respective
Owners or their respective attorneys duly authorized in writing, and all such payments shall be
valid and effective to fully satisfy and discharge all obligations with respect to payment of
principal, interest and premium, if any, represented by the Bonds to the extent of the sum or
sums so paid. No person other than a Bond Owner shall receive a Bond evidencing the
obligation of the City to make payments of principal pursuant to this Trust Indenture. Upon
delivery by the Depository to the Nominee of written notice to the effect that the Depository
has determined to substitute a new Nominee in its place, such new nominee shall become the
Nominee hereunder for all purposes; and upon receipt of such a notice the City shall promptly
deliver a copy of the same to the Trustee.
(b) Representation Letter. In order to qualify the Bonds for the Depository’s book-
entry system, the City shall execute and deliver to such Depository a letter representing such
matters as shall be necessary to so qualify the Bonds. The execution and delivery of such letter
shall not in any way limit the provisions of subsection (a) above or in any other way impose
upon the City or the Trustee any obligation whatsoever with respect to persons having interests
in the Bonds other than the Bond Owners. Upon the written acceptance by the Trustee, the
Trustee shall agree to take all action reasonably necessary for all representations of the Trustee
in such letter with respect to the Trustee to at all times be complied with. In addition to the
execution and delivery of such letter, the City may take any other actions, not inconsistent with
this Trust Indenture, to qualify the Bonds for the Depository’s book-entry program.
-16-
(c) Transfers Outside Book-Entry System. In the event that either (i) the Depository
determines not to continue to act as Depository for the Bonds, or (ii) the City determines to
terminate the Depository as such, then the City shall thereupon discontinue the book-entry
system with such Depository. In such event, the Depository shall cooperate with the City and
the Trustee in the execution of replacement Bonds by providing the Trustee with a list showing
the interests of the Depository System Participants in the Bonds, and by surrendering the
Bonds, registered in the name of the Nominee, to the Trustee on or before the date such
replacement Bonds are to be issued. The Depository, by accepting delivery of the Bonds, agrees
to be bound by the provisions of this subsection (c). If, prior to the termination of the
Depository acting as such, the City fails to identify another Securities Depository to replace the
Depository, then the Bonds shall no longer be required to be registered in the Registration
Books in the name of the Nominee, but shall be registered in whatever name or names the
Owners transferring or exchanging Bonds shall designate, in accordance with the provisions
hereof.
In the event the City determines that it is in the best interests of the beneficial owners of
the Bonds that they be able to obtain certificated Bonds, the City may notify the Depository
System Participants of the availability of such certificated Bonds through the Depository. In
such event, the Trustee will execute, transfer and exchange Bonds as required by the
Depository and others in appropriate amounts; and whenever the Depository requests, the
Trustee and the Citv shall cooperate with the Depository in taking appropriate action (y) to
make available one or more separate certificates evidencing the Bonds to any Depository
System Participant having Bonds credited to its account with the Depository, or (z) to arrange
for another Securities Depository to maintain custody of a single certificate evidencing such
Bonds, all at the City’s expense.
(d) Payments to the Nominee. Notwithstanding any other provision of this
Indenture to the contrary, so long as any Bond is registered in the name of the Nominee, all
payments with respect to principal of such Bond and all notices with respect to such. Bond shall
be made and given, respectively, as provided in the letter described in subsection (b) of this
Section or as otherwise instructed by the Depository.
ARTICLE III
ISSUE OF SERIES A BONDS; PARITY OBLIGATIONS
SECTION 3.01. Issuance of Series A Bonds. Upon the execution and delivery of this
Indenture, the City shall execute and deliver Series A Bonds in the aggregate principal amount
of One Million Five Hundred Thousand Dollars ($1,500,000) to the Trustee for authentication
and delivery to the Original Purchaser thereof upon the Request of the City.
SECTION 3.02. Application of Proceeds of Sale of Series A Bonds. Upon the receipt
of payment for the Series A Bonds on the Closing Date in the amount of 5.
(being an amount equal to the principal amount of the Series A Bonds ($1,500,000), less
purchaser’s discount ($), the Trustee shall apply the proceeds of sale thereof as
follows:
(a) The Trustee shall transfer to the Director of Administrative Services, for
deposit in the 2007 CREB Project Fund, the amount of $ ; and
(b) The Trustee shall deposit in the Cost of Issuance Fund the remainder of
such proceeds, in an amount equal to $
The Trustee may establish a temporary fund or account in its records to facilitate such
deposits and transfers.
SECTION 3.03. [Reserved].
SECTION 3.04. 2007 CREB Project Fund
~9~ There is hereby created a separate Fund to be known as the "City Of Palo Alto
Electric Utility Clean Renewable Energy Bonds 2007 Project Fund", herein referred to as the
"2007 CREB Project Fund", to be held in trust by the Director of Administrative Services. The
Director of Administrative Services shall disburse moneys in the 2007 CREB Project Fund for
the purpose of paying or reimbursing the payment of the costs of acquiring and constructing
the 2007 CREB Project, including but not limited to all costs incidental to or connected with
such acquisition and construction; in either case upon receipt by the Director of Administrative
Services from time to time of a Request of the City which: (1) identifies the total amount of such
costs to be paid pursuant to such Request, including all items of cost in such detail as may be
available to the City; (2) states with respect to such disbursement (a) the requisition number, (b)
the amount to be disbursed for payment of such costs, and (c) that each item of cost identified
therein has been properly incurred, and is a proper charge against the 2007 CREB Project Fund
and has not been the basis of any previous disbursement; and (3) is accompanied by an invoice,
if any.
(b) Any amounts remaining in the 2007 CREB Project Fund after the date of completion
of the 2007 CREB Project shall be transferred by the Director of Administrative Services,
accompanied by written instruction as to amounts and application of deposit, to the Trustee for
deposit to the Debt Service Fund.
-18-
(c) All interest earnings and profits or losses on the investment of amounts in the 2007
CREB Project Fund shall be deposited in or charged to the 2007 CREB Project Fund and applied
to the purposes thereof.
SECTION 3.05. Cost of Issuance Fund. There is hereby created a fund to be known as
the "City of Palo Alto Utility Revenue Refunding Bonds, 2007 Series A Cost of Issuance Fund"
(the "Cost of Issuance Fund"), which the City hereby covenants and agrees to cause to be
maintained and which shall be held in trust by the Trustee. The moneys in the Cost of Issuance
Fund shall be used in the manner provided by law solely for the purpose of the payment of
Costs of Issuance upon receipt by the Trustee of Requests of the City therefor, on or after the
Closing Date. Any funds remaining in the Cost of Issuance Fund on [Principal Payment
Date]December, 2007, shall be transferred by the Trustee to the Debt Service Fund.
SECTION 3.06. Issuance and Incurrence of Parity Obligations. In addition to the
Series A Bonds, the City may, issue or incur Parity Obligations payable from or secured by Net
Revenues to be derived from the Electric System to provide financing for the Electric System, in
such amount as shall be determined by the City. The City may issue or incur any such Parity
Obligations subject to the following specific conditions which are hereby made conditions
precedent to the issuance and delivery of such Parity Obligations:
(a)
Indenture.
The City shall be in compliance with all covenants set forth in this
(b) The Net Revenues of the Electric System, calculated on sound accounting
principles, as shown by the books of the City for the latest Fiscal Year or any more
recent twelve (12) month period selected by the City ending not more than sixty (60)
days prior to the issuance or incurrence of the Parity Obligations, as shown by the books
of the City, less withdrawals, if any, from Electric System’s rate stabilization fund, plus,
at the option of the City, any or all of the amount described in the following paragraph,
shall at least equal One Hundred percent (100%) of Maximum Annual Debt Service on
the Series A Bonds and all Parity Obligations to be Outstanding immediately
subsequent to the issuance or incurrence of such Parity Obligations which have a lien on
Net Revenues of Electric System.
The following may be added to Net Revenues for the purpose of issuing or
incurring Parity Obligations hereunder: an allowance for earnings arising from any
increase in the Charges which has become effective prior to the incurring of such
additional indebtedness but which, during all or any part of such Fiscal Year or such
twelve (12) month period, was not in effect, in an amount equal to the amount by which
the Net Revenues would have been increased if such increase in Charges had been in
effect during the whole of such Fiscal Year or such twelve (12) month period, all as
shown in the written report of an Independent Consultant engaged by the City.
(c) The Net Revenues of the Electric System, calculated on sound accounting
principles, as shown by the books of the City for the latest Fiscal Year or any more
recent twelve (12) month period selected by the City ending not more than sixty (60)
days prior to the issuance or incurrence of such Parity Obligations, as shown by the
books of the City, plus, at the option of the City, any or all of the items hereinafter in
this paragraph designated (i), (ii) and (iii), shall at least equal One Hundred Twenty-
-19-
Five percent (125%) of Maximum Annual Debt Service on all Series A Bonds and Parity
Obligations to be Outstanding immediately subsequent to the issuance or incurrence of
such Parity Obligations which have a lien on Net Revenues of the Electric System. The
items any or all of which may be added to such Net Revenues for the purpose of issuing
or incurring Parity Obligations hereunder are the following:
(i) An allowance for Net Revenues from any additions to or
improvements or extensions of the Electric System to be made with the proceeds
of such Parity Obligations, and also for Net Revenues from any such additions,
improvements or extensions which have been made from moneys from any
source but in any case which, during all or any part of such Fiscal Year or such
twelve (12) month period, were not in service, all in an amount equal to ninety
percent (90%) of the estimated additional average annual Net Revenues to be
derived from such additions, improvements and extensions for the first thirty-six
(36) month period in which each addition, improvement or extension is
respectively to be in operation, all as shown in the written report of an
Independent Consultant engaged by the City;
(ii) An allowance for earnings arising from any increase in the
Charges which has become effective prior to the incurring of such additional
indebtedness but which, during all or any part of such Fiscal Year or such twelve
(12) month period, was not in effect, in an amount equal to the amount by which
the Net Revenues would have been increased if such increase in Charges had
been in effect during the whole of such Fiscal Year or such twelve (12) month
period, all as shown in the written report of an Independent Consultant engaged
by the City;
(iii) Maximum Annual Debt Service with respect to Parity Obligations
shall be determined using the principles set forth in the definition of Maximum
Annual Debt Service; provided that if a Parity .Obligation is contingent upon
funds being provided under a Credit Support Instrument to pay principal or
purchase price of or interest on the Parity Obligations, such Parity Obligations
shall not be considered outstanding until such payment is made thereunder.
ARTICLE IV
PLEDGE OF NET REVENUES; FUNDS AND ACCOUNTS
SECTION 4.01. Pledge of Net Revenues, Revenue Fund.
(A) The City hereby transfers, places a charge upon, assigns and sets over to the Trustee,
for the benefit of the Owners the Net Revenues of the Electric System which is necessary to pay
the Debt Service on the Series A Bonds. The Net Revenues shall not be used for any other
purpose while any of the Bonds remain Outstanding, except that out of Net Revenues there
may be apportioned and paid such sums for such purposes, as are expressly permitted by this
Article. Said pledge shall constitute a first, direct and exclusive charge and lien on the Net
Revenues for the payment of the principal of the Bonds in accordance with the terms thereof.
(B) The Net Revenues constitute a trust fund for the security and payment of the
principal of the Bonds. The general fund of the City is not liable and the credit or taxing power
of the City is not pledged for the payment of the principal of the Bonds. The Owner of the
Bonds shall not compel the exercise of the taxing power by the City or the forfeiture of its
property. The principal of the Bonds are not a debt of the City, nor a legal or equitable pledge,
charge, lien or encumbrance, upon any of its property, or upon any of its income, receipts, or
revenues except the Net Revenues.
SECTION 4.02. Receipt and Deposit of Revenues. The City covenants and agrees that
all Gross Revenues, when and as received, will be received and held by the City in trust
hereunder and will be deposited by the City in the Revenue Fund (which has heretofore been
created and now exists in the City Treasury) and will be accounted for through and held in
trust in the Revenue Fund, and the City shall only have such beneficial right or interest in any
of such money as in this Indenture provided. All such Gross Revenues shall be transferred,
disbursed, allocated and applied solely to the uses and purposes hereinafter in this Article set
forth, and shall be accounted for separately and apart from all other money, funds, accounts or
other resources of the City.
SECTION 4.03. Establishment of Funds and Accounts and Allocation of Revenues
Thereto. The Debt Service Fund, as a special Fund is hereby created.
The Debt Service Fund shall be held and maintained by the Trustee.
All Gross Revenues shall, be held in trust by the Director of Administrative Services in
the Revenue Fund and shall be applied, transferred, used and withdrawn only for the purposes
hereinafter authorized in this Article.
(1) Operating Costs. The Director of Administrative Services shall first pay from the
moneys in the Revenue Fund the budgeted Maintenance and Operation Costs as such Costs
become due and payable.
(2) Debt Service Fund. On or before the third Business Day prior to each [Principal
Payment Date], the Director of Administrative Services shall transfer from the Revenue Fund to
-21-
the Trustee (on a parity with all other Debt Service transfers for Parity Obligations) for deposit
in the Debt Service Fund, an amount equal to the aggregate amount of principal becoming due
and payable on the Series A Bonds on the next succeeding Principal Payment Date. All interest
earnings and profits or losses on the investment of amounts in the Debt Service Fund shall be
deposited in or charged to the Debt Service Fund and applied to the purposes thereof. No
transfer and deposit need be made into the Debt Service Fund if the amount contained therein,
taking into account investment earnings and profits, is at least equal to the Principal
Installments to become due on the next Principal Payment Date upon the Series A Bonds.
(3) Surplus. As long as all of the foregoing payments, allocations and transfers are
made at the times and in the manner set forth above in subsections (1) and (2), any moneys
remaining in the Revenue Fund may at any time be treated as surplus and applied as provided
in Section 4.04.
SECTION 4.04. Surplus. Moneys remainin~ in the Revenue Fund after making the
payments, allocations and transfers provided for in subsection (2) of Section 4.03 shall be
applied by the Director of Administrative Services as required by the City charter.
SECTION 4.05. Investments. All moneys in the Revenue Fund may be invested by the
City from time to time in any Authorized Investments. All moneys in the Debt Service Fund
and Cost of Issuance Fund shall be invested by the Trustee solely in Authorized Investments, as
directed pursuant to a Request of the City. In the absence of any such Request of the City, the
Trustee may (but shall not be required to) invest any such moneys in money market funds
whose investments are restricted to Federal Securities or obligations fully secured by such
Federal Securities, selected by the Trustee, which by their terms mature prior to the date on
which such moneys are required to be paid out hereunder. Obligations purchased as an
investment of moneys in any Fund or Account shall be deemed to be part of such Fund or
Account, and all interest or gain derived from the investment of amounts in any of the Funds or
Accounts established hereunder shall be deposited in the Fund or Account from which such
investment was made; and shall be accounted for and applied as provided in Section 4.03(2)
(with respect to the Debt Service Fund). For purposes of acquiring any investments hereunder,
the Trustee may commingle funds held by it hereunder with the written approval of the City.
The Trustee may act as principal or agent in the acquisition of any investment. The Trustee
shall incur no liability for losses arising from any investments made pursuant to this Section.
-22-
The City acknowledges that to the extent regulations of the Comptroller of the Currency
or other applicable regulatory entity grant the City the right to receive brokerage confirmations
of security transactions as they occur, the City will not receive such confirmations to the extent
permitted by law. The Trustee will furnish the City periodic cash transaction statements which
include detail for all investment transactions made by the Trustee hereunder. The Trustee may
make any investments hereunder through its own bond or investment department or trust
investment department, or those of its parent or any affiliate. The Trustee or any of its affiliates
may act as sponsor, advisor or manager in connection with any investments made by the
Trustee hereunder. The Trustee may rely upon any investment direction of the City as a
certification to the Trustee that such investment is a legal investment for purposes of this
Indenture.
SECTION 4.06. Valuation; Investments.
(a) Method of Valuation, Frequency of Valuation. In computing the amount in any
Fund or Account, Authorized Investments shall be valued at the lower of the cost or the market
price, exclusive of accrued interest. With respect to all Funds and Accounts, valuation shall
occur annually.
(b) Additional Limitations. Except as otherwise provided in the following sentence,
the City covenants that all investments of amounts deposited in any fund or account created by
or pursuant to this Indenture, or otherwise containing gross proceeds of the Bonds (within the
meaning of section 148 of the Tax Code) shall be acquired, disposed of, and valued (as of the
date that valuation is required by this Indenture or the Tax Code) at Fair Market Value.
Investments in funds or accounts (or portions thereof) that are subject to a yield restriction
under applicable provisions of the Tax Code.
-23-
ARTICLE V
COVENANTS OF THE CITY; SPECIAL TAX COVENANTS
SECTION 5.01. Punctual Payment; Compliance With Documents. The City shall
punctually pay or cause to be paid the principal to become due with respect to all of the Series
A Bonds in strict conformity with the terms of the Series A Bonds and of this Indenture, and
will faithfully observe and perform all of the conditions, covenants and requirements of this
Indenture and all Parity Obligations.
SECTION 5.02. Against Encumbrances. The City will not mortgage or otherwise
encumber, pledge or place any charge upon the Electric System or any part thereof, or upon any
of the Net Revenues, except as permitted in the Indenture; provided, however, that nothing in
this Section 5.02 nor elsewhere in this Indenture shall be construed to prevent the City from
entering into long-term contracts to finance supplies of electric energy, payments under which
are accounted for as Maintenance and Operation Costs under the definition thereof in Section
1.01.
SECTION 5.03. Discharge of Claims. The City covenants that in order to fully preserve
and protect the priority and security of the Bonds the City shall pay from the Net Revenues and
discharge all lawful claims for labor, materials and supplies furnished for or in connection with
the Electric System which, if unpaid, may become a lien or charge upon the Net Revenues prior
or superior to the lien of the Bonds and impair the security of the Bonds. The City shall also pay
from the Net Revenues all taxes and assessments or other governmental charges lawfully levied
or assessed upon or in respect of the Electric System or upon any part thereof or upon any of the
Net Revenues therefrom.
SECTION 5.04. [Reserved].
SECTION 5.05. Maintenance and Operation of Electric System in Efficient and
Economical Manner. The City covenants and agrees to maintain and operate the Electric
System in an efficient and economical manner and to operate, maintain and preserve the Electric
System in good repair and working order.
SECTION 5.06. Against Sale.
The City will not sell lease or otherwise dispose of the Electric System or any part
thereof essential to the proper operation of the Electric System or to the maintenance of the Net
Revenues except as herein expressly permitted. The City will not enter into any lease or
agreement which impairs the operation of the Electric System or any part thereof necessary to
secure adequate Net Revenues for the payment of the principal of the Bonds, or which would
otherwise impair the rights of the Holders with respect to the Net Revenues or the operation of
the Electric System. Any real or personal property which has become non-operative or which is
not needed for the efficient and proper operation of the Electric System, or any material or
equipment which has worn out, may be sold at not less than the market value thereof without
the consent of the Holders if such sale will not reduce Net Revenues.
-24-
SECTION 5.07. Insurance. The City covenants that it shall at all times maintain such
insurance on the Electric System as is customarily maintained with respect to works and
properties of like character against accident to, loss of or damage to such works or properties.
If any useful part of the Electric System shall be damaged or destroyed, such part shall be
restored to use. The Net Proceeds of insurance against accident to or destruction of the physical
Electric System shall be treated as Gross Revenues.
Any such insurance shall be in the form of policies or contracts for insurance with
insurers of good standing and shall be payable to the City, or may be in the form of self-
insurance by the City. The City shall establish such fund or funds or reserves as are necessary
to provide for its share of any such self-insurance. The City shall file or cause to be filed with
the Trustee, annually within one hundred twenty (120) days after the close of each Fiscal Year,
a Certificate of the City (a) setting forth a description in reasonable detail of the insurance then
in effect, including any self-insurance fund, maintained pursuant to the requirements of this
Section, (b) stating that the City is then in compliance with the requirements of this Section, and
(c) stating whether during the preceding Fiscal Year any loss has been incurred with respect to
the Electric System and, if so, the amount of Net Proceeds of insurance, including the Net
Proceeds of any self-insurance fund, covering such loss and specifying the reasonable and
necessary costs of repair, reconstruction or replacement thereof.
SECTION 5.08. Records and Accounts. The City covenants that it shall keep proper
books of record and accounts of the Electric System, separate from all other records and
accounts, in which complete and correct entries shall be made of all transactions relating to the
Electric System. Said books shall, upon reasonable request, be subject to the inspection of the
Owners of not less than ten percent (10%) of the Outstanding Bonds or their representatives
authorized in writing.
The City covenants that it will cause the books and accounts of the Electric System to be
audited annually by an Independent Certified Public Accountant and will make available for
inspection by the Bond Owners, upon reasonable request, a copy of the report of such
Independent Certified Public Accountant.
The City covenants that it will cause to be prepared annually, not more than one
hundred eighty (180) days after the close of each Fiscal Year, as a part of its regular annual
financial report, a summary statement showing the amount of Gross Revenues and the amount
of all other funds collected which are required to be pledged or otherwise made available as
security for payment of principal of the Bonds, the disbursements from the Gross Revenues and
other funds in reasonable detail, and a general statement of the financial and physical condition
of the Electric System. The City shall furnish a copy of the statement to the Trustee, and upon
written request, to any Bond Owner. The Trustee shall have no duty to review such statement.
SECTION 5.09. Protection of Security and Rights of Owners. The City will preserve
and protect the security of the Bonds and the rights of the Owners, and will warrant and
defend their rights against all claims and demands of all persons.
SECTION 5.10. Against Competitive Facilities. The City will not acquire, construct,
operate or maintain any system or utility within the service area of the City that would be
competitive with the Electric System.
-25-
SECTION 5.11. Payment of Taxes, Etc. The City will pay and discharge all taxes,
assessments and other governmental charges which may hereafter be lawfully imposed upon
the Electric System or any part thereof or upon any Gross Revenues or Net Revenues when the
same shall become due. The City will duly observe and conform with all valid requirements of
any governmental authority relative to the Electric System or any part thereof, and will comply
with all requirements with respect to any state or federal grants received to assist in paying for
the costs of the acquisition, construction or financing of any Improvements to the Electric
System.
SECTION 5.12. Rates and Charges.
(1) The City shall fix, prescribe, revise and collect Charges for the Electric System
during each Fiscal Year which (together with other funds transferred from stabilization reserve
funds for the Electric System, and which are lawfully available to the City for payment of any
of the following amounts during such Fiscal Year) are at least sufficient, after making
allowances for contingencies and error in the estimates, to pay the following amounts in the
following order:
(a) all Maintenance and Operation Costs of the Electric System estimated by
the City to become due and payable in such Fiscal Year;
(b)the Debt Service on all Series A Bonds and Parity Obligations then
Outstanding;
(c) all other payments required for compliance with this Indenture and the
Parity Obligations; and
(d) all payments required to meet any other obligations of the City which are
charges, liens, encumbrances upon or payable from the Gross Revenues of the Electric
System or the Net Revenues of the Electric System.
(2) In addition, the City shall fix, prescribe, revise and collect Charges for the
Electric System during each Fiscal Year are sufficient to yield Net Revenues of the Electric
System at least equal to one hundred twenty-five percent (125%) of the amounts payable under
the preceding clause (1)(b) in such Fiscal Year for Series A Bonds and Parity Obligations which
have a lien on such Net Revenues.
(3) Transfer to Rate Stabilization Reserve Funds. To the extent that the City
appropriates funds from Gross Revenues into a stabilization reserve fund for the Electric
System, a deduction shall be made from Gross Revenues of the Electric System in the Fiscal
Year during which said transfer occurred for purposes of calculations to be made under this
Section 5.12 and Section 3.06. To the extent that the City appropriates funds from a stabilization
reserve fund for the Electric System into the Revenue Fund, the City may count the funds so
transferred as Gross Revenues in the Fiscal Year in which said transfer occurs, for purposes of
this Section 5.12 and Section 3.06.
-’26-
SECTION 5.13. No Priori _ty for Additional Obligations. The City covenants that no
additional bonds or other obligations shall be issued or incurred having any priority in
payment of principal or interest out of the Net Revenues over the Series A Bonds. Nothing in
this Indenture shall prohibit or impair the authority of the City to issue bonds or other
obligations secured by a lien on Gross Revenues or Net Revenues which is subordinate to the
lien established hereunder, upon such terms and in such principal amounts as the City may
determine.
SECTION 5.14. CREB Covenants. So long as any of the Series A Bonds remain
Outstanding, the City shall comply with the requirements of this Section 5.14 for the purpose of
assuring the status of the Series A Bonds as "clean renewable energy bonds".
(a) Qualified Purpose Covenant. The City shall assure that not less than 95 %
of the sale proceeds of the Series A Bonds will be used for capital expenditures within
the meaning of section 54(d)(1)(B) of the Tax Code, and will be spent on a Qualified
Project.
(b) Eligible Issuer. The City certifies that it is an eligible municipality within
the meaning of section 54(J)(4) of the Tax Code
(c) Allocation of CREB Limitation; Designation. The City has received an
allocation of clean renewable energy bond authority for the year 2007 from the Internal
Revenue Service in the amount of $1,500,000, as evidenced by a letter from the Internal
Revenue Service to the City, dated November 13, 2006, included in the transcript for the
Series A Bonds. The City hereby designates the Series A Bonds as "clean renewable
energy bonds", as required by Section 54 of the Tax Code.
(d) Loss of Clean Renewable Energy. Bond Status. If any Owner Of the Series
A Bonds either (i) receives notice, in any form, from the Internal Revenue Service, or (ii)
reasonably determines, based on an opinion of an independent tax counsel selected by
such Owner and approved by the City, which approval the City will not unreasonably
withhold, that such Owner is otherwise eligible and able to use the tax credit described
in section 54 of the Tax Code (the "Credit") but may not use the Credit due to a final
determination of the Internal~ Revenue Service (after the City has exhausted all
administrative appeal remedies) is not a "clean renewable energy bond" as defined in
section 54 of the Tax Code (the "Eligible Owner"), then the City shall pay to the Eligible
Owner, within thirty (30) days after the Eligible Owner notifies the City of such
determination, the amount which, taking into account all penalties, fines, interest and
additions to tax that are imposed on the Eligible Owner as a result of the loss of "clean
renewable energy bond" status for the Series A Bonds owned by such Eligible Owner,
will restore to the Eligible Owner the same after-tax yield on the Series A Bonds that the
Eligible Owner would have realized from the date of issuance of the Series A Bonds to
the date of such determination, had the loss of "clean renewable energy bond" status or
prepayment or deemed prepayment not occurred. In addition, the City agrees that
upon the occurrence of such an event, it will pay an additional amount, on each Credit
Allowance Date occurring after the date on which the first additional payment was
made by the City pursuant to the preceding sentence, as will maintain such after-tax
yield to the Eligible Owner. In the event that the City makes any payment to an Eligible
Owner pursuant to this clause (d) and it is subsequently determined, pursuant to a final,
conclusive and non-appealable decision of the Internal Revenue Service or a court of
competent jurisdiction that the Series A Bonds constitute clean renewable energy bonds,
the City shall be entitled to reimbursement for all amounts so paid to such Eligible
Owner under this clause (d).
SECTION 5.15. Further Assurances. The City will adopt, 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 Indenture,
and for the better assuring and confirming unto the Owners of the Series A Bonds the rights
and benefits provided in this Indenture.
SECTION 5.16. Continuing Disclosure. The City will provide information on the
financial condition of the relevant System to any Bond Owner or other interested person upon
request and with payment of the City-prescribed handling costs thereof. Such information will
be limited to financial statements and staff reports which have previously been distributed to
the City Council. Additionally, the City will file annually with the Trustee a copy of its audited
financial reports. The Trustee shall have no duty to review such reports.
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Appointment of Trustee. U.S. Bank National Association, a national
banking association organized and existing under and by virtue of the laws of the United States
of America, at its corporate trust office in San Francisco, California, is hereby appointed Trustee
by the City for the purpose of receiving all moneys required to be deposited with the Trustee
hereunder and to allocate, use and apply the same as provided in this Indenture. The City
agrees that it will maintain a Trustee having a corporate trust office in San Francisco, California,
with a combined capital and surplus of at least One Hundred Million Dollars ($100,000,000),
and subject to supervision or examination by federal or State authority, so long as any Bonds
are Outstanding. If such bank or trust company publishes a report of condition at least
annually pursuant to law or to the requirements of any supervising or examining authority
above referred to, then for the purpose of this Section 5.01 the combined capital and surplus of
such bank or trust company shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
The Trustee is hereby authorized to pay the Bonds when duly presented for payment at
maturity, or on redemption or purchase prior to maturity, and to cancel all Bonds upon
payment thereof. The Trustee shall keep accurate records of all funds administered by it and of
all Bonds paid and discharged.
SECTION 6.02. Acceptance of Trusts. The Trustee hereby accepts the trusts imposed
upon it by this Indenture, and agrees to perform said trusts, but only upon and subject to the
following express terms and conditions:
(a) The Trustee, prior to the occurrence of an Event of Default and after
curing or waiver of all Events of Default which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this Indenture.
In case an Event of Default hereunder has occurred (which has not been cured or
waived) the Trustee may exercise such of the rights and powers vested in it by this
Indenture, and shall use the same degree of care and skill in their exercise, as a prudent
and reasonable man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) The Trustee may execute any of the trusts or powers hereof and perform
the duties required of it hereunder by or through attorneys, agents, or receivers but shall
be answerable for the selection of the same in accordance with the standard specified
above, and shall be entitled to advice of counsel concerning all matters of trust and its
duty hereunder, and the Trustee shall not be liable for any action taken or not taken by
it in good faith reliance upon the advice or opinion of such counsel.
(c) The Trustee shall not be responsible for any recital herein, or in the
Bonds, or for the validity of this Indenture or any of the supplements thereto or
instruments of further assurance, or for the sufficiency of the security for the Bonds
issued hereunder or intended to be secured hereby and the Trustee shall not be bound
to ascertain or inquire as to the observance or performance of any covenants, conditions
-29-
or agreements on the part of the City hereunder. 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 4.05.
(d) The Trustee shall not be accountable for the use of any proceeds of sale of
the Bonds delivered hereunder. The Trustee may become the Owner of Bonds secured
hereby with the same rights which it would have if not the Trustee; may acquire and
dispose of other bonds or evidence of indebtedness of the City with the same rights it
would have if it were not the Trustee; and may act as a 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 Bonds, whether or not such
committee shall represent the Owners of the majority in principal amount of the Bonds
then Outstanding.
(e) In the absence of bad faith on its part, the Trustee shall be protected in
acting upon any notice, request, consent, certifihate, order, affidavit, letter, telegram or
other paper or document believed by it to be genuine and correct and to have been
signed or sent by the proper person or persons. Any action taken or omitted to be taken
by the Trustee in good faith and without negligence pursuant to this Indenture upon the
request or authority or consent of any person who at the time of making such request or
giving such authority or consent is the Owner of any Bond, shall be conclusive and
binding upon all future Owners of the same Bond and upon Bonds issued in exchange
therefor or in place thereof: The Trustee shall not be bound to recognize any person as
an Owner of any Bond or to take any action at his request unless the ownership of such
Bond by such person shall be reflected on the Bond Registration Books.
(f) As to the existence or non-existence of any fact or as to the sufficiency or
validity of any instrument, paper or proceeding, the Trustee shall be entitled to rely
upon a Certificate of the City as sufficient evidence of the facts therein contained and
prior to the occurrence of an Event of Default hereunder of which the Trustee has been
given notice or is deemed to have notice, as provided in Section 6.02(h) hereof, shall also
be at liberty to accept a similar certificate to the effect that any particular dealing,
transaction or action is necessary or expedient, but may at its discretion secure such
further evidence deemed by it to be necessary or advisable, but shall in no case be
bound to secure the same. The Trustee may accept a Certificate of the City to the effect
that an authorization in the form therein set forth has been adopted by the City, as
conclusive evidence that such authorization has been duly adopted and is in full force
and effect.
(g) The permissive right of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and it shall not be answerable for other than
its negligence or willful default. The immunities and exceptions from liability of the
Trustee shall extend to its officers, directors, employees and agents.
(h) The Trustee shall not be required to take notice or be deemed to have
notice of any Event of Default hereunder except failure by the City to make any of the
payments to the Trustee required to be made by the City pursuant hereto or failure by
the City to file with the Trustee any document required by this Indenture to be so filed
subsequent to the issuance of the Bonds, unless the Trustee shall be specifically notified
in writing of such default by the City or by the Owners of at least twenty-five percent
(25%) in aggregate principa! amount of the Bonds then Outstanding and all notices or
other instruments required by this Indenture to be delivered to the Trustee must, in
order to be effective, be delivered at the Trust Office of the Trustee, and in the absence
of such notice so delivered the Trustee may conclusively assume there is no Event of
Default hereunder except as aforesaid.
(i) At any and all reasonable times the Trustee, and its duly authorized
agents, attorneys, experts, engineers, accountants and representatives, shall have the
right (but not the duty) fully to inspect the Electric System, including all books, papers
and records of the City pertaining to the Electric System and the Bonds, and to take such
memoranda from and with regard thereto as may be desired but which is not privileged
by statute or by law.
0) The Trustee shall not be required to give any bond or surety in respect of
the execution of the said trusts and powers or otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this Indenture with respect to
the execution of any Bonds, the withdrawal of any cash, the release of any property, or
any action whatsoever within the purview of this Indenture, the Trustee shall have the
right, but shall not be required, to demand any showings, certificates, opinions,
appraisals or other information, or corporate action or evidence thereof, as may be
deemed desirable for the purpose of establishing the right of the City to the execution of
any Bonds, the withdrawal of any cash, or the taking of any other action by the Trustee.
(1) Before taking the action referred to in Section 8.03 the Trustee may
require that a satisfactory indemnity bond be furnished for the reimbursement of all
expenses to which it may be put and to protect it against all liability, except liability
which is adjudicated to have resulted from its negligence or willful default in
connection with any such action.
(m) All moneys received by the Trustee shall, until used or applied or
invested as herein provided, be held in trust for the purposes for which they were
received but need not be segregated from other funds except to the extent required by
law. The Trustee shall not be under any liability for interest on any moneys received
hereunder except such as may be agreed upon.
SECTION 6.03. Fees, Charges and Expenses of Trustee. The City shall pay and
reimburse the Trustee for reasonable fees for its services rendered hereunder and all advances,
counsel fees (including expenses) and other expenses reasonably and necessarily made or
incurred by the Trustee in connection with such services. Upon the occurrence of an Event of
Default hereunder, but only upon an Event of Default, the Trustee shall have a first lien with
right of payment prior to payment of any Bond upon the amounts held hereunder for the
foregoing fees, charges and expenses incurred by it respectively.
SECTION 6.04. Notice to Bond Owners of Default. If an Event of Default hereunder
occurs with respect to any Bonds, of which the Trustee has been given or is deemed to have
notice, as provided in Section 6.02(h) hereof, then the Trustee shall promptly give written notice
thereof by first-class mail to the Owner of each such Bond, unless such Event of Default shall
have been cured before the giving of such notice; provided, however, that unless such Event of
Default consists of the failure by the City to make any payment when due, the Trustee may
elect not to give such notice if and so long as the Trustee in good faith determines that it is in
the best interests of the Bond Owners not to give Such notice.
SECTION 6.05. Intervention by Trustee. In any judicial proceeding to which the City
is a party which, in the opinion of the Trustee and its counsel, has a substantial bearing on the
interests of Owners of any of the Bonds, the Trustee may intervene on behalf of such Bond
Owners, and subject to Section 6.02 (1) hereof, shall do so if requested in writing by the Owners
of at least twenty-five percent (25%) in aggregate principal amount of such Bonds then
Outstanding.
SECTION 6.06. Removal of Trustee. The Owners of a majority in aggregate principal
amount of the Outstanding Bonds may at any time, and the City may so long as no Event of
Default shall have occurred and then be continuing, remove the Trustee initially appointed,
and any successor thereto, by an instrument or concurrent instruments in writing delivered to
the Trustee, whereupon the City or such Owners, as the case may be, shall appoint a successor
or successors thereto; provided that any such successor shall be a bank or trust company
meeting the requirements set forth in Section 6.01 hereof.
SECTION 6.07. Resignation by Trustee. The Trustee and any successor Trustee may at
any time resign by giving thirty (30) days’ written notice by registered or certified mail to the
City. Upon receiving such notice of resignation, the City shall promptly appoint a successor
Trustee. Any resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective upon acceptance of appointment by the successor Trustee. Upon such
acceptance, the City shall cause notice thereof to be given by first class mail to the Bond Owners
at their respective addresses set forth on the Bond Registration Books. No resignation of the
Trustee shall take effect until a successor is appointed and has accepted.
SECTION 6.08. Appointment of Successor Trustee. In the event of the removal or
resignation of the Trustee pursuant to Sections 6.06 or 6.07, respectively, the City shall promptly
appoint a successor Trustee. In the event the City shall for any reason whatsoever fail to
appoint a successor Trustee within forty-five (45) days following the delivery tO the Trustee of
the instrument described in Section 6.06 or within forty-five (45) days following the receipt of
notice by the City pursuant to Section 6.07, the Trustee may apply to a court of competent
jurisdiction for the appointment of a successor Trustee meeting the requirements of Section 6.01
hereof. Any such successor Trustee appointed by such court shall become the successor Trustee
hereunder notwithstanding any action by the City purporting to appoint a successor Trustee
following the expiration of such forty-five-day period.
SECTION 6.09. Merger or Consolidation. Any company into which the Trustee may
be merged or converted or 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 6.01, shall be the successor to the Trustee and
vested with all of the title to the trust estate and all of the trusts, powers, discretions,
immunities, privileges and all other matters as was its predecessor, without the execution or
filing of any paper or further act, anything herein to the contrary notwithstanding.
SECTION 6.10. Concerning any Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to the
City an instrument in writing accepting such appointment hereunder and thereupon such
successor, without any further act, deed or conveyance, shall become fully vested with all the
estates, properties, rights, powers, trusts, duties and obligations of its predecessors; but such
predecessor shall, nevertheless, on the Request of the City, or of its successor, execute and
deliver an instrument transferring to such successor all the estates, properties, rights, powers
and trusts of such predecessor hereunder; and every predecessor Trustee shall deliver all
securities and moneys held by it as the Trustee hereunder to its successor. Should any
instrument in writing from the City be required by any successor Trustee for more fully and
certainly vesting in such successor the estate, rights, powers and duties hereby vested or
intended to be vested in the predecessor~ any and all such instruments in writing shall on
request, be executed, acknowledged and delivered by the City.
SECTION 6.11. Appointment of Co-Trustee. It is the purpose of this Indenture that
there shall be no violation of any law of any jurisdiction (including particularly the law of the
State) denying or restricting the rlght of banking corporations or associations to transact
business as Trustee in such jurisdiction. It is recognized that in the case of litigation under this
Indenture, and in particular in case of the enforcement of the rights of the Trustee on default, or
in the case the Trustee deems that by reason of any present or future law of any jurisdiction it
may not exercise any of the powers, rights or remedies herein granted to the Trustee or hold
title to the properties, in trust, as herein granted, or take any other action which may be
desirable or necessary in connection therewith, it may be necessary that the Trustee appoint an
additional individual or institution as a separate or co-trustee. The following provisions of this
Section 6.11 are adopted to these ends.
In the event that the Trustee appoints an additional individual or institution as a
separate or co-trustee, each and every remedy, power, right, claim, demand, cause of action,
immunity, estate, title, interest and lien expressed or intended by this Indenture to be exercised
by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest
in such separate or co-trustee but only to the extent necessary to enable such separate or co-
trustee to exercise such powers, rights and remedies, and every covenant and obligation
necessary to the exercise thereof by such separate or co-trustee shall run to al~d be enforceable
by either of them.
Should any instrument in writing from the City be required by the separate trustee or
co-trustee so appointed by the Trustee for more fully and certainly vesting in and confirming to
it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in
writing shall, on request, be executed, acknowledged and delivered by the City. In case any
separate trustee or co-trustee, or a successor to either, shall become incapable of acting, resign
or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such
separate trustee or co-trustee, so far as permitted by law, shall vest in and be exercised by the
Trustee until the appointment of a new trustee or successor to such separate trustee or co-
trustee.
SECTION 6.12. Indemnification; Limited LiabiliW of Trustee. The City shall
indemnify and hold the Trustee harmless from and against all claims, losses, costs, expenses,
liabilities and damages including legal fees and expenses arising from the exercise and
performance of its duties hereunder. Such indemnity shall survive the resignation or removal
of the Trustee hereunder. No provision in this Indenture shall require the Trustee to risk or
expend its own funds or otherwise incur any financial liability hereunder if it shall have
reasonable grounds for believing repayment of such funds or adequate indemnity against such
liability or risk is not assured to it. The Trustee shall not be liable for any action taken or
omitted to be taken by it in accordance with the direction of a majority (or other percentage
provided herein) of the Owners of the principal amount of Bonds Outstanding relating to the
exercise of any right, power or action, or the time, method and place of conducting any
proceeding or remedy available to the Trustee under this Indenture.
-34-
ARTICLE VII
MODIFICATION AND AMENDMENT OF THE INDENTURE
SECTION 7.01. Amendment by Consent of Bond Owners. This Indenture and the
rights and obligations of the City and of the Owners of the Bonds may be modified or amended
by a Supplemental Indenture which shall become binding when the written consent of the
Owners of a majority in aggregate principal amount of the Bonds then Outstanding exclusive of
Bonds disqualified as provided in Section 7.03 hereof, are filed with the Trustee. No such
modification or amendment shall (a) extend the maturity of or reduce the tax credit rate on any
Bond or otherwise alter or impair the obligation of the City to pay the principal at the time and
place and in the currency provided therein of any Bond without the express written consent of
the Owner of such Bond, (b) reduce the percentage of Bonds required for the written consent to
any such amendment or modification, or (c) without its written consent thereto, modify any of
the rights or obligations of the Trustee.
SECTION 7.02. Amendment Without Consent of Bondholders. This Indenture and
the rights and obligations of the City and of the Owners of the Bonds may also be modified or
amended at any time by a Supplemental Indenture which shall become binding upon execution
and delivery, without consent of any Bond Owners, but only to the extent permitted by law and
only for any one or more of the following purposes-
(a) to add to the covenants and agreements of the City in this Indenture
contained, other covenants and agreements thereafter to be observed, or to limit or
surrender any rights or power herein reserved to or conferred upon the City; or
(b) to make such provisions for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective provision contained in this Indenture,
or in any other respect whatsoever as the City may deem necessary or desirable,
provided under any circumstances that such modifications or amendments shall not
adversely affect the interests of the Owners of the Bonds;
(c)to make such additions, deletions or modifications as may be necessary
or desirable to assure that the Series A Bonds retain their status as "Clean Renewable
Energy Bonds" under Section 54 of the Tax Code.
SECTION 7.03. Disqualified Bonds. Bonds owned or held by or for the account of the
City (but excluding Bonds held in any employees’ retirement fund) shall not be deemed
Outstanding for the purpose of any consent or other action or any calculation of Outstanding
Bonds in this article provided for, and shall not be entitled to consent to, or take any other
action in this article provided for.
SECTION 7.04. Endorsement or Replacement of Bonds After Amendment. After the
effective date of any action taken as hereinabove provided, the City may determine that the
Bonds shall bear a notation, by endorsement in form approved by the City, as to such action,
and in that case upon demand of the Owner of any Bond Outstanding at such effective date
and presentation of his Bond for that purpose at the Trust Office of the Trustee, a suitable
notation as to such action shall be made on such Bond. If the City shall so determine, new
Bonds so modified as, in the opinion of the City, shall be necessary to conform to such Bond
Owners’ action shall be prepared and executed, and in that case upon demand of the Owner of
any Bond Outstanding at such effective date such new Bonds shall be exchanged at the Trust
Office of the Trustee, without cost to each Bond Owner, for Bonds then Outstanding, upon
surrender of such Outstanding Bonds.
SECTION 7.05. Amendment by Mutual Consent. The provisions of this Article VII
shall not prevent any Bond Owner from accepting any amendment as to the particular Bond
held by him, provided that due notation thereof is made on such Bond.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS
SECTION 8.01. Events of Default and Acceleration of Maturities. The following
events shall be Events of Default hereunder:
(a) Default in the due and punctual payment of the principal of any Bond
when and as the same shall become due and payable, whether at maturity as therein
expressed, by proceedings for redemption, by declaration or otherwise;
(b) Default in the due and punctual payment of a Parity Obligation when
and as such payment shall be come due and payable;
(c) Default by the City in the observance of any of the covenants, agreements
or conditions on its part in this Indenture or in any Parity Obligations Instrument or in
the Bonds contained, and such default shall have continued for a period of sixty (60)
days after the City shall have been given notice in writing of such default by the
Trustee; or
(d) The filing by the City of a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws or any other applicable law of the
United States of America, or if a court of competent jurisdiction shall approve a petition,
filed with or without the consent of the City, seeking reorganization under the federal
bankruptcy laws or any other applicable law of the United States of America, or if,
under the provisions of any other law for the relief or aid of debtors, any court of
competent jurisdiction shall assume custody or control of the City or of the whole or any
substantial part of its proper ~ty.
Upon the occurrence of an Event of Default, the Trustee may, and shall at the direction
of the owners of a majority of the principal amount of the Bonds, by written notice to the City,
declare the principal of the Bonds to be immediately due and payable, whereupon that portion
of the principal of the Bonds thereby coming due shall, without further action, become and be
immediately due and payable, anything in this Indenture or in the Bonds to the contrary
notwithstanding. This provision, however, is subject to the condition that if, at any time after
the principal of the Bonds shall have been so declared due and payable and before any
judgment or decree for the payment of the moneys due shall have been obtained or entered, the
City shall deposit with the Trustee a sum sufficient to pay all of the principal of the Bonds
having come due prior to such declaration, and the reasonable fees and expenses of the Trustee
and those of its attorneys, and any and all other defaults known to the Trustee (other than in
the payment of the principal of the Bonds having come due and payable solely by reason of
such declaration) shall have been made good or cured to the satisfaction of the Trustee or
provision deemed by the Trustee to be adequate shall have been made therefor, then, and in
every such case, the Owners of a majority in aggregate principal amount of the Bonds at the
time Outstanding may, by written notice to the City and to the Trustee, on behalf of the Owners
of all of the Outstanding Bonds, rescind and annul such declaration and its consequences.
However, no such rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair or exhaust any right or power consequent thereon.
SECTION 8.02. Application of Funds Upon Acceleration. All amounts received by
the Trustee pursuant to any right given or action taken by the Trustee under the provisions of
this Indenture shall be applied by the Trustee in the following order -
First, to the payment of the costs and expenses of the Trustee and of Bond
Owners in declaring such Event of Default, including reasonable compensation to their
agents, attorneys and counsel and to the payment of the costs and expenses of the
Trustee, if any, in carrying out the provisions of this Article VIII, including reasonable
compensation to its agents, attorneys and counsel; and
Second to the payment of the whole amount then owing and unpaid upon the
Bonds and Parity Obligations.
SECTION 8.03. Other Remedies. Upon the occurrence of an Event of Default, the
Trustee may pursue any available remedy, in addition to the remedy specified in Section 8.01,
at law or in equity to enforce the payment of the principal of the Outstanding Bonds, and to
enforce any rights of the Trustee under or with respect to this Indenture.
If an Event of Default shall have occurred and be continuing and if requested so to do
by the Owners of at least twenty-five percent (25%) in aggregate principal amount of
Outstanding Bonds and indemnified as provided in Section 6.02 (1), the Trustee shall be
obligated to exercise such one or more of the rights and powers conferred by this Article VIII, as
the Trustee, being advised by counsel shall deem most expedient in the interests of the Bond
Owners.
No remedy by the terms of this Indenture conferred upon or reserved to the Trustee (or
to the Bond Owners) is intended to be exclusive of any other remedy, but each and every such
remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee
or to the Bond Owners hereunder or now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon 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 acquiescence therein; such right or power may be exercised from time to time as
often as may be deemed expedient.
SECTION 8.04. 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 Bonds then
Outstanding, it shall have full power, in the exercise of its discretion for the best interests of the
Owners of the Bonds, with respect to the continuance, discontinuance, withdrawal,
compromise, settlement or other disposal of such action; provided, however, that the Trustee
shall not, unless there no longer continues an Event of Default, discontinue, withdraw,
compromise or settle, or otherwise dispose of any litigation pending at law or in equity, if at the
time there has been filed with it a written request signed by the Owners of a majority in
principal amount of the Outstanding Bonds hereunder opposing such discontinuance,
withdrawal, compromise, settlement or other disposal of such litigation. Any suit, action or
proceeding which any Owner of Bonds shall have the right to bring to enforce any right or
remedy hereunder may be brought by the Trustee for the equal benefit and protection of all
Owners of Bonds similarly situated and the Trustee is hereby appointed (and the successive
respective Owners of the Bonds issued hereunder, by taking and holding the same, shall be
conclusively deemed so to have appointed it) the true and lawful attorney-in-fact of the
respective Owners of the Bonds for the purpose of bringing any such suit, action or proceeding
and to do and perform any and all acts and things for and on behalf of the respective Owners of
the Bonds as a class or classes, as may be necessary or advisable in the opinion of the Trustee as
such attorney-in-fact.
SECTION 8.05. Appointment of Receivers. Upon the occurrence of an Event of
Default hereunder, and upon the filing of a suit or other commencement of judicial proceedings
to enforce the rights of the Trustee and of the Bond Owners under this Indenture, the Trustee
shall be entitled, as a matter of right, to the appointment of a receiver or receivers of the Net
Revenues and other amounts pledged hereunder, pending such proceedings, with such powers
as the court making such appointment shall confer.
SECTION 8.06. Non-Waiver. Nothing in this Article VIII or in any other provision of
this Indenture, or in the Bonds, shall affect or impair the obligation of the City, which is
absolute and unconditional, to pay the principal of the Bonds to the respective Owners of the
Bonds at the respective dates of maturity, as herein provided, out of the Net Revenues and
other moneys herein pledged for such payment,
A waiver of any default or breach of duty or contract by the Trustee or any Bond
Owners shall not affect any subsequent default or breach of duty or contract, or impair any
rights or remedies on any such subsequent default or breach. No delay or omission of the
Trustee or any Owner of any of the Bonds to exercise any right or power accruing upon any
default shall impair any such right or power or shall be construed to be a waiver of any such
default or an acquiescence therein; and every power and remedy conferred upon the Trustee or
Bond Owners by the Bond Law or by this Article VIII may be enforced and exercised from time
to time and as often as shall be deemed expedient by the Trustee or the Bond Owners, as the
case may be.
If a suit, action or proceeding to enforce any right or exercise any remedy is abandoned
or determined adversely to the Bond Owners, the City and the Bond Owners shall be restored
to their former positions, rights and remedies as if such suit, action or proceeding had not been
brought or taken.
SECTION 8.07. Rights and Remedies of Bond Owners. No Owner of any Bond 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 Indenture, unless (a) such Owner shall have previously given
to the Trustee written notice of the occurrence of an Event of Default; (b) the Owners of a
majority in aggregate principal amount of all the Bonds 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 indemnity reasonably acceptable to the Trustee 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 Bonds of
any remedy hereunder; it being understood and intended that no one or more Owners of Bonds
shall have any right in any manner whatever by his or their action to enforce any right under
this Indenture, except in the manner herein provided, and that all proceedings at law or in
equity to enforce any .provision of this Indenture shall be instituted, had and maintained in the
manner herein provided and for the equal benefit of all Owners of the Outstanding Bonds.
The right of any Owner of any Bond to receive payment of the principal of such Bond as
herein provided or to institute suit for the enforcement of any such payment, shall not be
impaired or affected without the written consent of such Owner, notwithstanding the foregoing
provisions of this Section or any other provision of this Indenture.
SECTION 8.08. Termination of Proceedings. In case the Trustee shall have proceeded
to enforce any right under this Indenture by the appointment of a receiver or otherwise, and
such proceedings shall have been discontinued or abandoned for any reason, or shall have been
determined adversely, then and in every such case, the City, the Trustee and the Bond Owners
shall be restored to their former positions and rights hereunder, respectively, with regard to the
property subject to this Indenture, and all rights, remedies and powers of the Trustee shall
continue as if no such proceedings had been taken.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Limited Liability of City. Notwithstanding anything in this Indenture
contained, the City shall not be required to advance any moneys derived from any source of
income other than the Net Revenues for the payment of the principal of the Bonds, or for the
performance of any covenants herein contained. The City may, however, advance funds for
any such purpose, provided that such funds are derived from a source legally available for such
purpose and may be used by the City for such purpose without incurring indebtedness.
SECTION 9.02. Benefits of Indenture Limited to Parties. Nothing in this Indenture,
expressed or implied, is intended to give to any person other than the City, the Trustee and the
Owners of the Bonds, any right, remedy or claim under or by reason of this Indenture. Any
covenants, stipulations, promises or agreements In this indenture contained by and on behalf of
the City shall be for the sole and exclusive benefit of the Trustee and the Owners of the Bonds.
SECTION 9.03. Discharge of Indenture. If the City shall pay and discharge any or all
of the Outstanding Series A Bonds in any one or more of the following ways:
(a) by well and truly paying or causing to be paid the principal of such
Bonds, as and when the same become due and payable;
(b) by depositing with the Trustee, in trust, at or before maturity, money
which, together with the available amounts then on deposit in the funds and accounts
established pursuant to this Indenture, is fully sufficient to pay such Bonds; or
(c) by depositing with a qualified escrow holder, in trust, Defeasance
Obligations In such amount as the City (verified by an Independent Certified Public
Accountant) shall determine will, together with the interest to accrue thereon and
available moneys then on deposit in the Funds and Accounts established pursuant to
this Indenture, be fully sufficient to pay and discharge the indebtedness on such Bonds
at or before their respective maturity dates;
then, at the election of the City, and notwithstanding that any of such Bonds shall not have
been surrendered for payment, the pledge of the Net Revenues and other funds provided for in
this Indenture with respect to such Bonds, and all other pecuniary obligations of the City under
this Indenture with respect to all such Bonds, shall cease and terminate, except only the
obligation of the City to pay or cause to be paid to the Owners of such Bonds not so
surrendered and paid all sums due thereon from amounts set aside for such purpose as
aforesaid, and all expenses and costs of the Trustee. Notice of such election shall be filed with
the Trustee.
Any funds thereafter held by the Trustee, which are not required for said purposes,
shall be paid over to the City.
Refunding bonds may be issued at any time without regard to whether an Event of
Default exists.
To accomplish defeasance the City shall cause to be delivered (i) a report of an
Independent Certified Public Accountant verifying the sufficiency of the escrow established to
pay the Bonds in full on the maturity ("Verification"), (ii) an escrow deposit agreement, and (iii)
an opinion of nationally recognized bond counsel to the effect that the Series A Bonds are no
longer "Outstanding" under this Indenture; each Verification and defeasance opinion shall be
acceptable in form and substance, and addressed, to the City and the Trustee.
SECTION 9.04. Successor Is Deemed Included in All References to Predecessor.
Whenever in this Indenture the City is named or referred to, such reference shall be deemed to
include the successor to the powers, duties and functions, with respect to the management,
administration and control of the affairs of the City, as applicable, that are presently vested in
the City, and all the covenants, agreements and provisions contained in this Indenture by or on
behalf of the City shall bind and inure to the benefit of its successors whether so expressed or
not.
SECTION 9.05. Content of Certificates. Every certificate with respect to compliance
with a condition or covenant provided for in this Indenture shall include (a) a statement that
the person or persons making or giving such certificate have read such covenant or condition
and the definitions herein relating thereto; (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements-or opinions contained in such
certificate are based; (c) a statement that, in the opinion of the signers, they have made or
caused to be made such examination or investigation as is necessary to enable them to express
an informed opinion as to whether or not such covenant or condition has been complied with;
and (d) a statement as to whether, in the opinion of the signers, such condition or covenant has
been complied with.
Any such certificate made or given by an officer of the City may be based, insofar as it
relates to legal matters, upon a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or representations with respect to the matters
upon which his certificate may be based, as aforesaid, are erroneous, or in the exercise of
reasonable care should have known that the same were erroneous. Any such certificate or
opinion or representation made or given by counsel may be based, insofar as it relates to factual
matters, on information with respect to which is in the possession of the City, upon the
certificate or opinion of or representations by an officer or officers of the City, unless such
counsel knows that the certificate or opinion or representations with respect to the matters
upon which his certificate, opinion or representation may be based, as aforesaid, are erroneous,
or in the exercise of reasonable care should have known that the same were erroneous.
SECTION 9.06. Execution of Documents by Bond Owners. Any request, consent or
other instrument required by this Indenture to be signed and executed by Bond Owners may be
in any number of concurrent writings of substantially similar tenor and may be signed or
executed by such Bond Owners in person or by agent or agents duly appointed in writing.
Proof of the execution of any such request, consent or other instrument or of a writing
appointing any such agent, shall be sufficient for any purpose of this Indenture and shall be
conclusive in favor of the Trustee and of the City if made in the manner provided in this
Section 9.06.
The fact and date of the execution by any person of any such request, consent or other
instrument or writing may be proved by the affidavit of a witness of such execution or by the
certificate of any notary public or other officer of any jurisdiction, authorized by the laws
thereof to take acknowledgments of deeds, certifying that the person signing such request,
consent or other instrument or writing acknowledged to him the execution thereof.
The ownership of Bonds shall be provided by the Bond Registration Books.
Any request, consent or vote of the Owner of any Bond shall bind every future Owner
of the same Bond and the Owner of any Bond issued in exchange therefor or in lieu thereof, in
respect of anything done or suffered to be done by the Trustee or the City in pursuance of such
request, consent or vote.
In determining whether the Owners of the requisite aggregate principal amount of
Bonds have concurred in any demand, request, direction, consent or waiver under this
Indenture, Bonds which are owned or held by or for the account of the City (but excluding.
Bonds held in any employees’ retirement fund) shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, provided, however, that for the
purpose of determining whether the Trustee shall be protected in relying on any such demand,
request, direction, consent or waiver, only Bonds which the Trustee knows to be so owned or
held shall be disregarded.
In lieu of obtaining any demand, request, direction, consent or waiver in writing, the
Trustee may call and hold a meeting of the Bond Owners upon such notice and in accordance
with such rules and obligations as the Trustee considers fair and reasonable for the purpose of
obtaining any such action.
SECTION 9.07. Waiver of Personal Liabili _ty. No officer, agent or employee of the City
shall be individually or personally liable for the payment of the principal of the Bonds; but
nothing herein contained shall relieve any such officer, agent or employee from the
performance of any official duty provided by law.
SECTION 9.08. Partial Invalidity_. If any one or more of the covenants or agreements,
or portions thereof, provided in this Indenture on the part of the City (or of the Trustee) to be
performed should be contrary to law, then such covenant or covenants, such agreement or
agreements, or such portions thereof, shall be null and void and shall be deemed separable
from the remaining covenants and agreements or portions thereof and shall in no way affect
the validity of this Indenture or of the Bonds; but the Bond Owners shall retain all rights and
benefits accorded to them under the Bond Law or any other applicable provisions of law. The
City hereby declares that it would have entered into this Indenture and each and every other
section, paragraph, subdivision, sentence, clause and phrase hereof and would have authorized
the issuance of the Bonds pursuant hereto irrespective of the fact that any one or more sections,
paragraphs, subdivisions, sentences, clauses or phrases of this Indenture or the application
thereof to any person or circumstance may be held to be unconstitutional, unenforceable or
invalid.
SECTION 9.09. Destruction of Cancelled Bonds. Whenever in this Indenture
provision is made for the surrender to the City of any Bonds which have been ~aid or cancelled
pursuant to the provisions of this Indenture, the Trustee shall destroy such Bonds and furnish
to the City a certificate of such destruction.
SECTION 9.10. Funds and Accounts. Any Fund or Account required by this Indenture
to be established and maintained by the City or the Trustee may be established and maintained
in the accounting records of the City or the Trustee, as the case may be, either as a Fund or an
Account, and may, for the purpose of such records, any audits thereof and any reports or
statements with respect thereto, be treated either as a Fund or as an Account. All such records
with respect to all such Funds and Accounts held by the City shall at all times be maintained in
accordance with generally accepted accounting principles and all such records with respect to
all such Funds and Accounts held by the Trustee shall be at all times maintained in accordance
with industry practices; in each case with due regard for the protection of the security of the
Bonds and the rights of every Owner thereof.
SECTION 9.11. Notices. Any notice, request, complaint, demand, communication or
other paper shall be sufficiently given and shall be deemed given when delivered or mailed by
registered or certified mail, postage prepaid, or sent by telegram, addressed as follows: if to the
City, to City of Palo Alto, City Hall 250 Hamilton Avenue, Palo Alto, California 94301,
Attention: Director of Administrative Services; and if to the Trustee, at U.S. Bank National
Association, One California Street, San Francisco, CA 94111, Suite 2100, Attention: Corporate
Trust Department. The City and the Trustee may designate any further or different addresses
to which subsequent notices, certificates or other communications shall be sent.
SECTION 9.12. Unclaimed Moneys. Anything in this Indenture to the contrary
notwithstanding, any moneys held by the Trustee in trust for the payment and discharge of any
of the Bonds which remain unclaimed for one (1) year after the date when such Bonds have
become due and payable, either at their stated maturity dates or by call for earlier redemption,
if such moneys were held by the Trustee at such date, or for one (1) year after the date of
deposit of such moneys if deposited with the Trustee after said. date when such Bonds become
due and payable, shall, at the Request of the City, be repaid by the Trustee to the City, as its
absolute property and free from trust, and the Trustee shall thereupon be released and
discharged with respect thereto and the Bond Owners shall look only to the City for the
payment of such Bonds; provided, however, that before being required to make any such
payment to the City, the Trustee shall, at the expense of the City, cause to be mailed to the
Owners of all such Bonds, at their respective addresses appearing on the Bond Registration
Books, a notice that said moneys remain unclaimed and that, after a date named in said notice,
which date shall not be less than thirty (30) days after the date of mailing of such notice, the
balance of such moneys then unclaimed will be returned to the City.
IN WITNESS WHEREOF, the CITY OF PALO ALTO has caused this Indenture to be
signed in its name by its Director of Administrative Services and its seal to be affixed hereon
and attested by its City Clerk, and U.S. Bank National Association, in token of its acceptance of
the trust created hereunder, has caused this Indenture to be signed in its corporate name by its
officer identified below, all as of the day and year first above written.
CITY OF PALO ALTO
[S E A L]
Attest:
By
Director of Administrative Services
By
City Clerk
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
Authorized Officer
EXHIBIT A
A-l-
EXHIBIT B
PLACEMENT AGREEMENT
[PLACEMENT DATE]
City of Palo Alto
250 Hamilton Avenue
Palo Alto, California 94301
[PURCHASERS]
Ladies and Gentlemen:
The undersigned Stone Youngberg LLC (the "Placement Agent"), hereby offers to enter
into this Placement Agreement (this "Placement Agreement") with the City of Palo Alto (the
"City") and [PURCHASERS] (the "Purchasers") in connection with the issuance of $
aggregate principal amount of City of Palo Alto Electric System Clean Renewable Energy Tax
Credit Bonds, 2007 Series A (the "Bonds"). Capitalized terms used but not defined herein shall
have the meaning assigned thereto as set forth in the Indenture (defined below).
The principal terms and conditions of the transaction are outlined below.
1. -Placement and Purchase of Bonds. Upon the basis of the representations and
agreements herein contained, but subject to the terms and conditions hereinafter set forth, the
City hereby appoints the Placement Agent as its exclusive agent for the purpose of assisting the
City in finding purchasers of the Bonds.
Subject to the performance by the City and the Purchasers of all their respective
obligations to be performed under this Placement Agreement and to the completeness and
accuracy of all representations and warranties of the City and each Purchaser contained in this
Placement Agreement, the Placement Agent hereby agrees to accept such agency.
The City understands that the Placement Agent is acting solely as the City’s agent in the
placing of the Bonds and that the Placement Agent’s responsibility is limited to a "reasonable
efforts" basis in placing the Bonds, with no understanding, express or implied, on the part of the
Placement Agent of a commitment by the Placement Agent, whether as principal or agent, to
purchase or place the Bonds. The Placement Agent shall have no liability to the City if any
purchase of Bonds is not consummated for any reason.
Nothing contained in this Placement Agreement (i) shall prevent either Placement Agent
from entering into any agency agreements, underwriting agreements or other similar agreements
LA I 912498v.3 83520/90200
governing the offer and sale of securities with any other issuer or issuers of securities or (ii) shall
be construed in any way as precluding or restricting other rights of either Placement Agent to sell
or offer for sale any securities issued by any other person, including securities similar to, or
competing with, any of the Certificates.
Each Purchaser hereby agrees that it will purchase, and the City hereby agrees to cause
the Trustee (as defined below) to authenticate and deliver to such Purchaser the Bonds
designated for purchase by such Purchaser on Schedule I hereto on the Closing Date (as defined
in Section 9 hereof). The City and each Purchaser hereby agree that all (but not less than all) of
the Bonds shall be delivered and purchased hereunder and that no Bonds shall be delivered if any
Purchaser fails to purchase Bonds as required hereunder. The purchase price of the Bonds to be
purchased by each Purchaser shall be the price corresponding to such maturity of Bonds set forth
on Schedule II, payable by such Purchaser as provided herein.
2. The Bonds. The Bonds will be issued and delivered pursuant to an Indenture of
Trust, dated as of [DOCUMENT DATE] (the "Indenture"), by and between the City and U.S.
Bank National Association, as trustee (the "Trustee"). The Bonds will be dated the date of their
delivery. The Bonds will mature on 1, 20 The Bonds will not bear interest.
Jones Hall, A Professional Law Corporation, Bond Counsel, will deliver an opinion on
the Closing Date in the form attached to the Placement Memorandum (defined below) as
Appendix F. Under Section 54 of the Code, a taxpayer owning a Bond on each "credit
allowance date" will be entitled to a tax credit against its federal income tax. The tax credit will
be equal to the principal amount of Bonds of each maturity outstanding on the "credit allowance
date" multiplied by the credit rate (the "Credit Rate") for such maturity of Bonds set forth on
Schedule II hereto, which rate is the credit rate for such maturity as published on the date hereof
by the U.S. Secretary of the Treasury on its Internet site at
http://www.treasurydirect.gov/SZ/SPESRates?type=CREBS. The parties hereto agree that this
Memorandum constitutes a binding commitment for the sale of the Bonds for .purposes of
establighing the Credit Rate in accordance with Notice [2005-98] published by the U.S.
Department of Treasury.
The Bonds will be issued as fully registered Bonds, and, when issued initially, shall be
issued only in book-entry form, registered in the name of Cede & Co., as nominee for The
Depository Trust Company, New York, New York ("DTC"). DTC is serving as the initial
securities depository for the Bonds. Purchases of beneficial ownership interests in the Bonds
may be made only through the DTC book-entry system and may be made only in minimum
denominations of $5,000 or any integral multiple thereof. Beneficial Owners of the Bonds will
not receive certificates representing their interests in the Bonds. One fully-registered certificate
will be issued for each maturity of the Bonds, each in the aggregate principal amount of such
maturity, and will be deposited with DTC:
3. Purpose of the Transaction. The proceeds of the Bonds will be used for the
purpose of financing the costs of acquisition and construction of certain additions, betterments
and improvements to the City’s electric utility (the "Project") as described in Section 54 of the
Code.
2
4. Security. The Bonds are revenue obligations of the City, payable solely from and
secured by a pledge of the Net Revenues of the Electric System and the other funds pledged
therefor under the Indenture.
5. Placement Memorandum. The City shall cause to be delivered to the Placement
Agent, at the expense of the City, promptly after acceptance hereof, but in any event within
seven business days of the date of this Placement Agreement, copies of a final placement
memorandum with respect to the issuance and sale of the Notes (the "Placement
Memorandum"), dated the date hereof, with only such changes therein as shall have been
mutually agreed upon by the City and the Placement Agent.
The City has approved distribution of a Preliminary Placement Memorandum, dated
__, 2007 (the "Preliminary Placement Memorandum"), by the Placement Agent and hereby
authorizes the Placement Agent to use, in connection with the placement of the Bonds, the
Placement Memorandum and all other documents, agreements, certificates or statements
furnished by the City to the Placement Agent or entered into in connection with the placement of
the Bonds, and all other documents, agreements, certificates or statements furnished by the City
or entered into in connection with the transactions described in this Placement Agreement. The
City agrees to provide to the Placement Agent, at the expense of the City, such number of copies
of the Placement Memorandum as the Placement Agent may request and, such additional copies
as may be required in order to permit the Placement Agent to provide copies of the Placement
Memorandum to any and all Purchasers. The City represents that the Preliminary Placement
Memorandum was "final" as of its date within the meaning of paragraph (b)(1) of Rule 15c2-12
under the Securities Exchange Act of 1934, as amended (the "1934 Act").
6. Representations~ Warranties~ Covenants and Obligations of the City. The
City represents and warrants to, and agrees with, the Placement Agent and each Purchaser as
follows:
(a) The City is a charter city duly organized and existing pursuant to the
Constitution and laws of the State of California and has all necessary power and authority
to adopt the resolution or resolutions of the City authorizing the issuance and delivery of
the Bonds (the "Resolutions") and to enter into and perform its duties under the Indenture
and the Continuing Disclosure Agreement, between the City and the Trustee, as
dissemination agent, with respect to the Bonds (such Continuing Disclosure Agreement
substantially in the forms heretofore reviewed by the Placement Agent, with only such
changes therein as shall be mutually agreed upon by the parties hereto being the
"Continuing Disclosure Agreement" and together with the Indenture and the Bonds, the
"Transaction Documents");
(b) The execution and delivery by the City of the Transaction Documents and
compliance with the provisions hereof and thereof, have been duly authorized by all
necessary official action on the part of the City;
(c) Except as disclosed in the Placement Memorandum, there is no action,
suit, proceeding or investigation at law or in equity before or by any court or
governmental agency or body pending or threatened against the City to restrain or enjoin
3
the execution or delivery of the Transaction Documents, or the ability of the City to pay
the Bonds, or in .any way contesting or affecting the validity of the Transaction
Documents, or contesting the existence of the City or the power of the City to enter into
or perform its obligations under any of the foregoing;
(d) The City agrees to cooperate with the Placement Agent in endeavoring to
qualify the Bonds for offering and sale under the securities or blue sky laws of such
jurisdictions of the United States as the Placement Agent may request; provided,
however, that in no event shall the City be required to take any action which would
subject it to general or unlimited service of process in any jurisdiction in which it is not
now so subject;
(e) The information with respect to the City and the Bonds contained in the
Placement Memorandum is, and at all times subsequent to the date of the Placement
Memorandum up to and including the Closing Date will be, true and correct in all
material respects, and such information does not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(f) The City will advise the Placement Agent promptly of any proposal to
amend or supplement the Placement Memorandum and will not effect or consent to any
such amendment or supplement without the consent of the Placement Agent, which
consent will not be unreasonably withheld. The City will advise the Placement Agent
promptly of the institution of any proceedings known to it by any governmental agency
prohibiting or otherwise affecting the use of the Placement Memorandum in connection
with the offering, sale or distribution of the Bonds;
(g) If, at any time on or prior the Closing Date, any event occurs as a result of
which the Placement Memorandum as then amended or supplemented would include an
untrue statement of a material fact, or omit to state any material fact necessary in order to
make the statements contained therein, in the light of the circumstances under which they
were made, not misleading, and, in the reasonable opinion of the Placement Agent, an
amended or supplemented Placement Memorandum should be delivered in connection
with the offering or sale of the Bonds to reflect such event, the City will promptly
prepare, at its own expense, an amendment or supplement which will correct such
statement or omission;
(h) The City acknowledges and agrees that in connection with the offering
contemplated hereby and the process leading to such transaction, (i) the Placement Agent
is not a fiduciary of the City, (ii) the Placement Agent has not assumed nor will assume
an advisory or fiduciary responsibility in favor of the City with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether either
Placement Agent has advised or is currently advising the City on other matters) and the
Placement Agent has no obligation to the City with respect to the offering contemplated
hereby except the obligations expressly set forth in this Placement Agreement, (iii) the
Placement Agent or its affiliates may be engaged in a broad range of transactions that
4
involve interests that differ from those of the City and (iv) the Placement Agent has not
provided any legal, accounting, regulatory or tax advice with respect to the offering
contemplated hereby, and the City has consulted its own legal, accounting, regulatory and
tax advisors to the extent it deemed appropriate.
7. Representations~ Warranties~ Covenants and Obligations of the Purchasers.
Each Purchaser represents, warrants and covenants that the Purchaser has duly authorized, by all
necessary action, the purchase of the Bonds and the execution and delivery of this Placement
Agreement and any other instruments and documents required to be executed by the Purchaser in
connection with the purchase of the Bonds.
8. Representations and Warranties of the Placement A~ent. The Placement
Agent represents to the City both as of the time of acceptance hereof and as of the time of the
Closing that (i) it is duly authorized and empowered to execute and deliver this Placement
Agreement and that it is duly authorized to perform its obligations hereunder and that it has full
authority to take such action as it may deem advisable with respect to all matters pertaining to
this Placement Agreement; and (ii) this Placement Agreement has been duly executed and
delivered by the Placement Agent and shall constitute a valid and binding obligation of the
Placement Agent.
9. Conditions to Obligations of the Purchasers. The obligation of each Purchaser
to accept delivery of and pay for the Bonds on the Closing Date is subject to the conditions
provided in this Section. Each Purchaser’s obligation to purchase the Bonds will be subject to
the following conditions (i) the Transaction Documents shall be satisfactory in form and
substance to such Purchaser and its counsel, (ii) the accuracy in all material respects of the
representations, warranties and agreements on the part of the City contained in the Transaction
Documents as of the Closing Date, (iii) the accuracy in all material respects of the statements of
the officers, members, agents and other officials of the City made in any certificates or other
documents furnished pursuant to the provisions hereof, and (iv) the performance bythe City of
its obligations to be performed hereunder at or prior to the Closing Date:
(a) At the time of Closing, the Transaction Documents shall be in full force and
effect as valid, binding and enforceable agreements between or among the various parties
thereto, and the Transaction Documents shall not have been amended, modified or
supplemented, except as described herein or as may otherwise have been agreed to in
writing by the Purchasers.
(b) After the date hereof and prior to the Closing Date, none of the following shall
have occurred:
(1) legislation shall have been enacted by or introduced in the
Congress amending or proposing to amend the Code in a manner that will affect
retroactively the tax credits to be received by the Purchasers pursuant to the
Bonds;
(2) legislation shall have been enacted by or introduced in the
Congress, or action by or on behalf of the Securities and Exchange Commission,
5
or any other governmental agency having jurisdiction of the subject matter, to the
effect that obligations of the general character of the Bonds are not exempt from
registration under the Securities Act of 1933, as amended (the "Securities Act);
(c) At or prior to the Closing Date, the Purchasers shall have received the
following documents:
(1) The Transaction Documents, duly executed and delivered by the
respective parties thereto;
(2) A Placement Memorandum of the City, dated , 2007
relating to the Bonds (which, together with all appendices thereto and
supplements thereto, is herein called the "Placement Memorandum"), duly
executed by the City.
(3) An Opinion of Bond Counsel dated the Closing Date in
substantially the form included as Appendix __ to the Placement Memorandum;
(4) An Opinion of Counsel to the City, dated the Closing Date and
addressed to the City and the Trustee, to the effect that:
(A) the City is a charter city duly organized and validly existing
pursuant to the Constitution and the laws of the State of California;
(B) the Resolutions of the City approving and authorizing the
execution and delivery of the Transaction Documents were duly adopted
at meetings of the Council of the City called and held pursuant to law and
with all public notice required by law and at which a quorum was present
and acting throughout and the Resolutions are in full force and effect and
have not been modified, amended or rescinded (except as such
Resolutions may have amended one another);
(C) the City has full right and lawful authority to enter into and
perform under the Transaction Documents, and the Transaction
Documents have been duly authorized, executed and delivered by the City
(D) there is no action, suit, proceeding or investigation at law or
in equity before or by any court, public board or body pending or, to the
best of such counsel’s knowledge, threatened against or affecting the City
in which an unfavorable decision, ruling or finding would adversely affect
the City’s ability to execute or perform its obligations under the
Transaction Documents, or in any way contesting the existence of the City
or the powers of the City with respect thereto, or the ability of the City to
make payment under the Bonds, or affecting, contesting or seeking to
prohibit, restrain or enjoin the execution and delivery of any of the Bonds
or in any way contesting or affecting the validity or enforceability of the
Transaction Documents; and
(E) insofar as it would materially adversely affect the City’s
ability to enter into, carry out and perform its obligations under any or all
of the Transaction Documents, (a) the City is not in material breach of or
default under any constitutional provision, law, administrative rule or
regulation, applicable judgment or decree, or any loan agreement,
indenture, bond, note, resolution, agreement or other instrument to which
it is a party or to which it or any of its property or assets is otherwise
subject, (b) no event has occurred and is continuing which, with the
passage of time or the giving of notice, or both, would constitute a default
or an event of default under any such instrument, and the execution and
delivery by the City of the Transaction Documents and compliance with
the provisions thereof, under the circumstances contemplated thereby, do
not and will not in any material respect conflict with or constitute on the
part of the City a breach of or default under any agreement or other
instrument to which the City is a party or by which it is bound or any
existing law, regulation, court order or consent decree to which the City is
subject, nor will any such authorization, execution, delivery or
performance result in the creation or imposition of any lien, charge or
other security interest or encumbrance of any nature whatsoever upon any
of the property or assets of the City or under the terms of any such law,
regulation, resolution or instrument, except as provided by the Bonds and
the Transaction Documents;
(5) The Certificate of the City, signed by an authorized official of the
City, dated the Closing Date, to the effect that:
(A) The City is a charter city duly organized and existing
pursuant to the Constitution and laws of the State of California and has all
necessary power and authority to adopt the resolution or resolutions of the
City authorizing the execution and delivery of the Bonds (the
"Resolutions") and to enter into and perform its duties under the
Transaction Documents;
(B) The execution and delivery by the City of the Transaction
Documents, and compliance with the provisions hereof and thereof, have
been duly authorized by all necessary official action on the part of the
City;
(C) To the best of the City’s knowledge, there is no action, suit,
proceeding or investigation at law or in equity before or by any court or
governmental agency or body pending or threatened against the City to
restrain or enjoin the execution or delivery of the Bonds, Transaction
Documents, or the ability of the City to make payments on the Bonds, or
in any way contesting or affecting the validity of the Bonds, the
Transaction Documents, or contesting the existence of the City or the
power of the City to enter into or perform its obligations under any of the
foregoing;
(D) the representations and warranties made by the City in the
Transaction Documents and this Placement Agreement are true and
correct in all material respects on the Closing Date, with the same effect as
if made on and with respect to the facts as of the Closing Date;
(6) Certified copies of the Resolutions of the City authorizing the
execution and delivery of the Transaction Documents to which it is a party;
(7) A Certificate of the Trustee, dated the Closing Date, signed by a
duly authorized officer of the Trustee, to the effect that:
(A) such officer is a duly authorized officer of the Trustee;
(B) the duties and obligations of the Trustee under the
Indenture have been duly accepted by the Trustee; and
(C) to the best of such officer’s knowledge, no litigation is
pending or threatened (either in state or federal courts) (i)seeking to
restrain or enjoin the execution or delivery of any of the Bonds, or (ii) in
any way contesting or affecting any authority for the execution or delivery
of the Bonds or the validity or enforceability of the Bonds or the
Indenture;
(8) A Tax Certificate of the City relating to the Bonds, in form and
substance satisfactory to Bond Counsel;
(9) Evidence of the appropriate filings by the City with the California
Debt and Investment Advisory Commission; and
(10) A Reliance Letter addressed to the Trustee, to the effect that the
Trustee may rely on the opinion of Bond Counsel in substantially the form
included as Appendix to the Placement Memorandum; and
(11) Such additional legal opinions, certificates, certifications,
proceedings, instruments and other documents as the Purchaser or Purchaser’s
counsel, the City or Bond Counsel may reasonably request to evidence
(i) compliance by the City with legal requirements, (ii) the truth and accuracy, as
of the Closing Date, of the representations of the City contained herein and in the
Transaction Documents, and (iii) the due performance or satisfaction by the City
at or prior to such time of all agreements then to be performed and all conditions
then to be satisfied by the City.
If the City shall be unable to satisfy the conditions to the Purchasers’ obligations
contained in this Section there shall be no obligation of the Purchasers to purchase the Bonds,
and neither the Purchasers nor the City shall have any further obligation relating to the Bonds.
The Placement Agent may, however, in its discretion and subject to the approval of the
Purchasers, waive one or more of the conditions imposed by this Placement Agreement and
proceed with the Closing (defined below).
10. The Closing. At 9:00 A.M., California time, on , 2007, or at such
earlier or later time or date as shall be agreed by the City, the Placement Agent and the
Purchasers (such time and date being herein referred to as the "Closing Date") the City will
deliver to The Depository Trust Company ("DTC") in New York, New York for the account of
each Purchaser (or such other location as may be designated by the Purchasers and approved by
the City), the Bonds to be purchased by such Purchaser hereunder in definitive form, in the form
of a separate fully registered Bond (which may be typewritten) for each of the maturity of the
Bonds and bearing CUSIP numbers, duly executed by the City and authenticated by the Trustee,
and will deliver the other documents herein mentioned to each Purchaser at the San Francisco,
California, offices of Bond Counsel; and each Purchaser will accept such delivery and pay the
purchase prices of such Bonds as set forth in Section 1 hereof by wire transfer payable in
immediately available funds (such delivery and payment being herein referred to as the
"Closing"). Notwithstanding the foregoing, neither the failure to print CUSIP numbers on any
Bond nor any error with respect thereto shall constitute cause for a failure or refusal by any
Purchaser to accept delivery of and pay for the Bonds on the Closing Date in accordance with the
terms of this Placement Agreement. Upon initial issuance, the ownership of such Bonds shall be
registered in the registration books kept by the Trustee in the name of Cede & Co., as the
nominee of DTC.
11. Indemnification by Ci .ty. To the extent permitted by law, the City agrees to
indemnify and hold harmless the Placement Agent and the Trustee, and each director, officer,
partner, member, agent, employee and controlling person of the Placement Agent and the
Trustee, from and against all losses, claims, damages, liabilities and expenses, joint or several, to
which the Placement Agent or the Trustee, or such director, officer; partner, member, agent
employee or controlling person of the Placement Agent or the Trustee (collectively, the
"Indemnified Parties" and each an "Indemnified Party") may become subject under the federal
securities laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) (1) arise out of or are based upon any breach of any of
the representations and warranties of the City contained herein (2) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained in the sections
pertaining to the City in the Placement Memorandum (the "Obligee Information"), or (3) arise
out of or are based upon the omission or alleged omission to state in the Obligee Information a
material fact required to be stated therein or necessary to make the statements contained in the
Obligee Information not misleading in light of the circumstances in which they were made, and
the City shall reimburse the Indemnified Parties for any expenses, including, but not limited to,
any legal, professional and other reasonable expenses reasonably incurred by the Indemnified
Parties in investigating, preparing or defending against any litigation, commenced or threatened,
or any claim whatsoever; provided that such expenses result from such an untrue statement or
alleged untrue statement of a material fact or such an omission or alleged omission to state a
material fact contained in or omitted from the Obligee Information.
In addition, to the extent permitted by law, if the City shall fail to cause delivery of the
Bonds as required hereunder, the City (i) shall indemnify and hold harmless the Placement Agent
against all losses, claims, damages, liabilities and expenses, joint or several, to which the
Placement Agent or any director, officer; partner, member, agent employee or controlling person
of the Placement Agent may become subject under law or otherwise arising from or as a result of
such failure by the City and shall reimburse such parties for any expenses, including, but not
limited to, any legal, professional and other reasonable expenses reasonably incurred by such
parties in investigating, preparing or defending against any litigation, commenced or threatened,
or any claim whatsoever and (ii) shall pay to the Placement Agent any fee to which it would be
entitled hereunder in connection with such sale as if such sale had been consummated.
12.Fees and Expenses.
(a) At the time of and as a condition to the placement by Stone &
Youngberg LLC, the Placement Agent, of the Bonds, the City shall pay or cause to be
paid all of the fees and expenses incurred in connection with the Closing including the
Placement Agent’s placement agency fee of $ and out-of-pocket expenses
(except as hereinafter described), financial consultant fees, authentication and acceptance
fees of the Trustee, fees and expenses of counsel to the Trustee, fees and expenses of
Bond Counsel, counsel to the Placement Agent, fees and expenses of the City and its
counsel, and all fees necessary for printing or otherwise reproducing the Placement
Memorandum, closing, recording of documents, title insurance, property and casualty
insurance and similar expenses.
(b) The Placement Agent shall pay (1) the expenses of any advertising incurred in
connection with its offering of the Bonds, and (2) all other expenses incurred by it in
connection with its offering and distribution of the Bonds, other than the expenses
incurred by it which are described in paragraph 12(a) above.
13. Survival of Representations. The representations set forth in paragraphs 6, 7
and 8 hereof shall remain operative and in full force and effect regardless of the execution and
delivery of the Bonds or any investigation made by or on behalf of any of the parties hereto.
14. Headings. The headings of the paragraphs in this Placement Agreement are
inserted for convenience only and shall not be deemed to be a part hereof.
15. Counterparts. This Placement Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which taken together
shall constitute one agreement, and any of the parties hereto may execute this Placement
Agreement by signing any such counterpart.
10
16. Governin~ Law. This Placement Agreement shall be governed by and construed
in accordance with the laws of the State of California.
Very truly yours,
STONE & YOUNGBERG LLC,
as Placement Agent
By:
Authorized Signatory
Accepted and Agreed to:
CITY OF PALO ALTO
By:
[PURCHASERS], as Purchaser
By:
Authorized Signatory
[PURCHASERS], as Purchaser
By:
Authorized Signatory
[PURCHASERS], as Purchaser
By:
Authorized Signatory
11
SCHEDULE I
PURCHASED BONDS
Purchaser
[PURCHASER]
[PURCHASER]
[PURCHASER]
Maturity of Bonds
Purchased Principal Amount
(1 )Purchased
20 $
20 $
20
20
$
$
$
$
Purchase Price
$
$
$
$
$
$
SCHEDULE II
CREDIT RATES AND PRICES
Maturity
(__1)
20
20
20
20
20
20
20
20
Credit Rate
%
Price
EXHIBIT C
PRELIMINARY PLACEMENT MEMORANDUM DATED JUNE
NEW ISSUE -- FULL BOOK-ENTRY ONLY
2007
UNRATED "
$1,500,000"
CITY OF PALO ALTO
Electric System Clean Renewable Energy Tax Credit Bonds,
2007 Series A
Dated: Date of Delivery Due:__ 1, as shown on inside front cover page
This cover page contains certain information for general reference only. It is not intended to be a summary of
the security or terms of this issue. Investors are advised to read the entire Placement Memorandum to obtain
information essential to the making of an informed investment decision. Capitalized terms used on this cover page not
otherwise defined shall have the meanings set forth herein.
The Electric System Clean Renewable Energy Tax Credit Bonds, 2007 Series A (the "2007A Bonds") are
being issued by the City of Palo Alto (the "City") for the purpose of (i) financing or reimbursement of a portion of the
costs of acquisition and construction of certain additions, betterments and improvements to the City’s electric utility
(the "Electric System"), as more fully described herein (the "2007 CREB Project") and (ii) paying costs of issuance of
the 2007A Bonds. See "PLAN OF FINANCE" herein.
The 2007A Bonds are being issued pursuant to an Indenture of Trust, dated as of June 1, 2007 (the
"Indenture"), by and between the City and U.S. Bank National Association, as trustee (the "Trustee"). The 2007A
Bonds are being issued in fully registered form, registered in the name of Cede & Co., as nominee of The Depository
~Trust Company ("DTC") under the book-entry only system maintained by DTC. So long as Cede & Co. is the
registered owner of the 2007A Bonds, principal of the 2007A Bonds will be payable by the Trustee to DTC, which is
obligated in turn to remit such payments to its DTC participants for subsequent disbursement to the beneficial owners
of the 2007A Bonds, as more fully described herein. The 2007A Bonds are being issued in denominations of $5,000 or
any integral multiple thereof.
The 2007A Bonds are Clean Renewable Energy Bonds (as described herein). The 2007A Bonds do not bear
interest. In lieu of receiving periodic interest payments from the City on the 2007A Bonds, taxpayers that are Owners
will receive a federal income tax credit as further described herein.
The 2007A Bonds are not subject to redemption prior to maturity.
The 2007A Bonds are revenue obligations of the City, payable solely from and secured by a pledge of the Net
Revenues of the Electric System and the other funds pledged therefor, which pledge of Net Revenues is on a parity
with any parity debt hereafter issued or incurred by the City, as more fully described herein. The 2007A Bonds are
secured and payable on a bas~s subordinate to the City’s Utility Revenue Bonds 1995 Series A currently outstanding in
the principal amount of $5,965,000. See "SECURITY AND SOURCES OF PAYMENT FOR THE 2007A BONDS"
The general fund of the City is not liable and the credit or taxing power of the City is not pledged for the
2 payment of the principal of the 2007A Bonds. The Owners of the 2007A Bonds shall not compel the exercise of~ the taxing power by the City or the forfeiture of its property. The principal of the 2007A Bonds is not a debt of.,~
_~ the City, nor a legal or equitable pledge, charge, lien or encumbrance, upon any of its property, or upon any of
~its income, receipts, or revenues except the Net Revenues.
herein.
, Preliminary, subject to change.
MATURITY SCHEDULE
(see inside front cover)
In the opinion of Jones Hall, A Professional Law Corporation, San Francisco, California, Bond Counsel,
subject, however, to the qualifications set forth below, under existing law, the 2007A Bonds represent Clean
Renewable Energy Bonds which are eligible for the tax credit set forth in Section 54 of the Tax Code. See "TAX
MATTERS" herein.
The 2007A Bonds are offered, when, as and if issued, subject to the approval of legality by Jones Hall, A
Professional Law Corporation, San Francisco, California, Bond Counsel, and certain other conditions. Certain legal
matters will be passed upon for the Placement Agent by Sidley Austin LLP, San Francisco, California, and for the City
by the City Attorney of the City. It is expected that the 2007A Bonds will be available for delivery through the DTC
book-entry system in New York, New York on or about ,2007.
Stone & Youngberg LLC
Placement Agent
Dated:., 2007
MATURITY SCHEDULE*
Maturity Date
( 1 ) Principal Amount Tax Credit Rate Price CUSIP÷ Number
* Preliminary, subject to change.
"~ A registered trademark of the American Bankers Association. CUSIP data herein is provided by
Standard & Poor’s, CUSIP Service Bureau, a division of The McGraw-Hill Companies, Inc. This data is
not intended to create a database and does not serve in any way as a substitute for the CUSIP Service.
CUSIP numbers are provided for convenience of reference only. The City takes no responsibility for the
accuracy of such numbers.
LAI 911286vA 83520/90200
No dealer, broker, salesperson or other person has been authorized by the City or the Placement
Agent to give any information or to make any representations other than those contained herein and, if
given or made, such other information or representation must not be relied upon as having been
authorized by any of the foregoing.
This Placement Memorandum does not constitute an offer to sell or the solicitation of an offer to
buy, nor shall there be any sale of the 2007A Bonds by a person in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification under the securities laws of
such jurisdiction.
Statements contained in this Placement Memorandum that include forecasts, estimates or matters
of opinion, whether or not expressly stated as such, are intended solely as such and are not to be construed
as representations of fact. The information set forth herein has been furnished by the City and by other
sources that are believed to be reliable, but is not guaranteed as to accuracy or completeness, and is not to
be construed as representations by the Placement Agent. The information and expressions of opinions
herein are subject to change without notice, and neither the delivery of this Placement Memorandum nor
any sale made hereunder shall create, under any circumstances, any implication that there has been no
change in affairs of the City since the date hereof.
This Placement Memorandum is not to be construed as a contract with the purchasers of the
2007A Bonds.
CAUTIONARY STATEMENTS REGARDING
FORWARD-LOOKING STATEMENTS IN
THIS PLACEMENT MEMORANDUM
Certain statements included or incorporated by reference in this Placement Memorandum
constitute "forward-looking statements." Such statements are generally identifiable by the terminology
used such as "plan," "expect," "estimate," "budget" or other similar words. The achievement of certain
results or other expectations contained in such forward-looking statements involve known and unknown
risks, uncertainties and other factors that may cause actual results, performance or achievements
described to be materially different from any future results, performance or achievements expressed or
implied by such forward-looking statements. The City does not plan to issue any updates or revisions to
those forward-looking statements if or when its expectations or events, conditions or circumstances on
which such statements are based occur.
LAI 911286v.4 83520/90200
CITY OF PALO ALTO
City Council
Yoriko Kishimoto, Mayor
Larry Klein, Vice Mayor
John Barton, Council Member
Bern Beecham, Council Member
LaDoris H. Cordell, Council Member
Peter Drekmeier, Council Member
Judy Kieinberg, Council Member
Dena Mossar, Council Member
Jack Morton, Council Member
City Officials
Frank Benest, City Manager
Emily Harrison, Assistant City Manager
Gary Baum, City Attorney
Carl Yeats, Administrative Services Director
Lalo Perez, Assistant Director of Administrative Services
Joe Saccio, Deputy Director of Administrative Services
Valerie Fong, Utilities Director
SPECIAL SERVICES
Jones Hall, A Professional Law Corporation
San Francisco, California
Bond Counsel
Stone & Youngberg LLC
San Francisco, California
Placement Agent
U.S. Bank National Association
San Francisco, California
Trustee
LAI 911286v.4 83520/90200
TABLE OF CONTENTS
INTRODUCTION .........................................................................................................................................1
Purpose ....................................................................................................................................................1
Authority for Issuance .............................................................................................................................1
The Electric System ................................................................................................................................1
Security and Sources of Payment for the 2007A Bonds .........................................................................2
Rate Covenant .........................................................................................................................................2
Continuing Disclosure ............................................................................................................................2
Other Matters ..........................................................................................................................................3
PLAN OF FINANCE ....................................................................................................................................3
APPLICATION OF 2007A BOND PROCEEDS .........................................................................................4
THE 2007A BONDS .....................................................................................................................................4
General ....................................................................................................................................................4
No Redemption Prior to Maturity ...........................................................................................................5
Payments in Lieu of Tax Credit ..............................................................................................................5
CLEAN RENEWABLE ENERGY BONDS ................................................................................................5
SECURITY AND SOURCES OF PAYMENT FOR THE 2007A BONDS .................................................6
Pledge of Net Revenues ..........................................................................................................................6
Rate Covenant .........................................................................................................................................7
Outstanding Senior Obligations ............................................................................................ ..................7
Parity Obligations ...................................................................................................................................7
Flow of Funds .........................................................................................................................................9
Investment of Funds ....................................................................i ...........................................................9
Limitation on Remedies ........................................................................................................................10
THE ELECTRIC SYSTEM ........................................................................................................................10
General ..................................................................................................................................................10
Power Supply Resources .......................................................................................................................10
Energy Risk Management Program ......................................................................................................17
Employees .........................................................................................: ...................................................19
Rates and Charges .................................................................................................................................20
Major Customers ...................................................................................................................................21
Customers, Energy Sales, Revenues and Demand ......................................................... .......................22
Forecast of Capital Expenditures ..........................................................................................................23
Indebtedness ..........................................................................................................................................23
Significant Accounting Policies ............................................................................................................24
Summary of Condensed Operating Results and Balance Sheet Information ........................................25
Statement of Net Assets ........................................................................................................................26
Management’s Discussion of Summary of Operating Results .............................................................27
RATE REGULATION ................................................................................................................................27
DEVELOPMENTS IN THE ENERGY MARKETS ..................................................................................28
Background; Electric Market Deregulation ..........................................................................................28
Additional Developments .....................................................................................................................28
City Electric System Operations Since Industry Restructuring ............................................................28
State Legislation ....................................................................................................................................30
Impact of Developments on the City ....................................................................................................32
OTHER FACTORS AFFECTING THE ELECTRIC UTILITY INDUSTRY ...........................................33
Energy Policy Act of 1992 ....................................................................................................................33
Federal Energy Legislation ...................................................................................................................33
i
LA1 911286vA 83520/90200
Recent ISO FERC Filings .....................................................................................................................34
Other Factors .........................................................................................................................................34
CONSTITUTIONAL LIMITATIONS ON TAXES AND APPROPRIATIONS .......................................35
California Constitution Articles XIIIA and XIIIB ................................................................................35
Constitutional Changes In California ....................................................................................................36
Future Initiatives ...................................................................................................................................36
ABSENCE OF LITIGATION .....................................................................................................................36
TAX MATTERS .........................................................................................................................................36
APPROVAL OF LEGALITY .....................................................................................................................37
NO RATINGS .............................................................................................................................................38
PLACEMENT AGREEMENT ...................................................................................................................38
GENERAL PURPOSE FINANCIAL STATEMENTS ..............................................................................38
EXECUTION AND DELIVERY ................................................................................................................39
APPENDIX A -
APPENDIX B -
APPENDIX C -
APPENDIX D -
APPENDIX E -
APPENDIX F -
EXCERPTS OF THE AUDITED FINANCIAL STATEMENTS OF THE
CITY FOR THE FISCAL YEAR ENDED JUNE 30, 2006 .....................................A-1
INFORMATION CONCERNING THE CITY OF PALO ALTO ............................B-1
BOOK-ENTRY ONLY SYSTEM ............................................................................C-1
SUMMARY OF CERTAIN PROVISIONS OF THE PRINCIPAL LEGAL
DOCUMENTS ..........................................................................................................D-1
PROPOSED FORM OF CONTINUING DISCLOSURE AGREEMENT ...............E-I
PROPOSED FORM OF OPINION OF BOND COUNSEL .....................................F-1
ii
LA1 911286v.4 83520/90200
PLACEMENT MEMORANDUM
$1,500,000"
CITY OF PALO ALTO
Electric System Clean Renewable Energy Tax Credit Bonds,
2007 Series A
INTRODUCTION
This Introduction is qualified in its entirety by reference to the more detailed information
included and referred to elsewhere in this Placement Memorandum. The offering of the 2007A Bonds to
potential investors is made only by means of the entire Placement Memorandum. Terms used in this
Introduction and not otherwise defined shall have the ~espective meanings assigned to them elsewhere in
this Placement Memorandum. See "APPENDIX D -- SUMMARY OF CERTAIN PROVISIONS OF THE
PRINCIPAL LEGAL DOCUMENTS--DEFINITIONS" herein.
Purpose
The purpose of this Placement Memorandum (which includes the cover page and the appendices
attached hereto) is to provide information concerning the sale and delivery of Electric System Clean
Renewable Energy Tax Credit Bonds, 2007 Series A (the "2007A Bonds") in the aggregate principal
amount of $1,500,000". The 2007A Bonds are being issued pursuant to an Indenture of Trust, dated as of
June 1, 2007 (the "Indenture"), by and between the City of Palo Alto (the "City") and U.S. Bank National
Association, as trustee (the "Trustee"). The 2007A Bonds are being issued for the purpose of (i)
financing or reimbursement of a portion of the costs of acquisition and construction of certain additions,
betterments and improvements to the City’s electric utility (the "Electric System"), as more fully
described herein (the "2007 CREB Project") and (ii) paying costs of issuance of the 2007A Bonds. See
"PLAN OF FINANCE" herein.
Authority for Issuance
The City is a duly constituted charter city of the State of California authorized pursuant to
Chapter 12.28 of the Palo Alto Municipal Code, enacted pursuant to the Charter of the City (the
"Charter"), to issue revenue bonds for the purposes of financing improvements to the Electric System of
the City. The 2007A Bonds will be issued under the Charter, Chapter 12.28 of the Palo Alto Municipal
Code, a resolution of the City, adopted ,2007, and the Indenture.
The Electric System
The City provides electric utility service through the City of Palo Alto Utilities (the "CPAU").
The City owns and operates the CPAU, which currently includes transmission and distribution facilities.
The City purchases power and transmission services from others and participates in other utility-type
arrangements. For the fiscal year ended June 30, 2006, the CPAU served 28,863 customers, had total
sales of approximately 966 million kWh and a peak demand of 178.3 MW. Approximately 70.4% of the
City’s energy sales are made to commercial and industrial customers.
* Preliminary, subject to change.
LA1 911286v,4 83520/90200
Security and Sources of Payment for the 2007A Bonds
The 2007A Bonds are revenue obligations of the City payable solely from and secured solely by a
pledge of the Net Revenues of the City’s Electric System and the other funds pledged therefor under the
Indenture. The City is obligated to make payments to certain joint action agencies, including payments
with respect to bonds issued by such agencies as operating expenses of the Electric System which are
payable prior to payment of the 2007A Bonds. See "ELECTRIC SYSTEM - Indebtedness" herein.
The 2007A Bonds are secured by and payable from Net Revenues on a parity with any bonds,
notes or other obligations (including without limitation long-term contracts, loans, sub-leases, other legal
financing arrangements, interest rate swap agreements or credit or liquidity enhancement agreements) of
the City payable from and secured by a pledge of and lien upon any of the Net Revenues issued or
incurred in accordance with the Indenture ("Parity Obligations") that may be hereafter issued or incurred
by the City. The 2007A Bonds are secured and payable on a basis subordinate to the City’s Utility
Revenue Bonds 1995 Series A currently outstanding in the principal amount of $5,965,000. See
"SECURITY AND SOURCES OF PAYMENT FOR THE 2007A BONDS" herein.
The general fund of the City is not liable and the credit or taxing power of the City is not
pledged for the payment of the principal of the 2007A Bonds. The Owners of the 2007A Bonds
shall not compel the exercise of the taxing power by the City or the forfeiture of its property. The
principal of the 2007A Bonds is not a debt of the City, nor a legal or equitable pledge, charge, lien
or encumbrance, upon any of its property, or upon any of its income, receipts, or revenues except
the Net Revenues.
Rate Covenant
Pursuant to the Indenture, the City will covenant to fix, prescribe, revise and collect Charges for
the Electric System during each Fiscal Year which (together with other funds transferred from
stabilization reserve fund for the Electric System, and which are lawfully available to the City for
payment of any of the following amounts during such Fiscal Year) are at least sufficient, after making
allowances for contingencies and error in the estimates, to pay the following amounts in the following
order: (a) all Maintenance and Operation Costs of the Electric System estimated by the City to become
due and payable in such Fiscal Year; (b) the Debt Service attributable to the Electric System; (c) all other
payments required for compliance with this Indenture and the instruments pursuant to which any Parity
Obligations relating to the Electric System shall have been issued; and (d) all payments required to meet
any other obligations of the City which are charges, liens, encumbrances upon or payable from the Gross
Revenues of the Electric System or the Net Revenues of the Electric System.
In addition, pursuant to the Indenture, the City will covenant to fix, prescribe, revise and collect
Charges for the Electric System during each Fiscal Year are sufficient to yield Net Revenues of the
Electric System at least equal to 125% of the Debt Service attributable to the Electric System in such
Fiscal Year for Bonds which have a lien on such Net Revenues.
See "SECURITY AND SOURCES OF PAYMENT FOR THE 2007A BONDS --Rate
Covenant" herein.
Continuing Disclosure
The City has covenanted for the benefit of the holders and beneficial owners of the 2007A Bonds
to provide certain financial information and operating data relating to the City and the Electric System by
not later than 270 days following the end of the City’s fiscal year (which fiscal year presently ends
LAI 911286v.4 83520/90200
June 30) (the "Annual Report"), commencing with the report for the 2006-07 fiscal year, and to provide
notices of the occurrence of certain enumerated events, if material. The Annual Report will be filed by
the Trustee on behalf of the City with each Nationally Recognized Municipal Securities Information
Repository. The notices of material events will be filed by the Trustee on behalf of the City with the
Municipal Securities Rulemaking Board and each Nationally Recognized Municipal Securities
Information Repository. The specific nature of the information to be contained in the Annual Report and
the notice of material events is summarized in "APPENDIX E - PROPOSED FORM OF CONTINUING
DISCLOSURE AGREEMENT" herein. These covenants have been made in order to assist the
Placement Agent in complying with S.E.C. Rule 15c2-12(b)(5) (the "Rule"). As of the date hereof, the
City has never failed to comply in all material respects with any previous undertakings with regard to the
provision of annual reports or notices of material events as required by the Rule.
Other Matters
The summaries of and references to documents, statutes, reports and other instruments referred to
herein do not purport to be complete, comprehensive or definitive, and each such summary and reference
is qualified in its entirety by reference to each document, statute, report or instrument. The capitalization
of any word not conventionally capitalized or otherwise defined herein indicates that such word is defined
in a particular agreement or other document and, as used herein, has the meaning given it in such
agreement or document.
Copies of the Indenture and the Continuing Disclosure Agreement are available for inspection at
the offices of the Trustee or the Palo Alt0 Electric System Department and will be available from the
Trustee upon request and payment of duplication costs. Additional information regarding this Placement
Memorandum may be obtained by contacting the Trustee or:
Joe Saccio
Deputy Director of Administrative Services
City of Palo Alto
250 Hamilton Avenue
Palo Alto, California 94301
(650) 329-2288
PLAN OF FINANCE
The 2007A Bonds are being issued for the purpose of (i) financing or reimbursement of a portion
of the costs of acquisition and construction of certain additions, betterments and improvements to the
City’s electric utility and (ii) paying costs of issuance of the 2007A Bonds.
The City has applied for and received allocation under the Clean Renewable Energy Bond
("CREB") program of the United States Department of Energy for the cost of acquiring and installing
approximately 250 kilowatts (kW) of solar photovoltaic (PV) panels to produce electricity at various City
facilities, consisting of five different kinds of solar panels at three different locations: 1) the Lucy Evans
Baylands Interpretive Center; 2) the Cubberley Community Center; and 3) the City’s Municipal Services
Center (collectively, the "2007 CREB Project").
3
LA 1 911286vA 83520/90200
Set forth below is a summary of the estimated costs of the 2007 CREB Project to be funded in
part from proceeds of the 2007A Bonds, including investment earnings on the amounts deposited in the
2007 CREB Project Fund. The balance of funding of such costs is to be provided by a United Stated
Department of Energy grant and the revenues of the Electric System.
Estimated Costs
Equipment for Lucy Evans Baylands Interpretive Center
Equipment for Cubberley Community Center
Equipment for City’s Municipal Services Center
Design
Project Management
Public Education
Construction Contingency
Total .....................................................................................
$ 124,288
1,424,818
1,001,144
275,000
140,000
25,000
265,000
$3,255,250
APPLICATION OF 2007A BOND PROCEEDS
The proceeds of the 2007A Bonds are expected to be applied as follows:
Sources:
Principal Amount of 2007A Bonds ..............................................
[Net Original Issue Discount] ......................................................
Total Sources .........................................................................
$1,500,000.00
Uses:
2007 CREB Project Fund ............................................................
Placement Agent’s Fee ................................................................
Costs of Issuance~1) ................................................................i .....
Total Uses .............................................................................$
~) Includes legal fees, fees of the Trustee, printing costs and other miscellaneous expenses.
THE 2007A BONDS
General
The 2007A Bonds will be prepared as one fully registered certificate for the 2007A Bonds and
will be registered in the name of Cede & Co., as nominee for The Depository Trust Company, New York,
New York ("DTC"). DTC will act as securities depository for the 2007A Bonds. Principal of the 2007A
Bonds is payable by the Trustee to DTC, which is obligated in turn to remit such principal to its DTC
Participants for subsequent disbursement to the beneficial owners of the 2007A Bonds. See
"APPENDIX C--BOOK-ENTRY ONLY SYSTEM" herein.
The 2007A Bonds are being issued in the aggregate principal amount of $1,500,000. The 2007A
Bonds will be dated the date of delivery thereof and will mature on the dates and in the principal amounts
4
LA1 911286v.4 83520/90200
as set forth on the inside cover page of this Official Statement.. The 2007A Bonds will be delivered in
fully registered form, without coupons, in denominations of $5,000 or any integral multiple thereof.
The 2007A Bonds are Clean Renewable Energy Bonds. The 2007A Bonds do not bear interest.
In lieu of receiving periodic interest payments from the City on the 2007A Bonds, taxpayers that are
Owners will receive a federal income tax credit as further described herein. See "Clean Renewable
Energy Bonds" below. The annual tax credit rate for each maturity of the 2007A Bonds is set forth on the
inside cover page hereof.
No Redemption Prior to Maturity
The 2007A Bonds are not subject to redemption prior to maturity.
Payments in Lieu of Tax Credit
Under the terms of the Indenture, if any Owner of the 2007A Bonds either (i) receives notice, in
any form, from the Internal Revenue Service, or (ii) reasonably determines, based on an opinion of an
independent tax counsel selected by such Owner and approved by the City, which approval the City will
not unreasonably withhold, that such Owner is otherwise able to use the tax credit described in Section 54
of the Tax Code (the "Credit") but may not use the Credit due to a final determination of the Internal
Revenue Service (after the City has exhausted all administrative appeal remedies) is not a "Clean
Renewable Energy Bond" as defined in Section 54 of the Tax Code (the "Eligible Owner"), the City
agrees that it shall pay to the Eligible Owner, within thirty (30) days after the Eligible Owner notifies the
City of such determination, the amount which, taking into account all penalties, fines, interest and
additions to tax that are imposed on the Eligible Owner as a result of the loss of "Clean Renewable
Energy Bond" status for the 2007A Bonds owned by such Eligible Owner, and will restore to the Eligible
Owner the same after-tax yield on such 2007A Bonds that the Eligible Owner would have realized from
the date of issuance of the 2007A Bonds to the date of such determination, had the loss of "Clean
Renewable Energy Bond" status not occurred. In addition, the City agrees in the Indenture that upon the
occurrence of such an event, it will pay an additional amount, on each anniversary of the Closing Date
occurring after the date on which the first additional payment was made by the City pursuant to the
preceding sentence, as will maintain such after-tax yield to the Eligible Owner. In the event that the City
makes any payment to an Eligible Owner pursuant to this provision in the Indenture and it is subsequently
determined, pursuant to a final, conclusive and non-appealable decision of the Internal Revenue Service
or a court of competent jurisdiction that the 2007A Bonds constitute Clean Renewable Energy Bonds, the
City shall be entitled to reimbursement for all amounts so paid to such Eligible Owner. See "CLEAN
RENEWABLE ENERGY BONDS" and "TAX MATTERS."
CLEAN RENEWABLEENERGYBONDS
A clean renewable energy bond ("CREB") is a taxable debt obligation issued by a state or
political subdivision thereof (and certain other qualified issuers) the proceeds of which are used to
improve certain qualified projects, including certain facilities that use solar energy to produce electricity.
A CREB is not an obligation the interest on which is excluded from gross income for federal income tax
purposes.
In lieu of receiving periodic interest payments from the issuer, a holder of a CREB is generally
allowed annual federal income tax credits in an amount equal to a credit rate for such CREB multiplied by
the outstanding principal amount of the CREBs owned by such holder, as further described below (the
"CREB Credits"). The CREB Credits compensate the holder for lending money to the issuer and function
as payments of interest on the CREB. A portion of the annual CREB Credits are deemed paid on each
5
LA 1 911286v.4 83520/90200
March 15, June 15, September 15 and December 15 and the last day on which a CREB is outstanding
(each a "Credit Allowance Date"). The amount of the CREB Credit, generally, on each Credit Allowance
Date is equal to 25% of the annual CREB Credit. However, in the case ofa CREB issued during the three
month period ending on a Credit Allowance Date, the amount of the CREB Credit received on the initial
Credit Allowance Date will be a ratable portion of the CREB Credit otherwise determined based on a
portion of the three-month period during which the CREB is outstanding. Similarly, a ratable portion of
the CREB Credit will be received on the maturity date of the CREB if such date is not on March 15, June
15, September 15 or December 15.
The U.S. Secretary of the Treasury publishes the CREB credit rate on a daily basis, and it is
available on the web site at https://www.treasurydirect.gov/SZ/SPESRates?type=CREBS.
See "TAX MATTERS."
SECURITY AND SOURCES OF PAYMENT FOR THE 2007A BONDS
Pledge of Net Revenues
The 2007A Bonds are revenue obligations of the City payable solely from and secured solely by a
pledge of the Net Revenues (as described below) of the Electric System and the other funds pledged
therefor under the Indenture. The City is obligated to make payments to certain joint action agencies,
including payments with respect to bonds issued by such agencies, as Maintenance and Operation Costs
of the Electric System which are payable prior to payment of the 2007A Bonds. The 2007A Bonds are
secured by and payable from Net Revenues on a parity with any Parity Obligations hereafter issued or
incurred by the City. The City has covenanted pursuant to the Indenture that it will not issue any bonds or
incur any other obligations having a prior in payment out of Net Revenues over the 2007A Bonds. See
"THE ELECTRIC SYSTEM--Indebtedness" herein and "--Parity Obligations" below.
The term "Net Revenues" means, with respect to the Electric System, for any period of
computation, the amount of the Gross Revenues received from the Electric System during such period,
less the amount of Maintenance and Operation Costs of the Electric System becoming payable during
such .period.
The term "Gross Revenues" means all revenues, which include all charges received for and all
other income and receipts derived by the City from the operation of the Electric System or arising from
the Electric System received by the City from the services, facilities, energy and distribution of electric
energy by the City, including income from investments, but excepting therefrom (a) all reimbursement
charges and deposits to secure service and (b) any charges collected by any person to amortize, or
otherwise relating to the payment of, the uneconomic portion of costs associated with assets and
obligations ("stranded costs") of the Electric System or of any joint powers agency in which the City
participates which the City has dedicated to the payment of obligations other than the 2007A Bonds or
any Parity Obligations then outstanding, the payments of which obligations will be applied to or pledged
to or otherwise set aside for the reduction or retirement of outstanding obligations of the City or any joint
powers agency in which the City participates relating to such "stranded costs" of the City or of any such
joint powers agency to the extent such "stranded costs" are attributable to, or the responsibility of, the
City. See "THE ELECTRIC SYSTEM--Joint Powers Agency Resources" and APPENDIX D -
"SUMMARY .OF CERTAIN PROVISIONS OF THE PRINCIPAL LEGAL DOCUMENTS --
Definitions" herein.
The term "Parity Obligation" means all bonds, notes or other obligations (including without
limitation 10ng-term contracts, loans, sub-leases, other legal financing arrangements, interest rate swap
6
LAI 911286vA 83520/90200
agreements or credit or liquidity enhancement agreements) of the City payable from and secured by a
pledge of and lien upon any of the Net Revenues issued or incurred in accordance with the Indenture.
The general fund of the City is not liable and the credit or taxing power of the City is not
pledged for the payment of the principal of the 2007A Bonds. The Owners of the 2007A Bonds
shall not compel the exercise of the taxing power by the City or the forfeiture of its property. The
principal of the 2007A Bonds is not a debt of the City, nor a legal or equitable pledge, charge, lien
or encumbrance, upon any of its property, or upon any of its income, receipts, or revenues except
the Net Revenues.
Rate Covenant
Pursuant to the Indenture, the City will covenant to fix, prescribe, revise and collect Charges for
the Electric System during each Fiscal Year which (together with other funds transferred from
stabilization reserve funds for the Electric System, and which are lawfully available to the City for
payment of any of the following amounts during such Fiscal Year) are at least sufficient, after making
allowances for contingencies and error in the estimates, to pay the following amounts in the following
order: (a) all Maintenance and Operation Costs of the Electric System estimated by the City to become
due and payable in such Fiscal Year; (b) the Debt Service on all 2007A Bonds and Parity Obligations
then outstanding; (c) all other payments required for compliance with the Indenture and the Parity
Obligations; and (d) all payments required to meet any other obligations of the City which are charges,
liens, encumbrances upon or payable from the Gross Revenues of the Electric System or the Net
Revenues of the Electric System.
In addition, pursuant to the Indenture, the City will covenant to fix, prescribe, revise and collect
Charges for the Electric System during each Fiscal Year are sufficient to yield Net Revenues of the
Electric System at least equal to 125% of the Debt Service attributable to the Electric System in such
Fiscal Year for Bonds and Parity Obligations which have a lien on such Net Revenues.
Outstanding Senior Obligations
The City has previously issued its Utility Revenue Bonds t995 Series A (the "1995 Senior
Bonds"). Pursuant to the indenture under which the 1995 Senior Bonds were issued there is established a
reserve account securing the 1995 Senior Bonds. The 1995 Senior Bonds and the City’s obligation to
reimburse the provider of a surety bond on deposit in such reserve account are secured and payable from
the net revenues of the Electric System and certain other City utilities on a basis senior to the 2007A
Bonds.
The 1995 Senior Bonds are fixed interest rate obligations currently outstanding in an aggregate
principal amount of $5,965,000. There are currently no outstanding reimbursement obligations to the
surety provider for the 1996 Senior Bonds reserve account. Maximum annual debt service on the 1995
Senior Bonds is $685,312.
The City covenants under the Indenture that no additional bonds or other obligations shall be
issued or incurred by the City having any priority in payment of principal or interest out of the Net
Revenues over the 2007A Bonds.
Parity Obligations
In addition to the 2007A Bonds, the City may issue or incur Parity Obligations payable from or
secured by Net Revenues to be derived from the Electric System or, to provide financing for the Electric
7
LAI 911286vA 83520/90200
System, in such principal amount as shall be determined by the City. The City may issue or incur any
such Parity Obligations subject to the following specific conditions:
(a)The City shall be in compliance with all covenants set forth in the Indenture.
(b) The Net Revenues of the Electric System, calculated on sound accounting principles, as
shown by the books of the City for the latest Fiscal Year or any more recent twelve (12) month period
selected by the City ending not more than sixty (60) days prior to the issuance or incurrence of the Parity
Obligations, as shown by the books of the City, less withdrawals, if any, from Electric System’s rate
stabilization fund, plus, at the option of the City, any or all of the amount described in the following
paragraph, shall at least equal 100% of Maximum Annual Debt Service on all 2007A Bonds and Parity
Obligations to be Outstanding immediately subsequent to the issuance or incurrence of such Parity
Obligations which have a lien on Net Revenues of Electric System.
The following may be added to Net Revenues for the purpose of issuing or incurring Parity
Obligations under the Indenture: an allowance for earnings arising from any increase in the Charges
which has become effective prior to the incurring of such additional indebtedness but which, during all or
any part of such Fiscal Year or such twelve (12) month period, was not in effect, in an amount equal to
the amount by which the Net Revenues would have been increased if such increase in Charges had been
in effect during the whole of such Fiscal Year or such twelve (12) month period, all as shown in the
written report of an Independent Consultant engaged by the City.
(c) The Net Revenues of the Electric System, calculated on sound accounting principles, as
shown by the books of the City for the latest Fiscal Year or any more recent twelve (12) month period
selected by the City ending not more than sixty (60) days prior to the issuance or incurrence of the Parity
Obligations, as shown by the books of the City, plus, at the option of the City, any or all of the items in
this paragraph designated (i), (ii) and (iii), shall at least equal 125% of Maximum Annual Debt Service on
the 2007A Bonds and Parity Obligations to be Outstanding immediately subsequent to the issuance or
incurrence of such Parity Obligations which have a lien on Net Revenues of the Electric System. The
items any or all of which may be added to such Net Revenues for the purpose of issuing or incurring
Parity Obligations are the following:
(i) An allowance for Net Revenues from any additions to or improvements or extensions of
the Electric System to be made with the proceeds of such Parity Obligations, and also for Net Revenues
from any such additions, improvements or extensions which have been made from moneys from any
source but in any case which, during all or any part of such Fiscal Year or such twelve (12) month period,
were not in service, all in an amount equal to ninety percent (90%) of the estimated additional average
annual Net Revenues to be derived from such additions, improvements and extensions for the first 36
month period in which each addition, improvement or extension is respectively to be in operation, all as
shown in the written report of an Independent Consultant engaged by the City;
(ii) An allowance for earnings arising from any increase in the Charges which has become
effective prior to the incurring of such additional indebtedness but which, during all or any part of such
Fiscal Year or such 12 month period, was not in effect, in an amount equal to the amount by which the
Net Revenues would have been increased if such increase in Charges had been in effect during the whole
of such Fiscal Year or such 12 month period, all as shown in the written report of an Independent
Consultant engaged by the City;
(iii) Maximum Annual Debt Service with respect to Parity Obligations shall be determined
using the principles set forth in the definition of Maximum Annual Debt Service set forth in the Indenture
(see APPENDIX D - "SUMMARY OF CERTAIN PROVISIONS OF THE PRINCIPAL LEGAL
LA1 911286v.4 83520/90200
8
DOCUMENTS-Definitions"); provided that if a Parity Obligation is contingent upon funds being
provided under a Credit Support Instrument to pay principal or purchase price of or interest on the Parity
Obligations, such Parity Obligations shall not be considered outstanding until such payment is made
thereunder.
Flow of Funds
Pursuant to the Indenture, the City has covenanted and agreed that all Gross Revenues shall be
held in trust by the Director of Administrative Services in the Revenue Fund and shall be applied,
transferred, used and withdrawn only for the purposes authorized in the Indenture and described below.
(1) Operating Costs. The Director of Administrative Services shall first pay from the
moneys in the Revenue Fund the budgeted Maintenance and Operation Costs as such Maintenance and
Operation Costs become due and payable.
(2) Debt Service Fund. On or before the third Business Day prior to each principal payment
date with respect to the 2007A Bonds, the Director of Administrative Services shall transfer (on a parity
with all other Debt Service transfers for Parity Obligations) from the Revenue Fund to the Trustee for
deposit in the Debt Service Fund an amount equal to the aggregate amount of principal becoming due and
payable on the 2007A Bonds on the next succeeding principal payment date. All interest earnings and
profits or losses on the investment of amounts in the Debt Service Fund shall be deposited in or charged
to the Debt Service Fund and applied to the purposes thereof. No transfer and deposit need be made into
the Debt Service Fund if the amount contained therein, taking into account investment earnings and
profits, is at least an amount equal to the principal installment to become due on the next principal
payment date upon the 2007A Bonds.
(3) Su__qrplus. As long as all of the foregoing payments, allocations and transfers are made at
the times and in the manner described in paragraphs (1) and (2) above, any moneys remaining in the
Revenue Fund may at any time be treated as surplus and applied as required by the City Charter.
Investment of Funds
The Revenue Fund, into which all Gross Revenues are initially deposited, the 2007 CREB Project
Fund, into which a portion of proceeds of the 2007A Bond proceeds will be deposited, and all other funds
held under the Indenture are required to be invested in certain Authorized Investments as provided under
the Indenture. See APPENDIX D--SUMMARY OF CERTAIN PROVISIONS OF THE PRINCIPAL
LEGAL DOCUMENTS-Definitions" for a summary of the definition of Authorized Investments.
All other funds held by the City are invested by the City in accordance with the City’s Investment
Policy as authorized by Section 53600 et seq. of the Government Code of the State of California.
Allowable investments under the Investment Policy are those authorized by California Government Code
Sections 53601 et seq. Purchase of investments by means of leverage is not permitted under the
Investment Policy, The Investment Policy is amended or updated no less than annually. The current
Investment Policy was approved by the City Council on June 12, 2006.
The Investment Policy may be changed at any time at the discretion of the City Council (subject
to the State law provisions relating to authorized investments) and as the California Government Code is
amended. There can be no assurance, therefore, that the State law and/or the Investment Policy will not
be amended in the future to allow for investments which are currently not permitted under such State law
or the Investment Policy, or that the objectives of the City with respect to investments will not change.
All investments, including the Authorized Investments and those authorized by law from time to time for
9
LA1 911286vA 83520/90200
investments by public agencies, contain a certain degree of risk. Such risks include, but are not limited to,
a lower rate of return than expected and loss or delayed receipt of principal. The occurrence of these
events with respect to amounts held under the Indenture, or other amounts held by the City, could have a
material adverse affect on the City’s finances.
Limitation on Remedies
In addition to the limitations on remedies contained in the Indenture, the rights and remedies
provided in the Indenture may be limited by and are subject to bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting creditors’ rights, to the application of equitable principles
and to the exercise of judicial discretion in appropriate cases.
THE ELECTRIC SYSTEM
General
The City is a charter city of the State of California. Pursuant to its charter, the City has the power
to furnish electric utility service to its inhabitants. In connection therewith, the City has the powers of
eminent domain, to contract, to construct works, to fix rates and charges for commodities or services
furnished and to incur indebtedness.
The City provides electric utility service through the City of Palo Alto Utilities (the "CPAU").
The legal responsibilities and powers of CPAU, including the establishment of rates and charges, are
exercised through the nine-member City Council. The members of the City Council are elected City-wide
for staggered four-year terms. CPAU is under the direction of the Director of CPAU who is appointed by
the City Manager.
Since 1900, the City has provided electric service within its boundaries. For the fiscal year ended
June 30, 2006, the City served approximately 28,650 customer accounts, had total sales of 966.1 million
kWh and a peak demand of 178.3 MW.
To provide electric service within its service area (which is coterminous with the City’s corporate
city boundaries), the City owns and operates an electric system that includes transmission and distribution
facilities. The City also purchases power and transmission service from others. It also participates in
certain power generation capacity under joint powers agencies. The City does not operated power
generation facilities or its own. In addition, the City provides normal city services to its inhabitants such
as police and fire protection and water and sewer service. CPAU administers all of the City’s utility
services.
Power Supply Resources
CPAU acquires electricity supply through long term bilateral contracts for generation output,
equity participation in jointly owned Northern California Power Agency (NCPA) generation, and via
medium-term bilateral market purchases. NCPA as the City’s scheduling agent undertakes short-term
balancing transactions within the month. The following table sets forth a March 2007 estimate of
CPAU’s power supply resources for the current fiscal year ending June 30, 2007.
LA I 911286v.4 83520/90200
10
POVCER SUPPLY RESOURCESm
Source
Purchased:
Western Area Power Administration
Wind Energy
Landfill Gas Energy
Forward Market Purchases(1)
Northern California Power Agency
Geothermal Project(2)
Calaveras Hydroelectric Projects
Seattle City Light Exchange
Short-Term Market
Capacity
Available
(MW)
Actual Energy Percent of
(GWh)Total Energy
159 399 40%
45 129 13
1 11 1
50 375 37
57 106 10
11 (3)
Total N/A(4)1,020 100%
189
Total Energy Sold and Exchanged at Wholesale
System Requirement for Retail
(1) See "Purchased Power - Other Power Purchases" below.
Capacity sold to Turlock Irrigation District. See "Joint Powers Agency Resources - NCPA Geothermal Project" below.
The City is required to return 8 MW of capacity to Seattle each year. See" - NCPA Seattle City Light Agreement" below.
Capacity availability varies by season and is not necessarily additive at any given time.
Source: City of Palo Alto.
Purchased Power
Western Area Power Administration. The City receives a substantial portion of its supply of
power from the Central Valley Project (the "CVP") pursuant to a contract with Western. The CVP, for
which Western serves as marketing agency, is a series of federal hydroelectric facilities in Northern
California operated by the United States Bureau of Reclamation.
In October 2000, the City signed a 20-year agreement with Western for the continued purchase of
hydroelectricity from the CVP. Service under the new agreement began on January 1, 2005 and continues
through 2024, with the City receiving an 11.62% "slice of the system" allocation from Western. The
power marketed by Western to the City is provided on a take-or-pay basis where Western’s annual costs
are allocated to preference customers based on their CVP participation percentage. Western then
allocates the annual take-or-pay charges to the preference customers based on a monthly percentage that
is designed to reflect the anticipated seasonal energy deliveries. The City is obligated to its preference
customer share (11.62%) of the costs associated with operating the CVP facilities. The City’s energy
allocation has dropped from the prior levels of approximately 900 GWh/year prior to 2005, to about
390 GWh/year in an average hydro year starting in January 2005. Under the new Western Base Resource
Contract, the City expects to pay approximately $10 million per year, resulting in an average cost of
approximately $25 per MWh in an average hydro year.
Wind Energy Contracts. The City currently has two long-term contracts for the output of wind
electricity generation. Under a contract with PPM Energy, Inc., for power from the High Winds I project
(owned by FPL Energy, LLC) in Solano County, the City is allocated available capacity of 20 MW and
acquired a fixed unit price on up to 58 GWh/year. The term of such contract ends in 2028. Under a
11
LAI 911286v.4 83520/90200
separate contract with PPM Energy, Inc., for power from the Shilo project (owned by PPM Energy, Inc.)
in Solano County, the City is allocated available capacity of 25 MW and acquired a fixed unit price on up
to 74.8 GWh/year. The term of such contract ends in 2021.
Landfill Gas Energy Contracts. The City currently has three long-term contracts for the output
of landfill gas electricity generation. Under a contract with Ameresco Santa Cruz Energy, L.L.C., for
power from the Santa Cruz project (owned by County of Santa Cruz) in Watsonville, California, the City
is allocated available capacity of 1.6 MW and acquired an initial fixed per-unit price with 1.5% annual
increases on up to 11.8 GWh/year. The term of such contract ends in 2026. Under a separate contract
with Ameresco Half Moon Bay, L.L.C., for power from the Half Moon Bay project (owned by Browning-
Ferris Industries of California, Inc.) in Half Moon Bay, California, the City is allocated available capacity
of 5.5 MW and acquired an initial fixed per-unit price with 1.5% annual increases on up to 43.0
GWh/year. The Half Moon Bay project is in the permitting stage and is expected to be begin operations
in February 2008. The term of such contract ends in 2028. Under a third contract with Ameresco Keller
Canyon, L.L.C., for power from the Keller Canyon project (owned by Keller Canyon Landfill Company)
in Pittsburg, California, the City is allocated available capacity of 1.5 MW and acquired an initial fixed
per-unit price with 1.5% annual increases on up to 12.0 GWh/year. The Keller Canyon project is in the
permitting stage and is expected to be begin operations in March 2008. The term of such contract ends in
2028. Each of the foregoing landfill gas energy contracts is unit contingent.
Other Power Purchases. The City has three Master Agreements with BP Energy, Coral Power
and Sempra Energy to facilitate competitive forward market purchases to meet City loads in the short to
medium term. As of December 31, 2006 the City had outstanding electricity purchase commitments for
the period January 2007 to December 2009, totaling 517 GWh spread between all three suppliers.
The City anticipates expanding the pool of suppliers to include Conoco Phillips, JP Morgan
Ventures Energy, Pacific Summit Energy, and Powerex Corp, and expects to begin transacting with all
seven suppliers starting in July 2007. The City in the recent past has met approximately 35% of its
energy needs through market based purchases, but these purchases are highly dependent on hydro
conditions and long-term commitments to renewable resource based supplies. All purchase transactions
and sales-incidental-to-purchases are designed to meet native load. NCPA serves as the City’s scheduling
and billing agent for all transactions, and acts as the interface with the California Independent System
Operator (the "ISO") under the MSS Agreement.
Joint Powers Agency Resources
NCPA Hydroelectric Project. NCPA’s Hydroelectric Project Number One (the "Hydroelectric
Project") consists of (a) three diversion dams, (b) the 243-MW Collierville Powerhouse, (c) the Spicer
Meadow Dam with a 5.5 MW powerhouse, and (d) associated tunnels located essentially on the North
Fork Stanislaus River and some of its minor tributaries in Alpine, Tuolumne and Calaveras Counties,
California, together with required transmission facilities.
The Hydroelectric Project, with the exception of certain transmission facilities, is owned by the
Calaveras County Water District ("CCWD") and is licensed by FERC pursuant to a 50 year License No.
2409 to CCWD. Pursuant to a Power Purchase Contract, NCPA (i) is entitled to the electric output of the
Hydroelectric Project until 2031, (ii) managed the construction of the Hydroelectric Project and (iii)
operates the generating and recreational facilities of the Hydroelectric Project. Under a separate FERC-
issued license with an expiration date coterminous with the Project No. 2409 license (Project No. 11197),
NCPA holds the license and owns the 230 kV Collierville-Bellota and 21 kV Spicer Meadow-Cabbage
Patch transmission lines from Project No. 2409. After the present FERC license expires in the year 2031,
NCPA has the option to continue to purchase Hydroelectric Project capacity and energy during a
12
LA1 911286v.4 83520/90200
subsequent license renewal period. The purchase option includes all capacity and energy which is surplus
to CCWD’s needs for power within the boundaries of Calaveras County.
The reservoirs for the Upper Utica, Utica and Angels projects are licensed by FERC under a 30-
year license. The license was issued by FERC on September 3, 2003.
As with any hydroelectric generation project, the operation of the Hydroelectric Project is
determined by consideration of its storage capacity and available stream flows. The Hydroelectric Project
has a 107 year record (1895 to 2002) of stream flows. Based upon the record, the Hydroelectric Project’s
average production is estimated to be 550 GWh annually. Using the driest period of record (1976-1977),
the Hydroelectric Project is estimated to produce 180 GWh annually. The Hydroelectric Project is
optimized together with NCPA’s other resources as determined by NCPA to economically meet the load
requirements of the respective project participants. The load-following characteristics of the project give
the City a great degree of flexibility in meeting the hourly and daily load variations. The Hydroelectric
Project generation for the 2005-06 fiscal year was 914 GWh, an extremely high generation due to
favorable weather conditions.
NCPA financed the Hydroelectric Project through the issuance of Hydroelectric Project Number
One Revenue Bonds. See "Indebtedness" below.
NCPA has sold the capacity of the Hydroelectric Project to certain of its members pursuant to
"take-or-pay" power sales contracts which require payments to be made whether or not the project is
completed or operable. Each purchaser is responsible under its power sales contract for paying its ....
entitlement share in the Hydroelectric Project of all of NCPA’s costs of the Hydroelectric Project,
including debt service on the aforementioned bonds as well as a "step-up" of up to 25% in the event of the
unremedied default of another NCPA Hydroelectric Project participant.
Pursuant to a power sales contract, the City has purchased from NCPA a 22.92% entitlement
share in the Hydroelectric Project. For the fiscal year ended June 30, 2006, the City received 222 GWh of
electric energy from the NCPA Hydroelectric Project. The City had been receiving this entitlement to its
system by using transmission service made available from ISO, the transmission grid operator.
NCPA Geothermal Project. The City, together with the Cities of Alameda, Biggs, Gridley,
Healdsburg, Lodi, Lompoc, Redding, Roseville, Santa Clara and Ukiah, the Plumas-Sierra Rural Electric
Cooperative, Turlock Irrigation District, the Truckee-Donner Public Utility District and the Port of
Oakland, is a member of a California joint powers agency known as the Northern California Power
Agency ("NCPA"). NCPA has developed a geothermal project (the "Geothermal Project") located on
federal land in certain areas of Sonoma and Lake Counties, California. In addition to the geothermal
leasehold, wells, gathering system and related facilities, the Geothermal Project consists of two electric
generating stations (Geothermal Plant 1 and Geothermal Plant 2), each with two 55 MW (nameplate
rating) turbine generating units utilizing low pressure, low temperature geothermal steam, and associated
facilities. NCPA Geothermal Plants 1 and 2 and the steam supply and its development were financed
with NCPA revenue bonds. NCPA formed two not-for-profit corporations controlled by its members to
own the generating plants of the Geothermal Project. NCPA manages the Geothermal Project for the
corporations and is entitled to all the capacity and energy generated by the Geothermal Project.
The NCPA Geothermal Plants have historically experienced greater-than-anticipated declines in
steam production from the existing geothermal wells. Although initially operated as baseload generating
projects at full capability (238 MW), by 1988 NCPA changed its steam field production from baseload to
load-following and reduced average annual steam production to 150 MW gross. Despite the
implementation of operating strategies to further reduce the rate of decline in steam production, including
13
LAI 911286v.4 83520/90200
the construction of an effluent pipeline from a neighboring sanitation district, and modifications to the
steam turbines and associated steam collection system, the average annual generation for 2006 was
107 MW gross. Annual generation in 2006 was reduced due to single unit overhauls totaling nine weeks.
Average annual generation in 2007 is expected to be approximately 110 MW gross including a single
unite five-week overhaul.
Based upon current operating protocols and forecasted operations, NCPA expects average annual
generation and peak capacity to decrease further, reaching approximately 116 MW gross by the year 2010
and remaining in excess of 75 MW gross through 2029, the end of the study period.
NCPA Geothermal Plants 1 and 2 and the steam supply and its development were financed with
NCPA revenue bonds. See "Indebtedness" below.
NCPA has sold the capacity of these two plants to certain of its members, including the City,
pursuant to a "take-or-pay" power sales contract which requires payments to be made whether or not the
projects are completed or operable. Each participant is responsible under the power sales contract for
paying its capacity share of all of NCPA’s costs of Geothermal Plants 1 and 2, including debt service on
the aforementioned NCPA bonds as a "step-up" of up to 25% upon the unremedied default of another
NCPA geothermal participant.
The City purchased from NCPA, pursuant to power sales contracts, 6.158% and 6.158%
entitlement shares, respectively, in the capacity of NCPA Geothermal Plants 1 and 2 and was obligated to
pay 6.158% of the debt service and operating costs associated with such plants and steam field. The City
sold its share of the capacity and associated energy from the NCPA Geothermal Plants 1 and 2 to Turlock
Irrigation District in October 1984. Accordingly, the City is liable for the payment of such outstanding
geothermal-related debt only in the event that the Turlock Irrigation District fails to make such payment.
In order to meet certain obligations required of NCPA to secure transmission and other support
services for the NCPA Geothermal Project, NCPA and the certain participants have undertaken the
Geysers Transmission Project. The Geysers Transmission Project includes (i) an ownership interest in
PG&E’s 230 kV line from Castle Rock Junction in Sonoma County to the Lakeville Substation (the
"Castle Rock to Lakeville Line"), (ii) additional firm transmission rights in the Castle Rock to Lakeville
Line and (iii) the Central Dispatch Facility.
NCPA Power Pool. The City is among ten participants (the "NCPA Pool Members") in an
NCPA power pool. The NCPA Pool Members’ service areas are generally surrounded by PG&E’s
service area. NCPA operates a central dispatch facility (the "Central Dispatch Center") at NCPA’s
headquarters. The Central Dispatch Center forecasts load demands for the ten NCPA Pool Members,
operates NCPA’s generating facilities, and enters into buy-and-sell transactions with other utilities
throughout the Western United States and Canada to balance the pool loads and resources. The Central
Dispatch Center also monitors and controls load and voltage levels and regulates hydroelectric facilities in
coordination with the ISO to maintain a safe and reliable interconnected system.
NCPA and the ten NCPA Pool Members entered into the NCPA-PG&E Interconnection
Agreement in 1983 in order to provide certain transmission and other support services to the ten NCPA
Pool Members. The NCPA-PG&E Interconnection Agreement was terminated on August 31, 2002.
Effective September 1, 2002, NCPA and the ISO entered into a Metered Subsystem Aggregation
Agreement (the "MSSA") and NCPA and PG&E entered into a Replacement lnterconnection Agreement
(the "Replacement NCPA-PG&E Interconnection Agreement") and a Settlement Agreement detailing
how the remaining contracts would be implemented when the transition was made from the old NCPA-
PG&E Interconnection Agreement to the MSSA.
LA1 911286v.4 83520/90200
14
NCPA Seattle City Light Agreement. In 1992, NCPA entered into an agreement with Seattle
City Light to provide for a seasonal power exchange. The agreement entitles the City to 11 MW (10.3
MW at City meter) during the summer and obligates it to return 8 MW (at City meter) during the winter.
Deliveries under this agreement began June 1, 1995 and will terminate no earlier than May 31, 2014.
TANC California-Oregon Transmission Project. The City, together with thirteen other northern
California cities and districts and one rural electric cooperative, is a member or associate member of a
California joint powers agency known as the Transmission Agency of Northern California ("TANC").
TANC, together with the City of Redding, the City of Vernon, California ("Vernon"), Western Area
Power Administration ("Western"), two California districts and PG&E (collectively, the "COTP
Participants") own the California-Oregon Transmission Project ("COTP"), a 339-mile long, 1,600 MW,
500 kV transmission project between southern Oregon and central California. The COTP was placed in
service on March 24, 1993, at a cost of approximately $430 million.
TANC financed its interest in the COTP through the issuance of California-Oregon Transmission
Project Revenue Bonds and commercial paper notes, of which approximately $385.63 million principal
amount of bonds and $34.6 million principal amount of commercial paper notes were outstanding as of
December 31, 2006. See "Indebtedness" below.
Pursuant to Project Agreement No. 3 for the COTP (the "TANC Agreement"), TANC has agreed
to provide to the City and 12 other members of TANC (the "TANC Members") with a participation
percentage of TANC’s entitlement of COTP transfer capability. In return, each TANC Member has
severally agreed to pay TANC a corresponding percentage of TANC’s share of the COTP construction
costs, including debt service on TANC’s outstanding revenue bonds, commercial paper and other
obligations issued by TANC to finance its ownership share of the COTP. A TANC Member’s obligations
to make payments to TANC are not dependent upon the operation of the COTP and are not subject to
reduction. Upon an unremedied default by one TANC Member in making a payment required under the
TANC Agreement, the nondefaulting TANC Members are required to increase pro-rata their participation
percentage by the amount of the defaulting TANC Member’s entitlement share, provided that no such
increase can result in a greater than 25% increase in the participation percentage of the nondefaulting
TANC Members.
Pursuant to the TANC Agreement, the City is obligated to pay 4.032% of TANC’s COTP
operating and maintenance expenses and 4.00% of TANC’s debt service and is entitled to 4.00% (net of
layoffs) of TANC’s share of COTP transfer capability (approximately 50 MW) on an unconditional take-
or-pay basis. The City’s share of annual operating and maintenance expenses and debt service for the
COTP through TANC is approximately $1.8 million per year.
To utilize the full transfer capability of the COTP on a firm basis and maximize the benefits of
the line, the COTP is operated on a coordinated basis with the Pacific AC intertie ("PACI"), a two line
system which, like the COTP, connects California utilities with those in the Pacific Northwest. The three-
line system, collectively referred to as the California-Oregon Interconnection ("COI"), was operated by
PG&E, acting as the control area operator, under the Coordinated Operations Agreement ("COA") and a
FERC rate schedule. The COA terminated on December 31, 2004 and was subsequently replaced by the
FERC approved Owners Coordinated Operating Agreement ("OCOA") among Western, PG&E, the City
of Redding, TANC and the other COTP owners. The OCOA provides for the continued Coordinated
operations of the COI. Additionally, under the Interim Coordinated Operations Agreement ("ICOA") the
1SO scheduled power deliveries over the COTP until the COTP transferred to the Sacramento Municipal
Utility District ("SMUD")-Western control area.
15
LA1 911286v.4 83520/90200
The costs and operation of the COTP are impacted by various FERC proceedings. On January 1,
2001, the ISO filed a revised transmission access charge which became effective on that date. PG&E and
Southern California Edison Company ("Edison") filed proposed tariff changes that would allow for the
pass-through of certain grid management and reliability service costs imposed on them by the ISO to their
respective existing transmission customers. TANC and the members-participants thereof, including the
City, prevailed in an arbitration case against the ISO, prevailed before FERC in the ISO’s appeal of the
arbitration case decision, which the ISO has chosen not to pursue on appeal, and are actively participating
in proceedings now pending at FERC to ensure that their ownership interests in and entitlements to the
COTP are not adversely affected by the operations of the ISO. In the meantime, a second arbitration case
against the ISO revolving around the same issues but for a later time period has been heard and a ruling
favorable to the City has been granted. The ISO has appealed the second arbitration case decision to
FERC, but fias withdrawn the vast majority of its positions. The City is awaiting a ruling on ancillary
issues to this case.
CO1 Upgrade Project. TANC, along with the other California COI owners, is sponsoring WECC
regional planning and rating increase processes for an upgrade of the CO1 from 4,800 MW to not less
than 5,100 MW through the addition of series capacitors at either Captain Jack or Olinda Substations,
along with shunt capacitors at Tracy Substation. In addition, the PacifiCorp-owned series capacitors at
Malin on the Malin-Round Mountain #2 500-kV line will be replaced.
These new facilities are expected to provide at least a 300 MW upgrade to the COI. The cost of
this project is estimated to be approximately $35 million. The City’s participation level in this project has
not yet been finalized.
Future Power Supply Resources
In accordance with its Long Term Electric Acquisition Plan, the City has entered into a number of
electricity purchase contracts as described above. As of December 2006 the City had procured
approximately 89% of its total projected electricity needs for fiscal year 2007-08 and 83% of its total
projected electricity needs for fiscal year 2008-09. Additional renewable generation contracts are
expected to be in place in the coming years to meet close to 33% of City’s energy needs.
The City’s current renewable energy resource policy targets a 30% resource portfolio share by
2012 and 33% by 2015. The policy also provides that such resource portfolio adjustments should not
result in a rate increase of more than 0.5 C/kWh (equivalent to about $3.35/month for an average
residential bill). The City also permits its customers to voluntarily participate in a green power program
whereby participating customers pay renewable energy retail rates. In 2005 and 2006 the City’s
participation rate in such programs was the highest for all similar programs in the United States, as
determined by the U.S. Department of Energy National Renewable Energy Laboratory.
In July 2006, the City entered into an agreement with NCPA relating to the NCPA Green Power
Project ("NGPP") to facilitate the joint purchase of renewable energy resources on behalf of eleven
participating NCPA members. Additional contracts are currently being negotiated as part of the NGPP
effort and are expected to be executed in the coming months. Such arrangements are anticipated to
supply an additional 10 to 13% of the City’s energy needs through 2029.
The City is also evaluating local cogeneration opportunities at customer sites and solar
photovoltaic projects within the City. The City continues to procure energy supplies to meet City’s short-
and medium-term energy needs through market purchases with the City’s pre-selected suppliers.
LA1 911286v.4 83520/90200
16
The City believes that power available for purchase under existing agreements, anticipated
renewable energy contracts, or acquired in the short-term market will provide the City with at least 83%
of its annual energy requirements through 2021 under normal hydro conditions. Beyond 2021, the City
faces up to a 24% deficit in its power supply as certain energy contract expire. The City intends to
continue to either extend existing agreements or enter into new contracts in order to maintain the 33%
renewable energy supply target.
Energy Risk Management
In accordance with its Long Term Electric Acquisition Plan, the City manages electric supply
cost uncertainty through a combination of comprehensive energy risk management policies and
guidelines, maintaining an adequate spool of credit-worthy suppliers, diversifying supply purchases
across commitment date, start date, duration, suppliers, pricing terms, and fuel sources, maintaining a
prudent exposure to changing market prices, and maintaining adequate supply rate stabilization reserves
to manage hydroelectric, market, credit and other uncertainties.
The City’s adopted its first Energy Risk Management Policy in 2001, which was most recently
updated in February, 2006. These policies are implemented through operational directives contained
within Risk Management Guidelines and Procedures. The latter document provides City staff with
specific actionable procedures for carrying out their assigned roles and responsibilities.
Energy Risk Management Program
The following discussion sets forth the City’s current energy risk management programs and
policies. The City may modify or eliminate such policy at its discretion.
The key parameters of the City’s energy risk management program are:
Independent Oversight Bodies - The City’s Risk Oversight Committee, which includes senior
managers from the City’s Legal, Auditor, Administration, Finance and Accounting Departments provides
internal oversight of energy procurement and reviews the risk management activities carried out by City
staff. Other independent oversight bodies include the Utilities Advisory Commission (composed of City
residents), as well as the Finance Committee of the City Council and the full City Council itself. Each of
these bodies reviews regular reports prepared by the CPAU and the City’s Energy Risk Manager.
Separation of Duties - Management functions are divided among a front office, middle office and
back office. The front office is primarily responsible for resource planning and procuring energy Supplies
and services. The middle office, which includes a full-time Energy Risk Manager, serves as the risk
control function, and reports, not to the CPAU Director, but rather to the Director of Administration,
ensuring a complete separation of duties between those who commit the City’s financial resources to
energy purchases, and those who manage and report on those risks. The back office is primarily
responsible for settlement of bills, recording transactions, bookkeeping and accounting, and contract
administration.
Anti-speculation. Speculative commodity trades are prohibited.
Physical Trades. Financial transactions are prohibited. City staff may only purchase physical
forward positions.
Laddering Strategy. The City’s purchasing strategy attempts to diversify purchases over time and
suppliers.
17
LAI 911286v.4 83520/90200
Regular Reporting of Risk Positions. The Energy Risk Manager provides a weekly report on
wholesale commodity transactions to senior managers in the CPAU and City administration. Quarterly
risk management reports are presented to and reviewed by the -Risk Oversight Committee, Utility
Advisory Commission and the City Council not more than eight weeks after issuance.
Monitoring of Key Risks. The key risks faced by the utility, and monitored on a weekly basis
include market risk, volume risk, credit risk, organizational risk and value at risk.
Financial Reserves.
The City maintains financial reserves in its Rate Stabilization Reserve to manage cost
fluctuations that may result from hydroelectric generation variability, market price volatility, supplier
default, or other financial risks. The reserve provides a cushion for sudden changes in commodity costs
and other operating expenses, to reduce the frequency of rate adjustments and absorb any sudden cost
increases. The City has set minimum and maximum Rate Stabilization reserve guidelines to 50% and
100% of annual purchase cost, respectively. The guideline also calls for an annual assessment of risks
facing the utility during the annual budget process to ensure that projected supply reserve levels are
adequate to cover anticipated risk for the following fiscal year. These required levels of reserve are then
factored into the calculations for the retail rates to be charge to customers.
The primary and largest cost risk facing the electric supply fund is a result of hydroelectric
production uncertainty. The City’s strategy is to manage this uncertainty by maintaining adequate rate
stabilization reserve levels. Staff has set the reserve levels to cover hydro risk at the cost of purchasing
additional electricity to offset one year of low hydroelectric production (1 in 10 year dry hydro scenario).
The expected market price uncertainty is a function of unhedged supply portfolio. As of December 2006,
11% of the electric supply portfolio for fiscal year 2007-08 was unhedged. Transmission related cost
uncertainties, plant outage, and Western cost uncertainties were also computed as part of the annual risk
assessment. In addition to the foregoing recurring cost uncertainties, a number of one-time contingencies
such as regulatory and legal risks, and supplier credit default risks were also assessed. The City estimates
that all such cost uncertainties total $44.2 million. Reserve balances are described under" - City Electric
System Operations Since Industry Restructuring" below. The projected Rate Stabilization Reserve end-
of-year balance for 2007-2008 is $43.7 million. An updated risk assessment is expected to be performed
as part of the budget process for fiscal year 2008-09, during which the City staff is expected to evaluate
the revenues, expenses and risks during the fiscal year 2008-09.
Interconnections, Transmission and Distri bution Facilities
The City’s electric system is directly interconnected with the system of PG&E by a single 115 kV
delivery point at the City’s Colorado substation. Until September 1, 2002, energy was delivered to the
City via PG&E’s transmission system under the NCPA/PG&E Interconnection Agreement. Since
September 2002, the City receives transmission services under the Metered Subsystem Aggregate
Agreement ("MSS Agreement") between NCPA and the ISO.
Palo Alto’s distribution system consists of the 115 kV to 60 kV delivery point, one 60 kV
switching station, 10 distribution substations, approximately 17 miles of 60 kV subtransmission lines,
approximately 100 miles of 12 kV distribution lines and approximately 100 miles of 4 kV distribution
lines.
LA1 911286vA 83520/90200
18
Employees
As of July 1, 2006, 115.48 full-time equivalent (FTE) staff were assigned to the electric system of
CPAU, including 69.10 FTE for the Electricity Services Divisions, 13.31 FTE for the Customer Service
Division] and 2.29 FTE for the Field Service (meter reading) Division. All such full-time employees,
excluding those in management, clerical and professional classifications, are represented by the Service
Employees’ International Union ("SEIU") Local Chapter 715 in all matters pertaining to wages, benefits
and working conditions. The current agreement with the SEIU is in the form of a memorandum of
understanding that expires in June, 2009. Management and professional employees receive substantially
the same fringe benefit package as the represented employees. The City’s wage and fringe benefits are
generally comparable to those offered by other local public agencies.
The City’s defined benefit pension plans, the Miscellaneous Plan and Safety Plan of the City of
Palo Alto, provide retirement and disability benefits, annual cost-of-living adjustments, and death benefits
to plan members and beneficiaries for all City employees, including those assigned to CPAU. The plans
are part of the Public Agency portion of the California Public Employees Retirement System
("CalPERS"), an agent multiple-employer plan administered by CalPERS, which acts as a common
investment and administrative agent for participating public employers within the State of California.
The City contributes to CalPERS for all of its employees. CPAU contributes its allocable share of the
required contributions for its employees. No CPAU employees participate in the Safety Plan. At
June 30, 2005 (the latest date for which actuarial information is available), the total actuarial accrued
liability for the City was 314,489,756 for the Miscellaneous Plan, the actuarial value of plan assets was
287,138,546 and the City had a funding deficit of $27,351,210 for the Miscellaneous Plan. The Plan’s
unfunded actuarial accrued liabilities are being amortized as a level percentage of projected payroll on a
closed basis. The average remaining amortization period at June 30, 2005 was 23 years for the
Miscellaneous Plan. CalPERS issues a separate comprehensive annual financial report. Copies of the
CalPERS annual financial report may be obtained from the CalPERS Executive Office, 400 P Street,
Sacramento, California 95814.
For fiscal year 2005-06, the City of Palo Alto’s annual pension cost was $10,313,936 for the
Miscellaneous Plan. The City actually contributed $10,102,437 for the Miscellaneous Plan. The excess
of actual contribution over annual pension costs consist of additional employee contributions. The City’s
required contribution for the Miscellaneous Plan for fiscal year 2006-07 is estimated to be $12.2 million
and for fiscal year 2007-08 is estimated to be $16.4 million. (The increase is due to the adoption of 2.7%
at 55.) The required contributions for fiscal year 2007-08 were determined as part of a June 30, 2005
actuarial valuation using the entry age normal actuarial cost method with the contributions determined as
a percent of pay. The actuarial assumptions included (a)7.75% investment rate of return (net of
administrative expenses); (b) projected salary increases that vary by duration of service ranging from
3.25% to 14.45% for miscellaneous members, depending on age, service, and type of employment, and
(c) a payroll growth of 3.25%.
In addition to providing pension benefits, the City participates in the California Public Employees
Medical and Health Care Act program to provide certain health care benefits for retired employees. The
City provides post-retirement medical coverage to all full-time employees hired prior to January 1, 2004,
who go directly from active status to retirement. For management employees hired on or after January l,
2004, and SEIU employees hired on or after January 1, 2005, the City provides 50% of medical benefits
after 10-years of service, the City’s portion increasing by 5% for each additional year of service up to 20
years. In the fiscal year ended June 30, 2006, approximately 612 retirees were eligible to receive this
benefit, at a cost of $3.599 million, including administrative fees. The amounts received and expended
for this coverage flow through the retiree health benefits internal service fund.
19
LA1 911286vA 83520/90200
On June 21, 2004, the Governmental Accounting Standards Board ("GASB") released its
Governmental Accounting Standards Board Statement No. 45, Accounting and Financial Reporting by
Employers for Postemployment Benefits Other Than Pensions. Statement No. 45establishes standards for
the measurement, recognition and display of post-employment healthcare as well as other forms of post-
employment benefits, such as life insurance, when provided separately from a pension plan expense or
expenditures and related liabilities in the financial reports of state and local governments. Under
Statement No. 45, governments will be required to: (i) measure the cost of benefits, and recognize other
post-employment benefits expense, on the accrual basis of accounting in periods that approximate
employees’ years of service; (ii) provide information about the actuarial liabilities for promised benefits
associated with past services and whether, or to what extent, those benefits have been funded; and provide
information useful in assessing potential demands on the employer’s future cash flows. The City’s post-
employment health benefits fall under Statement No. 45. The effective date of the Statement No. 45
reporting requirements for the City is fiscal year 2007-08 (the first fiscal year period beginning after
December 15, 2006).
An actuarial valuation of the City’s retiree medical benefits conducted in the current fiscal year
indicated an unfunded liability ranging from $83 million to $149 million depending on investment
discount rate assumptions. As of June 30, 2006, the City had saved $26.5 million towards such liability.
For additional information regarding the City’s pension obligations, see Note 12 to the City’s
audited financial statements included in Appendix A hereto.
Rates and Charges
The City Council of the City is authorized by the City Municipal Code to set charges, pay for and
supply all electric energy and power to be furnished to customers according to such schedules, tariffs,
rules and regulations as are adopted by the City Council. These rates are not subject to review by any
state or federal agency.
The Municipal Code also provides that the City Council shall have the power to .charge equitable
rates for the electric services furnished and for building up the electric properties so as to conserve their
value and increase their capacity as needed by the City. In addition, the City Charter provides for the
maintenance of a separate fund for each utility into which is deposited receipts from the operations of
such utilities and from which are payable the costs and expenses of such utility.
The City’s fiscal year 2005-06 average rate per kWh for residential service was 9.37 cents. The
City’s fiscal year 2005-06 average rate for commercial and industrial service was 8.11 cents per kWh.
The following table presents a history of the City’s electric utility rate increases since 2005.
CITY OF PALO ALTO
ELECTRIC UTILITY
RATE INCREASES
Date
July 1, 2006 ...............................................................
July 1, 2005 ...............................................................
January 1, 2005 .........................................................
Percent Change
0%
11.5
8.50)
(1) This increase reflects the average bill impact at the time of the increase. The increase on a fiscal year basis is 4.2%.
Source: City of Palo Alto.
LAI 911286vA 83520/90200
20
Major Customers
The ten largest accounts in the City’s electric utility, in terms of kWh sales are set forth in the
following table.
CITY OF PALO ALTO
ELECTRIC UTILITY
TEN LARGEST CUSTOMERS
(Fiscal Year 2005-06)
Customer
Agilent Technologies
City of Palo Alto
CPI
Hewlett Packard
Lockheed Missiles & Space
Space System Loral
Stanford Hospital
Syntex
Varian Medical Systems
Veterans Administration Hospital
The ten largest accounts in the City’s electric utility, based upon energy usage for the fiscal year
ended June 30, 2006 accounted for approximately 33.9% of total kWh sales and approximately 30.5% of
total electric revenues. The largest account consumed 7.6% of the City’s total kWh sales and contributed
6.35% of total revenues and the smallest of the ten largest accounts consumed 1.47% of total kWh sales
and 1.42% of revenues.
21
LAI 911286v.4 83520/90200
Customers, Energy Sales, Revenues and Demand
The average number of customers, kWh sales, revenues derived from sales, by classification of
service, and peak demand during the past five fiscal years, are listed below.
CUSTOMERS, SALES, REVENUES AND DEMAND
(Fiscal Years Ended June 30)m
2002 2003 2004 2005 2006
Number of Customerst2):
Residential ............................25,622
Commercial ..........................2,336
Industrial ...............................191
Other .....................................201
Total Customers ................28,350
Kilowatt-Hour Sales
(in thousands):
Residential ............................179,011
Commercial ..........................386,738
Industrial ...............................351,933
Other .....................................79,354
Total kWh sales ................997,036
Revenues from Sale of Energy:
Residential ............................
Commercial ..........................
Industrial ...............................
25,636 25,650 25,708 25,819
2,372 2,418 2,425 2,426
187 189 189 197
205 207 207 212
28,400 28,464 28,539 28,863
181,579 185,348 189,948 196,507
358,882 375,630 381,863 380,883
335,321 317,667 307,428 308,714
80,590 79,380 79,333 80,005
956,372 958,925 958,572 966,110
$ 13,546 $ 13,906 $ 14,350 15,282 $18,571
27,606 26,986 27,933 29,385 34,075
23,041 22,637 21,474 21,477 25,569
5,310 5,498 5,380 5,596 6,541
Other .....................................
Total Revenues from Sale
of Energy: .........................$ 69,503 $ 69,027 $ 69,137 71,740 $84,756
Peak Demand (MW) ..................183.9 183.1 178.1 174.5 178.3
o) Totals may not add due to rounding.
Source: City of Palo Alto.
All electric bills are due and payable upon receipt of billing and become delinquent 20 days
thereafter. If such bills remain unpaid on the 47th day after billing, all electric services are subject to
termination until all fees, charges, penalties and the entire delinquent balance have been paid. Delinquent
fees and charges may be made a lien against the property, placed on the tax roll of Santa Clara County
and collected in the same manner as ad valorem taxes.
LAI 911286v.4 83520/90200
22
The City considers its write-offs for uncollectible accounts to be low by electric utility industry
standards for urban areas. The write-offs for uncollectible accounts by fiscal year have been as follows:
Fiscal Year
Ended Uncollectible Percent of
June 30 Revenues Gross Billings
2002 n/a n/a
2003 $206,882 0.3%
2004 $321,125 0.4%
2005 $1,149,654 1.5%
2006 $499,235 0.6%
Source: City of Palo Alto.
2O08
$10,535
Source: City of Palo Alto.
Forecast of Capital Expenditures
The City’s five-year capital plan for electric facilities contemplates capital expenditures in the
following years and amounts:
CITY OF PALO ALTO
ELECTRIC UTILITY
ESTIMATED CAPITAL EXPENDITURES
Fiscal Year Ended June 30,
2009 2010 2011 2012
$9,015 $9,700 $8,660 $9,640
¯ The capital expenditures are for infrastructure replacement and new customer connections, the
City anticipates funding the majority of such costs from current year revenues. Since the 1960’s the City
has followed a policy of funding its capital improvements primarily from revenues rather than debt
financing.
The City does not currently plan to make further investment in new large-scale generation or
transmission resources. Most of the City’s anticipated energy deficits are expected to be met with
renewable power purchase agreements, long-term and short-term market purchases, and customer site
distributed generation and cogeneration.
Indebtedness
As previously discussed, the City participates in several joint powers agencies, including NCPA
and TANC. Obligations of the City under its agreements with respect to NCPA and TANC constitute
Maintenance and Operation Costs of the City payable prior to any of the payments required to be made on
the City’s Electric System bonds and other obligations. Agreements with the joint powers agencies in
which the City participates are on a "take-or-pay" basis, which requires payments to be made whether or
not projects are completed or operable, and whether output from such projects is suspended, interrupted
or terminated. These agreements contain "step-up" provisions obligating the City to pay a share of the
obligations of a defaulting participant. The City’s participation and share of debt service obligation
LA1 911286vA 83520/90200
23
(without giving effect to any "step-up" provisions) for each of the joint powers agency projects in which
it participates are shown in the following table.
OUTSTANDING DEBT OF JOINT POWERS AGENCIES
(Dollar Amounts in millions)
City
Share of
Outstanding City Outstanding
Debt(1)Participation Debt
NCPA
Geothermal Project ..........................$101.5(2)
Calveras Hydroelectric Project .........$483.5
Transmission Project $3.3
TANC
Bonds ...............................................385.6
Commercial Paper Notes .................34.6
TOTAL ......................................$1,008.8
6.16%(3)(4)$6.3
22.92(3)$110.8
11.07(3)$0.4
4.00(3)15.4
4.00 (3)1.4
$134.3
As of 12/31/2006
Excludes approximately $25 million of debt that has been economically defeased.
Participation obligation is subject to increase upon default of another project participant. Such increase should not exceed,
without prior written consent of a non-defaulting participant, an accumulated maximum of 25% of such non-defaulting
participant’s original participation.~4) Capacity sold to Turlock Irrigation District. See "Joint Powers Agency Resources - NCPA Geothermal Project" below.
Source: City of Palo Alto.
For the period ending December 31, 2006, the City’s obligations for debt service on its joint
powers agency obligations aggregated approximately $134 million, with annual debt payment of
approximately $8.4 million. Debt .service on joint powers agency obligations is expected to increase to a
high of approximately $9.5 million in 2011, and expected to decline to approximately $5 million in 2025.
This projection assumes no future debt issuances, and that the interest rate on unhedged (not otherwise
fixed through interest rate swap agreements) variable rate joint powers agency debt obligations will range
from % for tax-exempt commercial paper and variable rate bonds to % for taxable commercial
paper. Approximately % of the joint powers agency obligation debt service will be unhedged
variable rate debt. Under certain circumstances, each of the swap agreements relating to hedged variable
rate debt is subject to termination and the joint powers agency which is a party thereto may be required to
make a substantial termination payment to the swap dealer counterparty thereunder, for which the City
would be responsible for its applicable share. Unreimbursed draws under liquidity arrangements
supporting joint powers agency variable rate debt obligations bear interest at a maximum rate
substantially in excess of the assumed rates stated above. Moreover, in certain circumstances, the failure
to reimburse draws on the liquidity agreements may result in the acceleration of scheduled payment of the
principal of such variable rate joint powers agency obligations.
Significant Accounting Policies
The City’s Annual Financial Report is audited by Maze & Associates, Accountancy Corporation,
Walnut Creek, California, in accordance with generally accepted auditing standards, and contains
opinions that the financial statements present fairly the financial position of the various funds maintained
by the City. The reports include certain notes to the financial statements which are not described below.
Such notes constitute an integral part of the audited financial statements. Copies of these reports are
LA 1 911286v.4 83520/90200
24
available on request from the Administrative Services Department, City of Palo Alto, 250 Hamilton
Avenue, Palo Alto, California 94301. Governmental accounting systems are organized and operated on a
fund basis. A fund is defined as an independent fiscal and accounting entity with a self balancing set of
accounts recording cash and other financial resources, together with all related liabilities and residual
equities or balances, and changes therein. Funds are segregated for the purpose of carrying on specific
activities or attaining certain objectives in accordance with special regulations, restrictions or limitations.
The Electric System is accounted for as an enterprise fund. Enterprise funds are used to account
for operations (i) that are financed and operated in a manner similar to private business enterprises (where
the intent of the governing body is that the costs (expenses, including depreciation) of providing goods or
services to the general public on a continuing basis be financed or recovered primarily through user
charges) or (ii) where the governing body has decided that periodic determination of revenues earned,
expenses incurred and/or net income is appropriate for capital maintenance, public policy, management
control, accountability or other purposes.
Summary of Condensed Operating Results and Balance Sheet Information
The following table sets forth summaries of income and selected balance sheet information of
Palo Alto’s electric utility for the five fiscal years ending June 30, 2006.
CITY OF PALO ALTO
ELECTRIC SYSTEM
CONDENSED OPERATING RESULTS AND BALANCE SHEET INFORMATION
(thousands of dollars)
Fiscal Year Ended June 30,
2002 2003 2004 2005 2006
Summary of Income:
Operating Revenues $93,755 $91,622 $92,617 $88,737 $119,419
Operating Expenses(1)98,532 72,872 73,424 68,069 83,132
Operating Income (4,777)18,750 19,193 $20,668 $36,286
Other Income 10,845 8,875 252 547 (6,041)
Loss on Disposal of Fixed
Assets (47)(432)(66)(250)(60)
Transfers in 195 523 1,020 692 612
Transfers out (8,693)(9,291)(9,521)(9,155)(12,581)
Debt service(2) .....
Net Income ($2,477)$18,425 $10,878 $12,502 $18,216
Selected Balance Sheet
Information:
Net Property Plant and
Equipment
Unrestricted
Total Net Assets
$123,616 $127,918 $132,949 $137,831 $142,785
138,476 152,599 158,446 148,006 161,268
$262,092 $280,517 $29t,395 $285,837 $304,053
Includes purchased power costs and payments to NCPA and TANC.
Palo Alto’s outstanding utility system obligations relate to the storm drainage system, the regional water quality control plant, the gas
system and the sewer system and are therefore not included for purposes of this table. See "Indebtedness" above.
Source: City of Palo Alto.
25
LAI 911286v.4 83520/90200
For fiscal year ended June 30, 2006, the application of the definitions in the Indenture of the
terms Gross Revenues, Maintenance and Operation Expenses and Net Revenues would have resulted in
Gross Revenues of approximately $121.8 million, Maintenance and Operation Expenses of approximately
$86.0 million and Net Revenues of approximately $358 million. Total debt service on the 1995 Senior
Bonds for such period was $683,575.
Statement of Net Assets
The following information sets forth the statement of net assets of the Electric Fund at June 30,
2004. These numbers were subjected to audit procedures and are excerpted from the basic financial
statements of the City of Palo Alto which were prepared in accordance with generally accepted
accounting principles.
CITY OF PALO ALTO
ELECTRIC FUND
STATEMENT OF NET ASSETS
June 30, 2006
(in 000’s)
ASSETS
Current Assets:
Cash and investments:
Available for operations
Accounts receivable, net
Interest receivable
Total Current Assets
Noncurrent Assets:
Capital assets
Total Noncurrent Assets
Total Assets
$140,579
20,758
1,747
$163,084
$142,785
142,785
$305,869
$1,636
180
$1,816
$1,816
LIABILITIES
Current Liabilities:
Accounts payable and accrued liabilities
Accrued Salaries and Benefits
Total Current Liabilities
Noncurrent liabilities:
Total Liabilities
NET ASSETS
Invested in capital assets, net of related debt
Restricted for debt service
Unrestricted
Total Net Assets
Source: City of Palo Alto Audited Financial Statements.
$142,785
161,268
$304,053
LAI 911286v.4 83520/90200
26
Management’s Discussion of Summary of Operating Results
The City’s electric utility is operated on a non-profit cost-of-service basis so as to provide utility
customers with the lowest possible cost of power. The City Council approved two significant rate
increases in 2005. See " - Rates and Charges" above. As a result, revenue increased dramatically in
fiscal year 2005-06. The City’s electric rates are currently lower than the nearest other retail power
providers. Operating expenses increased significantly in fiscal year 2005-06 primarily as a result of the
expiration in late 2004 of a relatively favorable power purchase agreement with Western and PG&E.
The City is dependent upon its commercial and industrial load classes for a significant percentage
of electric sales and revenues. The City responded to deregulation of the California electric market in
2001 by instituting a direct access policy for eligible commercial and industrialelectric customers. From
the beginning of the deregulation period through its end, and currently, the City retained 100% of its
commercial and industrial load by use of enhanced customer service, limited use of fixed term contracts,
and competitive retail electric rates.
It has been the practice of the CPAU to pay its proportionate share of the City’s operating
expenses attributable to the Electric System. Approximately $8.7 million was transferred to the City’s
general fund in fiscal year 2005-06. Of such amount transferred approximately $8.5 million represented
the return on the initial investment the City made when the CPAU and its utility business were created
more than 100 years ago. The portion of the transfer related to investment return is expected to increase
by 4% annually. Approximately $2.5 million was transferred to the City’s retiree health benefits fund in
fiscal year 2005-06 for retirement heath benefits for Electric System employees and retirees. Certain
other minor transfers are made from the Electric System to other City funds as reimbursement for costs
incurred for the benefit of the Electric System and other miscellaneous items. See Note 4 in APPENDIX
A.
RATE REGULATION
The City sets rates, fees and charges for electric service. The authority of the City to impose and
collect rates and charges for electric power and energy sold and delivered is not subject to the general
regulatory jurisdiction of the CPUC and presently neither the CPUC nor any other regulatory authority of
the State of California nor FERC approves such rates and charges. Although the retail rates of the City
are not subject to approval by any federal agency, the City is subject to certain ratemaking provisions of
the federal Public Utility Regulatory Policies Act of 1978 ("PURPA"). It is possible that future
legislative and/or regulatory changes could subject the rates and/or service areas of the City to the
jurisdiction of the CPUC or to other limitations or requirements.
FERC could potentially assert jurisdiction over rates of licensees of hydroelectric projects and
customers of such licensees under Part I of the Federal Power Act, although it has not as a practical matter
exercised or sought to exercise such jurisdiction to modify rates that would legitimately be charged. If it
did assert such jurisdiction, the result might have some significance for the City’s interest in NCPA-
owned hydroelectric projects.
Under the Energy Policy Act, FERC has the authority, under certain circumstances and pursuant
to certain procedures, to order any utility (municipal or otherwise) to provide transmission access to
others at FERC-approved rates.
The California Energy Commission is authorized to evaluate rate policies for electric energy as
related to the goals of the Energy Resources Conservation and Development Act and to make
recommendations to the Governor, the Legislature and publicly owned electric utilities.
27
LAI 911286v.4 83520/90200
DEVELOPMENTS IN THE ENERGY MARKETS
Background; Electric Market Deregulation
In 1996, California partially deregulated its electric energy market. An independent system
operator of the transmission system, the ISO, was established, as well as an independent power exchange,
the California Power Exchange (the "PX"). The PX was originally established to permit power
generators to sell power on a competitive spot-market basis; however, the PX has ceased all power
exchange operations and filed for bankruptcy protection.
Additional Developments
Financial Difficulties of the IOUs and Certain Other Market Participants. As a consequence
of partial deregulation, the California investor-owned utilities (the "IOUs") sold a large portion of their
generation resources. As a result, three major IOUs in California, Pacific Gas & Electric Company
("PG&E"), San Diego Gas & Electric Co. ("SDG&E") and Edison, were net buyers of electricity.
Following the partial deregulation of the California energy markets, the IOUs were purchasing electricity
at fluctuating short-term and spot wholesale prices while the retail prices that they could charge their
residential and small business customers were capped at specified levels. During portions of 2000 and
2001, the market price of electricity in California significantly exceeded such capped retail prices,
resulting in the deterioration of the creditworthiness of PG&E and Edison. Certain other marketers,
power suppliers and power plant developers experienced downgrades of their credit ratings. PG&E
emerged from bankruptcy on April 12, 2004. The credit ratings of PG&E and Edison have improved
since the dislocations of the California energy markets in 2000 and 2001.
State and Federal Investigations. State of California and federal authorities are conducting
investigations and other proceedings concerning various aspects of the California energy markets. These
include, for example, investigations by the Federal Energy Regulatory Commission ("FERC") into
alleged overcharging for the sale of electricity (including sales by municipal utilities) and alleged
manipulation of the electricity market. The City is unable to predict the outcome of existing
investigations and proceedings regarding California’s energy crisis or whether further investigations,
proceedings, litigation or other actions will follow.
Shortages and Volatility. During 2000 and 2001, California experienced extreme fluctuations in
the prices and supplies of natural gas and electricity in much of the State. Licenses for new power plants
have been issued by the California Energy Commission, construction on several power plants has been
completed and construction of additional power plants is underway. Progress on new transmission line
projects within California has been slow. There also has been a substantial rise in the cost of natural gas,
which is the fuel source for many of California’s electric generating units. State agencies have issued
warnings that further power shortages are possible for Southern California. As a result of the foregoing
and other factors, no assurance can be given that measures undertaken during the last several years,
together with measures to be taken in the future, will prevent the recurrence of shortages, price volatility
or other energy problems that have adversely affected the City and other California electric utilities in the
recent past.
City Electric System Operations Since Industry Restructuring
Electric System Policies. In March 1997, the City Council of the City approved three electric
utility policies relating to customer choice, stranded cost recovery and marketing beyond the City borders.
The City undertook a number of actions in order to implement those policies. Direct access was offered
to large commercial and industrial customers, however none of them exercised the option. Given the lack
LA1 911286v.4 83520/90200
28
of interest in the community for direct access in combination with the instability of energy markets in
2001 and CPUC actions relating to direct access, direct access was suspended by the City Council
effective August 1, 2001. There are no plans to re-implement direct access at this time.
Calaveras-Stranded Costs Reserve. In 1983, the City established the Calaveras Reserve. The
Calaveras Reserve was originally created to accumulate funds in advance of the completion of the NCPA
Hydroelectric Project for the payment of debt service related thereto in order to mitigate the rate impact to
be associated with the financing of the NCPA Hydroelectric Project. In 1996, with the prospect of State
deregulation of the electricity market, the City Council adopted a Calaveras Reserve Policy, which re-
established the purpose of the Calaveras Reserve to meet the potential financial impact of "stranded
costs" relating to the NCPA Hydroelectric Project and Palo Alto’s share of the COTP through 2032.
The Calaveras Reserve Policy initially required an annual review of the stranded cost issue and an
update of the underlying assumptions to calculate stranded costs. Annual reviews conducted between
1995 through 1999 estimated the stranded costs to be between $31.6 million to $93.0 million, depending
on the market price scenario used. The Calaveras Reserve target is based on a net present value
calculation of the cash balance needed to offset the City’s stranded costs each year through Fiscal Year
2032-33.
The current Calaveras Reserve target is based upon an updated stranded cost calculation
performed in 1999, which took into account debt restructuring undertaken by NCPA for the NCPA
Hydroelectric Project, and which resulted in a target balance for the Calaveras Reserve of $65.0 million to
be achieved by December 31,2001. The December 31, 2001 deadline reflected the timetable established
by AB 1890, by which the California electric industry was deregulated. Between 1995 and 2000, the
Calaveras Reserve was built up through retention of power cost and operating budget savings in
combination with a 4% rate increase in 1997. To build up the Calaveras Reserve, the 1997 rate action
established a monthly charge on all customer bills called the Transition Cost Recovery Charge ( the
"TCRC"). The TCRC helped achieve the target balance in the Calaveras Reserve within two years. On
July 1, 1999, the TCRC was discontinued because it was determined that the $65.0 million target could be
reached. Elimination of the TCRC resulted in a 15% system-wide retail rate decrease.
In Fiscal Year 2000-01, the $65 million target balance was achieved. This balance is planned to
gradually decline through Fiscal Year 2031-32. Each year the Calaveras Reserve accrues interest income
which is added to the year-end reserve balance.
The approximate balance of the Calaveras Reserve for the last five fiscal years (in thousands of
dollars) is set forth below.
Balance
2001-02 2002-03 2003-04 2004-05 2005-06
$64,780 $65,466 $67,965 $70,464 $72,963
Source: City of Palo Alto Audited Financial Statements.
Rate Stabilization Reserve. In June 1998, the City Council of the City approved staff’s
recommendation to unbundle the Electric and Gas Rate Stabilization Reserves ("RSR"). The RSR was
originally created to cover a number of unforeseen contingencies, including the need to supplement rates
which cover distribution expenses, and commodity supply costs. The City Council has approved a set of
guidelines for the Rate Stabilization Reserves based on a forecast of contingencies to be covered. In
December 2003 and again in January 2007, the City Council updated the reserve guidelines taking into
account, among other aspects, the increased cost volatility due to the electric portfolio cost exposure to
29
LAI 911286v,4 83520/90200
hydro production uncertainties arising in year 2005 with the new Western Base Resource contract. The
balances of the Electric Distribution RSR and the Electric Supply RSR on June 30, 2006 were
approximately $12,281,000 and $64,542,000, respectively.
UnbundledElectric Rates. In June 1997, the City became the first electric utility in California to
unbundle its electric rates on customers’ bills. The City’s unbundled electric rates are comprised of the
following four components: (i) a power supply charge, (ii) a distribution charge; (iii) a transition recovery
charge and (iv) a public benefits charge.
The distribution charge, transition recovery charge and public benefits charge are nonbypassable
charges and therefore are paid to the City by the customer, regardless of energy supplier. On July 1,
1999, the transition recovery charge was discontinued as described under "CalaverasStranded Costs
Reserve" above.
State Legislation
A number of bills affecting the electric utility industry have been introduced or enacted by the
California Legislature. In general, these bills provide for reduced greenhouse gas emission standards and
greater investment in energy-efficient and environmentally friendly generation alternatives through more
stringent renewable resource portfolio standards. The following is a brief summary of certain of these
bills.
Greenhouse Gas Emissions. On June 1, 2005, the Governor signed Executive Order S-3-05,
which placed an emphasis on such efforts to reduce greenhouse gas emissions by establishing Statewide
greenhouse gas reduction targets. The targets are: (i) a reduction to 2000 emissions levels by 2010; (ii) a
reduction to 1990 levels by 2020; and (iii) a reduction to 80% below 1990 levels by 2050. The Executive
Order also called for the California Environmental Protection Agency to lead a multi-agency effort to
examine the impacts of climate change on California and develop strategies and mitigation plans to
achieve the targets. On April 25, 2006, the Governor also signed Executive Order S-06-06 which directs
the State to meet a 20% biomass utilization target within the renewable generation targets of 2010 and
2020 for the contribution to greenhouse gas emission reduction.
On September 27, 2006 the Governor signed into law Assembly Bill 32 ("AB 32"), the Global
Warming Solutions Act of 2006. AB 32 requires all California utilities to inventory and report
greenhouse gas emissions beginning January 1, 2008 and requires the California Air Resources Board
("CARB") to adopt enforceable greenhouse gas emission limits and emission reduction measures by
regulation in order to reduce greenhouse gas emissions to 1990 levels by 2020. The CARB regulations
for greenhouse gas emissions limits and reduction measures will be enforceable beginning January 1,
2012.
On September 29, 2006, the Governor signed into law Senate Bill 1368 ("SB 1368"), the
Greenhouse Gas Emissions Performance Standard. SB 1368 sets a greenhouse gas emission performance
standard ("EPS") for baseload electric generating resources. Any new investment in baseload generation
or contract for baseload generation with a term of over five years must have greenhouse gas emissions at
or below that of a baseload, combined cycle power plant. The CEC was assigned the responsibility of
establishing the EPS and associated compliance methodologies for the publicly-owned utilities, including
the City. The CPUC has the similar responsibility for the IOUs. The CEC and the CPUC have proposed
an EPS of 1,100 Ibs/MWH. The proposed CEC regulation is currently undergoing review at the Office of
Administrative Law and will go into effect on or about June 30, 2007.
LAI 911286v.4 83520/90200
30
The new legislation will impact all California electric utilities as the State begins to reduce its
reliance on imported, out-of-state, coal-fired generation. The City are committed to renewable energy,
demand side management and energy efficiency, however, it is widely recognized that there will still be a
large demand for traditional, baseload fossil power plants in order to meet projected load growth.
Currently there is a ban in California, prohibiting the development of nuclear power plants until there is a
permanent storage solution for spent fuel rods. Large hydroelectric plant development is also unlikely to
occur in California as a result of resistance from environmental interests. With the effective ban on new
coal power imports under SB 1368, natural gas fired, combined cycle power plants would appear to be the
primary viable option for fossil fuel. based baseload power plant development absent the implementation
of new technologies in connection with other resource options. The reliance on a single fuel source will
continue to put pressure on the already volatile natural gas market in the United States.
There are a number of issues yet to be sorted out surrounding greenhouse gas emissions,
including, how to account for unspecified resources (i.e. market based power, and system purchases).
Under AB 32, CARB has delegated responsibility to the CPUC and the CEC to come up with solutions
for the electric sector in order to meet the CO2 reduction targets identified (1990 levels by 2020).
Energy Procurement and Efficiency Reporting. Senate Bill 1037, signed by the Governor on
September 29, 2005, requires that each municipal electric utility, including the City, prior to procuring
new energy generation resources, first acquire all available energy efficiency, demand reduction and
renewable resources that are cost effective, reliable and feasible. Senate Bill 1037 also requires each
municipal electric utility to report annually to its customers and to the State Energy Resources
Conservation and Development Commission (the "California Energy Commission" or the "CEC") its
investment in energy efficiency and demand reduction programs. Further, California Assembly Bill 2021
("AB 2021"), signed by the Governor on September 29, 2006 requires that the publicly-owned utilities
establish, report, and explain the basis of the annual energy efficiency and demand reduction targets by
June 1, 2007 and every three years thereafter for a ten-year horizon. Future reporting requirements per
AB 2021 will include: (i) the identification of sources of funding for the investment in energy efficiency
and demand reduction programs, (ii) the methodologies and input assumptions used to determine cost-
effectiveness, and (iii) the results of an independent evaluation to measure and verify energy efficiency
savings and demand reduction program impacts. The information obtained from local Publicly-owned
utilities will be used by the CEC to present the progress made by the publicly-owned utilities on the
State’s goal of reducing electrical consumption by 10% in ten years and amelioration with the greenhouse
gas targets presented in Executive Order S-3-05 enacted by the Governor on June 1, 2005. In addition, a
report will be developed by the CEC with recommendations for improvement to assist each local
publicly-owned utility in achieving cost-effective, reliable, and feasible savings in conjunction with the
established targets for reduction.
Renewable Portfolio Standards. In September 2002, the California Legislature enacted and the
Governor signed into law Senate Bill 1078. Senate Bill 1078 required that the IOUs adopt a Renewable
Portfolio Standard ("RPS") to meet a minimum of 1% of retail energy sales needs each year from
renewable resources and to meet a goal of 20% of their retail energy needs from renewable energy
resources by the year 2017. Senate Bill 1078 also directed the State’s municipal electric utilities to
implement and enforce an RPS that recognizes the intent of the Legislature to encourage development of
renewable resources, taking into consideration the impact on a utility’s standard on rates, reliability,
financial resources, and the goal of environmental improvement. On September 26, 2006, the Governor
signed Senate Bill 107 "SB 107") into law, which requires IOUs to have 20% of their electricity come
from renewable sources by 2010 and still prescribes that the local publicly-owned utilities meet the intent
of the legislation.
31
LAI 911286v.4 83520/90200
Since the implementation of Senate Bill 1078, the California Public Utilities Commission (the
"CPUC") and the California Energy Commission have taken a number of actions that have had an impact
on the renewable energy goals set by the legislation. In order to overcome the challenges associated with
meeting accelerated RPS goals, the CPUC and the CEC supported the implementation of a renewable
energy certificate trading system to meet the accelerated RPS goals. SB 107 allows this flexibility, with
the condition that the energy is delivered to an in-state trading hub. In parallel, pursuant to Senate Bill
1078, the CEC collaboratively with the Western Governors’ Association and the Western Electricity
Coordinating Council has undertaken the development and establishment of the Western Renewable
Energy Generation Information System ("WREGIS"), which will be used to ensure the integrity of
renewable energy certificates and prevent the double counting of the certificates. The electronic tracking
system is anticipated to be operational in late 2007.
Solar Power. California Senate Bill 1 ("SB 1") (originally known as the "Million Solar Roofs
Initiative") was signed by the Governor on August 21, 2006. This legislation aims to have 3,000 MW of
solar energy systems installed within ten years, while establishing requirements to have solar energy
systems installed on 50% of new residential developments within 13 years. SB 1 requires that publicly
owned utilities, including the City, establish a program that adequately supports the efforts to install 3,000
MW of photovoltaic energy in California. In addition, the legislation establishes a January 1, 2008
deadline for the development of eligibility criteria for solar energy systems by the CEC in consultation
with the CPUC, local publicly-owned utilities, and interested members of the public. Publicly owned
utilities are required to commence a solar initiative program in order to establish the funding of solar
energy systems receiving ratepayer funded incentives, which offering shall commence no later than
January 1, 2008. A publicly-owned utility has the choice of selecting an incentive based on the installed
capacity, starting at $2.80 per watt, or based on the energy produced by the solar energy system,
measured in kilowatt-hours. Incentives are required to decrease at a minimum average rate of 7% per
year. By June I, 2008, the City will be required to provide the following information to customers, the
CEC and the legislature: (i) the number of photovoltaic solar watts installed, (ii) the number of
photovoltaic systems installed, (iii) the number of applicants for incentives, (iv) the amount of awarded
incentives, and (v) the contribution towards the program’s goals. The total statewide expenditures for
local publicly-owned utilities are expected to be $784 million. The funding for the first two years of the
Ci .ty’s solar program is included in the proposed 2007-09 budget ($1.3 million per year), and the City is
enhancing its existing PV Partners program to fully comply with all aspects of the legislation, including
rebate levels, technology requirements, net metering, and reporting.
Public Benefit Programs. California Assembly Bill 1890 ("AB 1890") requires all publicly-
owned utilities to implement a non-bypassable surcharge to fund public benefit programs for low-Income
assistance, energy efficiency and demand-side management, research, development and demonstration
and renewable energy technology and resources. The legislation also includes a formula for calculating
this public benefit charge and a description of what values are to be used in the formula. The City spends
approximately 2.85% of gross revenues on the public benefit programs it has developed in response to
AB 1890. The City’s expenditure for public benefits programs was $3.05 million in fiscal year 2005-06
and is expected to be $3.4 million in fiscal year 2006-07. In June 1998, the City Council of the City
approved the Public Benefits Reserve to be created for the purposes of establishing a separate reserve
from the Electric Fund in which revenue collected for the Public Benefit programs that are not spent are
deposited for future use. The balance of the Public Benefits Reserve at June 30, 2006 was $1,384,000.
Impact of Developments on the City
The effect of these developments in the California energy markets on the City cannot be fully
ascertained at this time. Volatility in energy prices in California may return due to a variety of factors
which affect both the supply and demand for electric energy in the western United States. These factors
LA1 911286v.4 83520/90200
32
include, but are not limited to, the adequacy of generation resources to meet peak demands, the
availability and cost of renewable energy, the impact of greenhouse gas emission legislation and
regulations, fuel costs and availability, weather effects on customer demand, transmission congestion, the
strength of the economy in California and surrounding states and levels of hydroelectric generation within
the region (including the Pacific Northwest). This price volatility may contribute to greater volatility in
the City’ revenues from the sale (and purchase) of electric energy and, therefore, could materially affect
the financial condition of the City.
OTHER FACTORS AFFECTING THE ELECTRIC UTILITY INDUSTRY
Energy Policy Act of 1992
The Energy Policy Act of 1992 (the "Energy Policy Act") made fundamental changes in the
federal regulation of the electric utility industry, particularly in the area of transmission access under
Sections 211,212 and 213 of the Federal Power Act. The purpose of these changes, in part, was to bring
about increased competition in the electric utility industry.
As amended by the Energy Policy Act, Sections 211, 212 and 213 of the Federal Power Act
provide FERC authority, upon application by any electric utility, federal power marketing agency or other
person or entity generating electric energy for sale or resale, to require a transmitting utility to provide
transmission services (including any enlargement of transmission capacity necessary to provide such
services) to the applicant at rates, charges, terms and conditions set by FERC based on standards and
provisions in the Federal Power Act. Under the Energy Policy Act, electric utilities owned by
municipalities and other public agencies which own or operate electric power transmission facilities
which are used for the sale of electric energy at wholesale are "transmitting utilities" subject to the
requirements of Sections 211,212 and 213.
Federal Energy Legislation
On August 8, 2005, President Bush signed the Energy Policy Act of 2005 ("EPACT 2005").
EPACT 2005 addresses a wide array of energy matters that could affect the entire electric utility industry,
including the electric systems of the City. It expands FERC’s jurisdiction to require open access
transmission of municipal utilities that sell more than four million megawatt hours of energy and to order
refunds under certain circumstances for municipal utilities that sell more than eight million megawatt
hours of energy. No Participant is able to predict when, if ever, its sales of electricity would reach eight
million megawatt hours. EPACT 2005 requires that FERC conclude its investigation into the allegations
of overcharges during the California energy crisis in 2000 and 2001 and submit a report to Congress. It
also provides for mandatory reliability standards to increase system reliability and minimize blackouts,
criminal penalties for manipulative energy trading practices and the repeal of the Public Utility Holding
Company Act of 1935, which prohibited certain mergers and consolidations involving electric utilities.
Under EPACT 2005, by February 2007 investor-owned utilities were required to offer each of its
customer classes a time-based rate schedule to enable customers to manage energy use through advanced
metering and communications technology. It authorizes FERC to exercise eminent domain powers to
construct and operate transmission lines if FERC determines a state has unreasonably withheld approval.
EPACT 2005 contains provisions designed to increase imports of liquefied natural gas and incentives to
support renewable energy technologies, including Clean Renewable Energy Bonds. EPACT 2005 also
extends for 20 years the Price-Anderson Act, which concerns nuclear power liability protection, and
provides incentives for the construction of new nuclear plants.
The City is unable to predict at this time the impact that EPACT 2005 will have on the operations
and finances of the electric systems of the City dr the electric utility industry generally.
33~
LAI 911286v.4 83520/90200
Recent ISO FERC Filings
MRTU Filing. On February 9, 2006, the ISO filed with FERC its Market Redesign and
Technology Upgrade ("MRTU") tariff amendment to implement a comprehensive overhaul of the
electricity markets administered by the ISO. According to the ISO, the proposed comprehensive changes
include, but are not limited to, the following: perform effective congestion management in the ISO day-
ahead market by enforcing all transmission constraints so as to establish feasible forward transmission
schedulesi create a day-ahead market for energy; automate real-time dispatch so as to balance the system
and manage congestion in an optimal manner with minimal need for manual intervention; and ensure
consistency across market time frames in the allocation of transmission resources to grid users and the
pricing of transmission service and energy. The MRTU also is intended to ensure that the ISO has
sufficient capacity available to maintain reliability on the ISO grid. The MRTU requires that all
scheduling coordinators for all load-serving entities ("LSEs’) meet standards concerning forward capacity
and energy procurements to meet their load requirements. The ISO has requested that its MRTU filing be
approved by FERC, without modification, suspension or hearing, to go into effect on November 1, 2007.
On September 21, 2006, FERC issued an order conditionally accepting the ISO’s MRTU filing. At this
time, the City is unable to predict the impact of this filing on the City or the California electric utility
industry generally.
Resource Adequacy Fih’ng. In September 2005, the California Legislature enacted and the
Governor signed into law Assembly Bill 380~ which requires the CPUC to establish resource adequacy
requirements for all LSEs within the CPUC’s jurisdiction. In addition, AB 380 requires publicly-owned
utilities, including the City, to procure adequate resources to meet their peak demands and reserves. In
October 2005, the CPUC issued a decision stating that LSEs under its jurisdiction would be required, by
June 2006, to demonstrate that they have acquired capacity sufficient to serve their forecast retail
customer load plus a 15-17% reserve margin.
On March 13, 2006, the ISO filed with FERC a tariff amendment to establish an Interim
Reliability Requirements Program (the "IRR Program"). The IRR Program incorporates the CPUC’s
resource adequacy requirements into the ISO Tariff, beginning in June 2006, and maintain these
requirements until the MRTU Tariff amendment is implemented. The ISO’s FERC filing would impose
the IRR Program requirements on LSEs that are not CPUC-jurisdictional entities, including to some
extent the City. On May 12, 2006, FERC approved, for the most part, the ISO’s IRR Program filing.
However, the City is unable at this time to predict the impact of this filing and decision on the City and
the California electric utility industry generally. FERC’s approval is subject to rehearifig and appeal.
Other Factors
The electric utility industry in general has been, or in the future may be, affected by a number of
other factors which could impact the financial condition and competitiveness of many electric utilities and
the level of utilization of generating and transmission facilities. In addition to the factors discussed
above, such factors include, among others, (a) effects of compliance with rapidly changing
environmental, safety, licensing, regulatory and legislative requirements other than those described above,
(b) changes resulting from conservation and demand-side management programs on the timing and use of
electric energy, (c) changes resulting from a national energy policy, (d) effects of competition from other
electric utilities (including increased competition resulting from mergers, acquisitions, and "strategic
alliances" of competing electric and natural gas utilities and from competitors transmitting less expensive
electricity from much greater distances over an interconnected system) and new methods of, and new
facilities for, producing low-cost electricity, (e) the repeal of certain federal statutes that would have the
effect of increasing the competitiveness of many IOUs, (f) increased competition from independent power
producers and marketers, brokers and federal power marketing agencies, (g) "self-generation" or
34
LAI 911286V.4 g3520190200
"distributed generation" (such as microturbines and fuel cells) by industrial and commercial customers
and others, (h) issues relating to the ability to issue tax-exempt obligations, including severe restrictions
on the ability to sell to nongovernmental entities electricity from generation projects and transmission
service from transmission line projects financed with outstanding tax-exempt obligations, (i) effects of
inflation on the operating and maintenance costs of an electric utility and its facilities, (j) changes from
projected future load requirements, (k) increases in costs and uncertain availability of capital, (1) shifts in
the availability and relative costs of different fuels (including the cost of natural gas), (m) sudden and
dramatic increases in the price of energy purchased on the open market that may occur in times of high
peak demand in an area of the country experiencing such high peak demand, such as has occurred in
California, (n) inadequate risk management procedures and practices with respect to, among other things,
the purchase and sale of energy and transmission capacity, (o) other legislative changes, voter initiatives,
referenda and statewide propositions, (p)effects of the changes in the economy, (q) effects of possible
manipulation of the electric markets and (r) natural disasters or other physical calamities, including, but
not limited to, earthquakes. Any of these factors (as well as other factors) could have an adverse effect on
the financial condition of any given electric utility and likely will affect individual utilities in different
ways.
The City is unable to predict what impact such factors will have on the business operations and
financial condition of the City, but the impact could be significant. This Placement Memorandum
includes a brief discussion of certain of these factors. This discussion does not purport to be
comprehensive or definitive, and these matters are subject to change subsequent to the date hereof.
Extensive information on the electric utility industry is available from the legislative and regulatory
bodies and other sources in the public domain, and potential purchasers of the 2007A Bonds should
obtain and review such information.
CONSTITUTIONAL LIMITATIONS ON TAXES AND APPROPRIATIONS
California Constitution Articles XIIIA and XIHB
Article XIIIA of the California Constitution limits the taxing powers of California public
agencies. Article XIIIA provides that the maximum ad valorem tax on real property cannot exceed one
percent of the "full cash value" of the property, and effectively prohibits the levying ofany other ad
valorem property tax except for taxes above that level required to pay debt service on voter-approved
general obligation bonds. "Full cash value" is defined as "the County Assessor’s valuation of real
property as shown on the 1975-76 tax bill under ’full cash value’ or, thereafter, the appraisal value of real
property when purchased, newly constructed, or a change in ownership has occurred after the 1975
assessment." The "full cash value" is subject to annual adjustment to reflect inflation at a rate not to
exceed two percent or a reduction in the consumer price index or comparable local data, or declining
property value caused by damage, destruction or other factors.
The foregoing limitation does not apply to ad valorem taxes or special assessments to pay the
interest and redemption charges on any indebtedness approved by the voters before July 1, 1978 or any
bonded indebtedness for the acquisition or improvement of real property approved by two-thirds of the
votes cast by the voters voting on the proposition.
Under Article XIIIB of the California Constitution, state and local government entities have an
annual "appropriations limit" which limits their ability to spend certain moneys called "appropriations
subject to limitation", which consist of tax revenues, certain state subventions and certain other moneys,
including user charges to the extent they exceed the costs reasonably borne by the entity in providing the
service for which it is levying the charge. The City is of the opinion that the electric service and use
charges imposed by the City do not exceed the costs the City reasonably bears in providing the electric
35
LA 1 911286vA 83520/90200
service. 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 an entity’s revenues in any year exceed the
amount permitted to be spent, the excess would have to be returned by revising tax rates or fee schedules
over the subsequent two years.
Constitutional Changes In California
Proposition 218, a State ballot initiative known as the "Right to Vote on Taxes Act," was
approved by the voters of the State of California on November 5, 1996. Proposition 218 added Articles
XIIIC and XIIID to the State Constitution. Article XIIID creates additional requirements for the
imposition by most local governments (including the City) of general taxes, special taxes, assessments
and "property-related" fees and charges. Article XIIID explicitly exempts fees for the provision of
electric service from the provisions of such article.
Article XIIIC expressly extends the people’s initiative power to reduce or repeal previously-
authorized local taxes, assessments, and fees and charges. The terms "fees and charges" are not defined
in Article XIIIC, although the California Supreme Court held in Bighorn-Desert View Water Agency v.
Verjil, 39 Cal. App. 4th 205 (2006), that the initiative power described in Article XIIIC may apply to a
broader category of fees and charges than the property-related fee and charges governed by Article XIIID.
Moreover, in the case of Bock v. City Council of Lompoc, 109 Cal. App. 3d 43 (1980), the Court of
Appeal determined that an electric rate ordinance was not subject to the same constitutional restrictions
that are applied to the use of the initiative process for tax measures so as to render it an improper subject
of the initiative process. The City believe that even if the electric rates of each of the City are subject to
the initiative power, under Article XIIIC or otherwise, the electorate of each of the City would be
precluded from reducing electric rates and charges in a manner adversely affecting the payment of the
2007A Bonds by virtue of the "impairments clause" of the United States Constitution.
Future Initiatives
Article XIIIA, Article XIIIB, and Articles XIIIC and XIIID, were each adopted pursuant to
measures qualified for the ballot pursuant to California’s constitutional initiative process. From time to
time other initiative measures could be adopted by California voters. The adoption of any such initiatives
might place limitations on the ability of the City to increase revenues or to increase appropriations.
ABSENCE OF LITIGATION
There is no controversy or litigation of any nature now pending or threatened restraining or
enjoining the delivery of the 2007A Bonds or in any way contesting or affecting the validity of the 2007A
Bonds or any proceedings of the City taken with respect to the execution and delivery or sale thereof.
In addition, there is no litigation pending or threatened against the City which, in the opinion of
the City Attorney of the City, would materially adversely affect the Electric System, the financial
condition of the City or the sources of payment for the 2007A Bonds.
TAX MATTERS
In the opinion of Jones Hall, A Professional Law Corporation, San Francisco, California, Bond
Counsel, subject, however, to the qualifications set forth below, under existing law, the 2007A Bonds
represent Clean Renewable Energy Bonds which are eligible for the tax credit set forth in Section 54 of
the Tax Code.
LA 1 91128~v.4 8.~520/90200
The 2007A Bonds do not pay interest. In lieu of receiving periodic interest payments with
respect to the 2007A Bonds, taxpayers who are holders of the 2007A Bonds will receive a quarterly
federal income tax credit on a Credit Allowance Date. These credits compensate the holders of the
2007A Bonds for lending money to the District and function as payments of interest with respect to the
2007A Bonds. See "CLEAN RENEWABLE ENERGY BONDS" herein for, among other things, a
description of the tax credit. In the further opinion of Bond Counsel, the credit is includable in gross
income for Federal income tax purposes.
The opinions set forth in the preceding paragraphs are subject to the condition that the District
comply with all requirements of the Tax Code that must be satisfied subsequent to the delivery of the
2007A Bonds in order that the 2007A Bonds be, or continue to be, Clean Renewable Energy Bonds
eligible for the tax credit set forth in Section 54 of the Tax Code.
In particular, Section 54(d)(1)(B) of the Tax Code requires that 95 percent or more of the
proceeds of an issue of Clean Renewable Energy Bonds are to be used for capital expenditure for
qualified projects. The term "qualified project" is defined by Section 54(d)(2) of the Tax Code to mean
any qualified facility described in Section 45(d) of Tax Code relating to certain wind facilities, closed-
loop biomass facilities, open-loop biomass facilities, geothermal or solar energy facilities, small irrigation
power facilities, landfill gas facilities, trash combustion facilities, refined coal production facilities,
qualified hydropower facilities and Indian coal production facilities. Section 54(h) also requires that the
issuer or borrower reasonably expect to expend 95 percent of the proceeds of the 2007A Bonds on a
qualified project within 5 years of the date of issue of the 2007A Bonds. If less than 95 percent of the
proceeds of the 2007A Bonds are spent on a qualified project within the five year period, the City may
request an extension of time to meet the 95 percent expenditure requirement; otherwise, the City must
redeem 2007A Bonds in a sufficient amount to satisfy the 95 percent requirement. In addition, Clean
Renewable Energy Bonds are subject to arbitrage restrictions and rebate requirements contained in
Section 148 of the Code.
Bond Counsel expresses no opinion regarding any federal, state, or local tax consequences other
than its opinion with regard to the inclusion of the tax credit in gross income for federal income tax
purposes and that the 2007A Bonds are Clean Renewable Energy Bonds eligible for the tax credit set
forth in Section 54 of the Tax Code.
A holder of a Clean Renewable Energy Bond on a credit allowance date will not be able to use
some or all of the credit to offset its tax liability to the extent the amount of the credit exceeds the holder’s
regular tax liability over the sum of other credits allowed to the holder. In this case, because the credit is
nonrefundable, some or all of the credit will not be used.
Regarding estimated tax payments, neither the Tax Code nor any published guidance by the
Internal Revenue Service (including Notice 2005-98 and Notice 2006-7) address the estimated tax
consequences of holding a Clean Renewable Energy Bond.
Prospective purchasers of the 2007A Bonds should consult their tax advisors with respect to all
other federal, state and local tax consequences of holding the 2007A Bonds, including but not limited to
the treatment of the Tax Credit under any applicable state or local income tax law.
APPROVAL OF LEGALITY
The execution and delivery of the 2007A Bonds is subject to the approving opinion of Jones Hall,
A Professional Law Corporation, San Francisco, California, Special Counsel, substantially in the form set
37
LA 1 911286v.4 83520/90200
forth as Appendix F. Certain legal matters will be passed upon for the Placement Agent by Sidley
Austin LLP, San Francisco, California, and for the City by the City Attorney of the City.
NO RATINGS
The 2007A Bonds are not rated.
PLACEMENT AGREEMENT
The 2007A Bonds will be placed by Stone & Youngberg LLC (the "Placement Agent") with
, as the initial purchasers of the 2007A Bonds (the "Purchasers") as set forth in that certain
placement agreement dated ., 2007 (the "Placement Agreement") by and among the City, the
Placement Agent and the Purchasers. Pursuant to the Placement Agreement, each Purchaser agrees to
purchase a portion of the Series 2007A Bonds. Under the Placement Agreement all of the 2007A Bonds
are to be purchased an aggregate purchase price of $[(representing the aggregate principal
amount of the 2007A Bonds less net original issue discount of $)]. The obligation of a Purchaser
to make such purchase is subject to certain terms and conditions set forth in the Placement Agreement.
GENERAL PURPOSE FINANCIAL STATEMENTS
Excerpts of the audited financial statements of the City, as of June 30, 2006, are included in
Appendix A to this Placement Memorandum. A complete copy of the City’s Comprehensive Annual
Financial Report may be obtained from the City. The general fund of the City is not liable and the credit
or taxing power of the City is not pledged for the payment of the 2007A Bonds. The principal of the
2007A Bonds is not a debt of the City~ nor a legal or equitable pledge, charge, lien or encumbrance, upon
any of its property, or upon any of its income, receipts, or revenues except the Net Revenues. The
financial statements, including the excerpts contained in Appendix A, have been audited by Maze &
Associates, independent accountants (the "Independent Accountants") as stated in their report appearing
in Appendix A. No review or investigation with respect to subsequent events has been undertaken in
connection with such financial statements by the Independent Accountants.
¯ LAI 911286v.4 8~520/90200
38
EXECUTION AND DELIVERY
The execution and delivery of this Placement Memorandum has been duly authorized by the City.
CITY OF PALO ALTO, CALIFORNIA
By:
[Director of Administrative Services]
By:
[Director of Utilities]
39
LA 1 911286v.4 83520/90200
APPENDIX A
EXCERPTS OF THE AUDITED FINANCIAL STATEMENTS OF THE CITY
FOR THE FISCAL YEAR ENDED JUNE 30, 2006
LA 1 911286v.4 83520/90200
APPENDIX B
INFORMATION CONCERNING THE CITY OF PALO ALTO
Area, Geography, Climate, and Population
The City is located 35 miles south of San Francisco and 14 miles north of San Jose and is located
within Santa Clara County and borders San Mateo County. The City’s boundaries extend from San
Francisco Bay on the east to the Skyline Ridge of the coastal mountains on the west, with Menlo Park to
the north and Mountain View to the south. Encompassing a total area of approximately 26 square miles,
population 62,148 is a largely "built out" community, of which one-third is open space. The City
experiences sunny days throughout the year. The less than 15.7 inches of rain each year usually falls in
the autumn and winter months. Winter temperatures range from a low average of 49°F to a high average
of 69.5°F. Average summer temperatures are between 55°F and 78°F.
The following table represents historical population statistics for the City, the County and the
State of California.
POPULATION
(1970~, 1980<~’, 1990~’~ and 2000t~; 1991 - 1999~2~, and 2001 -2006t2))
City of County of Santa State of
Palo Alto Clara California
1970 .............................56,040
1980 .............................55,225
1990 .............................55,900
1991 .............................55,500
1992 .............................55,700
t993 .............................56,300
1994 .............................56,700
1995 .............................56,700
1996 .............................57,000
1997 .............................57,800
1998 .............................57,900
1999 .............................58,300
2000.............................58,598
2001 .............................60,278
2002.............................60,338
2003 .............................60,356
2004.............................60,488
2005 .............................61,431
2006.............................62,148
1,064,714 19,953,134
1,295,071 23,667,902
1,497,577 29,758,213
1,501,800 30,143,000
1,519,200 30,723,000
1,542,100 31,150,000
1,558,500 31,418,000
1,568,200 31,61%000
1,586,400 31,837,000
1,612,700 32,207,000
1,638,300 32,657,000
1,658,000 33,140,000
1,682,585 33,873,086
1,701,317 34,441,561
1,715,301 35,088,671
1,726,791 35,691,472
1,738,374 36,245,016
1,752,653 36,728,196
1,773,258 37,172,015
~)AsofApril 1.2~As of January 1.
Source:U.S. Bureau of Census, and California State Department of Finance, Revised Historical City, County and State
Population Estimates, 1991-2000, with 1990 and 2000 Census Counts, for Historical City, County and State Population
Estimates, 200t-2006, with 2000 Benchmark.
LA1 912215vA 83520/90200
B-1
History
The earliest record of settlement in Palo Alto was dated 1769. The City is named for the tree by
the banks of the San Franciscquito Creek bordering Menlo Park. Many of the Spanish names in the Palo
Alto area represent the local heritage and descriptive terms and former residents. In 1895, Leland
Stanford came to the town of Mayfield (in what is now south Palo Alto), interested in founding his
university there, and creating a train stop near his school. However, he had one condition: alcohol be
banned from the town. Mayfield rejected his requests for reform. This prompted Stanford to drive the
formation of Palo Alto in 1895. Stanford set up his university, Stanford University, and train stop. On
July 2, 1925, Palo Alto voters approved the annexation of Mayfield and the two communities were
officially consolidated on July 6, 1925.
Budgetary Policies and Processes
The City Manager submits to the City Council a proposed operating budget for the fiscal year
commencing the following July 1. The operating budget includes proposed expenditures and the means
of financing them. Public hearings are conducted to obtain public comments. The adopted budget is
legally enacted through passage of a budget ordinance for all funds except for agency funds. The City
Manager is authorized to reallocate funds from a contingent account maintained in the General Fund in
conformance with the adopted policies set by the City Council. Additional appropriations to departments
in the General Fund, or to total appropriations for all other budgeted funds, Or transfers of appropriations
between funds, require approval by the City Council. Expenditures may not legally exceed budgeted
appropriations at the department level for the General Fund, and at the fund level for special revenue and
debt service funds. Formal budgetary integration is employed as a management control device during the
year in all funds except agency funds and certain debt service funds. Budgets for governmental funds are
adopted on a basis consistent with generally accepted accounting principles for all funds, except that
General Fund encumbrances are treated as budgetary expenditures when incurred and stores (materials,
parts and supplies) transactions included in the General Fund are not budgeted. Expenditures for the
City’s Capital Projects Fund are budgeted and managed on a project length basis and budget to actual
comparisons for these expenditures have been excluded from the accompanying financial statements.
Ad Valorem Property Taxes
Taxes are levied for each fiscal year on taxable real and personal property which is situated in the
County of Santa Clara as of the preceding March 1. For assessment and collection ptirposes, property is
classified either as "secured" or "unsecured," and is listed accordingly on separate parts of the assessment
roll. The "secured roll" is that part of the assessment roll containing State-assessed property and property
the taxes on which are a lien on real property sufficient, in the opinion of the County Assessor, to secure
payment of the taxes. Other property is assessed on the "unsecured roll."
Assessed Valuations
The valuation of property in the City is established by the Santa Clara County Assessor.
Assessed valuations are reported at 100% of the full value of the property, as defined in Article XIIIA of
the California Constitution. Prior to 1981-82, assessed valuations were reported at 25% of the full value
of property.
The California State Legislature adopted two types of State-reimbursed exemptions beginning in
the tax years 1969-1970. The first currently provides a credit of $7,000 of the full value of an owner-
occupied dwelling for which application has been made to the County Assessor. Revenue estimated to be
lost to local taxing agencies due to the above exemptions has in the past been reimbursed from State
LA1 912215vA 83520/90200
B-2
sources. Reimbursement is based upon total taxes due upon such exemption values and therefore is not
reduced by any estimated amount of actual delinquencies.
Pursuant to legislation adopted in 1979 (Statutes of 1979, Chapter 1150), business inventories are
entirely exempt from taxation in fiscal year 1980-81, and each fiscal year thereafter. This law further
provides a formula for reimbursement by the State to cities, counties, special districts and school districts
for the amount of tax revenues lost by reason of such exemption, as adjusted for percentage changes in
the population and the cost of living. Under prior State law, the State paid 50% of the taxes that were
levied against business inventories. Under Chapter 1150, the State pays, as a subvention, an amount
equal to 100% of taxes that would otherwise be due (excluding taxes to pay for voter approved
indebtedness) from business inventories commencing with the 1980-81 fiscal year. To compute amounts
payable by the State, 1979-80 was established as the base year for business inventory subventions;
thereafter, the subventions due are increased based upon increases in population and inflation rather than
expanded business inventories.
In addition, certain classes of property such as churches, colleges, not-for-profit hospitals and
charitable institutions are exempt from property taxation and do not appear on the tax rolls.No
reimbursement is made by the State for such exemptions.
The following table provides a five-year record of assessed valuations for the City.
CITY OF PALO ALTO
ASSESSED VALUATIONS OF TAXABLE PROPERTY
2002-03 Through 2006-07
(In Thousands)
Fiscal Year Secured Valuation Public Utility Unsecured Valuation
Net Assessed
Valuation(1)
2002-03 $13,141,986 $3,859 $1,612,179 $13,806,217
2003-04 13,780,439 3,956 1,582,368 14,170,217
2004-05 15,018,545 4,150 1,354,310 14,974,966
2005-06 16,480,815 4,084 1,361,117 16,250,145
2006-07 16,214,410 Not Available 1,430,000(2)17,640,000(2)
(1)Full cash value.(2)Rounded to the nearest thousand.
Source: City of Palo Alto.
The following two tables set out the amounts of property tax collected in the City and the ten
largest property-taxpayers in the City, respectively.
B-3
LAl 912215v.4 83520/90200
Fiscal Year
CITY OF PALO ALTO
PROPERTY TAX LEVIES AND COLLECTIONS
FISCAL YEARS 2001-02 - 2005-06
(In Thousands)
Gross Tax Levy
Percentage of
Current Tax Current Levy
Collections Collected
2001-02 $13,231 $13,231 100%
2002-03 13,821 13,821 100
2003-04 13,707 13,707 100
2004-05 16,657 16,657 100
2005-06 18,731 18,731 100
Delinquent Tax
Collections
Total
Collections
$13,231
13,821
13,707
16,657
18,731
Source:City of Palo Alto.
CITY OF PALO ALTO
TEN LARGEST PROPERTY OWNERS
Fiscal Year ending June 30, 2006
(In Thousands)
Company
Leland Stanford Jr. University
Space Systems/Loral Inc.
Agilent Technologies Inc.
CEP Town & Country Investors, LLC
Harbor Investments Partners
Hamilton Associates
505 Hamilton Avenue Partners
California Pacific Comm. Corp.
EOP-Embarcadero Place, LLC
Thoits Bros Inc.
Type of Business
University and Ancillary
Satellite Design & Manufacturing
Communications & Life Science
Offices, Banks, and
Offices, Banks, and
Offices, Banks, and
Offices, Banks, and
Offices, Banks, and
Offices, Banks, and
Offices, Banks, and
Clinics
Clinics
Clinics
Clinics
Clinics
Clinics
Clinics
Assessed
Property
Valuation
$2,518,267
179 249
72 852
49 858
47 150
38 082
37 085
34 232
30 500
29 168
Source: City of PaloAlto.
Employment
The City is home to a strong mix of large, medium and small firms. The City employment
opportunities are much sought after and include: education at Stanford University, high technology at the
Stanford Research Park, and health care at two medical facilities of national stature. Numerous
institutions that have more than 1,000 employees include: the University, the Veterans Affairs Palo
Health Care facility, the Medical Foundation, Hewlett Packard/Compaq, the Palo Alto Unified School
District, and the City.
However, over the last few years, a number of local and regional technology companies have
implemented layoffs, including Agilent, Apple, Sun Microsystems, Oracle, Hewlett Packard/Compaq,
Intel, and others. Consequently, the City’s unemployment rate rose to a high of 4A percent in July 2003.
During the same period, the Santa Clara County unemployment rate rose to 8.4 percent. As the economy
LA 1 912215VA 83520/90200
B-4
has slowly rebounded since 2003, unemployment rates have declined. Over the last year, unemployment
rates declined from 2.7 percent to 2.3 percent in the City and from 5.8 percent to 5.0 percent in Santa
Clara County. The number of jobs in the County grew 3 percent from August 2005 to August 2006.
The largest employers in the City of Palo Alto as of June 30, 2006 are as follows:
CITY OF PALO ALTO
TEN LARGEST EMPLOYERS
Employer Business
Stanford Hospital and Clinics
Agilent Technologies
Hewlett Packard
Palo Alto Medical Foundation
Roche Bioscience
Space Systems Loral
VA Palo Alto Health Care System
Wilson Sonsini Goodrich & Rosati
Lucille Packard Children’s Hospital
TIBCO Software
Hospital
Communications and Life Sciences
Computer Hardware and Software
Health Care Delivery
Pharmaceutical
Satellite System Design & Manufacturing
Health Care Delivery
Legal Services
Health Care Delivery
Software
Source: CityofPalo Alto.
Due to the nature of local industry, with its heavy emphasis on electronics, aerospace and
research, Santa Clara has attracted many professional people and industrial workers possessing skills well
above the average.
The Santa Clara Labor Market, as defined by the State Employment Development Department,
includes all cities within Santa Clara County. This area is a highly developed industrial, research, and
educational center of employment for a labor force that ranks well above the average in educational
attainment and income. The following table presents the annual average wage and salary employment
figures by industry classification for Santa Clara County for the years 2001 through 2005.
LA1 912215v.4 83520/90200
B-5
SANTA CLARA COUNTY
EMPLOYMENT BY INDUSTRY
ANNUAL AVERAGES
(In Thousands)
2001 2002 2003 2004 2005
Farm 4,600 4,500 4,200 4,100 3,800
Natural Resources and Mining 200 200 200 100 200
Construction 48,600 43,100 40,100 41,500 42,700
Manufacturing 245,100 206,100 180,500 171,800 168,600
W]aolesale Trade 40,700 35,700 33,700 34,000 35,100
Retail Trade 88,700 84,100 81,700 81,000 81,700
Transportation, Warehousing 16,300 15,000 14,000 13,200 12,900
and Utilities
Information 41,900 34,200 31,300 32,500 34,600
Financial Activities 35,300 35,200 34,800 35,100 35,900
Other Services 26,300 25,900 24,800 24,600 24,600
Government 96, D00 99,500 96,100 93,200 93,000
TOTAL 643,700 583,500 541,400 531,100 533,100
Source:California Employment Development Department.
According to the California Employment Development Department, the County’s unemployment
rate was 4.5% in 2006, down from 5.5% in 2005. The following table sets forth certain information
regarding employment in the City from calendar year 2002 through 2006.
Average Annual Civilian Labor Force,
Employment and Unem ployment
City of Palo Alto
2001-02 through 2005-06
Year
Unemployment
Labor Force Number Rate
2002 32,000 1,400 4.5%
2003 30,600 1,400 4.5
2004 30,000 1,000 3.4
2005 30,000 800 2.8
2006 30,500 700 2.3
Source: California Employment Development Department.
Construction Activity
"Single Family Housing," includes detached, semi-detached, rowhouse and townhouse units.
Rowhouses and townhouses are included when each unit is separated from the adjacent unit by an
unbroken ground-to-roof party or fire wall. Condominiums are included in single-family when they are
of zero-lot-line or zero-property-line construction; when units are separated by an air space; or, when
units are separated by an unbroken ground-to-roof party or fire wall. "Multi-Family Housing," includes
duplexes, 3-4-unit structures and apartment-type structures with five units or more. Multi-familyhousing
also includes condominium units in structures of more than one living unit that do not meet the above
LA! 912215v.4 83520/90200
B-6
single-family housing definition. "Residential Alterations and Additions," means alterations, additions,
and conversions to residential structures, excluding special installation permits for electrical, plumbing,
heating, air-conditioning, or similar mechanical work, or installation of fire escapes, elevators, signs, etc.
"New Commercial," includes new hotels and motels, office and bank buildings, stores and other
mercantile buildings, parking garages, service stations, and amusement and recreational buildings. "New
Industrial," includes manufacturing plants and affiliated buildings. "Other New Nonresidential," includes
churches and religious buildings, hospitals and institutional buildings, schools and educational buildings,
residential garages, public works and utilities buildings, and miscellaneous nonresidential structures.
"Nonresidential Alterations and Additions," means alterations, additions, and conversions to
nonresidential structures, excluding special installation permits for electrical, plumbing, heating, air-
conditioning, or similar mechanical work, or installation of fire escapes, elevators and signs, etc.
CITY OF PALO ALTO
Residential and Nonresidential
Building Permit Valuations
Calendar years 2001 through 2005
(In Thousands)
2001 2002 2003 2004 2005
Residential
Single Family $37,987 $ 37,903 $24,061 $28,337 $46,957
Multi-Family 600 18,521 79,904 22,125 13,911
Alterations/Additions 23,072 28,414 26,826 32,993 36,943
Total $61,660 $ 84,837 $130,791 $83,455 $97,811
Non-Residential
New Commercial $ 61,752 $ 12,329 $13,319 $1,635 $17,534
New Industrial 5,295
Othe~~)59,410 7,328 33,004 5,446 5,047
Alterations/Additions 82,051 61,109 49,800 41,313 108,709
Total $208,508 $ 80,767 $ 96,123 $48,393 $131,289
Single Family Units~2)94 90 69 58 82
Multi-Family Units~2)6 74 442 149 83
Total 100 164 511 207 165
o)Includes churches, religious buildings, hospitals and institutional buildings, schools and educational buildings, residential
garages, public works, utilities buildings and other miscellaneous non-residential structures.~2) Not in thousands.
Source: Construction Industry Research Board.
Income
The following table, based on data reported in the annual publication "Survey of Buying Power"
published by Sales and Marketing Management, summarizes the median household EBI for the City, the
County of Santa Clara, the State of California and the nation for the years 2002 through 2005.
B-7
LAI 912215v.4 83520/90200
MEDIAN HOUSEHOLD
EFFECTIVE BUYING INCOME
For Years 2002 through 2005(1)
County of Santa
Year City of Palo Alto Clara State of California United States
2005 $ 73,411 $ 62,614 $ 43,915 $ 39,324
2004 73,164 62,584 42,924 38,201
2003 75,112 62,725 42,484 38,035
2002 77,643 67,504 43,532 38,365
Source:
In 2002, the publisher of Sales and Marketing Management, altered the methodology used in order to produce current
year estimates. The 2006 edition of Sales and Marketing Management has not been published as of the date hereof, and
therefore 2006 estimates are not available.
Survey of Buying Power, Sales & Marketing Management Magazine, dated 2002, 2003, 2004 and 2005.
The following tabulation shows the distribution of effective buying income by income groupings
per household for the City of Palo Alto and the State of California.
INCOME GROUPINGS 2005
(Percent of Households)
Income Per Household City of Palo Alto State of California
$20,000-34,999 9.8%20.0%
35,000-49,999 11.7 18.8
50,000 & Over 68.0 42.5
Source: "Survey of Buying Power," Sales & Marketing Management Magazine.
Commercial Activity
Taxable sales in the City of Palo Alto exceed $1.5 billion annually. The County Planning
Department reports that taxable sales per capita in Santa Clara are the highest of any city in Santa Clara
County. The following summary shows the annual volume of taxable sales within the City since 2001.
During 2005, retail sales totaled nearly $1,250,630,000 and total taxable sales reached $1,709,121,000.
LAI 912215v.4 83520/90200
B-8
CITY OF PALO ALTO
TAXABLE TRANSACTIONS
BY TYPE OF BUSINESS
Calendar Years 2001-20050)
(In Thousands)
2001 2002 2003 2004 2005
Apparel Stores $ 115,035 $109,188 $ 115,793 $ 121,820 $ 127,235
General Merchandise Stores 295,016 255,862 250,904 276,625 284,186
Food Stores 36,326 36,153 34,571 34,120 33,726
Eating and Drinking 211,239 199,403 197,266 202,651 208,128
Home Furnishing and Appliances 63,275 59,685 58,394 59,936 64,308
Building Materials and Farm 20,560 18,033 16,543 20,159 23,619
Implements
Auto Dealers and Suppliers 259,331 213,877 201,196 196,341 203,998
Service Stations 38,570 37,131 40,983 49,511 56,548
Other Retail Stores 264,429 231,970 227,027 239,684 248,882
Retail Stores Totals $1,303,785 $1,161,302 $1,142,677 $1,200,847 $1,250,630
All Other Outlets 463,556 414,676 380,460 419,867 458,491
Total All Outlets $1,767,341 $1,575,978 $1,523,137 $1,620,714 $1,709,121
~1) Most recent full year data available.
Source: State Board of Equalization.
Education
The Palo Alto Unified School District provides public schooling from kindergarten through high
school. The Stanford University is the second largest university campus in the world. The University
comprises the Schools of Engineering, Law, Medicine, Education, Business, Earth Sciences and
Humanities and Science. Stanford University’s teaching hospital and clinics are known for excellence.
Commanity Facilities
The City has some of the most outstanding healthcare facilities in California. Most prominent in
the community is Stanford Hospital & Clinics, which is part of Stanford University Medical Center. With
611 beds for in-patient treatment, emergency care and major surgeries, Stanford Hospital is well known
for its cancer treatment, oncology an transplant services.
Medical groups affiliated with Stanford Hospital & Clinics are Stanford Family Practice, Stanford
Medical Group and Menlo Medical Clinic, and also includes the Stanford University School of Medicine
and the Lucile Packard Children’s Hospital.
The Veterans Affairs Palo Alto Health Care System provides general medical, surgical and
psychiatric care to veterans. Veterans Affairs has three inpatient divisions, the main campus in Palo Alto,
a second campus in Menlo Park and a third campus in Livermore.
The Palo Alto Health Care System has 913 operating beds including three nursing homes and a
100-bed homeless domiciliary on the Menlo Park campus. The Health Care System is affiliated with the
Stanford University School of Medicine.
B-9
LAI 912215vA 83520/90200
The Palo Alto Medical Foundation is a full-service health-care clinic and research institute.
Nearly 250 physicians provide a range of diagnostic and treatment services in primary care and most
medical specialties.
The City’s Parks and Recreation Department oversees 34 parks and playgrounds covering nearly
one-third of its 26 square miles open space. The City’s San Francisco Bay location and natural
environment offer the opportunity to enjoy bird and aquatic life in a natural habitat. There is one golf
course located in the City, a recently renovated 18-hole championship length course.
Transportation
The City is served by the Bayshore Freeway (U.S. Highway 101 ), which runs southeast from San
Francisco to Los Angeles and is the major freeway connecting San Francisco and San Jose; Highway 84 -
the Dumbarton Bridge and Highway 92, the Hayward-San Mateo Bridge; and Interstate 280, which runs
north/south to San Francisco and State Highway 82. These freeways link the City to all parts of northern
California.
Air transportation is available at both the San Francisco International Airport, approximately
40 miles to the north, and the San Jose Airport, 2 miles from downtown Santa Clara. Rail service is
provided by Union Pacific Railroad, on a north!south track linking San Jose and San Francisco, and Cal
Train commuter service to Gilroy and San Francisco.
Within the City, commuter rail transportation is conveniently located and the Palo Alto stop is
one of the most used in the CalTrain system. Alternative transportation options include numerous bike
paths throughout the City and an internal shuttle service is also available.
Utilities and Water Supply
Water is supplied within the City by its own municipal water department. The City purchases
approximately 15 percent of its water supply from the Santa Clara Valley Water District, a contractor of
the State Water Project and recipient of federal Central Valley Project water, and approximately 17
percent of its water supply from the City and County of San Franc.isco. The remainder is Comprised of
local groundwater pumped from its own wells.
The City is the only municipal utility in California that operates city-owned utility services that
include electric, fiber optic, natural gas, water and wastewater services. Since 1896, the City has been
providing quality services to the citizens and businesses of the City.
The regular management duties of for the City’s utilities, including the Electric System, are
primarily the responsibility of its Director of Utilities and its Assistant Director of Utilities, Customer
Support Services Division.
Director of Utilities - On October 16, 2006, the City appointed Valerie Fong as Director of
Utilities. Ms. Fong began her career with PG&E working on various gas and electric procurement and
regulatory matters of increasing responsibility, including working with customers in the company’s field
offices, testifying in regulatory proceedings, negotiating long-term procurement contracts, and overseeing
the development and management of the company’s electric and gas core customer procurement
portfolios. She was at PG&E for 22 years. Subsequently, she worked for the City of Alameda for over
four years, where she was the Utility Services Manager, and later, the General Manager over the utility’s
two business lines, the electric and the telecommunications businesses. Ms. Fong earned a Bachelor’s
LA1 912215v.4 83520/90200
B-10
Degree in civil engineering from the University of California, Berkeley and is a registered professional
engineer in the State of California.
Assistant Director of Utilities, Customer Support Services Division Tom Auzenne has 19 years
of utility experience with PG&E, and 14 years with the CPAU. At PG&E he held positions in Gas and
Electric Operations, Gas Transmission, Customer Services, Marketing, and Governmental Affairs. At the
City, he has been the Utilities Marketing Manager and Assistant Director. The Customer Support
Services Division comprises 35 full-time equivalent staff divided into: (a) marketing, which implements
efficiency programs, sells fiber optic connectivity, and provides key account management services; (b)
customer service, providing call center services, credit and collection activities, meter reading, and
utilities billing; and, (c) utilities rates, which provides long-term financial forecasting, and establishes
rates and reserve requirements for CPAU’s $178 million in annual sales for the water, electricity, natural
gas, fiber optic and wastewater collection business lines. Mr. Auzenne received a Bachelor’s degree from
San Francisco State University.
Agriculture
The City still supports a thriving agriculture industry, ranging from crops and wine to Leland
Stanford’s horse farm and training facilities, the Dixon Stables, Portola Valley Training Center, and
Webb Ranch are just a few of the equestrian facilities that live up to the area’s rich history. Just a few
miles away off Highway 280, traditional ranches such as Hidden Villa continue to grow and distribute
quality products. Organic grocery stores, such as Whole Foods Market, Piazza’s Market and Trader Joe’s
share the market place with traditional grocery outlets and fresh fruit and vegetable stands.
Local greenhouses and florists provide a diverse selection to help residents and business beautify
their yards aud homes. The area also features a number of machinery and equipment outlets to make
agriculture related job feasible.
B-11
LAI 912215v.4 83520190200
PLACEMENT AGREEMENT
[PLACEMENT DATE]
City of Palo Alto
250 Hamilton Avenue
Palo Alto, California 94301
[PURCHASERS]
Ladies and Gentlemen:
The undersigned Stone Youngberg LLC (the "Placement Agent"), hereby offers to enter
into this Placement Agreement (this "Placement Agreement") with the City of Palo Alto (the
"City") and [PURCHASERS] (the "Purchasers") in connection with the issuance of $
aggregate principal amount of City of Palo Alto Electric System Clean Renewable Energy Tax
Credit Bonds, 2007 Series A (the "Bonds"). Capitalized terms used but not defined herein shall
have the meaning assigned thereto as set forth in the Indenture (defined below).
The principal terms and conditions of the transaction are outlined below.
1. Placement and Purchase of Bonds. Upon the basis of the representations and
agreements herein contained, but subject to the terms and conditions hereinafter set forth, the
City hereby appoints the Placement Agent as its exclusive agent for the purpose of assisting the
City in finding purchasers of the Bonds.
Subject to the performance by the City and the Purchasers of all their respective
obligations to be performed under this Placement Agreement and to the completeness and
accuracy of all representations and warranties of the City and each Purchaser contained in this
Placement Agreement, the Placement Agent hereby agrees to accept such agency.
The City understands that the Placement Agent is acting solely as the City’s agent in the
placing of the Bonds and that the Placement Agent’s responsibility is limited to a "reasonable
efforts" basis in placing the Bonds, with no understanding, express or implied, on the part of the
Placement Agent of a commitment by the Placement Agent, whether as principal or agent, to
purchase or place the Bonds. The Placement Agent shall have no liability to the City if any
purchase of Bonds is not consummated for any reason.
Nothing contained in this Placement Agreement (i) shall prevent either Placement Agent
from entering into any agency agreements, underwriting agreements or other similar agreements
LA1 912498v.3 83520/90200
governing the offer and sale of securities with any other issuer or issuers of securities or (ii) shall
be construed in any way as precluding or restricting other rights of either Placement Agent to sell
or offer for sale any securities issued by any other person, including securities similar to, or
competing with, any of the Certificates.
Each Purchaser hereby agrees that it will purchase, and the City hereby agrees to cause
the Trustee (as defined below) to authenticate and deliver to such Purchaser the Bonds
designated for purchase by such Purchaser on Schedule I hereto on the Closing Date (as defined
in Section 9 hereof). The City and each Purchaser hereby agree that all (but not less than all) of
the Bonds shall be delivered and purchased hereunder and that no Bonds shall be delivered if any
Purchaser fails to purchase Bonds as required hereunder. The purchase price of the Bonds to be
purchased by each Purchaser shall be the price corresponding to such maturity of Bonds set forth
on Schedule II, payable by such Purchaser as provided herein.
2. The Bonds. The Bonds will be issued and delivered pursuant to an Indenture of
Trust, dated as of [DOCUMENT DATE] (the "Indenture"), by and between the City and U.S.
Bank National Association, as trustee (the "Trustee"). The Bonds will be dated the date of their
delivery. The Bonds will mature on 1, 20 The Bonds will not bear interest.
Jones Hall, A Professional Law Corporation, Bond Counsel, will deliver an opinion on
the Closing Date in the form attached to the Placement Memorandum (defined below) as
Appendix F. Under Section 54 of the Code, a taxpayer owning a Bond on each "credit
allowance date" will be entitled to a tax credit against its federal income tax. The tax credit will
be equal to the principal amount of Bonds of each maturity outstanding on the "credit allowance
date" multiplied by the credit rate (the "Credit Rate") for such maturity of Bonds set forth on
Schedule II hereto, which rate is the credit rate for such maturity as published on the date hereof
by the U.S. Secretary of the Treasury on its Internet site at
http://www.treasurydirect.gov/SZ/SPESRates?type=CREBS. The parties hereto agree that this
Memorandum constitutes a binding commitment for the sale of the Bonds for .purposes of
establishing the Credit Rate in accordance with Notice [2005-98] published by the U.S.
Department of Treasury.
The Bonds will be issued as fully registered Bonds, and, when issued initially, shall be
issued only in book-entry form, registered in the name of Cede & Co., as nominee for The
Depository Trust Company, New York, New York ("DTC"). DTC is serving as the initial
securities depository for the Bonds. Purchases of beneficial ownership interests in the Bonds
may be made only through the DTC book-entry system and may be made only in minimum
denominations of $5,000 or any integral multiple thereof. Beneficial Owners of the Bonds will
not receive certificates representing their interests in the Bonds. One fully-registered certificate
will be issued for each maturity of the Bonds, each in the aggregate principal amount of such
maturity, and will be deposited with DTC.
3. Purpose of the Transaction. The proceeds of the Bonds will be used for the
purpose of financing the costs of acquisition and construction of certain additions, betterments
and improvements to the City’s electric utility (the "Project") as described in Section 54 of the
Code.
4. Security. The Bonds are revenue obligations of the City, payable solely from and
secured by a pledge of the Net Revenues of the Electric System and the other funds pledged
therefor under the Indenture.
5. Placement Memorandum. The City shall cause to be delivered to the Placement
Agent, at the expense of the City, promptlyafter acceptance hereof, but in any event within
seven business days of the date of this Placement Agreement, copies of a final placement
memorandum with respect to the issuance and sale of the Notes (the "Placement
Memorandum"), dated the date hereof, with only such changes therein as shall have been
mutually agreed upon by the City and the Placement Agent.
The City has approved distribution of a Preliminary Placement Memorandum, dated
,2007 (the "Preliminary Placement Memorandum"), by the Placement Agent and hereby
authorizes the Placement Agent to use, in connection with the placement of the Bonds, the
Placement Memorandum and all other documents, agreements, certificates or statements
furnished by the City to the Placement Agent or entered into in connection with the placement of
the Bonds, and all other documents, agreements, certificates or statements furnished by the City
or entered into in connection with the transactions described in this Placement Agreement. The
City agrees to provide to the Placement Agent, at the expense of the City, such number of copies
of the Placement Memorandum as the Placement Agent may request and, such additional copies
as may be required in order to permit the Placement Agent to provide copies of the Placement
Memorandum to any and all Purchasers. The City represents that the Preliminary Placement
Memorandum was "final" as of its date within the meaning of paragraph (b)(1) of Rule 15c2-12
under the Securities Exchange Act of 1934, as amended (the "1934 Act").
6. Representations~ Warranties, Covenants and Obligations of the City. The
City represents and warrants to, and agrees with, the Placement Agent and each Purchaser as
follows:
(a) The City is a charter city duly organized and existing pursuant to the
Constitution and laws of the State of California and has all necessary power and authority
to adopt the resolution or resolutions of the City authorizing the issuance and delivery of
the Bonds (the "Resolutions") and to enter into and perform its duties under the Indenture
and the Continuing Disclosure Agreement, between the City and the Trustee, as
dissemination agent, with respect to the Bonds (such Continuing Disclosure Agreement
substantially in the forms heretofore reviewed by the Placement Agent, with only such
changes therein as shall be mutually agreed upon by the parties hereto being the
"Continuing Disclosure Agreement" and together with the Indenture and the Bonds, the
"Transaction Documents");
(b) The execution and delivery by the City of the Transaction Documents and
compliance with the provisions hereof and thereof, have been duly authorized by all
necessary official action on the part of the City;
(c) Except as disclosed in the Placement Memorandum, there is no action,
suit, proceeding or investigation at law or in equity before or by any court or
governmental agency or body pending or threatened against the City to restrain or enjoin
the execution or delivery of the Transaction Documents, or the ability of the City to pay
the Bonds, or in any way contesting or affecting the validity of the Transaction
Documents, or contesting the existence of the City or the power of the City to enter into
or perform its obligations under any of the foregoing;
(d) The City agrees to cooperate with the Placement Agent in endeavoring to
qualify the Bonds for offering and sale under the securities or blue sky laws of such
jurisdictions of the United States as the Placement Agent may request; provided,
however, that in no event shall the City be required to take any action which would
subject it to general or unlimited service of process in any jurisdiction in which it is not
now so subject;
(e) The information with respect to the City and the Bonds contained in the
Placement Memorandum is, and at all times subsequent to the date of the Placement
Memorandum up to and including the Closing Date will be, true and correct in all
material respects, and such information does not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(f) The City will advise the Placement Agent promptly of any proposal to
amend or supplement the Placement Memorandum and will not effect or consent to any
such amendment or supplement without the consent of the Placement Agent, which
consent will not be unreasonably withheld. The City will advise the Placement Agent
promptly of the institution of any proceedings known to it by any governmental agency
prohibiting or otherwise affecting the use of the Placement Memorandum in connection
with the offering, sale or distribution of the Bonds;
(g) If, at any time on or prior the Closing Date, any event occurs as a result of
which the Placement Memorandum as then amended or supplemented would include an
untrue statement of a material fact, or omit to state any material fact necessary in order to
make the statements contained therein, in the light of the circumstances under which they
were made, not misleading, and, in the reasonable opinion of the Placement Agent, an
amended or supplemented Placement Memorandum should be delivered in connection
with the offering or sale of the Bonds to reflect such event, the City will promptly
prepare, at its own expense, an amendment or supplement which will correct such
statement or omission;
(h) The City acknowledges and agrees that in connection with the offering
contemplated hereby and the process leading to such transaction, (i) the Placement Agent
is not a fiduciary of the City, (ii) the Placement Agent has not assumed nor will assume
an advisory or fiduciary responsibility in favor of the City with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether either
Placement Agent has advised or is currently advising the City on other matters) and the
Placement Agent has no obligation to the City with respect to the offering contemplated
hereby except the obligations expressly set forth in this Placement Agreement, (iii) the
Placement Agent or its affiliates may be engaged in a broad range of transactions that
4
involve interests that differ from those of the City and (iv) the Placement Agent has not
provided any legal, accounting, regulatory or tax advice with respect to the offering
contemplated hereby, and the City has consulted its own legal, accounting, regulatory and
tax advisors to the extent it deemed appropriate.
7. Representations~ Warranties~ Covenants and Obligations of the Purchasers.
Each Purchaser represents, warrants and covenants that the Purchaser has duly authorized, by all
necessary action, the purchase of the Bonds and the execution and delivery of this Placement
Agreement and any other instruments and documents required to be executed by the Purchaser in
connection with the purchase of the Bonds.
8. Representations and Warranties of the Placement Agent. The Placement
Agent represents to the City both as of the time of acceptance hereof and as of the time of the
Closing that (i) it is duly authorized and empowered to execute and deliver this Placement
Agreement and that it is duly authorized to perform its obligations hereunder and that it has full
authority to take such action as it may deem advisable with respect to all matters pertaining to
this Placement Agreement; and (ii) this Placement Agreement has been duly executed and
delivered by the Placement Agent and shall constitute a valid and binding obligation of the
Placement Agent.
9. Conditions to Obligations of the Purchasers. The obligation of each Purchaser
to accept delivery of and pay for the Bonds on the Closing Date is subject to the conditions
provided in this Section. Each Purchaser’s obligation to purchase the Bonds will be subject to
the following conditions (i) the Transaction Documents shall be satisfactory in form and
substance to such Purchaser and its counsel, (ii) the accuracy in all material respects of the
representations, warranties and agreements on the part of the City contained in the Transaction
Documents as of the Closing Date, (iii) the accuracy in all material respects of the statements of
the officers, members, agents and other officials of the City made in any certificates or other
documents furnished pursuant to the provisions hereof, and (iv) the performance by the City of
its obligations to be performed hereunder at or prior to the Closing Date:
(a) At the time of Closing, the Transaction Documents shall be in full force and
effect as valid, binding and enforceable agreements between or among the various parties
thereto, and the Transaction Documents shall not have been amended, modified or
supplemented, except as described herein or as may otherwise have been agreed to in
writing by the Purchasers.
(b) After the date hereof and prior to the Closing Date, none of the following shall
have occurred:
(1) legislation shall have been enacted by or introduced in the
Congress amending or proposing to amend the Code in a manner that will affect
retroactively the tax credits to be received by the Purchasers pursuant to the
Bonds;
(2) legislation shall have been enacted by or introduced in the
Congress, or action by or on behalf of the Securities and Exchange Commission,
or any other governmental agency having jurisdiction of the subject matter, to the
effect that obligations of the general character of the Bonds are not exempt from
registration under the Securities Act of 1933, as amended (the "Securities Act);
(c) At or prior to the Closing Date, the Purchasers shall have received the
following documents:
(1) The Transaction Documents, duly executed and delivered by the
respective parties thereto;
(2) A Placement Memorandum of the City, dated , 2007
relating to the Bonds (which, together with all appendices thereto and
supplements thereto, is herein called the "Placement Memorandum"), duly
executed by the City.
(3) An Opinion of Bond Counsel dated the Closing Date in
substantially the form included as Appendix to the Placement Memorandum;
(4) An Opinion of Counsel to tire City, dated the Closing Date and
addressed to the City and the Trustee, to the effect that:
(A) the City is a charter city duly organized and validly existing
pursuant to the Constitution and the laws of the State of California;
(B) the Resolutions of the City approving and authorizing the
execution and delivery of the Transaction Documents were duly adopted
at meetings of the Council of the City called and held pursuant to law and
with all public notice required by law and at which a quorum was present
and acting throughout and the Resolutions are in full force and effect and
have not been modified, amended or rescinded (except as such
Resolutions may have amended one another);
(C) the City has full right and lawful authority to enter into and
perform under the Transaction Documents, and the Transaction
Documents have been duly authorized, executed and delivered by the City
(D) there is no action, suit, proceeding or investigation at law or
in equity before or by any court, public board or body pending or, to the
best of such counsel’s knowledge, threatened against or affecting the City
in which an unfavorable decision, ruling or finding would adversely affect
the City’s ability to execute or perform its obligations under the
Transaction Documents, or in any way contesting the existence of the City
or the powers of the City with respect thereto, or the ability of the City to
make payment under the Bonds, or affecting, contesting or seeking to
prohibit, restrain or enjoin the execution and delivery of any of the Bonds
or in any way contesting or affecting the validity or enforceability of the
Transaction Documents; and
(E) insofar as it would materially adversely affect the City’s
ability to enter into, carry out and perform its obligations under any or all
of the Transaction Documents, (a) the City is not in material breach of or
default under any constitutional provision, law, administrative rule or
regulation, applicable judgment or decree, or any loan agreement,
indenture, bond, note, resolution, agreement or other instrument to which
it is a party or to which it or any of its property or assets is otherwise
subject, (b) no event has occurred and is continuing which, with the
passage of time or the giving of notice, or both, would constitute a default
or an event of default under any such instrument, and the execution and
delivery by the City of the Transaction Documents and compliance with
the provisions thereof, under the circumstances contemplated thereby, do
not and will not in any material respect conflict with or constitute on the
part of the City a breach of or default under any agreement or other
instrument to which the City is a party or by which it is bound or any
existing law, regulation, court order or consent decree to which the City is
subject, nor will any such authorization, execution, delive{y or
performance result in the creation or imposition of any lien, charge or
other security interest or encumbrance of any nature whatsoever upon any
of the property or assets of the City or under the terms of any such law,
regulation, resolution or instrument, except as provided by the Bonds and
the Transaction Documents;
(5) The Certificate of rite City, signed by an authorized official of the
City, dated the Closing Date, to the effect that:
(A) The City is a charter city duly organized and existing
pursuant to the Constitution and laws of the State of California and has all
necessary power and authority to adopt the resolution or resolutions of the
City authorizing the execution and delivery of the Bonds (the
"Resolutions") and to enter into and perform its duties under the
Transaction Documents;
(B) The execution and delivery by the City of the Transaction
Documents, and compliance with the provisions hereof and thereof, have
been duly authorized by all necessary official action on the part of the
City;
(C) To the best of the City’s knowledge, there is no action,, suit,
proceeding or investigation at law or in equity before or by any court or
governmental agency or body pending or threatened against the City to
restrain or enjoin the execution or delivery of the Bonds, Transaction
Documents, or the ability of the City to make payments on the Bonds, or
in any way contesting or affecting the validity of the Bonds, the
Transaction Documents, or contesting the existence of the City or the
power of the City to enter into or perform its obligations under any of the
foregoing;
(D) the representations and warranties made by the City in the
Transaction Documents and this Placement Agreement are true and
correct in all material respects on the Closing Date, with the same effect as
if made on and with respect to the facts as of the Closing Date;
(6) Certified copies of tile Resolutions of tile City authorizing the
execution and delivery of the Transaction Documents to which it is a party;
(7) A Certificate of tile Trustee, dated the Closing Date, signed by a
duly authorized officer of the Trustee, to the effect that:
(A) such officer is a duly authorized officer of the Trustee;
(B) the duties and obligations of the Trustee under the
Indenture have been duly accepted by the Trustee; and
(C) to the best of such officer’s knowledge, no litigation is
pending or threatened (either in state or federal courts) (i)seeking to
restrain or enjoin the execution or delivery of any of the Bonds, or (ii) in
any way contesting or affecting any authority for the execution or delivery
of the Bonds or the validity or enforceability of the Bonds or the
Indenture;
(8) A Tax Certificate of tile City relating to the Bonds, in form and
substance satisfactory to Bond Counsel;
(9) Evidence of the appropriate filings by the City with the California
Debt and Investment Advisory Commission; and
(10) A Reliance Letter addressed to the Trustee, to the effect that the
Trustee may rely on the opinion of Bond Counsel in substantially the form
included as Appendix __ to the Placement Memorandum; and
(11) Such additional legal opinions, certificates, certifications,
proceedings, instruments and other documents as the Purchaser or Purchaser’s
counsel, the City or Bond Counsel may reasonably request to evidence
(i) compliance by the City with legal requirements, (ii) the truth and accuracy, as
of the Closing Date, of the representations of the City contained herein and in the
Transaction Documents, and (iii) the due performance or satisfaction by the City
at or prior to such time of all agreements then to be performed and all conditions
then to be satisfied by the City.
If the City shall be unable to satisfy the conditions to the Purchasers’ obligations
contained in this Section there shall be no obligation of the Purchasers to purchase the Bonds,
and neither the Purchasers nor the City shall have any further obligation relating to the Bonds.
The Placement Agent may, however, in its discretion and subject to the approval of the
Purchasers, waive one or more of the conditions imposed by this Placement Agreement and
proceed with the Closing (defined below).
10. The Closing. At 9:00 A.M., California time, on , 2007, or at such
earlier or later time or date as shall be agreed by the City, the Placement Agent and the
Purchasers (such time and date being herein referred to as the "Closing Date") the City will
deliver to The Depository Trust Company ("DTC") in New York, New York for the account of
each Purchaser (or such other location as may be designated by the Purchasers and approved by
the City), the Bonds to be purchased by such Purchaser hereunder in definitive form, in the form
of a separate fully registered Bond (which may be typewritten) for each of the maturity of the
Bonds and bearing CUSIP numbers, duly executed by the City and authenticated by the Trustee,
and will deliver the other documents herein mentioned to each Purchaser at the San Francisco,
California, offices of Bond Counsel; and each Purchaser will accept such delivery and pay the
purchase prices of such Bonds as set forth in Section 1 hereof by wire transfer payable in
immediately available funds (such delivery and payment being herein referred to as the
"Closing"). Notwithstanding the foregoing, neither the failure to print CUSIP numbers on any
Bond nor any error with respect thereto shall constitute cause for a failure or refusal by any
Purchaser to accept delivery of and pay for the Bonds on the Closing Date in accordance with the
terms of this Placement Agreement. Upon initial issuance, the ownership of such Bonds shall be
registered in the registration books kept by the Trustee in the name of Cede & Co., as the
nominee of DTC.
11. Indemnification by Ci .ty. To the extent permitted by law, the City agrees to
indemnify and hold harmless the Placement Agent and the Trustee, and each director, officer,
partner, member, agent, employee and controlling person of the Placement Agent and the
Trustee, from and against all losses, claims, damages, liabilities and expenses, joint or several, to
which the Placement Agent or the Trustee, or such director, officer; partner, member, agent
employee or controlling person of the Placement Agent or the Trustee (collectively, the
"Indemnified Parties" and each an "Indemnified Party") may become subject under the federal
securities laws or regulations or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) (1) arise out of or are based upon any breach of any of
the representations and warranties of the City contained herein (2) arise out of or are-based upon
any untrue statement or alleged untrue statement of any material fact contained in the sections
pertaining to the City in the Placement Memorandum (the "Obligee Information"), or (3) arise
out of or are based upon the omission or alleged omission to state in the Obligee Information a
material fact required to be stated therein or necessary to make the statements contained in the
Obligee Information not misleading in light of the circumstances in which they were made, and
the City shall reimburse the Indemnified Parties for any expenses, including, but not limited to,
any legal, professional and other reasonable expenses reasonably incurred by the Indemnified
Parties in investigating, preparing or defending against any litigation, commenced or threatened,
or any claim whatsoever; provided that such expenses result from such an untrue statement or
alleged untrue statement of a material fact or such an omission or alleged omission to state a
material fact contained in or omitted from the Obligee Information.
In addition, to the extent permitted by law, if the City shall fail to cause delivery of the
Bonds as required hereunder, the City (i) shall indemnify and hold harmless the Placement Agent
against all losses, claims~ damages, liabilities and expenses, joint or several, to which the
Placement Agent or any director, officer; partner, member, agent employee or controlling person
of the Placement Agent may become subject under law or otherwise arising from or as a result of
such failure by the City and shall reimburse such parties for any expenses, including, but not
limited to, any legal, professional and other reasonable expenses reasonably incurred by such
parties in investigating, preparing or defending against any litigation, commenced or threatened,
or any claim whatsoever and (ii) shall pay to the Placement Agent any fee to which it would be
entitled hereunder in connection with such sale as if such sale had been consummated.
12.Fees and Expenses.
(a) At the time of and as a condition to the placement by Stone &
Youngberg LLC, the Placement Agent, of the Bonds, the City shall pay or cause to be
paid all of the fees and expenses incurred in connection with the Closing including the
Placement Agent’s placement agency fee of $ and out-of-pocket expenses
(except as hereinafter described), financial consultant fees, authentication and acceptance
fees of the Trustee, fees and expenses of counsel to the Trustee, fees and expenses of
Bond Counsel, counsel to the Placement Agent, fees and expenses of the City and its
counsel, and all fees necessary for printing or otherwise reproducing the Placement
Memorandum, closing, recording of documents, title insurance, property and casualty
insurance and similar expenses.
(b) The Placement Agent shall pay (1) the expenses of any advertising incurred in
connection with its offering of the Bonds, and (2) all other expenses incurred by it in
connection with its offering and distribution of the Bonds, other than the expenses
incurred by it which are described in paragraph 12(a) above.
13. Survival of Representations. The representations set forth in paragraphs 6, 7
and 8 hereof shall remain operative and in full force and effect regardless of the execution and
delivery of the Bonds or any investigation made by or on behalf of any of the parties hereto.
14. Headings. The headings of the paragraphs in this Placement Agreement are
inserted for convenience only and shall not be deemed to be a part hereof.
15. Counterparts. This Placement Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which taken together
shall constitute one agreement, and any of the parties hereto may execute this Placement
Agreement by signing any such counterpart.
10
16. Governin~ Law. This Placement Agreement shall be governed by and construed
in accordance with the laws of the State of California.
Very truly yours,
STONE & YOUNGBERG LLC,
as Placement Agent
By:
Authorized Signatory
Accepted and Agreed to:
CITY OF PALO ALTO
By:
[PURCHASERS], as Purchaser
By:
Authorized Signatory
[PURCHASERS], as Purchaser
By:
Authorized Signatory
[PURCHASERS], as Purchaser
By:
Authorized Signatory
11
SCHEDULE I
PURCHASED BONDS
Purchaser
[PURCHASER]
[PURCHASER]
[PURCHASER]
Maturity of Bonds
Purchased Principal Amoum
(1)Purchased
20
20 $
20
20
20
20
$
$
$
$
Purchase Price
$
$
$
$
$
$
SCHEDULE II
CREDIT RATES AND PRICES
Maturity
(__1)
20
20
20
20
20
20
20
20
Credit Rate
%
Price
APPENDIX C
BOOK-ENTRY ONLY SYSTEM
General
DTC will act as securities depository for the 2007A Bonds. The 2007A Bonds will be executed
and delivered as fully-registered securities registered in the name of Cede & Co. (DTC’s partnership
nominee) or such other name as may be requested by an authorized representative of DTC. One fully-
registered certificate will be issued for the 2007A Bonds in the initial aggregate principal amount of such
maturity, and will be deposited with DTC.
DTC, the world’s largest depository, 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 and provides asset servicing for over 2.2 million
issues of U.S. and non-U.S, equity issues, corporate and municipal debt issues, and money market
instruments from over 100 countries that DTC’s participants ("Direct Participants") deposit with DTC.
DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities
transactions in deposited securities, through electronic computerized book-entry transfers and pledges
between Direct Participants’ accounts. This eliminates the need for physical movement of securities
certificates. Direct Participants include both U.S. and non-U.S, securities brokers and dealers, banks,
trust companies, clearing corporations, and certain other organizations. DTC is a wholly-owned
subsidiary of The Depository Trust & Clearing Corporation ("DTCC"). DTCC, in turn, is owned by a
number of Direct Participants of DTC and Members of the National Securities Clearing Corporation,
Fixed Income Clearing Corporation, and Emerging Markets Clearing Corporation (NSCC, FICC and
EMCC, also subsidiaries of DTCC), as well as by the New York Stock Exchange, Inc., the American
Stock Exchange LLC and the National Association of Securities Dealers, Inc. Access to the DTC system
is also available to others such as both U.S. and non-U.S, securities brokers and dealers, banks, trust
companies and clearing corporations that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). DTC has Standard & Poor’s highest
rating: AAA. The DTC Rules applicable to its Participants are on file with the Securities and Exchange
Commission.
Purchases of 2007A Bonds under the DTC system must be made by or through Direct
Participants, which will receive a credit for the 2007A Bonds on DTC’s records. The ownership interest
of each actual purchaser of each 2007A Bond ("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. Beneficial Owners are, however, 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
interests in the 2007A Bonds are to be accomplished by entries made on the books of Direct and Indirect
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates
representing their ownership interests in 2007A Bonds, except in the event that use of the book-entry
system for the 2007A Bonds is discontinued.
To facilitate subsequent transfers, all 2007A Bonds deposited by Direct Participants with DTC
are registered in the name of DTC’s partnership nominee, Cede & Co. or such other name as may be
requested by an authorized representative of DTC. The deposit of 2007A Bonds with DTC and their
registration in the name of Cede & Co. or such other DTC nominee do not effect any change in beneficial
C-1
LAI 911286v.4 83520/90200
ownership. DTC has no knowledge of the actual Beneficial Owners of the 2007A Bonds; DTC’s records
reflect only the identity of the Direct Participants to whose accounts such 2007A Bonds are credited,
which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
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. Beneficial Owners of 2007A Bonds may wish to take
certain steps to augment the transmission to them of notices of significant events with respect to the
2007A Bonds, such as redemptions, tenders, defaults, and proposed amendments to the 2007A Bond
documents. For example, Beneficial Owners of 2007A Bonds may wish to ascertain that the nominee
holding the 2007A Bonds for their benefit has agreed to obtain and transmit notices to Beneficial Owners.
In the alternative, Beneficial Owners may wish to provide their names and addresses to the registrar and
request that copies of notices be provided directly to them.
Redemption notices will be sent to DTC. If less than all of the 2007A Bonds with a .particular
stated maturity are being prepaid, DTC’s practice is to determine by lot the amount of the interest of each
Direct Participant in such 2007A Bonds to be prepaid.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to
2007A Bonds unless authorized by a Direct Participant in accordance with DTC’s Procedures. 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 2007A Bonds are credited on the record date (identified in a listing attached to the Omnibus
Proxy).
Payments of principal, premium, if any, interest and other payments evidenced by the 2007A
Bonds will be made to Cede & Co., or such other nominee as may be requested by an authorized
representative of DTC. DTC’s practice is to credit Direct Participants’ accounts upon DTC’s receipt of
funds and corresponding detail information from the City or the Trustee or the Improvement Trustee, as
applicable, on the payable date in accordance with their respective holdings shown on DTC’s records.
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 nor its nominee, the
Trustee, the Improvement Trustee or the City, subject to any statutory or regulatory requirements as may
be in effect from time to time. Payments of principal, premium, if any, interest and other payments
evidenced by the 2007A Bonds to Cede & Co. (or such other nominee as may be requested by an
authorized representative of DTC) is the responsibility of the City, the Trustee or the Improvement
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.
DTC may discontinue providing its services as depository with respect to the 2007A Bonds at any
time by giving reasonable notice to the City or the Trustee or the Improvement Trustee, as applicable.
The City may decide to discontinue use of the system of book-entry transfers through DTC (or a
successor securities depository).
LAI 91128~v.4 83520/90200
C-2
The information in this section concerning DTC and DTC’s book-entry system has been obtained
from sources that the City believes to be reliable, but the City takes no responsibility for the accuracy
thereof.
The City cannot and does not give any assurances that DTC Direct Participants or Indirect
Participants or others will distribute payments with respect to the 2007A Bonds received by DTC or its
nominee as the registered Owner, or any redemption or other notices, to the Beneficial Owners, or that
they will do so on a timely basis, or that DTC will service and act in the manner described in this
Placement Memorandum.
The City and the Trustee cannot and do not give any assurance that DTC, DTC
Participants or others will distribute payments of principal, interest or any premium with respect
to the 2007A Bonds paid to DTC or its nominee as the registered owner, or any redemption or other
notices, to the Beneficial Owner, or that they will do so on a timely basis or will serve and act in the
manner described in this Placement Memorandum. The City and the Trustee are not responsible
or liable for the failure of DTC or any DTC Participant to make any payment or give any notice to
a Beneficial Owner with respect to the 2007A Bonds or any error or delay relating thereto.
The foregoing description of the procedures and record-keeping with respect to beneficial
ownership interest in the 2007A Bonds, payment of principal, premium, if any, interest and other
payments on the 2007A Bonds to DTC Participants or Beneficial Owners, confirmation and transfer of
beneficial ownership interests in such 2007A Bonds and other related transactions by and between DTC,
the DTC Participants and the Beneficial Owners is based solely on information provided by DTC.
Accordingly, no representations can be made concerning these matters and neither the DTC Participants
nor the Beneficial Owners should rely on the foregoing information with respect to such matters, but
should instead confirm the same with DTC or the DTC Participants, as the case may be.
Discontinuance of DTC Services
[In the event that (a) DTC determines not to continue to act as securities depository for the 2007A
Bonds or (b)the City determines to remove DTC from its functions as a depository, DTC’s role as
securities depository for the 2007A Bonds 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 2007A Bonds in fully registered form in such denominations and numbered in
the manner determined by tile Trustee and registered in the names of such persons as are requested in a
written request of the City. The Trustee shall not be required to deliver such new 2007A Bonds within a
period of less than 60 days from the date of receipt of such written request of the City. Upon such
registration, such persons in whose names the 2007A Bonds are registered will become the registered
owners of the 2007A Bonds for all purposes.
In the event that the book-entry system is discontinued, the following provisions would also
apply: (a) 2007A Bonds may be transferred or exchanged by the Owner thereof, in person or by an agent
duly authorized in writing by the Owner, at the Principal Office of the Trustee for such purpose in the
books required to be kept by the Trustee pursuant to the Indenture, upon surrender of such 2007A Bonds
accompanied by delivery of a duly executed written instrument of transfer or exchange in a form
approved by the Trustee; (b) the Trustee shall require the payment by any Owner requesting such transfer
or exchange of any tax, governmental charge or transfer fee that may be imposed with respect to such
transfer or exchange; (c) all interest payments with respect to the 2007A Bonds will be payable on the
respective interest payment dates by check mailed by first class mail by the Trustee on the date such
interest is due to the respective Owners of the 2007A Bonds as shown in the registration books
maintained by the Trustee as of the close of business on the record date therefor (except that in the case of
C-3
LA1 911286vA 83520/90200 "’
an Owner of $1,000,000 or greater in aggregate principal amount of Outstanding 2007A Bonds, such
payment shall, at such Owner’s written request received by the Trustee at least 30 days before any interest
payment date, be made by wire transfer of immediately available funds in accordance with instructions
provided by such Owner); and (d) all payments of principal and payment premiums, if any, evidenced and
represented by the 2007A Bonds will be payable on the respective payment dates or upon prepayment
prior thereto by the respective Owners at the principal office ofthe Trustee specified for such purpose.]
C-4
LA 1 911286v.4 83520/90200
APPENDIX D
SUMMARY OF CERTAIN PROVISIONS OF THE PRINCIPAL LEGAL DOCUMENTS
LA1 911286v.4 83520/90200
APPENDIX E
PROPOSED FORM OF CONTINUING DISCLOSURE AGREEMENT
LAI 911286v.4 83520/90200
APPENDIX F
PROPOSED FORM OF OPINION OF BOND COUNSEL
LA1 911286v.4 83520/90200
ATTACHMENTB
CLEAN RENEWABLE ENERGY TAX CREDIT BONDS 2007
ESTIMATED PROJECT COSTS AND SOURCES AND USES
Estimated Project Costs
Equipment for Lucy Evans Baylands Interpretive Center
Equipment for Cubberley Co~nmunity Center
Equipment for City’s Municipal Services Center
Design
Project Management
Public Education
Construction Contingency
Total .....................................................................................
$124,288
$1,424,818
$1,001,144
$275,000
$140,000
$$25,000
$265,000
$3,255,250
Estimated Sources and Uses
SoHrces:
Principal Amount of 2007A Bonds ..............................................
Total Sources .........................................................................
$1,500,000
$1,500,000
Uses:
2007 CREB Project Fund ............................................................
Placement Agent’s Fee ................................................................
Costs of Issuance(1) ......................................................................
Total Uses .............................................................................
$1,386,000
$30,000
$90,000
$1,500,000
Includes legal fees, fees of the Trustee, printing costs and other miscellaneous expenses.
TO:
FROM:
ATTACHMENT C
City of Palo Alto
City Manager’s Report
HONORABLE CITY COUNCIL
CITY MANAGER DEPARTMENT:
4
ADMINISTRATIVE
SERVICES
DATE:
SUBJECT:
JANUARY 16, 2007 CMR: 102:07
ADOPTION OF A RESOLUTION OF INTENTION TO
REIMBURSE PHOTOVOLTAIC SOLARPANEL PROJECT (PE-
05001) EXPENDITURES FROM CLEAN RENEWABLE ENERGY
BONDS
RECOMMENDATION
Staff recommends that Council adopt the attached resolutionof intention
photovoltaic solar panel project costs from Clean Renewable EnergyBonds.
to reimburse
BACKGROUND
With the passage of the Energy Tax Incentives Act of 2005 (the Act),Congress authorized "up to
$800 million of tax credit bonds to be issued by qualified issuers to finance certain renewable
energy projects .... " Known as Clean Renewable Energy Bonds (CREBs), these are interest-free
financing instruments (in lieu of receiving interest, lenders receive a tax credit against Federal
income taxes) that can be used for wind, closed and open-loop biomass, geothermal, solar
energy, small irrigation power, landfill gas, and other qualifying facilities. In late April 2006, the
City sent the Internal Revenue Service (IRS) an application for the CREBs.
DISCUSSION
The City of Palo Alto recently received approval from the Internal Revenue Service on its
application for $1.50 million in (CREBs). These bonds were approved specifically for use on the
Photovoltaic Solar Panel Project (PE-05001). This project will place solar panels at the
Baylands Interpretive Center, Cubberley Community Center, and Municipal Service Center. Of
the $1.50 million, $1.43 million will be spent on the project and $0.07 million is anticipated to be
spent on bond issuance expenses.
In order to reimburse the Electric Utility for funds expended on the project, Council must
approve the attached "Resolution Declaring Intention to Reimburse Expenditures from The
Proceeds of Bonds to Be Issued by The City." Staff is in the process of determining the most
cost-effective manner in which to issue the CREBs. There may be an opportunity to issue them
through a Joint Powers Authority whereby issuance costs are spread among several CREBs
issuers and thereby reduced. Information on this option should be available in the next few
months. Another alternative is for the City to issue these bonds directly. If the City directly
issues bonds, it may be necessary to perform a negotiated settlement via a bond underwriter.
CMR:102:07 Page 1 of 2
This is a departure from the City’s practice of seeking competitive bids on its bond issues and is
a consequence of the small size of the CREBs bond issue and the lack of familiarity with them in
the investment communi~.
Staff will return to Council in the near future with a recommendation on how to proceed and a
request for approval to issue bonds. The CREBs must be issued on or before December 31,
2007.
RESOURCE IMPACT
The bonds or principal would be repaid with public benefit funds that are required to be set aside
at 2.85% of revenue in the Electric Fund. This interest-free loan allows the Electric Fund to earn
interest on the principal that would otherwise be used for the project (the Electric Fund typically
relies on a "pay-as-you-go" basis for similarly sized projects). Assuming the payment
requirements of the loan, a possible 20-year amortization period, and a 5% interest rate, the Fund
would earn $0.56 million in present value dollars. This value would be offset by the costs of
issuance currently estimated at $0.07 million.
POLICY IMPLICATIONS
This project is consistent with Council policies, especially with its goal to promote sustainable
energy, and with the Utilities Department’s Strategic Plan.
ENVIRONMENTAL REVIEW
Application for Clean Renewable Energy Bond authority does not constitute a project for the
purposes of the California Environmental Quality Act (CEQA).
PREPARED BY:
APPROVED BY:
710
Director, Administrative Services
KARL KNAPP
Senior Resource Planner, Utilities
CARL
Director.Services
CITY MANAGER APPROVAL:
EMIL HARRISON
Assistant City Manager
ATTACHMENT:
Attachment 1: Resolution
CMR:102:07 Page 2 of 2
ATTACHMENT 1
NOT YET APPROVED
RESOLUTION NO.
RESOLUTION OF THE COUNCIL OF THE CITY OF PALO
ALTO DECLARING INTENTION TO REIMBURSE
PHOTOVOLTAIC SOLAR PANEL PROJECT (PE-05001)
EXPENDITURES FROM CLEAN RENEWABLE ENERGY BONDS TO
BE ISSUED BY THE CITY
WHEREAS, the City Council of the City of Palo Alto (the
"City") has applied for and received allocation under the Clean
Renewable Energy Bond ("CREB") program of the United States
Department of Energy for the project described below (the
"Project"):
WHEREAS, the City proposes to undertake the Pro3ect, to
issue revenue bonds or other obligations (the "Bonds") to finance
the Project, and use a portion of the proceeds of the Bonds to
reimburse expenditures made for the Project prior to the issuance
of the Bonds;
WHEREAS, Internal Revenue Code section 54(d) (2) (C)
provides generally that prodeeds of CREBs are not deemed to be
expended when such proceeds are used for reimbursement of
expenditures made prior to the date of issuance of such debt
unless certain procedures are followed, one of which is a
requirement that (with certain exceptions), prior to the payment
of any such expenditure, the issuer declares an intention to
rei;nburse such expenditure; and
WHEREAS, it is in the public interest and for the public
benefit that the City declares its official intent to reimburse
the expenditures referenced herein.
NOW, THEREFORE, the Council of the City of Palo Alto does
resolve as follows:
SECTION i. The City intends to cause the Bonds to be
issued for the purpose of paying the costs of acquiring and
installing approximately 250 kilowatts (kW) of solar photovoltaic
(PV) panels at various City facilities, and consists of five
different kinds of solar panels at three different locations:
(i) the Lucy Evans Baylands Interpretive Center; (2) the
Cubberley Community Center; and (3) the City’s Municipal Services
Center (together, the "Project").
SECTION 2. The City hereby declares that it reasonably
expects (i) to pay certain costs of the Project prior to the date
of issuance of the Bonds and (ii to use a portion of the
070102 jp 0130036
proceeds of the Bonds for reimbursement of expenditures for the
Project that are paid before the date of issuance of the Bonds.
SECTION 3. The maximum principal amount of the Bonds is
expected to be $1,500,000.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:APPROVED:
City Clerk
APPROVED AS TO FORM:
Mayor
City Manager
Senior Asst. City Attorney Director of Administrative
Services
2