HomeMy WebLinkAbout2001-12-17 City Council (8)TO:
FROM:
DATE:
City of Palo Alto
City Manager’s Report
HONORABLE CITY COUNCIL 16
CITY MANAGER DEPARTMENT:ADMINISTRATIVE
SERVICES
DECEMBER 17, 2001 CMR: 456:01
SUBJECT:APPROVAL OF A RESOLUTION AUTHORIZING THE ISSUANCE
AND SALE OF NOT TO EXCEED $27,500,000 OF UTILITY
REVENUE BONDS, 2002 SERIES A, TO FINANCE WATER AND
GAS CAPITAL IMPROVEMENTS; OFFICIAL DOCUMENTS
RELATED TO BONDISSUANCE;AND OFFICIAL ACTIONS
RELATED THERETO
RECOMMENDATION:
Staff recommends that the City Council approve the attached resolution (Attachment A),
to:
1)
2)
authorize staff to issue and sell Utility Revenue Bonds, 2002 Series A, not to
exceed $27,500,000, to finance City gas and water system capital
improvements
approve the Indenture of-Trust, Official Noti~Sale. Notice of Intention.
and Prelimina~ Official Statement; and..-au~l~rlze official actions related
thereto ~
BACKGROUND ~ ~"
On May 21, 2001, staff requested conceptual appr~oval from the Finance Committee to
move forward with bond financing for selected water and gas system capital
improvements for fiscal years 2001-02 through 2003-04 (CMR:251:01). The request to
finance these projects represented a departure from the City’s traditional pay-as-you-go
approach for water and gas capital work. Financing the capital costs over a thirty-year
period was recommended to alleviate pressure on ratepayers who already were being
charged higher rates for rising commodity costs. This approach was discussed in detail
with the Utilities Advisory Commission and the Commission recommended it to Council.
After reviewing the financing proposal and the capital projects it would fund, the Finance
Committee gave conceptual approval to bond financing specific capital projects and
recommended this package to Council as part of the 2001-2003 budget proposal. On
CMR:456:01 Page 1 of 5
June 11, 2001, Council approved the capital budget program and gave staff the authority
to move ahead with the bond financing.
DISCUSSION
Staff is returning to Council for authorization to issue and sell up to $27,500,000 in utility
revenue bonds, to approve the required financial documents, and to take all necessary
actions related to the sale. Proceeds from these bonds will be used over the next three
years for capital improvements such as reservoir, water pump and booster station
improvements; well land acquisition; building an underground reservoir at E1 Camino
Park; and gas distribution system improvements. The City expects to receive bond
proceeds around the end of January 2002.
To maximize the quality of the City’s bond issuance and minimize interest expense, staff
will deliver a ratings presentation to Standard and Poor’s (S&P) and Moody’s on
December 19. Staff from the Administrative Services and the Utilities Departments, as
well as the City’s bond counsel and financial advisor, will participate in the presentation.
Information such as the financial condition of the City’s utilities, the ability of the
enterprise funds to repay debt, the status of the City’s utility contracts and commitments,
and the pledges the City makes in its bond covenants will be presented to the ratings
agencies. These agencies will be especially interested in recent City Council rate actions
to restore the Gas Rate Stabilization Reserves, the overall stren~h of the combined utility
reserves, the low amount of existing utilities debt, and in the City’s long term gas and
electric contracts. This information is factored into each agency’s credit rating which
investors use in buying the bonds. A high credit.rating results in lower interest costs. On
the 1999 Utility Revenue and Refunding Bonds, the City received solid ratings from S&P
(AA-) and from Moody’s (Aa3). It is important to note that the utility markets have
changed dramatically since the last bond issue, and while the City of Palo Alto’s bond
issues are looked upon favorably by the investment community, the rating agencies will
take an intensive look at potential risks. As soon as the ratings are received, staff will
relay the results to Council.
The most critical factors affecting a credit rating are the guarantees or covenants a
borrower makes to bondholders for paying its debt. The attached covenant for the
proposed utility bonds is similar in structure to that used for the 1999 Utility Revenue and
Refunding Bonds issued for improvements at the Regional Water Quality Control Plant
and to refinance prior utility bond issues (CMR:254:99). The attached (Attachment A,
Exhibit A) Indenture of Trust (Section 5.12 and 5.13) outlines the City’s financial
covenants. In general, the first and foremost guarantee the City is making is that the
water and gas systems individually will generate sufficient charges/revenues, combined
with their available Rate Stabilization Reserves, to cover all of its costs and to maintain a
certain ratio of available resources to annual debt service. To further enhance
creditworthiness, there is a second assurance in the attached Indenture. It requires that, in
addition to having sufficient net revenue from the water and gas systems to pay principal
CMR:456:01 Page 2 of 5
and interest obligations, specific utility reserves will be maintained at a level at least five
times the maximum annual debt device on all utility bonded debt.
As a result of issuing the proposed 2002 bonds, the Utilities will incur estimated annual
debt service of $1.9 million. When combined with current debt service of $1.9 million,
the utilities will have a total of $3.8 million. At five times this level, the City would need
to maintain at least $19.0 in available reserves to meet its indenture requirements.
Currently, combined utility reserves stand at 43 times projected annual debt service,
easily exceeding the five times debt indenture requirement. While staff believes that these
reserves will not fall below the level required by the indentures, it is important that
Council and future staff be aware of the commitment this provision entails.
Council approval is required to sell up to $27,500,000 in Utility Revenue Bonds through
a competitive sale process on January 17, 2002. The City should receive proceeds from
that sale around January 30, 2002. Its financial advisor (Stone & Youngberg) will assist
the City in receiving and evaluating bids received from underwriters for the bonds and in
selecting the optimal bid. Underwriters are investment-banking firms, and the
underwriter selected will resell the bonds to investors, typically institutional investors like
mutual funds and high net worth individuals. The underwriter with a bid resulting in the
lowest interest cost to the City will be selected.
Documents Submitted for Council Approval
The Council must approve the attached Resolution before the 2002 Utility Revenue and
can be sold by a competitive sale. By approving this resolution, the City Council
authorizes various City officials to sign and execute various documents. The Resolution
also adopts the following documents:
Preliminary Official Statement containing information material to the offering and
sale of bonds.
An official Notice of Sale to the investment community seeking bids to be
received at the offices of Stone & Youngberg on January 17, 2002.
o Notice of Intention to Sell Bonds
RESOURCE IMPACT
No additional budget appropriation is needed. Projects utilizing bond proceeds have been
approved and incorporated in the 2001-02 Adopted Budget. In addition, Council
approved, in concept, projects in 2002-03 and 2003-04 that will be bond funded. Issuance
costs that include bond and disclosure counsel, financial advisor, and rating agency fees
will be paid through the sale of bonds. A detailed cost breakdown is shown as
Attachment B.
CMR:456:01 Page 3 of 5
Precise debt service payments will not be known until competitive bids are received from
the underwriting firms. As stated above, it is estimated that the total annual debt service
will be approximately $1,885,000 and the average coupon on the bonds will be 4.9
percent. At this time, the current interest rate environment is most favorable for issuing
debt.
POLICY IMPLICATIONS
This report is consistent with prior policy direction received from Council.
TIME LINE
2001
December 19, 2001 Ratings presentations to Moody’s and Standard and Poor’s
December 27, 2001 Bond sale notices published
2002
January8,2002
January l7,2002
January30,2002
Ratings and insurance commitments received
Bids received and bonds priced. Bonds awarded to winning bidder
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.
ATTACHMENTS
Attachment A:Resolution of the Council of the City of Palo Alto Authorizing the
Issuance and Sale of Not to Exceed $27,500,000 of Utility Revenue
Bonds, 2002, Series A, Approving Indenture of Trust, Official
Notice of Sale, Notice of Intention and Official Statement and
Authorizing Official Actions Related Thereto
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Indenture of Trust Between the City of Palo Alto and U.S. Bank
Trust National Association as Trustee
Official Notice of Sale
Notice of Intention Official Statement Containing Information
Material to the Offering and Sale of Bonds
Preliminary Official Statement
Attachment B:Sources and Uses of Funds
CMR:456:01 Page 4 of 5
PREPARED BY:~IE PAI "
genior Financial Analyst
JOSEPH ~ACCIO
Deputy Director, Administrative Services
DEPARTMENT HEAD APPROVAL: ~C/~L A~S "
~
i~~ative Services
EMILY HARRIS ON
Assistant City Manager
CMR:456:01 Page 5 of 5
ATTACHMENT A
RESOLUTION NO.
RESOLUTION OF THE COUNCIL OF THE ~ OF PALO ALTO
AUTHORIZING THE ISSUANCE AND SALE OF NOT TO EXCEED
$27,500,000 OF UTILITY REVENUE BONDS, 2002 SERIES A,APPROVING
INDENTURE OF TRUST, OFFICIAL NOTICE OF SALE,NOTICE OF
INTENTION AND OFFICIAL STATEMENT AND AUTHORIZING
OFFICIAL ACTIONS RELATED THERETO
The Council of the City of Palo Alto does RESOLVE as follows:
SECTION 1. 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 the provisions of Chapter 12.28 (commencing with Section 12.28.010) of the Palo Alto
Municipal Code (the "Law") which authorize the City, when the public interest and necessity
require, by resolution, to issue its 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. 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 $27,500,000 (the "Bonds") under the Law,
to (i) finance certain improvements to the City’s water system (the "Water System"), (ii) finance
certain improvements to the City’s gas system (the "Gas System"), (iii) establish a debt service
reserve fund for the Bonds, and (iv) pay certain costs of issuing the Bonds.
SECTION 4. Bond Sale Documents. Jones Hall, A Professional Law Corporation, as
disclosure counsel to the City ("Disclosure Counsel") has prepared and submitted to the City a
preliminary Official Statement relating to the Bonds, a copy of which is on file with the City
Clerk, for distribution to municipal bond broker-dealers, banking institutions and to members of
the general public who may be interested in purchasing the Bonds, and Jones Hal!, A
Professional Law Corporation, as bond counsel to the City ("Bond Counsel"), has prepared an
official notice of sale of the Bonds (the "Official Notice of Sale") a copy of which is on file with
the City Clerk, and a notice of intention to sell the Bonds (the "Notice of Intention"), a copy of
which is on file with the City Clerk, for publication as herein provided.
SECTION 5. Authorization of Sale. Thursday, January 17, 2002, at the hour of 10:00
a.m. (Pacific Daylight Time), is hereby fixed as the time, and the office of the Financial Advisor
to the City, Stone & Youngberg LLC, 50 Califorrfia Street, 35th Floor, San Francisco, California
94111 is hereby fixed as the place at which bids will be received for the purchase of the Bonds
as described in and subject to the terms and conditions of the Official Notice of Sale; provided
that the Director of Administrative Services may select a different date, time and place for the
sale of the Bonds. The Director of Administrative Services is hereby authorized to award the
sale of the Bonds to the bidder whose responsive bid for the Bonds results in the lowest true
interest cost to the City, to be determined in .accordance with the Official Notice of Sale;
provided that the term of the Bonds shall not exceed 30 years, the true interest cost of the
Bonds shall not exceed 6.5%, and the discount on the Bonds shall not exceed 1.5%. The
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principal amount of the Bonds shall not exceed $27,500,000, which principa! amount may be
decreased before the giving of notice of the sale of the Bonds as herein provided and the
documents referenced in Section 4 hereof shall be revised accordingly.
SECTION 6. Notice of Intention. The Director of Administrative Services of the City is
authorized and directed to cause to be published the Notice of Intention in the form on file with
the City Clerk once in The Bond Buyer, a financial publication generally circulated throughout the
State of California.
SECTION 7. Indenture of Trust. The Bonds shall be issued pursuant to an Indenture
of Trust dated as of January 1, 2002 (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. Official Statement. The preliminary Official Statement descn’bing 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 Disclosure Counsel, Stone & Youngberg LLC (the "Financial
Advisor"), Bond Counsel and the City Attorney. The Authorized Official is hereby separately
authorized and directed, upon consultation with the Financial Advisor, Disclosure Counsel,
Bond Counsel and the City Attorney, to approve such changes to the preliminary Official
Statement as shah be necessary to cause such preliminary Official Statement to be brought into
the form of a final Official Statement, and the Authorized Official is hereby authorized and
directed to execute and deliver copies of the final Official Statement to the purchaser of the
Bonds, at the time of delivery of the Bonds.
....... .7h_e_C_o_u~_.c_il_h_e__r_e_b_y_a_p_p_roves_,__aKt_ d hereb_b_y deems n_e_ar!y final within th_e_ meaning~gf Rule
15c2-12 of the Securities Exchange Act of 1934 (the "Rule"), the preliminary Official Statement.
The Authorized Official is hereby authorized to execute an appropriate certificate stating the
Council’s determination that the preliminary Official Statement has been deemed nearly final
within the meaning of the Rule.
SECTION 9. Distribution of Official Statement and Official Notice of Sale. The
Financial Advisor is hereby authorized and directed to cause copies of the preliminary Official
Statement to be printed and mailed to prospective bidders for the Bonds, together with copies
of the Official Notice of Sale.
SECTION 10. 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 to 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 therefor.
SECTION 11. Execution of Documents. The Mayor, Vice Mayor, City Manager, City
Clerk Director of Administrative Services, Director of Utilities, Director of Public Works, 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, a~eements,
notices, consents, warrants and other documents, which they or any of them mig_ht deem
necessary or appropriate in order to consummate the lawful issuance, sale and delivery of the
Bonds to the original purchaser thereof.
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SECTION 12. Effective Date. This resolution shah be effective upon the date of its
adoption.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:APPROVED:
City Clerk Mayor
APPROVED AS TO FORM:
Senior Assistant City Attorney
JONES HALL,
A Professional Law Corporation
William H. Madison
Bond Counsel
City Manager
Director of Public Works
Director of Administrative Services
Senior Assistant City Attorney
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EXHIBIT A
INDENTURE OF TRUST
by and between the
CITY OF PALO ALTO
and
U.S. BANK TRUST NATIONAL ASSOCIATION
as Trustee
Dated as of January 1, 2002
Relating to
City of Palo Alto
$ [Principal Amount]
Utility Revenue Bonds
2002 Series A
TABLE OF CONTENTS
SECTION 1.01.
SECTION1.02.
SECTION1.03.
SECTION 1.04.
ARTICLE I
DEFINITIONS: AUTHORIZATION AND PURPOSE OF BONDS:
EQUAL SECURITY
Definitions ..........................................................................................................3
Rules of Construction ..........................................................................................12
Authorization and Purpose of Series A Bonds ......................................................12
Equal Security ...................................................................................................13
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
SECTION
ARTICLE II
ISSUANCE OF SERIES A BONDS
2.01. Terms of Series A Bonds .....................................................................................14
2.02. Redemption of Series A Bonds ............................................................................15
2.03. Form of Series A Bonds .......................................................................................18
2.04. Execution of Series A Bonds ................................................................................18
2.05. Transfer of Series A Bonds ..................................................................................18
2.06. Exchange of Series A Bonds ................................................................................18
2.07. Temporary Bonds ...............................................................................................19
2.08. Bond Registration Books ....................................................................................19
2.09. Bonds Mutilated, Lost, Destroyed or Stolen ........................................................19
2.!0. Book Entry System .............................................................................................19
SECTION 3.01.
SECTION 3.02.
SECTION 3.03.
SECTION 3.04.
SECTION 3.05.
SECTION3.06.
SECTION 3.07.
SECTION3.08.
ARTICLE III
ISSUE OF SERIES A BONDS; PARITY BONDS
Issuance of Series A Bonds ..................................................................................22
Application of Proceeds of Sale of Series A Bonds ...............................................22
Reserve Account .................................................................................................22
2002 Gas Project Fund; 2002 Water Project Fund ....................................................22
Cost of Issuance Fund ..........................................................................................24
Issuance of Parity Bonds .....................................................................................24
No Additional Prior Lien Bonds .........................................................................25
Validity of Bonds .............................................................................i ................26
SECTION 4.01.
SECTION 4.02.
SECTION 4.03.
SECTION 4.04.
SECTION 4.05.
SECTION 4.06.
SECTION 4.07.
SECTION 4.08.
SECTION 4.09.
SECTION 4.10.
ARTICLE IV
PLEDGE OF NET REVENUES: FUNDS AND ACCOUNTS
Pledge of Net Revenues, Revenue Fund ...............................................................27
Receipt and Deposit of Revenues ........................................................................27
Establishment of Funds and Accounts and Allocation of Revenues Thereto ............27
Application of Debt Service Fund .......................................................................28
Application of Reserve Account ..........................................................................29
Application of Redemption Account ...................................................................29
Surplus ..............................................................................................................29
Investments .......................................................................................................30
Valuation~ Investments ......................................................................................30
Payment Procedure Pursuant to Bond Insurance Policy ..........................................30
ARTICLE V
COVENANTS OF THE CITY; SPECIAL TAX COVENANTS
SECTION 5.01. Punctual Payment: Compliance With Documents ................................................33
SECTION 5.02. Against Encumbrances ........................................................................................33
SECTION 5.03. Discharge of Claims ..........................................................................................33
SECTION 5.04.
SECTION 5.05.
SECTION 5.06.
SECTION 5.07.
SECTION 5.08.
SECTION 5.09.
SECTION 5.10.
SECTION 5.11.
SECTION5.12.
SECTION5.13.
SECTION5.14.
SECTION5.15.
SECTION5.16.
SECTION5.17.
SECTION5.18.
SECTION5.19.
SECTION5.20.
SECTION5.21.
SECTION5.22.
SECTION5.23.
SECTION5.24.
SECTION 6.01.
SECTION6.02.
SECTION6.03.
SECTION6.04.
SECTION6.05.
SECTION 6.06.
SECTION6.07.
SECTION6.08.
SECTION 6.09.
SECTION 6.10.
SECTION 6.11.
SECTION 6.12.
SECTION 7.01.
SECTION 7.02.
SECTION 7.03.
SECTION 7.04.
SECTION7.05.
SECTION7.06.
SECTION8.0!.
SECTION8.02.
SECTION8.03.
SECTION8.04.
SECTION8.05.
Acquisition, Construction or Financing of any Project and Improvements to the
Enterprise ..........................................................................................................33
Maintenance and Operation of Enterprise in Efficient and Economical Manner .....33
Against Sale, Eminent Domain ...........................................................................33
Insurance ...........................................................................................................34
Records and Accounts .........................................................................................35
Protection of Security and Rights of Owners ........................................................35
Against Competitive Facilities .........................................................................35
Payment of Taxes, Etc ........................................................................................35
Rates and Charges .............................................................................................35
Maintenance of Available Reserves; Transfers Therefrom ...................................37
No Priority for Additional Obligations ..............................................................37
No Arbitrage .....................................................................................................37
Information Report ............................................................................................37
Private Business Use Limitation ........................................................................37
Private Loan Limitation ....................................................................................37
Federal Guarantee Prohibition ..........................................................................37
Non-application to Taxable Bonds .....................................................................37
Further Assurances ............................................................................................37
Continuing Disclosure ........................................................................................38
Rebate Requirement ...........................................................................................38
Maintenance of Tax Exemption ...........................................................................38
ARTICLE VI
THE TRUSTEE
Appointment of Trustee ......................................................................................39
Acceptance of Trusts ...........................................................................................39
Fees, Charges and Expenses of Trustee ................................................................41
Notice to Bond Owners of Default ......................................................................41
Intervention by Trustee ......................................................................................41
Removal of Trustee ............................................................................................41
Resignation by Trustee .......................................................................................42
Appointment of Successor Trustee .......................................................................42
Merger or Consolidation .....................................................................................42
Concerning any Successor Trustee ........................................................................42
Appointment of Co-Trustee ................................................................................42
Indemnification; Limited Liability of Trustee ....................................................43
ARTICLE VII
MODIFICATION AND AMENDMENT OF THE INDENTURE
Amendment by Consent of Bond Owners ..............................................................44
Amendment Without Consent of Bondholders .....................................................44
Disqualified Bonds ............................................................................................44
Endorsement or Replacement of Bonds After Amendment .....................................44
Amendment by Mutual Consent ...........................................................................45
Consent of Bond Insurer ......................................................................................45
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS
Events of Default and Acceleration of Maturities ................................................46
Application of Funds Upon Acceleration .............................................................47
Other Remedies; Rights of Bond Owners ............................................................47
Power of Trustee to Control Proceedings ..............................................................47
Appointment of Receivers ..................................................................................48
SECTION 8.06. Non-Waiver .....................................................................................................48
SECTION 8.07. Rights and Remedies of Bond Owners .................................................................48
SECTION 8.08. Termination of Proceedings ................................................................................49
SECTION 8.09. Bond Insurer as Third-Party Beneficiary ............................................................49
SECTION 8.10. Rights of Bond Insurer ........................................................................................49
SECTION 8.11. Effect on Bond Insurance Policy ...........................................................................49
SECTION 9.0!.
SECTION 9.02.
SECTION 9.03.
SECTION 9.04.
SECTION 9.05.
SECTION 9.06.
SECTION 9.07.
SECTION 9.08.
SECTION 9.09.
SECTION9.10.
SECTION9.11.
SECTION9.12.
SECTION9.13.
ARTICLE IX
MISCELLANEOUS
Limited Liability of City ..................................................................................50
Benefits of Indenture Limited to Parties .............................................................50
Discharge of Indenture .......................................................................................50
Successor Is Deemed Included in All References to Predecessor .............................51
Content of Certificates .......................................................................................51
Execution of Documents by Bond Owners ..............................................................52
Waiver of Personal Liability .............................................................................52
Partial Invalidity ..................................: ..........................................................52
Destruction of Cancelled Bonds ..........................................................................53
Funds and Accounts ............................................................................................53
Notices .............................................................................................................53
Unclaimed Moneys ............................................................................................53
Information to be Given to Bond Insurer ...............................................................53
EXHIBIT A:
EXHIBIT B:
EXHIBIT C:
FORM OF SERIES A BOND
DEBT SERVICE ATTRIBUTABLE TO WATER SYSTEM AND DEBT SERVICE
ATTRIBUTABLE TO GAS SYSTEM
DESCRIPTION OF 2002 GAS PROJECT AND 2002 WATER PROJECT
- iii -
INDENTURE OF TRUST
THIS INDENTURE OF TRUST, made and entered into as of January 1, 2002, 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
Trust 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 an
enterprise of the City;
WHEREAS, the City has heretofore authorized, issued and sold $8,640,000 principal
amount of its City of Palo Alto Utility Revenue Bonds, 1995 Series A (the "1995 Bonds"),
pursuant to an Indenture of Trust, dated as of August 1, 1990, between the City and Security
Pacific National Bank, as Trustee (the "Master Indenture") and a Second Supplemental
Indenture of Trust, dated as of February 1, 1995 (the "Second Supplemental Indenture"), which
supplements the Master Indenture;
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 certain improvements to the Water System and Gas
System components of the Enterprise (as hereinafter defined), and to that end the City Council
has heretofore adopted its Resolution No. __, approving and authorizing the issuance of its
City of Palo Alto Utility Revenue Bonds, 2002 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 and of the interest and premium, if
any, thereon, the Council has authorized the execution and delivery of this Indenture;
WHEREAS, subject to the prior lien of the 1995 Bonds, 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 requi~ed 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;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the
payment of the principal of and the interest and premium (if any) on 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:
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 any Parity Bonds Instrument and
of the Bonds and of any certificate, opinion, request or other documents herein mentioned have
the meanings herein specified.
"Allocable Share" means, in any Fiscal Year (i) with respect to the Water System, Debt
Service Attributable to the Water System due in that Fiscal Year, divided by Debt Service due
in the same Fiscal Year, and (ii) with respect to the Gas System, Debt Service Attributable to the
Gas System due in that Fiscal Year, divided by Debt Service due in the same Fiscal Year.
"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; (ix,) 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, senior debt obligations of other government-sponsored agencies approved
by AMBAC Indemnity, obligations of the Resolution Funding Corporation (RFFCORP)
and senior debt obligations of other government sponsored agencies approved by the
Bond Insurer;
(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-l" 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;
(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;
-3-
(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) investment agreements approved in writing by the Bond Insurer, supported by
appropriate opinions of counsel, with notice to S&P;
(j) other forms of investments (including repurchase agreements) approved in
writing by the Bond Insurer with notice to S&P; and
(k) the Local Agency Investment Fund maintained by the State of California.
"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.
"Available Reserves" means funds held in the City’s:
(i)
(ii)
(iii)(iv)(v)
(vi)(vii)(viii)
(ix)
Rate Stabilization Reserve for the Water System,
Rate Stabilization Reserve for the Wastewater Collection System,
Rate Stabilization Reserve for the Wastewater Treatment System,
Rate Stabilization Reserve for the Refuse System,
Distribution Rate Stabilization Reserve for the Electric System,
Distribution Rate Stabilization Reserve for the Gas System,
Supply Rate Stabilization Reserve for the Electric System,
Supply Rate Stabilization Reserve for the Gas System, and
the Electric System’s Calaveras-Stranded Costs Reserve.
"Available Reserves" includes the above numerated funds, even though ~ven a
different name by the City Council of the City, as well as newly created funds of the City which
create reserves for the Systems listed above, and into which monies have been transferred from
the above Funds.
"Average Annual Debt Service" means the total aggregate Debt Service for the entire
period during which the Bonds are Outstanding, divided by the number of Fiscal Years or
portions thereof during which the Bonds are Outstanding.
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"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 Insurance Policy" shall mean the municipal bond insurance policy issued by the
Bond Insurer insuring the payment when due of the principal of and interest on the Series A
Bonds as provided therein.
"Bond Insurer" shall mean ,a insurance company.
"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 Bonds.
"Bonds" means, collectively, the Series A Bonds and any Parity Bonds issued and at any
time Outstanding hereunder and under a Parity Bonds Instrument.
"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 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 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.
"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 Counci! for that purpose.
"Charges" means fees, tolls, assessments, rates and rentals prescribed under the Bond
Law or any other law of the State by the Council for the water, gas, or electric energy, or the
services and facilities of a particular System furnished by the City.
"Ci___~" 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 Purchaser 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 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, municipal bond insurance or
surety bond premiums, filing and recording costs, rating agency fees, 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.
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"Debt Service" means, during any period of computation, the amount obtained for such
period by totaling the following amounts:
(a) The principal amount of all Outstanding Serial Bonds payable by their.terms
in such period;
(b) The principal amount of all Outstanding Term Bonds scheduled to be paid
or redeemed by operation of mandatory Sinking Fund Installments in such period; and
(c) The interest which would be due during such period on the aggregate
principal amount of Bonds which would be Outstanding in such period if the Bonds are
paid or redeemed as scheduled.
"Debt Service Attributable to Water System" means the portion of Debt Service listed
under said heading on Exhibit B.
"Debt Service Attributable to Gas System" means the portion of Debt Service listed
under said heading on Exhibit B.
"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 2.15.
"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 existing electrical system of the City, comprising all
facilities for the transmission and distribution of electric energy.
"Enterprise" means the whole and each and every part of (i) the Electric System, (ii) the
Gas System, (iii) the Water System, (iv) the Sewer System, and (v) the Storm Water System,
including all additions, betterments, extensions and improvements to each such system
respectively, or any part thereof, hereafter acquired or constructed or financed.
"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,
-6-
otherwise, the term "Fair Market Value" means the acquisition price in a bona fide arm’s length
transaction (as referenced above) if (i) the investment is a certificate of deposit that is acquired
in accordance with applicable regulations under the 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
(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 1 of each year and terminating on the
.next succeeding June 30.
"Gas System" means the existing gas system of the City, comprising all facilities for the
storage, transmission and distribution of gas for public or private uses.
"Gross Revenues" means, for any period of computation, all gross charges received for,
and all other gross income and revenues derived by the City from, the ownership or operation of
a System or otherwise arising from a System during such period, including but not limited to (a)
all Charges received by the City for use of such System, (b) all receipts derived from the
investment of funds held by the Director of Administrative Services or the Trustee under this
Indenture, (c) transfers from (but exclusive of any transfers to) any stabilization reserve funds,
and (d) al! moneys received by the City from other public entities whose inhabitants are served
pursuant to contracts with the City.
"Improvement" means any addition, extension, improvement, equipment, machinery or
other facilities to or for any 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 Parity Bonds Instrument 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
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(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;
(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: Municipa! 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.
"Interest Payment Date" means, with respect to the Series A Bonds, June 1 and
December 1 in each year, beginning June 1, 2002, and with respect to any Parity Bonds, any
date on which interest is due and payable thereon, and continuing so long as any Bonds or
Parity Bonds remain Outstanding.
"Interest Requirement" means, as of any particular date of calculation, the amount
equal to any unpaid interest then due and payable, plus an amount which will on the next
succeeding Interest Payment Date be equal to the interest to become due and payable on the
Bonds on such next succeeding Interest Payment Date.
"Maintenance and Operation Costs" means the reasonable and necessary costs spent
or incurred by the City for maintaining and operating a System, calculated in accordance with
sound accounting principles, including the cost of supply of water, gas and electric energy under
contracts or otherwise, the funding of reasonable reserves, and all reasonable and necessary
expenses of management and repair and other expenses to maintain and preserve such System
in good repair and working order, and including al! reasonable and necessary administrative
costs of the City attributable to such System and the Bonds, such as salaries and wages and the
necessary contribution to retirement of employees, overhead, insurance, taxes (if any), expenses,
compensation and indemnification of the Trustee, and fees of auditors, accountants, attorneys
or engineers, and including all other reasonable and necessary costs of the City or charges
required to be paid by it to comply with the terms of the Bonds or of the Master Indenture, the
Second Supplement to Master Indenture or this Indenture, but excluding depreciation,
replacement and obsolescence charges or reserves therefor and amortization of intangibles or
other bookkeeping entries of a similar nature.
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"Master Indenture" means that Indenture of Trust dated as of August 1, 1990, by and
between the City and the Trustee, as successor to Security Pacific National Bank, as trustee,
under which the City issued the 1990 Bonds.
"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.
"Mood¥’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 shal! 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 ratJ.ng agency selected by the City.
"Net Proceeds", when used with reference to the Bonds, means the face amount of the
Bonds, plus accrued interest and premium, if any, less original issue discount and less proceeds
deposited in the Reserve Account; "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 a System, for any period of computation, the
amount of the Gross Revenues received from such System during such period, less the amount of
Maintenance and Operation Costs of such System becoming payable during such period.
"1990 Bonds" means the $9,650,000 original principal amount City of Palo Alto Utility
Revenue Refunding Bonds 1990 Series A issued by the City pursuant to the Master Indenture.
"1995 Bonds" means the $8,640,000 original principal amount of the City of Palo Alto
Utility Revenue Bonds, 1995 Series A issued by the City pursuant to a Second Supplemental
Indenture of Trust, dated as of February 1, 1995.
"Original Purchaser" means the first purchaser of any Series of 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 Bonds theretofore executed, issued and delivered
by the City under this Indenture except -
(a) Bonds theretofore cancelled by the Trustee or surrendered to the Trustee for
cancellation;
and
(b) Bonds paid or deemed to have been paid within the meaning of Section 9.03;
(c) 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 or any Parity
Bonds Instrument.
"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 Bonds" means all bonds, notes or other obligations (including without limitation
long-term contracts, loans, sub-leases or other legal financing arrangements) of the City payable
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from and secured by a pledge of and lien upon any of the Net Revenues issued or incurred
pursuant to Section 3.06.
"Parity Bonds Instrument" means the resolution, trust indenture or installment sale
agreement adopted, entered into or executed and delivered by the City, and under which Parity
Bonds are issued.
"Principal Installment" means with respect to any particular Principal Installment Date,
an amount equal to the sum of (i) the aggregate principal amount of Outstanding Serial Bonds
payable on such Principal Installment Date as determined by the applicable Parity Bonds
Instrument (but not including Sinking Fund Installments) and (ii) the aggregate of Sinking Fund
Installments with respect to all Outstanding Term Bonds payable on such Principal Installment
Date as determined hereby and by the applicable Parity Bonds Instrument.
"Principal Installment Date" means the date on which Principal Installments are
required to be made pursuant to Section 2.01.
"Oualified Sure _ty Bond" means an irrevocable standby or direct-pay letter of credit or
surety bond issued by a commercial bank or insurance company and deposited with the Trustee
pursuant to Section 4.05(b), provided that such letter of credit or surety bond and the issuer
thereof are acceptable to the Bond Insurer, and provided further that all of the following
requirements are met at the time of acceptance thereof by the Trustee: (a) the long-term credit
rating of such bank or insurance company is "A" or better from each rating agency which then
maintains a rating on the Bonds; (b) such letter of credit or surety bond has a term of at least
twelve (12) months; (c) such letter of credit or surety bond has a stated amount at least equal to
the portion of the Reserve Requirement with respect to which funds are proposed to be released
pursuant to Section 4.05(b); and (d) the Trustee is authorized pursuant to the terms of such
letter of credit or surety bond to draw thereunder an amount equal to any deficiencies which
¯ may exist from time to time in the Debt Service Fund for the purpose of making payments
required pursuant to Section 4.04.
"Rating Agency" means, as of any date, each of the following rating agencies which then
maintains a rating on any of the Bonds: (a) Moody’s and (b) S&P.
"Record Date" means, with respect to the Series A Bonds, the fifteenth (15th) calendar
day of the month immediately preceding an Interest Payment Date or, with respect to any
Parity Bonds, any other date established in the applicable Parity Bonds Instrument.
"Redemption Account" means the Account by that name established and held by the
Trustee pursuant to Section 4.03.
"Redemption Price" means, with respect to any Bond, the principal amount thereof,
plus the applicable premium, if any, payable upon redemption thereof pursuant to this
Indenture and the Parity Bonds Instrument pursuant to which the same was issued.
"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.
"Reserve Account" means the Account by that name established and held by the
Trustee pursuant to Section 4.03.
"Reserve Requirement" means an amount equal to the lesser of: (i) Maximum Annual
Debt Service; (ii) ten percent (10%) of the principal amount of the Bonds; or (iii) 125% of
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Average Annual Debt Service, as may be set forth in a Parity Bonds Instrument pursuant to
Section 3.06.
"Revenue Fund" means the Fund by that name established and held by the Director of
Administrative Services pursuant to the Master Indenture and referred to in Section 4.02.
"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.
"Second Supplement to Master Indenture" means the Second Supplemental Indenture
of Trust, between the City and the Trustee, as successor to Bank of America National Trust and
Savings Association, dated as of February l, 1995.
"Serial Bonds" means all Bonds other than Term Bonds.
"Series" when used with respect to less than all of the Bonds, means and refers to all of
the Bonds delivered on original issuance in a simultaneous transaction, regardless of variations
in maturity, interest rate or other provisions, and any Bond thereafter delivered in lieu of or
substitution for any of such Bonds pursuant to Sections 2.02(i), 2.05, 2.06, 2.07, 2.09 and 7.04.
"Series A Bonds" means the City of Palo Alto Utility Revenue Bonds, 2002 Series A,
issued and at any time Outstanding hereunder.
"Sewer System" means the existing sanitary sewerage and sewage disposal system of
the City, comprising all facilities for the collection, treatment or disposal of sewage and waste.
"Sinking Fund Installment" means, with respect to any particular date, the amount of
money required hereby or by or pursuant to a Parity Bonds Instrument to be paid by the City on
such date toward the retirement of any particular Term Bonds prior to their respective stated
maturities.
"State" means the State of California.
"Storm Water System" means the existirig storm and surface water system of the City,
comprising all facilities for the collection, treatment and disposal of storm and surface water,
and identified as the Storm and Surface Water Management Enterprise and Utility in Ordinance
No. 3910, adopted by the Council on December 21, 1989.
"System" means any of the Electric System, the Sewer System, the Storm Water System,
the Gas System or the Water System.
"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.
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"Term Bonds" means, with respect to any Series A Bonds or any Parity Bonds, such
Series A Bonds or Parity Bonds which are payable prior to their stated maturity by operation of
Sinking Fund Installments.
"Trust Office" means the corporate trust office of the Trustee at One California Street,
Suite 400, San Francisco, California 94111, or such other or additional offices as may be
specified to the City by the Trustee in writing.
"Trustee" means U.S. Bank Trust 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.
"2002 Gas Project" means certain extensions and improvements to the City’s Gas
System, more particularly described in Exhibit C
"2002 Gas Proiect Fund" means the fund by that name established and held by the
Director of Administrative Services pursuant to Section 3.04 of this Indenture.
"2002 Water Proiec.g" means certain extensions and improvements to the City’s Water
System, more particularly described in Exhibit C.
"2002 Water 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.
"Water System" means the existing water system of the City, comprising all facilities
for the obtaining, conserving, treating, distributing, storing and supplying of water for domestic
use, irrigation, sanitation, industrial use, fire protection, recreation, or any other public or
private uses.
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 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 to and 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 2002 Project and to pay Costs of
Issuance of the Series A Bonds.
SECTION 1.04. Equal Security. In consideration of the acceptance of the 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 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 Bonds without preference,
priority or distinction as to security or otherwise of any of the 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.
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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 Utility Revenue Bonds, 2002 Series A", and shall be issued in
the original principal amount of Dollars
($ [Principal Amount]).
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 June 1 in each of the years
and in the amounts, and shall bear interest at the rates, as follows:
Maturity Date Principal Interest Rate
(lune 1)Amount Per Annum
2002
2003
2004
2006
2007
2008
2009
2010
2011
2012
2013
2014
20t5
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
Interest on the Series A Bonds shall be payable on each Interest Payment Date to the
person whose name appears on the Bond Registration Books as the Owner thereof as of the
Record Date immediately preceding each such Interest Payment Date, such interest to be paid
by check or draft of the Trustee mailed by first class mail to the Owner or, at the option of any
Owner of at least $1,000,000 aggregate principal amount of the Bonds with respect to which
written instructions have been filed with the Trustee prior to the Record Date, by wire transfer,
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at the address of such Owner as it appears on the Bond Registration Books. Principa! of and
premium (if any) on any Series A Bond shal! be paid upon presentation and surrender thereof
at the Trust Office of the Trustee in Los Angeles, California. Both the principal of and interest
and premium (if any) on the Series A Bonds shall be payable in lawful money of the United
States of America.
The Series A Bonds shall be dated the Closing Date and bear interest based on a 360-
day year comprised of twelve 30-day months from the Interest Payment Date next preceding
the date of authentication thereof, unless said date of authentication is an Interest Payment
Date, in which event such interest is payable from such date of authentication, and unless said
date of authentication is prior to May 15, 2002, in which event such interest is payable from the
Closing Date; provided, however, that if, as of the date of authentication of any Series A Bond,
interest thereon is in default, such Series A Bond shall bear interest from the date to which
interest has previously been paid or made available for payment thereon in full.
SECTION 2.02. Redemption of Series A Bonds.
(a) Optiona! Redemption. The Bonds maturing on or before June 1, __ are not subject
to optional redemption prior to maturity. The Bonds maturing on or after June 1, are
subject to redemption prior to their respective maturity dates, at the option of the City, as a
whole on any date, or in part in inverse order of maturities and by lot within a maturity on any
Interest Payment Date on or after June 1, __, from any source of available funds, at the
following respective Redemption Prices (expressed as percentages of the principal amount of
the Bonds to be redeemed), plus accrued interest thereon to the date of redemption:
Redemption Periods
June 1, __ through May 31, __
June 1,__ through May 31,_
June 1, __ and thereafter
Redemption Prices
%
%
%
The City shall be required to give the Trustee written nbtice of its intention to redeem
Series A Bonds under this subsection (a), and shall deposit all amounts required for such
redemption with the Trustee at le"stjforty-five (45) days prior to the date fixed for such
redemption.
(b) Mandatory Redemption.
(i) Mandatory Sinking Fund Redemption. Series A Bonds maturing on June
1, __ are subject to mandatory redemption in part from Sinking Fund Installments to be
made by the City on June 1,__ and on each June ! thereafter up to and including June 1,
__, at a redemption price equal to 100 percent of the principal amount thereof plus
accrued interest, if any, to the redemption date without premium, as follows:
June 1 Principal Amount
$
__ (Maturity)
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Series A Bonds maturing on June 1, __ are subject to mandatory redemption in
part from Sinking Fund Installments to be made by the City on June 1, __ and on each
June 1 thereafter up to and including June 1, __, at a redemption price equa! to 100
percent of the principal amount thereof plus accrued interest, if any, to the redemption
date without premium, as follows:
lune 1 Principal Amount
$
__ (Maturity)
(ii) Special Mandatory Redemption From Insurance or Condemnation Proceeds. The
Series A Bonds shall also be subject to redemption as a whole on any date, or in part on any
Interest Payment Date in inverse order of maturity and by lot within a maturity, to the extent of
the Net Proceeds of hazard insurance not used to repair or rebuild the Water System and Gas
System or the Net Proceeds of condemnation awards received with respect to the Water System
and Gas System to be used for such purpose pursuant to Sections 5.04 or 5.05, at a Redemption
Price equal to the principal amount of the Series A Bonds plus interest accrued thereon to the
date fixed for redemption, without premium.
(c) Additional Bonds. Any Parity Bonds issued pursuant to Section 3.06 of this
Indenture may be made subject to redemption prior to maturity, as a whole or in part, at such
time or times, and upon payment of the principal amount thereof and accrued interest thereon
plus such premium or premiums, if any, as may be determined by the City in the applicable
Parity Bonds Instrument.
(d) Notice of Redemption. Unless waived by any Owner of Bonds to be redeemed,
notice of any redemption of Bonds shall be given, at the expense of the City, by the Trustee by
mailing a copy of a redemption notice by first class mail at least 30 days and not more than 60
days prior to the date fixed for redemption to the Bond Insurer and to the Owner of the Bond
or Bonds to be redeemed at the address shown on the Bond Registration Books; provided, that
neither the failure to receive such notice nor any immaterial defect in any notice shall affect the
sufficiency of the proceedings for the redemption of the Bonds.
(e) Contents of Notice. All notices of redemption shall be dated and shall state:
(i) the redemption date,
(ii) the Redemption Price,
(iii) if fewer than all Outstanding Bonds are to be redeemed, the identification
(and, in the case of partial redemption, the respective principal amounts) of the Bonds
to be redeemed,
(iv) that on the redemption date the Redemption Price will become due and
payable with respect to each such Bond or portion thereof called for redemption, and
that interest with respect thereto shall cease to accrue from and after said date, and
(v) the’place or places where such Bonds are to be surrendered for payment of
the Redemption Price, which places of payment may include the Trust Office of the
Trustee.
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(f) Deposit of Money. At least forty-five (45) days prior to any redemption date, the
City shall deposit with the Trustee an amount of money sufficient to pay the Redemption Price
of all the Bonds or portions of Bonds which are to be redeemed on that date.
(g) Consequences of Notice. Notice of redemption having been given as aforesaid, the
Bonds or portions of Bonds so to be redeemed shall, on the redemption date, become due and
payable at the Redemption Price therein specified, and from and after such date (unless the
City shall default in the payment of the Redemption Price) such Bonds or portions of Bonds
shal! cease to have interest accrue thereon. Upon surrender of such Bonds for redemption in
accordance with said notice, such Bonds shall be paid by the Trustee at the Redemption Price.
Installments of interest due on or prior to the redemption date shall be payable as herein
provided for payment of interest. Upon surrender for any partial redemption of any Bond,
there shall be prepared for the Owner a new Bond or Bonds of the same maturity in the amount
of the unredeemed principal. All Bonds which have been redeemed shall be cancelled and
destroyed by the Trustee and shall not be redelivered. Neither the failure of any Bond Owner to
receive any notice so mailed nor any defect therein shall affect the sufficiency of the proceedings
for redemption of any Bonds nor the cessation of accrual of ~nterest thereon.
(h) Additional Notice. In addition to the foregoing notice, further notice shall be given
by the Trustee as set out below, but no defect in said further notice nor any failure to give all or
any portion of such further notice shall in any manner defeat the effectiveness of a call for
redemption if notice thereof is given as above prescribed:
(i) Each further notice of redemption given hereunder shall contain the
information required above for an official notice of redemption plus (A) {he CUSIP
numbers of all Bonds being redeemed; (B) the stated interest rate with respect to each
Bond being redeemed; (C) the maturity date of each Bond being redeemed; and (D) any
other descriptive information needed to identify accurately the Bonds being redeemed.
(ii) Each further notice of redemption shall be sent at least 35 days before the
redemption date by registered or certified mail or overnight delivery service to all
registered securities depositories then in the business of holding substantial amounts of
instruments of types comprising the Bonds, and, on the date notice is mailed to Bond
Owners, to one or more Information Services.
(iii) Upon the payment of the Redemption Price of the Bonds being redeemed,
each check or other transfer of funds issued for such purpose shall bear the CUSIP
number identifying, by issue and maturity, the Bonds being redeemed with the proceeds
of such check or other transfer.
(i) Partial Redemption of Bonds. In the event only a portion of any Bond is called for
redemption, then upon surrender of such Bond redeemed in part only, the City shall execute
and the Trustee shall authenticate and deliver to the Owner, at the expense of the City, a new
Bond or Bonds, of the same series and maturity, of authorized denominations in aggregate
principal amount equal to the unredeemed portion of the Bond or Bonds.
(j) Manner of Redemption. Whenever any Bonds are to be selected for redemption, the
Trustee shall determine, by lot, the numbers of the Bonds to be redeemed, and shall notify the
City thereof.
(k) Purchase of Bonds in lieu of Redemption. In lieu of redemption of Bonds as
provided in subsection (a) above, amounts in the Redemption Account of the Debt Service Fund
may also be used and withdrawn by the Trustee at any time, upon the Request of the City filed
with the Trustee no later than April 15 in any year, for the purchase of Bonds at public or
private sale as and when and at such prices (including brokerage and other charges, but
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excluding accrued interest, which is payable from the Debt Service Fund) as the City may in its
discretion determine, but not to exceed the principal amount of such Bonds plus the redemption
premium applicable ~in the next ensuing optional redemption date. The City shall, at the time
of any such purchase, pay to the Trustee for deposit in the Debt Service Fund the amount of
any deficiency in such Fund which may be caused by such purchase. All Bonds purchased
pursuant to this Section shall be cancelled.
All Bonds redeemed pursuant to this Section and all Bonds purchased by the City
pursuant to this subsection (k) shall be cancelled and destroyed pursuant to Section 9.09.
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 respective
forms 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 shal! 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 individua! 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
duty 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,pin accordance
with its terms, be transferred upon the Bond Registration Books by the pers?n in whose name it
is registered, in person or by his duly aUvhorized attorney, upon surrendGr of such Series A
Bond for clncellation, accompanied by delivery ?f a written ins4rument of transfer ik a form
appDoved by the Trustee, fuliJ executef. YWhenever any Series A Bond shall bfi surrendered for
transfer, the City shall execute add the Trusteehrhall thereupon authenticate and deliver to the
transferee a new Bond or Bonds of like tenor, maturity and aggregate principal amount. No
Series A Bonds the notice of redemption of which has been mailed pursuant to Section 2.02(d)
shall be subject to transfer pursuant to this Section.
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. No Series A Bonds the notice of redemption of which has been
mailed pursuant to Section 2.02(d) shall be subject to exchange pursuant to this Section.
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
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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 benetits 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 the Bond In~urer; 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 !ost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted
to the City and the Trustee and, if 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 if
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 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
shall 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
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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,
premium, if any, or interest represented by 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, premium, if any, and interest represented by 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, interest and premium, if any,
represented by 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, interest and premium, if any, 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.
(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
City shall cooperate with the Depository in taking appropriate action (3/) to make available one
or more separate certificates evidencing the Bonds to any Depository System Participant having
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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 Trust
Indenture to the contrary, so tong as any Bond is registered in the name of the Nominee, all
payments with respect to principal, interest and premium, if any, represented by 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.
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ARTICLE III
ISSUE OF SERIES A BONDS; PARITY BONDS
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 Dollars ($ [Principal Amount])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 $ (being an
amount equal to the principal amount of the Series A Bonds ($ [Principal Amount]), less original
issue discount ($) less underwriter’s discount ($, including $.to
be paid by , as underwriter of the Series A Bonds, to the Bond Insurer as
the premium for the Bond Insurance Policy) and less the Underwriter’s good faith deposit
already received by the Trustee and held for the credit of the City ($.)), the Trustee
shall apply the proceeds of sale thereof as follows:
(a) The Trustee sha!l deposit in the Debt Service Fund the amount of
........ ; and
(b) the Trustee shall deposit in the 2002 Gas Project Fund the amount of
and
(c) the Trustee shall deposit in the 2002 Water Project Fund the amount of
$__: and
(d) The Trustee shall deposit in the Cost of Issuance Fund the remainder of such
proceeds, in an amount equal to $ including $ for payment of the
premium for the initial Qualified Surety Bond.
SECTION 3.03. Reserve Account. On the Closing Date the City will deliver to the
Trustee a Qualified Surety Bond in an amount equal to the Reserve Requirement. An amount
equal to the Reserve Requirement in the form of either cash or a Qualified Surety Bond under
Section 4.06(b) for the account of the Reserve Account, shall be maintained in the Reserve
Account at all times; any deficiency therein shall be replenished from available Net Reoenues
pursuant to Section 4.03(3). The Reserve Requirement for an issue of Parity Bonds may be
increased by any Parity Bonds Instrument establishing any Parity Bonds pursuant to Section
3.06.
SECTION 3.04. 2002 Gas Project Fund: 2002 Water Project Fund.
(A) 2002 Gas Project Fund. There is hereby created a separate Fund to be known as the
"City of Palo Alto Utility Revenue Bonds 2002 Gas Project Fund", herein referred to as the
"2002 Gas Project Fund", to be held in trust by the Director of Administrative Services. The
Director of Administrative Services shall disburse moneys in the 2002 Gas Project Fund for the
purpose of paying or reimbursing the payment of the costs of acquiring and constructing the
2002 Gas 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 2002 Gas Project Fund
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and has not been the basis of any previous disbursement; and (3) is accompanied by an invoice,
if any.
The City may apply any or all of the moneys on deposit in the 2002 Gas Project Fund to
the financing of any alternative project in place of any component of the 2002 Gas Project upon
the filing with the Director of Administrative Services of a Certificate of the City stating that (1)
such substitution will not have any adverse effect on the security for the 2002 Series A Bonds,
and (2) the alternative project identified wil! be of benefit to the Water System. The Certificate
of the City shall be accompanied by an opinion of bond counsel substantially to the effect that
such substitution will not adversely affect the exclusion of interest on the Bonds from gross
income for federal income tax purposes.
Any amounts remaining in the 2002 Gas Project Fund after the date of completion of the
2002 Gas Project shall, upon the filing with the Director of Administrative Services of a Request
of the City, be transferred by the Director of Administrative Services to the Debt Service Fund
to be applied to the payment of Debt Service Attributable to the Water System, as the same
becomes due and payable.
All interest earnings and profits or losses on the investment of amounts in the 2002 Gas
Project Fund shall be deposited in or charged to the 2002 Gas Project Fund and applied to the
purposes thereof.
(B) 2002 Water Proiect Fund. There is hereby created a separate Fund to be known as
the "City of Palo Alto Utility Revenue Bonds 2002 Water Project Fund", herein referred to as
the "2002 Water Project Fund", to be held in trust by the Director of Administrative Services.
The Director of Administrative Services shall disburse moneys in the 2002 Water Project Fund
for the purpose of paying or reimbursing the payment of the costs of acquiring and constructing
the 2002 Water 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 2002 Water Project Fund
and has not been the basis of any previous disbursement; and (3) is accompanied by an invoice,
if any.
The City may apply any or all of the moneys on deposit in the 2002 Water Project Fund
to the financing of any alternative project in place of any component of the 2002 Water Project
upon the filing with the Director of Administrative Services of a Certificate of the City stating
that (1) such substitution will not have any adverse effect on the security for the 2002 Series A
Bonds, and (2) the alternative project identified will be of benefit to the Water System. The
Certificate of the City shall be accompanied by an opinion of bond counse! substantially to the
effect that such substitution will not adversely affect the exclusion of interest on the Bonds from
gross income for federal income tax purposes.
Any amounts remaining in the 2002 Water Project Fund after the date of completion of
the 2002 Water Project shall, upon the filing with the Director of Administrative Services of a
Request of the City, be transferred by the Director of Administrative Services to the Debt
Service Fund to be applied to the payment of Debt Service Attributable to the Water System, as
the same becomes due and payable.
All interest earnings and profits or losses on the investment of amounts in the 2002
Water Project Fund shall be deposited in or charged to the 2002 Water Project Fund and
applied to the purposes thereof.
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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, 2002 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 ~ust 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 June 1, 2002, shall be
transferred by the Trustee to the Debt Service Fund.
SECTION 3.06. Issuance of Parity Bonds. In addition to the Series A Bonds, the City
may, by Parity Bonds Instrument, issue or incur other loans, advances or indebtedness payable
from Net Revenues to be derived from the Water System or the Gas System, to provide
financing for the Water System or the Gas System, in such principal amount as shall be
determined by the City. The City may issue or incur any such Parity Bonds subject to the
following specific conditions which are hereby made conditions precedent to the issuance and
delivery of such Parity Bonds:
(a) The City shall be in compliance with all covenants set forth in this Indenture.
(b) The Net Revenues of the System for which such Parity Bonds are being
issued, 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 adoption of the Parity Bonds
Instrument pursuant to which such Parity Bonds are issued, as shown by the books of
the City, less withdrawals, if any, from such 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,
with Maximum Annual Debt Service calculated on all Bonds to be Outstanding
immediately subsequent to the issuance of such Parity Bonds which have a lien on Net
Revenues of such System.
The following may be added to Net Revenues for the purpose of issuing or
incurring Parity Bonds 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 System for which such Parity Bonds are being
issued, 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 adoption of the Parity Bonds
Instrument pursuant to which such Parity Bonds are issued, 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-Five
percent (125%) of Maximum Annual Debt Service, with Maximum Annual Debt Service
calculated on all Bonds to be Outstanding immediately subsequent to the issuance of
such Parity Bonds which have a lien on Net Revenues of such System. The items any or
all of which may be added to such Net Revenues for the purpose of issuing or incurring
Parity Bonds hereunder are the following:
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(i) An allowance for Net Revenues from any additions to or
improvements or extensions of the System to be made with the proceeds of such
Parity Bonds, 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; and
(iii) Funds then on hand in Available Reserves for the System for which
such Parity Bonds are being issued.
(d) The Parity Bonds Instrument providing for the issuance of such Parity Bonds
under this Section 3.06 shall provide that:
(i) The proceeds of such Parity Bonds shall be applied to the acquisition,
construction, improvement, financing or refinancing of additional facilities,
improvements or extensions of existing facilities within the System, or otherwise
for facilities, improvements or property which the City determines are of benefit
to the System, or for the purpose of refunding any Bonds in whole orin part,
including all costs (including costs of issuing such Parity Bonds and including
capitalized interest on such Parity Bonds during any period which the City
deems necessary or advisable) relating thereto;
(ii) Interest on such Parity Bonds shall be payable on an Interest Payment
Date;
(iii) The principalof such Parity Bonds shall be payable on June 1 in any
year in which principal is payable; and
(iv) Money or a Qualified Surety Bond as authorized by Section 4.06(b))
shall be deposited in a reserve account for such Parity Bonds from the proceeds
of the sale of such Parity Bonds or otherwise equal to the Reserve Requirement.
(e) The City sha!l have received the written consent of the Bond Insurer to
issuance of such Parity Bonds.
SECTION 3.07. No Additional Prior Lien Bonds. No additional Bonds shall be issued
pursuant to the Master Indenture.
SECTION 3.08. Validity of Bonds. The validity of the authorization and issuance of
the Bonds shall not be affected in any way by any proceedings taken by the City for the
acquisition or construction of the Project, or by any contracts made by the City in connection
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therewith, and the recital contained in the Bonds that the same are issued pursuant to the Bond
Law shall be conclusive evidence of their validity and of the regularity of their issuance.
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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: (1) the Net Revenues of the Gas System which is
necessary to pay the Debt Service Attributable to the Gas System; and (2) the Net Revenues of
the Water System which is necessary to pay the Debt Service Attributable to the Water System..
The Net Revenues of the Gas System and Water System shall not be used for any other purpose
while any of the Bonds remain Outstanding, except that out of Net Revenues of the Gas System
and Water System 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 of the Gas System and Water System for the payment of
the principal or Redemption Price of and interest on the Bonds in accordance with the terms
thereof, subject only to the lien of the 1995 Bonds.
(B) The Net Revenues of the Gas System and Water System constitute a trust fund for
the security and payment of the principal or Redemption Price of and interest on 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 or Redemption Price of and interest on 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 or Redemption Price of and interest on 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 Pledged Net Revenues
of the of the Gas System and Water System.
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 pursuant to the Master Indenture 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
benefici!l 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, and the Redemption Account and the
Reserve Account, as special Accounts therein, are hereby created.
The Debt Service Fund and the Redemption Account and the Reserve Account therein
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.
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(2) Debt Service Fund. On or before the ~ day prior to each Interest Payment
Date, beginning the Director of Administrative Services shall transfer from the
Revenue Fund to the Trustee for deposit in the Debt Service Fund (i) an amount equal to the
aggregate amount of interest to become due and payable on all Outstanding Bonds on the next
succeeding Interest Payment Date, plus (ii) beginning ...... an amount equal to the
aggregate amount of Principal Installments (including any Sinking Fund Installments) becoming
due and payable on all Outstanding Bonds on the next succeeding Principal Installment 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
Interest Requirement or Principal Installments to become due on the next Interest Payment Date
or Principal Installment Date upon all Outstanding Bonds.
(3) Reserve Account. After making the payments, allocations and transfers provided
for in subsections (2) and (3) above, if the balance in the Reserve Account is less than the
Reserve Requirement, the deficiency shall be restored by transfers from the first moneys which
become available in the Revenue Fund to the Trustee for deposit in the Reserve Account, such
transfers to be made no later than the times provided in Section 4.09(a). Provided, however,
that the Reserve Account will be replenished in the following priority: (i) principal and interest
on the Qualified Surety Bond will be paid from first available Net Revenues, and (ii) after all
such amounts are paid in full, amounts necessary to fund the Reserve Account to the Reserve
Requirement, after taking into account the amounts available under the Qualified Surety Bond,
shall be deposited from next available Net Revenues.
(4) ~. 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 (2) to (4), inclusive, any
moneys remaining in the Revenue Fund may at any time be treated as surplus and applied as
provided in Section 4.07.
SECTION 4.04. Application of Debt Service Fund.
(a) The Trustee shall withdraw from the Debt Service Fund, prior to each Interest
Payment Date, an amount equal to the Interest Requirement payable on such Interest Payment
Date, and shall cause the same to be applied to the payment of said interest when due and is
hereby authorized to apply the same to the payment of such interest by check or draft (or by
wire transfer, as the case may be), as provided in Section 2.01.
(b) The Trustee shall withdraw from the Debt Service Fund, prior to each Principal
Installment Date, an amount equal to the principal amount of the Outstanding Serial Bonds, if
any, maturing on said Principal Installment Date and any Sinking Fund Installments due and
payable on said Principal Installment Date, and shall cause the same to be applied to the
payment of the principal of said Bonds when due and is hereby authorized to apply the same
to such payment upon presentation and surrender of the Bonds as they become due and
payable, as provided in Section 2.01.
(c) All withdrawals and transfers under the provisions of subsection (a) or subsection
(b) of this Section shall be made not earlier than one (1) day prior to the Interest Payment Date
or Principal Installment Date to which they relate, and the amount so withdrawn or transferred
shall, for the purposes of this Indenture, be deemed to remain in and be part of the appropriate
Account until such Interest Payment Date or Principal Installment Date.
SECTION 4.05. Application of Reserve Account.
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(a) In General. If at any time there shall not be sufficient amounts in the Debt Service
Fund to make payment of Principa! Installments or Redemption Price of or interest on the
Bonds, the Trustee shall provide notice of such fact to the City and to the Bond Insurer (by
telephone, confirmed in writing, provided that no such notice shall be required to be given with
respect to a withdrawal of amounts in excess of the Reserve Requirement or of withdrawals in
connection with the refunding of the Bonds in whole or in part) and withdraw from the Reserve
Account and pay into the appropriate Fund or Account the amount of the deficiency. Any
amounts in the Reserve Account in excess of the Reserve Requirement (whether derived from
interest or gain on investments or otherwise) shall, on June 2 of each year, be paid by the Trustee
to the Director of Administrative Services for deposit in the Revenue Fund.
(b) Oualified Surety Bond. The City will initially satisfy the Reserve Requirement by
delivering to the Trustee a Qualified Surety Bond. The initial Qualified Surety Bond, and any
subsequent Qualified Surety Bond, shall provide that the Trustee is entitled to draw amounts
thereunder when required by the provisions of this Indenture to make transfers from the Reserve
Account to the Debt Service Fund in the event of a deficiency in any such account, provided
that, in any such event, the Trustee shall first apply to any such deficiency the amount of cash
(including cash represented by investments) then on deposit in the Reserve Account.
(c) Cash to the City. To the extent that the Reserve Requirement has been satisfied by
delivery of a Qualified Surety Bond under Section 4.05 (b), any cash or Authorized Investments
on deposit in the Reserve Account shall be paid by the Trustee to the City.
SECTION 4.06. Application of Redemption Account. On or before the date which is
at least forty-five (45) days prior to any Interest Payment Date on which Series A Bonds are
subject to redemption pursuant to Section 2.02(a) or on which any Parity Bonds are subject to
optional redemption pursuant to the provisions of the Parity Bonds Instrument authorizing such
Parity Bonds, the Director of Administrative Services shall transfer from the Revenue Fund to
the Trustee for deposit in the Redemption Account an amount at least equal to the Redemption
Price (excluding accrued interest, which is payable from the Debt Service Fund) of such Bonds
to be redeemed on such Interest Payment Date. In addition, the Director of Administrative
Services shall transfer to the Trustee for deposit in the Redemption Account all amounts
required to redeem any Series A Bonds which are subject to redemption pursuant to Section
2.02 (b) and any Parity Bonds which are subject to redemption pursuant to any similar
provision of the Parity Bonds Instrument authorizing such Parity Bonds, when and as such
amounts become available. Amounts in the Redemption Account shall be applied by the
Trustee solely for the purpose of paying the Redemption Price of Series A Bonds to be redeemed
pursuant to Sections 2.02 (a) or (b) and to pay the purchase price in the same manner and
subject to the same limitation as purchasers of Bonds under Section 2.02(k) or the Redemption
Price of any Parity Bonds to be redeemed pursuant to similar provisions of the Parity Bonds
Instrument authorizing such Parity Bonds. If after all of the Bonds have been paid or deemed to
have been paid, there are moneys remaining in the Redemption Account, such moneys shall be
transferred by the Trustee to the Director of Administrative Services for deposit in the Revenue
Fund.
SECTION 4.07. Surplus. Moneys remaining in the Revenue Fund after making the
payments, allocations and transfers provided for in subsections (2), (3), (4), and (5) of Section
4.03 shall be applied by the Director of Administrative Services as required by the city charter.
SECTION 4.08. 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, selected by the Trustee, which by their
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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 4.04(c) (with respect to the Debt Service Fund) and Section 4.05(a) (with
respect to the Reserve Account). 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.
SECTION 4.09. Valuation: Investments.
(a) Method of Valuation and 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, except in the event of a withdrawal from the Reserve Account, whereupon
securities shall be valued immediately after such withdrawal. If amounts on deposit in the
Reserve Account shall, at any time, be less than the Reserve Requirement, such deficiency shall
be made up from the first available moneys received after making the required deposits to the
Debt Service Fund (i) over a period of not more than four (4) months, in four (4) substantially
equal payments, in the event such deficiency results from a decrease in the market value of the
Authorized Investments on deposit in the Reserve Account or (ii) over a period of not more than
twelve (12) months, in twelve (12) substantially equal payments, in the event such deficiency
results from a withdrawal from such Account.
(b) Investment of Amounts Representing Accrued Interest. All amounts representing
accrued interest shall be held by the Trustee in the Debt Service Fund, pledged solely to the
payment of interest on the Bonds and invested only in Federal Securities maturing at such times
and in such amounts as are necessary to match the interest payments to which they are
pledged.
(c) Additiona! 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 and (unless valuation is undertaken at least
annually) investments in the Reserve Account shall be valued at their present value (within the
meaning of section 148 of the Tax Code).
SECTION 4.10. Payment Procedure Pursuant to Bond Insurance Policy. As long as
the Bond Insurance Policy shall be in full force and effect, the City and the Trustee agree to
comply with the following provisions:
(a) If,(_) Business Days prior to an Interest Payment Date, the Trustee
determines that there will be insufficient funds in the funds and accounts maintained under this
Indenture to pay principal and interest due on the Bonds on such Interest Payment Date or
Principal Installment Date (after having made all transfers from the Reserve Account, including
any Qualified Surety Bond), the Trustee shall so notify Bond Insurer. Such notice shall specify
the amount of the anticipated deficiency, the Bonds to which such deficiency is applicable and
whether such Bonds will be deficient as to principal or interest, or both. If the Trustee has not so
notified Bond Insurer one (1) Business Day prior to an Interest Payment Date or a Principal
Installment Date, Bond Insurer will make payments of principal or interest due with respect to
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such Bonds on or before the first (lst) Business Day next following the date on which Bond
Insurer shall have received notice of nonpayment from the Trustee.
(b) The Trustee shall, after giving notice to Bond Insurer as provided in paragraph (a)
above, make available to Bond Insurer and, at Bond Insurer’s written direction, to the United
States Trust Company of New York, as insurance trustee for Bond Insurer, or any successor
insurance trustee (the "Insurance Trustee"), a certified copy of the Registration Books
maintained by the Trustee and all records relating to the funds and accounts maintained under
this Indenture.
(c) The Trustee shall provide Bond Insurer and the Insurance Trustee with a list of
Owners entitled to receive principal or interest payments from Bond Insurer under the terms of
the Bond Insurance Policy and shall make arrangements with the Insurance Trustee (i) to mail
checks or drafts to the Owners entitled to receive full or partial interest payments from Bond
Insurer and (ii) to pay principal of the Bonds surrendered to the Insurance Trustee by the
Owners entitled to receive full or partial principal payments from Bond Insurer.
(d) The Trustee shall, at the time it provides notice to Bond Insurer pursuant to
paragraph (a) above, notify Owners entitled to receive the payment of principal or interest with
respect thereto from Bond Insurer (i) as to the fact of such entitlement, (ii) that Bond Insurer will
remit to them all or a part of the interest payments next coming due upon proof of Owner
entitlement to interest payments and delivery to the Insurance Trustee, satisfactory to Bond
Insurer, of an appropriate assignment of the Owner’s right to payment, (iii) that should they be
entitled to receive full payment of principal from Bond Insurer, they must surrender their Bonds
(along with an appropriate instrument of assignment satisfactory to Bond Insurer to permit
ownership of such Bonds to be registered in the name of Bond Insurer) for payment to the
Insurance Trustee, and not the Trustee, and (iv) that should they be entitled to receive partial
payment of principal from Bond Insurer, they must surrender their Bonds for payment thereon
first to the Trustee who shall note on such Bonds the portion of the principal paid by the
Trustee and then, along with an appropriate instrument of assignment satisfactory to Bond
Insurer, to the Insurance Trustee, which will then pay the unpaid portion of principal.
(e) In the event that the Trustee has written notice that any payment of principal or
interest with respect to a Bond which has become due for payment and which is made to an
Owner by or on behalf of the City has been deemed a preferential transfer and theretofore
recovered from such Owner pursuant to the United States Bankruptcy Code by a trustee in
bankruptcy in accordance with the final, non-appealable order of a court having competent
jurisdiction, the Trustee shall notify all Owners that in the event that any Owner’s payment is
so recovered, such Owner will be entitled to payment from Bond Insurer to the extent of such
recovery if sufficient funds are not otherwise available and the Trustee shall furnish to Bond
Insurer its records evidencing the payments of principal of and interest on the Bondswhich
have been made by the Trustee and subsequently recovered from Bond Owners and the dates
on which such payments were made.
(f) In addition to those rights granted Bond Insurer under this Indenture, Bond Insurer
shall, to the extent it makes payment of principal or interest on the Bonds, become subrogated
to the rights of the recipients of such payments in accordance with the terms of the Bond
Insurance Policy, and to evidence such subrogation (i) in the case of subrogation as to claims for
past due interest, the Trustee shall note Bond Insurer’s rights as subrogee on the Registration
Books maintained by the Trustee upon receipt from Bond Insurer of proof of the payment of
interest with respect thereto to the Owners, and (ii) in the case of subrogation as to claims for
past due principal, the Trustee shall note Bond Insurer’s rights as subrogee on the Registration
Books maintained by the Trustee upon surrender of the Bonds by the Owners thereof together
with proof of the payment of principal with respect thereto.
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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 interest and principal to become due with respect to all
of the Bonds in strict conformity with the terms of the Bonds and of this Indenture, and will
faithfully observe and perform all of the conditions, covenants and requirements of this
Indenture and all Parity Bonds Instruments.
SECTION 5.02. Against Encumbrances. The City will not mortgage or otherwise
encumber, pledge or place any charge upon the Enterprise or any part thereof, or upon any of the
Net Revenues, except as provided in the Indenture; provided, however, that nothing in this
Section 5.02 nor elsewhere in this Indenture shal! be construed to prevent the City from entering
into long-term contracts to finance supplies of water, gas, or 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 Enterprise 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 Enterprise or upon any part thereof or upon any of the Net
Revenues therefrom.
SECTION 5.04. Acquisition. Construction or Financing of any Project and
Improvements to the Enterprise. The City will acquire, construct, or finance any Project, as
defined in a Parity.Bonds Instrument, and Improvement to the Enterprise to be financed with the
proceeds of any Parity Bonds with all practicable dispatch, and such Project and Improvement
will be made in an expeditious manner and in conformity with laws so as to complete the same
as soon as possible.
SECTION 5.05. Maintenance and Operation of Water Svstem and Gas Svstem in
Efficient and Economical Manner. The City covenants and agrees to maintain and operate the
Water System and Gas System in an efficient and economical manner and to operate, maintain
and preserve the Water System and Gas System in good repair and working order.
SECTION 5.06. Against Sale. Eminent Domain.
(a) The City will not sell, lease or otherwise dispose of the Water System and Gas
System or any part thereof essential to the proper operation of the Enterprise 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 Enterprise or any part thereof
necessary to secure adequate Net Revenues for the payment of the interest on and principal or
Redemption Price, if any, on the Bonds, or which would otherwise impair the rights of the
Holders with respect to the Net Revenues or the operation of the Water System and Gas System.
Any real or personal property which has become non-operative or which is not needed for the
efficient and proper operation of the Enterprise, 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 sate will not reduce Net Revenues and if all of the Net Proceeds of such sale are deposited
in the Revenue Fund.
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(b) If all or any part of the Water System or Gas System shall be taken by eminent
domain proceedings, the Net Proceeds realized by the City therefrom shall be deposited by the
City with the Trustee in a special fund in trust and applied by the City to the cost of acquiring
or constructing or financing Improvements to the Water System or Gas System if (A) the City
first secures and files with the Trustee a Certificate of the City showing (i) the estimated loss in
annual Net Revenues, if any, suffered, or to be suffered, by the City by reason of such eminent
domain proceedings, (ii) a general description of the Improvements to the Enterprise then
proposed to be acquired or constructed by the City from such Net Proceeds, and (iii) an
estimate of the additional Net Revenues to be derived from such Improvements; and (B) the
Trustee, on the basis of such Certificate of the City, determines that such additional Net
Revenues will sufficiently offset the loss of Net Revenues, resulting from such eminent domain
proceedings so that the ability of the City to meet its obligations hereunder will not be
substantially impaired, which determination shall be final and conclusive. If the foregoing
conditions are met, the City shall then promptly proceed with the acquisition or construction or
financing of such Improvements substantially in accordance with such Certificate of the City
and payments therefor shall be made by the Trustee from such Net Proceeds and from other
moneys of the City lawfully available therefor, and any balance of such Net Proceeds not
required by the City for the purposes aforesaid shall be deposited in the Revenue Fund. If the
foregoing conditions are not met, then such Net Proceeds shall be applied by the Trustee pro
rata to the redemption or purchase of the Bonds of each Series then Outstanding in the
proportion which the principal amount of the Outstanding Bonds of each Series bears to the
aggregate principal amount of all Bonds then Outstanding. If the Trustee is unable to purchase
or redeem Bonds in amounts sufficient to exhaust the available moneys allocable to each such
Series, the remainder of such moneys for each such Series shall be held in trust by the Trustee
and applied to the payment of the Bonds of such Series as the same become due by their terms,
and, pending such application, such rematni.ng moneys may be invested by the Trustee in the
manner provided in Section 4.08 for the investment of moneys in the Reserve Account.
SECTION 5.07. Insurance. The City covenants that it shall at all times maintain such
insurance on the Water System or Gas 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 Water System or Gas 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 Water System or Gas System shall be used for repairing or
rebuilding the damaged or destroyed portions of the Water System or Gas System, (to the
extent that such repair or rebuilding is determined by the City to be useful or of continuing value
to the Water System or Gas System) and to the extent not so applied, shall be applied to the
redemption of the Outstanding Bonds issued on a pro rata basis, and for such purpose shall be
paid into the Redemption Account.
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 c!ose 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 Enterprise 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 Enterprise, separate from all other records and accounts, in
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which complete and correct entries shall be made of all transactions relating to the Water
System and Gas 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 Water System and
Gas System to be audited annually by an Independent Certified Public Accountant and will
make available for inspection by the Bond Owners at the office of the Trustee in San Francisco,
California, 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 and interest on the Bonds, the disbursements from the
Gross Revenues and other funds in reasonable detail, and a general statement of the financi!l
and physical condition of the Enterprise. The City shall furnish a copy of the statement to the
Trustee, and upon written request, to any Bond Owner.
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. From and after the sale and
delivery of any Parity Bonds by the City, such Parity Bonds shall be incontestable by the City.
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 Water System and Gas System.
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
Enterprise or any part thereof or upon any 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 Water System and Gas 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 Water System and Gas
System.
SECTION 5.12. Rates and Charges.
(A) Water System. The City shall fix, prescribe, revise and collect Charges for the Water
System during each Fiscal Year which (together with other funds transferred from stabilization
reserve funds for the Water 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:
(1) all Maintenance and Operation Costs of the Water System estimated by the
City to become due and payable in such Fiscal Year;
(2) the Debt Service attributable to the Water System;
(3) all other payments required for compliance with this Indenture and the
instruments pursuant to which any Parity Bonds relating to the Water System shal! have
been issued; and
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(4) 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 Water
System or the Net Revenues of the Water System.
In addition, the City shall fix, prescribe, revise and collect Charges for the Water System
during each Fiscal Year which, when added to the balance then on hand in Available Reserves
for the Water System, are sufficient to yield Net Revenues of the Water System at least equal to
one hundred twenty-five percent (125%) of the amounts payable under the preceding clause (2)
in such Fiscal Year for Bonds which have a lien on such Net Revenues.
(B) Gas System. The City shall fix, prescribe, revise and collect Charges for the Gas
System during e~ch Fiscal Year which (together with other funds transferred from stabilization
reserve funds for the Gas 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:
(1) all Maintenance and Operation Costs of the Gas System estimated by the
City to become due and payable in such Fiscal Year;
(2) the Debt Service Attributable to the Gas System during such Fiscal Year;
(3) all other payments required for compliance with this Indenture and the
instruments pursuant to which any Parity Bonds relating to the Gas System shall have
been issued; and
(4) 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 Gas
System or the Net Revenues of the Gas System.
In addition, the City shall fix, prescribe, revise and collect Charges for the Gas System
during each Fiscal Year which, when added to the balance then on hand in Available Reserves
for the Gas System, are sufficient to yield Net Revenues of the Gas System at least equal to one
hundred twenty-five percent (125%) of the amounts payable under the preceding clause (2) in
such Fiscal Year for Bonds which have a lien on such Net Revenues.
(C) Transfer to Rate Stabilization Reserve Funds. To the extent that the City
appropriates funds from Gross Revenues into a stabilization reserve fund for a System, a
deduction shall be made from Gross Revenues of such 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 a 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.
SECTION 5.13. Maintenance of Available Reserves: Transfers Therefrom.
(A) The City shall maintain the funds on hand in Available Reserves inan aggregate
amount at least equal to five (5.0) times maximum annual debt service on al! outstanding
bonded indebtedness secured by Net Revenues of any of the Systems.
(B) The City shall transfer from Available Reserves, to any System, as needed, amounts
sufficient to enable the City to pay all Maintenance and Operation Costs and all Debt Service,
when and as the same become due and payable.
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SECTION 5.14. No Priority 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 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 5.15. No Arbitrage. The City shall not take, nor permit nor suffer to be
taken any action with respect to the proceeds of any of the Series A Bonds which would cause
any of the Bonds to be "arbitrage bonds" within the meaning of the Tax Code.
SECTION 5.16. Information Report. The Director of Administrative Services is hereby
directed to assure the filing of an information report for the Series A Bonds in compliance with
Section 149 (e) of the Tax Code.
SECTION 5.17. Private Business Use Limitation. Not more than ten percent (10%) of
the Net Proceeds of the Series A Bonds shall be used in a manner which would cause the Series
A Bonds to become "private activity bonds" under and within the meaning of Section 141 (a) of
the Tax Code.
SECTION 5.18. Private Loan Limitation. Not more than five percent (5%) of the Net
Proceeds of the Series A Bonds shall be used, directly or indirectly, to make or finance a loan
(other than loans constituting Nonpurpose Obligations or assessments) to persons other than
state orlocal government units.
SECTION 5.19. Federal Guarantee Prohibition. The City shall not take any action or
permit or suffer any action to be taken if the result of the same would be to cause any of the
Series A Bonds to be "federally guaranteed" within the meaning of section 149(b) of the Tax
Code.
SECTION 5.20. Non-application to Taxable Bonds. None of the provisions of
Sections 5.09 to 5.13, inclusive, shal! apply to Bonds the interest on which is not subject to
exclusion from gross income under applicable federal income tax laws and regulations:
SECTION 5.21. 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 5.22. 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.
SECTION 5.23. Rebate Requirement. The City shall take any and all actions
necessary to assure compliance with section 148(f) of the Tax Code, relating to the rebate of
excess investment earnings, if any, to the federal government, to the extent that such section is
applicable to the Series A Bonds.
SECTION 5.24 Maintenance of Tax-Exemption. The City shall take all actions
necessary to assure the exclusion of interest on the Bonds from the gross income of the Owners
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of the Series A Bonds to the same extent as such interest is permitted to be excluded from gross
income under the Tax Code as in effect on the date of issuance of the Series A Bonds.
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Appointment of Trustee. U.S. Bank Trust National Association in
San Francisco, California, a national banking association organized and existing under and by
virtue of the laws of the United States of America, 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, s0 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
of all Events of Default ~vhich 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.
(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 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 4.08.
(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
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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, certificate, order, affidavit, letter, telegram or other
paper or document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons. Any action taken or omitted to be taken by the
Trustee 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 O~vners 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 O~vner 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 principal 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 fully
to inspect the Enterprise, including all books, papers and records of the City pertaining
to the Enterprise 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.
(j) 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 sho~vings, 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
withdra~val 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 ~vith 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 la~v. 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 Trustee shall be entitled
to payment and reimbursement for reasonable fees for its services rendered hereunder and all
advances, counsel fees (including expenses) and other expenses reasonably and necessarily
made or incurred by the Trustee in connection with such services. Upon 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 noticethereof by first-class mail to the Owner of each such Bond and to the Bond Insurer, 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 bv 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 Bond Insurer and/or the Owners of a
majority in aggregate principal amount of the Outstanding Bonds (with the consent of the Bond
Insurer) may at any time, and the City (with the consent of the Bond Insurer) 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 and the Bond Insurer. (where applicable), whereupon the City or such
Owners, as the case may be, shall appoint (with the consent of the Bond Insurer) 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.
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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 and the Bond Insurer. Upon receiving such notice of resignation, the City (with the consent
of the Bond Insurer) 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 and the Bond Insurer at their
respective addresses set forth on the Bond Registration Books. No resignation of the Trustee
shall take effect until a successor acceptable to the Bond Insurer 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 (with
the ~vritten consent of the Bond Insurer) promptly appoint a successor Trustee. In the event the
City shall for any reason whatsoever fai! 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, ~vithout 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 and the Bond Insurer an instrument in writing accepting such appointment hereunder and
thereupon such successor, ~vithout 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, ackno~vledged 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 right 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
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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 iun to and 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 Liability 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 o~vn funds or other~vise 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 the Bond Insurer or a majority of the Owners of
the principal amount of Bonds Outstanding relating to the time, method and place of
conducting any proceeding or remedy available to the Trustee under this Indenture.
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ARTICLE VII
MODIFICATION AND AMENDMENT OF THE INDENTURE
SECTION 7.01. Amendment bv 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
at any time (~vith the consent of the Bond Insurer) by a Parity Bonds Instrument which shall
become binding when the written consent of the O~vners 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 interest rate on any Bond or other~vise alter or impair the obligation of
the City to pay the principal, interest or redemption premiums at the time and place and at the
rate and in the currency provided therein of any Bond without the express ~vritten 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 Parity Bonds Instrument which shall become binding upon execution
and delivery, without consent of any Bond Owners (but with the consent of the Bond Insurer),
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 provide for the issuance of any Parity Bonds, and to provide the terms
and conditions under which such Parity Bonds may be issued, including but not limited
to the establishment of special funds and accounts relating to such Parity Bonds and
any other provisions relating solely to such Parity Bonds, subject to and in accordance
with the provisions of Section 3.06; or
(d) to make such additions, deletions or modifications as may be necessary or
desirable to assure exemption from federal income taxation of interest on the Bonds.
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
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Bonds so modified as, in the opinion of the City, shall be necessary to conform to such Bond
Owners’ action shal! 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 bv Mutual Consent. The provisions of this Article VII
Shall not prevent any Bond Owner (with the consent of the Bond Insurer) from accepting any
amendment as to the particular Bond held by him, provided that due notation thereof is made
on such Bond.
SECTION 7.06. Consent of Bond Insurer.
(a) Amendment of Rights of the Bond Insurer. Any.provision of this Indenture expressly
recognizing or granting rights in or to Bond Insurer may not be amended in any manner which
affects the rights of Bond Insurer hereunder without the prior written consent of Bond Insurer.
(b) Consent of the Bond Insurerin the Event of Insolvency. Any reorganization or
liquidation plan with respect to the City must be acceptable to Bond Insurer. In the event of
any reorganization or liquidation, Bond Insurer shall have the right to vote on behalf of all
Owners who hold Bond Insurer-insured bonds absent a default by the Bond Insurer under the
applicable Bond Insurance Policy insuring such Bonds.
(c) Consent of Bond Insurer in General. Initiation or approval of any action which
requires Bondholder consent shall also require consent of the Bond Insurer. -
(d) Consent of the Bond Insurer Upon Default. Anything in this Indenture to the
contrary not withstanding, upon the occurrence and continuance of an Event of Default as
defined herein, the Bond Insurer shall be entitled to control and direct the enforcement of all
rights and remedies granted to the Bondholders or the Trustee for the benefit of the Bondholders
under this Indenture, including, without limitation: (1) the right to accelerate the principal of the
Bonds as described in this Indenture, and (ii) the right to annul any declaration of acceleration,
and the Bond Insurer shall also be entitled to approve all waivers of Events of Default.
(e) Consent of the Bond Insurer in Addition to Bondholder Consent. Unless otherwise
provided in this Section, the Bond Insurer’s consent shall be required in addition to Bondholder
consent, when required, for the following purposes: (i) execution and delivery of any
supplemental Indenture, (ii) removal of the Trustee and selection of any successor Trustee, and
(iii) initiation or approval of any action not described in (i) or (ii) above which requires
Bondholder consent.
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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 other~vise;
(b) Default in the due and punctual payment of any installment of interest on
any Bond when and as such interest installment shall become 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 Bonds 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 ~vhole or any
substantial part of its property.
Upon the occurrence of an Event of Default, the Trustee may, with the consent of the
Bond Insurer and shall, at the direction of the Bond Insurer or the owners of a majority of the
principal amount of the Bonds with the consent of the Bond Insurer, by written notice to the
City and the Bond Insurer, declare the principal of the Bonds to be immediately due and
payable, whereupon that portion of the principal of the Bonds thereby coming due and there
interest thereon accrued to the date of payment 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 and interest on
the Bonds having come due prior to such declaration, with interest on such overdue principal
and interest calculated at the rate of interest per annum then borne by the Outstanding Bonds,
and the reasonable fees and expenses of the Trustee and those of its attorneys, and any and all
other defaults kno~vn to the Trustee (other than in the payment of the principal of and interest
on 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, the Bond Insurer 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
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this Indenture shall be applied by the Trustee in the following order upon presentation of the
several Bonds, and the stamping thereon of the amount of the payment if only partially paid, or
upon the surrender thereof if fully paid -
First, to the payment of the costs and expenses of the Trustee and of 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 for interest and principal, ~vith interest on such overdue amounts to the extent
permitted by law at the rate of interest then borne by the Outstanding Bonds, and in
case such moneys shall be insufficient to pay in full the whole amount so o~ving and
unpaid upon the Bonds, then to the payment of such interest, principal and interest on
overdue amounts without preference or priority among such interest, principal and
interest on overdue amounts ratably in proportion to the aggregate of such interest,
principal and interest on overdue amounts.
SECTION 8.03. Other Remedies: Rights of Bond Owners. 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,
premium, if any, and interest on 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 (I), 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
principa! 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
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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, ~vhich is
absolute and unconditional, to pay the interest on and 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 Bond Insurer, 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 Bond Insurer, the Trustee or any Owner of any of the Bonds to exercise any right or
¯ po~ver accruing upon any default shall impair any such right or po~ver or shall be construed to
be a waiver of any such default or an acquiescence therein; and every power and remedy
conferred upon the Bond Insurer, 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 Bond Insurer, the Trustee or the Bond O~vners, as the case may be.
If a suit, action or
or determined adversely
to their former positions,
brought or taken.
proceeding to enforce any right or exercise any remedy is abandoned
to the Bond Owners, the City and the Bond Owners shall be restored
rights and remedies as if such suit, action or proceeding had not been
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 la~v 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 refusa! 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
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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 and interest
and premium (if any) on 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.
SECTION 8.09. Bond Insurer as Third-Party Beneficiary. To the extent that this
Indenture confers upon or gives or grants to the Bond Insurer any right, remedy or claim under or
by reason of this Indenture, the Bond Insurer is hereby explicitly recognized as being a third-
party beneficiary hereunder and may enforce any such right remedy or claim conferred, given or
granted hereunder.
SECTION 8.10. Rights of Bond Insurer. Anything in this Indenture to the contrary
notwithstanding, upon the occurrence and continuation of an Event of Default, the Bond Insurer
shall be entitled to control and direct the enforcement of all rights and remedies granted
hereunder to the Bond Owners, or to the Trustee for the benefit of the Bond Owners, including
but not limited to, rights and remedies granted pursuant to Section 8.01 and, including but not
limited to, the right to approve all waivers of any Events of Default. The rights granted to the
Bond Insurer hereunder shall be deemed terminated and shall not be exercisable by the Bond
Insurer during any period during which Bond Insurer shatl be in default under the Bond
Insurance Policy.
SECTION 8.11. Effect on Bond Insurance Policy. Notwithstanding any other
provision of this Indenture, in determining ~vhether the rights of the Bondholders will be
adversely affected by any action taken pursuant to the terms and provisions of this Indenture,
the Trustee shall consider the effect on the Bondholders as if there were no Bond Insurance
Policy.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Limited LiabiliW 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 or interest on the Bonds,
or any premiums upon the redemption thereof, or for the performance of any covenants herein
contained (except to the extent any such covenants are expressly payable hereunder from the
Gross Revenues). 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 Bond Insurer, the City,
the Trustee and the O,,vners 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 Bond Insurer, 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 Bonds in any one or more of the following ways:
(a) by ,,veil and truly paying or causing to be paid the principal of and interest
and premium (if any) on 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, including all
principal, interest and redemption premiums; 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)
shal! 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 (including all
principal, interest and redemption premiums, if any) at or before their respective
maturity dates;
and if such Bonds are to be redeemed prior to the maturity thereof notice of such redemption
shall have been mailed pursuant to Section 2.02(d) or provision satisfactory to the Trustee shall
have been made for the marling of such notice, 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.
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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 or earlier redemption date ("Verification"), (ii) an escrow
deposit agreement, and (iii) an opinion of nationally recognized bond counsel to the effect that
the 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, the Bond Insurer
and the Trustee. In the event a forward purchase agreement will be employed in the refunding,
such agreement shall be subject to the approval of Bond Insurer and shall be accompanied by
such opinions of counsel as may be required by Bond Insurer. Bond Insurer shall be provided
with final drafts of the above-referenced documentation not less than five (5) Business Days
prior to the funding of the escro~v.
Notwithstanding anything herein to the contrary, in the event that the principal of
and/or interest on the Bonds shall be paid by the Bond Insurer pursuant to the Bond Insurance
Policy, the Bonds shall remain Outstanding for all purposes, not be defeased or otherwise
satisfied and not be considered paid by the City, and the assignment and pledge of the Tax
Revenues and all covenants, agreements and other obligations of the City to the re~stered
owners shall continue to exist and shal! run to the benefit of the Bond Insurer, and the Bond
Insurer shall be subrogated to the rights of such registered owners.
SECTION 9.04. Successor Is Deemed Included in All References tO Predecessor.
Whenever in this Indenture or any ParRy-Bonds Instrument either the City or the Bond Insurer 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 or the Bond Insurer, as applicable, that are presently vested in the City or the Bond
Insurer, as applicable, 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 ~vhether
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.
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SECTION 9.06. Execution of Documents by Bond O~vners. 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 la~vs
thereof to take ackno~vledgments 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 Liability. No officer, agent or employee of the City
shall be individually or personally liable for the payment of the interest on or 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.
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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 paid 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 f.ollows: if to the
City, to City of Palo Alto, City Hall, 250 Hamilton Avenue, Pato Alto, California 94301,
Attention: Director of Administrative Services; and if to the Trustee, at One California Street,
Suite 400, San Francisco, CA 94111, 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.
Notices to the Bond Insurer shall be sent to the following address: [TO COME]
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.
SECTION 9.13. Information to be Given to Bond Insurer.
A. While the Bond Insurance Policy is in effect, the City shall furnish to Bond Insurer (to
the attention of the Surveillance Department, unless otherwise indicated):
(a) as soon as practicable after the f’fling thereof, a copy of any financial
statement of the City and a copy of any audit and annual report of the City;
(b) a copy of any notice to be given to the registered owners of the Bonds,
including, without limitation, notice of any redemption or of defeasance of Bonds, and
any certificate rendered pursuant to this Indenture relating to the security for the Bonds;
and
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(c) such additional information it may reasonably request.
B. The Trustee shall notify the Bond Insurer (attention of the General Counsel) of any
failure of the City to provide relevant notices or certificates. Notwithstanding any other
provision of the Indenture, the Trustee or the City, as appropriate, shall immediately notify the
Bond Insurer if at any time there are insufficient moneys to make any payments of principal
and/or interest as required and immediately upon the occurrence of any Event of Default
hereunder.
C. The City will permit the Bond Insurer to discuss the affairs, finances and accounts of
the City or any information Bond Insurer may reasonably request regarding the security for the
Bonds with appropriate officers of the City. The City and the Trustee will permit the Bond
Insurer to have access to and to make copies of all books and records relating to the Bonds at
any reasonable time.
D. The Bond Insurer shall have the right to direct an accounting at the City’s expense,
and the City’s failure to comply with such direction within thirty (30) days after receipt of
written notice of the direction from Bond Insurer shall be deemed a default hereunder; provided,
however, that if compliance cannot occur within such period, then such period will be extended
so long as compliance is begun within such period and diligently pursued, but only if such
extension would not materially adversely affect the interests of any Owners.
E. Notwithstanding any other provision of this Indenture, the City shall immediately
notify the Bond Insurer (attention of the General Counsel) if at any time there are insufficient ¯
moneys to make any payments of principal and/or interest as required and immediately upon
the occurrence of any Event of Default hereunder.
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IN WITNESS WHEREOF, the CITY OF PAL0 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 Trust 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 PAL0 ALTO
IS E A L]
Attest:
By
Director of Administrative Services
By
City Clerk
U.S. BANK TRUST NATIONAL
ASSOCIATION,
as Trustee
By
Authorized Officer
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EXHIBIT B
OFFICIAL NOTICE OF SALE
NOT TO EXCEED
$27,500,000
CITY OF PALO ALTO
(SANTA CLARA COUNTY, CALIFORNIA)
UTILITY REVENUE BONDS
2002 SERIES A
NOTICE IS HEREBY GIVEN that sealed proposals will be received by the City of Palo
Alto (the "City") at the offices of Stone & Youngberg, 50 California Street, 35th Floor, San
Francisco, California 941 !1, on
THURSDAY, JANUARY 17, 2002
(provided, that the City reserves the right to postpone or reschedule the sale date upon
24 hours notice delivered via Thomson Municipal Market Monitor (wvvw.tm3.com) or
Bloomberg Financial Markets), at the hour of 10:00 a.m. (Pacific Daylight Time) for the
purchase of not-to-exceed $27,500,000 principal amount of the captioned utility revenue bonds
of the City (the "Bonds"), more particularly described belo~v. Bidders should refer to the
preliminary Official Statement for definitions of terms and credit information regarding the
Bonds.
TERMS OF THE BONDS
ISSUE. The Bonds wilt be in the principal amount of not-to-exceed $27,500,000
designated "City of Palo Alto Utility Revenue Bonds, 2002 Series A," consisting of fully-
registered bonds, without coupons, executed and delivered in book-entry only form and
registered in the name of Cede & Co., as nominee for The Depository Trust Company ("DTC"),
in the denomination of five thousand ($5,000) each or any integral multiple thereof; provided
that no Bond will have principal becoming payable on more than one payment date.
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DATE. MATURITIES AND AMOUNTS. The Bonds will be dated October 1, 2002,
with interest from this date at the rate or rates fixed upon the sale thereof and will mature
serially or be paid as Mandatory Sinking Fund Installments on June 1 in each year as set forth in
the following table:
Maturity Date Principal
(lune 1}Amount
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
Notification of changes in maturity amounts prior to the sale of the Bonds will be
communicated via Bloomberg Financial Markets or Thomson Municipal Service.
ADIUSTMENT OF PRINCIPAL AMOUNTS. The total principal amount of the Bonds
and the principal amounts payable on the Maturity Dates herein specified reflect estimates of
the City and the Financial Advisor with respect to the successful bid. After selecting such bid,
the total principal amount and the principal amounts payable on each Maturity Date are
subject to adjustment by the City in increments of $5,000 to reflect actual interest rates and any
premium or discount in the successful bid to create a more level debt service on the Bonds;
provided that such adjustment will not change the total principal amount by more than
$__ and will not increase or decrease principal on any Maturity Date, or any Mandatory
Sinking Fund Installment, by more than 10% from the. amounts shown in the tables herein. The
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successful bidder will be notified of any such adjustment ~vithin 3 hours of bid opening and
may not withdraw its bid because of any adjustment made within the foregoing limits.
PRIOR REDEMPTION.
(a) Optional Redemption. The Bonds maturing on or before June 1, __ are not subject
to optional redemption prior to maturity. The Bonds maturing on or after June 1, __ are
subject to redemption prior to their respective maturity dates, at the option of the City, as a
whole on any date, or in part in inverse order of maturities and by lot within a maturity on any
Interest Payment Date on or after June 1 .... from any source of available funds, at the
following respective Redemption Prices (expressed as percentages of the principal amount of
the Bonds to be redeemed), plus accrued interest thereon to the date of redemption:
Redemption Periods
June 1, __ through May 31, __
June 1, __ through May 31, __
June 1, __ and thereafter
Redemption Prices
%
%
(b) Special Mandatory Redemption From Insurance or Condemnation Proceeds. The
Bonds are also subject to redemption as a whole or in part on any date prior to maturity, in
inverse order of maturity and by lot within a maturity, to the extent of the Net Proceeds of
hazard insurance not used to repair or rebuild the Enterprise or the Net Proceeds of
condemnation awards received with respect to the Enterprise to be used for such purpose, at a
Redemption Price equal to the principal amount of the Bonds plus interest accrued thereon to
the date fixed for redemption, without premium.
(c) Mandatory Sinking Fund Redemption. The Bonds "which mature in the years which
are checked in the Bid Form as being Term Bonds are also subject to mandatory redemption in
part by lot, on June 1 in each of the years checked under the heading "Term Bonds" in the Bid
Form, from Mandatory Sinking Fund Installments, at a Redemption Price equa! to the principal
amount thereof to be redeemed, without premium, in the aggregate respective principal amounts
and in the respective years as set forth in the Bid Form (as adjusted according to the provisions
of "ADJUSTMENT OF PRINCIPAL AMOUNTS" above); provided, that the bid for Term
Bonds may not be less than percent (__%) of the par. amount thereof.
PAYMENT. Interest on the Bonds is payable semiannually on each June 1 and
December 1 (each, and "Interest Payment Date" or "Payment Date"), commencing June 1, 2002.
So long as Cede & Co. is the registered holder of the Bonds, principal of and premium, if any,
and interest evidenced and represented by the Bonds will be paid U.S. Bank Trust National
Association, San Francisco, California, as Trustee (the "Trustee"), at its principal corporate
trust office directly to DTC, which will in turn remit such principal, premium, if any, and
interest to its participants for subsequent disbursement to the beneficial owners of the Bonds.
PURPOSE OF ISSUE. The Bonds are to be issued by the Council of the City in the name
and on behalf of the City and are authorized pursuant to the charter of the City and the
provisions of Chapter 12.28 (commencing with Section 12.28.010), of the Palo Alto Municipal
Code, to (i) finance certain improvements to the City’s water system (the "Water System"), (ii)
finance certain improvements to the City’s gas system (the "Gas System"), (iii) establish a debt
service reserve fund for the Bonds and (iv) pay certain costs of issuing the Bonds
SECURITY. The City has transferred, placed a charge upon, assigned and set over to
the Trustee, for the benefit of the Owners, the Net Revenues of the Water and Gas Systems of
the City, as more particularly provided for’in the Indenture, which is necessary to pay the
principal or redemption price of and interest on the Bonds in any Fiscal Year, together with all
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moneys on deposit in the Debt Service Fund, and such portion of the Net Revenues has been
irrevocably pledged to the punctual payment of the principal or redemption price of and
interest on the Bonds. Such Net Revenues cannot 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 the Indenture. Said pledge
constitutes a first, direct and exclusive charge and lien on such Net Revenues for the payment of
the principal or redemption price of and interest on the Bonds and any bonds issued on a
parity therewith, all in accordance with the terms thereof.
In addition, the City has covenanted to maintain the funds on hand in Available
Reserves in an aggregate amount at least equal to five (5.0) times Maximum Annual Debt
Service. "Available Reserves" means funds held in the City’s:
(i)
(ii)
(iii)
(iv)(v)
(vi)
(vii)
(viii)
Rate Stabilization Reserve for the Water System,
Rate Stabilization Reserve for the Wastevvater Collection System,
Rate Stabilization Reserve for the Wastewater Treatment System,
Rate Stabilization Reserve for the Refuse System,
Distribution Rate Stabilization Reserve for the Electric System,
Distribution Rate Stabilization Reserve for the Gas System,
Supply Rate Stabilization Reserve for the Electric System,
Supply Rate Stabilization Reserve for the Gas System, and
the Electric System’s Calaveras-Stranded Costs Reserve.
The City has also covenanted to transfer from Available Reserves, to any System of the
Enterprise (as defined in the Indenture), as needed, amounts sufficient to enable the City to pay
all Maintenance and Operation Costs and all Debt Service (as those terms are defined in the
Indenture), when and as the same become due and payable.
The Net Revenues constitute a trust fund for the security and payment of the principal
or redemption price of and interest on 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 or
redemption price of and interest on the Bonds. The Owner of the Bonds cannot compel the
exercise of the taxing power by the City or the forfeiture of its property. The principal or
redemption price of and interest on 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 of the Water System and Gas System.
NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE CITY OF
PAL0 ALTO, THE STATE OF CALIFORNIA, OR ANY POLITICAL SUBDIVISION
THEREOF IS PLEDGED TO THE PAYMENT OF THE BONDS. THE BONDS ARE NOT
GENERAL OBLIGATIONS OF THE CITY, BUT ARE LIMITED OBLIGATIONS PAYABLE
SOLELY FROM CERTAIN FUNDS HELD PURSUANT TO THE INDENTURE. NEITHER
THE CITY OF PALO ALTO NOR THE STATE OF CALIFORNIA SHALL BE OBLIGATED
TO PAY THE PRINCIPAL OF THE BONDS, OR THE INTEREST THEREON AND NEITHER
THE FAITH AND CREDIT NOR THE TAXING POWER OF THE CITY OF PALO ALTO, THE
STATE OF CALIFORNIA OR ANY OF ITS POLITICAL SUBDIVISIONS THEREOF IS
PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR THE INTEREST ON THE
BONDS.
TAX-EXEMPT STATUS. In the opinion of Jones Hail, A Professional Law Corporation,
San Francisco, California, Bond Counse!, subject, however to certain qualifications, under
existing law, the interest on the Bonds is excluded from gross income for federal income tax
purposes and is not an item of tax preference for purposes of the federal alternative minimum
tax imposed on individuals and corporations, although for the purpose of computing the
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alternative minimum tax imposed on certain corporations, such interest is taken into account in
determining certain income and earnings. In the further opinion of Bond Counsel, such interest
is exempt from California personal income taxes.
In the event that, prior to the delivery of the Bonds (a) the interest on other obligations
of the same type and character shall be declared to be subject to taxation (either at the time of
such declaration or at any future date) under any federa! income tax la~vs, either by the terms of
such laws or by ruling of a federal income tax authority or official which is followed by the
Internal Revenue Service, or by decision of any federal court, or (b) any federal income tax law
is enacted which will have a substantial adverse effect upon the owners of the Bonds as such,
the successful bidder may, at its option, prior to the tender of the Bonds, be relieved of its
obligation to purchase the Bonds, and in such case the deposit accompanying its bid ~vill be
returned.
LEGAL OPINION. The legal opinion of jones Hall, A Professional Law Corporation,
San Francisco, California, Bond Counsel, approving the validity of the Bonds and regarding
"TAX-EXEMPT STATUS" above ~vill be furnished to the successful bidder ~vithout cost.
MUNICIPAL BOND INSURANCE. The City has received commitments from
to issue a policy of municipal bond debt service insurance on the Bonds.
Any bidder may elect to purchase such insurance from one of these to qualified providers for al!
or part of the Bonds; provided that the cost of such insurance will be paid by such bidder and
the insurance premium ~vill be treated as a discount in determining the best price for the Bonds
(subject to a __% limit on under~vriting discount) as described in "BASIS FOR AWARD" herein.
The City ~vill accept bids which are based upon the issuance of a municipal bond insurance
policy; ho~vever, bids shall not be conditioned upon the issuance of any such policy. Payment
of any insurance premium and satisfaction of any conditions upon the issuance of a municipal
bond insurance policy shall be the sole responsibility of the bidder. In particular, the City will
not amend nor supplement the Indenture in any way nor will it agree in advance of the sale of
the Bonds to enter into any additional agreements with respect to the provision of any such
policy.
FAILURE OF THE MUNICIPAL BOND DEBT SERVICE INSURANCE PROVIDER TO
ISSUE ITS POLICY SHALL NOT CONSTITUTE CAUSE FOR A FAILURE OR REFUSAL BY
THE SUCCESSFUL BIDDER TO ACCEPT DELIVERY OR PAY THE PURCHASE PRICE BID
FOR THE BONDS. The successful bidder must provide the City with the municipal bond
insurance commitment, including the amount of the policy premium, as well as information with
respect to the municipal bond insurance policy and the insurance provider for the inclusion in
the final Official Statement within two (2) business days following the award of the bid by the
City. The City will require a certificate from the insurance provider on or prior to the date of
delivery of the Bonds relating to any information relating to such insurance provider included in
the final Official Statement, together with an opinion of counsel to the insurance provider
regarding the enforceability of the municipal bond insurance policy in form reasonably
satisfactory to the City.
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TERMS OF SALE
FORM OF BID: MAXIMUM DISCOUNT. Bids must be for all of the Bonds, and must
be for not less than 98.5% of the par value thereof, plus accrued interest. Each bid, together
with the bidder’s certified or cashier’s check, must be enclosed in the sealed envelope addressed
to "City of Palo Alto" at the address mentioned above no later than 10:00 a.m. on said January
17, 2002, and endorsed "Proposal for City of Palo Alto Utility Revenue.Bonds, 2002 Series A."
Each bid must be in accordance with the terms and conditions set forth herein, and must be
submitted on, or in substantial accordance with, the Official Bid Form attached hereto.
NUMBER OF BIDS. Each bidder maysubmit only one bid.
INTEREST RATE. The maximum interest rate bid may not exceed twelve percent (12%)
per annum, payable semi-annually on each June 1 and December 1, commencing December 1,
2002 (each, an "Interest Payment Date"). Bidders must specify the rate of interest ~vhich the
Bonds bid upon shall bear, provided that: (i) each bid must be on the Official Bid Form; (ii)
each bid must state in a multiple of one-eighth (1/8) or one-twentieth (1/20) of one percent
(1%) of the rate or rates of interest per annum which the Bonds of the several maturities are to
bear and a zero rate of interest cannot be specified; (iii) only one interest rate may be stated for
Bonds of the same maturity; (iv) each Bond bid upon shall bear interest from its date to its
stated maturity at the interest rate specified in the bid; (v) the interest rate for Bonds of any
maturity must be equal to or lower than the interest rate on Bonds of the next succeeding
maturity; and (vi) the spread between the lowest and the highest interest rate shall not exceed
three percent (3%).
ESTIMATES OF INTEREST COSTS. Bidders are requested (but not required) to supply
an estimate of the true interest cost (TIC) on the basis of their respective bids (determined in
accordance with the paragraph "BASIS OF AWARD" below), which estimation shall be
considered as informative only and not binding on either the bidder or the City.
BASIS OF AWARD. Bids must be for the purchase of al! of the Bonds. The Bonds will
be awarded to the highest responsible bidder therefor, considering the interest rate or rates
specified and the premium or discount offered, if any. If any bidder elects to purchase a policy
of municipal bond debt service insurance on the Bonds (as described in "MUNICIPAL BOND
INSURANCE" herein), the cost of such insurance will be treated as a discount (subject to the
1.5% limit) in determining the best price for the Bonds and will be borne by the bidder and
disclosed to the City. The highest responsible bidder will be the bidder submitting the best price
for the Bonds, which best price will result in the lowest effective interest rate or true interest
cost.
The lowest effective interest rate wilt be computed in accordance with the true interest
cost computed by doubling the semiannual interest rate (compounded semiannually) necessary
to discount debt service payments from their respective payment dates to the expected closing
date of the Bonds and to the price bid (including any premium or discount) and accrued interest
from the dated date of the Bonds to January 31, 2002, the anticipated date of delivery of the
Bonds.
For purposes of calculating the true interest cost, the principal amount of the Bonds
designated as mandatory sinking fund installments as part of the Term Bonds will be treated as
a serial maturity in each year. In the event two or more bids offer the same lowest true interest
cost, the City reserves the right to exercise its own discretion and judgment in making the
award.
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The successful bidder must pay accrued interest, if any, computed on a 360-day year
(30-day month) basis, from the date of the Bonds to the date of delivery. Changes made in the
total principal amount or amortization schedule will not affect the determination of the winning
bidder or give the winning bidder any right to reject the Bonds. No bid for less than 98.5% of
the par value of the Bonds and accrued interest (which interest shall be computed on a basis of
a 360-day year composed of twelve 30-day months) ,,viii be entertained.
BID DEPOSIT: A good faith deposit ("Deposit") in the form of a certified or cashier’s
check or a financial surety bond (a "Financial Surety Bond") in the amount of $
payable to the order the "City of Palo Alto, is required for each bid to be considered. If a check
is used, it must accompany each bid. If a Financial Surety Bond is used, it must be from an
insurance company licensed to issue such a bond in the State of California, and such bond must
be submitted to the City or the City’s financial advisor prior to the opening of the bids. The
Financia! Surety Bond must identify each bidder whose Deposit is guaranteed by such Financial
Surety Bond.
If the Bonds are awarded to a bidder utilizing a Financial Surety Bond, then that
purchaser ("Purchaser") is required to submit its Deposit to the City in the form of a cashier’s
check (or wire transfer such amount as instructed by the City) not later than 3:30 p.m. Pacific
Standard Time, on the next business day following the award. If such Deposit is not received
by that time, the Financia! Surety Bond may be drawn by the City to satisfy the Deposit
requirement. In the event the Purchaser fails to honor its accepted bid, the Deposit will be
retained by the City.
If the Bonds are awarded to a bidder utilizing a certified or cashier’s check, the check
accompanying any accepted proposal will be held by the City following the award to the
successful bidder. If, after the award of the Bonds the successful bidder fails to complete its
purchase on the terms stated in its proposal, the check will be cashed by the City and the
proceeds thereof will be retained by the City as liquidated damages.
If the successful bidder completes its purchase of the Bonds on the terms stated in its
proposal, its Deposit will be applied to the purchase of the Bonds on the date of delivery of the
Bonds. The check accompanying each unaccepted proposal will be returned by the City by
personal delivery or by mail promptly after the January 17, 2002 to the address specified by the
bidder in the Official Bid Form. No interest ~vill be paid upon the deposit made by any bidder.
RIGHT OF REIECTION. The Council reserves the right, in its discretion, to reject any
and all bids and to waive any irregularity or informality in any bid.
RIGHT OF CANCELLATION OF SALE BY CITY. The City reserves the right, in its sole
discretion, at any time to cancel the public sale of the Bonds. In such event, the City shall cause
notice of cancellation of this invitation for bids and the public sale of the Bonds to be
communicated through Munifacts News Service as promptly as practicable. However, no
failure to publish such notice or any defect or omission therein shall affect the cancellation of
the public sale of the Bonds.
PROMPT AWARD. The Council will take action awarding the Bonds or rejecting all
bids not later than thirteen (13) hours after the expiration of the time herein prescribed for the
receipt of proposals unless such time of award is waived by the successful bidder.
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DELIVERY AND PAYMENT. The Bonds will be delivered to DTC in New York, New
York for deposit on or about January 31, 2002. The successful bidder ~vilt pay the Trustee for
the Bonds on the date of delivery in Federal Rese-rve Bank funds or equivalent immediately
available funds to the City. Payment on the delivery date ~vill.be made in an amount equa! to
the price bid for the Bonds plus accrued interest, if any, less the amount of the good faith
deposit as described in the paragraph captioned "BID DEPOSIT."
RIGHT OF CANCELLATION: The successful bidder shall have the right, at its option,
to cancel its purchase of the Bonds if the City shall fail to cause the execution and delivery of
the Bonds and tender the same for delivery ~vithin sixty (60) days from the January 17, 2002
thereof, and in such event, the successful bidder shall be entitled to the return of the deposit
accompanying its bid.
CERTIFICATION OF REOFFERING PRICE. Simultaneously with or before delivery of
the Bonds, the successful bidder will furnish to the District a written statement in form and
substance acceptable to Bond Counsel (a) stating the initial reoffering prices on each maturity of
the Bonds, (b) certifying that a bona fide offering of the Bonds has been made to the public
(excluding bond houses, brokers and other intermediaries), (c) stating the prices at which at
least ten percent (10%) of each maturity of the Bonds were sold to the public (excluding bond
houses, brokers and other intermediaries), and (d) stating the price at which each Bond was
sold, or will be sold, to institutional or other investors with concessions or at a discount from
the prices at which Bonds were, or will be, sold to the general public. Such written statement
wilt state that it is made on the best knowledge, information and belief of the successful bidder
after appropriate investigation.
CALIFORNIA DEBT ADVISORY COMMISSION. The City has duty notified the
California Debt Advisory Commission of the proposed sale of the Bonds. Payment of all fees
to the California Debt Advisory Commission in connection ~vith the execution, sale and delivery
of the Bonds shall be the sole responsibility of the successful bidder, and not of the City.
NO LITIGATION. There is no litigation pending concerning the validity of the Bonds,
the existence of the City or the entitlement of the officers thereof to their respective offices, and
the successful bidder will be furnished a no-litigation certificate certifying to the foregoing as of
and at the time of delivery of the Bonds.
CUSIP NUMBERS. It is anticipated that CUSIP numbers will be printed on the Bonds,
but neither the failure to print such numbers on any Bonds nor any error with respect thereto
shall constitute cause for a failure or refusal by the purchaser thereof to accept delivery of and
pay for the Bonds in accordance with the terms hereof. All expenses in relation to the printing
of CUSIP numbers on the Bond shall be paid for by the City; provided, however, that ~he
CUSIP Service Bureau charge for the assignment of said numbers shall be the responsibility of
and shall be paid for by the purchaser.
OFFICIAL STATEMENT. A copy of the preliminary Official Statement and the Official
Notice of Sale will be furnished upon request to the financial advisor of the City, Stone &
Youngberg, 50 California Street, Suite 3500, San Francisco, CA 94111, telephone (415) 445-
2327. Such preliminary Official Statement is in a form "deemed final" by the City for purposes
of SEC Rule 15c2-12 (b) (1) but is subject to revision, amendment and completion. The City will
provide the successful bidder up to 200 printed copies of the final Official Statement without
charge, with any additional copies to be furnished at the expense of the successful bidder.
DISCLOSURE CERTIFICATE. The City will deliver to the purchaser of the Bonds a
certificate of an official of the City, dated the date of Bond delivery, stating that as of the date
thereof, to the best of the knowledge and belief of said official, the Official Statement does not
-8-
contain an untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements made therein, in the light of the circumstances under which they
were made, not misleading, and further certifying that the signatory knows of no material
adverse change in the condition of the City which would make it unreasonable for the purchaser
of the Bonds to rely upon the Official Statement in connection with the resale of the Bonds.
INFORMATION AVAILABLE: Requests for information concerning the City should be
addressed to:
FINANCIAL ADVISOR:CITY:
Stone & Youngberg
50 California Street,
35th Floor
San Francisco, CA 94111
Attn: Sohail Bengali
(415) 445-2327
City-of Palo Alto
City Hall
250 Hamilton Avenue
Palo Alto, CA 94301
Attn: Carl Yeats,
Director of Administrative Services
.(650) 329-2450
GIVEN pursuant to resolution of the Council of the City of Palo Alto adopted December
17, 2001.
Dated: December 17, 2001
By /s/
City Clerk
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OFFICIAL BID FORM
PROPOSAL FOR THE PURCHASE OF
NOT TO EXCEED
$27,500,000
CITY OF PALO ALTO
(SANTA CLARA COUNTY, CALIFORNIA)
UTILITY REVENUE BONDS
2002 SERIES A
City of Palo Alto
c/o Stone & Youngberg
50 California Street, 35th Floor
San Francisco, CA 94111
FAX: 415/445-2395
415/445-2346
415/445-2317
Name of Firm Submitting Bid:
Ladies and Gentlemen:
We offer to purchase the not-to-exceed $27,500,000 City of Palo Alto Utility Revenue Bonds,
2002 Series A in the principal amounts*, in such denominations, dated October 1, 2002, maturing on June 1
in the years and bearing interest as follows:
Maturity
Date
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
Principal
Amount
$
Term
Bond Interest
Rate
Maturity
Date
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
2031
Principal
Amount
$
Term
Bond Interest
Rate
and to pay therefor the principal amount thereof, plus a premium of $ (or minus a discount
of $ ), plus interest accrued on such Bonds from January 1, 2002, to the date of delivery
thereof, which is estimated to be January 31, 2002.
This proposal is made subject to all the terms and conditions of the Official Notice of Sale of
such Bonds dated December 17, 2001, all of which terms and conditions are made a part hereof as fully
as though set forth in full in this proposal.
Subject to adjustment as set forth in the Official Notice of Sale.
A check in this column indicates the particular maturity is to be treated as part ofa Term Bond.
-1-
This proposal is subject to acceptance, in ~vhole or in part, within thirteen (13) hours after the
expiration of the time for the receipt of proposals, as specified in said Official Notice of Sale; we agree
that it may not be withdrawn prior to the expiration of said time.
There is enclosed here~vith a [__] certified or cashier’s check or [__] surety bond for $__
payable to the order of the City of Palo Alto.
We will [__] ~vill not [__] obtain insurance.
If so, we will obtain insurance for Bonds maturing in
from (circle one):
or
Our computation made as provided in the Official Notice of Sale of the true interest cost to the
City for the Bonds is __%, assuming delivery of the Bonds on January 31, 2002. The cost of bond
insurance, if any, will be treated as a discount (subject to the __% limit on underwriter’s discount) in
determining the best price for the Bonds and will be borne by the bidder and disclosed to the City.
If we are the successful bidder, we will (1) within one hour after being notified of the award of
the Bonds, advise the City of the initial public offering prices of the Bonds and, (2) prior to delivery of
the Bonds furnish a certificate, acceptable to Bond Counsel, as to the "issue price" of the Bonds within
the meaning of Section 1273 of the Internal Revenue Code of 1986, as amended.
If this is the purchasing bid, we hereby request that .... printed copies of the Official
Statement pertaining to the Bonds be furnished to us in accordance with the terms of said Official
Notice of Sale.
We represent that we have full and complete authority to submit this bid on behalf of our
bidding syndicate and that the undersigned will serve as the lead manager for the group if the Bonds
are awarded pursuant to this bid.
Follo~ving is a list of the members of our account on whose behalf this bid is made.
Respectfully submitted,
Name of Firm:
By
Address:
Date of Submission:
If this is not the purchasing bid, the good faith deposit check should be returned to (name,
address and telephone number):
-2-
EXHIBIT C
NOTICE OF INTENTION TO SELL BONDS
NOT TO EXCEED
$27,500,000
CITY OF PALO ALTO
(SANTA CLARA COUNTY, CALIFORNIA)
UTILITY REVENUE BONDS
(WATER AND GAS UTILITY PROJECTS)
2002 SERIES A
NOTICE IS HEREBY GIVEN,
pursuant to California Government Code Section
53692, that the City of Palo Alto intends to sell,
at public sale, not to exceed $27,500,000 Utility
Revenue and Refunding Bonds, 2002 Sedes A.
Bids will be received on
Thursday, January 17, 2002
(provided, that the City reserves the
r~ght to postpone or reschedule the sale date
upon 24 hours notice delivered via Thomson
Municipal Market Monitor (www.tm3.cem) or
Bloomberg Financial Markets), at 10:00 a.m.
(Pacific Daylight Tirne) at the office of the
financial advisor to the City, Stone & Youngberg,
50 Califomia Street, 35th Floor, San Francisco,
California 94111, and the sale will be awarded
by the Director of Administrative Services of the
City of Palo Alto within thirteen (13) hours after
the expiration of time prescribed for the receipt of
bids. The official notice of sale and preliminary
official statement pertaining to the Bonds may be
obtained from the City’s financial advisor, Stone
& Youngberg, 50 California Street, 35th Floor,
San Francisco, California 94111, telephone
(415) 445-2327.
Dated: December 17, 2001
26005-01 EXHIBIT D
PRELIMINARY OFFICIAL STATEMENT DATED
10/15/01
!1/28/01
AGENDA DRAFT 12/11/01
,2002
NEW ISSUE: FULL BOOK ENTRY Rating: Moody’s: __
Standard & Poor’s:
(__-Insured)
In the opinion of Jones Hall, A Professional Law Corporation, San Francisco, CaIifornia, Bond Counsel, subject,
however to certain qualifications described herein, under existing law, the interest on the 2002 Bonds is excluded from gross
income for federal income tax purposes and such interest is not an item of tax preference for purposes of the federa! alternative
minimum tax imposed on individuals and corporations, although for the purpose of computing the alternative minimum tax
imposed on certain corporations, such interest is taken into account in determining certain income and earnings. In the further
opinion of Bond Counsel. such interest is exempt from California personal income taxes. See "TAX MATTERS."
$
CITY OF PALO ALTO
Utility Revenue Bonds
2002 Series A
Dated: Date of Delivery Due: June 1, as shown below
The City of Palo Alto, a chartered city and municipal corporation (the "City"), is issuing the bonds
captioned above (the "2002 Bonds") pursuant to an Indenture of Trust, dated as of__ 1, 2002 (the "Indenture"), by
and between the City and U.S. Bank Trust National Association, as trustee (the "Trustee"), the Charter of the City
and Chapter 12.28 of the Polo Alto Municipa! Code.
The 2002 Bonds are being issued to (i) finance certain improvements to the City’s water utility system (the
"Water System"), and to the City’s natural gas utility system (the "Gas System:’), (ii) establish a debt service reserve
fund for the 2002 Bonds and (iii) pay certain costs of issuing the 2002 Bonds. See "FINANCING PLAN."
The 2002 Bonds are special obligations of the City and are secured by amounts held from time to time in the
Debt Service Fund, and, subject to certain restrictions set forth in the Indenture, a pledge of and lien on certain Net
Revenues generated by the Water System and the Gas System. The City has also agreed to advance moneys from
certain rate stabilization reserve funds (the "Available Reserves"), if necessary, to pay debt service on the 2002 Bonds.
A prior issue of the City, captioned "Utility Revenue and Refunding Bonds, 1999 Series A" (the "1999 Bonds"),
constitutes an additional claim on the Available Reserves. See "SECURITY FOR THE 2002 BONDS."
The 2002 Bonds will be issued in fully registered form only, and when executed and delivered, will be
registered in the name of Cede & Co., as nominee of The Depository Trust Company, New York, New York ("DTC").
DTC will act as securities depository of the 2002 Bonds. Beneficial ownership interest in the 2002 Bonds may be
purchased in book-entry form only. Payments of principal and interest (and premium, if any) will be paid by the
Trustee to DTC for subsequent disbursements to DTC Participants who will remit such payments to the beneficial
owners of the 2002 Bonds. See "THE 2002 BONDS - Book-Entry-Only System."
The 2002 Bonds ~vi!l be issued as fully registered bonds in denomination of $5,000 or any integral multiple
of $5,000. Interest is payable on june 1, 2002, and each December 1 and June 1 thereafter.
The portion of the debt service on the 2002 Bonds attributable to financing new improvements to the Water
System (approximately 45%) is payable from Net Revenues generated by the Water System and from moneys
advanced from the Available Reserves. The portion of the debt service on the 2002 Bonds attributable to financing
new improvements to the Gas System (approximately 55%) is payable only from Net Revenues generated by the Gas
System and from moneys advanced from the Available Reserves. See "SECURITY FOR THE 2002 BONDS -
Limitations on Net Revenue Pledge."
The City’s Utility Revenue Bonds, 1995 Series A (the "1995 Bonds") are currently outstanding in the
principal amount of $7,515,000 (as of June 1, 2001), and are secured by a lien on Net Revenues of the City’s entire
"Enterprise," which consists of the Water System, the Gas System, the City’s storm and surface water drainage
system (the "Storm Drain System"), the City’s sanitary sewer system (the "Sewer System"), and the City’s electric
utility (the "Electric System"). The lien of the 1995 Bonds on the Net Revenues of the Water System and the Gas
System is senior to the lien on those Net Revenues securing the 2002 Bonds. However, unlike the 2002 Bonds, the
1995 Bonds are also payable from Net Revenues of the Storm Drain System and the Sewer System. Additional bonds
¯ Preliminary; subject to change.
and other indebtedness payable from Net Revenues of the Water System or the Net Revenues of the Gas System may
be issued on a parity with the respective portion of the 2002 Bonds payable from those Net Revenues (and
subordinate to the 1995 Bonds) subject to the conditions contained in the Indenture. See "SECUR!TY FOR THE 2002
BONDS - Limitations on Net Revenue Pledge."
The scheduled payment of principal of and interest on the 2002 Bonds when due will be guaranteed under an
insurance policy to be issued concurrently with the delivery of the 2002 Bonds by
[INSERT BOND INSURER LOGO]
NEITHER THE GENERAL FUND, THE FULL FAITH AND CREDIT, NOR THE TAXING POWER OF
THE CITY, THE STATE OF CALIFORNIA OR ANY OF ITS POLITICAL SUBDIVISIONS IS PLEDGED FOR
THE PAYMENT OF THE 2002 BONDS.
As described herein, the 2002 Bonds are subject to optional redemption, mandatory sinking fund redemption and
mandatory redemption from insurance or condemnation proceeds prior to maturity. See °THE 2002 BONDS - Redemption."
MATURITY SCHEDULE"
Maturity Principal Interest Price or Maturity Principal Interest Price or
~Amount Rate Yield (lune 1)Amount Rate Yield
% Term 2002 Bonds Due June 1, __
(Plus Accrued Interest)
.; Priced to yield %
The 2002 Bonds will be sold and awarded by competitive bid held on __day, __, 2002, as set forth in
t-he Official Notice of Sale. The 2002 Bonds are offered ~vhen, as and if issued, subject to the approval of their legality
by Jones Hall, a Professional Law Corporation, San Francisco, California, Bond Counsel. Jones Hall is also acting as
disclosure counsel to the City. Certain legal matters will be passed upon for the City by the City Attorney. It is
expected that the 2002 Bonds ~vill be available for delivery in New York, New York, on or about 2002.
Dated:2002
No dealer, broker, salesperson or any other person has been authorized to give any information or make
any representation with respect to the 2002 Bonds, other than as contained in this Official Statement,
and, if given or made, any such information or representation must not be relied upon as having been
authorized by the City.
This Official Statement does not constitute an offer of any securities other than those described on the
cover page or an offer to sell or a solicitation of an offer to buy, nor may there be any sale of the 2002
Bonds by any person in any jurisdiction in which it is unlawful to make such offer, solicitation or sale.
This Official Statement is not to be construed as a contract with the purchasers of the 2002 Bonds.
The information set forth in this Official Statement has been furnished by the City and other sources
which are believed to be reliable, but it is not guaranteed as to accuracy or completeness. The
information and expressions of opinion in this Official Statement are subject to change without notice
and neither the delivery of this Official Statement nor any sale of the 2002 Bonds will, under any
circumstances, create any implication that there has been no change in the affairs of the City since the
date of this Official Statement.
Summaries and references to statutes and documents in this Official Statement do not purport to be
comprehensive or definitive and are qualified in their entireties by reference to each such statute or
document.
This Official Statement is submitted in connection with the sale of the 2002 Bonds and may not be
reproduced or be used, as a whole or in part, for any other purpose.
In connection with the offering of the 2002 Bonds, the Underwriter may overallot or effect transactions
which stabilize or maintain the market price of the 2002 Bonds at a level above that which might
otherwise prevail in the open market. Such stabilizing, if commenced, may be discontinued at any
time. The Underwriter may offer and sell the 2002 Bonds to certain dealers and dealer banks and banks
acting as agent and others at prices lower than the public offering prices stated on the cover page of this
Official Statement, and those public offering prices may be changed from time to time by the
Under~vriter.
The 2002 Bonds have not been registered under the Securities Act of 1933, as amended, in reliance upon
an exemption contained in that act. The 2002 Bonds have not been registered or qualified under the
securities laws of any state.
Certain statements included or incorporated by reference in this Official Statement constitute
"forward-looking statements" within the meaning of the United States Private Securities Litigation
Reform Act of 1995, Section 21E of the United States Securities Exchange Act of 1934, as amended, and
Section 27A of the United States Securities Act of 1933, as amended. Such statements are generally
identifiable by the terminology used such as "plan," "expect," "estimate," "project," "budget" or other
similar words. Such forward-looking statements include, but are not limited to, certain statements
contained in the information under the captions " THE WATER SYSTEM" and "THE GAS SYSTEM."
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 forwardqooking statements. The City does not plan to
issue any updates or revisions to the forward-looking statements set forth in this Official Statement.
CITY OF PALO ALTO
CITY COUNCIL MEMBERS
Bern Beecham, Council Member
Jim Burch, Council Member
Hillary Freeman, Council Member
Yoriko Kishimoto, Council Member
Judy Kleinberg, Council Member
Nancy Lytle, Council Member
Jack Morton, Council Member
Dena Mossar, Council Member
Victor Ojakian, Council Member
CITY STAFF
Frank Benest, City Manager
Emily Harrison, Assistant City Manager
Carl L. Yeats, Director of Administrative Ser~dces
Joseph Saccio, Deputy Director of Administrative Services
Julie Pai, Senior Financial Analyst, Administrative Services
Ariel Pierre Calonne, City Attorney
Donna G. Rogers, City Clerk
Utilities Department
John Ulrich, Director of Utilities
Randy Baldschun, Assistant Director of Utilities, Administrative Services
Scott Bradshaw, Assistant Director of Utilities, Engineering & Operations
Girish Balachandran, Acting Assistant Director of Utilities, Resource Management
Roger Cwiak, Engineering Manager, Engineering & Operations
SPECIAL SERVICES
Bond Counsel and Disclosure Counsel
Jones Hall
A Professional Law Corporation
San Francisco, California
Financial Advisor
Stone & Youngberg LLC
San Francisco, California
Trustee
U.S. Bank Trust National Association
San Francisco, California
LOCATION MAP
TABLE OF CONTENTS
INTRODUCTION 1
CONTINUING DISCLOSURE 4
THE 2002 BONDS 5
Bond Terms 5
Transfer and Exchange 5
2002 Bonds Mutilated, Destroyed, Stolen or Lost
Redemption 6
Book-Entry-Only System 8
FINANCING PLAN 9
Purposes of the Bonds 9
Estimated Sources and Uses of Funds 9
Annual Debt Se~-vice I0
SECURITY FOR THE 2002 BONDS 11
Pledge of Net Revenues 11
Limitations on Net Revenue Pledge i2
Rate Covenant 12
Available Reserves 13
Parity and Subordinate Bonds 14
Reserve Account 16
MUNICIPAL BOND INSURANCE 17
Municipal Bond Insurance Policy 17
Payment Pursuant to Municipal Bond Insurance
Policy 17
THE CITY AND CITY UTILITIES 18
The City 18
City Utilities 18
Management Of The Utilities Department 19
Enterprise Staffing and Technology 20
Enterprise Management Policy 21
Rates and Billing 21
Reserve Policies 22
Annual Financial Statements and Significant
Accounting Policies 23
THE WATER SYSTEM 24
History 24
Service Area 24
Water Storage and Distribution System 24
Sources of Water Supply 24
Historical Production and Deliveries 26
Environmental Issues Relating to the Water
System 26
Capital Improvement Program Summary 27
Water Rates, Fees and Charges 27
Water Demand and Customer Base 29
Management Discussion of Operations 31
Balance Sheet 33
Income Statement 34
Projections 35
THE GAS SYSTEM 36
History 36
Service Area 36
Gas Distribution System 36
Sources of Gas Supply 36
Historical Production and Deliveries 39
Environmental Issues Relating to the Gas
System 39
Capital Improvement Program Summary 39
Gas Rates, Fees and Charges 40
Gas Demand and Customer Base 41
Management Discussion of Operations 43
Balance Sheet 45
Income Statements 46
Projections 47
AVAILABLE RESERVES 48
The City’s Rate Stabilization Reserves
For Its Enterprise Funds 48
Rate Stabilization Reserve
for the Water System 49
Rate Stabilization Reserve for the
Wastewater Collection and
Wastewater Treatment Systems 50
Rate Stabilization Reserve for
the Refuse System 50
Rate Stabilization Reserves for
the Electric System 51
Rate Stabilization Reserves for -
the Gas System 52
Calaveras-Stranded Costs Reserve 53
DEBT SERVICE COVERAGE 55
RISK FACTORS RELATING TO THE 2002
BONDS 56
Limited Obligations 56
System Expenses 56
Limited Recourse on Default 56
Limitations on Remedies 56
Balance of the Available Reserves 57
Initiatives 57
Bankruptcy 57
Tax Exemption of the 2002 Bonds 58
Additional Obligations 58
Seismic Considerations 58
Right to Vote on Taxes Initiative 58
Investment of City Funds 60
LEGAL MATTERS 61
Approval of Legal Proceedings 6I
Absence of Litigation 61
Tax Matters 61
RATINGS 62
UNDERWRITING 62
MISCELLANEOUS 63
APPENDIX A -
APPENDIX B -
APPENDIX C -
APPENDIX D -
APPENDIX E -
APPENDIX F -
APPENDIX G -
Summary of Certain Provisions of the Indenture of Trust
General and Economic Information About the City of Palo Alto
Audited Financial Statements of the City for the Fiscal Year Ended June 30, 2001
Proposed Form of Bond Counsel Opinion
Form of Continuing Disclosure Certificate
DTC and the Book-Entry Only System
Specimen Municipal Bond Insurance Policy
iii
$
City of Palo Alto
Utility Revenue Bonds
2002 Series A
INTRODUCTION
The purpose of this Official Statement, which includes the cover page and appendices
hereto, is to set forth certain information in connection with the sale by the City of Palo Alto
(the "City") of the bonds captioned above (the "2002 Bonds").
Certain capitalized terms used in this Official Statement and not otherwise defined have
the meanings set forth under "SECURITY FOR THE 2002 BONDS - Definitions" and
"APPENDIX A - Summary of Certain Provisions of the Indenture of Trust." All references to
and summaries of provisions of the Indenture are qualified in their entirety by reference to the
full Indenture, copies of which are available for inspection at the offices of the City.
Authority for Issuance. The 2002 Bonds are being issued pursuant to (a) 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 (the "Bond Law"), (b) the terms and
conditions of an Indenture of Trust, dated as of 1, 2002 (the "Indenture"), by and
between the City and U.S. Bank Trust National Association, as trustee (the "Trustee"), and
(c) a resolution of the City Council adopted, on December 17, 2001, authorizing the issuance of
the 2002 Bonds in a principal amount not to exceed $27,500,000.
Payments of Principal and Interest. Principal of the 2002 Bonds is payable on the dates
set forth on the cover of this Official Statement. Interest on the 2002 Bonds is payable on June 1
and December 1 each year, beginning on June 1, 2002. See "THE 2002 BONDS - Bond Terms."
Purposes. The 2002 Bonds are being issued for the of the following purposes:
(i) To finance certain improvements (collectively, the "Project") to the City’s
water utility system (the "Water System") and to the City’s natural gas utility system
(the "Gas System").
(ii) To establish a debt service reserve fund for the 2002 Bonds.
(iii) To pay certain costs of issuing the 2002 Bonds.
See "FINANCING PLAN."
Pledge of Net Revenues. The 2002 Bonds are special obligations of the City and are
secured by amounts held from time to time in the Debt Service Fund established under the
Indenture and, subject to certain restrictions set forth in the Indenture, a pledge of and lien on
the respective "Net Revenues" generated by the Water System and the Gas System. See
"SECURITY FOR THE 2002 BONDS - Pledge of Net Revenues" and "- Limitations on Net
Revenue Pledge."
-1-
Covenant to Maintain and Advance From Available Reserves. The City has established
utility rate stabilization reserve funds (collectively, the "Available Reserves") for its utility
systems, as listed below (collectively, the "Systems"). As additional security for the 2002
Bonds, the City will, if necessary, advance funds to pay debt service on the 2002 Bonds from
the Available Reserves, ~vhich the City will maintain in an aggregate amount at least equal to
five times maximum annual debt service on all outstanding bonded indebtedness secured by
Net Revenues of any of the Systems:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)(ix)
Rate Stabiiization Reserve for the Water System,
Rate Stabilization Reserve for the City’s waste~vater collection system (the
"Wastewater Collection System"),
Rate Stabilization Reserve for the City’s waste~vater treatment system (the
"Wastewater Treatment System"),
Rate Stabilization Reserve for the City’s refuse utility (the "Refuse System"),
Distribution Rate Stabilization Reserve for the City’s electric utility (the "Electric
System"),
Distribution Rate Stabilization Reserve for the Gas System,
Supply Rate Stabilization Reserve for the Electric System,
Supply Rate Stabilization Reserve for the Gas System, and
the Electric System’s Calaveras-Stranded Costs Reserve (the "Calaveras
Reserve").
See"SECURITY FOR THE 2002 BONDS - Available Reserves" and "AVAILABLE
RESERVES."
Certain provisions of the California Constitution may require the City to repay any
advance from an Available Reserve that is not directly related to the System which the advance
benefits. For example, if the City requires an advance from the Rate Stabilization Reserve for
the Sewer System to pay the portion of debt service on the 2002 Bonds attributable to the
Water System, the City may be required to repay the Sewer System reserve.See "RISK
FACTORS RELATING TO THE 2002 BONDS - Right to Vote on Taxes Initiative."
Other Claims on Available Reserves - the 1999 Bonds. The City has also covenanted
to advance funds, if necessary, from the Available Reserves to pay debt service on the City’s
Utility Revenue and Refunding Bonds, 1999 Series A (the "1999 Bonds"), which are currently
outstanding in the principal amount of $17,050,000 (as of June 30, 2001). The 1999 Bonds are
primarily secured by a lien on Net Revenues of the Wastewater Collection System, the
Wastewater Treatment System and the City’s storm and surface water system (the "Storm
Drain System"). The claim of the 1999 Bonds to the Available Reserves is on a parity with that
of the 2002 Bonds. See "SECURITY FOR THE 2002 BONDS - Other Claims on Available
Reserves."
Limitations on Net Revenue Pledge. The portion of the debt service on the 2002 Bonds
attributable to financing new improvements to the Water System (approximately 45%) is
payable from Net Revenues generated by the Water System and from moneys advanced from
the Available Reserves. The portion of the debt service on the 2002 Bonds attributable to
financing new improvements to the Gas System (approximately 55%) is payable only from Net
Revenues generated by the Gas System and from moneys advanced from the Available
Reserves. See "SECURITY FOR THE 2002 BONDS - Limitations on Net Revenue Pledge."
Neither the general fund, the full faith and credit, nor the taxing power of the City,
the State of California (the "State") or any other political subdivision thereof is pledged to
the payment of the 2002 Bonds. The 2002 Bonds are not secured by a legal or equitable
-2-
pledge of or charge, lien or encumbrance upon any property of the City or any of its income
or receipts except the Net Revenues.
Senior Obligations - the 1995 Bonds. The City’s Utility Revenue Bonds, 1995 Series A
(the "1995 Bonds") are currently outstanding in the principal amount of $7,515,000 (as of June
30, 2001), and are secured by a lien on Net Revenues of the City’s entire enterprise system (the
"Enterprise"), which collectively consists of the Sewer System, the Storm Drain System, the Gas
System, the Electric System and the Water System. The lien of the 1995 Bonds on the Net
Revenues of the Water System and the Gas System is senior to the lien on those Net Revenues
securing the 2002 Bonds. See "SECURITY FOR THE 2002 BONDS - Limitations on Net
Revenue Pledge."
Parity Bonds. Additional bonds and other indebtedness payable from Net Revenues of
the Water System and the Gas System may be issued on a parity with the 2002 Bonds (and
subordinate to the 1995 Bonds) subject to the conditions of the Indenture. See "SECURITY
FOR THE 2002 BONDS - Parity and Subordinate Bonds."
Rate Covenant. The City covenants in the Indenture that it ~vill fix, prescribe, revise and
collect Charges for each of the Water System and the Gas System in each Fiscal Year which are:
(i) sufficient (along with moneys transferred from the related Rate Stabilization
Reserve) to pay 100% of debt service on all outstanding 2002 Bonds and all Parity
Bonds payable from Net Revenues of the Water System or the Gas System, as
applicable, and
(ii) equal, when added to the balance then on hand in the Available Reserve for
the Water System or Gas System, as applicable, to 125% of principal of and interest
payable in that Fiscal Year on al! outstanding Bonds payable from Net Revenues of the
Water System or the Gas System, as applicable.
See "SECURITY FOR THE 2002 BONDS - Rate Covenant."
Reserve Account. To further secure the payment of the principal of and interest on the
2002 Bonds, the Indenture establishes the Reserve Account to be held by the Trustee. The
Indenture defines the Reserve Requirement to be equal to the lesser of (i) Maximum Annual Debt
Service on all Bonds then outstanding, (ii) 10% of the principal amount of the 2002 Bonds or
(iii) 125% of Average Annual Debt Service of the 2002 Bonds. The Reserve Account may be
satisfied by a Qualified Surety Bond. See "APPENDIX A - Summary of Certain Provisions of
the Indenture of Trust" and "SECURITY FOR THE 2002 BONDS - Reserve Account."
Municipal Bond Insurance. Concurrently with issuance of the 2002 Bonds,
(the "Insurer") will issue its Municipal Bond Insurance Policy (the "Policy")
for the 2002 Bonds. The Policy unconditionally guarantees the payment of that portion of the
principal of and interest on the 2002 Bonds which has become due for payment, but ~vhich is
unpaid. See "MUNICIPAL BOND INSURANCE" and "APPENDIX G - Specimen Municipal
Bond Insurance Policy."
-3-
CONTINUING DISCLOSURE
The City has covenanted for the benefit of the holders and beneficial owners of the 2002
Bonds to provide certain financial information and operating data relating to the City (the
"Annual Report") by no later than each March 1 following the end of the City’s fiscal year
(which fiscal year currently ends on June 30), commencing March 1, 2002 with the Annual
Report for the 2000-01 Fiscal Year, and to provide notices of the occurrence of certain
enumerated events, if material. The City wil! file, or cause to be filed, the Annual Report with
each Nationally Recognized Municipal Securities Information Repository, and with the
appropriate State information repository, if any, with a copy to the Underwriter. The City ~vill
file, or cause to be filed, the notices of material events with the Municipal Securities Rulemaking
Board (and with the appropriate State information repository, if any), with a copy to the
Underwriter. The specific nature of the information to be contained in the Annual Report or the
notices of material events is set forth in "APPENDIX E - Form of Continuing Disclosure
Certificate." These covenants have been made in order to assist the Underwriter in complying
~vith S.E.C. Rule 15c2-12(b)(5).
The City has never failed to comply, in all material respects, ~vith an undertaking under
the Rule.
-4-
THE 2002 BONDS
Bond Terms
General. The 2002 Bonds will be dated their date of delivery and are to be issued in the
aggregate principal amount, bear interest at the rate per annum and mature on the dates set
forth on the cover page of this Official Statement. Interest on the 2002 Bonds is payable on June
1 and December 1 each year, beginning June 1, 2002.
Registered Form. The 2002 Bonds are deliverable in fully registered form in the
denomination of $5,000 each or any integral multiple of $5,000, and when issued will be
registered in the name of Cede & Co. as nominee of The Depository Trust Company, New York,
New York ("DTC"). Beneficial owners of the 2002 Bonds ~vill not receive physical certificates
representing the 2002 Bonds purchased, but will receive a credit balance on the books of the
nominees of such beneficial owners. So long as Cede & Co. is the registered holder of the 2002
Bonds, principal of and premium, if any, and interest evidenced and represented by the 2002
Bonds will be paid the Trustee directly to DTC, ~vhich will in turn remit such principal,
premium, if any, and interest to its participants for subsequent disbursement to the beneficial
owners of the 2002 Bonds. See "THE 2002 BONDS - Book-Entry-Only System." Principal of
and premium, if any, on the 2002 Bonds will be payable at maturity or prepayment upon
surrender thereof at the principal corporate trust office of the Trustee.
Manner of Payment. Interest on the 2002 Bonds is payable on each Interest Payment
Date to the person whose name appears on the Bond Registration Books as of the Record Date
immediately preceding the applicable Interest Payment Date, such interest to be paid by check
or draft of the Trustee mailed by first class mail to the Owner or, at the option of any Owner of
at least $1,000,000 aggregate principal amount of the 2002 Bonds with respect to which written
instructions have been filed with the Trustee prior to the Record Date, by wire transfer, at the
address of the owner as it appears on the Bond Registration Books. Principal of and premium
(if any) on any 2002 Bond will be paid upon presentation and surrender thereof at the
corporate trust office of the Trustee in San Francisco, California. Both the principal of and
interest and premium (if any) on the 2002 Bonds will be payable in lawful money of the United
States of America.
So long as Cede & Co., is the registered holder of the 2002 Bonds, references to the
holders or owners or registered holders or owners of the 2002 Bonds means Cede & Co. and not
the beneficial owners of the 2002 Bonds.
Transfer and Exchange
Any 2002 Bond may, in accordance with its terms, be transferred upon the Bond
Registration Books by the person in ~vhose name it is registered, in person or by his duly
authorized attorney, upon surrender of the 2002 Bond for cancellation, accompanied by
delivery of a ~vritten instrument of transfer in a form approved by the Trustee, duly executed.
Whenever any 2002 Bond is so surrendered for transfer, the City will execute and the Trustee
will authenticate and deliver to the transferee a new 2002 Bond or 2002 Bonds of like tenor,
maturity and aggregate principal amount. If a notice of redemption of any 2002 Bonds has been
mailed pursuant to the redemption provisions of the Indenture, those 2002 Bonds ~vill not be
subject to transfer.
The 2002 Bonds may be exchanged at the Trust Office of the Trustee, for 2002 Bonds of
the same tenor and maturity and of other authorized denominations.
-5-
2002 Bonds Mutilated, Destroyed, Stolen or Lost
If any 2002 Bond becomes mutilated, the City, at the expense of the O~vner of that 2002
Bond, will execute, and the Trustee ~vill authenticate and deliver, a ne~v 2002 Bond of like
maturity and principal amount in exchange and substitution for the 2002 Bonds so mutilated,
but only upon surrender to the Trustee of the 2002 Bond so mutilated. The Trustee will cancel
every mutilated 2002 Bond so surrendered, and will deliver those canceled 2002 Bonds to, or
upon the order of, the City.
If any 2002 Bond is lost, destroyed or stolen, evidence of such loss, destruction or theft
may be submitted to the City and the Trustee. If such evidence is satisfactory to them, and
indemnity satisfactory to them is given, the City, at the expense of the Owner, will execute, and
the Trustee will authenticate and deliver, a new 2002 Bond of like maturity and principal
amount in lieu of and in substitution for the 2002 Bond so lost, destroyed or stolen. (If any such
2002 Bond matures or is called for redemption, instead of issuing a substitute 2002 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 2002 Bond issued and
the reimbursement of any expenses incurred by the City or the Trustee. Any 2002 Bond issued
in lieu of any 2002 Bond alleged to be lost, destroyed or stolen will constitute an original
contractual obligation on the part of the City whether or not the 2002 Bond alleged to be lost,
destroyed or stolen is at any time enforceable by anyone, and will be equally and
proportionately entitled to the benefits of the Indenture with all other 2002 Bonds secured by
the Indenture.
Redemption
Optional Redemption. The 2002 Bonds maturing on or before June 1, 20__, are not
subject to optional redemption prior to maturity. The 2002 Bonds maturing on or after June 1,
20__, are subject to redemption prior to their respective maturity dates, at the option of the
City, as a whole, or in part in inverse order of maturities and by lot ~vithin a maturity, from any
source of available funds, on any Interest Payment Date on or after June 1, 20__, at the
follo~ving Redemption Prices (expressed as percentages of the principal amount of the 2002
Bonds to be redeemed), plus accrued interest thereon to the date of redemption:
Redemption Dates Redemption Prices
June 1, 20__ through May 31, 20__
June 1, 20__ through May 31, 20__
June 1, 20__ and thereafter
102%
101
100
Term Bonds Sinking Fund Redemption. The 2002 Bonds maturing on June 1, 20__ (the
"20__ Term Bonds") are subject to mandatory redemption in part from sinking fund payments
to be made by the City on June 1, 20__ and on each June 1 thereafter up to and including June 1,
20__, at a redemption price equal to 100% of the principal amount thereof plus accrued
interest, if any, to the redemption date without premium, as follows:
lune 1 Principal Amount
20__$
20__
20__ (maturity)
-6-
The 2002 Bonds maturing on June 1, 20__ (the "20__ Term Bonds") are subject to
mandatory redemption in part from sinking fund payments to be made by the City on June 1,
20__ and on each June ! thereafter up to and including June 1, 20__, at a redemption price equal
to 100% of the principal amount thereof plus accrued interest, if any, to the redemption date
without premium, as follows:
~une 1 Principal Amount
20__$_____
20__
20__ (maturity)
Special Mandatory Redemption from Insurance or Condemnation Proceeds. The 2002
Bonds are subject to redemption as a whole on any date, or in part on any Interest Payment
Date in inverse order of maturity and by lot within a maturity, to the extent of the Net Proceeds
of hazard insurance not used to repair or rebuild the Water System or the Gas System or the
Net Proceeds of condemnation awards received ~vith respect to the Enterprise to be used for
such purpose, at a Redemption Price equal to the principal amount of the 2002 Bonds plus
interest accrued thereon to the date fLxed for redemption, without premium.
Notice of Redemption. Unless waived by any Owner of 2002 Bonds to be redeemed,
notice of any redemption of Bonds will be given, at the expense of the City, by the Trustee by
mailing a copy of a redemption notice by first class mail at least 30 days and not more than 60
days prior to the date fixed for redemption to the Owner of the 2002 Bond or 2002 Bonds to be
redeemed at the address shown on the Bond Registration Books; provided, that neither the
failure to receive such notice nor any immaterial defect in any notice will affect the sufficiency of
the proceedings for the redemption of the 2002 Bonds.
All notices of redemption must be dated and state the following:
(i)the redemption date,
(ii)the Redemption Price,
(iii) if fewer than al! Outstanding 2002 Bonds are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal amounts)
of the 2002 Bonds to be redeemed,
(iv) that on the redemption date the Redemption Price wil! become due and
payable with respect to each such 2002 Bond or portion thereof called for redemption,
and that interest with respect thereto will cease to accrue from and after the redemption
date, and
(v) the place or places where such 2002 Bonds are to be surrendered for
payment of the Redemption Price, which places of payment may include the corporate
trust office of the Trustee.
At least 45 days prior to any redemption date, the City must deposit with the Trustee
an amount of money sufficient to pay the Redemption Price of all the 2002 Bonds or portions of
2002 Bonds which are to be redeemed on that date.
So long as the 2002 Bonds are held only in the book-entry system of DTC, notice of
redemption will be sent to Cede & Co., as nominee for DTC, and will not be sent to the
beneficial owners of the 2002 Bonds.
-7-
Purchase in Lieu of Optional Redemption. In lieu of optional redemption, amounts in
the Redemption Account of the Debt Service Fund may be used for the purchase of 2002 Bonds
at public or private sale as and when and at such prices (including brokerage and other charges,
but. excluding accrued interest, which is payable from the Debt Service Fund) as the City may
determine, but not to exceed the principal amount of such 2002 Bonds plus the redemption
premium applicable on the next ensuing optional redemption date.
Book-Entry-Only System
While the 2002 Bonds are subject to the book-entry system, the principal, interest and
any redemption premium with respect to a 2002 Bond will be paid by the Trustee to The
Depository Trust Company, New York, New York ("DTC"), which in turn is obligated to remit
such payment to its DTC Participants for subsequent disbursement to Beneficial Owners of the
2002 Bonds, as described in "APPENDIX F-- DTC and the Book-Entry Only System."
-8-
FINANCING PLAN
Purposes of the Bonds
The 2002 Bonds are being issued for the following purposes:
(i) to finance the Project, which will consist of improvements to
System and the Gas System,
(ii) to establish a debt service reserve fund for the 2002 Bonds, and
the Water
(iii) to paying certain costs of issuing the 2002 Bonds.
See "THE WATER SYSTEM - Capital Improvement Program Summary" for a
description of the ~vater utility facilities to be financed with the proceeds of the 2002 Bonds,
and "THE GAS SYSTEM - Capital Improvement Program Summary" for a description of the
gas utility facilities to be financed with the proceeds of the 2002 Bonds.
Estimated Sources and Uses of Funds
The following table sets forth the estimated sources and uses of funds for the 2002
Bonds:
Sources of Funds:
Principal Amount of 2002 Bonds
Lesx Original Issue Discount
Lesx Underwriter’s Discount [11
Total Sources
Uses of Funds:
Water Account of Project Fund
Gas Account of Project Fund
Reserve Fund
Costs of Issuance Fund [2]
Total Uses
[21
Includes the Underwriter’s discount and the municipal bond insurance
t~remium, ~vhich will be paid by the Underwriter.epresents amounts to I~ay fees of rating agencies, the Trustee, bond counsel,
disclosure counsel, the financial advisor, [the premium for the debt service
reserve fund surety bond] (see "SECURITY FOR THE 2002 BONDS -
Reserve Account"), printing and other miscellaneous costs of issuing the
2002 Bonds.
-9-
Annual Debt Service
Set forth below is the annual debt service on the 2002 Bonds based on the interest rates
and maturity schedule set forth on the cover of this Official Statement (assuming no optional
redemption).
Bond Year
Ending
iune 1
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
20!8
2019
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
2031
Total
Bond Year
Principal Interest Total
-10-
SECURITY FOR THE 2002 BONDS
Pledge of Net Revenues
Genera!. The 2002 Bonds are special obligations of the City and, pursuant to the
Indenture, there is pledged for the benefit of the Owners of the 2002 Bonds (1) the Net Revenues
of the Gas System which is necessary to pay the Debt Service Attributable to the Gas System;
and (2) the Net Revenues of the Water System which is necessary to pay the Debt Service
Attributable to the Water System.
"Net Revenues" are defined in the Indenture to mean, with respect to a System, for any
period of computation, the amount of the Gross Revenues received from such System during
such period, less the amount of Maintenance and Operation Costs of such System becoming
payable during that period.
"Gross Revenues" are defined as, for any period of computation, all gross charges
received for, and all other gross income and revenues derived by the City from, the ownership or
operation of a System or otherwise arising from a System during that period, including but not
limited to (a) all Charges received by the City for use of such System, (b) all receipts derived
from the investment of funds held by the Director of Administrative Services or the Trustee
under this Indenture, (c) transfers from (but exclusive of any transfers to) any related
stabilization reserve funds, and (d) all moneys received by the City from other public entities
whose inhabitants are served pursuant to contracts with the City.
"Maintenance and Operation Costs" are defined in the Indenture as the reasonable and
necessary costs spent or incurred by the City for maintaining and operating a System,
calculated in accordance with sound accounting principles. Maintenance and Operation Costs
include the cost of supply of water, gas and electric energy under contracts or otherwise, the
funding of reasonable reserves, and all reasonable and necessary expenses of management and
repair and other expenses to maintain and preserve such System in good repair and ~vorking
order. Maintenance and Operation Costs further include all reasonable and necessary
administrative costs of the City attributable to such System and the 2002 Bonds, such as
salaries and wages and the necessary contribution to retirement of employees, overhead,
insurance, taxes (if any), expenses, compensation and indemnification of the Trustee, and fees
of auditors, accountants, attorneys or engineers, and all other reasonable and necessary costs of
the City or charges required to be paid by it to comply with the terms of the 2002 Bonds or the
Indenture. Maintenance and Operation Costs do not include depreciation, replacement and
obsolescence charges or reserves therefor and amortization of intangibles or other bookkeeping
entries of a similar nature.
"Charges" is defined in the Indenture as fees, tolls, assessments, rates and rentals
prescribed under the Bond Law or any other law of the State by the City Council for the
services and facilities of the Water System or the Gas System furnished by the City.
Flow of Funds. The City covenants and agrees in the Indenture that all Gross Revenues
will be received and held by the City in trust and will be deposited by the City in the Revenue
Fund (which was created in connection with City’s issuance of utility revenue Bonds in 1990
and now exists in the City Treasury).
All Gross Revenues will be transferred, disbursed, allocated and applied solely to the
uses and purposes set forth in the Indenture, and will be accounted for separately and apart
from all other money, funds, accounts or other resources of the City.
-ll-
Limitations on Net Revenue Pledge
Limited Obligations of the City. The general fund of the City is not liable and the
credit or taxing po~ver of the City is not pledged for the payment of the principal or
redemption price of and interest on the 2002 Bonds. The owner of the 2002 Bonds cannot
compel the exercise of the taxing power by the City or the forfeiture of its property. The
principal or redemption price of and interest on the 2002 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 specified Net Revenues.
Limitations on Each System’s Share of Debt Service. The Net Revenues of each System
is only available to pay the debt service on the 2002 Bonds attributable to that particular
System. More specifically:
(i) Water System. The portion of the debt service of the 2002 Bonds
attributable to financing new improvements to the Water System (approximately 45%) is
payable from Net Revenues generated by the Water System (and from moneys advanced
from Available Reserves).
(ii) Gas System. The portion of the debt service of the 2002 Bonds attributable
to financing new improvements to the Gas System (approximately 55%) is payable
solely from Net Revenues generated by the Gas System (and from moneys advanced
from Available Reserves).
Senior Lien of 1995 Bonds. The pledge of Net Revenues to the 2002 Bonds is
subordinate to the lien of the 1995 Bonds, ~vhich are secured.by a lien on Net Revenues of the
entire Enterprise. Therefore, the lien of the 1995 Bonds on the Net Revenues of the Water
System and the Gas System is senior to the lien on those Net Revenues securing the 2002 Bonds.
It should be noted, however, that unlike the 2002 Bonds, the 1995 Bonds are also payable from
Net Revenues of the Sewer System, the Storm Drain System and the Electric System.
The 1995 Bonds are currently outstanding in the principal amount of $7,515,000 (as of
June 30, 2001), and mature by their terms on June 1, 2020. The Indenture provides that no
additional bonds can be secured by a pledge of Net Revenues of the Water System or the Gas
System that is prior to the lien securing the 2002 Bonds.
Rate Covenant
The City has covenanted in the Indenture to-fix, prescribe, revise and collect Charges for
each of the Water System and the Gas System during each Fiscal Year which (together ~vith
other funds transferred from stabilization reserve funds for the Water System and the Gas
System, as applicable, and ~vhich are lawfully available to the City for payment of any of the
following amounts during such Fiscal Year) are at least sufficient, after making allo~vances for
contingencies and error in the estimates, to pay the following amounts in the following order:
(a)all Maintenance and Operation Costs with respect to the Water System or the
Gas System, as applicable, estimated by the City to become due and payable in
that Fiscal Year;
(b)the principal of and interest on the Outstanding Bonds payable from the Net
Revenues of the Water System or the Gas System, as applicable, becoming due
and payable during that Fiscal Year, including the redemption price of Term
Bonds subject to sinking fund redemption during such Fiscal Year;
-12-
(c)al! other payments required for compliance with the Indenture and the
instruments pursuant to which any Parity Bonds that are issued with respect to
the Water System or the Gas System, as applicable ("Parity Bonds" are defined
below under "Parity and Subordinate Bonds"); 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 or the Net
Revenues of the Water System or the Gas System, as applicable.
In addition,, the City has covenanted in the Indenture to fix, prescribe, revise and collect
Charges for each of the Water System and the Gas System during each Fiscal Year which, when
added to the balance then on hand in Available Reserve for the Water System or the Gas
System, as applicable, are sufficient to yield Net Revenues of the Water System and the Gas
System, respectively, are at least equal to 125% of the principal of and interest on the
Outstanding Bonds payable from the Net Revenues of the Water System or the Gas System, as
applicable, becoming due and payable during such Fiscal Year, including the redemption price
of Term Bonds subject to sinking fund redemption during such Fiscal Year.
See "Available Reserves" below for a discussion of limitations on the treatment of
appropriation of funds from or into a System’s related Available Reserve for purposes of
satisfying the rate covenant.
The rate covenant described above does not apply to the Water System, the Gas System
or the Electric System.
Available Reserves
Covenant to Maintain Aggregate Available Reserves. The City has covenanted in the
Indenture to maintain the funds on hand in Available Reserves in an aggregate amount at least
equal to five times maximum annual debt service on all outstanding bonded indebtedness
secured by Net Revenues of any of the Systems.
Transfers. In addition, the City has covenanted to advance from Available Reserves, to
the Water System or the Gas System, as needed, amounts sufficient to enable the City to pay all
Maintenance and Operation Costs and all Debt Service payable with respect to those Systems,
when and as the same become due and payable. See "AVAILABLE RESERVES" below for
information about the Available Reserves.
Certain provisions of the California Constitution may require the City to repay any
advance from an Available Reserve that is not directly related to the System which the advance
benefits. For example, if the City requires an advance from the Rate Stabilization Reserve for
the Sewer System to pay the portion of debt service on the 2002 Bonds attributable to the
Water System, the City may be required to repay the Sewer System reserve.See "RISK
¯ FACTORS RELATING TO THE 2002 BONDS - Right to Vote on Taxes Initiative."
The Indenture further provides ~vith respect to the treatment of appropriations of funds
from or into a System’s related Available Reserve:
(i) Into the reserve: To the extent that the City appropriates funds from Gross
Revenues into a System’s related Available Reserve, a deduction will be made from
Gross Revenues of such System in the Fiscal Year during which said transfer occurred for
purposes of calculations to be made in connection with the Rate Covenant and the
issuance of Parity Bonds; and
-13-
(ii) From the reserve: To the extent that the City appropriates funds from a
System’s related Available Reserve into the Revenue Fund, the City may count the funds
so transferred as Gross Revenues (as a result, ho~vever, it may not count the funds as
part of the balance in its Available Reserves) in the Fiscal Year in which said transfer
occurs for purposes of calculations to be made in connection ~vith the Rate Covenant
and the issuance of Parity Bonds.
Other Claims on Available Reserves - the 1999 Bonds. The City has also covenanted
to advance funds, if necessary, from the Available Reserves to pay debt service on the 1999
Bonds, which are currently outstanding in the principal amount of $17,050,000 (as of June 30,
2001) and mature in 2024. The 1999 Bonds are primarily secured by a lien on Net Revenues of
the Wastewater Collection System, the Wastewater Treatment System and the Storm Drain
System. The claim of the 1999 Bonds to the Available Reserves is on a parity with that of the
2002 Bonds.
Parity and Subordinate Bonds
In addition to the 2002 Bonds, the City may issue or incur other loans, advances or
indebtedness payable from Net Revenues to be derived from the Water System or the Gas
System to provide financing for such Systems, in a principal amount determined by the City.
Parity Bonds. The City may issue or incur any Parity Bonds (defined in the Indenture as
bonds, notes or other obligations (including without limitation long-term contracts, loans, sub-
leases or other legal financing arrangements) of the City payable from and secured by a pledge
of and lien upon any of the Net Revenues of the Water System or the Gas System, as
applicable) subject to the follo~ving specific conditions precedent, among others:
(a) The City must be in compliance with all covenants set forth in the Indenture.
(b) The Net Revenues of the System for which such Parity Bonds are being
issued, calculated on sound accounting principles, as shown by the books of the City for
the latest Fisca! Year or any more recent 12 month period selected by the City ending not
more than 60 days prior to the adoption of the resolution, trust indenture or installment
sale agreement pursuant to which the Parity Bonds are issued, as shown by the books of
the City, less withdrawals, if any, from such System’s rate stabilization fund, plus, at
the option of the City, any or all of the amount listed in the following paragraph, must
at least equal 100 percent of Maximum Annual Debt Service, with Maximum Annual
Debt Service calculated on all Bonds to be Outstanding immediately subsequent to the
issuance of such Parity Bonds which have a lien on Net Reserves of such System.
The following may be added to Net Revenues for the purpose of issuing or
incurring Parity Bonds: An allo~vance 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.
(c) The Net Revenues of the System for which such Parity Bonds are being
issued, calculated on sound accounting principles, as shown by the books of the City for
the latest Fiscal Year or any more recent 12 month period selected by the City ending not
more than 60 days prior to the adoption of the Parity Bonds Instrument pursuant to
which such Parity Bonds are issued, as shown by the books of the City, plus, at the
-14-
option of the City, any or all of the items listed in clauses (i), (ii) and (iii) below, must at
least equal 125 percent of Maximum Annual Debt Service, with Maximum Annual Debt
Service calculated on all Bonds to be Outstanding immediately subsequent to the
issuance of such Parity Bonds which have a lien on Net Revenues of such System. The
items any or all of ~vhich may be added to such Net Revenues for the purpose of issuing
or incurring Parity Bonds hereunder are the following:
(i) An allo~vance for Net Revenues from any additions to or
improvements or extensions of the System to be made with the proceeds of such
Parity Bonds, 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 12 month period,
were not in service, all in an amount equal to 90 percent 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 ~vhich, during all or any part of such Fiscal Year or such 12 month period,
~vas 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
~vritten report of an Independent Consultant engaged by the City; and
(iii) Funds then on hand in Available Reserve for the particular System
for which Parity Bonds are being issued.
(d) The resolution, trust indenture or installment sale agreement providing for
the issuance of Parity Bonds must provide that:
(i) The proceeds of the Parity Bonds will be applied to the acquisition,
construction, improvement, financing or refinancing of additional facilities,
improvements or extensions of existing facilities within the System, or otherwise
for facilities, improvements or property which the City determines are of benefit
to the System, or for the purpose of refunding any Bonds in whole or in part,
including all costs (including costs of issuing the Parity Bonds and including
capitalized interest on the Parity Bonds during any period which the City deems
necessary or advisable) relating thereto;
(ii) Interest on the Parity Bonds will be payable on an Interest Payment
Date;
(iii) The principal of the Parity Bonds will be payable on June 1 in any
year in which principal is payable; and
(iv) Money or a Qualified Surety Bond (see "Reserve Account" below)
will be deposited in a reserve account for such Parity Bonds fromthe proceeds of
the sale of such Parity Bonds or otherwise equal to the Reserve Requirement.
(e)The City must receive the written consent of the Insurer.
-15-
See "Available Reserves" above for a discussion of limitations on the treatment of
appropriation of funds from or into a System’s related Available Reserve for the purposes of
satisfying the Parity Bonds test.
Subordinate Bonds. The Indenture authorizes the City to issue Bonds secured by Net
Revenues of a System on a basis subordinate to the pledge of Net Revenues to the 2002 Bonds.
Reserve Account
Genera!. The Indenture provides for establishment of a Reserve Account. The Reserve
Requirement may be satisfied either with a cash deposit into the Reserve Fund or by delivery to
the Trustee of a Qualified Surety Bond (as defined below). On the date of.issuance of the 2002
Bonds, the City may satisfy the Reserve Requirement by delivering to the Trustee a Qualified
Surety Bond.
Qualified Surety Bond. "Qualified Surety Bond" is defined as a surety bond issued by
an insurance company rated in the highest claims paying category by Moody’s and S&P
("Qualified Surety Bonds"). Any Qualified Surety Bond must provide that the Trustee is
entitled to draw amounts thereunder when required to make transfers from the Reserve Account
to the Debt Service Fund in the event of a deficiency in any such account.
The Indenture provides that the Reserve Account will be replenished in the following
priority: (i) principal and interest on the Qualified Surety Bond will be paid from first available
Net Revenues, and (ii) after all such amounts are paid in full, amounts necessary to fund the
Reserve Account to the Reserve Requirement, after taking into account the amounts available
under the Qualified Surety Bond, will be deposited from next available Net Revenues.
Use of the Reserve Account. If at any time there are insufficient amounts in the Debt
Service Fund to principal and redemption price of or interest on the 2002 Bonds, the Trustee
will withdraw from the Reserve Account the amount of the deficiency. Any amounts in the
Reserve Account in excess of the Reserve Requirement (whether derived from interest or gain on
investments or otherwise) ~vill, on June 2 of each year, be paid by the Trustee to the City for
deposit in the Revenue Fund.
-16-
MUNICIPAL BOND INSURANCE
Municipal Bond Insurance Policy
Concurrently with issuance of the 2002 Bonds,
issue its Policy for the 2002 Bonds (the "Policy").
Payment Pursuant to Municipal Bond Insurance Policy
ITO COIvlE]
(the "Insurer") will
-17-
THE CITY AND CITY UTILITIES
The City
The City is located in northern Santa Clara County, approximately 35 miles south of the
City of San Francisco. The City has a current population of approximately 60,500. It is part of
the San Francisco Bay metropolitan area. Partly due to the presence of Stanford University,
which is adjacent to the City, Palo Alto is considered the birthplace of the high technology
industry that has made Santa Clara County famous worldwide as Silicon Valley. The 630-acre
Stanford Research Park includes the headquarters of such prestigious and innovative high-tech
leaders as Hewlett-Packard, Varian Associates, Watkins-Johnson and Alza. Palo Alto is a
major employment center, including Stanford University, Stanford University Medical Center,
Lockheed Martin Missiles and Space, Palo Alto Medical Center, and Xerox.
The City ~vas incorporated in 1894. Its first Charter was granted by the State of
California in 1909, and Palo Alto continues to operate as a charter city. Municipal operations
are conducted under the Council-Manager form of government. The nine Council Members are
elected at large for four-year, staggered terms. The Mayor and Vice Mayor are elected annually
at the first Council meeting in January. The Mayor presides over all Council meetings. The City
Manager is responsible for the operation of all municipal functions, except the offices of the
City Attorney, City Clerk, and City Auditor. These officials are appointed by, and report
directly to, the City Council.
For general, economic and demographic information regarding theCity,see
"APPENDIX B - General and Economic Information About the City of Palo Alto."
City Utilities
The City operates the following utility systems:
(i)the Sewer System,
(ii)the Electric System,
(iii)the Gas System,
(iv)the Storm Drain System,
(v)the Refuse System, and
(vi)the Water System.
The City’s Utilities Department is in charge of the operation of the Electric System, the
Gas System, the Water System and the Wastewater Collection System (which comprises a
portion of the Sewer System) and the City’s Public Works Department is in charge of the
operation of the Storm Drain System, the Refuse System and the Wastewater Treatment System
(which comprises the remaining portion of the Sewer System).
-18-
As described more completely above (see "SECURITY FOR THE 2002 BONDS"), in
addition to Net Revenues from the Water System and the Gas System, the City will, if Net
Revenues are insufficient, advance funds from moneys on deposit from time to time in the
Available Reserves to pay debt service on the 2002 Bonds, specifically:
(i)
(ii)
(iii)
(iv)(v)
(vi)
(vii)
(viii)
(ix)
Rate Stabilization Reserve for the Water System,
Rate Stabilization Reserve for the Wastewater Collection System,
Rate Stabilization Reserve for the Wastewater Treatment System,
Rate Stabilization Reserve for the Refuse System,
Distribution Rate Stabilization Reserve for the Electric System,
Distribution Rate Stabilization Reserve for the Gas System,
Supply Rate Stabilization Reserve for the Electric System,
Supply Rate Stabilization Reserve for the Gas System, and
the Electric System’s Calaveras Reserve.
The City has covenanted to maintain the aggregate balance of the reserves at an amount
at least equal to five times maximum annual debt service on all outstanding bonded
indebtedness secured by Net Revenues of any of the Systems. See "THE AVAILABLE
RESERVES" below for a discussion of each of the Available Reserves and the City’s current
policies with respect to each. See also "RISK FACTORS RELATING TO THE 2002 BONDS -
Right to Vote on Taxes Act" with respect to certain provisions of Proposition 218 that may
require the City to replenish certain Available Reserves in the event of an advance from an
Available Reserve for payment of debt service on the 2002 Bonds.
Management Of The Utilities Department
The Utilities Department is responsible for the operation of four utility systems (the
Electric System, the Gas System, the Water System and the Wastewater Collection System) that
serve the City. The City, through its Utilities Department, services customer accounts for all of
the City’s utilities (including the Storm Drain System, the Refuse System and the Wastewater
Treatment System).
The Utilities Department is currently staffed by the following individuals, among others:
Director of Utilities - On April 1, 1999, the City appointed John Ulrich as Director of
Utilities, effective April 26. Mr. Ulrich began his career with and ~vorked for PG&E in various
capacities for 26 years. As San Francisco Division Manager, Mr. Ulrich led PG&E through the
Loma Prieta earthquake. Mr. Ulrich’s most recent position was National Sales Director for
UTILX Corporation, a Kent, Washington-based company that provides services relating to
underground utilities. Mr. Ulrich earned a Bachelor of Science in Industrial Technology from
California State University, Long Beach, and attended graduate programs at the University of
Chicago and University of Michigan.
Assistant Director of Utilities, Administrative Services Randy Baldschun.
Mr. Baldschun has 30 years of utilities experience with the City of Palo Alto. His
responsibilities include the management of a division consisting of customer and field services,
credit and collections, marketing, long-term financial forecasting and rate-making and meter
reading. He received a Bachelor of Science in Business Administration from San Jose State
University. Mr. Baldschun was appointed to this position in 1990.
-19-
Assistant Director of Utilities, Engineering & Operations - Scott Bradshaw. Mr.
Bradshaw has 25 years of utilities experience. Mr. Bradshaw started his utilities career at Puget
Sound Power and Light Company in Washington, where he worked in electrical engineering,
labor relations, administration and management positions. Mr. Bradshaw then operated a
private electrical contracting firm. Immediately before joining Palo Alto, Mr. Bradshaw was the
Director, Retail Engineering and Operations, for the Chelan County Public Utility District in
Washington, where he directed the operations, maintenance construction, planning and
engineering functions of the distribution system retail business unit. Currently, Mr. Bradshaw
directs the Engineering and Operations functions of the Electric, Water, Gas and Wastewater
Collection Utilities for the City. Mr. Bradsha~v holds a Bgchelor of Science from the University
of Washington and has various other training in EEO, project management, and public
administration.
Acting Assistant Director of Utilities, Resource Management - Girish Balachandran.
Mr. Balachandranbegan employment with the City of Palo Alto in 1991 as an Associate
Resource Planner and was promoted to Resource Planner in 1993. In 1997 he was promoted to
Manager of Supply Resources and presently is the Acting Assistant Director, Resource
Management. He is responsible for leading a group of professionals to obtain wholesale electric,
gas and water commodities for the City. Areas of responsibility include risk management,
regulatory intervention, legislative advocacy, negotiating supply contracts, commodity
forecasting, and joint action agency representation. Mr. Balachandran earned a Bachelor’s
Degree in Electrical Engineering from Anna University, in India, and a master’s degree in
Electrical Engineering from UCLA.
Engineering Manager, Water Gas and Wastewater Engineering and Operations - Roger
W. Cwiak. Mr. C~viak has 21 years’ experience with the City and fifteen years’ experience in
the City’s Utility Department. Mr. Cwiak’s responsibilities include providing technical
leadership and management for the WGW Engineering functions, consisting of Capital
Improvement Program planning, project design, construction administration, and technical
support to WGW Operations staff for the distribution and collection system. Mr. Cwiak is also
responsible for providing plan revie~vs for new customer construction services. Mr. C~viak
holds a Bachelor of Science from Santa Clara University and a Masters in Public
Administration from the University of San Francisco.
Enterprise Staffing and Technology
The City employs approximately 344.95 full-time equivalent employees to operate its
utilities. All of these employees, excluding those in the management classification, are
represented by Service Employees International Union ("SEIU") in all matters pertaining to
wages, benefits and working conditions. The current two-year agreement with this union, which
is in the form of a memorandum of understanding, expires on May 1, 2004. Management
employees receive substantially the same fringe benefit package as the SEIU members. The
City’s wage and fringe benefits are generally comparable to those offered by other local public
agencies.
The City covers all of its permanent employees under the Public Employees’ Retirement
System ("PERS"). Pension costs are funded by monthly contributions to PERS by the City. At
June 30, 2000 (the mast recent actuarial information available), the total pension benefit
obligation for all City employees was $352,491,936, net assets available for plan benefits were
$436,503,402 and the City’s net assets available for plan benefits exceeded the total pension
benefit obligation by $84,011,466.
-20-
Enterprise Management Policy
Treated as enterprise funds, the Electric, Gas, Refuse, Water, Sewer and Storm Drain
Systems are financed and operated in a manner comparable to private business enterprises.
The City utilizes a Strategic Planning process in concert ~vith its annual budget to identify and
record progress in meeting benchmark goals and objectives. In addition, business plans are
developed on an annual basis for the Water, Gas, Electric and Wastewater Collection Systems.
For the Gas and Electric Systems, separate businessplans are developed for the supply and
distribution business units.
The City uses the accrual basis of accounting with respect to the enterprise funds.
Revenues are recognized when earned, and expenses are recognized when incurred. Utility
revenues are used to pay operating costs, bond debt service, capital expenditures, and reserve
accumulations. In accordance with City policy, the cost of providing utility services to the
general public continues to be funded predominately through user charges. Policies for cash
reserves and Utilities Transfers to the City’s General Fund (which are permitted from the Water,
Gas and Electric Systems only) are established by the City Council in a manner consistent with
the voter-approved City Charter. Transfers to the General Fund are based on the approved
rate of return for comparable public utilities.
A review of the City’s fund transfer methodology was concluded in early 2000. Based
on expert opinion provided by R.W. Beck and after executive discussion, the City incorporated
a revised transfer methodology into the adopted budget for Fiscal Year 2000-01. The new
methodology is intended to provide stable but growing transfers to the General Fund,
implementation flexibility for the Electric and Gas supply and distribution businesses, and a
Water Fund transfer that increases at a more moderate rate than originally proposed.
Additionally, an early warning mechanism is included to signal when performance of one of the
funds deviates, either positively or negatively, from projected performance.
Due to the current volatility of electric and gas commodity costs, annual increases in the
equity transfers are capped at 3% of adjusted sales revenues for the Electric and Gas Funds.
This is a change from the methodology approved in 2000-01, which called for a transfer based
on a percentage of adjusted sales revenues (14.5% for the Electric Fund and 15% for the Gas
Fund). The Water transfer is not changing since it has incorporated the stable 3% growth factor.
The Wastewater and Storm Drain Systems are operated to break-even and don’t provide
transfers to General Fund.
The Utilities and Public Works Departments are expected to continue meeting all of their
financial obligations while charging competitive retail rates to their customers. Careful
budgeting and sound financial planning have been and will continue to be important factors in
maintaining competitive rates. The Utilities Department recognizes the importance of
minimizing wholesale commodity costs which is the largest expenditure category. Much time
and effort are spent in dealing with the various commodity suppliers, regulatory agencies and
commissions to help ensure reasonable and economical wholesale commodity costs.]
Rates and Billing
The City Council has full discretion to set utility rates for each utility system. The City’s
rate-making objectives are "to price utilities competitively, consistent with sound financial
planning, while promoting efficient resource utilization and customer satisfaction." To achieve
an appropriate balance between these objectives, the City forecasts all financial obligations and
funding sources over a ten year planning horizon. In this manner, timely rate adjustments for all
utilities are coordinated and alternated to assure adequate funding, minimize consumer
impacts, and to promote rate stability.
-21-
Compared to industry benchmarks, the City’s utilities have low debt and interest
expense. This is due to the City’s preference since the 1960s to finance major capital
improvements on a "pay as you go" basis. This conservative approach to finance additions
through rates helps keep rates low, since interest costs associated with long-term financing are
avoided.
The City collects utility charges by means of a single monthly bill to each customer listing
charges for each service provided. In November 1997, the City Council approved a three year
project to implement a new utilities Customer Information System (CIS) utilizing state of the art
technology. The CIS will, in addition to billing utility customers, enable the utilities to offer a
full range of pricing options under deregulation and on-line customer information to staff. In
2002, the City plans to upgrade the CIS to enable customers to make utility payments and sign
up or discontinue utility services over the Internet. Over the past five years, uncollectible
accounts for all utilities have averaged approximately 0.16% of the amount billed.
Reserve Policies
In 1993 and 1998, the City Council established new utility rate stabilization reserve
policies and guideline levels. See "AVAILABLE RESERVES" below. On an annual basis,
operating reserves are funded, withdrawn, or unchanged depending on the particular
circumstances of that utility fund. In 1996, the City Council adopted the Calaveras Reserve
Policy, which established a reserve balance to recover potential stranded costs related to
outstanding obligations for the Calaveras Hy.droelectric Project. This policy initially required an
annual review of the stranded cost issue and an update of the underlying assumptions to
calculate stranded costs. An updated cost calculation performed in 1999, which took into
account a recent refinancing of the Calaveras Reserve by the Northern California Power Agency,
resulted in a target balance of $65 million to be achieved by Dec. 31, 2001, which was in fact
achieved during Fiscal Year 2000-01. This reserve 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.
Following the electric deregulation in 1997, the City Council unbundled electric rates into
the cost components of distribution, power supply, transition, cost recovery and public
benefits. Because of the need to recover costs and capture revenues for specific business
activities, the rate stabilization reserve for the Electric System was replaced with separate
reserves for distribution and supply services. Similarly the City Council Separated its single
rate stabilization reserve for the Gas System into two separate reserves.
In 2001, the City updated the cost contingency analysis and guideline methodology
related to the Gas and Electric Supply Rate Stabilization Reserve. As a result of this analysis,
the Council approved revised guideline methodologies for the Electric and Gas Supply Rate
Stabilization Reserves. Application of the ne~v methodology effective for Fiscal Year 2001-02
resulted in a higher guideline level for the Electric Rate Stabilization Reserve but no change to the
guideline for the Gas Rate Stabilization Reserve.
-22-
Annual Financial Statements and Significant Accounting Policies
The City’s annual financial statements are audited by Maze & Associates, Accountancy
Corporation, Walnut Creek, California, in accordance with generally accepted auditing
standards and the standards for financial audits issued by the Comptroller General of the
United States. The Maze & Associates audit report contains opinions that the financial
statements present fairly the financia! position of the various funds maintained by the City.
The annual financial statements include certain notes which may not be fully described in this
Official Statement, but which constitute an integral part of the audited financial statements.
The City’s most recent annual financial statement is attached as APPENDIX C to this
Official Statement. Copies of prior reports are 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 and
restrictions.
As indicated above, the various Systems are accounted for as enterprise funds.
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 and expenses, including depreciation, of providing goods or services to the general public
on acontinuing 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
or net income is appropriate for capital maintenance, public policy, management control,
accountability or other purposes.
The City’s enterprise funds are accounted for using the accrual basis of accounting.
Each fund’s revenues are recognized when they are earned, and their expenses are recognized
~vhen they are incurred, except for revenues from utility customers, .which are recognized based
on cycle billings. Revenues for services provided but not billed at the end of a fiscal period are
not material and are not accrued.
The City follows those .Financial Accounting Standard Board Statements issued before
November 30, 1989 that do not conflict with Governmental Accounting Standards Board
Statements.
The City has not requested nor did the City obtain permission from Maze & Associates
to include the audited financial statements as an appendix to this Official Statement.
Accordingly, Maze & Associates has not performed any post-audit review of the financial
condition or operations of the City.
-23-
THE WATER SYSTEM
History
When the City was incorporated in 1894, the majority of its population was served by
private water companies that drew their supply from relatively shallow wells. In 1896, a bond
issue ~vas approved for purchase by the City of these private water companies. In succeeding
years, additional purchases completed the acquisition of privately owned facilities. Deep ~vells
provided ~vater to the gradually increasing population until 1938, when the decline of the
ground~vater table necessitated the purchase of imported water. Thereafter, the City’s growing
demand ~vas met with increasing water supplies from the Public Utilities Commission of the
C.ity and County of San Francisco (the "SFPUC"), through a 36-inch pipeline. In 1962, in order
to provide a very high quality of water to its customers, the City began supplying 100% of its
~vater from the SFPUC. Approximately 85% of the SFPUC supply is derived from snowfield
run-off to the Hetch Hetchy Reservoir in Yosemite National Park, and remaining 15% is derived
from rainfall run-off stored in San Francisco’s East Bay and Peninsula Reservoirs. Over the
years, the City has added three additional SFPUC pipeline connections.
As the population gre~v in the 1930s, 1940s and 1950s, the City issued bonds to finance
the necessary water distribution system expansions and improvements. This policy was
changed in the 1960s to a "pay as you go" funding approach, whereby current revenues were
raised to accommodate capital improvement projects. This issuance of the 2002 Bonds is the
first departure from this !ong-standing policy. The City plans to reinstate the "pay as you go"
funding approach for the Water System in 2005.
Service Area
The City is the primary provider of water service ~vithin its incorporated limits and on
other land owned or leased by the City. The City’s service area encompasses approximately 26
square miles.
Water Storage and Distribution System
The City’s water distribution system distributes potable water throughout the City to
meet residential, commercial, industrial, irrigation and other water demands. The City operates
five connections or turnouts from the SFPUC’s Hetch-Hetchy system. The distribution system
operates at pressures between 60 and 150 pounds per square inch through approximately 224
miles of mains ranging from 4 to 30 inches in diameter. The City also operates six water pump
stations, six storage reservoirs and nine pressure regulation stations. City water is distributed
to approximately 19,000 metered connections.
Sources of Water Supply
The City’s current water supply consists entirely of purchased water from the SFPUC’s
Hetch Hetchy system. The City also maintains interconnections with three neighboring water
distribution systems, as well as five deep wells, both of which are available on an emergency
basis. The sources of supply are further described below.
SFPUC’s Hetch Hetchy System. The SFPUC’s water supply originates in the Hetch
Hetchy reservoir and surrounding watershed located in and around Yosemite National Park.
Water flows by gravity across the California central valley to Sunol, where it is blended with
water from local reservoirs, and is then pumped across the Hayward fault and through the
Irvington Tunnel. There the SFPUC’s Bay Division pipelines Number 1 and 2 carry water across
the San Francisco Bay to Redwood City and to the Palo Alto Pipeline, which carries water
-24-
south to three of Palo Alto’s water turnouts at Sand Hill Road, Lytton Avenue and California
Avenue. SFPUC Bay Division Pipelines Number 3 and 4 carry water around and below the
southern end of San Francisco Bay to the City’s other two connections to the SFPUC system at
Arastradero Road and Page Mill Road. The resulting blend of water represents approximately
85% Hetch Hetchy ~vater and 15% local reservoir water.
Tl~e City has entered into t~vo contractual arrangements with the SFWD, both of which
expire in June 2009: (i) a "Settlement Agreement and Master Water Sales Contract" (the
"Master Water Sales Contract"), which the City co-signed in 1984 with 28 other suburban
water purchasers, and (ii) an "Individual Contract," ~vhich also went into effect in 1984. The
City plans to participate in the renegotiation and extension of the Master Water Sales Contract,
and to renegotiate or extend the Individual Contract, prior to the expiration of each contract in
2009. The contracts contain provisions for adjusting wholesale rates to match changing
~vholesale revenue requirements of the SFPUC on a periodic basis.
The Master Water Sales Contract guarantees a maximum supply of 184 million gallons
per day (the "Maximum Supply Assurance") collectively to all of the suburban purchasers. In
1994, the SFPUC and the Suburban Purchasers agreed to divide the Maximum Supply
Assurance among the individual suburban purchasers. The City’s Maximum Supply Assurance
share is 17.075 million gallons per day, or 8,333,000 hundred cubic feet (ccf) per year.1 In
Fiscal Year 2000-01, the SFPUC delivered an average of approximately 13.8 million gallons per
day to the City, or a total of approximately 6,730,000 hundred cubic feet.
The lvlaster Water Sales Contract provides that the amount of water made available to
the suburban purchasers is subject to reductions due to water shortage, drought, earthquakes,
other acts of God, or rehabilitation or malfunctioning of the SFPUC’s water delivery system. In
the event of shortages, water will be allocated among the suburban purchasers in accordance
with the Interim Water Shortage Allocation Plan approved by the SFPUC and all 29 suburban
purchasers in June 200!. This plan allots water according to a formula so that each agency
understands the basis upon which water will be allocated in a water shortage.
The SFPUC is in the process of preparing a long-range financial plan and capital
improvement plan to identify capital improvement needs and priorities for its ~vater enterprise,
which are intended to replace old systems or upgrade systems to improve reliability and meet
future customer needs. The long-range financi!l plan recommends that capital improvement
projects be funded from debt. The total estimated cost of these future projects for the SFPUC’s
regional water system, which includes the SPPUC infrastructure to serve the City of San
Francisco and the 29 suburban purchasers, including inflation and contingencies, is currently
approximately $2.3 billion. Including financing costs, the total increases to approximately $2.9
billion. Because the SFPUC has not finalized its financing plans for these future projects, it is
not possible to predict what share of these infrastructure costs will be borne by the 29 suburban
purchasers (including the City), or the City’s anticipated share of these costs.
The City’s cost of water purchased from the SFPUC has increased in recent years as a
result of rising operations and maintenance costs of the aging water delivery systems that
transport SFPUC water. It is anticipated that purchased water costs will continue to increase
as more money is needed to fund planned improvements to the SFPUC regional ~vater system.
SFPUC wholesale water rates for Fiscal Year 2000~01 were $0.86 per hundred cubic feet.
Recent SFPUC wholesale water rate projections indicate that wholesale rates are expected to
double over the next ten years.
1 One ccf equals 748 gallons.
-25-
Interconnections with Neighboring Systems. The City maintains interconnections ~vith
three neighboring water distribution systems: Mountain View, the Stanford University campus,
and East Palo Alto. These interconnection are available for use in cases of water distribution
system emergencies.
Emergency Wells. The City maintains five deep wells, which could supply a portion of
the service area’s needs on an emergency basis. It is anticipated that these existing wells, plus
the three new wells the City plans to build over the next five years, could provide a near-norma!
water supply during an extended SFPUC Hetch-Hetchy water supply interruption.
Water Wells, Regional Storage and Distribution System Study. Due to the critical need
to ensure sufficient water supplies are provided under emergency conditions, in accordance
with City Council Direction, the City accelerated the implementation of the recommendations of
the Water Wells, Regional Storage and Distribution System Study, completed in 1999, over the
next five fiscal years. This study was commissioned to evaluate ways to improve the operation
and reliability of the City’s water distribution system, particularly during emergency situations.
The City’s five existing ~vells will be rehabilitated or rebuilt. Three new wells will also be
constructed. A ne~v reservoir and improvements to existing pump and booster stations will be
constructed to allo~v the City to supply near-normal levels of water supply during SFPUC
water supply interruptions. These planned improvements are projected to maintain the City’s
water supply capacity at nearly normal usage levels on a continuous basis for the duration of
many long-term emergency scenarios, some lasting 90 days or longer.
Historical Production and Deliveries
The following table sets forth a five-year history of water purchased from the SFPUC
and delivered to customers in the Water System’s service area.
Table 1
WATER SYSTEM
WATER SUPPLY AND DELIVERIES
(in hundreds of cubic feet)
Fiscal Years 1996-97 through 2000-01
1996-97 1997-98 !998-99 1999-00 2000-01
6,654,747 5,957,358 6,364,507 6,719,814 6,730,016
Source: City of Palo Alto, Utilities Department.
Environmental Issues Relating to the Water System
The Utilities Department reports that no environmental issues exist that are anticipated
to materially affect the Water System.
-26-
Capital Improvement Program Summary
The City currently projects that it will undertake capital improvements to the Water
System for the next 5 Fiscal Years in the aggregate amount of approximately $26.136 million.
The City intends to use a portion of the proceeds of the 2002 Bonds to finance a portion of
these projects through Fiscal Year 2003-04, together with certain engineering, design and related
costs previously incurred with respect to Water System improvements, for a total of
approximately $ . See "FINANCING PLAN." The City currently intends to finance
the remaining projects with available Water Fund revenues on a pay-as-you-go basis, and not
with the proceeds of the Bonds or through the issuance of additional bonds or other debt
instruments.
Table 2
WATER SYSTEM
Capital Improvement Program Summary
Improvement 2001-02 2002-03 2003-04 2004-05 2005-06 Total
Normal Operations Improvements [11 -0-1,342,000 -0--0--0-1,342.000
Water Main Replacements 2,140,500 _2,194,700 2,248,900 2,307,000 2,368,000 11,259,100
New Reservoir and Pump Station 1,700,000 -0-3,900,000 -0--0-5,600,000
Existing Booster Station Improvements -0-140,000 545,000 -0-1,300,000 1,985,000
Rehabilitate Five Existing Wells and 1.790.000 -0-4.160,000 -0--0-5.950.000
Construct Three New Wells
Total:
[11
Source:
$5,630,500 53,676,700 $10,853,900$2.307.000 $3,668,000 $26,136,100
Includes replacement of existing mains identified in the 1999 Study to improve distribution system fire flows,
minor reservoir booster station improvements, and system water quality enhancements.
City of Palo Alto, Utilities Department.
Water Rates, Fees and Charges
Rate Setting Process. Water rates are based entirely on the City’s costs of purchased
~vater and operating and maintaining the Water System. Purchased water costs comprise 25%
of the Water System’s budget. The City receives annual cost projections from its water
wholesaler, SFPUC. To establish retail rates, these supply costs are added to other expense
requirements related to operation of the water distribution system, including the payment of
any outstanding debt and the funding of reserves.
The City Council has full discretion to set utility rates for each utility system. The City’s
rate-making objectives are "to price utilities competitively, consistent with sound financial
planning, while promoting efficient resource utilization and customer satisfaction." To achieve
an appropriate balance between these objectives, the City forecasts all financial obligations and
funding sources over a ten-year planning horizon. In this manner, timely rate adjustments for all
utilities are coordinated and alternated to assure adequate funding, minimize consumer
impacts, and to promote rate stability.
Historical and Current Rate Increases. The City has historically adjusted water rates as
necessary for each customer class. The most recent increase of 11% was adopted on July 1,
2000 for Fiscal Year 2000-01. The following table sets forth a five-year history of water rate
increases.
-27-
Table 3
WATER SYSTEM
Historic Water Rate Increases for all Customer Classes
Year Increase
1997-98 0%
1998-99 0
1999-00 15
2000-01 11
2001-02 0
Source: City of Palo Alto, Utilities Department.
Water Rate Structure. Water rate schedules are established for residential and non-
residential (commercial and industrial) users. The residential rate schedule consists of rate or
usage blocks that ascend in price as consumption increases. Non-residential users (including
public facilities) pay a fiat rate. Both rate schedules also apply a fixed monthly service charge
based on the size of the meter serving the customer.
The follo~ving table sets forth the Water System usage rates for the past three fiscal
years and the current fiscal year. The current Fiscal Year’s rate structure was approved on July
1, 2000. The rates shown below are per hundred cubic feet (ccf) of water usage.
Table 4
WATER SYSTEM
Water Rate Structure
Fiscal Years 1998-99 through 2001-02
(per ccf)
User type and
Monthly
Rate Block
Residential:
0-7 ccf
7-14 ccf
over 14 ccf
Industrial/Commercial:
1998-99 1999-00 2000-01 2001-02
$1.47 $1.66 $1.91 $1.91
1.97 2.21 2.45 2.45
2.04 2.28 2.45 2.45
$2.04 $2.30 $2.55 $2.55
Source: City of Palo Alto, Utilities Department.
Projected Rates. The City currently projects that rates will increase by 20% in fiscal
year 2002-03 and 5% per year for the remaining 5 years of the planning period. These projected
rate increases could change depending on the future projections, and will largely depend on the
future costs of purchased water.
-28-
Comparative Monthly Water Rates. The table below shows comparative residential
water rates charged per hundred cubic feet by water suppliers serving neighboring Santa Clara
County communities for Fiscal Year 2000-01.
Table 5
WATER SYSTEM
Comparative Rates for Average Monthly Residential Service
Fiscal Year 2000-01
Community
Purissima Hills Water District
(Los Altos Hills)
Palo Alto
San Jose Water Co.
Los Altos
Mountain View
Cupertino
Milpitas
Average
Monthly
Rate__K!
31.85
28.17
25.24
24.86
23.47
23.10
20.84
Santa Clara 17.59
Sunnyvale 15.28
Average all Cities:
Average excluding Palo Alto
23.38
22.78
[1]Represents rate for typical residential users based on consumption of 11 ccf plus
a ser-~ice charge for a 5/8" meter.
Source: City of Palo Alto. Utilities Department.
Water Demand and Customer Base
On average, the City provides its customers with 12 million gallons of water per day.
However, demand rises and falls depending on the season, with the summer months showing
high consumption and the fall and winter months lower consumption. In Fiscal Year 2000-01,
the Water System’s sale to approximately 19,340 were approximately 6,120,388 hundred cubic
feet of water. (This amount is lower than water purchased from the SFPUC due to water losses
in the storage and transmission system.)
-29-
The following table sets forth a five-year history of the number of accounts for the Water
System.
Table 6
WATER SYSTEM
Number of Accouflts
As of June 30, 1996-97 through 2000-01
Number of
Fiscal Year Accounts
1996-97 19,249
1997-98 19,298
1998-99 19,322
1999-00 18,921
2000-01 19,340
Source: City of Palo Alto, Utilities Department.
The following table shows billing amounts, water consumption in hundred cubic feet by
customer type, and water consumption as a percentage of total consumption by type of
customer for active water accounts during Fiscal Year 2000-01.
Table 7
-WATER SYSTEM
Summary of Water Accounts and Usage by User Type
Fiscal Year 2000-01
Billings Consumption
User Type ($000s)(in ccf)
Single Family Residences $7,108 2,790,085
Apartments 2,550 1,058,022
Commercial/Industrial 4,780 1,894,823
Other 989 377.458
Total $15,427 6,120,388
Consumption as
Percent of Total
45.59%
17.29
30.96
6.17
100.00%
Source: City of Palo Alto, Utilities Department.
-30-
Largest Water Customers. The following are the ten largest customers for the Water
System for Fiscal Year 2000-01. In the aggregate, the ten largest customers represent
approximately 16% of the annual Water System service charges received by the City.
Table 8
WATER SYSTEM
Ten Largest Customers
Fiscal Year 2000-01
Customers
City of Palo Alto
Stanford Hospital
Roche Biosciences
Palo Alto Unified School District
Palo Alto Golf and Country Club
Hewlett Packard
Crystal Technology
Loral Space Systems
DPIX
Oak Creek Apartments
Primary Business Percent of
Activity Total Sales
Government 4%
Healthcare 3
Pharmaceutical 2
Education 1
Recreation 1
Computers and research 1
Chemical/Optical manufacturer 1
Aerospace/Communications i
Imaging Systems t
Residential Apartment Complex 1
Total:16%
Source: City of Palo Alto, Utilities Department.
Management Discussion of Operations
Utilities Strategic Plan. The City of Palo Alto Utilities continues to focus on providing
a high quality and reliable source of water for its residents and businesses. The four key
objectives in the Utilities Strategic Plan that the City Council approved in 2001 are: Investing in
utility infrastructure to deliver reliable service; enhancing customer satisfaction by delivering
valued produces and services; providing superior financial performance to the City and
competitive rates to customers; and identifying and maintaining the unique advantages of
municipal ownership. Based on these objectives, seven separate strategies provide a focus for
the Utilities Department to meet these objectives while providing flexibility to succeed in a
changing environment. The Utilities Strategic Plan is applicable to Water, Gas, Electric,
Wastewater Collection, and Telecom operations.
Water Supply. With regard to water supply, the City’s ~vholesale supplier, the SFPUC,
has provided rate projections indicating that the City’s wholesale costs will steadily increase
over the next ten years. This is due to the construction of seismic upgrades to the SFPUC water
delivery system. These costs will be borne by the City and County of San Francisco as well as a
large number of SFPUC municipal wholesale customers, including the City.
Sales Revenues. Retail water sales revenue during the past five years grew from $13.3
million in Fiscal Year 1995-96 to $15.4 million (unaudited) in Fiscal Year 2000-01. This
represents an annual growth rate of 3% over this period. Water rates did not change in Fiscal
Year 2001-02. In Fiscal Year 2002-03, water retail sales revenue is projected to increase 20% to
recover rising wholesale purchase costs and distribution operating costs, including debt service
on the 2002 Bonds. Between Fiscal Year 2003-04 and Fiscal Year 2007-08, retail water rates are
projected to rise approximately 5% annualty to offset rising ~vholesale water purchase costs.
-31-
Rate Stabilization Reserves. The Water Fund Rate Stabilization Reserve balance is
expected to rise from $7.0 million to $10.8 million during Fiscal Year 2001-02. This places the
Rate Stabilization Reserve above the maximum guideline level of $9.3 million approved by the
City Council for Fiscal Year 2001-02. In Fiscal Year 2002-03, the projected Rate Stabilization
Reserve balance is $10.3 million, which is below the Fiscal Year 2002-03 maximum guideline
level of $11.3 million approved by the City Council. (See "AVAILABLE RESERVES" for a
discussion of the minimum and maximum guideline levels established for each reserve fund.)
Capital Improvements. To improve the operation and reliability of the City’s water
distribution system the City’s Capital Improvement Program will be accelerated over the next
five years. See "THE WATER SYSTEM - Capital Improvement Program Summary" above.
Due to the critical need to ensure sufficient water supplies are provided under
emergency conditions, in accordance with City Council direction, the City accelerated the
implementation of the recommendations of the 1999 Water Wells, Regional Storage and
Distribution System Study, completed in 1999, over the next five fiscal years. See "THE
WATER SYSTEM - Sources of Supply" above.
The City ~vill also continue to focus on the accelerated Water Main Replacement
Program which began in 1993. The accelerated Water Main Replacement Program replaces three
miles of small-diameter cast iron water mains each year. The Water Main Replacement Program
is improving the City’s fire-fighting capabilities by installing larger diameter water mains. The
new mains wil! not corrode internally (which can impact the mains’ ability to convey water over
time).
City staff is also concentrating on the SFPUC change in disinfectant in the Hetch-Hetchy
water supply from chlorine to chloramine. The design of these system improvements will be
completed in Fiscal Year 2001-02 and new chloramine water treatment equipment will be
installed at City well sites and five water turnouts in Fiscal Year 2002-03.
Balance Sheet
The following table sets forth the balance sheets of the Water System for the last four
fiscal years. These numbers are excerpted from the audited financial statements of the City
which were prepared in accordance with generally accepted accounting principles.
Table 9
WATER SYSTEM
Balance Sheet
Fiscal Years Ended June 30, 1998 through 2001
(in $000’s)
ASSETS
CURRENT ASSETS:
Cash and Investments
Accounts Receivable (Net)
Interest Receivable
Prepaid Items
TOTAL CURRENT ASSETS
1998 1999 2000 2001
$10,917 $10,561 $10,556 $12,026
1,365 1,661 2,191 2,259
154"145 166 170
!2.436 12.367 12.913 14.455
29,347 31,924 34284 36.476
$41,783 $44,29I 547,197 $50,931
NON-CURRENT ASSETS:
Property, Plant and Equipment: (net)
TOTAL ASSETS
LIABILITIES
Accounts Payable and Accrued Liabilities
Accrued Salaries and Benefits
TOTAL LIABILITIES
$873 $891 $820 $1,640
4__~0 5_~4 _8,1 !23
913 945 904 1,763
FUND EQUITY
Contributed Capital 7,751
Retained Earnings 33,119
TOTAL FUND EQUITY 40,870.
8,006 8,615 8,6!5
35,340 37.678 40.553
43.346 46,293 49.168
TOTAL LIABILITIES AND FUND
EQUITY
$41,783 $44,291 $47,197 $50,931
Source: City of Palo Alto Audited Financial Statements, 1998-2001.
-33-
Income Statement
The following table sets forth the statement of revenues, expenses and changes in
retained earnings of the Water System for the four most recent fiscal years. These numbers are
excerpted from the audited financial statements of the City which were prepared in accordance
with generally accepted accounting principles.
Table 10
WATER SYSTEM
Statement of Revenues, Expenses and Changes in Retained Earnings
Fiscal Year Ended June a0, 1998 through 2001
(in $000’s)
OPERATING REVENUES
Sales of Utilities:
Customers
City Departments
Wholesale
Service Connection Charge & Miscellaneous
Other Operating Revenues
TOTAL OPERATING REVENUES
1998 1999 2000 200!.
$11,411 $12,076 $13,923 S14,781
532 545 630 660
180 182 436 302
13.__~2 134 18__..Q0 211.
12.255 12.937 15.169 15.954
OPERATING EXPENSES
Purchase of Utilities
Administration and General
Engineering (Operating)
Resource Management
Operations and Maintenance
Rent
Depreciation and Amortization
TOTAL OPERATING EXPENSES
4,283 4,114 5,712 5,969
1,222 1,486 1,601 1.603
41 142 134 135
312 151 236 190
1,578 1,604 1,669 2,233
669 758 825 926
694 752 823 878
8,799 9,007 1!,000 11,934
OPERATING INCOME
NET REVENUES [1]
NON-OPERATING REVENUES (EXPENSES)
Return on Investment
Contributions
Loss on Disposal of Fixed Assets
NET NON-OPERATING REVENUES (EXPENSES)
3,456 3,930 4,169 4,020
4,150 4,682 4,992 4,898
774 576 545 1,046
161
747"49.____~2 51___qO 1,173
INCOME (LOSS) BEFORE OPERATING TRANSFERS 4,2
Operating Transfers In
Operating Transfers (Out)(2.313)
NET INCOME (LOSS)1,890
4,422 4,679 5,193
28 6
~~2.341)(2.324)
2,221 2,338 2,875
RETAINED EARNINGS - BEGINNING OF YEAR
RETAINED EARNINGS - END OF YEAR
31.229 33,119 35.340 37.678
$33,119 $35,340 $37.678 $40,553
[1]Represents Net Revenues under the Indenture.
Source:City of Palo Alto Audited Financial Statements, 1998-2001.
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Projections
The follo~ving table sets forth the City’s projected revenues, expenses and changes in
retained earnings of the Water System for the current fiscal year and following two fiscal years.
Table 10A
WATER SYSTEM
Projected Revenues, Expenses and Net Revenues
Fiscal Year Ended June 30, 2002 through 2004
(in $000’s)
OPERATING REVENUES
Sales of Utilities:
Customers
City Departments
Wholesale
Service Connection Charge & Miscellaneous
Other Operating Revenues
TOTAL OPERATING REVENUES
NON-OPERATING REVENUES
Return on Investment
GROSS REVENUES
2002 2003 2004
14,870 18,089 22,701
787 798 998
420 387 396
12__~3 12__~3 123
16.200 19.397 24.774
492 507 556
16,692 19,904 25,330
OPERATING EXPENSES
Purchase of Utilities
Administration and General
Engineering (Operating)
Resource Management
Operations and Maintenance
Rent
TOTAL OPERATING EXPENSES
6,186 7,550 7,465
2,859 2,922 3,010
195 196 202
460 460 474
1,937 1,962 2,021
986 1,035 1,066
12,623 14.125 14.238
NET REVENUES 4,069 5,779 11,092
Source:City of Palo Alto.
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THE GAS SYSTEM
History
Municipal ownership of the gas system began on October 1, 1917, when the City
purchased the Palo Alto Gas Company with the proceeds of a $40,000 bond issue. The
decision to municipalize the Gas System was influenced by controversies related to the rates
charged by the Palo Alto Gas Company and the quality of the product. Furthermore, the City
had a record of managing its electric system since 1900 at substantial savings to its citizens.
In the early years of the Gas Utility, gas ~vas manufactured from coal tar. On October 7,
1929, natural gas, a superior fue!, was introduced into the City’s mains, as Palo Alto began
purchasing gas from Pacific Gas and Electric Company ("PG&E"). PG&E obtained natural gas
from the lower San Joaquin oil field and had a superior quality of 1180 Btu per cubic foot. As a
consequence, domestic gas consumption began to rise dramatically in the early 1930s. The City
relied on PG&E for natural gas until September 1, 1987, whereupon the City contracted with
alternative suppliers located in the south~vestern United States. At the same time, the City
lowered its retail rates below PG&E for the first time in the City’s history.
As the City’s population grew in the 1930s, 1940s and 1950s, the City issued bonds to
finance the necessary gas distribution system expansions and improvements. This funding
policy was changed in the 1960s to a"pay as you go" funding approach, whereby current
revenues were raised to accommodate capital improvement projects. This issuance of the 2002
Bonds is the first departure from this long-standing policy. The City plans to reinstate the "pay
as you go" funding approach for the Gas System in 2005.
Service Area
The City is the primary provider of gas service within the incorporated limits of the City
of Pato Alto and land owned or leased by the City. The City’s service area encompasses
approximately 26 square miles.
Gas Distribution System
The City operates a gas utility supplying approximately 23,000 customers with high-
quality natural gas. Natural gas is delivered to the City’s four gas receiving stations through
PG&E’s Bay Area local distribution system gas transmission mains, which the City uses through
a contractual arrangement with PG&E. The City distributes gas to its customers through a
distribution system consisting of two-inch to twelve-inch gas mains. Historically, the City’s gas
distribution system has grown and evolved ~vith the City. The rate and extent of the City’s
growth made it necessary to employ an orderly, planned expansion process for the gas
distribution system.
Since 1992 the City has been pursuing an accelerated Gas Main Replacement Program
which has targeted improving the City’s gas distribution system performance by replacing small
diameter steel gas mains with larger diameter polyethylene mains and improving the gas
distribution valve system, which together have increased gas supply to the entire system. This
program has mitigated operational problems caused by past annexations to the system.
Sources of Gas Supply
Gas Supply Acquisition Strategy. The City’s strategy in managing its natural gas
commodity costs is to purchase the majority of its gas needs on a forward basis at a fixed price
and its remaining needs at the monthly index price (Bidweek). Fixed-price purchases were
-36-
made through enabling agreements signed ~vith several suppliers, including BP Energy Services,
Sempra, and Enron North America. The City’s Risk Management Policy and contract
provisions require that its trading partners be investment grade counterparties with stable
financial standing. Performance assurances and other financial enhancements, with the rights to
early termination, are contract options should the counterparty fall below investment grade
rating or other "events of default."
From July 1, 2001 through November 30, 2001, Enron North America ("Enron")was the
City’s full-requirements natural gas supplier providing residual commodity needs at a Bidweek
based price and all operations services, ensuring delivery of third party gas supplies.
In obtaining the City’s business, Enron made representations about its net worth and
financial strength which later proved to be false and misleading. On November 30, 2001 the
City sent notices of termination on all gas contracts with Enron alleging events of default.
Enron is no longer providing operations services or delivering previously contracted fixed-priced
gas quantities. Service disruptions to City customers are not expected.
Enron Energy Contract Termination. During 2001, Palo Alto executed separate
electricity and natural gas purchase agreements with two affiliates of Enron Corporation. A
single electric agreement was executed in April with Enron Power Marketing, Inc. ("EPM"),
covering a thirty-eight month purchase of 25 megawatts at a fixed price of $95 per megawatt-
hour. Three natural gas agreements were executed with Enron North America, Inc. ("ENA")
covering, respectively, commodity purchases by Palo Alto and the provision of specialized
services, ~vhereby ENA managed gas acquisition and gas transportation for Palo Alto. Through
the commodity contract the City entered into a series of fixed-priced gas purchases that have
terms ranging from several months to 3.5 years. The gas services agreement has a term
extending through December 2002.
Subsequent to the execution dates of the respective agreements, Enron Corporation has
admitted and acknowledged a number of financial irregularities, leading to the substantial
downward restatement of its earnings for several years and its net worth. Possible conflicts of
interest by Enron management have come to light. These admissions and the downgrading of
Enron’s credit worthiness plus the reluctance of third parties to provide Enron with supplies
have caused Palo Alto serious concern about the reliability of contract supplies and the ability
of ENA to perform the specialized management functions under the gas services agreement.
Both the electric and natural gas agreements provide for early termination by either party upon
the occurrence of any specified "event of default" by the other party. Citing several events of
default by Enron Corporation and the relevant affiliate, including the provision of false and
misleading financial statements to Palo Alto, Palo Alto exercised its early termination rights
under all agreements.
Both electric and natural gas supply agreements further provide for the determination of
"settlement payments," reflecting the difference between the contract price and Palo Alto’s cost
of replacement supplies. Because the contract prices were above the respective market prices of
both electricity and natural gas, settlement payments may be owed the Enron affiliates under
both supply agreements. Such payments have yet to be determined by Palo Alto, which has not
yet been able to determine the prices of replacement supplies. Replacement of both electricity
and natural gas supplies are expected to cost less than the respective contract prices. Any
settlement payment that may be payable by Palo Alto is already reflected in Palo Alto’s retail
electric and gas retail rates.
Enron Corporation, EPM and ENA each filed a Chapter 11 bankruptcy petition shortly
after PaloAlto exercised its rights of early termination. Although deliveries and other contract
performance have ceased under all agreements, Palo Alto has been advised by its counse! that
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issues may arise under federal bankruptcy law regarding the effectiveness of the termination
notices under any of the terminated agreements. However, for the reasons stated in the
foregoing paragraph, resolution of this termination issue is not expected to adversely affect Pa!o
Alto’s electric or gas retail rates.
Plans for New Supply Contracts. The City is in the process of selecting a new full-
requirements supplier to provide all operations services and residual commodity needs at an
index price. In the interim, all daily operations are being performed by Interstate Gas Services
Company and gas supplies are provided by BP Energy Services and Sempra through monthly
and daily fixed-price purchases. The City had maintained standard enabling agreements with
both entities and this has facilitated the City’s response to rapidly changing circumstances.
The City ~vill replace quantities previously acquired through Enron in an effort to
manage its commodity costs. Such purchases wil! be made with the City’s existing,
creditworthy suppliers. The City is also in the process of signing enabling agreements with other
creditworthy suppliers to improve the competitiveness of future fixed-priced purchases. Given
the abundance of energy supplies in the wholesale market, the City hopes to obtain the
necessary replacement supplies without supply disruption.
Gas Transmission Capacity. The City holds a base quantity of intrastate gas
transmission capacity on PG&E’s Redwood path under a contract with PG&E that expires in
December 2002, as per the provisions of Gas Accord 2. PG&E, in its bankruptcy proceedings,
has indicated that it will extend the terms of Gas Accord 2 for approximately two years. The
price of this transportation is expected to be relatively constant during this time period.
As in the past, the City will continue to monitor and intervene in state and federal
proceedings to protect its interests and ensure adequate access to state and national gas
transmission facilities to meet its needs. The City is active in PG&E’s bankruptcy case and
expects to intervene at the Federal Energy Regulatory Commission to protect its interests.
-38-
Historical Production and Deliveries
The following table sets forth historical gas production measured at the City’s gate in the
PG&E pipeline in millions oftherms.1 These figures also represent gas deliveries to customers in
the Gas System’s service area.
Table 11
GAS SYSTEM
GAS SUPPLY BY SOURCE AND DELIVERIES
(in millions of therms)
Fiscal Years 1996-97 through 2000-01
Therms ,Supply Source
1996-97 35 Suncor
1997-98 38 Suncor
1998-99 42 Coral
1999-00 37 TXU
2000-01 38 TXU
[1]Suncor’s contract terminated in February 1998, when it
was succeeded by Coral.
Source: City of Palo Alto, Utilities Department.
Environmental Issues Relating to the Gas System
The Utilities Department reports that no environmental issues exist that are anticipated
to materially affect the Gas System.
Capital Improvement Program Summary
The City currently projects that it will undertake capital improvements to the Gas
System for the next 5 Fiscal Years in the aggregate amount of approximately $20.513 million.
The City intends to use a portion of the proceeds of the 2002 Bonds to finance a portion of
these projects through Fiscal Year 2005-06 for a total of approximately $ See
"FINANCING PLAN." The City currently intends to finance the remaining projects with
available Gas Fund revenues on a pay-as-you-go basis, and not with the proceeds of the Bonds
or through the issuance of additional bonds or other debt instruments.
Table 12
GAS SYSTEM
Capital Improvement Program Summary
Improvement
Capital Equipment Purchases
Gas System Extensions
Gas Main Replacement Projects
Total:
200!-02 2002-03 2003-04
$336,000 $72,500 $ -0-
934,000 833,000 854,000
2,994.000 3.079,000 3.163.000
$4,264,000 $3,984,500 $4,017,000
2004-05 2005-06
$76,500 $ -0-
778,000 800,000
3,248,000 3,345,000
$4,102,500 $1,145,000
Total
$485,000
4,199,000
15,829.000
$20,513,000
Source: City of Palo Alto, Utilities Department.
1 A "therm" is a unit of heat equal to 100,000 Btu’s, or approximately 25,200,000 calories.
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Gas Rates, Fees and Charges
Gas rates are based on the City’s costs for purchasing gas and operating and
maintaining the Gas System. Purchased natural gas costs make up 50% of the Gas System’s
Fiscal Year 2001-02 budget. The City has executed gas supply contracts at fixed prices. To
estab/ish retail rates, these costs are added to other revenue requirements related to operation
of the gas distribution system, including the payment of any outstanding debt and the funding
of reserves.
The City Council has full discretion to set utility rates for each utility system. The City’s
rate-making objectives are "to price utilities competitively, consistent ~vith sound financial
planning, ~vhile promoting efficient resource utilization and customer satisfaction." To achieve
an appropriate balance between these objectives, the City forecasts all financial obligations and
funding sources over a 10-year planning horizon. In this manner, timely rate adjustments for all
utilities are coordinated and alternated to assure adequate funding, minimize consumer
impacts, and to promote rate stability. To provide for rate stability and to insure funds are
available to cover any unforeseen cost contingencies, Rate Stabilization Reserves are funded
from surplus net sales revenues and ~vithdra~vn in subsequent periods to supplement retail sales
revenue as needed.
Historical and Current Rates Adjustments. The City has historically adjusted natural
gas rates as needed for each customer class. The most recent rate increases occurred in Fiscal
Year 2000-01, consisting of four rate adjustments resulting in a total increase of 200% over the
prior year. These rate increases were approved unanimously by the City Council, and were
deemed necessary in order to offset the unprecedented rise in wholesale natural gas prices in the
United States during this period. See "THE GAS SYSTEM - Management Discussion of
Operations" below.The following table sets forth a five-year history of natural gas rate
increases.
Table 13
GAS SYSTEM
Historic Gas Rate Increases for all Customer Classes
Year Increase
1997-98 -0-%
1998-99 (7)
1999-00 -0-
2000-01 200
2001-02 -0-
Source: City of Palo Alto, Utilities Department.
Natural Gas Rate Structure. Natural gas rate schedules are established for residential
and non-residential (commercial and industrial) users. The residential rate schedule consists of
rate or usage blocks that ascend in price as consumption increases. The rates are seasonal and
change between winter and summer. Non-residential users (including public facilities) pay a
flat rate.
The following table sets forth the Gas System rates for the past three fiscal years and the
current fiscal year. The figures for Fiscal Year 2000-01 represent the average of four gas rate
increases. The current Fiscal Year’s rate structure was approved on June 1, 2001. The rates
shown below are per therm (100,000 Btu) of natural gas usage.
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Table 14
GAS SYSTEM
Gas Rate Structure
Fiscal Years 1998-99 through 2001-02
(per therm)
User type and
Bi-Monthly
Rate Block 1998-99 1999-00 2000-01 2001-02
Residential:
Summer: 0-20 $0.424 $0.424 $0.7!4 $1.28
over 20 0.597 0.597 1.001 1.79
Winter: 0-96 0.424 0.424 0.714 1.28
over 96 0.597 0.597 1.001 1.79
Small Non-Residential 0.468 0.468 0.756 1.336
Large Non-Residentia!0.356 0.356 0.640 1.171
Source: City of Palo Alto, Utilities Department.
Projected Rates. In Fiscal Year 2000-01, the City’s retail gas rates were increased
substantially to accelerate funding of the Rate Stabilization Reserves. Given the robust sales
revenues derived from current rate levels, reserve levels are expected to climb significantly in
Fiscal Years 2001-02 and 2002-03. To match revenue requirements over the next 5-year period,
two retail gas rate decreases are anticipated. The City currently projects that retail natural gas
rates will decrease by 20% to 35% in Fiscal Year 2002-03, and decline an additional 13% in
Fiscal Year 2004-05. These rate projections could change depending on future estimates, and
will largely depend on the future costs of purchased natural gas.
Comparative Monthly Natural Gas Rates. The table below sho~vs comparative average
monthly residential natural gas bills charged by the City and PG&E, the only other natural gas
supplier serving neighboring Santa Clara County communities as of June 2001.
Table 15
GAS SYSTEM
Comparative Rates for Average Monthly Residential Service
June 2001
Average Monthly
Supplier Rate ~
PG&E $56.08
Palo Alto 86.73
[1]Represents the average monthly bill for typical residential users based on
consumption of 30 therms in the summer and 100 therms in the winter.
Source: City of Palo Alto.
Gas Demand and Customer Base
On average, the City provides its customers with 100,000 therms of natural gas per day.
However, demand rises and falls depending on the season, with the winter months showing
high consumption and the summer months lower consumption. In Fiscal Year 2000-01, the Gas
System supplied approximately 23,100 users with approximately 36,491,500 therms of natural
gas.
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The following table sets forth a five-year history of the number of accounts for the Gas
System.
Table 16
GAS SYSTEM
Number of Accounts
As of June 30, 1996-97 through 2000-01
Number of
Fiscal Year Accounts
1996-97 23,311
1997-98 23,327
1998-99 23,322
1999-00 23,154
2000-01 23,105
Source: City of Palo Alto, Utilities Department.
The following table shows billing amounts, water consumption in therms by customer
type, and gas consumption as a percentage of total consumption by type of customer for active
gas accounts during Fiscal Year 2000-01.
Table 17
GAS SYSTEM
Summary of Gas Accounts and Usage by User Type
Fiscal Year 2000-01
User Type
Single Family Residences
Apartments
Commercial/Industrial
Other
Total
Billings Consumption
($000s)(in therms)
$8,394 12,202,989
3,055 4,747,799
9,797 16,234,590
1,928 3,306,122
$23,174 36,491,500
Consumption as
Percent of Total
33%
13
44
_10
100%
Source: City of Palo Alto, Utilities Department.
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Largest Gas Customers. The following are the ten largest customers for the Gas System
for Fiscal Year 2000-01. In the aggregate, the ten largest customers represent approximately
18% of the annual Gas System service charges received by the City.
Table 18
GAS SYSTEM
Ten Largest Customers
Fiscal Year 2000-01
Primary Business Percent of
Customers Activity Total Sales
Roche Biosciences Pharmaceutical 5
Veterans Hospital Medical 3
City of Palo Alto Government 2
Loral Space Systems Aerospace/Communications 2
Palo Alto School District Education 1
Lockheed Missiles & Space Defense 1
CPI Communications 1
Hewlett Packard Computers & Research 1
Agilent Technologies Electronic and Optical Equipment 1
Genencor International Biotechnolgy 1
Total:18%
Source: City of Palo Alto, Utilities Department.
Management Discussion of Operations
Utilities Strategic Plan. The four key objectives in the Utilities Strategic Plan that the
City Council approved in 2001 are: Investing in utility infrastructure to deliver reliable service;
enhancing customer satisfaction by delivering valued produces and services; providing superior
financial performance to the City and competitive rates to customers; and identifying and
maintaining the unique advantages of municipal ownership. Based on these objectives, seven
separate strategies provide a focus for the Utilities Department to meet these objectives while
providing flexibility to succeed in a chan~ng environment. The Utilities Strategic Plan is
applicable to Water, Gas, Electric, Wastewater Collection, and Telecom operations.
Sales Revenues. Retail sales revenue during the past five-year period grew from $16.2
mi!lion in Fiscal Year 1995-96 to $23.2 million (unaudited) in Fiscal Year 2000-01. Over this
period, this represents a revenue growth rate of 8.6% annually. However, in Fiscal Year 2000-
01, wholesale natural gas prices in the United States rose to unprecedented levels due to an
imbalance between supply and demand. Consequently, in Fiscal Year 2001-02 the City’s retail
gas rates rose dramatically to offset record highs in wholesale commodity costs. A series of
four rate increases were approved by the City Council to phase in the higher costs to retail
customers during the Fiscal Year. The approved rate increases were 15% on August 1, 2000,
25% on january 1, 2001, 25% on April 1, 2001 and 67% on June 1, 2001.
Rate Stabilization Reserve Policy. The primary goal of the City’s policy to maintain
adequate Rate Stabilization Reserves is to provide rate stability to City residents and
businesses. The unprecedented rise in wholesale gas costs during Fiscal Year 2000-01 presented
an opportunity to utilize these reserves to help mitigate the full impact of higher commodity
rates. In this regard, the Gas Fund Rate Stabilization Reserves were purposely drawn down
during Fiscal Year 2000-01 as retail rates moved upward. Thus, the financial strategy used
during Fiscal Year 2000-01 consisted of a combination of staggered rate increases, withdra~val
-43-
of reserves to cushion customer bill impacts, and implementing a large (67%) rate increase to
accelerate restoration of reserve balances.
As a result of the four retail’rate increases in Fiscal Year 2000-01, the Gas Fund Rate
Stabilization Reserve balances are expected to be restored in Fiscal Year 2001-02. The Fiscal
Year 2001-02 beginning balance of the Gas Fund Supply Rate Stabilization Reserve is projected
to rise from approximately $0.5 million to approximately $9.5 million at the end of the Fiscal
Year. This places the Supply Rate Stabilization Reserve close to the target guideline level of
$9.9 million for that year. In the following year, despite a planned retail gas rate decrease, the
Supply Rate Stabilization Reserve balance is expected to rise further to approximately $12.3
miltion and end Fiscal Year 2002-03 above the revised maximum guideline level of $6.9 million.
The Rate Stabilization Reserve guidelines change annually as sales revenues and purchases costs
are projected to rise or fall from one year to the next.
With regard to the Gas Fund Distribution Rate Stabilization Reserve, the Fiscal Year
2001-02 beginning balance is projected to rise from approximately $1.8 million to
approximately $5.3 million at the end of the Fiscal Year. This places the Distribution Rate
Stabilization Reserve above the maximum guideline level of $5.1 million for that year. In the
following year, the Distribution Rate Stabilization Reserve is expected to end Fiscal Year 2002-
03 with a balance of $4.6 million, which is below the maximum guideline level of $5.1 million.
(See "AVAILABLE RESERVES" for a discussion of the minimum and maximum
guideline levels established for each reserve fund.)
Gas Purchase Costs. In Fiscal Year 2002-03, gas purchase costs are projected to
substantially decline from previous high levels. The City has entered into fixed-price wholesale
gas supply agreements effective July 1, 2002 that will significantly lower purchased gas costs in
Fiscal Year 2002-03.
Capital Improvements. The City projects that it wil! undertake significant capital
improvements to the Gas System for the next five Fiscal Years. Gas mains must be replaced
when leaks present a potential safety hazard or when leak repairs are no longer cost effective.
In 1992 the City accelerated the rate of gas main replacements from 7,000 to 20,000 feet per
year to replace leaking thin-walled plastic gas mains and corroded steel mains. The Gas Main
Replacement Program ~vas again further accelerated to 30,000 feet per year in Fiscal Year 1999-
00 due to the introduction of new gas main construction methods that lowered gas distribution
system construction costs.
The City evaluated ways to improve the safety, operational distribution, and supply
reliability of the City’s gas distributiofl system and has included this analysis in its distribution
system Capital Improvement Plan project planning. The accelerated Gas Main Replacement
Program improves the City’s gas distribution supply capabilities and operational safety by
installing larger diameter polyethylene gas mains and control valves. The new polyethylene gas
mains will not corrode, thereby reducing the City’s operating costs in the future by eliminating
the maintenance expenses for cathodic protection system and leak repairs on the existing steel
gas distribution mains. The City wi!l continue to focus on the accelerated Gas Main
Replacement Program to further lower the City’s cost of gas distribution system construction.
The City is also bringing the internal electrical systems of the City’s four existing gas
receiving stations up to existing electrical code requirements. Gas equipment purchases will also
be made to increase the City’s ability to locate and record gas system construction records in
the City’s Geographical Information System (GIS) system.
-44-
Balance Sheet
The following table sets forth the balance sheet of the Gas System for the four most
recent fiscal years. These numbers are excerpted from the audited general purpose financial
statements of the City which were prepared in accordance with generally accepted accounting
principles.
Table 19
GAS SYSTEM
Balance Sheet
Fiscal Years Ended June 30, 1998 through June 30, 2001
(in $O00s)
ASSETS
CURRENT ASSETS:
Cash and Investments
Accounts Receivable (Net)
Interest Receivable
Prepaid Items
TOTAL CURRENT ASSETS
1998 1999 2000 2001
$18,894 $18,147 $13,209 $5,645
1,251 1,240 1,560 3,294
266 251 190 77
20,411 19,638 14,959 9,016
31.703 34,17!36.722 39,112
$52,114 $53,809 $51,681 $48,128
NON-CURRENT ASSETS:
Property, Plant and Equipment: (net)
TOTAL ASSETS
LIABILITIES
Accounts Payable and Accrued Liabilities
Accrued Salaries and Benefits
TOTAL LIABILITIES
$825 $766 $1,052 $2,003
6_4 77 8~85
88___Q9 84__~3 904 2.088
FUND EQUITY
Contributed Capital
Retained Earnings
TOTAL FUND EQUITY
3,292 3,333 3,333 3,333
47,933 4__.9,633 47,212 42,707
51,225 52,966 50,545 46,040
TOTAL LIABILITIES AND FUND $52,114
EQUITY
Source: City of Palo Alto Audited Financial Statements, 1998-2001.
$53,809 $51,681 $48,128
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Income Statements
The following table sets forth the statement of revenues, expenses and changes in
retained earnings of the Gas System for the four most recent fiscal years. These numbers are
excerpted from the audited general purpose financial statements of the City ~vhich ~vere
prepared in accordance with generally accepted accounting principles.
Table 20
GAS SYSTEM
Statement of Revenues, Expenses and Changes in Retained Earnings
Fiscal Years Ended June 30, 1998 through 2001
(in $000’s)
OPERATING REVENUES
Sales of Utilities:
Customers
City Departments
Wholesale
Service Connection Charge & Miscellaneous
Other Operating Revenues
TOTAL OPERATING REVENUES
1998 1994 2000 2001
$16,827 $17,607 $16,076
347 383 386
1,056
227 645 580
433 109 8.~4
18,890 18,744 17,106
$22,529
657
403
8O
23.669
OPERATING EXPENSES
Purchase of Utilities
Administration and General
Engineering (Operatin~
Resource Management
Operations and Maintenance
Rent
Depreciation and Amortization
TOTAL OPERATING EXPENSES
9,712 10,226 11,519
1,438 1,599 1,960
62 148 160
523 415 546
1.537 1,677 1,873
170 148 162
1.060 1,088 1.132
14,502 15,301 17,352
20,563
2,023
171
757
1,835
172
1:160
26,681
OPERATING INCOME
NET REVENUES
NON-OPERATING REVENUES (EXPENSES)
Return on Investment
Loss on Disposal of Fixed Assets
NET NON-OPERATING REVENUES (EXPENSES)
4,388 3,443 (246)
5,448 4,531 886
(3,012)
(1,852)
1,252 921 709 831
1,221 91___.~3 70:3 82.__.~7
INCOME (LOSS) BEFORE OPERATING TRANSFERS
Operating Transfers In
Operating Transfers (Out)
NET INCOME (LOSS)
5,609 4,356 457
42
~2.850)!2,698)~2.878)
2,759 1,700 (2,421)
45.174 47.933 49.633
$47.933 $49.633 $47,212
(2,185)
327
(2,647)
(4,505)
47.212
$42.707
RETAINED EARNINGS - BEGINNING OF YEAR
RETAINED EARNINGS - END OF YEAR
[1]Represents Net Revenues under the Indenture.
Source:City of Palo Alto Audited Financial Statements, 1998-2001.
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Projections
The following table sets forth the City’s projected revenues, expenses and changes in
retained earnings of the Gas System for the current fiscal year (both the adopted budget and an
adjusted budget based on actual results as of December 5, 2001) and following two fiscal years.
Table 20A
GAS SYSTEM
Projected Revenues, Expenses and Net Revenues
Fiscal Years Ended June 30, 2002 through 2004
(in $000’s)
OPERATING REVENUES
Sales of Utilities:
Customers
City Departments
Wholesale
Service Connection Charge & Miscellaneous
Other Operating Revenues
TOTAL OPERATING REVENUES
NON-OPERATING REVENUES
Return on Investment
GROSS REVENUES
¯Adopted Adjusted Projected Projected
~~Budg~Bud__u_Cg~
2002 2002 2003 2004
$47,838 $42,191 $28,337 $28,113
1,424 1,267 1,125 1125
658 658 600 615
8__5 8~8~9o
50.005 44.201 30,147 29.943
524 526 990,1204
50,529 44,727 31,137 31,147
OPERATING EXPENSES
Purchase of Utilities
Administration and General
Engineering (Operating)
Resource Management
Operations and Maintenance
Rent
TOTAL OPERATING EXPENSES
34,098 23,428 17,225 14,920.
3,698 3,698 3,824 3,824
263 263 242 250
956 956 940 940
1,951 1,951 1,873 1,873
183 183 193 199
41.149 20.479 24.297 22,006
NET REVENUES 9,380 14,248 6,840 9,141
Source: City of Palo Alto.
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AVAILABLE RESERVES
Set forth below is information, including historical balances, policies and minimum,
maximum and target guidelines with respect to each of the Available Reserves.
The City’s Rate Stabilization Reserves For Its Enterprise Funds
Utility Reserve Policy. Based upon a comprehensive review of utility reserves, the City
Council adopted a utility reserve policy in 1993 that defined the role of reserves, established a
rate stabilization reserve for each utility fund, and identified reserve guidelines. Rate
stabilization reserves were created to cover a number of contingencies, including the need to
supplement rates to cover distribution expenses and commodity supply costs.
The 1993 reserve policy declared that reserves should be established to finance
"extraordinary one-time contingencies." The policy further stated that reserves should not be
used to solve long-term financial problems; rather, rates should finance current operating,
capital and financial obligations which are of an ongoing nature. In addition, reserves should
not be funded to cover major catastrophic disasters; the City maintains insurance for that
purpose and other governmental resources can be made available in case of disaster. Finally, if
current operating costs exceed current revenues, reserves should be used to cover increased
operating costs in the short run, while allo~ving rates to gradually increase over a reasonable
period to meet suct-t cost levels. Thus, the underlying goal of the reserves is to provide rate
stability.
Based upon a Council approved methodology, reserve leve! guidelines {minimum, target,
and maximum) are set annually to allo~v reserves to adjust up or down without unduly falling
below the minimum or above the maximum. On occasion, reserves have exceeded the maximum
level for a short time. Reserve levels are then adjusted in subsequent years, usually through rate
changes. The decision to set aside more or less than the target is based upon an assessment of
the uncertainties and financial risk facing the utilities. The City notes that reserve levels in
excess of "maximum" levels are considered to be consistent with its reserve guidelines.
The City Counci! is notified in the Midyear Financial Report, as well as in the Fourth
Quarter Financial Report, of any existing or potential issues known at that time with respect to
the reserves. In the absence of direction from the City Council to immediately address
disposition of a reserve surplus, the disposition will be addressed in the following year’s budget
cycle. Disposition may include a rate reduction, customer rebate, application of the surplus in
satisfaction of a financial obligation or, if justified, maintenance of the reserve in its surplus
position for a specific period of time.. The City’s policy is to require City Council action to use
the reserve; as a result, utility management is held accountable for operating efficiently and the
City Council makes the decisions regarding the use of reserves.
Since 1993, deregulation of the electric and gas industries has progressed rapidly. In
1997, the City Council approved several policies related to electric deregulation, including
recovery of stranded costs and providing customer choice of supplier and marketing sales to
customers residing outside the City’s service territory. See "AVAILABLE RESERVES -
Calaveras-Stranded Costs Reserve" below. In 1999, the City took similar action by approving a
Direct Access Plan for the Gas System.
Available Reserve Balances History. The table below sets forth a summary of the
amounts on hand in the Available Reserves for the prior three Fiscal Years, debt service of the
outstanding bonds with a claim on Available Reserves, and resulting debt service coverage
ratios.
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Table 21
AVAILABLE RESERVES
Reserve Balances
Fiscal Year 2000-01
Rate Stabilization
Reserve Fund
Water System
Wastewater Collection System
Wastewater Treatment System
Refuse System
1998-99 1999-00 2000-01
$9,547 $9,506 $7,025
9,678 8,683 6,759
3,372 2,847 5,623
7,923 9,537 11,102
Electric System (Distribution)5,413
Gas System (Distribution)8,936
Electric System (Supply)19,184
Gas System (Supply)7,445
Calaveras-Stranded Costs Reserve 71,072
2,632 8,326
7,355 1,805
28,750 56,645
3,832 510
68,013 64,780
Total:$142,570 $14 I, 155 $162,575
Debt Service
Debt Service Coverage Ratio
Rate Stabilization Reserve for the Water System
The Water System rate stabilization reserve fund is maintained on the basis of the
following guidelines:
Minimum Guideline Level:15 percent of budgeted sales revenue for that year plus
estimated annual net sales revenue decline due to
abnormal weather
Target Level:
Maximum Guideline Level:
midpoint between maximum and minimum levels
twice the minimum level
The table below sets forth actual sales revenue, policy guidelines and actual levels of the
Water System rate stabilization reserve as of June 30 for the last five fiscal years (in thousands
of dollars):
1996-97 1997-98 1998-99 1999-00 2000-01
Actual Sales Revenue $13,280
Minimum Level 3,569
Target Level 5,354
Maximum Level 7,138
Actual Reserve Level 7,814
$11,943 $12,621 $14,553 $15,441
3,666 3,666 3,967 4,494
5,766 5,766 5,951 6,741
7,865 7,865 7,935 8,988
7,502 9,547 9,506 7,025
Source: City of Palo Alto.
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Rate Stabilization Reserve for the Wastewater Collection and Wastewater Treatment
Systems
The rate stabilization reserve funds for the Wastewater Collection System and the
Wastewater Treatment System are maintained on the basis of the following guidelines:
Minimum Guideline Level:15 percent of budgeted sales revenue for that year
Target Level:midpoint between maximum and minimum levels
Maximum Guideline Level:twice the minimum level
The table below sets forth actua! sales revenue, policy guidelines and actual levels of the
Wastewater Collection rate stabilization reserve as of June 30 for the-last five fiscal years (in
thousands of dollars):
1996-97 1997-98 1998-98 1999-00 2000-01
Actual Sales Revenue 58,683 $8,764 $8,691 $9,353 $8,916
Minimum Level 2,502 2,565 2,526 2,691 2,684
Target Level 3,753 3,809 3,789 4,037 4,026
Maximum Level 5,004 5,052 5,052 5,382 5,368
Actual Reserve Level 8,454 7,407 9,678 8,683 6,759
Source: City of Palo Alto.
The table below sets forth actual sales revenue, policy guidelines and actual levels of the
Wastewater Treatment rate stabilization reserve as of June 30 for the last five fiscal years (in
thousands of dollars):
1996-97 1997-98 1998-99 1999-00 2000-01
Actual Sales Revenue $10,559 $11,094 $11,734 $11,849 $13,722
Minimum Level 1,602 1,697 1,799 1,893 2,032
Target Level 2,403 2,500 2,699 2,840 3,048
Maximum Level 3,204 3,393 3,598 3,786 4,064
Actual Reserve Level 3,050 3,427 3,372 2,847 5,623
Source: City of Palo Alto.
Rate Stabilization Reserve for the Refuse System
The rate stabilization reserve fund for the Refuse System is maintained on the basis of
the following guidelines:
Minimum Guideline Level:10 percent of budgeted sales revenue for that year
Target Level:midpoint between maximum and minimum levels
Maximum Guideline Level:twice the minimum level
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The table below sets forth actual sales revenue, policy guidelines and actual levels of the
refuse system rate stabilization reserve as of June 30 for the last five fiscal years (in thousands
of dollars):
1996-97 1997-98 1998-99 1999-00 2000-01
Actual Sales Revenue $18,506 $18,628 $18,792 $18,906 $19,135
Minimum Level 1,810 2,017 1,857 1,862 1,862
Target Level 2,715 3,030 2,?86 2,?94 2,?94
Maximum Level 3,620 4,034 3,715 3,?25 3,?25
Actual Reserve Level 5,885 5,971 ?,923 9,53?11,102
Source: City of Palo Alto.
Rate Stabilization Reserves for the Electric System
Beginning in 1993, the Electric System had a single Rate Stabilization Reserve that was
funded from rate revenues. For Fiscal Year 1996-97, the balance in the Electric System Rate
Stabilization Reserve was approximately $24,329,000 as of June 30.
Following electric deregulation in 1997, the City Council unbundled electric rates into the
four cost components of Distribution, Power Supply, Transition Cost Recovery and Public
Benefits. The unbundling of rate charges addressed, among other things, a need for the Electric
System to account for its distribution business separately from its supply business in a
competitive environment. Because of this need to recover costs and capture revenues for
specific business activities, the rate stabilization reserve for the Electric System was replaced
with separate reserves for distribution services and supply services. The City Council also
established a Public Benefits Reserve in the Electric Fund to reserve revenues collected but
unspent for Public Benefit programs; however, the Public Benefits Reserve is not pledged as
an Available Reserve pursuant to the Indenture.
To determine Electric System rate stabilization reserve guidelines, the City performed an
analysis of the cost contingencies related to distribution services and a separate analysis of the
cost contingencies related to supply services. These cost contingencies included the
identification of planned and unplanned events that occur on a one-time basis, including
funding Budget Amendment Ordinances and end-of-the-year budget variances, funding
increased operating costs for a two-year period to defer a rate increase while providing rate
stability, and price variances for commodity supply. In addition, sales revenue shortfalls
caused by abnormal ~veather periods ~vere identified.
The City used the sum of the contingencies as a benchmark to establish the approximate
target guideline level to aid in calculating maximum and minimum guideline levels. Finally,
various measures such as percentages of revenue or costs were evaluated to yield the
appropriate target guideline level.
In 200!, the City updated the cost contingency analysis and guideline methodology
related to the Electric System and Gas Supply Rate Stabilization Reserves. As a result of this
analysis, the Council approved revised guideline methodologies for these reserves. Application
of the new methodology effective Fiscal Year 2001-02 resulted in a higher guideline level for the
Electric System Rate Stabilization Reserve. With regard to the guideline for the Gas Supply
Rate Stabilization Reserve, the level resulting from application of the new methodology is the
same level resulting from the previous methodology.
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The current target guidelines for the Electric System Supply Rate Stabilization Reserve
are set forth below:
Minimum Guideline Level:
40% of budgeted purchase costs
Target Level:midpoint between maximum and minimum levels
Maximum Guideline Level:twice the minimum level
The current target guidelines for the Electric System Distribution Rate Stabilization
Reserve are set forth below:
Minimum Guideline Level:15% of budgeted distribution sales revenue
Target Level:midpoint bet~veen maximum and minimum levels
Maximum Guideline Level:twice the minimum level
The table below sets forth actual sales revenue, policy guidelines and actual levels of the
Electric System Distribution Rate Stabilization Reserve and Supply Rate Stabilization Reserve
as of June 30, 2001 (in thousands of dollars):
Supply Distrib.Supply Distrib.
1996-97 1997-98 1998-99 1999-00 1999-00 2000-01 2000-01
Actual Sales Revenue 62,198 76,694 72,144 32,249 28,554 96,839 27,837
Minimum Level 11,518 9,500 9,500 6,927 4,061 7,430 3,996
Target Level 17,277 14,250 14,250 !0,391 6,091 11,146 5,994
Maximum Level 23,036 19,000 19,000 !3,855 8,122 14,861 7,992
Actual Reserve Level 24,329 22,680 24,597 28,750 2,632 56,645 8,326
Source: City of Palo Alto.
See also "APPENDIX C - Audited Financial Statements of the City for the Fiscal Year Ended
June 30, 2001.
Rate Stabilization Reserves for the Gas System
In 1998, the City Council separated its single rate stabilization reserve for the Gas
System into two separate reserves for the same deregulation-related reasons as it had done
previously with the Electrical System.
In 2001, the City updated the cost contingency analysis and guideline methodology
related to the Gas and Electric Supply Rate Stabilization Reserve. As a result of the analysis,
the Council approved revised guideline methodologies for these supply reserves. Application of
the new methodology compared to the previous methodology resulted in no change to the
guideline level for the Gas Rate Stabilization Reserve. The new guidelines became effective for
Fiscal Year 2001-02.
The current target guidelines for the Gas System Supply Rate Stabilization Reserve are
set forth below:
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Minimum Guideline Level:
Target Level:
Maximum Guideline Level:
20% of budgeted purchase costs
midpoint between maximum and minimum levels
twice the minimum level
The current target guidelines for the Gas System Distribution Rate Stabilization Reserve
are set forth below:
Minimum Guideline Level:20% of budgeted sales revenue
Target Level:midpoint between maximum and minimum levels
Maximum Guideline Level:twice the minimum level
Based on the guidelines applicable in Fiscal Year 2000-01, the Gas System guidelines
and actual reserve levels are set forth be!ow (in thousands of dollars):
Supply Distrib.Supply Distrib.
1996-97 1997-98 1998-99 1999-00 1999-00 2000-01 2000-01
Actual Sales Revenue 16,229 18,230 17,990 8,322 8,703 12,376 10,810
Minimum Level 3,411 3,401 3,401 1,817 1,375 2,007 1,936
Target Level 5,116 5,102 5,102 2,725 2,062 3,0i 1 2,904
Maximum Level 6,822 6,802 6,802 3,633 2,749 4,014 3,872
Actual Reserve Level 13,015 16,433 16,38!3,832 7,355 510 1,805
Source: City of Palo Alto.
See also "APPENDIX C - Audited Financial Statements of the City for the Fiscal Year
Ended June 30, 2001.
Calaveras-Stranded Costs Reserve
The Calaveras Reserve was created to pay for debt service related to the Calaveras
Hydroelectric Project, which is a hydroelectric project that provides the City with power. The
Calaveras Project is owned by the Northern California Power Agency (the "NCPA"), a joint
exercise of powers agency of which the City is a member. In 1983, the City established the
Calaveras Reserve to build up a reserve to help transition the debt service cost obligation into
rate levels. The Calaveras Hydroelectric Project was completed in 1990. With the prospect of
State deregulation of the electricity market, fn 1995 the City established the purpose of the
Calaveras Reserve to meet the potential financial impact of "stranded costs" relating to the
Calaveras Hydroelectric Project and the City’s share of the California Oregon Transmission
Project. "Stranded costs" are the difference between the expected market rate of power in the
future and the costs to the utility of delivering that power. Under deregulation, to the extent
that the costs to deliver power are higher than market, those costs will be stranded, i.e.; the
market will not allow the utility to recover those costs. Stranded costs are generally equated
with long term debt service on capital investments.
The City’s adopted 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 million, depending on the market price scenario used. The
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Calaveras Reserve target is based on a net present value calculation of the cash balance needed
to offset Palo Alto’s stranded costs each year through Fiscal Year 2032-33. The estimate of
stranded costs represents the difference between the Calaveras Project’s actual fixed costs
(debt service) and the estimated market price for the Calaveras Project’s power output. Also
included in the calculation are the potential stranded costs related to the City’s share of the
California Oregon Transmission Project.
The current Calaveras Reserve target is based upon an updated stranded cost
calculation performed in 1999, which took into account a recent refinancing of the Calaveras
Hydroelectric Project by the NCPA, and which resulted in a target balance for the Calaveras
Reserve of $65 million to be achieved by December 31,200!. The December 3!, 2001 deadline
reflects the timetable established by AB 1890, by which the California electric industry was
deregulated. Between !995 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 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 belo~v: .
1996-97 1997-98 1998-99 1999-00 2000-01
Balance $41,680 $55,583 $71,072 $68,013 $64,780
Source: City of Palo Alto Audited Financial Statements.
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DEBT SERVICE COVERAGE
The following table shows estimated debt service covereage for each of the Water
System and the Gas System based on maximum annual debt service on the Bonds attributable
to that System, budgeted Net Revenues and Maintenance and Operation Costs for fiscal year
2001-02 and the actual 2000-01 balance in the Available Reserves.
Table 22
WATER SYSTEM AND GAS SYSTEM
Debt Service Coverage Calculation
Gross Revenues
Less Maintenance and Operation Costs
Net Revenues
Maximum Annual Debt Service on Bonds
attributable to each System
Coverage from Net Revenues only
Coverage from Net Revenues plus
Available Reserves [11
Water System
$
Gas System
Source: City of Palo Alto.
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RISK FACTORS RELATING TO THE 2002 BONDS
Payment of principal of and interest on the 2002 Bonds depends primarily upon the
revenues derived from operation of the Water System and the Gas System and, if necessary,
from moneys on deposit in the Available Reserves. Some of the events which could affect the
revenues received by the Water System or the Gas System, as well as issues that could affect the
availability of moneys in the Available Reserves, are set forth below. The following discussion
of risks is not meant to be an exhaustive list of the risks associated with the purchase of the
2002 Bonds and the order in which the risks are discussed does not necessarily reflect the
relative importance of the various risks.
Limited Obligations
The 2002 Bonds are limited obligations of the City and are not secured by a legal or
equitable pledge or charge or lien upon any property of the City or any of its income or receipts,
except the Net Revenues, The obligation of the City to pay debt service on the 2002 Bonds from
Net Revenues does not constitute an obligation of the City to levy or pledge any form of
taxation or for which the City has levied or pledged any form of taxation.
The City is obligated under the Indenture to make debt service payments solely from
Net Revenues or from moneys on deposit in the Available Reserves. There is no assurance that
the City can succeed in operating the Systems such that the Net Revenues in the future will be
sufficient for that purpose. See also "Balance of the Available Reserves" and "Right to Vote on
Taxes Act" below.
System Expenses
There can be no assurance that the City’s expenses for the Systems will be consistent
with the descriptions in this Official Statement. Changes in technology, changes in quality
standards, loss of large customers, increased or decreased development, increases in the cost of
operation, or other expenses could require increases in rates or charges in order to comply with
the City’s rate covenant in the Indenture.
Limited Recourse on Default
Failure by the City to pay debt service on the 2002 Bonds constitutes an event of default
under the Indenture and the Trustee is permitted to pursue remedies at law or in equity to
enforce the City’s obligation to make such payments. Although the Trustee has the right to
accelerate the total unpaid principal amount of the debt service on the 2002 Bonds, there is no
assurance that the City would have sufficient funds to pay the accelerated amounts. See also
"Proposition 218" below.
Limitations on Remedies
The ability of the City to comply with its covenants under the Indenture and to generate
Net Revenues sufficient to pay principal of and interest with respect to the 2002 Bonds may be
adversely affected by actions and events outside of the control of the City and may be
adversely affected by actions taken (or not taken) by voters, property owners, taxpayers or
persons obligated to pay assessments, fees and charges. See "Proposition 218" below.
Furthermore, the remedies available to the owners of the 2002 Bonds upon the occurrence of an
event of default under the Indenture are in many respects dependent upon judicial actions
which are often subject to discretion and delay and could prove both expensive and time
consuming to obtain.
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In addition to the limitations on remedies contained in the Indenture, the rights and
obligations under the Indenture may be subject to bankruptcy, insolvency, reorganization,
arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting
creditors’ rights, to the application of equitable principles, to the exercise of judicial discretion
in appropriate cases and to limitations on legal remedies against cities in the State of California.
The opinion to be delivered by Bond Counsel concurrently with the issuance of the 2002 Bonds
will be subject to such limitations and the various other legal opinions to be delivered
concurrently with the issuance of the 2002 Bonds will be similarly qualified. See "APPENDIX D
- Proposed Form of Bond Counsel Opinion." If the City fails to comply with its covenants the
Indenture or fails to pay principal of and interest due on the 2002 Bonds, there can be no
assurance of the availability of remedies adequate to protect the interest of the holders of the
2002 Bonds.
Balance of the Available Reserves
Although the City has covenanted to maintain the Available Reserves at an aggregate
balance equal to five times maximum annual debt service on all outstanding bonded
indebtedness secured by Net Revenues of any of the Systems, each Available Reserve is
primarily intended as a rate stabilization reserve for the applicable City utility System. As a
result, extraordinary circumstances may arise that would cause the City to diminish Available
Reserves below "minimum" guideline levels or, in the aggregate, below five times Maximum
Annual Debt Service. Although the City has covenanted in the Indenture to replenish the
Available Reserves to required levels, it will do so only from rates and charges paid by the
customers of the various utility systems, which may adversely affect the City’s ability to
replenish the Available Reserves in a timely fashion.
In addition, certain provisions of the California Constitution may require the City to
repay any advance from an Available Reserve that is not directly related to the System which
the advance benefits. See "RISK FACTORS RELATING TO THE 2002 BONDS - Right to Vote
on Taxes Initiative."
Initiatives
In recent years several initiative measures have been proposed or adopted which affect
the ability of local governments to incr.ease taxes and rates. There is no assurance that the
electorate or the State legislature will not at some future time approve additional limitations
which could affect the ability of the City to implement rate increases which could reduce Net
Revenues and adversely affect the security for the 2002 Bonds. See "Proposition 218" below.
Bankruptcy
The rights and remedies provided in the Indenture may be limited by and are subject to
the provisions of federal bankruptcy laws, to other la~vs or equitable principles that may affect
the enforcement of creditors’ rights, to the exercise of judicial discretion in appropriate cases
and to limitations on legal remedies against public agencies in the State of California. The
various opinions of counsel to be delivered with respect to the 2002 Bonds and the Indenture,
including the opinion of Bond Counsel, will be similarly qualified. If the City were to file a
petition under Chapter 9 of the Bankruptcy Code, the Owners of the 2002 Bonds and the City
could be prohibited from taking any steps to enforce their rights under the Indenture.
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Tax Exemption of the 2002 Bonds
The City has covenanted in the Indenture that it will take all actions necessary to assure
the exclusion of interest with respect to the 2002 Bonds from the gross income of the Owners of
the 2002 Bonds to the same extent as such interest is permitted to be excluded from gross
income under the Internal Revenue Code of 1986. If the City fails to comply with the foregoing
tax covenant, the interest component of the Installment Payments evidenced by the 2002 Bonds
may be includable in the gross income of the Owners thereof for federal tax purposes. See "TAX
MATTERS."
Additional Obligations
The Indenture permits the issuance of Bonds secured by Net Revenues on a parity basis
or a subordinate basis to the 2002 Bonds. Such additional Bonds would increase debt service
payable from Net Revenues and could adversely affect debt service coverage with respect to the
2002 Bonds. In such event, however, the Rate Covenant will remain in effect. See "SECURITY
FOR THE 2002 BONDS - Rate Covenant."
Seismic Considerations
The City, like much of California, is subject to seismic activity that could result in
interference with operation of the Systems. There are several major active fault zones
transecting Santa Clara County that could cause "strong ground motion" at the site of the
various facilities constituting the Systems during their useful life. Those major fault zones,
listed in order of proximity to the City, are the San Andreas, Hayward, Calaveras and San
Gregorio faults. If there were to be an occurrence of severe seismic activity in the area of the
City, there could be an interruption in the service provided by the Systems resulting in a
temporary reduction in the amount of Net Revenues available to pay the principal of and
interest on the 2002 Bonds when due.
Right to Vote on Taxes Initiative
General. On November 5, 1996, the voters of the State approved Proposition 218, the
so-called "Right to Vote on Taxes Act." Proposition 218 adds Articles XIIIC and XIIID to the
State Constitution, which affect the ability of local governments to levy and collect both existing
and future taxes, assessments, fees and charges. Proposition 218, which became effective on
November 6, 1996 (although application of some of its provisions was deferred until July 1,
1997) changes, among other things, the procedure for the imposition of new or increased fees or
charges.
Article XIII C. Article XIII C requires that al! new local taxes be submitted to the
electorate for approval before such taxes become effective. General taxes, imposed for general
governmental purposes of the City, require a majority vote, and special taxes, imposed for
specific purposes, require a two-thirds vote. Under Proposition 218, the City can only continue
to collect taxes that were imposed after January 1, 1995 if they were approved by the voters by
November 6, 1998.
Article XIII D. Under Article XIIID, revenues derived from a "fee" or "charge" (defined
as "any levy other than an ad valorern tax, a special tax or an assessment, imposed by a [local
government] upon a parcel or upon a person merely as an incident of property ownership,
including user fees or charges for a property related service") may not exceed the funds required
to provide the "property-related service" and may not be used for any purpose other than that
for which the fee or charge was imposed. Further, (i) the amount of a "fee" or "charge" may not
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exceed the proportional cost of the service attributable to the parcel, (ii) no "fee" or "charge"
may be imposed for a service unless that service is actually used by, or is immediately available
to, the owner of the property in question and (iii) no "fee" or "charge" may be imposed for
general governmental services where the service is "available to the public at large in
substantially the same manner as it is to the property owners." All new and existing property-
related fees and charges must conform to specific requirements and prohibitions set forth in the
Article. Further, before any property-related fee or charge may be imposed or increased, written
notice must be given to the record owner of each parcel of land affected by such fee or charge.
The City must then hold a hearing upon the proposed imposition or increase, and if written
protests against the proposal are presented by a majority of the owners of the identified
parcels, the City may not impose or increase the fee or charge. Moreover, except for fees or
charges for sewer, water and refuse collection services (or fees for electrical and gas service,
which are exempt from Proposition 218), no property-related fee or charge may be imposed or
increased without majority approval by the property owners subject to the fee or charge or, at
the option of the local agency, two-thirds approval by those residing in the affected area and
voting at the election.
Applicability to the Water System. The City has concluded that Proposition 218 does
not apply to its existing structure of Water System service charges because the service charges
are not imposed upon a parcel of land or charged merely as an "incident of ownership", but
instead are a commodity-based charge imposed on the user based upon the user’s consumption
of a measurable commodity. Moreover, the service charges are sized to recover the City’s
reasonable or actual costs in providing service. Accordingly, the City is not required to follo~v
the procedures described in the previous paragraph when increasing its Water rates. The
California Attorney General has similarly concluded that a water rate based upon the level of
consumption is not governed by Proposition 218 (see 97 Cal. Op. Atty. Gen. No. 302 (July 14,
1997)), although it should be noted that no court has addressed the issue and the principal
drafters of Proposition 218 have publicly challenged the conclusion of the Attorney General.
Applicability to the Gas System. Proposition 218 expressly does not apply to revenues
or rates of the Gas System and, therefore, the City is not required to follow the procedures
described in the previous paragraph when increasing its Gas rates.
Relevance to Available Reserves. Because Proposition 218 declares that revenues
derived from a "fee" or "charge" may not exceed the funds required to provide the "property-
related service" and may not be used for any purpose other than that for which the fee or
charge was imposed, the City may be required to repay any advance from an Available Reserve
that is not directly related to the System ~vhich the advance benefits. For example, if the City
requires an advance from the Rate Stabilization Reserve for the Sewer System to pay the portion
of debt service on the 2002 Bonds attributable to the Water System, the City may be required to
repay the Server System reserve. Proposition 218 expressly does not apply to revenues of the
Electric System or the Gas System and, therefore, does not apply to their Available Reserves.
Repeal or Reduction of Existing Rates. Under Article XIIIC, Section 3, the initiative
power is expressly extended to matters of local taxes, assessments, fees and charges. This
means that the voters of the City could, by future initiative, repeal or reduce existing local taxes,
assessments, fees and charges. This power is arguably limited in the case of levies directly
pledged to bonded indebtedness, such as the Net Revenues of the Water System and the Gas
System securing the 2002 Bonds.
Legislation adopted by the State Legislature in 1997 provides that Article XIIIC shall not
be construed to mean that any owner or beneficial owner of a municipal security assumes the
risk of, or consents to, any initiative measure which would constitute an impairment of
contractual rights under the Contracts Clause of the United States Constitution. However,
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there can be no assurance that the voters of the City will not, in the future, approve an initiative
which attempts to reduce vvastewater rates or curtail their increase.
Taxes. In addition, Proposition 218 requires tt~at all new local taxes be submitted to the
electorate before they become effective. Taxes for general governmental purposes of the City
require a majority vote and taxes for specific purposes require a two-thirds vote. New local
taxes for general governmental purposes may only be submitted to the electorate of the City at
general elections in which members of the City Council are elected, which currently occurs every
two years. The voter approval requirements reduce the Council flexibility to deal with fiscal
problems by raising revenue and no assurance can be given that the City wilt be able to raise
taxes in the future to meet increased expenditure requirements.
Conclusion. The City is unable to predict how Article XIIIC and Article XIIID will be
interpreted by the courts and ~vhat, if any, implementing legislation ~vilt be enacted. Bond
Counsel has advised that there can be no assurance that Article XIIIC and Article XIIID will not
limit the ability of the City to impose, levy, charge and collect fees and charges sufficient to
enable the City to comply with its covenants under the Indenture or that the ability of the City
to generate Net Revenues sufficient to pay principal of and interest on the 2002 Bonds will not
be adversely affected. Further, in such event, there can be no assurance of the availability of
remedies to protect fully the interests of the holders of the 2002 Bonds.
Investment of City Funds
Gross Revenues collected by the City will be held and invested by the City in accordance
with the provisions of the Indenture. Otherwise,.however, moneys held by the City, including
Enterprise moneys, will be invested in accordance _with the City’s adopted investment policies.
For more information about the City’s investment policy as well as information about recent
investment performance of the City’s pooled investment funds, see "APPENDIX .B - General
and Economic Information About the City of Palo Alto."
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LEGAL MATTERS
Approval of Legal Proceedings
The legality of the sale, execution and delivery of the 2002 Bonds is subject to the
approval of Jones Hall, A Professional Law Corporation, San Francisco, California, acting as
Bond Counsel. A proposed form of such legal opinion is attached hereto as Appendix D. Jones
Hall is also acting as disclosure counsel to the City.
Payment of the fees and expenses of Jones Hall is contingent upon issuance of the 2002 Bonds.
Absence of Litigation
At the time of delivery of and payment for the 2002 Bonds, the City will certify that
there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any
court, regulatory agency, public board or body, pending or, to the knowledge of the City,
threatened against the City affecting the existence of the City or the titles of its officers to their
respective offices or seeking to restrain or to enjoin the sale or delivery of the 2002 Bonds, the
application of the proceeds thereof in accordance with the Indenture, or the collection or
application of any Net Revenues provided for the payment of the 2002 Bonds, or in any way
contesting or affecting the validity or enforceability of the 2002 Bonds, the Indenture, any action
of the City contemplated by any of the said documents, or the collection or application of any
revenues provided for the payment of the 2002 Bonds, or in any way contesting the
completeness or accuracy of this Official Statement or any amendment or supplement thereto,
or contesting the powers of the City or its authority with respect to the 2002 Bonds or any
action of the City contemplated by .any of.those documents.
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
interest on the 2002 Bonds is excluded from gross income for federal income tax purposes and
such interest is not an item of tax preference for purposes of the federal alternative minimum
tax imposed on individuals and corporations, provided, however, that, for the purpose of
computing the alternative minimum tax imposed on corporations (as defined for federal income
tax purposes), such interest is taken into account in determining certain income and earnings.
The opinions set forth in the preceding paragraph are subject to the condition that the
City comply with all requirements of the Internal Revenue Code of 1986, as amended (the
"Code") that must be satisfied subsequent to the issuance of the 2002 Bonds in order that such
interest be, or continue to be, excluded from gross income for federal income tax purposes. The
City has covenanted to comply.with each such requirement. Failure to comply with certain of
such requirements may cause the inclusion of such interest in gross income for federal income
tax purposes to be retroactive to the date of issuance of the 2002 Bonds.
In the further opinion of Bond Counsel, interest on the 2002 Bonds is exempt from
California personal income taxes.
Bond Counsel is of the opinion that, under the Code, the difference between the
principal amount of certain of the 2002 Bonds and the initial offering price of such 2002 Bonds
to the public (excluding bond houses and brokers) at which prices substantial amount of such
2002 Bonds were sold represents interest which is excluded from gross income for federal
income tax purposes; provided, however, that for the purpose of computing the alternative
minimum tax imposed on corporations (as defined for federal income tax purposes), such
-61-
interest is taken into account in determining certain income and earnings. Such interest accrues
on an actuarial basis (that is, on a constant interest rate basis over the term of the such 2002
Bonds) and a taxpayer’s adjusted basis for purposes of determining gain or loss on disposition
will be increased by the amount of such accrued interest. The opinion set forth in the first
sentence of this paragraph is subject to the condition that the City comply with all requirements
of the Code that must be satisfied subsequent to the delivery of the 2002 Bonds in order that
such interest be, or continue to be, excluded from gross income for federal income tax purposes.
The City has covenanted to comply with each such requirement.
Owners of the 2002 Bonds should also be aware that the ownership or disposition of, or
the accrual or receipt of interest on, the 2002 Bonds may have federal or state tax consequences
other than as described above. Bond Counsel expresses no opinion regarding any federal or
state tax consequences arising with respect to the 2002 Bonds other than as expressly described
above.
RATINGS
Moody’s Investors Service, Inc. ("Moody’s") and Standard & Poor’s, A Division of the
McGraw-Hill Companies ("Standard & Poor’s") have assigned their municipal bond rating of
.... and "__," respectively, to the 2002 Bonds with the understanding that upon delivery of
such 2002 Bonds a policy insuring the payment when due of the principal of and interest on the
2002 Bonds will be issued by the Insurer.
[In addition, Moody’s and Standard & Poor’s have assigned underlying ratings (without
regard to the Ivlunicipal Bond Insurance Policy) of "__" and ....respectively, to the 2002
Bonds.
Such ratings reflect only the vie~vs of such organizations and an explanation of the
significance of such ratings may be obtained from Moody’s and Standard & Poor’s. There is no
assurance that such ratings will continue for any given period of time or that such ratings will
not be revised do~vn~vard or withdrawn entirely by such organizations, if in their judgment
circumstances so ~varrant. Any such downward revision or withdrawal of such ratings may
have an adverse effect on the market price of the 2002 Bonds.
UNDERWRITING
The 2002 Bonds were sold pursuant to competitive sale held on __, 2002, and were
awarded to (the "Underwriter"). The 2002 Bonds are being purchased by the
Underwriter at a purchase price of $. , which represents the aggregate principal
amount of the 2002 Bonds ($) less an under~vriter’s discount ($, including
the municipal bond insurance premium to be paid by the Underwriter) and less an original issue
discount ($ .).
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MISCELLANEOUS
Insofar as any statements made in this Official Statement involve matters of opinion or
of estimates, whether or not expressly stated, they are set forth as such and not as
representations of fact. No representation is made that any of the statements ~vill be realized.
Neither this Official Statement nor any statement which may have been made verbally or in
writing is to be construed as a contract with the owners of the 2002 Bonds.
During the initial offering period for the 2002 Bonds, copies of the Indenture may be
obtained, upon written request, from the City. After issuance of the 2002 Bonds. copies of such
documents may be obtained from the Trustee.
The execution and delivery of this Official Statement have been duly authorized by the
City Council of the City.
CITY OF PALO ALTO
By:
Director of Administrative Services
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APPENDIX A
SUMMARY OF CERTAIN PROVISIONS OF THE INDENTURE OF TRUST
A-1
APPENDIX B
GENERAL AND ECONOMIC INFORMATION
ABOUT THE CITY OF PALO ALTO
CITY OF PALO ALTO
General Economic Data
Date of Incorporation April 16, 1894
Incorporated as Charter City July 1, 1909
Form of Government Council-Manager
Population 60,835
Land Area (square miles)25.98
City Maintained Trees 38,094
Police Protection:
No. of Station(s)1
No. of Full-Time Positions 17 6
No. of Police Patrol Vehicles 33
Fire Protection:
No. of Station(s)8
No. of Full-Time Positions 130
No. of Fire Apparatus 24
No. of Fire Hydrants 1,729
Community Services:
Acres- Downtown Parks 170
Acres- Open Space 3,731
Parks 33
Golf Course 1
Tennis Courts 52
Athletic Center 1
Community Centers 4
Theaters 3
Cultural Center 1
Junior Museum and Zoo 1
Swimming Pools 1
Nature Centers 2
Libraries 6
No. of Housing Units 26,048
Commercial and Industrial Space 27.3 million square feet
Municipal Utility Plants:
Water:
Millions of CCF Sold 5.9
Accounts 19,335
Miles of Water Mains 222
Wastewater:
Millions of Gallons Processed 9,243
Accounts 21,752
Miles of Sanitary Sewer Lifles 218
Electric:
Millions of KWH Sold 1,057
Accounts 28,097
Pole Miles of Overhead Lines 227
Trench Miles of Underground Lines 220
Gas:
Millions of Therms Sold 36~7
Accounts 23,101
Miles of Gas Mains 201
Source: City of Palo Alto, Comprehensive Annual Financial Report, Fiscal Year ending June 30, 200I.
Government and Services
The City of Palo Alto was incorporated in 1894. Its first Charter was granted by the
State of California in 1909, and Palo Alto continues to operate as a charter city. Chartered
cities may establish their own laws and regulations as long as they do not conflict with those of
the State. Municipal operations are conducted under the Council-Manager form of government.
B-1
The nine Council Members are elected at large for four-year, staggered terms. The Mayor and
Vice Mayor are elected annually at the first Council meeting in January. The Mayor presides
over all Council meetings. The City Manager is responsible for the operation of all municipal
functions, except the offices of the City Attorney, City Clerk, and City Auditor. These officials
are appointed by, and report directly to, the City Council.
The City provides a full range of municipal services and maintains municipal electric,
water, gas, wastewater collection, wastewater treatment, storm drainage, and refuse utilities for
the benefit of City residents and businesses. The City’s parks, recreation and cultural facilities
are numerous, and include 35 parks, a golf course, four community centers, a Cultural Center, a
Community Theater, a Children’s Theater, and a Junior Museum. The City offers a wide array
of social, recreational and cultural events, including human services for seniors and youth,
subsidized child care, classes, concerts, exhibits, team sports and special events. The City and
the Palo Alto Unified School District have an agreement to jointly fund the costs of maintaining
and rehabilitating school athletic fields, recognizing the significant recreational use of these
facilities by the community. In addition, the City offers a high level of library and public safety
services. Palo Alto has six libraries and eight fire stations providing services throughout the
community.
Population
The following table shows a historical comparison of the respective populations of the
City, the County and the State of California since 1980.
CITY OF PALO ALTO, SANTA CLARA COUNTY, AND STATE OF CALIFORNIA
Population Comparison
City of Percent Santa Clara Percent State of Percent
Year Palo Alto Chang&County Chang&California Change_
t980 55,225 --1,295,071 --23,668,562 --
1990 55,900 t.2%1,497,577 15.6%29,760,021 24.9
1996 58,500 4.7 1,683,300 12.4 32,232,000 8.9
t 997 59,900 2.4 1,671,400 (0.7)32,670,000 1.4
1998 60,500 1.0 1,701,400 1.8 33,226,000 1.7
1999 61,200 1.2 1,717,600 1.0 33,766,000 1.6
2000 58,900 (3.8)1,698,800 ( 1.1 )34,207,000 1.3
2001 60,800 3.2 1,723,700 1.5 34,818,000 1.8
Sources: U.S. Department of Commerce, Bureau of the Census (1980, 1990 and 2000): State Department of Finance
(1996-1999 and 2001).
g-2
Building Activity
The following table shows the number and valuation of building permits in the City for
the past ten fiscal years.
CITY OF PALO ALTO
Building Permits and Valuation
(Dollars in Thousands)
Commercial & Industrial Residential All Others
Fiscal Property No. of No. of No. of
Yea____Er Values Permits Valuation Permits Valuation Permits Valuation
1992 $6,949,429 366 $82,902 1,087 $38.101 63 $2,692
1993 7,443,688 395 71,167 1,079 33,065 65 2,506
1994 7,592,131 400 64,001 1,081 37,284 96 3,823
1995 7,795,396 384 44,471 1,032 35,563 72 7,055
1996 8,058,927 410 72,271 1,194 58,262 89 11,052
1997 8,206,532 377 94,485 1,095 57,617 106 5,874
1998 8,885,623 374 136,761 1,154 61,316 80 6,704
1999 9,623,868 330 73,462 1,167 71,989 106 47,325
2000 10,533,778 428 127,107 1,113 139,674 371 23,113
2001 11,609,915 820 157,088 2,599 78,345 25 4,200
Sources:Property values: Santa Clara County; permit information:City of Palo Alto, Planning and Community
Environment Department.
Santa Clara County Income
Owing to the presence of relatively high-wage skilled jobs and wealthy residents, the
County historically achieves high rankings among all California counties on a variety of income
measurements. As reported in the 2000 Sales & Marketing Management magazine "Survey of
Buying Power," the County’s 2000 median household effective buying income of $72,124 was
the highest among California counties. Since 1982, the median household effective buying
income for the County has consistently exceeded that of California and the United States.
"Effective buying income" ("EBI") is a classification developed exclusively by Sales &
Marketing Management magazine to distinguish it from other sources reporting income statistics.
EBI is defined as "money income" less personal tax and nontax payments - a number often
referred to as "disposable" or "after-tax" income. Money income is the aggregate of wages and
salaries, net farm and nonfarm self-employment income, interest, dividends, net rental and
royalty income, Social Security and railroad retirement income, other retirement and disability
income, public assistance income, unemployment compensation, Veterans Administration
payments, alimony and child support, military family allotments, net winnings from gambling
and other periodic income. Money income does not include money received from the sale of
property (unless the recipient is engaged in the business of selling property); the value of "in-
kind" income such as food stamps, public housing subsidies, medical care, employer
contributions for persons, etc.; withdrawal of bank deposits; money borrowed; tax refunds;
exchange of money between relatives living in the same household; gifts and lump-sum
inheritances, insurance payments, and other types of lump-sum receipts. EBI is computed by
deducting from money income all persona! income taxes (federal, state and local), personal
contributions to social insurance (Socia! Security and federal retirement payroll deductions),
and taxes on owner-occupied nonbusiness real estate.
B-3
CITY, COUNTY, STATE AND UNITED STATES
Effective Buying Income
Year
1996
Total Effective Buying
Area Income ($000)
City of Palo Alto $!,725,347
Santa Clara County 30,823,435
State of California 492,516,991
United States 4,161,512,384
Median Household
Effective Buying Income
$55,311
49,298
35,216
33,482
1997 City of Palo Alto $2,037,829
Santa Clara County 36,500,763
State of California 524,439,600
United States 4,399,998,035
$62,082
54,407
36,483
34,618
1998 City of Palo Alto $2,235,446
Santa Clara County 39,640,732
State of California 551,999,317
United States 4,621,491,738
$67,180
57,144
37,091
35,377
1999
2000
City of Palo Alto $2,295,477
Santa Clara County 42,267,784
State of California 590,376,663
United States 4,877,786,658
City of Palo Alto $2,548,711
Santa Clara County 47,115,360
State of California 652,190,282
United States 5,230,824,904
$72,370
61,122
39,492
37,233
$87,037
72,124
44,464
39,129
Source: Sales & Marketing Management "Survey of Buying Power."
B-4
Employment
The following table shows major employers in the Palo Alto area as of March 31, 2000.
CITY OF PALO ALTO
Major Employers
As of March 31, 2000
Name of
Company
Produce/
Services
No. of
Employees
Stanford
Space Systems/LORAL
Palo Alto Medical Foundation
Foothill College
VA Palo Alto Health Care
Roche Bioscience
Agilent Technologies
Hewlett Packard Company
Palo Alto Unified School District
Stanford University Hospital
Education
R&D
Health Care
Education
Health Care
Pharmaceutical Mfg.
High Tech
Electronics
Education
Health Care
5,000+
3,000-5,000
1,500+
1,000-1,500
i,000+
1,000+
1,000+
1,000+
750 to 1,000
750 to 1,000
Source: Palo Alto Chamber of Commerce
The table below outlines labor force information for the County.
COUNTY OF SANTA CLARA
Employment Rates and Employment by Industry
1996.1997 1998 1999 2000
Civilian Labor Force (1)895,000 937,500 958,800 965,500 1,003,900
Employment 862,800 909,200 927,900 936,300 984,000
Unemployment 32,200 28,300 30,900 29,200 19,900
Unemployment Rate 3.6%3.0%3.2%3.0%2.0%
Wage & Salary Empl0vment:
Total All Industries (2)-885,000 931,700 961,500 976,600 1,030,500
Agriculture 5,100 5,100 5,200 5,300 5,300
Mining 100 100 100 100 200
Construction 32,700 37,300 41,700 45,500 48,700
Manufacturing 245,900 258,200 261,300 250,700 260,200
Transportation, Public Utilities 25,400 27,200 28,300 28,300 29,100
Wholesale Trade 52,400 56,000 56,400 56,000 56,400
Retail Trade 122,200 126,700 130,100 134,000 139,300
Finance, Insurance, Real Estate 30,000 30,600 31,800 32,300 32,100
Services 283,900 301,800 317,800 332,900 364,500
Government 87,400 88,500 88,900 91,400 94,700
(i)Labor force data is by place of residence; includes self-employed individuals, unpaid family workers,
household domestic workers, and workers on strike.
(2)Industry employment is by place of work: excludes self-employed individuals, unpaid family workers,
household domestic workers, and workers on strike.
Source: State of California Employment Developmen~ Department.
B-5
Commercial Developmqnt
During the first two quarters of calendar year 2001, total sales tax revenues in the City
amounted to $$8,948,730, a __% [increase] [decrease] from the sales tax revenues for the first
two quarters of calendar year 2000. The following table sho~vs annual sales tax revenues for the
City for the last five years and the first two quarters of 2000-01.
CITY OF PALO ALTO
Sales Tax Revenues
1st & 2d Q.
1996 1997 1998 1999 2000 2001
Apparel Stores $ 953,197 $ 992,026 $ 1,032,406 $ 1,155,528 $ 1,303.284 $ 650,098
Department Stores 2,433,319 2,821,052 2,-758,758 2,863,543 3,104,704 1,281,902
Furniture/Appliance 1,067,197 1,159,748 1,148,431 346,464 375,351 144,350
Drug Stores 163,495 211,342 136,618 165,077 230,613 128,750
Recreation Products 290,722 318,361 314,138 348,967 369,939 164,582
Florist!Nursery 43,787 46,214 81,679 104,170 106,769 53,492
Miscellaneous Retail 1,426,493 1,685,460 1,899,791 2,170,812 2,557,252 980,738
Restaurants 1,811,171 1,958,925 2,082,419 2,289,402 2,511,032 1,161,305
Food Markets 315,283 336,903 346,451 357,305 365,133 172,301
Liquor Stores 37,732 42,769 47,820 55.803 62,928 39,785
Food Processing Equipment ! 6,597 14,709 12,135 816 615 110
Auto Parts/Repair 170,239 199,058 186,909 172,760 181,193 86,453
Auto Sales - New 1,497,169 1,813,601 2,124,141 2,420,424 2,916,177 1,249,042
Auto Sales - Used 100,687 116,174 127,794 134,399 224,791 97,190
Service Stations 322,081 283,312 274,764 287,577 329,534 183,796
Misc. Vehicle Sales 12,032 (44,089)(23,766) .62,929 193,471 85,054
Building Materials - Whsle 79,837 79,241 60,963 56,329 57,396 31,138
Building Materials - Retail 157.095 169.152 169.842 151.529 190.055 92.692
Retail Store Totals 10,898,133 12,203,958 12,781,293 13,143,834 15,080,237 6,602,778
Business to Business 4,050,717 4.149,289 3,944,535 5,523,977 6,074,739 2,297,091
Miscellaneous 166.495 197.787 187,305 199.222 198,997 48.861
Total $ 15,115,345 $ 16,551,034 $ 16,913,133 $ 18,867,033 $21,353,973 $8,948,730
Percentage Change N/A 9.5%2.2%11.6%13.2%N/A
Source: MBIA MuniServices Sales Tax Analysis and Reporting Service for the City of Palo Alto.
B-6
APPENDIX C
AUDITED FINANCIAL STATEMENTS OF THE CITY
FOR THE FISCAL YEAR ENDED JUNE 30, 2001
C-1
APPENDIX D
PROPOSED FORM OF BOND COUNSEL OPINION
D-1
APPENDIX E
FORM OF CONTINUING DISCLOSURE CERTIFICATE
E-1
APPENDIX F
DTC AND THE BOOK-ENTRY ONLY SYSTEM
The following description of the procedures and record-keeping with respect to beneficial
ownership interests in the 2002 Bonds, payment of principal, interest and other payments with respect
to the 2002 Bonds to Participants or Beneficial Owners, confirmation and transfer of beneficial
ownership interests in such Bonds and other related transactions by and between DTC, the Participants
and the Beneficial Owners is based on information provided by DTC. Accordingly, the City takes no
responsibility for the accuracy of this information.
Book-Entry Only System
DTC will act as securities depository for the 2002 Bonds. The 2002 Bonds will be
issued as fully-registered securities registered in the name of Cede & Co. (DTC’s partnership
nominee). One fully-registered Bonds will be issued for each maturity of the 2002 Bonds, each in
the initial aggregate principal amount of such maturity, and will be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking La~v, a
"banking organization" within the meaning of the New York Banking Law, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934. DTC holds securities that its participants
("Participants") deposit with DTC. DTC also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants’ accounts, thereby eliminating the need for
physical movement of securities certificates. "Direct Participants" include securities brokers
and dealers, banks, trust companies, clearing companies, and certain other organizations. DTC
is owned by a number of its Direct Participants and by the Ne~v York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National AssOciation of Securities Dealers, Inc. Access
to the DTC system is also available to others such as securities brokers and dealers, banks and
trust companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The Rules applicable to DTC
and its Participants are on file with the Securities and Exchange Commission.
Purchases of Bonds under the DTC system must be made by or through Direct
Participants, which will receive credit for the 2002 Bonds on DTC’s records. The o~vnership
interest of each Beneficial Owner is in turn to be recorded on the Direct and Indirect
Participants’ records. Beneficial Owners will not receive written confirmation from DTC of their
purchase, but Beneficial Owners are expected to receive written confirmations providing details
of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect
Participant through which the Beneficial Owner entered into the transaction. Transfers of
ownership interest in the 2002 Bonds are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in the 2002 Bonds, except in the event that use
of the book-entry system for the 2002 Bonds is discontinued.
To facilitate subsequent transfers, all Bonds deposited by Participants with DTC are
registered in the name of DTC’s partnership nominee, Cede & Co. The deposit of Bonds with
DTC and their registration in the name of Cede & Co. effect no change in beneficial ownership.
DTC has no knowledge of the actua! Beneficial Owners of the 2002 Bonds; DTC’s records
reflect only the identity of the Direct Participants to whose accounts such Bonds are credited,
which may or may not be the Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
F-1
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.
Redemption notices will be sent to Cede & Co. If less than all of the 2002 Bonds within a
maturity are being prepaid, DTC’s practice is to determine by lot the amount of the interest of
each Direct Participant in such maturity to be prepaid.
Neither DTC nor Cede & Co. will consent or vote with respect to Bonds. 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 2002 Bonds are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
Principal and interest payments with respect to the 2002 Bonds will be made to DTC.
DTC’s practice is to credit Direct Participants’ accounts on the payment date in accordance
with their respective holdings shown on DTC’s records unless DTC has reason to believe that it
will not receive payment on a payment date. Payments by Participants to Beneficial Owners
will be governed by standing instructions and customary practices, as is the case with securities
held for the accounts of customers in bearer form or registered in "street name," and will be the
responsibility of such Participant and not of DTC, the Trustee or the City, subject to any
statutory or regulatory requirements as may be in effect from time to time. Payment of principal
and interest to DTC is the responsibility of the City or the Trustee, disbursement of such
payments to Direct Participants will be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners will be the responsibility of Direct and Indirect Participants.
The City and the Trustee cannot and do not give any assurances that DTC will
distribute to Participants, or that Participants or others will distribute payments of principal or
interest with respect to the 2002 Bonds paid to 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 will serve and act in the manner described in this Official Statement. The City and the
Trustee are not responsible or liable for the failure of DTC or any Participants to make any
payment or give any notice to a Beneficial Owner with respect to the 2002 Bonds or any error or
delay relating thereto.
Discontinuance of DTC Service.
General. In the event that (a)DTC determines not to continue to act as securities
depository for the 2002 Bonds, or (b) the City determines to remove DTC from its functions as
a depository, DTC’s role as securities depository for the 2002 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 Bonds in fully registered form
in such denominations numbered in the manner determined by the Trustee and registered in the
names of such persons as are requested by the Beneficial Owners thereof. Upon such
registration, such persons in whose names the 2002 Bonds are registered will become the
registered Owners of the 2002 Bonds for all purposes.
Transfer and Exchange of Bonds. The following provisions regarding the exchange and
transfer of the 2002 Bonds apply only during any period in which the 2002 Bonds are not
subject to DTC’s book-entry system. While the 2002 Bonds are subject to DTC’s book-entry
system, their exchange and transfer will be effected through DTC and the Participants and will
be subject to the procedures, rules and requirements established by DTC.
F-2
The registration of any Certificate may, in accordance with its terms, be transferred
upon the Registration Books by the person in whose name it is registered, in person or by his
duly authorized attorney, upon surrender of such Certificate for cancellation at the Corporate
Trust Office of the Trustee in San Francisco, California, accompanied by delivery of a written
instrument of transfer in a form approved by the Trustee, duly executed. Whenever any Bond is
or Bonds are surrendered for registration of transfer, the Trustee will execute, authenticate and
deliver a new Bond or Bonds of the same maturity and aggregate principal amount, in any
authorized denominations.
Bonds may be exchanged at the Corporate Trust Office of the Trustee, for a like
aggregate principal amount of Bonds of other authorized denominations of the same maturity.
The City will pay any costs of the Trustee incurred in connection with such exchange, except
that the Trustee may require the payment by the Certificate Owner requesting such exchange of
any tax or other governmental charge required to be paid with respect to such exchange.
APPENDIX G
SPECIMEN MUNICIPAL BOND INSURANCE POLICY
ATTACHMENT B
SOURCES AND USES OF FUNDS
City of Palo Alto
UTILITY REVENUE BONDS, SERIES 2002A (insured AAA)
Sources:
Bond Proceeds:
Par Amount $27,500,000
27,500,000
Uses:
Project Fund Deposits:
project fund
Other Fund Deposits
reserve fund
Delivery Date Expenses:
Cost of Issuance (estimates)
bond counsel (including expenses)
disclosure counsel (including expenses)
financial advisor (including expenses)
Bond ratings
23,907,000
1,886,300
65,000
32,500
63,000
S&P 20,000
Moodys 20,000
Official statement printing and distribution
Trustee (set up, first year, and legal)
Underwriter’s Discount
Bond insurance
Other Uses of Funds
15,000
7,500
398,000
206,300
Contingency 1 879,400
$27,500,000
Contingency - Staff is requesting ~ not to exceed amount of $27.5 million. The contingnecy amount is needed in the event
of dramatic market fluctuations. However, staff does not expect this to happen.