HomeMy WebLinkAbout2006-01-09 Packet - UVSD CITY OF UKIAH
CITY COUNCIL AGENDA
JOINT MEETING WITH
UKIAH VALLEY SANITATION DISTRICT
CiViC CENTER COUNCIL CHAMBERS
300 Seminary Avenue
Ukiah, CA 95482
January 9, 2006
12:00 (noon) p.m.
1. ROLL CALL-UKIAH CITY COUNCIL
2. ROLL CALL- UKIAH VALLEY SANITATION DISTRICT
3. PUBLIC HEARING
A. Adoption Of Ordinance For Sewer Connection Fee Structure On
Urgency Basis And Approve Associated Finding
4. Adoption Of Resolution Of The City Council Of The City Of Ukiah
Authorizing Documents And Actions Related To Financin_~ Of
Wastewater System Improvements
5. PUBLIC EXPRESSION
A. Announcements/Other Business
6. ADJOURNMENT
AGENDA
ITEM NO: 3A
MEETING DATE: 01/09/06
SUMMARY REPORT
SUBJECT:
ADOPTION OF ORDINANCE FOR SEWER CONNECTION FEE
STRUCTURE ON URGENCY BASIS AND APPROVE ASSOCIATED
FINDING.
As part of the treatment plant upgrade project, the City of Ukiah and the Ukiah Valley
Sanitation District asked Bartle Wells Associates ("BWA") to update connection fees for
the sewer system. The construction contract has been awarded and BWA is currently
preparing the revenue bond issue that will fund the project so it is time to update the
fees to reflect the actual project costs.
The proposed sewer connection fee for the City and District is $10,911 per equivalent
sewer service unit. The Consultants report (attachment 2) tabulates the construction
costs, breaks out the plant expansion's share of those costs, and finally calculates the
proposed connection fee.
The value of the existing system determines the 'buy-in' component of the connection
fee and is designed to recover the investment made by current customers in the existing
system. The 'marginal component' of the connection fee recovers the projected cost of
adding new sewer units. Only the portion of treatment plant costs allocated to future
users by the design engineers was used to calculate the marginal portion of the fee.
RECOMMENDED ACTION: Conduct public hearing and adopt proposed Connection
Fees Ordinance
ALTERNATIVE COUNCIL POLICY OPTIONS: Provide Alternative direction to staff
Citizens Advised:
Prepared by:
Coordinated with:
Attachments:
Mike McCann, Finance Director
Candace Horsley, City Manager and Bernie Ziemianek,
Director of Public Utilities
(1) Ordinance, (2) Consultants Report on Connection Fees
Approved:
Candace Ho~sley, City I~anager
(Continued on page 2)
Background
Currently, the City and District have significantly different connection fee structures from
the last connection fee update in 2004 when the sewer treatment plant project was in
the planning and design stages.
BWA presented a wo~'kshop on May 18, 2005 to a joint session of the Ukiah City
Council and Ukiah Valley Sanitation Board of Directors with their analysis of the City
and District's wastewater utility rates and the changes needed to support bond financing
for the wastewater treatment plant upgrades.
BWA proposed a restructuring of the existing rates to increase funding for the required
treatment plant upgrades. Changes to Connection fees were planned in order to
provide funding for the capacity expansion portion of the project.
The Consultants also advised us that the District's sliding scale connection fee is not
appropriate to take to the bond market. Now that we have a definite financing goal a flat
fee schedule that clearly demonstrates how that goal will be achieved is a far stronger
approach. The proposal includes this fee structure.
This agenda item asks for approval of the connection fees ordinance as presented.
Attachment #
ORDINANCE NO.
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF UKIAH AMENDING SECTION 3731A OF THE
UKIAH CITY CODE
The City Council of the City of Ukiah hereby ordains as follows:
SECTION ONE
3731A: SEWER CONNECTION CHARGES:
The following charges are hereby established for the connection of the plumbing of any
building or structure which discharges to the sanitary sewer system of the City and said
charges are separate from any other charges presently levied or which may be levied in
the future:
A. Residential Schedule:
Ten thousand nine hundred eleven dollars ($10,911.00) for equivalent sewer service unit
(ESSU) per dwelling unit connected to the wastewater system based on the number of
bedrooms according to the following schedule:
1. One bedroom
2. Two bedroom
3. Three bedroom
4. For each additional bedroom
$9,820.00 0.9 ESSU
10,911.00 1.0 ESSU
12,002.00 1.1 ESSU
1,091.00 0.1 ESSU
B. Commercial and Industrial Schedule:
1. Ten thousand nine hundred eleven dollars ($10,911.00) per ESSU for commercial and
industrial connections (reduced 50% for hotels and motels); the ESSU assignment shall
be determined by the Public Utilities Director based upon biochemical oxygen demand
removal requirements, other treatment requirements, and gallonage of flow, and any
other sewage characteristics as the Public Utilities Director deems appropriate.
2. If a discharger disagrees with the fee established by the Public Utilities Director under
subsection B.1 above, he, she or it may appeal to the City Clerk within ten (10) days of
notification of the charge. The appeal will then be heard by the City Council at its next
regularly scheduled meeting, occurring not sooner than 10 days following the receipt of
the request for appeal. At that time, the City Council shall determine whether or not the
ORDINANCE NO.
charge is justified.
C. Future Amendments to Fees.
The City Council may amend the connection fees, as set forth in subsections A and B,
above, by resolution without further amendment of this Code section.
SECTION TWO. SEVERABILITY.
If any provision of this ordinance or the application thereof to any person or circumstance
is held invalid, the remainder of the ordinance and the application of such provision to
other persons or circumstances shall not be affected thereby. The City Council hereby
declares that it would have adopted this Ordinance and any section, subsection,
sentence, clause or phrase thereof irrespective of the fact that any one or more sections,
subsections, sentences, clauses or phrases be declared unconstitutional or otherwise
invalid.
SECTION THREE. URGENCY ORDINANCE
This ordinance is hereby declared to be necessary for the immediate preservation
of the public peace, health, and safety and will take effect and be in force upon its
adoption by a fourth-fifths (4/5) vote of the members of the Ukiah City Council. The City
must finance the construction of the Wastewater Treatment Plant expansion and
rehabilitation project ("the Project"). Connection fees will fund the expansion portion of
the project. The City must issue bonds in connection with this financing. The connection
fee increase enacted by this Ordinance is necessary to generate sufficient revenues to
repay the portion of the bonds funding the expansion project. The rate increase must be
in effect before the City approves an Official Statement to purchasers of the bonds for the
entire Project to assure those potential buyers that sufficient revenues exist to repay the
bonds. If this ordinance is enacted without the urgency declaration and 4/5 vote of the
City Council, it could not be adopted before January 18 and could not become effective
before February 17, delaying bond issuance by two months or more. Interest rates are
increasing and the extra financing costs associated with an interest rate increase could
require a resizing of the bond issue and further delays in bond issuance. The City has
already awarded the construction contract for the Project and must have bond proceeds
available to pay the contractor under the terms of the construction contract. The timely
completion of the Project is essential to the public health and safety. Any unnecessary
delay could result in adverse impacts to public health and safety, including the failure of
fully depreciated components of the existing wastewater treatment plant This ordinance
shall be published in accordance with law within ten days after its adoption.
Adopted on January 9, 2006 by the following roll call vote:
AYES:
NOES:
ORDINANCE NO.
2
ABSENT:
ABSTAIN:
Mark Ashiku, Mayor
ATTEST:
Marie Ulvila, City Clerk
BARTLE WELLS ASSOCIATES
INDEPENDENT PUBLIC FINANCE ADVISORS
Attachment
1889 Alcatraz Avenue
Berkeley, CA 94703
510 653 3399 fax: 510 653 3769
e-mail: bwa~bartlewells.com
TO:
FROM:
DATE:
SUB J:
City of Ukiah & Ukiah Valley Sanitation District
Doug Dove / Tatiana Olea
December 26, 2005
Report on Sewer Connection Fees
In anticipation of the treatment plant upgrade project, the City of Ukiah and the Ukiah
Valley Sanitation District asked Battle Wells Associates to update the connection fee for
the sewer system.
Currently, the City and District have different connection fee structures. Both agencies
last updated the connection fee when the sewer treatment plant project was in the
planning and design stages. The last connection fee update was in 2004 and was based
on the recommendations of the treatment plant design engineers Brown and Caldwell
(B&C).
The treatment plant design is complete and the construction contract has been awarded.
Battle Wells Associates is currently preparing the revenue bond issue that will fund the
treatment plant project. The City and District are again updating the fee to reflect actual
cost of the project.
The City and District want to ensure the updated fee is fair to all customers and that it
incorporates the value of the exiting system and the projected cost of adding capacity to
serve future connections.
Methodology Used & Basis of Fee
Bartle Wells Associates recommends using a combined fee methodology (approach) to
calculate the connection fee. The basis of fees are (1) the value of the existing system,
which was determined using the fixed assets of the sewer enterprise, and (2) the projected
costs of the treatment plant project, which is based on the construction contract, expenses
December 26, 2005
Page 2
incurred in planning and design and estimates of the financing costs for the revenue bond
that will be used to pay for the plant.
The value of the existing system determines the 'buy-in' component of the connection fee
and is designed to recover the investment made by current customers in the existing
system. The 'marginal component' of the connection fee recovers the projected cost of
adding new sewer units (only the portion of treatment plant costs allocated to future users
by the design engineers was used to calculate the marginal portion of the fee).
The proposed sewer connection fee for the City and District is $10,911 per equivalent
sewer service unit. The attached tables show the assumptions used to estimate the
financing cost (the revenue bond assumptions) and how the proposed fee was calculated.
Connection fees are subject to Government Code 66000 and require a notice of proposed
change in fee and Council and Board action to approve the new fee. Once the City
Council and District Board approve the proposed fee there is a 60 day waiting period
before the fee becomes effective.
December 26, 2005
Page 3
Table 1 - Projected Financing Costs for Future Users' Share of Treatment Plant Project
City of Ukiah & Ukiah Valley Sanitation District
Projected Financing Costs for Future Users' Share of Treatment Plant Project
Financing Method
Bond Term (Years)
Projected Interest Rate (1)
Revenue Bond
30
5.00%
Treatment Plant Design & Construction
Project amount/construction contract
Construction management
Change orders
Office engineering during construction
Treatment plant planning
Engineering design
Treatment Plant Financing
Underwriter's Discount (est. 0.75%)
Underwriter Spread
Bond Insurance Premium (est. 0.40%)
Reserve Fund (2)
Reserve Surety Bond (est. 2.5%)
Financial Advisor
Bond & Disclosure Counsel
P'rinting/Mailing/Distribution
Electronic Distribution
Trustee
Escrow Agent
Credit Assessment/Rating
ABAG Issuance Fee
CPA Verification
Computer Analysis
Capitalized Interest
Misc issuance expenses
Total
57,000,000
4,800,000
2,500,000
2,000,000
1,500,000
3,800,000
548,000
0
57O,OOO
0
143,000
40,000
45,000
8,000
1,500
2,600
0
50,000
25,000
1,500
0
15,000
73,049,600
1- Projected interest rate is a conservative estimate by BWA based on recently published municipal rates
2 - Assumes use of a reserve surety bond to satisfy the debt service reserve requirement.
December 26, 2005
Page 4
Table 2 - City of Ukiah and UVSD Connection Fee Calculation
City of Ukiah & Ukiah Valley Sanitation District
Sewer Connection Fee Update
Buy-in Portion of Connection Fee (Value of existing system)
Existing system valuation (1)
Existing ESSUs (2)
$15,2O7,OOO
10,665
Buy-in portion of connection fee $1,426
·
Marginal Portion of Connection Fee (Cost to add additional units of capacity/ESSUs)
Projected treatment plant project costs (3) $73,049,600
Percent of cost allocated to future users (4) 32%
Cost allocated to future users
Pay as you go contribution (5)
Revenue needed from marginal portion of fee
$23,376,000
-612,000
$22,764,00O
Capacity added (in ESSUs) (6)
2,400
Marginal portion of connection fee
$9,485
Updated Sewer Connection Fee (per ESSU)
Buy-in portion
Marginal portion
Proposed Connection Fee per ESSU
1,426
9,485
$10,911
I - BWA estimate using sewer enterprise fixed asset listing
2 - Based on count of existing ESSUs (sewer unit query) as of April 2005
3 - See future users' share of financing table for detail of total project cost
4 - Allocation by design engineers Brown &Caldwell
5 - Reserve funds available from connection fee revenue
6 - ESSUs added through project were calculated by Brown & Caldwell
AGENDA
ITEM NO: 4
MEETING DATE: 01/09/2006
SUMMARY REPORT
SUBJECT:
ADOPTION OF RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF UKIAH AUTHORIZING DOCUMENTS AND ACTIONS RELATED TO
FINANCING OF WASTEWATER SYSTEM IMPROVEMENTS.
As was done with the water bonds recently issued by the City for improvements to the
water system, staff and the City's consultant, Bartle Wells Associates, recommend
combining the City's financing of the wastewater treatment plant project with water and
sewer bond financings by other local governments through the Association of Bay Area
Governments ("ABAG") Competitive Bond Pool. The key advantages of using the
ABAG pooled financing program include:
Low issuance costs
Low interest rates with AAA-rated, tax-exempt, insured revenue bonds
Standardized documentation reduces staff and City Attorney time requirements
Ease of procurement in the selection of financing professionals
The financing is expected to provide the City a net $75.8 million to be used to recapture
the $5.3 million of project expenses paid to date (from wastewater utility operating
reserves and other City reserves) and to provide sufficient funding to complete the
project. The average annual bond payment is projected to increase to a maximum of
$5,000,000 after smaller initial payments. This payment will be made with rate revenue
generated through the rates and connection fees adopted the City and the Ukiah Valley
Sanitation District.
(Continued on Page 2)
RECOMMENDED ACTION: Adoption Of Resolution Of The City Council Of The City Of
Ukiah Authorizing Documents And Actions Related To Financing Of Wastewater
System Improvements.
ALTERNATIVE COUNCIL POLICY OPTIONS: Provide alternative direction to staff.
Requested by:
Prepared by:
Coordinated with:
Attachments:
Mike McCann. Finance Director
Candace Horsley, City Manager; David Rapport, City
Attorney
(1) Resolution, (2) Financing Agreement, (3) Installment Sale
Agreement, (4) Preliminary Offering Statement
Approve~~.~ 'X
Candace Horsley, Cit~*Manager
Meeting date 8/17/05
To participate in this bond pool, a resolution must be adopted for (1) the execution of an
Installment Sale Agreement between the City and ABAG; (2) the approval of the
Financing Agreement between the City and the Ukiah Valley Sanitation District; (3)
authorization of the preliminary official statement, execution of the final official statement
and continuing disclosure certificate; and (4) appointment of professionals and
designation of City officials who are authorized to sign the documents required in
issuing the bonds.
The City officials are authorized to sign those documents as long as they contain terms
which do not exceed limitations or parameters specified in the resolution.
The parameters specified in the resolution include:
The maximum size of the borrowing (not to exceed $85 million)
The maximum average interest rate (not to exceed 5.5% percent per annum)
The maximum underwriter's discount (not to exceed 1% percent)
Under the resolution, the professionals appointed to serve the City in connection with
the transaction include Bartle Wells Associates as financial advisors, Jones Hall as
bond counsel, and Wells Fargo Bank as Trustees.
Representatives of Bartle Wells Associates will be present at the Council meeting to
answer questions.
Important Dates:
Approval of resolution and legal documents January 9, 2006
Anticipated Sale Date February 9, 2006
Anticipated Closing Date (receipt of funds) February 23, 2006
Council Action Requested:
Staff recommends that Council adopt the resolution, authorizing (1) the issuance of
wastewater revenue bonds through ABAG's Water and Wastewater Pooled Financing
Program; (2) authorizing the City to enter into an Installment Sale Agreement with
ABAG; (3) Approving the Preliminary Official Statement relating to the bond issuance;
approving and authorizing the signature of the Financing Agreement between the City
and Ukiah Valley Sanitation District; and (4) authorizing the City Manager to sign
financing documents on behalf of the City.
Attachment #
RESOLUTION NO.__
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
UKIAH AUTHORIZING DOCUMENTS AND ACTIONS
RELATING TO FINANCING OF WASTEWATER
SYSTEM IMPROVEMENTS
WHEREAS,
1. The City presently owns and operates facilities and property for the collection,
treatment and disposal of wastewater within the service area of the City (the
'~Vastewater System"), and the City wishes to provide funds at this time to finance
improvements to the Wastewater System, consisting generally of the rehabilitation,
upgrade and expansion of the existing treatment plant (the "Project"); and
2. The Association of Bay Area Governments (the "Authority") is authorized to
assist local agencies in the financing of facilities and property such as the Project, and
the Authority has proposed to enter into an Installment Sale Agreement (the "Installment
Sale Agreement") with the City and Wells Fargo Bank, National Association, as trustee
(the 'q'rustee"), under which the Authority agrees to provide funding for the Project and
to sell the completed Project to the City in consideration of the agreement by the City to
pay the purchase price of the Project in semiannual installments (the "Installment
Payments"), to be secured by a pledge of and lien on the net revenues from the
Wastewater System; and
3. For the purpose of obtaining the moneys required to finance the Project, the
Authority proposes to assign and transfer certain of its rights under the Installment Sale
Agreement to the Trustee under an Indenture of Trust (the "Authority Bond Indenture"),
between the Authority and the Trustee, under, which the Authority will authorize the
issuance and sale of its 2006 Water and Wastewater Revenue Bonds, Series B (the
"Authority Bonds") which are secured by a pledge of certain revenues including the
Installment Payments; and
4. The City and the Ukiah Valley Sanitation District (the "District") have
previously entered into a Participation Agreement dated July 19, 1995, as amended by
Amendment No. 1 and Amendment No. 2, thereto (as so amended, the "Participation
Agreement"), under which the costs of improving, operating and maintaining the unified
wastewater system are allocated between the City and the District in each year in
accordance with the procedures and methodology set forth therein; and
5. The City and the District wish to enter into a Financing Agreement in order to
ensure that the District will establish rates and charges for the use of the District's
portion of the Wastewater System which are sufficient to enable the District to pay its
share of the costs of the Project as apportioned under the Participation Agreement.
NOW, THEREFORE, the City Council of the City of Ukiah hereby resolves as
follows:
Section 1. Approval of Installment Sale Agreement. The City Council hereby
approves the financing of the Project as described herein. To that end, the City Council
hereby approves the Installment Sale Agreement in substantially the form on file with the
City Clerk, together with any changes therein or additions thereto approved by the City
Manager. The Mayor or the City Manager is hereby authorized and directed for and in
the name and on behalf of the City to execute the final form of the Installment Sale
Agreement, and the City Clerk is hereby authorized and directed to attest to the final
form of the Installment Sale Agreement. The schedule of installment payments attached
to the Installment Sale Agreement shall be determined based on the payments of
principal of and interest on the Authority Bonds. The principal amount of the Installment
Payments shall be an amount which is sufficient to provide not to exceed $85,000,000
for the Project, and the interest rate at which the Installment Payments are computed
shall not exceed 5.50% per annum.
Section 2. Issuance and Sale of Authority Bonds. The City Council hereby
approves the issuance of the Authority Bonds for the purpose of providing funds to
finance the Project, under and in accordance with the Authority Bond Indenture in the
form approved by the Authority. The City Council approves the sale of the Authority
Bonds by competitive sale of the Bonds among a limited number of bidders as provided
by resolution of the governing board of the Authority.
Section 3. Official Statement. The City Council hereby approves and deems
nearly final within the meaning of Rule 15c2-12 of the Securities Exchange Act of 1934,
the portions of the preliminary Official Statement relating to the Authority Bonds which
describe the City, the Wastewater System and the Project, in the form on file with the
City Clerk. The City Manager' or Finance Director (an "Authorized Officer") is hereby
authorized, at the request of the purchaser of the Authority Bonds, to execute an
appropriate certificate affirming the completeness and accuracy of such portions of the
Official Statement. The City does not assume any responsibility or liability for the Official
Statement other than those portions which describe the City, the Wastewater System
and the Project.
Section 4. Approval of Financing Agreement. The City Council hereby
approves the amendment of the Participation Agreement with the District, in accordance
with the Financing Agreement in substantially the form on file with the City Clerk,
together with any changes therein or additions thereto approved by the City Manager.
The Mayor or the City Manager is hereby authorized and directed for and in the name
and on behalf of the City to execute the final form of the Financing Agreement, and the
City Clerk is hereby authorized and directed to attest to the final form of the Financing
Agreement.
Section 5. Official Actions. The Mayor, the City Manager, the Finance
Director, the City Clerk, and all other officers of the City, are authorized and directed in
the name and on behalf of the City to make any and all assignments, certificates,
requisitions, agreements, notices, consents, instruments of conveyance, warrants and
other documents, which they or any of them might deem necessary or appropriate in
order to consummate any of the transactions contemplated by the agreements and
documents approved under this Resolution. Whenever in this Resolution any officer of
the City is directed to execute or countersign any document or take any action, such
execution, countersigning or action may be taken on behalf of such officer by any person
designated by such officer to act on his or her behalf in the case such officer is absent or
unavailable.
Section 6. Effective Date. This Resolution shall take effect from and after the
date of its passage and adoption.
PASSED AND ADOPTED on January 9, 2006, by the following roll call vote:
'AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST:
Mark Ashiku, Mayor
Marie Ulvila, City Clerk
Affachment #
FINANCING AGREEMENT
This FINANCING AGREEMENT (this "Agreement"), dated as of January __, 2006,
is between the CITY OF U KIAH, a municipal corporation and general law city duly
organized and existing under the laws of the State of California (the "City"), and the
UKIAH VALLEY SANITATION DISTRICT, a county sanitation district duly organized and
existing under the Sanitation District Act of the State of California (the "District").
BACKGROUND:
1. The City owns a wastewater treatment plant and a system for the collection
and disposal of wastewater within the City, including sewer mains, laterels and related
facilities. The District owns a system for the collection and trensmission of wastewater
within the District, including sewer mains, laterels and related facilities, and the Distdct
system delivers wastewater collected within the service area of the District to the City's
wastewater treatment plant for treatment and disposal.
2. The City and the District have previously entered into a Participation
Agreement dated July 19, 1995, as amended by Amendment No. 1 and Amendment No. 2,
thereto (as so amended, the "Participation Agreement"), under which the City operetes
and maintains, as a unified system, the wastewater treatment plant, the District's
collection and transmission system and the City's system for the collection and disposal
of wastewater (the "Wastewater System").
3. Under the Participation Agreement, the costs of improving, operating and
maintaining the Wastewater System are apportioned between the City and the Distdct
each year in accordance with procedures and methodology set forth therein.
4. The City is proceeding at this time to finance improvements to the
wastewater treatment plant (the "Project"), and the District has agreed that it will
establish rates and charges for the use of the District's portion of the Wastewater
System which are sufficient to enable the District to pay its share of the costs of such
improvements as apportioned under the Participation Agreement.
5. In order to provide financing for the Project, the Association of Bay Area
Governments (the "Authority") will issue its 2006 Water and Wastewater Revenue
Bonds, Series B, in the aggregate principal amount of $ (the "Authority Bonds"),
and the Authority and the City will enter into an Installment Sale Agreement dated as of
January 1, 2006 (the "Installment Sale Agreement"), under which the City agrees to repay
debt service on the Authority Bonds through the payment of semiannual installment
payments (the "Installment Payments").
6. The City and the District wish to enter into this Agreement for the purpose of
securing the portion of the financing costs which are allocable to the District in
accordance with the Participation Agreement, in the same manner in which the City's
allocable share of such financing costs is secured under the Installment Sale Agreement.
AGREEMENT:
In consideration of the foregoing and the material covenants hereinafter
contained, the City and the District formally covenant, agree and bind themselves as
follows:
SECTION 1. Allocable Share of Payments. A portion of the Installment Payments
shall be apportioned to the District under and in accordance with the procedures and
methodology set forth in the Participation Agreement. Such portion is herein referred to
as the "District Payments."
SECTION 2. Rates and Charges. The District will fix, prescribe and revise rates,
connection fees and other fees and charges for the services and facilities furnished by
the District's portion of the Wastewater System during each fiscal year of the District,
which are at least sufficient, after making allowances for contingencies and error in the
estimates, to yield net revenues (being total revenues less all other costs apportioned to
the District under the Participation Agreement for the operation, maintenance and repair of
the District's portion of the Wastewater System) which are at least equal to 120% of the
aggregate amount of District Payments for such fiscal year. All such revenues will be
collected by the City in accordance with the Participation Agreement, and the City will
apply such revenues to pay the District Payments on behalf of the District. For purpose
of this covenant, transfers from a Rate Stabilization Fund in any fiscal year under Section
3 will be included in the net revenues for such fiscal year.
SECTION 3. Rate Stabilization Fund. The District has the right at any time to
establish a Rate Stabilization Fund to be held by it or by the City and administered in
accordance with this Section 3, for the purpose of stabilizing the rates and charges
imposed by the District with respect to the Wastewater System. From time to time the
District may deposit amounts in the Rate Stabilization Fund, from any source of legally
available funds, as the District may determine.
The District may, but is not be required to, withdraw from any amounts on deposit
in the Rate Stabilization Fund and transfer such amounts to the City in any fiscal year for
the purpose of paying any portion of the District Payments coming due and payable in
such fiscal year. Amounts on deposit in a Rate Stabilization Fund are not pledged to and
do not secure the District Payments. All interest or other earnings on deposits in the Rate
Stabilization Fund will be retained therein or, at the option of the District, be applied for
any other lawful purposes. The District may at any time withdraw any or all amounts on
deposit in the Rate Stabilization Fund and apply such amounts for any other lawful
purposes of the District.
SECTION 4. Additional Debt. The District may not issue or incur any additional
bonds or other obligations having any priority in payment out of the revenues levied
hereunder over the District Payments, or which are secured on a parity with the District
Payments.
SECTION 5. Participation Agreement to Remain in Effect. So long as the
Authority Bonds remain outstanding, the City and the District shall not cancel the
Participation Agreement under Section 7 thereof, or permit the Participation Agreement to
terminate in accordance with its terms, unless the District first either (a) enters into an
agreement with the Authority containing terms and provisions which are substantially
similar to the terms and provisions of the Installment Sale Agreement, or (b) deposits with
the City an amount which is sufficient to prepay its allocable share of the Installment
Payments as such share is determined in accordance with Section 1.
-2-
SECTION 6. Information to Bond Insurer. The District shall cooperate with
, as insurer of the Authority Bonds (the "Bond Insurer") in all regards as may be
required to comply with the terms and provisions of the Bond Insurance Policy relating to
the Authority Bonds, and as required to enable the Trustee to receive payments under
the Bond Insurance Policy. The District shall provide such information to the Bond Insurer
from time to time as the Bond Insurer may reasonably request in writing.
SECTION 7. Governing Law. This Agreement is construed in accordance with
and governed by the laws of the State of California.
SECTION 8. Binding Effect. This Agreement inures to the benefit of and is binding
on the Authority, the City, the District, the Bond Insurer and their respective successors
and assigns, subject to the limitations contained herein. The Authority and the Bond
Insurer are hereby made third party beneficiaries of this Agreement and are entitled to the
benefits of this Agreement with the same force and effect as if the Authority and the
Bond Insurer were each a party hereto.
IN WITNESS WHEREOF, the City and the Distdct have caused this Agreement to be
executed in their respective names by their duly authorized officers, all as of the date
first above written.
CITY OF UKIAH
A'I-I'EST:
By
Mayor
By
City Clerk
UKIAH VALLEY SANITATION DISTRICT
ATTEST:
By
Chairman
By
Clerk of the Board
-3-
Attachment #
Jones Hall, A Professional Law Corporation
Janua~ 3,2006
INSTALLMENT SALE AGREEMENT
Dated as of January 1,2006
among the
ASSOCIATION OF BAY AREA GOVERNMENTS,
as Seller
CITY OF UKIAH,
as Purchaser
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
Relating to
$
Association of Bay Area Governments
2006 Water and Wastewater Revenue Bonds,
Series B
SECTION 1.1.
SECTION 1.2.
SECTION 2.1.
SECTION 2.2.
SECTION 3.1.
SECTION 3.2.
SECTION 3.3.
SECTION 3.4.
SECTION 3.5.
SECTION 3.6.
SECTION 3.7.
SECTION 4.1.
SECTION 4.2.
SECTION 4.3.
SECTION 4.4.
SECTION 4.5.
SECTION 4.6.
SECTION 4.7.
SECTION 4.8.
SECTION 4.9.
SECTION 5.1.
SECTION 5.2.
SECTION 5.3.
SECTION 5.4.
SECTION 5.5.
SECTION 5.6.
SECTION 5.7.
SECTION 5.8.
SECTION 5.9.
SECTION 5.10.
SECTION 5.11.
SECTION 5.12.
TABLE OF CONTENTS
Page
ARTICLE I
Definitions; Rules of Interpretation
Definitions .............................................................................................. 2
Interpretation .......................................................................................... 6
ARTICLE II
Representations, Covenants and Warranties
Representations, Covenants and Warranties of the City ...................... 7
Representations, Covenants and Warranties of Authority ................... 8
ARTICLE III
Issuance of Bonds;
Application of Proceeds
The Bonds ............................................................................................. 9
Deposit and Application of Funds .......................................................... 9
Acquisition and Construction of the Project .......................................... 9
Appointment of City as Agent ................................................................ 9
Plans and Specifications ....................................................................... 9
Project Fund .......................................... : ................................................ 9
Cedificate of Project Completion .......................................................... 10
ARTICLE IV
Sale of Project
Installment Payments
Sale ...................................................................................................... 10
Term ..................................................................................................... 10
Title ...................................................................................................... 10
Installment Payments ........................................................................... 10
Pledge and Application of Net Revenues ............................................ 11
Rate Stabilization Fund ........................................................................ 12
Reserve Fund ...................................................................................... 13
Additional Payments ............................................................................ 13
Special Obligation of the City; Obligations Absolute ............................ 14
ARTICLE V
Covenants of the City
Disclaimer of Warranties ..................................................................... 15
Release and Indemnification Covenants .............................................. 15
Sale or Eminent Domain of Wastewater System ................................. 15
Insurance ............................................................................................. 16
Records and Accounts ....................................................................... 16
Rates and Charges .............................................................................. 16
Superior and Subordinate Obligations ................................................. 17
Issuance of Parity Debt ....................................................................... 17
Operation of Wastewater System in Efficient and Economical
Manner .................................................................................................. 17
Tax Covenants .................................................................................... 18
Continuing Disclosure .......................................................................... 18
Assignment and Amendment Hereof ................................................... 19
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SECTION 5.13.
SECTION 5.14.
SECTION 6.1.
SECTION 6.2.
SECTION 6.3.
SECTION 6.4.
SECTION 6.5.
SECTION 6.6.
SECTION 7.1.
SECTION 7.2.
SECTION 7.3.
SECTION 8.1.
SECTION 8.2.
SECTION 8.3.
SECTION 8.4.
SECTION 8.5.
SECTION 8.6.
SECTION 8.7.
SECTION 8.8.
SECTION 8.9.
SECTION 8.10.
Information to Bond Insurer ................................................................. 19
Further Assurances ............................................................................ 19
ARTICLE VI
Events of Default
Events of Default Defined .................................................................... 20
Remedies on Default ............................................................................ 20
No Remedy Exclusive .......................................................................... 21
Agreement to Pay Attorneys' Fees and Expenses ............................. 21
No Additional Waiver Implied by One Waiver ....................................... 22
Trustee, the Bond Insurer and Bond Owners to Exercise
Rights .................................................................................................... 22
ARTICLE VII
Prepayment of Installment Payments
Security Deposit .................................................................................. 22
Optional Prepayment ............................................................................ 22
Credit for Amounts on Deposit ............................................................ 23
ARTICLE VIII
Miscellaneous
Investment of Funds ............................................................................ 23
Notices ................................................................................................. 23
Governing Law .................................................................................... 24
Binding Effect ...................................................................................... 24
Severability of Invalid Provisions ......................................................... 24
Article and Section Headings and References ................................... 24
Payment on Non-Business Days ......................................................... 25
Execution of Counterparts ................................................................... 25
Waiver of Personal Liability ................................................................. 25
Bond Insurer as Third Party Beneficiary ............................................. 25
APPENDIX A
APPENDIX B
Schedule Of Installment Payments
Description Of Project
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INSTALLMENT SALE AGREEMENT
This INSTALLMENT SALE AGREEMENT (this "Agreement"), dated as of January
1,2006, is among the ASSOCIATION OF BAY AREA GOVERNMENTS, a joint exercise of
powers authority duly organized and existing under the laws of the State of California
(the "Authority"), as seller, the CITY OF UKIAH, a municipal corporation duly organized
and existing under the laws of the State of California (the "City"), as purchaser, and
WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America, as trustee (the
"Trustee").
BACKGROUND:
1. The City presently owns and operates facilities and property for the
collection, treatment and disposal of wastewater within the service area of the City (the
"Wastewater System"), and the City wishes to provide funds at this time to finance
improvements to the Wastewater System consisting generally of the rehabilitation,
upgrade and expansion of the existing treatment plant (the "Project").
2. The Authority has the power to assist the City in the financing of facilities and
property useful to the City, and the Authority has proposed to enter into this Agreement
with the City under which the Authority has agreed to provide funding for the Project and
sell the completed Project to the City in consideration of the agreement by the City to pay
the purchase price of the Project in semiannual installments (the "Installment Payments").
3. For the purpose of obtaining the moneys required to finance the Project in
accordance with the terms hereof, the Authority has assigned and transferred certain of
its rights under this Agreement to the Trustee under an Indenture of Trust dated as of
January 1,2006, between the Authority and the Trustee, under which the Authority has
authorized the issuance of its 2006 Water and Wastewater Revenue Bonds, Series B in
the aggregate principal amount of $ (the "Bonds") which are secured by a
pledge of certain revenues including the Installment Payments.
4. The City has determined to secure the Installment Payments with a pledge of
and lien on the Net Revenues from the Wastewater System, on a parity with the pledge
and lien which secures the loan obligations of the City under Contract No. N-808-550-0
dated August 15, 1994, between the City and the State of California, acting by and
through the State Water Resources Control Board.
5. The payment of principal of and interest on the Bonds is insured by a
municipal bond insurance policy issued by XL Capital Assurance Inc. (the "Bond
Insurer"), and the Bond Insurer will issue its debt service reserve insurance policy for the
account of the reserve fund which is established hereunder.
AGREEMENT:
In consideration of the foregoing and the material covenants hereinafter
contained, the City, the Trustee and the Authority formally covenant, agree and bind
themselves as follows:
ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION
SECTION 1.1. Definitions. Unless the context clearly otherwise requires 'or
unless otherwise defined herein, the capitalized terms in this Agreement have the
respective meanings given them in Appendix A to the Indenture. In addition, when used
in this Agreement the following terms have the following defined meanings:
"Additional Revenues" means, with respect to the issuance of any Parity Debt,
any or all of the following amounts:
(i)'
An allowance for Net Revenues from any additions or improvements
to or extensions of the Wastewater System to be made by the City
following the issuance of such Parity Debt, in an amount equal to
90% of the estimated additional average annual Net Revenues to be
derived in the first full year of operation of such additions,
improvements and extensions, all as shown by the certificate or
opinion of a Fiscal Consultant.
(ii)
An allowance for Net Revenues arising from any increase in the
rates and charges made for service from the Wastewater System
which have been adopted prior to the incurring of such Parity Debt
but which, during all or any part of the most recent completed Fiscal
Year for which audited financial statements of the City are available,
or for any more recent consecutive 12 month period selected by the
City under Section 5.8(b), was not in effect, in an amount equal to
the total 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 12 month period, all as shown by the
certificate or opinion of a Fiscal Consultant.
"City Representative" means the Mayor, the City Manager or the Finance Director
of the City, or any other person authorized by resolution of the City Council of the City to
act on behalf of the City under or with respect to this Agreement.
"District" means the Ukiah Valley Sanitation District, a county sanitation district
duly organized and existing under the Sanitation District Act of the State of California.
"Event of Default" means an event of default hereunder, as described in Section
6.1.'
"Financing Agreement" means the Financing Agreement between the City and the
District dated January 1, 2006, including any amendments thereto or modifications
thereof.
"Fiscal Consultant" means any consultant or firm of such consultants appointed
by the City and who, or each of whom: (a) is judged by the City to have experience in
matters relating to the financing of Wastewater System enterprises; (b) is in fact
independent and not under domination of the City; (c) does not have any substantial
interest, direct or indirect, with the City other than as purchaser of the Bonds or any
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Parity Debt; and (d)is not connected with the City as an officer or employee of the City,
but who may be regularly retained to make reports to the City.
"Fiscal Year" means the twelve-month period beginning on July 1 of any year and
ending on June 30 of the next succeeding year, or any other twelve-month period
selected by the City as its fiscal year.
"Gross 'Revenues" means all gross charges (including surcharges, if any)
received for, and all other gross income and receipts derived by the City from, the
ownership and operation of the Wastewater System or otherwise arising from the
Wastewater System, including but not limited to:
(a)
all amounts levied by the City as a fee for connecting to the
Wastewater System, as such fee is established from time to lime
under the laws of the State of California;
(b)
all income, rents, rates, fees, capital improvement fees (including
facilities capacity and pump zone fees), charges or other moneys
derived from the services, facilities and commodities sold (including
recycled water), furnished or supplied through the facilities of the
Wastewater System,
(d)
the earnings on and income derived from the investment of such
income, rents, rates, fees, charges or other moneys to the extent
that the use of such earnings and income is limited by or under
applicable law to the Wastewater System,
(e)
the proceeds derived by the City directly or indirectly from the sale,
lease or other disposition of a part of the Wastewater System as
permitted in this Agreement, and
(f) amounts collected by the City under the Financing Agreement.
The term "Gross Revenues" does not include (i) customers' deposits or any other
deposits subject to refund until such deposits have become the property of the City, and
(ii) the proceeds of any special assessments or special taxes levied upon real property
within any improvement City for the purpose of paying special assessment bonds or
special tax obligations of the City relating to the Wastewater System.
"Installment Payment" means all payments required to be paid by the City on any
date under Section 4.4(a), including any amounts payable upon delinquent installments
and including any prepayment thereof under Section 7.2.
"Installment Payment Date" means, with respect to any Interest Payment Date, the
5th Business Day preceding such Interest Payment Date.
"Installment Payment Fund" means the fund which is established and held by the
Trustee under Section 4.4(b).
"Maximum Annual Debt Service" means, as of the date of any calculation, the
maximum sum obtained for the current or any future Fiscal Year:
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(a)
the aggregate amount of the Installment Payments coming due and
payable in such Fiscal Year hereunder, except to the extent payable
from any security deposit under Section 7.1;
(b)
the principal amount of all outstanding Parity Debt, if any, coming due
and .payable by their terms in such Fiscal Year, provided that if any
such issue of Parity Debt has principal coming due and payable
solely at maturity, such principal shall be deemed to be amortized
over the full term of such Parity Debt in a manner that results in
approximately equal annual installments of principal and interest in
each Fiscal Year; and
(c)
the amount of interest which would be due during such Fiscal Year
on the aggregate principal amount of all outstanding Parity Debt, if
any, which would be outstanding in such Fiscal Year if such Parity
Debt are retired as scheduled; provided, however, that with respect
to any Parity Debt which bear interest at an adjustable rate, such
interest shall be calculated at an assumed rate equal to the average
rate of interest per annum for each of the five previous whole
calendar years as shown by the J. J. Kenny Index (or, in the event
and to the extent such index is not maintained for all or any portion
of such period, any similar index of variable rate interest for tax-
exempt obligations as may be selected by the City in its sole
discretion).
"Net Revenues" means, for any period, an amount equal to all of the Gross
Revenues received during such period minus the amount required to pay all Operation
and Maintenance Costs becoming payable during such period.
"Operation and Maintenance City means the reasonable and necessary costs paid
or incurred by the City for maintaining and operating the Wastewater System, determined
in accordance with generally accepted accounting principles, including but not limited to
(a) all reasonable expenses of management and repair and other expenses necessary to
maintain and preserve the Wastewater System in good repair and working order, and (b)
all administrative costs of the City that are charged directly or apportioned to the
operation of the Wastewater System, such as salaries and wages of employees,
overhead, taxes (if any) and insurance. "Operating and Maintenance Costs" do not
include (i) administrative costs of the Certificates which the City is required to pay
hereunder, (ii) payments of debt service on bonds, notes or other obligations issued by
the City with respect to the Wastewater System, (iii) depreciation, replacement and
obsolescence charges or reserves therefor, and (iv) amortization of intangibles or other
bookkeeping entries of a similar nature.
"Overdue Rate" means the highest rate of interest represented by any of the
Outstanding Bonds.
"Parity Debt Documents" means, collectively, the indenture of trust, trust
agreement or other document authorizing the issuance of any Parity Debt or any
securities which evidence Parity Debt.
"Parity Debt" means any bonds, notes, leases, installment sale agreements or
other obligations of the City payable from and secured by a pledge of and lien upon any
of the Net Revenues on a parity with the Installment Payments, entered into or issued
under and in accordance with Section 5.8.
"Participation Agreement" means the Participation Agreement between the City
and the District dated July 19, 1995, as amended by Amendment No. 1 and Amendment
No. 2, thereto, including any further amendments thereto or modifications thereof.
"Prior State Loan" means the loan obligations of the City under Contract No. 4-808-
550-0 dated August 15, 1994, between the City and the State of California, acting by and
through the State Water Resources Control Board, in the aggregate original principal
amount of $6,592,944.
"Project" means the facilities, improvements and other property described more
fully in Appendix B attached hereto, as that Appendix may be amended from time to time.
"Project Costs" means, with respect to the Project, all costs of the acquisition,
construction and installation thereof which are paid from moneys on deposit in the Project
Fund, including but not limited to:
(a)
all costs required to be paid to any person under the terms of any
agreement for or relating to the acquisition, construction and
installation of the Project;
(b) obligations incurred for labor and materials in connection with the
acquisition, construction and installation of the Project;
(c)
the cost of performance or other bonds and any and all types of
insurance that may be necessary or appropriate to have in effect in
connection with the acquisition, construction and installation of the
Project;
(d)
all costs of engineering, architectural, legal, environmental, design
and other consulting services, including the actual out-of-pocket
costs for test borings, surveys, estimates, plans and specifications
and preliminary investigations therefor, development fees, sales
commissions, and for supervising construction, as well as for the
performance of all other duties required by or consequent to the
proper acquisition, construction and installation of the Project;
(e)
any sums required to reimburse the City for advances made for any
of the above items or for any other costs incurred and for work
done which are properly chargeable to the acquisition, construction
of the Project.
(f) all financing costs incurred in connection with the acquisition,
construction and installation of the Project; and
(g) the interest components of the Installment Payments during the
period of acquisition, construction and installation of the Project.
"Project Fund" means the fund by that name established and held by the City
under Section 3.6.
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"Qualified Reserve Fund Credit Instrument" means the Municipal Bond Debt
Service Reserve Insurance Policy issued by the Bond Insurer and deposited with the
Trustee on the Closing Date for the credit of the Reserve Fund under Section 4.7.
"Rate Stabilization Fund" means any fund established and held by the City as a
fund for the stabilization of rates and charges imposed by the City with respect to the
Wastewater System, which fund is established, held and maintained in accordance with
Section 4.6.
"Reserve Fund" means the fund by that name established and held by the Trustee
under Section 4.7.
"Reserve Requirement" means, as of the date of calculation, an amount equal to
the maximum amount of Installment Payments payable by the City in the current or any
future Fiscal Year. As of the Closing Date, the Reserve Requirement is equal to
$
"Wastewater Fund" means the fund or funds established and held by the City
with respect to the Wastewater System for the receipt and deposit of Gross Revenues.
"Wastewater System" means the entire system of the City for the collection,
treatment and disposal of wastewater within the service area of the City, including but
not limited to all facilities, properties, lands, rights, entitlements and other property useful
in connection therewith, together with all extensions thereof and improvements thereto at
any time acquired, constructed or installed by the City. The term "Wastewater System"
also includes those facilities of the Ukiah Valley Sanitation District which are operated
and maintained by the City under the Participation Agreement.
SECTION 1.2. Interpretation.
(a) Unless the context otherwise indicates, words expressed in the singular
shall include the plural and vice versa and the use of the neuter, masculine, or feminine
gender is for convenience only and includes the neuter, masculine or feminine gender, as
appropriate.
(b) Headings of articles and sections herein and the table of contents hereof are
solely for convenience of reference, do not constitute a part hereof and do not affect the
meaning, construction or effect hereof.
(c) All references herein to "Articles," "Sections" and other subdivisions are to
the corresponding Articles, Sections or subdivisions of this Agreement; the words
"herein," "hereof," "hereby," "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Article, Section or subdivision hereof.
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ARTICLE II
REPRESENTATIONS, COVENANTS AND
WARRANTIES
SECTION 2.1. Representations, Covenants and Warranties of the City. The City
represents, covenants and warrants to the Authority and the Bond Insurer as follows:
(a)
Due Organization and Existence. The City is a municipal corporation
duly organized and validly existing under the laws of the State, has
full legal right, power and authority under said laws to enter into this
Agreement and to carry out and consummate all transactions
contemplated hereby and thereby, and by proper action the City
Council of the City has duly authorized the execution and delivery of
this Agreement.
(b) Due Execution. The representatives of the City executing this
Agreement are fully authorized to execute the same.
(c)
Valid, Binding and Enforceable Obligations. This Agreement has
been duly authorized, executed and delivered by the City and
constitutes the legal, valid and binding agreement of the City
enforceable against the City in accordance with its terms; except as
the enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors'
rights heretofore or hereafter enacted and except as such
enforceability may be subject to the exercise of judicial discretion in
accordance with principles of equity.
(d)
No Conflicts. The execution and delivery of this Agreement, the
consummation of the transactions herein contemplated and the
fulfillment of or compliance with the terms and conditions hereof, do
not and will not conflict with or constitute a violation or breach of or
default (with due notice or the passage of time or both) under any
applicable law or administrative rule or regulation, or any applicable
court or administrative decree or order, or any indenture, mortgage,
deed of trust, lease, contract or other agreement or instrument to
which the City is a party or by which it or its properties are
otherwise subject or bound, or result in the creation or imposition of
any prohibited lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of the City, which
conflict, violation, breach, default, lien, charge or encumbrance
would have consequences that would materially adversely affect
the consummation of the transactions contemplated by this
Agreement or the financial condition, assets, properties or
operations of the City, including but not limited to the performance of
the City's obligations under this Agreement.
(e)
Consents and Approvals. No consent or approval of any trustee or
holder of any indebtedness of the City or of the voters of the City,
and no consent, permission, authorization, order or license of, or
filing or registration with, any governmental authority is necessary in
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connection with the execution and delivery of this Agreement or the
consummation of any transaction herein contemplated, except as
have been obtained or made and as are in full force and effect.
(f)
No Litigation. To the best knowledge of the undersigned
representatives of the City, there is no action, suit, proceeding,
inquiry or investigation before or by any court or federal, state,
municipal or other governmental authority pending or, to the
knowledge of the City after reasonable investigation, threatened
against or affecting the City or the assets, properties or operations
of the City which, if determined adversely to the City or its interests,
would have a material and adverse effect upon the consummation of
the transactions contemplated by or the validity of this Agreement or
upon the financial condition, assets, properties or operations of the
City, and the City is not in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental authority, which
default might have consequences that would materially adversely
affect the consummation of the transactions contemplated by this
Agreement, or the financial conditions, assets, properties or
operations of the City,. including but not limited to the payment and
performance of the City's obligations under this Agreement.
(g)
Prior Indebtedness. The City has not issued or incurred any
'obligations which are currently outstanding having any priority in
payment out of the Gross Revenues or the Net Revenues over the
payment of the Installment Payments as provided herein, other than
the Prior State Loan.
SECTION 2.2. Representations, Covenants and Warranties of Authority. The
Authority represents, covenants and warrants to the City and the Bond Insurer as
follows:
(a)
Due Organization and Existence. The Authority is a joint exercise of
powers authority organized and existing under the laws of the
State, and has power to enter into this Agreement and to perform
the duties and obligations imposed on it hereunder and thereunder.
The Executive Board of the Authority has duly authorized the
execution and delivery of this Agreement.
(b) Due Execution. The representatives of the Authority executing this
Agreement are fully authorized to execute the same.
(c)
Valid, Binding and Enforceable Obligations. This Agreement have
been duly authorized, executed and delivered by the Authority and
constitute the legal, valid and binding agreements of the Authority
with the Authority, enforceable against the Authority in accordance
with their respective terms; except as the enforceability thereof may
be subject to bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors' rights heretofore or hereafter
enacted and except as such enforceability may be subject to the
exercise of judicial discretion in accordance with principles of
equity.
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ARTICLE III
ISSUANCE OF BONDS;
APPLICATION OF PROCEEDS
SECTION 3.1. The Bonds. The Authority shall issue the Bonds under the
Indenture in the aggregate principal amount of $ The City hereby approves
the Indenture, the assignment thereunder to the Trustee of certain rights of the Authority,
and the issuance of the Bonds.
SECTION 3.2. Deposit and Application of Funds. On the Closing Date, the
Trustee shall transfer a portion of the proceeds of sale of the Bonds in the amount of
$ to the City for deposit into the Project Fund, to be applied to finance the
acquisition, construction and improvement of the Project as provided in this Agreement.
SECTION 3.3. Acquisition and Construction of the Project. The City, as agent of
the Authority under Section 3.4, hereby agrees with due diligence to supervise and
provide for, or cause to be supervised and provided for, the acquisition, construction and
installation of the Project in accordance with the plans and specifications, purchase
orders, construction contracts and other documents relating thereto and approved by the
City under all applicable requirements of law. All contracts for, and all work relating to,
the acquisition, construction and installation of the Project are subject to all applicable
provisions of law relating to the acquisition and construction of public works by the City.
The failure to complete the Project by the estimated completion date thereof does not
constitute an Event of Default hereunder or a grounds for termination hereof, nor will
such failure result in the diminution, abatement or extinguishment of the obligations of the
City hereunder to pay the Installment Payments when due. The Authority has no
responsibility, and shall incur no liability or obligations, for the performance by the City of
its obligations under this Section 3.3.
SECTION 3.4. Appointment of City as Agent. The Authority hereby appoints the
City as its agent to carry out all phases of the acquisition, construction and installation of
the Project under and in accordance with the provisions hereof. The City hereby accepts
such appointment and assumes all rights, liabilities, duties and responsibilities of the
Authority regarding the acquisition, construction and installation of the Project. As agent
of the Authority hereunder, the City will enter into, administer and enforce all purchase
orders or other contracts relating to the Project.
SECTION 3.5. Plans and Specifications. The City has the right to specify the
exact scope, nature and identification of the Project and the respective components
thereof. Before any payment is made for the Project or any component thereof from
amounts on deposit in the Project Fund, the City must prepare detailed plans and
specifications relating thereto. The City may from time to time amend any such plans and
specifications, and thereby change or modify the description of the Project or any
component thereof.
SECTION 3.6. Project Fund. The City shall establish and maintain a separate fund
(the "Project Fund") from which the City shall make disbursements from time to time to pay
Project Costs (or to reimburse the City for payment of Project Costs). The City shall
maintain accurate records showing all disbursements from the Project Fund, including the
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amount of each disbursement, the amount to whom each disbursement is made and the
purpose for which funds are disbursed.
Upon the filing by the City of a written certificate of a City Representative under
Section 3.7 stating that the Project has been substantially completed, the City will
withdraw all amounts remaining on deposit in the Project Fund and transfer such amounts
to the Trustee for deposit in the Installment Payment Fund. If and to the extent so directed
in writing by a City Representative, the Trustee shall apply all or a portion of the amounts
so transferred from the Project Fund to the Installment Payment Fund to the prepayment
of Installment Payments under Section 7.2.
SECTION 3.7. Certificate of Project Completion. Upon the completion of the
Project, but in any event not later than 30 days following such completion, the City
Representative must execute and deliver to the Authority, the Bond Insurer and the
Trustee a written certificate of the City Representative which (a) states that the
construction of the Project has been substantially completed, (b) identifies the total
Project Costs thereof, and (c) identifies the amounts, if any, to be reserved in the Project
Fund for payment of future Project Costs.
ARTICLE IV
SALE OF PROJECT;
INSTALLMENT PAYMENTS
SECTION 4.1. Sale. The Authority hereby sells the Project to the City and the City
hereby purchases the Project from the Authority, upon the terms and conditions set forth
in this Agreement.
SECTION 4.2. Term. The Term of this Agreement commences on the Closing
Date, and ends on February 1, 2036, or such later or earlier date on which all of the
Installment Payments, Additional Payments and other amounts due hereunder have been
paid or prepaid. Notwithstanding the foregoing provisions of this Section 4.2, the Term of
this Agreement will not end so long as any amounts are owed to the Bond Insurer with
respect to the Bond Insurance Policy.
SECTION 4.3. Title. Title to the Project, and each component thereof, will be
deemed conveyed by the Authority to and vested in the City upon the completion of the
acquisition, construction and installation thereof. The Authority and the City will execute,
deliver and cause to be recorded any and all documents reasonably required by the City
to consummate such transfer of title.
SECTION 4.4. Installment Payments.
(a) Obligation to Pay. The City hereby agrees to pay to the Authority, as the
purchase price of the Project hereunder, the aggregate principal amount of
$ together with interest (calculated on the basis of a 360-day year of
twelve 30-day months) on the unpaid principal balance thereof, payable in semiannual
Installment Payments in the respective amounts and on the respective Installment Payment
Dates specified in Appendix A. The Installment Payments shall be secured by and
payable solely from the sources specified in Section 4.5.
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Notwithstanding anything herein or in the Indenture to the contrary, amounts paid
by the Bond Insurer under the Bond Insurance Policy do not relieve the City from its
obligations hereunder to pay the Installment Payments when due.
(b) Installment Payment Fund. The Trustee shall establish and maintain a
separate fund to be known as the "City of Ukiah 2006 Installment Payment Fund". On
each Installment Payment Date, the City shall deposit with the Trustee an amount which,
together with amounts then held by the Trustee in the Installment Payment Fund, is equal
to the full amount of such Installment Payment coming due and payable on such
Installment Payment Date. On each Installment Payment Date, the Trustee shall withdraw
the full amount of the Installment Payment coming due and payable on such Installment
Payment Date and transfer such amount to the Revenue Fund which is established and
held by the Trustee under the Indenture.
(c) Effect of Prepayment. If the City prepays all remaining Installment Payments
in full under Section 7.2, the City's obligations under this Agreement will thereupon cease
and terminate, including but not limited to the City's obligation to pay Installment Payments
under this Section 4.4; provided, however, that the City's obligations to compensate and
indemnify the Trustee under Sections 4.8 and 5.2 will survive such prepayment. If the
City prepays the Installment Payments in part but not in whole under Section 7.2 or
Section 7.3, the principal component of each succeeding Installment Payment will be
reduced as provided in such Sections, and the interest component of each remaining
Installment Payment will be reduced by the aggregate corresponding amount of interest
which would otherwise be payable on the Bonds which are thereby redeemed under the
applicable provisions of Section 4.01 of the Indenture.
(d) Rate on Overdue Payments. If the City fails to make any of the payments
required in this Section 4.4 and Section 4.8, the payment in default will continue as an
obligation of the City until fully paid, and the City shall pay the same with interest thereon,
from the date of default to the date of payment, at the Overdue Rate.
(e) Assignment. The City understands and agrees that certain rights of the
Authority, including but not limited to the right of the Authority to receive payment of the
Installment Payments, have been assigned by the Authority to the Trustee in trust under
the Indenture, for the benefit of the Bond Insurer and the Owners of the Bonds, and the
City hereby consents to such assignment.
SECTION 4.5. Pledge and Application of Net Revenues.
(a) Pledge. All of the Net Revenues and all moneys on deposit in any of the
funds and accounts established and held by the Trustee under the Indenture are hereby
irrevocably pledged to the punctual payment of the Installment Payments. Such pledge
constitutes a security interest in and lien on the Net Revenues and such other moneys for
the payment of the Installment Payments in accordance with the terms hereof, on a parity
with the pledge and lien which secures the Prior State Loan and any Parity Debt.
(b) Deposit of Net Revenues Into Wastewater Fund; Transfers to Make
Payments. The City has heretofore established the Wastewater Fund, which the City
agrees to continue to hold and maintain for the purposes and uses set forth herein. The
City will deposit all of the Gross Revenues in the Wastewater Fund immediately upon
receipt, and will apply the amounts in the Wastewater Fund as set forth in this Agreement
and in any Parity Debt Documents. In addition to the transfers required to be made the
Prior State Loan and under any Parity Debt Documents, the City will apply amounts on
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deposit in the Wastewater Fund to pay when due the following amounts in the following
order of priority:
(i) all Operation and Maintenance Costs;
(ii) the Installment Payments and all payments of principal of and interest
on the Prior State Loan and any Parity Debt;
to the Trustee the amount of any deficiency in the Reserve Fund and
in any reserve fund established for any Parity Debt, the notice of
which deficiency has been to the City;
(iv) any other payments required to comply with the provisions of this
Agreement, the Prior State Loan and any Parity Debt Documents; and
(v) any other purposes authorized under subsection (d) of this Section.
(c) No Preference or Priority. Payment of the Installment Payments and the
principal of and interest on the Prior State Loan and any Parity Debt shall be made without
preference or priority among the Installment Payments, the Prior State Loan and such
Parity Debt. If the amount of Net Revenues on deposit in the Wastewater Fund are any
time insufficient to enable the City to pay when due the Installment Payments, the Prior
State Loan and the principal of and interest on any Parity Debt, such payments shall be
made on a pro rata basis.
(d) Other Uses of Net Revenues Permitted. The City will manage, conserve and
apply the Net Revenues on deposit in the Wastewater Fund in such a manner that all
deposits required to be made under the preceding subsection (b) are made at the times
and in the amounts so required. Subject to the foregoing sentence, so long as no Event
of Default has occurred and is continuing hereunder, the City may use and apply moneys
in the Wastewater Fund for (i) the payment of any subordinate obligations or any
unsecured obligations, (ii) the acquisition and construction of improvements to the
Wastewater System, (iii) the prepayment of any other obligations of the City relating to
the Wastewater System, or (iv) any other lawful purposes of the City.
(e) Budget and Appropriation of Installment Payments. During the Term of this
Agreement, the City will adopt all necessary budgets and make all necessary
appropriations of the Installment Payments from the Net Revenues. If any Installment
Payment requires the adoption by the City of any supplemental budget or appropriation,
the City will promptly adopt the same. The covenants on the part of the City contained in
this subsection (e) are duties imposed by law and it is the duty of each and every public
official of the City to take such actions and do such things as are required by law in the
performance of the official duty of such officials to enable the City to carry out and
perform the covenants and agreements in this subsection (e).
SECTION 4.6. Rate Stabilization Fund. The City has the right at any time to
establish a fund to be held by it and administered in accordance with this Section 4.6, for
the purpose of stabilizing the rates and charges imposed by the City with respect to the
Wastewater System. From time to time the City may deposit amounts in the Rate
Stabilization Fund, from any source of legally available funds, including but not limited to
Net Revenues which are released from the pledge and lien which secures the Installment
Payments and any Parity Debt, as the City may determine.
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The City may, but is not be required to, withdraw from any amounts on deposit in
the Rate Stabilization Fund and deposit such amounts in the Wastewater Fund in any
Fiscal Year for the purpose of paying the Installment Payments or the principal of and
interest on any Parity Debt coming due and payable in such Fiscal Year. Amounts so
transferred from the Rate Stabilization Fund to the Wastewater Fund in any Fiscal Year
will constitute Gross Revenues for such Fiscal Year (except as otherwise provided
herein), and will be applied for the purposes of the Wastewater Fund. Amounts on
deposit in the Rate Stabilization Fund are not pledged to and do not secure the Installment
Payments or any Parity Debt. All interest or other earnings on deposits in the Rate
Stabilization Fund will be retained therein or, at the option of the City, be applied for any
other lawful purposes. The City may any time to withdraw any or all amounts on deposit
in the Rate Stabilization Fund and apply such amounts for any other lawful purposes of
the City.
SECTION 4.7. Reserve Fund. The Trustee shall establish and maintain a special
fund designated as the "City of Ukiah 2006 Reserve Fund" to be held by the Trustee in
trust for the benefit of the City and the Owners of the Bonds. Amounts in the Reserve
Fund will be held in trust as a reserve for the payment when due of the Installment
Payments on behalf of the City. Semiannually on or prior to each Installment Payment
Date, the Trustee shall transfer any moneys in the Reserve Fund in excess of the
Reserve Requirement to the Installment Payment Fund to be credited towards the
Installment Payment coming due and payable on such Installment Payment Date. If on any
Installment Payment Date the moneys available in the Installment Payment Fund are not at
least equal to the amount of the Installment Payment then coming due and payable, the
Trustee shall apply the moneys available in the Reserve Fund to make such payments on
behalf of the City by transferring the amount necessary for this purpose to the Installment
Payment Fund. Upon the termination of this Agreement and so long as all Installment
Payments and other amounts due hereunder have been paid in full, the Trustee shall
withdraw all amounts in the Reserve Fund and, at the written request of the City, pay
those amounts to the City. Amounts on deposit in the Reserve Fund shall be invested by
the Trustee at the written direction of the City in accordance with Section 8.1.
On the Closing Date, the Trustee shall take delivery of the Qualified Reserve Fund
Credit Instrument and shall credit it to the account of the Reserve Fund. The Trustee shall
draw amounts under the Qualified Reserve Fund Credit Instrument in accordance with
the terms thereof for the purpose of making transfers to the Installment Payment Fund as
required by the preceding paragraph. On the Closing Date, the City shall execute a
Financial Guaranty Agreement with the Bond Insurer for the purpose of securing the
obligations of the City in respect of the Qualified Reserve Fund Credit Instrument. Upon
the expiration of the Qualified Reserve Fund Credit Instrument, the City will either (a)
replace such Qualified Reserve Fund Credit Instrument with a new Qualified Reserve
Fund Credit Instrument, or (b) deposit with the Trustee an amount of funds equal to the
Reserve Requirement, to be derived from any source of legally available funds of the
city.
SECTION 4.8. Additional Payments. In addition to the Installment Payments, the
City shall pay when due the following amounts to the following parties:
(a)
to the Authority, all costs and expenses incurred by the Authority to
third parties which are required to comply with the provisions of this
Agreement and the Indenture, to the extent the Authority determines
that such costs and expenses are allocable to the City;
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(b)
to the Authority, an annual administrative fee equal to .01% of the
outstanding principal balance of the Installment Payments, in an
amount not to exceed $1,000, which fee shall be calculated and
billed in advance to the City by the Trustee not later than February 15
in each year based on the outstanding principal balance of the
Installment Payments as of the previous February 2, such amount to
be billed without the need for an invoice or other statement from the
Authority; and
(c)
to the Trustee upon request therefor, all of its reasonable costs and
expenses payable as a result of the performance of and compliance
with its duties hereunder or under the Indenture or any related
documents.
The Additional Payments are payable from, but are not secured by a pledge or lien
upon, the Net Revenues. The rights of the Trustee and the Authority under this Section
4.8, and the obligations of the City under this Section 4.8, survive the termination of this
Agreement.
SECTION 4.9. Special Obligation of the City; Obligations Absolute. The City's
obligation to pay the Installment Payments and any other amounts coming due and
payable hereunder is a special obligation of the City limited solely to the Net Revenues.
Under no circumstances is the City required to advance moneys derived from any source
of income other than the Net Revenues and other sources specifically identified herein
for the payment of the Installment Payments and such other amounts. No other funds or
property of the City are liable for the payment of the Installment Payments and any other
amounts coming due and payable hereunder.
The obligations of the City to make the Installment Payments from the Net
Revenues and to perform and observe the other agreements contained herein are
absolute and unconditional and are not subject to any defense or any right of set-off,
counterclaim or recoupment arising out of any breach by the Authority or the Trustee of
any obligation to the City or otherwise with respect to the Wastewater System, whether
hereunder or otherwise, or out of indebtedness or liability at any time owing to the City by
the Authority or the Trustee. Until such time as all of the Installment Payments, all of the
Additional Payments and all other amounts coming due and payable hereunder have been
fully paid or prepaid, the City (a) will not suspend or discontinue payment of any
Installment Payments, Additional Payments or such other amounts, (b) will perform and
observe all other agreements contained in this Agreement, and (c) will not terminate this
Agreement for any cause, including, without limiting the generality of the foregoing, the
occurrence of any acts or circumstances that may constitute failure of consideration,
eviction or constructive eviction, destruction of or damage to the Wastewater System,
failure to complete the acquisition and construction of the Project by the estimated
completion date thereof, default by the District in any of its obligations under the
Participation Agreement or the Financing Agreement, sale of the Wastewater System, the
taking by eminent domain of title to or temporary use of any component of the
Wastewater System, commercial frustration of purpose, any change in the tax law or
other laws of the United States of America or the State or any political subdivision of
either thereof or any failure of the Authority or the Trustee to perform and observe any
agreement, whether express or implied, or any duty, liability or obligation arising out of or
connected with the Indenture or this Agreement.
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ARTICLE V
COVENANTS OF THE CrrY
SECTION 5.1. Disclaimer of Warranties. The Trustee and the Authority make no
warranty or representation, either express or implied, as to the value, design, condition,
merchantability or fitness for any particular purpose or fitness for the use contemplated
by the City of the Project or any component thereof, or any other representation or
warranty with respect to any of the Project or any component thereof. The Trustee and
the Authority are not liable for incidental, indirect, special or consequential damages, in
connection with or arising out of this Agreement or the Indenture for the existence,
furnishing, functioning or use of the Project.
SECTION 5.2. Release and Indemnification Covenants. The City agrees to
indemnify the Authority, the Trustee and the Bond Insurer, and their respective officers,
agents, successors and assigns, against all claims, losses and damages, including legal
fees and expenses, arising out of (a) the use, maintenance, condition or management of,
or from any work or thing done on or about the Wastewater System by the City, (b) any
breach or default on the part of the City in the performance of any of its obligations under
this Agreement or the Indenture, (c) any act or omission of the City or of any of its
agents, contractors, servants, employees or licensees with respect to the Wastewater
System, and (d) any act or omission of any lessee of the City with respect to the
Wastewater System. No indemnification is made under this Section 5.2 or elsewhere in
this Agreement for willful misconduct or gross negligence under this Agreement by the
Authority, the Trustee or the Bond Insurer, or their respective members, officers, agents,
employees, successors or assigns. The provisions of this Section 5.2 survive the
expiration of the Term of this Agreement.
SECTION 5.3. Sale or Eminent Domain of Wastewater System. Except as
provided herein, the City covenants that the Wastewater System shall not be
encumbered, sold, leased, pledged, any charge placed thereon, or otherwise disposed
of, as a whole or substantially as a whole if such encumbrance, sale, lease, pledge,
charge or other disposition would materially impair the ability of the City to pay the
Installment Payments or the principal of or interest on any Parity Debt, or would materially
adversely affect its ability to comply with the terms of this Agreement or any Parity Debt
Documents. The City may not enter into any agreement which impairs the operation of
the Wastewater System or any part of it necessary to secure adequate Net Revenues to
pay the Installment Payments or any Parity Debt, or which otherwise would impair the
rights of the Bond Owners or the Trustee with respect to the Net Revenues. If any
substantial part of the Wastewater System is sold, the payment therefor shall either (a)
be used for the acquisition or construction of improvements and extensions or
replacement facilities or (b) be applied on a pro rata basis to (i) prepay the Installment
Payments on the next available prepayment date under Section 7.2, and (ii) prepay any
Parity Debt in accordance with the related Parity Debt Documents.
Any amounts received as awards as a result of the taking of all or any part of the
Wastewater System by the lawful exercise of eminent domain, if and to the extent that
such right can be exercised against such property of the City, shall either (a) be used for
the acquisition or construction of improvements and extension of the Wastewater
System, or (b) be applied on a pro rata basis to (i) prepay the Installment Payments on the
next available prepayment date under Section 7.2, and (ii) prepay any Parity Debt in
accordance with the related Parity Debt Documents.
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SECTION 5.4. Insurance. The City shall at all times maintain with responsible
insurers all such insurance on the Wastewater System as is customarily maintained with
respect to works and properties of like character against accident to, loss of or damage
to the Wastewater System. All amounts collected from insurance against accident to or
destruction of any portion of the Wastewater System shall be used, at the option of the
City, either (a) to repair or rebuild such damaged or destroyed portion of the Wastewater
System, or (b) to prepay on a pro rata basis (i) the Installment Payments on the next
available prepayment date under Section 7.2, and (ii) prepay any Parity Debt in
accordance with the related Parity Debt Documents.
The City will maintain, with responsible insurers, worker's compensation
insurance and insurance against public liability and property damage to the extent
reasonably necessary to protect the interests of the City, the Authority, the Trustee and
the Owners of the Bonds.
Any policy of insurance required under this Section 5.4 may be maintained as part
of or in conjunction with any other insurance coverage carried by the City, and may be
maintained in whole or in part in the form of self-insurance by the City or in the form of
the participation by the City in a joint powers agency or other program providing pooled
insurance.
SECTION 5.5. Records and Accounts. The City will keep proper books of record
and accounts of the Wastewater System in which complete and correct entries shall be
made of all transactions relating to the Wastewater System. Said books shall, upon prior
request, be subject to the reasonable inspection of the Bond Insurer and the Owners of
not less than 10% of the Outstanding Bonds, or their representatives authorized in
writing, upon not less than 2 Business Days' prior notice to the City.
The City will cause the books and accounts of the Wastewater System to be
audited annually by an Independent Accountant not more than 9 months after the close of
each Fiscal Year, and shall make a copy of such report available for inspection by the
Bond Insurer and the Bond Owners at the office of the City. Such report may be part of
a combined financial audit or report covering all or part of the City's finances.
SECTION 5.6. Rates and Charges. The City will fix, prescribe, revise and collect
rates, fees and charges for the services and facilities furnished by the Wastewater
System during each Fiscal Year, which are at least sufficient, after making allowances
for contingencies and error in the estimates, to yield Gross Revenues (excluding amounts
derived from a Rate Stabilization Fund) sufficient to pay the following amounts in the
following order of priority:
(a) All Operation and Maintenance Costs estimated by the City to
become due and payable in such Fiscal Year;
(b)
All Installment Payments and all payments of principal of and interest
on any Parity Debt as they become due and payable during such
Fiscal Year, without preference or priority;
(c) All amounts, if any, required to restore the balance in the Reserve
Fund to the full amount of the Reserve Requirement; and
(d) All payments required to meet any other obligations of the City which
are charges, liens, encumbrances upon, or which are otherwise
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payable from, the Gross Revenues or the Net Revenues during such
Fiscal Year.
In addition, the City will fix, prescribe, revise and collect rates, fees and charges
for the services and facilities furnished by the Wastewater System during each Fiscal
Year which are sufficient to yield Net Revenues which are at least equal to 120% of the
amount described in the preceding clause (b) for such Fiscal Year. Any amounts
transferred from a Rate Stabilization Fund to the Wastewater Fund will be included in the
calculation of Gross Revenues and Net Revenues under this paragraph.
SECTION 5.7. Superior and Subordinate Obligations. The City may not issue or
incur any additional bonds or other obligations during the Term of this Agreement having
any priority in payment of principal or interest out of the Gross Revenues or the Net
Revenues over the Installment Payments. Nothing herein limits or affects the ability of the
City to issue or incur (a) Parity Debt under Section 5.8, or (b) obligations which are either
unsecured or which are secured by an interest in the Net Revenues which is junior and
subordinate to the pledge of and lien upon the Net Revenues established hereunder.
SECTION 5.8. Issuance of Parity Debt. Except for obligations incurred to prepay
or discharge the Installment Payments or any Parity Debt, the City may not issue or incur
any Parity Debt during the Term hereof unless:
(a) No Event of Default has occurred and is continuing;
(b)
The Net Revenues (excluding any amounts derived from a Rate
Stabilization Fund), calculated in accordance with sound accounting
principles, as shown by the books of the City for the most recent
completed Fiscal Year for which audited financial statements of the
City are available, or for any more recent consecutive 12 month
period selected by the City, in either case verified by an Independent
Accountant or a Fiscal Consultant or shown in the audited financial
statements of the City, plus (at the option of the City) any Additional
Revenues, at least equal 120% of Maximum Annual Debt Service
(taking into account the Parity Debt then proposed to be issued); and
(c)
Except in the case of Parity Debt representing a loan from the State
or any agency of the State, or a loan from the federal government or
any agency thereof, there shall be established from the proceeds of
such Parity Debt a reserve fund for the security of such Parity Debt,
in an amount equal to the lesser of (i) the maximum amount of debt
service required to be paid by the City with respect to such Parity
Debt during any Fiscal Year, or (ii) the maximum amount then
permitted under the Tax Code; and
(d) The trustee or fiscal agent for such Parity Debt (if any) is the same
entity performing the functions of Trustee under the Indenture.
SECTION 5.9. Operation of Wastewater System in Efficient and Economical
Manner. The City covenants and agrees to operate the Wastewater System in an
efficient and economical manner and to operate, maintain and preserve the Wastewater
System in good repair and working order.
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SECTION 5.10. Tax Covenants.
(a) Generally. The City shall not take any action or permit to be taken any action
within its control which would cause or which, with the passage of time if not cured
would cause, interest on the Bonds to become includable in gross income for federal
income tax purposes.
(b) Private Activity Bond Limitation. The City shall assure that the proceeds of
the Bonds are not used in a manner which would cause the Bonds to become "private
activity bonds" within the meaning of Section 141(a) of the Tax Code, or which would
meet the private loan financing test of Section 141(c) of the Tax Code.
(c) Federal Guarantee Prohibition. The City shall not take any action or permit or
suffer any action to be taken if the result of the same would be to cause the Bonds to be
"federally guaranteed" within the meaning of Section 149(b) of the Tax Code.
(d) No Arbitrage. The City shall not take, or permit or suffer to be taken by the
Trustee or otherwise, any action with respect to the Bond proceeds which, if such
action had been reasonably expected to have been taken, or had been deliberately and
intentionally taken on the Closing Date would have caused the Bonds to be "arbitrage
bonds" within the meaning of Section 148(a) of the Tax Code.
(e) Rebate Requirement. The City will calculate or cause to be calculated all
amounts of excess investment earnings with respect to the Bonds which are required to
be rebated to the United States of America under Section 148(t') of the Tax Code, at the
times and in the manner required under the Tax Code. The City will pay when due an
amount equal to excess investment earnings to the United States of America in such
amounts, at such times and in such manner as may be required under the Tax Code,
such payments to be made from Gross Revenues or any other source of legally available
funds of the City. The City will keep or cause to be kept, and retain or cause to be
retained for a period of 6 years following the retirement of the Bonds, records of the
determinations made under this subsection (e). The Authority has no duty or
responsibility to monitor or ensure compliance by the City with its obligations under this
subsection (e).
(f) 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 of
the 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 Bonds.
SECTION 5.11. Continuing Disclosure. The City hereby covenants and agrees
that it will execute and deliver the Continuing Disclosure Certificate on the Closing Date,
and that it will comply with and carry out all of the provisions of the Continuing Disclosure
Certificate and provide to the Bond Insurer a copy of any materials disseminated by the
City in compliance therewith. Notwithstanding any other provision of this Agreement,
failure of the City to comply with the Continuing Disclosure Certificate will not constitute
an Event of Default hereunder; provided, however, that any Participating Underwriter (as
such term is defined in the Continuing Disclosure Certificate) or any Owner or beneficial
owner of the Bonds may take such actions as may be necessary and appropriate,
including seeking specific performance by court order, to cause the City to comply with
its obligations under this Section 5.11.
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SECTION 5.12. Covenants Regarding Financing Agreement and Participation
Agreement. The City shall promptly collect all amounts due under the Financing
Agreement and shall enforce its rights thereunder. The City will not amend, modify or
terminate any of the terms of the Participation Agreement or the Financing Agreement, or
consent to any such amendment, modification or termination, if such amendment,
modification or termination would materially adversely affect the interests of the Bond
Owners.
SECTION 5.13. Assignment and Amendment Hereof. This Agreement may not be
assigned by the City in whole or in part. This Agreement may be amended by the City
and the Authority, but only (a) for the purpose of providing for the issuance of any Parity
Debt under and in accordance with Section 5.8, or (b) with the prior written consent of
the Bond Insurer but without the consent of any Bond Owners, to the extent permitted by
law but only for any one or more of the following purposes:
(i)
to add to the covenants and agreements of the City contained in this
Agreement, other covenants and agreements hereafter to be
observed, to pledge or assign additional security for the Installment
Payments, or to surrender any right or power herein reserved to or
conferred upon the City;
(ii)
to cure any ambiguity, inconsistency or omission, or correct any
defective provision, contained in this Indenture, or in any other
respect whatsoever, as the City may deem necessary or desirable,
provided that such modification or amendment does not materially
adversely affect the interests of the Bond Owners in the opinion of
Bond Counsel filed with the City, the Authority, the Bond Insurer and
the Trustee;
to amend any provision hereof relating to the Tax Code, to any extent
whatsoever but only if and to the extent such amendment will not
adversely affect the exclusion from gross income of interest on any
of the Bonds under the Tax Code, in the opinion of Bond Counsel
filed with the City, the Authority, the Bond Insurer and the Trustee.
SECTION 5.14. Information to Bond Insurer. The City shall cooperate with the
Bond Insurer in all regards as may be required to comply with the terms and provisions of
the Bond Insurance Policy and as required to enable the Trustee to receive payments
under the Bond Insurance Policy. The City shall provide such information to the Bond
Insurer from time to time as the Bond Insurer may reasonably request in writing.
SECTION 5.15. Further Assurances. The City will execute and deliver any and all
such further agreements, instruments, financing statements or other assurances as may
be reasonably necessary or requested by the Authority, the Bond Insurer or the Trustee
to carry out the intention or to facilitate the performance of this Agreement, including,
without limitation, to perfect and continue the security interests herein intended to be
created.
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. Events of Default Defined. The following are Events of Default:
(a) Failure by the City to pay any Installment Payment when due and
payable hereunder.
(b)
Failure by the City to pay any Additional Payment when due and
payable hereunder, and the continuation of such failure for a period
of 30 days.
(c)
Failure by the City to observe and perform any covenant, condition
or agreement on its part to be observed or performed, other than as
referred to in the preceding clauses (a) or (b), for a period of 60
days after written notice specifying such failure and requesting that
it be remedied has been given to the City by the Authority, the Bond
Insurer or the Trustee; provided, however, that if the City notifies the
Authority and the Trustee that in its reasonable opinion the failure
stated in the notice can be corrected, but not within such 60-day
period, such failure will not constitute an event of default hereunder
if the City commences to cure such failure within such 60 day period
and thereafter diligently and in good faith cures the failure in a
reasonable period of time.
(d)
The filing by the City of a voluntary petition in bankruptcy, or failure
by the City promptly to lift any execution, garnishment or attachment,
or adjudication of the City as a bankrupt, or assignment by the City
for the benefit of creditors, or the entry by the City into an agreement
of composition with creditors, or the approval by a court of
competent jurisdiction of a petition applicable to the City in any
proceedings instituted under the provisions of the Federal
Bankruptcy Code, as amended, or under any similar acts which may
hereafter be enacted.
(e)
The occurrence of any event defined to be an event of default under
the contract authorizing the Prior State Loan, or under any Parity
Debt Documents.
For purposes of determining whether any Event of Default has occurred under
and as described in the preceding clause (a), no effect will be given to payments made
by the Bond Insurer under the Bond Insurance Policy.
SECTION 6.2. Remedies on Default. Whenever any Event of Default has
occurred and is continuing, the Trustee as assignee of the Authority has the right, at its
option and without any further demand or notice, to take any one or more of the following
actions:
(a)
Declare all principal components of the unpaid Installment Payments,
together with accrued interest thereon at the Overdue Rate from the
immediately preceding Interest Payment Date on which payment wa s
made, to be immediately due and payable, whereupon the same shall
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immediately become due and payable. Notwithstanding the
foregoing provisions of this subsection (a), however, if, at any time
after the principal components of the unpaid Installment Payments
have been so declared due and payable under this subsection (a),
and before any judgment or decree for the payment of the moneys
due has been obtained or entered, the City deposits with the Trustee
a sum sufficient to pay all principal components of the Installment
Payments coming due prior to such declaration and all matured
interest components (if any) of the Installment Payments, with
interest on such overdue principal and interest components
calculated at the Overdue Rate, and the reasonable expenses of the
Trustee (including any fees and expenses of its attorneys), and any
and all other defaults known to the Trustee (other than in the
payment of the principal and interest components of the Installment
Payments due and payable solely by reason of such declaration)
have been made good, then, and in every such case, the Trustee
will rescind and annul such declaration and its consequences.
However, no such rescission and annulment extends to or affects
any subsequent default, or impairs or exhausts any right or power
consequent thereon. As provided in Section 6.6, the Trustee is
required to exercise the remedies provided herein in accordance
with the Indenture.
(b)
Take whatever action at law or in equity may appear necessary or
desirable to collect the Installment Payments then due or thereafter to
become due during the Term of this Agreement, or enforce
performance and observance of any obligation, agreement or
covenant of the City under this Agreement.
(c)
As a matter of right, in connection with the filing of a suit or other
commencement of judicial proceedings to enforce the rights of the
Trustee and the Bond Owners hereunder, cause the appointment of
a receiver or receivers of the Gross Revenues and other amounts
pledged hereunder, with such powers as the court making such
appointment may confer.
SECTION 6.3. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Authority is intended to be exclusive and every such remedy will be
cumulative and in addition to every other remedy given under this Agreement or now or
hereafter existing at law or in equity. No delay or omission to exercise any right or
power accruing upon any default impairs any such right or power or will be construed to
be a waiver thereof. Each right and power may be exercised from time to time and as
often as the Trustee deems expedient. In order to entitle the Authority to exercise any
remedy reserved to it in this Article VI, it is not necessary to give any notice, other than
such notice as may be required in this Article VI or by law.
SECTION 6.4. Agreement to Pay Attorneys' Fees and Expenses. If either party to
this Agreement defaults under any of the provisions hereof and the nondefaulting party,
the Trustee or the Owner of any Bonds employs attorneys or incurs other expenses for
the collection of moneys or the enforcement or performance or observance of any
obligation or agreement on the part of the defaulting party herein contained, the defaulting
party agrees that it will on demand therefor pay to the nondefaulting party, the Trustee or
such Owner, as the case may be, the reasonable fees of such attorneys and such other
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expenses so incurred. The provisions of this Section 6.4 survive the expiration of the
Term of this Agreement.
SECTION 6.5. No Additional Waiver Implied by One Waiver. If any agreement
herein is breached by either party and is thereafter waived by the other party, such
waiver is limited to the particular breach so waived and does not waive any other
breach.
SECTION 6.6. Trustee, the Bond Insurer and Bond Owners to Exercise Rights.
Such rights and remedies as are given to the Authority under this Article VI have been
assigned by the Authority to the Trustee under the Indenture, to which assignment the
City hereby consents. The Trustee, the Bond Insurer and the Owners of the Bonds will
exercise such rights and remedies as provided in the Indenture.
ARTICLE VII
PREPAYMENT OF INSTALLMENT PAYMENTS
SECTION 7.1. Security Deposit. Notwithstanding any other provision hereof, the
City may on any date secure the payment of Installment Payments, in whole or in part, by
irrevocably depositing with the Trustee an amount of cash which, together with other
available amounts, is either (a) sufficient to pay all such Installment Payments, including
the principal and interest components thereof, when due under Section 4.4(a), or (b)
invested in whole or in part in non-callable Federal Securities in such amount as will, in
the opinion of an Independent Accountant (which opinion is addressed and delivered to
the Trustee and the Bond Insurer), together with interest to accrue thereon and together
with any cash which is so deposited, be fully sufficient to pay all such Installment
Payments when due under Section 4.4(a) or when due on any optional prepayment date
under Section 7.2, as the City instructs at the time of said deposit.
If the City posts a security deposit under this Section for the payment of all
remaining Installment Payments, all obligations of the City hereunder, and the pledge of
Net Revenues and all other security provided by this Agreement for said obligations, will
cease and terminate, excepting only the obligation of the City to make, or cause to be
made, all Installment Payments from such security deposit. Said security deposit
constitutes a special fund for the payment of such Installment Payments in accordance
with the provisions hereof.
Payments made by the Bond Insurer under the Bond Insurance Policy will not be
considered in determining whether the City has paid and discharged any or all of the
Installment Payments under the preceding provisions of this Section 7.1.
SECTION 7.2. Optional Prepayment. The City may exercise its option to prepay
the principal components of the Installment Payments in whole or in part on any date on
which the Bonds are subject to optional redemption under Section 2.03(a) of the
Indenture. Such option shall be exercised by payment of a prepayment price equal to the
sum of (a) the aggregate principal components of the Installment Payments to be prepaid,
(b) the interest component of the Installment Payment required to be paid on or accrued to
such date, and (c)the premium (if any) then required to be paid upon the corresponding
redemption of the Bonds under Section 2.03(a) of the Indenture. If the City prepays the
Installment Payments in part but not in whole, the principal components will be prepaid
-22-
among such maturities and in such integral multiples of $5,000 as the City designates in
written notice to the Trustee.
SECTION 7.3. Credit for Amounts on Deposit. If the City prepays the Installment
Payments in full under this Article VII, such that the Indenture is discharged by its terms,
and upon payment in full of all Additional Payments and other amounts then due and
payable hereunder, all available amounts then on deposit in the funds and accounts
established under this Agreement will be credited towards the amounts then required to
be so prepaid.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Investment of Funds. All moneys in any of the funds or accounts
established with the Trustee under this Agreement shall be invested by the Trustee solely
in Permitted Investments under the written direction of the City. In the absence of any
such direction from the City, the Trustee shall invest any such moneys in clause (i) of the
definition of Permitted Investments. Obligations purchased as an investment of moneys in
any fund shall be deemed to be part of such fund or account.
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. For purposes of acquiring any investments hereunder, the
Trustee may commingle funds held by it hereunder. The Trustee may (but is not obligated
to) act as principal or agent in the acquisition or disposition of any investment. The
Trustee shall incur no liability for losses arising from any investments made under this
Section.
The City acknowledges that to the extent regulations of the Comptroller of the
Currency or other applicable regulatory entity grant the City the right to receive brokerage
confirmations of security transactions as they occur, the City specifically waives receipt
of such confirmations to the extent permitted by law. The Trustee will furnish the City
periodic transaction statements which include detail for all investment transactions made
by the Trustee hereunder; provided that the Trustee is not obligated to provide an
accounting for any fund or account that (a) has a balance of $0.00 and (b) has not had
any activity since the last reporting date.
The Trustee or any of its affiliates may act as sponsor, advisor or manager in
connection with any investments made by the Trustee hereunder.
All Permitted Investments acquired under this Section 8.1 shall be valued in
accordance with the provisions of Section 4.05 of the Indenture.
SECTION 8.2. Notices. Any notice, request, complaint, demand or other
communication under this Agreement must be given by first class mail or personal
delivery to the party entitled thereto at its address set forth below, or by telecopier or
other form of telecommunication, at its number set forth below. Notice is effective either
(a) upon transmission by fax or other form of telecommunication, (b) upon actual receipt
after deposit in the United States of America mail, postage prepaid, or (c) in the case of
personal delivery to any person, upon actual receipt. The Authority, the City, the Trustee
-23-
or the Bond Insurer may, by written notice to the other parties, from time to time modify
the address or number to which communications are to be given hereunder.
If to the Authority:
Association of Bay Area Governments
101 Eighth Street
Oakland, California 94607
Attention: Public Finance Director
Fax: (510) 464-8468
If to the City:
City of Ukiah
300 Seminary Avenue
Ukiah, California 95482
Attention: City Manager
Fax: (707) 463-6204
If to the Trustee:
Wells Fargo Bank, National Association
555 Montgomery Street, 10th Floor
San Francisco, California 94111
Attention: Corporate Trust Services
Fax: (415) 395-9064
If to the Bond Insurer:
XL Capital Assurance, Inc.
1221 Avenue of the Americas
New York, NY 10020
Fax: (212) 944-3777
Attention: Surveillance
SECTION 8.3. Governing Law. This Agreement is construed in accordance with
and governed by the laws of the State.
SECTION 8.4. Binding Effect. This Agreement inures to the benefit of and is
binding on the Authority, the City, the Bond Insurer and their respective successors and
assigns, subject to the limitations contained herein.
SECTION 8.5. Severability of Invalid Provisions. If any one or more of the
provisions contained in this Agreement is for any reason held invalid, illegal or
unenforceable in any respect, then such provision or provisions will be deemed
severable from the remaining provisions contained in this Agreement and such invalidity,
illegality or unenforceability will not affect any other provision of this Agreement, and this
Agreement will be construed as if such invalid or illegal or unenforceable provision had
never been contained herein. The Authority and the City each hereby declares that it
would have entered into this Agreement and each and every other Section, paragraph,
sentence, clause or phrase hereof irrespective of the fact that any one or more Sections,
paragraphs, sentences, clauses or phrases of this Agreement may be held illegal, invalid
or unenforceable.
SECTION 8.6. Article and Section Headings and References. The headings or
titles of the several Articles and Sections hereof, and any table of contents appended to
copies hereof, are solely for convenience of reference and do not affect the meaning,
construction or effect of this Agreement. All references herein to "Articles," "Sections"
and other subdivisions are to the corresponding Articles, Sections or subdivisions of this
Agreement; the words "herein," "hereof," "hereby," "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular Article, Section
-24-
or subdivision hereof; and words of the masculine gender shall mean and include words
of the feminine and neuter genders.
SECTION 8.7. Payment on Non-Business Days. Whenever any payment is
required to be made hereunder on a day which is not a Business Day, such payment will
be made on the immediate preceding Business Day.
SECTION 8.8. Execution of Counterparts. This Agreement may be executed in
any number of counterparts, each of which is an original and all of which together
constitute one and the same instrument.
SECTION 8.9. Waiver of Personal Liability. No member of the City Council,
officer, agent or employee of the City has any individual or personal liability for the
payment of Installment Payments or Additional Payments or be subject to any personal
liability or accountability by reason of this Agreement. Nothing herein relieves any such
member of the City Council, officer, agent or employee from the performance of any
official duty provided by law or by this Agreement.
SECTION 8.10. Bond Insurer as Third Party Beneficiary. The Bond Insurer is
hereby made a third party beneficiaries hereof and is entitled to the benefits of this
Agreement with the same force and effect as if the Bond Insurer were a party hereto.
-25-
IN WITNESS WHEREOF, the Authority, the Trustee and the City have caused this
Agreement to be executed in their respective names by their duly authorized officers, all
as of the date first above written.
ASSOCIATION OF BAY AREA
GOVERNMENTS, as Seller
By
Joseph K. Chan,
Finance Director
CITY OF UKIAH, as Purchaser
By
Mayor
ATTEST:
By¸
City Clerk
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By
Authorized Officer
Installment
Payment Date(1)
APPENDIX A
SCHEDULE OF INSTALLMENT PAYMENTS
Principal Interest
Component Component
Total
Payment
A-1
Installment Principal Interest Total
Payment Date(1) Component Component Payment
(1) Installment Payment Dates are the fifth (5th) Business Day immediately
preceding each Interest Payment Date shown in the table.
A-2
APPENDIX B
DESCRIPTION OF PROJECT
The Project consists of the rehabilitation, upgrade and expansion of the existing
treatment plant, which are more particularly described as follows:
B-1
DRAFT OF 1-3-06
Attachment #
PRELIMINARY OFFICIAL STATEMENT DATED
, 2006
NEW ISSUE - BOOK-ENTRY ONLY RATINGS:
Standard & Poor's: ....
Moody's:" "
(.~-Insured)
In the opinion of Jones Hall, A Professional Law Corporation, San Francisco, California, Bond Counsel, subject
to certain qualifications described herein, 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 altemative minimum tax
imposed on individuals and corporations; it should be noted, however, that, for the purpose of computing the altemative
minimum tax imposed on corporations (as defined for federal income tax purposes), such interest is taken into account in
determining certain income and earnings. Bond Counsel is also of the opinion that under existing law the interest on the
Bonds is exempt from personal income taxation imposed by the State of California. See "TAX MA TTERS."
~
ASSOCIATION OF BAY AREA GOVERNMENTS
2006 Water and Wastewater Revenue Bonds,
Series A
Dated: Date of Delivery Due: February 1, as shown below
The 2006 Water and Wastewater Revenue Bonds, Series A (the "Bonds") are being issued by the Association of
Bay Area Governments (the "Authority") to provide moneys to finance the acquisition and construction of capital
improvements to the wastewater system of the City of Ukiah (the "Local Agency" or the "City"). Proceeds of the Bonds
will also be used to fund a reserve fund for the Local Agency and to pay the cost of issuing the Bonds. See "THE
FINANCING PLAN."
The Bonds are special obligations of the Authority, payable from and secured by Revenues (as defined herein)
consisting primarily of installment payments (the "Installment Payments") received by the Authority under an Installment
Sale Agreement (the "Installment Sale Agreement") to be entered into among the Local Agency, the Authority and Wells
Fargo Bank, National Association, as trustee (the "Trustee"). The Installment Payments are calculated to be sufficient in
time and amount to provide the Authority with money to pay the principal of and interest and premium, if any, on the
Bonds when due.
Interest on the Bonds is payable on February 1 and August 1 each year, beginning August 1, 2006. Principal on the
Bonds is due on the due dates set forth in the maturity schedule on the inside cover. Individual purchases will be in
principal amounts of $5,000 or integral multiples thereof.
The Bonds will be issued in book-entry form, initially registered in the name of Cede & Co., New York, New York, as
nominee of The Depository Trust Company, New York, New York ("DTC"). Purchasers will not receive certificates
representing their interest in the Bonds. Payment of principal and interest will be remitted by Wells Fargo Bank, National
Association, San Francisco, California, as trustee (the "Trustee") to DTC for subsequent disbursement to DTC
participants who will remit such payments to beneficial owners of the Bonds. See "APPENDIX G - DTC and the Book-
Entry Only System."
The Bonds are subject to mandatory redemption from prepayments of the Installment Payments made by the Local
Agency under the Installment Sale Agreement, as described under the caption "THE BONDS - Redemption."
The Bonds are special obligations of the Authority payable from and secured by certain revenues described herein
consisting primarily of the Installment Payments. The Installment Payments are special obligations of the Local Agency,
and are secured by an irrevocable pledge of certain revenues of the Local Agency, consisting generally of the net
revenues generated by the Local Agency's wastewater, as described herein. See "SECURITY FOR THE BONDS."
A debt service reserve fund will be established by the Local Agency under the Installment Sale Agreement.
Amounts on deposit in the Local Agency's reserve fund may be used as a reserve for the payment of Installment
· Preliminary; subject to change.
Payments by the Local Agency. No reserve fund is being established for the Bonds. See "SECURITY FOR THE
BONDS - Reserve Funds."
The payment of principal and interest on the Bonds when due will be insured by a bond insurance policy to be
issued concurrently with the delivery of the Bonds by . See "MUNICIPAL BOND INSURANCE POLICY".
[Insurer Logo]
THE BONDS ARE SPECIAL OBLIGATIONS OF THE AUTHORITY, PAYABLE SOLELY FROM AND SECURED
BY THE PLEDGE OF REVENUES UNDER THE INDENTURE. NEITHER THE AUTHORITY NOR THE MEMBERS OF
THE AUTHORITY ARE DIRECTLY OR INDIRECTLY OR CONTINGENTLY OR MORALLY OBLIGATED TO USE ANY
OTHER MONEYS OR ASSETS OF THE AUTHORITY OR ANY OF ITS MEMBERS, OTHER THAN THE MONIES
PLEDGED UNDER THE INDENTURE, TO PAY ALL OR ANY PORTION OF DEBT SERVICE DUE ON THE BONDS.
THE BONDS AND THE OBLIGATION TO PAY PRINCIPAL OF AND INTEREST THEREON AND ANY REDEMPTION
PREMIUM WITH RESPECT THERETO DO NOT CONSTITUTE AN INDEBTEDNESS OR AN OBLIGATION OF THE
AUTHORITY, THE STATE OF CALIFORNIA OR ANY POLITICAL SUBDIVISION THEREOF, WITHIN THE MEANING
OF ANY CONSTITUTIONAL OR STATUTORY DEBT LIMITATION, OR A CHARGE AGAINST THE GENERAL CREDIT
OR TAXING POWERS OF ANY OF THEM, BUT SHALL BE PAYABLE SOLELY FROM THE REVENUES DESCRIBED
HEREIN. NO OWNER OF THE BONDS SHALL HAVE THE RIGHT TO COMPEL THE EXERCISE OF THE TAXING
POWER OF THE STATE OF CALIFORNIA OR ANY POLITICAL SUBDIVISION THEREOF TO PAY ANY PRINCIPAL
OF, PURCHASE PRICE, PREMIUM, IF ANY, OR INTEREST ON THE BONDS. THE AUTHORITY DOES NOT HAVE
ANY TAXING POWER.
MATURITY SCHEDULE
[See inside front cover]
This cover page contains certain information for general reference only. It is not a summary of this issue.
Investors are advised to read the entire Official Statement to obtain information essential to the making of an
informed investment decision.
The Bonds will be sold and awarded pursuant to a competitive sale to be held on , 2006, subject to the
conditions set forth in the Notice to Bidders. The Bonds will be offered when, as and if delivered to and received by the
Underwriter subject to the approval of their validity by Jones Hall, A Professional Law Corporation, San Francisco,
California, Bond Counsel, and certain other conditions. Certain matters will also be passed upon by Jones Hall as
Disclosure Counsel, and for the Local Agency by its City Attorney. It is anticipated that the Bonds will be available for
delivery to DTC in New York, New York on or about ,2006.
The date of this Official Statement is ,2006.
MATURITY SCHEDULE
Due Interest CUSIP Due Interest
February 1 Amount Rate Yield ( )1' February 1 Amount Rate
CUSIP
Yield ( )1'
Term Bonds due February 1, __,; Price: __% to Yield % - CUSIP
t Copyright 2006, American Bankers Association. CUSIP data herein are provided by Standard & Poor's CUSIP Service Bureau, a
division of The McGraw-Hill Companies, Inc., and are provided for convenience of reference only. Neither the Authority, the Local
Agency nor the Underwriter assumes any responsibility for the accuracy of these CUSIP data.
GENERAL INFORMATION ABOUT THIS OFFICIAL STATEMENT
Use of Official Statement. This Official Statement is submitted in connection with the offer and
sale of the Bonds and may not be reproduced or used, in whole or in part, for any other purpose. This
Official Statement is not to be construed as a contract with the purchasers of the Bonds.
Estimates and Forecasts. When used in this Official Statement and in any continuing
disclosure by the Authority or the Local Agency, in any press release and in any oral statement made with
the approval of an authorized officer of the Authority, the Local Agency or any other entity described or
referenced herein, the words or phrases "will likely result," "are expected to," "will continue," "is
anticipated," "estimate," "project," "forecast," "expect," "intend" and similar expressions identify "forward
looking statements." Such statements are subject to risks and uncertainties that could cause actual
results to differ materially from those contemplated in such forward-looking statements. Any forecast is
subject to such uncertainties. Inevitably, some assumptions used to develop the forecasts will not be
realized and unanticipated events and circumstances may occur. Therefore, there are likely to be
differences between forecasts and actual results, and those differences may be material. 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 made hereunder shall, under any circumstances, give rise
to any implication that there has been no change in the affairs of the Authority, the Local Agency or any
other entity described or referenced herein since the date hereof.
Limit of Offering. No dealer, broker, salesperson or other person has been authorized by the
Authority to give any information or to make any representations in connection with the offer or sale of the
Bonds other than those contained herein and if given or made, such other information or representation
must not be relied upon as having been authorized by the Authority or the Underwriter. This Official
Statement does not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any
sale of the Bonds by a person in any jurisdiction in which it is unlawful for such person to make such an
offer, solicitation or sale.
Document Summaries. All summaries of the documents referred to in this Official Statement
are made subject to the provisions of such documents, respectively, and do not purport to be complete
statements of any or all of such provisions.
No Registration. The Bonds have not been registered under the Securities Act of 1933, as
amended, in reliance upon an exception from the registration requirements contained in that Act. The
Bonds have not been registered or qualified under the securities laws of any state.
Involvement of Underwriter. The Underwriter has provided the following sentence for inclusion
in this Official Statement: The Underwriter has reviewed the information in this Official Statement in
accordance with and as part of its responsibilities to investors under the federal securities laws as applied
to the facts and circumstances of this transaction, but the Underwriter does not guarantee the accuracy or
completeness of such information. The information and expressions of opinions herein are subject to
change without notice and neither delivery of this Official Statement nor any sale made hereunder shall,
under any circumstances, create any implication that there has been no change in the affairs of the
Agency any other entity described or referenced herein since the date hereof. All summaries of the
documents referred to in this Official Statement are made subject to the provisions of such documents,
respectively, and do not purport to be complete statements of any or all of such provisions.
Information About the Authority. The information relating to the Authority contained herein
under the heading "THE AUTHORITY" and "ABSENCE OF LITIGATION - The Authority" has been
furnished by the Authority. All other information contained herein has been obtained from the Local
Agency and from other sources (other than Authority) that are believed to be reliable, but this information
is not guaranteed as to accuracy or completeness by and is not to be relied upon or construed as a
promise or representation by the Authority.
ASSOCIATION OF BAY AREA GOVERNMENTS
2006 Water and Wastewater Revenue Bonds,
Series A
PROGRAM PARTICIPANT
City of Ukiah, Mendocino County
PROFESSIONAL SERVICES
FINANCIAL ADVISOR
Bartle Wells Associates
Berkeley, California
BOND COUNSEL and DISCLOSURE COUNSEL
Jones Hall,
A Professional Law Corporation
San Francisco, California
TRUSTEE
Wells Fargo Bank, National Association
San Francisco, California
TABLE OF CONTENTS
Page
INTRODUCTION ........................................................................................................................................... 1
THE AUTHORITY ......................................................................................................................................... 3
THE FINANCING PLAN ................................................................................................................................ 3
ESTIMATED SOURCES AND USES OF FUNDS ........................................................................................ 4
THE BONDS ................................................................................................................................................. 4
Authority for Issuance ............................................................................................................................. 4
Bond Terms ............................................................................................................................................ 4
Redemption ............................................................................................................................................ 5
Transfer and Exchange of Bonds ........................................................................................................... 8
DEBT SERVICE FOR THE BONDS ............................................................................................................. 9
SECURITY FOR THE BONDS ................................................................................................................... 10
Revenues .............................................................................................................................................. 10
The Installment Payments .................................................................................................................... 10
Reserve Funds ..................................................................................................................................... 15
No Additional Bonds ............................................................................................................................. 15
MUNICIPAL BOND INSURANCE POLICY ................................. ' ............................................................... 16
RISK FACTORS .......................................................................................................................................... 17
Increased Expenses ............................................................................................................................. 17
Insurance .............................................................................................................................................. 17
Additional Obligations Payable from Net Revenues ............................................................................ 17
Proposition 218 ..................................................................................................................................... 17
Earthquake Risk ................................................................................................................................... 18
Bankruptcy Risks .................................................................................................................................. 18
Loss of Tax Exemption ......................................................................................................................... 18
TAX MATTERS ........................................................................................................................................... 18
RATING ....................................................................................................................................................... 20
UNDERWRITING ........................................................................................................................................ 20
CONTINUING DISCLOSURE ..................................................................................................................... 20
ABSENCE OF LITIGATION ........................................................................................................................ 21
CERTAIN LEGAL MATTERS ..................................................................................................................... 21
EXECUTION ............................................................................................................................................... 22
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
APPENDIX F
APPENDIX G
- Information Concerning the City of Ukiah's Wastewater System
- Specimen Bond Insurance Policy
- Summary of Principal Legal Documents
- Proposed Form of Bond Counsel Opinion
- Form of Authority Continuing Disclosure Certificate
- Form of Local Agency Continuing Disclosure Certificate
-. DTC and the Book-Entry Only System
-i-
OFFICIAL STATEMENT
*
ASSOCIATION OF BAY AREA GOVERNMENTS
2006 Water and Wastewater Revenue Bonds,
Series A
The purpose of this Official Statement is to provide certain information concerning the
issuance by the Association of Bay Area Governments (the "Authority") of its 2006 Water and
Wastewater Revenue Bonds, Series A (the "Bonds").
INTRODUCTION
This Introduction is subject in all respects to the more complete information contained
elsewhere in this Official Statement, and the offering of the Bonds to potential investors is made
only by means of the entire Official Statement. Terms used in this Official Statement and not
otherwise defined have the meanings ascribed to them in the Indenture. The definition of
certain terms are set forth in APPENDIX C.
Purpose of the Bonds. The Bonds are being issued to provide moneys to finance the
acquisition and construction of capital improvements to the wastewater system (the
"Wastewater System") of the City of Ukiah (the "Local Agency" or the "City"). Proceeds of the
Bonds will also be used to acquire a municipal bond debt service reserve insurance policy for
the reserve fund for the Local Agency and to pay the cost of issuing the Bonds. See
"ESTIMATED' SOURCES AND USES OF FUNDS" and "FINANCING PLAN." For information
on the Local Agency, including projects to be financed with proceeds of the Bonds, see
"APPENDIX A - Information Concerning the City of Ukiah's Wastewater System".
The Authority. The Authority is a joint exercise of powers authority organized and
existing under that certain Joint Exercise of Powers Agreement, dated January 24, 1961, among
certain cities and counties of the State of California (collectively, the "Members"), and under the
provisions of Articles 1 through 4 (commencing with section 6500) of Chapter 5 of Division 7 of
Title 1 of the California Government Code (the "Act"). The Authority is authorized under Article
4 (commencing with section 6584) of the Act (the "Bond Law") to borrow money for the purpose
of financing the acquisition of bonds, notes and other obligations of, or for the purpose of
making loans to, public entities, and to provide financing for public capital improvements of
public entities. See "THE AUTHORITY."
Authority for Issuance. The Bonds are being issued under the Bond Law and an
Indenture of Trust, dated as of January 1, 2006 (the "Indenture"), between the Authority and
Wells Fargo Bank, National Association, at its corporate trust office in San Francisco, California,
as trustee (the "Trustee").
-1-
The Bonds; Security for the Bonds; Special Obligations. The Bonds are special
obligations of the Authority payable from and secured by a pledge of certain revenues
consisting primarily of installment payments (the "Installment Payments") made by the Local
Agency under an Installment Sale Agreement dated as of January 1, 2006 (the "Installment
Sale Agreement") with the Authority and the Trustee.
The Authority is not directly or indirectly or contingently or morally obligated to use any
moneys, other than the Revenues pledged under the Indenture, of the Authority or any of its
members to pay all or any portion of debt service on the Bonds. The obligation to pay principal
of and interest on the Bonds does not constitute an indebtedness or an obligation of the
Authority, the State of California or any political subdivision thereof, within the meaning of any
Constitutional or statutory debt limitation, or a charge against the general or taxing powers of
any of them. The Bonds are payable solely from the Revenues described herein. The Authority
has no taxing power.
The Installment Payments. The Installment Payments will be secured by a lien on and
pledge of net revenues ("Net Revenues") derived from the wastewater system of the Local
Agency, from the reserve fund established for the Local Agency under its related Installment
Sale Agreement, and from certain other moneys held by the Trustee under the Indenture and
each Installment Sale Agreement.
The Net Revenues consist of all "Gross Revenues" received by the Local Agency from
its wastewater system, less all "Operation and Maintenance Costs" for its wastewater system,
as such terms are defined in this Official Statement.
See "SECURITY FOR THE BONDS" and "APPENDIX C - Summary of Principal Legal
Documents - Installment Sale Agreement." See also Appendix A for certain information relating
to the wastewater system of the Local Agency.
Reserve Funds. Under The Installment Sale Agreement, the Trustee creates a
Reserve Fund for payment of the Installment Payments. The Reserve Requirement for the
Reserve Fund will initially be satisfied with a municipal bond debt service reserve insurance
policy to be issued by See "SECURITY FOR THE BONDS - Reserve
Fund" herein.
Bond Insurance. Concurrently with issuance of the Bonds, (the
"Insurer") will issue its municipal bond insurance policy (the "Policy") for the Bonds. The Policy
unconditionally guarantees the payment of that portion of the principal of and interest on the
Bonds which has become due for payment, but which is unpaid. See "MUNICIPAL BOND
INSURANCE POLICY" and "APPENDIX B - Specimen Bond Insurance Policy."
Local Agency Information. For certain information concerning the Local Agency and
its wastewater enterprise, see "APPENDIX A - Information Concerning the City of Ukiah's
Wastewater System".
Definitions and Descriptions. Brief descriptions of the Bonds, the Authority, and the
Local Agency and their respective water and/or wastewater systems are included in this Official
Statement, together with summaries of the Indenture and the Installment Sale Agreement.
Such descriptions do not purport to be comprehensive or definitive. All references herein to the
Bonds, the Indenture and the Installment Sale Agreement are qualified in their entirety by
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reference to the actual documents. Copies of all such documents are available for inspection at
the corporate trust office of the Trustee in San Francisco, California.
Definitions of certain capitalized terms used in this Official Statement and not otherwise
defined herein or in APPENDIX C hereto have the meanings set forth in the Indenture and the
Installment Sale Agreement. The summaries of and references contained herein to the
Indenture and the Installment Sale Agreement, statutes and other documents do not purport to
be comprehensive or definitive and are qualified by reference to each such document,
instrument or statute.
THE AUTHORITY
The Authority is a joint exercise of powers authority organized and operating under
Articles 1 through 4 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 of the
Government Code of the State of California and under an agreement which became effective
January 24, 1961, among various cities and counties in the State. The Authority is operated by
its Members and was established to protect local control, plan for the future and promote
cooperation on issues in the San Francisco Area. The Authority has been designated by the
State of California and federal governments as the official comprehensive planning agency for
the San Francisco Bay Area. The Authority's enabling legislation provides it with the power to
issue the Bonds. The Authority has no taxing power.
THE BONDS ARE SPECIAL OBLIGATIONS OF THE AUTHORITY, PAYABLE SOLELY
FROM AND SECURED BY THE PLEDGE OF REVENUES UNDER THE INDENTURE.
NEITHER THE AUTHORITY NOR THE MEMBERS OF THE AUTHORITY ARE DIRECTLY OR
INDIRECTLY OR CONTINGENTLY OR MORALLY OBLIGATED TO USE ANY OTHER
MONEYS OR ASSETS OF THE AUTHORITY OR ANY OF ITS MEMBERS TO PAY ALL OR
ANY PORTION OF DEBT SERVICE DUE ON THE BONDS. THE BONDS AND THE
OBLIGATION TO PAY PRINCIPAL OF AND INTEREST THEREON AND ANY REDEMPTION
PREMIUM WITH RESPECT THERETO DO NOT CONSTITUTE AN INDEBTEDNESS OR AN
OBLIGATION OF THE AUTHORITY, THE STATE OF CALIFORNIA OR ANY POLITICAL
SUBDIVISION THEREOF, WITHIN THE MEANING OF ANY CONSTITUTIONAL OR
STATUTORY DEBT LIMITATION, OR A CHARGE AGAINST THE GENERAL CREDIT OR
TAXING POWERS OF ANY OF THEM, BUT ARE PAYABLE SOLELY FROM THE REVENUES
DESCRIBED HEREIN. NO OWNER OF THE BONDS HAS THE RIGHT TO COMPEL THE
EXERCISE OF THE TAXING POWER OF THE STATE OF CALIFORNIA OR ANY POLITICAL
SUBDIVISION THEREOF TO PAY ANY PRINCIPAL OF, PURCHASE PRICE, PREMIUM, IF
ANY, OR INTEREST ON THE BONDS. THE AUTHORITY DOES NOT HAVE ANY TAXING
POWER.
THE FINANCING PLAN
Proceeds of the Bonds will be used by the Authority to finance the acquisition and
construction of capital improvements to the wastewater system of the Local Agency. Brief
descriptions of the projects of the Local Agency are set forth in "APPENDIX A - Information
Concerning the City of Ukiah's Wastewater System". Under The Installment Sale Agreement,
the Trustee will establish a Project Fund into which a portion of the proceeds of the Bonds will
be deposited. Amounts on deposit in each Project Fund will be disbursed from time to time
upon requisitions of the Local Agency for the purpose of financing the Local Agency's project.
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ESTIMATED SOURCES AND USES OF FUNDS
The anticipated sources and uses of funds with respect to the Bonds are set forth below.
Sources:
Amount
Par Amount
Plus: Original Issue Premium
Less: Underwriter's Discount
Plus: Other Available Moneys
Total Sources:
Uses:
Deposit to City of Ukiah Project Fund
Deposit to Costs of Issuance Fund (2)
Total Uses:
(~)
(2)
Represents
Includes expenses incurred in connection with the authorization, issuance, sale and delivery of
the Bonds and execution and delivery of the Installment Sale Agreement, including
compensation, fees and expenses (including fees and expenses for legal counsel) of the
Authority, initial fees and expenses of the Trustee (including fees and expenses for legal
counsel), the bond insurance premium, the premium for the Qualified Reserve Fund Credit
Instrument to be provided by , legal fees and expenses, filing and recording
costs, rating agency fees, costs of preparation and reproduction of documents and costs of
printing.
THE BONDS
Authority for Issuance
The Authority is authorized under Article 4 (commencing with section 6584) of the Act
(the "Bond Law") to borrow money for the purpose of financing the acquisition of bonds, notes
and other obligations of, or for the purpose of making loans to, public entities, including the
Local Agency, and to provide financing for public capital improvements of public entities,
including the Local Agency.
The Bonds are being issued under the Bond Law, an Indenture of Trust, dated as of
January 1, 2006 (the "Indenture"), between the Authority and Wells Fargo Bank, National
Association San Francisco, California, as trustee (the "Trustee"), and a resolution of the
Executive Committee of the Authority.
Bond Terms
The Bonds are issuable in fully registered form without coupons in denominations of
$5,000 or any integral multiple thereof, so long as no Bond has more than one maturity date.
The Bonds will be dated as of the Closing Date, and will mature on February 1 in the years and
in the respective principal amounts and bear interest (calculated on the basis of a 360-day year
comprised of twelve 30-day months).
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Interest on the Bonds is payable semiannually on each February 1 and August 1,
commencing August 1, 2006 (each, an "Interest Payment Date"), calculated based on a
360-day year comprised of 12 thirty-day months, to the person whose name appears on the
registration books maintained by the Trustee (the "Registration Books") as the registered
owner thereof as of the 15th calendar day of the month preceding each Interest Payment Date,
whether or not such day is a business day (each, a "Record Date").
Interest on the Bonds will be paid by check of the Trustee mailed by first class mail,
postage prepaid, on each Interest Payment Date to the Owners of the Bonds at their respective
addresses shown on the Registration Books as of the close of business on the preceding
Record Date. At the written request of the Owner of Bonds in an aggregate principal amount of
at least $1,000,000, which written request is on file with the Trustee as of any Record Date, the
Trustee will pay interest on such Bonds on each succeeding Interest Payment Date by wire
transfer in immediately available funds to such account of a financial institution within the United
States of America as specified in such written request, which written request will remain in effect
until rescinded in writing by the Owner. The Trustee will pay principal of the Bonds in lawful
money of the United States of America by check of the Trustee upon presentation and
surrender thereof at the Office of the Trustee.
The Bonds will bear interest from the Interest Payment Date next preceding the date of
authentication thereof unless a Bond is authenticated on or before an Interest Payment Date
and after the close of business on the preceding Record Date, in which event it will bear interest
from such Interest Payment Date; a Bond is authenticated on or before the first Record Date, in
which event interest thereon will be payable from the Closing Date; or interest on any Bond is in
default as of the date of authentication thereof, in which event interest thereon will be payable
from the date to which interest has been paid in full, payable on each Interest Payment Date.
The Bonds will be issued in fully registered form, without coupons, registered in the
name of The Depository Trust Company, New York, New York ("DTC") or its nominee. DTC will
act as securities depository for the Bonds. So long as the Bonds are held in the book-entry
system of DTC, all payments of principal, interest and premium, if any, will be made by the
Trustee to DTC as the registered owner of the Bonds. See "APPENDIX G - DTC and The
Book-Entry Only System."
Redemption
Optional Redemption. The Bonds maturing on or before February 1, 2015, are not
subject to redemption prior to their respective stated maturities. The Bonds maturing on or after
February 1, 2016, are subject to redemption prior to maturity, at the option of the Authority, in
whole or in part among maturities on such basis as designated by the Authority and by lot within
a maturity, from any available source of funds, on February 1, 2015, and on any Interest
Payment Date thereafter, at a redemption price expressed as a percentage of the principal
amount of Bonds to be redeemed, as set forth in the following table, together with accrued
interest thereon to the date fixed for redemption.
Redemption Dates
February 1,2014 and August 1,2014
February 1,2015 and thereafter
Redemption Price
101%
1 O0%
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The Bonds may be redeemed from any source of available funds. The Authority is
obligated to redeem the Bonds under this optional redemption provision from any Revenues
derived from the prepayment of Installment Payments by the Local Agency (the "Optional
Prepayment Revenues"), and in that event the aggregate principal amount of each maturity of
the Bonds to be redeemed must correspond to the aggregate principal amount of the
Installment Payments which are prepaid.
Mandatory Sinking Fund Redemption. The Bonds maturing on February 1,
(the "Term Bonds") are subject to mandatory redemption in part by lot, at a
redemption price equal to 100% of the principal amount thereof to be redeemed, without
premium, in the aggregate respective principal amounts and on February 1 in the respective
years as set forth in the following table; provided, however, that if some but not all of the Term
Bonds have been redeemed under the foregoing optional redemption provisions, the total
amount of all future sinking fund payments will be reduced by the aggregate principal amount of
the Term Bonds so redeemed, to be allocated among such sinking fund payments on a pro rata
basis in integral multiples of $5,000 (as set forth in a schedule provided by the Authority to the
Trustee).
Sinking Fund
Redemption Date
(February1)
Principal Amount
To Be Redeemed
Notice of Redemption. The Trustee will mail (by first class mail) notice of any
redemption to the respective Owners of any Bonds designated for redemption at their respective
addresses appearing on the Registration Books, to the Insurer, to the Securities Depositories
and to one or more Information Services, at least 30 but not more than 60 days prior to the date
fixed for redemption; provided, however, that neither failure to receive any such notice so mailed
nor any defect therein will affect the validity of the proceedings for the redemption of such
Bonds or the cessation of the accrual of interest thereon.
Such notice must state the date of the notice, the redemption date, the redemption place
and the redemption price and must designate the CUSIP numbers, the Bond numbers (if less
than all Bonds of a maturity are to be redeemed) and the maturity or maturities (in the event of
redemption of all of the Bonds of such maturity or maturities in whole) of the Bonds to be
redeemed, and must require that such Bonds be then surrendered at the Office of the Trustee
identified in such notice for redemption at the redemption price, giving notice also that further
interest on such Bonds will not accrue from and after the redemption date. The redemption
notice may provide that the City has the right to rescind the notice.
Right to Rescind Notice of Optional Redemption. The Authority has the right to
rescind any notice of the optional redemption of Bonds by written notice to the Trustee on or
prior to the dated fixed for redemption. Any notice of optional redemption may be cancelled and
annulled if for any reason funds will not be or are not available on the date fixed for redemption
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for the payment in full of the Bonds then called for optional redemption. The Authority and the
Trustee have no liability to the Owners of the Bonds or any other party related to or arising from
such rescission of optional redemption.
Manner of Redemption. Whenever provision is made for the redemption of less than
all of the Bonds of the same maturity, the Trustee will select the Bonds to be redeemed by lot in
any manner which the Trustee in its sole discretion deems appropriate. For purposes of such
selection, all Bonds will be deemed to be comprised of separate $5,000 denominations and
such separate denominations will be treated as separate Bonds which may be separately
redeemed.
Partial Redemption of Bonds. If only a portion of any Bond is called for redemption,
then upon surrender of such Bond the Authority will execute and the Trustee will authenticate
and deliver to the Owner thereof, at the expense of the Authority, a new Bond or Bonds of the
same series and maturity date, of authorized denominations in aggregate principal amount
equal to the unredeemed portion of the Bond to be redeemed.
Effect of Redemption. From and after the date fixed for redemption, if notice of
redemption has been duly mailed and funds available for the payment of the principal of and
interest (and premium, if any) on the Bonds so called for redemption have been duly provided,
such Bonds so called will cease to be entitled to any benefit under the Indenture other than the
right to receive payment of the redemption price, and no interest will accrue thereon from and
after the redemption date specified in such notice.
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Transfer and Exchange of Bonds
Any Bond 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 a duly authorized attorney
of such person, upon surrender of such Bond to the Trustee at its Office for cancellation,
accompanied by delivery of a written instrument of transfer in a form acceptable to the Trustee,
duly executed. The Trustee is entitled to collect any tax or other governmental charge on the
transfer of any Bonds. Whenever any Bond or Bonds is surrendered for transfer, the Authority
will execute and the Trustee will authenticate and deliver to the transferee a new Bond or Bonds
of like series, interest rate, maturity and aggregate principal amount.
Any Bond may be exchanged at the Office of the Trustee for a like aggregate principal
amount of Bonds of other authorized denominations and of the same series, interest rate and
maturity. The Trustee is entitled to collect any tax or other governmental charge on the
exchange of any Bonds.
The foregoing provisions relating to the transfer and exchange of Bonds are not
applicable to the transfer and exchange of any Beneficial Owner's interests in the Bonds so long
as the Bonds are held in the book-entry system described above.
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DEBT SERVICE FOR THE BONDS
The scheduled Installment Payments have been calculated to be sufficient, in the
aggregate, to enable the Authority to pay the principal of and interest and premium, if any, on
the Bonds when due and payable. The following table sets forth the scheduled debt service on
the Bonds.
Fiscal Year
Ending June 30
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
2032
2033
2034
2035
Total
Principal Interest Total
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SECURITY FOR THE BONDS
The Bonds are secured by a pledge of, lien on, and security interest in all of the
Revenues (described below) and a pledge of all of the moneys in the Revenue Fund, including
all amounts derived from the investment of such moneys. The Bonds are equally secured by a
pledge, charge and lien upon the Revenues and such moneys without priority for number, date
of Bonds, date of execution or date of delivery; and the payment of the interest on and principal
of the Bonds and any premiums upon the redemption of any thereof are secured by an
exclusive pledge, charge and lien upon the Revenues and such moneys. So long as any of the
Bonds are Outstanding, the Revenues and such moneys shall not be used for any other
purpose; except that out of the Revenues there may be apportioned such sums, for such
purposes, as are expressly permitted by the Indenture.
Revenues
In the Indenture, the Authority transfers in trust and assigns to the Trustee, for the
benefit of the Owners from time to time of the Bonds, all of the Revenues and all of the right,
title and interest of the Authority in the Installment Payments. The Trustee is entitled to and will
receive all of the Revenues, and any Revenues collected or received by the Authority are
deemed to be held, and to have been collected or received, by the Authority as the agent of the
Trustee and will forthwith be paid by the Authority to the Trustee.
Under the Indenture, "Revenues" means (a) all amounts derived from or with respect to
the Installment Payments, including but not limited to all Optional Prepayment Revenues and all
other payments of principal thereof and interest thereon, and (b) investment income with respect
to any moneys held by the Trustee in the funds established under the Indenture.
The Installment Payments
General. The Revenues pledged under the Indenture consist primarily of the Installment
Payments.
Under the Indenture and the Installment Sale Agreement, the Authority will assign its
right to receive the Installment Payments to the Trustee, so that all Installment Payments will be
made by the Local Agency directly to the Trustee.
Prepayment. The Installment Payments are subject to the same provisions for
prepayment prior to maturity as the Bonds and a prepayment of any Installment Payments will
result in a redemption of a corresponding portion of Bonds. See "THE BONDS - Redemption"
above.
Pledge of Net Revenues. The Local Agency's obligation to make Installment Payments
is a special obligation of the Local Agency and is secured by an irrevocable pledge of the "Net
Revenues" of the Local Agency's wastewater system. In some cases, the Local Agency's
pledge of Net Revenues to the Installment Payments may be on a parity with the Local
Agency's pledge of Net Revenues to outstanding indebtedness. See Appendix A for further
information.
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The Installment Sale Agreement generally defines the following terms with respect to the
Wastewater System:
"Net Revenues": for any period, an amount equal to all of the Gross Revenues
received during such period minus the amount required to pay all Operation and
Maintenance Costs becoming payable during such period.
"Gross Revenues": all gross charges (including surcharges, if any) received for,
and all other gross income and receipts derived by the City from, the ownership and
operation of the Wastewater System or otherwise arising from the Wastewater System,
including but not limited to:
(a)
all amounts levied by the City as a fee for connecting to the Wastewater
System, as such fee is established from time to time under the laws of the
State of California;
(b)
all income, rents, rates, fees, capital improvement fees (including facilities
capacity and pump zone fees), charges or other moneys derived from the
services, facilities and commodities sold (including recycled water),
furnished or supplied through the facilities of the Wastewater System,
(d)
the earnings on and income derived from the investment of such income,
rents, rates, fees, charges or other moneys to the extent that the use of
such earnings and income is limited by or under applicable law to the
Wastewater System, and
(e)
the proceeds derived by the City directly or indirectly from the sale, lease or
other disposition of a part of the Wastewater System as permitted in this
Agreement.
The term "Gross Revenues" does not include (i) customers' deposits or any other
deposits subject to refund until such deposits have become the property of the City, and
(ii) the proceeds of any special assessments or special taxes levied upon real property
within any improvement City for the purpose of paying special assessment bonds or
special tax obligations of the City relating to the Wastewater System.
Operation and Maintenance Costs": the reasonable and necessary costs paid
or incurred by the City for maintaining and operating the Wastewater System,
determined in accordance with generally accepted accounting principles, including but
not limited to (a) all reasonable expenses of management and repair and other
expenses necessary to maintain and preserve the Wastewater System in good repair
and working order, and (b) all administrative costs of the City that are charged directly or
apportioned to the operation of the Wastewater System, such as salaries and wages of
employees, overhead, taxes (if any) and insurance. "Operation and Maintenance Costs"
do not include (i) administrative costs of the Certificates which the City is required to pay
under the Installment Sale Agreement, (ii) payments of debt service on bonds, notes or
other obligations issued by the City with respect to the Wastewater System, (iii)
depreciation, replacement and obsolescence charges or reserves therefor, and (iv)
amortization of intangibles or other bookkeeping entries of a similar nature.
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An event of default under the Installment Sale Agreement may result in insufficient
Revenues with which to pay the principal of, premium (if any) and interest on the Bonds. See
"APPENDIX C - Summary of Principal Legal Documents - Installment Sale Agreement" for a
further description of the terms of the Installment Sale Agreement, including a description of the
pledge and application of funds for the security of the Installment Payments.
Separate Security for The Installment Sale Agreement. The Installment Sale
Agreement is secured solely by the Net Revenues of the wastewater system.
Application of Gross Revenues. The Local Agency will establish a Wastewater Fund.
Pursuant to the Installment Sale Agreement, the Local Agency will deposit all of the Gross
Revenues in the Wastewater Fund immediately upon receipt, and will apply the amounts in the
Wastewater Fund as set forth in the Installment Sale Agreement and in any Parity Debt
Documents (see "Parity Debt" below).
In addition to the transfers required to be made under any Parity Debt Documents, the
Local Agency will apply amounts on deposit in the Wastewater Fund to pay when due the
following amounts in the following order of priority:
(i) All Operation and Maintenance Costs.
(ii)
Installment Payments and all payments of principal of and interest on any
Parity Debt (as defined in "Parity Debt" below). Payment of the
Installment Payments and the principal of and interest on any Parity Debt
will be made without preference or priority among the Installment
Payments and such Parity Debt. If the amount of Net Revenues on
deposit in the Wastewater Fund are any time insufficient to enable the
Local Agency to pay when due the Installment Payments and the
principal of and interest on any Parity Debt, such payments will be made
on a pro rata basis.
To the Trustee the amount of any deficiency in the Reserve Fund and in
any reserve fund established for any Parity Debt, the notice of which
deficiency has been to the Local Agency.
(iv)
Any other payments required to comply with the provisions of the
Installment Sale Agreement, any outstanding parity debt, and any Parity
Debt Documents.
(v)
Any other purposes authorized under the Installment Sale Agreement.
The Installment Sale Agreement provides that the Local Agency will
manage, conserve and apply the Net Revenues on deposit in the
Wastewater Fund in such a manner that all deposits required to be made
under the Installment Sale Agreement are made at the times and in the
amounts so required. Subject to the foregoing sentence, so long as no
Event of Default has occurred and is continuing hereunder, the Local
Agency may use and apply moneys in the Wastewater Fund for (A) the
payment of any subordinate obligations or any unsecured obligations, (B)
the acquisition and construction of improvements to the Wastewater
System, (C) the prepayment of any other obligations of the Local Agency
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relating to the Wastewater System, or (D) any other lawful purposes of
the Local Agency.
Budget and Appropriation of Installment Payments. The Local Agency covenants in
the Installment Sale Agreement to adopt all 'necessary budgets and make all necessary
appropriations of the Installment Payments from the Net Revenues. If any Installment Payment
requires the adoption by the Local Agency of any supplemental budget or appropriation, the
Local Agency will promptly adopt the same.
Rate Stabilization Fund. The Local Agency has the right at any time under the
Installment Sale Agreement to establish a fund for the purpose of stabilizing the rates and
charges imposed by the Local Agency with respect to the Wastewater System. From time to
time the Local Agency may deposit amounts in the Rate Stabilization Fund, from any source of
legally available funds, including but not limited to Net Revenues which are released from the
pledge and lien which secures the Installment Payments and any Parity Debt, as the Local
Agency may determine.
The Local Agency may, but is not be required to, withdraw from any amounts on deposit
in'the Rate Stabilization Fund and deposit such amounts in the Wastewater Fund in any Fiscal
Year for the purpose of paying the Installment Payments or the principal of and interest on any
Parity Debt coming due and payable in such Fiscal Year. Amounts so transferred from the Rate
Stabilization Fund to the Wastewater Fund in any Fiscal Year will constitute Gross Revenues for
such Fiscal Year (except as otherwise provided herein), and will be applied for the purposes of
the Wastewater Fund. Amounts on deposit in the Rate Stabilization Fund are not pledged to
and do not secure the Installment Payments or any Parity Debt. All interest or other earnings on
deposits in the Rate Stabilization Fund will be retained therein or, at the option of the Local
Agency, be applied for any other lawful purposes. The Local Agency may at any time withdraw
any or all amounts on deposit in the Rate Stabilization Fund and apply such amounts for any
other lawful purposes of the Agency.
Rate Covenant. In the Installment Sale Agreement, the Local Agency covenants to fix,
prescribe, revise and collect rates, fees and charges for the services and facilities furnished by
the Wastewater System (as applicable) during each Fiscal Year, which are at least sufficient,
after making allowances for contingencies and error in the estimates, to yield Gross Revenues
(excluding any amounts derived from a Rate Stabilization Fund) sufficient to pay the following
amounts in the following order of priority:
(a)
All Operation and Maintenance Costs estimated by the Local Agency to
become due and payable in such Fiscal Year.
(b)
All Installment Payments and all payments of principal of and interest on
any Parity Debt as they become due and payable during such Fiscal
Year, without preference or priority.
(c)
All amounts, if any, required to restore the balance in the Reserve Fund
to the full amount of the Reserve Requirement.
(d)
All payments required to meet any other obligations of the Local Agency
which are charges, liens, encumbrances upon, or which are otherwise
payable from, the Gross Revenues or the Net Revenues during such
Fiscal Year.
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In addition, the Local Agency covenants to fix, prescribe, revise and collect rates, fees
and charges for the services and facilities furnished by the Wastewater System (as applicable)
during each Fiscal Year which are sufficient to yield Net Revenues which are at least equal to
120% of the amount described in the preceding clause (b) for such Fiscal Year. For purposes of
the Net Revenue Covenant described in this paragraph, any amounts transferred from a Rate
Stabilization Fund to the Wastewater Fund will be included in the calculation of Gross Revenues
and Net Revenues.
See "RISK FACTORS - Proposition 218" below.
Issuance of Parity Debt. The Installment Sale Agreement provides that, except for
obligations incurred to prepay or discharge the Installment Payments or any Parity Debt, the
Local Agency may not issue or incur any Parity Debt during the term of the Installment Sale
Agreement unless:
(a) No Event of Default has occurred and is continuing.
(b)
The Net Revenues (excluding any amounts derived from a Rate
Stabilization Fund), calculated in accordance with sound accounting
principles, as shown by the books of the Local Agency for the most recent
completed Fiscal Year for which audited financial statements of the Local
Agency are available, or for any more recent consecutive 12 month period
selected by the Local Agency, in either case verified by an Independent
Accountant or a Fiscal Consultant or shown in the audited financial
statements of the Local Agency, plus (at the option of the Local Agency)
any Additional Revenues, at least equal 120% of Maximum Annual Debt
Service (taking into account the Parity Debt then proposed to be issued);
and
(c)
Except in the case of Parity Debt representing a loan from the State or any
agency of the State, or a loan from the federal government or any agency
thereof, there shall be established from the proceeds of such Parity Debt a
reserve fund for the security of such Parity Debt, in an amount equal to the
lesser of (i) the maximum amount of debt service required to be paid by the
Local Agency with respect to such Parity Debt during any Fiscal Year, or (ii)
the maximum amount then permitted under the Tax Code; and
(d) The trustee or fiscal agent for such Parity Debt (if any) is the same entity
performing the functions of Trustee under the Indenture.
Superior and Subordinate Obligations. The Installment Sale Agreement provides that
the Local Agency may not issue or incur any additional bonds or other obligations during the
term of the Installment Sale Agreement having any priority in payment of principal or interest out
of the Gross Revenues or the Net Revenues over the Installment Payments.
However, the Installment Sale Agreement allows the Local Agency to issue or incur (a)
Parity Debt (see "Parity Debt" above), or (b) obligations which are either unsecured or which are
secured by an interest in the Net Revenues which is junior and subordinate to the pledge of and
lien upon the Net Revenues established under the Installment Sale Agreement.
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Reserve Funds
General. The Installment Sale Agreement creates a separate Reserve Fund for
payment of the Installment Payments, and is available for use by the Local Agency.
Deposits. The Trustee for the Installment Sale Agreement will create a Reserve Fund
for such Installment Sale Agreement. The Local Agency's Reserve Fund will initially be funded
with a municipal bond debt service reserve insurance policy issued by the Insurer, in an amount
equal to the Reserve Requirement (as defined below).
Reserve Requirement. The term "Reserve Requirement" means [to come].
Use of Reserve Fund. The Installment Sale Agreement provides that, semiannually on
or prior to each Installment Payment Date, the Trustee will transfer any moneys in the Reserve
Fund in excess of the Reserve Requirement to the Installment Payment Fund to be credited
towards the Installment Payment coming due and payable on such Installment Payment Date.
If on any Installment Payment Date the moneys available in the Installment Payment Fund are
not at least equal to the amount of the Installment Payment then coming due and payable, the
Trustee will apply the moneys available in the Reserve Fund to make such payments on behalf
of the Local Agency by transferring the amount necessary for this purpose to the Installment
Payment Fund.
Qualified Reserve Fund Credit Instrument. On the date of issuance of the Bonds, the
Local Agency will cause the Trustee to take delivery of a separate Qualified Reserve Fund
Credit Instrument from Upon the expiration of any Qualified Reserve Fund
Credit Instrument, the Local Agency will either (a) replace such Qualified Reserve Fund Credit
Instrument with a new Qualified Reserve Fund Credit Instrument, or (b) deposit with the Trustee
an amount of funds equal to the Reserve Requirement, to be derived from any source of legally
available funds of the Local Agency.
No Additional Authority Bonds
Under the Indenture, the Authority has covenanted that it will not issue or incur any
additional bonds, notes or other indebtedness payable out of the Revenues securing the
payment of the Bonds. This provision does not affect the ability of the Local Agency to issue
Parity Debt which is secured by a pledge of Net Revenues on a parity with the pledge which
secures the related Installment Payments.
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MUNICIPAL BOND INSURANCE POLICY
The payment of principal and interest on the Bonds when due will be insured by a bond
insurance policy to be issued concurrently with the delivery of the Bonds by
(the "Insurer" or .... ).
The following information has been furnished by the Insurer for use in this Official
Statement. No representation is made by the Authority, the Local Agency or the Underwriter as
to the accuracy or completeness of such information, or the absence of material adverse
changes therein at any time subsequent to the date hereof. Reference is made to APPENDIX B
for a specimen of the Insurer's policy.
[to come]
-16-
RISK FACTORS
The following information should be considered by prospective investors in evaluating
the Bonds. However, the following does not purport to be an exhaustive listing of risks and
other considerations which may be relevant to investing in the Bonds. In addition, the order in
which the following information is presented is not intended to reflect the relative importance of
any such risks.
Increased Expenses
There can be no assurance that expenses of the Local Agency with respect to its
wastewater system will be consistent with the levels contemplated in this Official Statement.
Changes in technology, increases in the cost of operation or other expenses could require
increases in rates or charges in order to comply with the rate covenant described herein and in
the Installment Sale Agreement, and could increase the possibility of nonpayment of the
Installment Payments and, ultimately, the Bonds.
See Appendix A.
Insurance
The Installment Sale Agreement obligates the Local Agency to obtain and 'keep in force
various forms of insurance or self-insurance, subject to deductibles, for repair or replacement of
a portion of the wastewater system in the event of damage or destruction to such portion of the
wastewater system.
No assurance can be given as to the adequacy of any such self-insurance or any
additional insurance to fund necessary repair or replacement of any other portion of the
wastewater system. Significant damage to the wastewater system could cause the Local
Agency to be unable to generate sufficient Net Revenues to pay the Installment Payments.
Additional Obligations Payable from Net Revenues
The Local Agency may issue bonds or enter into other obligations payable from Net
Revenues pledged for payment of the Installment Payments on a parity with its pledge of such
Net Revenues to the Installment Payments. The ability of the Local Agency to enter into such
parity bonds is subject to certain requirements set forth in The Installment Sale Agreement. See
"SECURITY FOR THE BONDS".
The Local Agency may also issue bonds or enter into obligations payable from Net
Revenues which are subordinate to its Installment Payments.
Proposition 218
On November 5, 1996, California voters approved Proposition 218--Voter Approval for
Local Government Taxes--Limitation on Fees, Assessments, and Charges--Initiative
Constitutional Amendment. Proposition 218 added Articles XIIIC and XIIID to the California
Constitution, imposing certain vote requirements and other limitations on the imposition of new
or increased taxes, assessments and property-related fees and charges.
-17-
See the Appendix A for a discussion of specific issues raised by Proposition 218.
Earthquake Risk
Most regions in California are subject to significant seismic activity. The casualty and
liability insurance maintained by the Local Agency may not cover losses due to earthquake. If
there were to be an occurrence of severe seismic activity in the service areas of the Local
Agency, there could be substantial damage to and interference with the wastewater system of
the Local Agency, which could impact the receipt of Net Revenues.
Bankruptcy Risks
The enforceability of the rights and remedies of the owners of the Bonds and the
obligations of the Local Agency may become subject to the following: the federal bankruptcy
code and applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws relating
to or affecting the enforcement of creditors' rights generally, now or hereafter in effect; usual
equitable principles which may limit the specific enforcement under state law of certain
remedies: the exercise by the United States of America of the powers delegated to it by the
federal Constitution; and the reasonable and necessary exercise, in certain exceptional
situations of the police power inherent in the sovereignty of the State of California and its
governmental bodies in the interest of servicing a significant and legitimate public purpose.
Bankruptcy proceedings, or the exercise of powers by the federal or state government, if
initiated, could subject the owners of the Bonds to judicial discretion and interpretation of their
rights in bankruptcy or otherwise and consequently may entail risks of delay, limitation, or
modification of their rights.
Loss of Tax Exemption
In order to maintain the exclusion from gross income for federal income tax purposes of
the interest on the Bonds, the Authority and the Local Agency have covenanted in the Indenture
and the Installment Sale Agreement, respectively, to comply with each applicable requirement
of Section 103 and Sections 141 through 150 of the Internal Revenue Code. The interest on
the Bonds could become includable in gross income for purposes of federal income taxation
retroactive to the date of issuance of the Bonds, as a result of acts or omissions of the Authority
or the Local Agency in violation of this or other covenants in the Indenture and the Installment
Sale Agreement, respectively. Should such an event of taxability occur, the Bonds are not
subject to redemption or any increase in interest rates and will remain outstanding until maturity
or until redeemed under one of the redemption provisions contained in the Indentures. See
"TAX MATTERS" herein.
TAX MATTERS
Federal Income Tax Treatment of Interest. In the opinion of Jones Hall, A Professional
Law Corporation, Bond Counsel, subject, however, to the qualifications set forth below, under
existing law, the interest on the Bonds is excluded from the gross income for federal income tax
purposes, and is not an item of tax preference for purposes of the federal alternative minimum
tax imposed on individuals and corporations; it should be noted, however, that, for purposes 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.
-18-
The opinions set forth in the preceding paragraph are subject to the condition that the
Authority and the Local Agency comply with all requirements of the Internal Revenue Code of
1986 (the "Tax Code") that must be satisfied subsequent to the issuance of the Bonds in order
that such interest be, or continue to be, excluded from gross income for federal income tax
purposes. The Authority and the Local Agency have each covenanted to comply with each
such requirement. Failure to comply with certain of such requirements may cause the inclusion
of interest on' the Bonds in gross income for federal income tax purposes to be retroactive to the
date of issuance of the Bonds.
Federal Income Tax Treatment of Certain Premium and Discount. If the initial offering
price to the public (excluding bond houses and brokers) at which a Bond is sold is less than the
amount payable at maturity thereof, then such difference constitutes "original issue discount" for
purposes of federal income taxes and State of California personal income taxes. If the initial
offering price to the public (excluding bond houses and brokers) at which each Bond is sold is
greater than the amount payable at maturity thereof, then such difference constitutes "original
issue premium" for purposes of federal income taxes and State of California personal income
taxes. Deminimis original issue discount is disregarded.
Under the Tax Code, original issue discount is treated as interest excluded from federal
gross income and exempt from State of California personal income taxes to the extent properly
allocable to each owner thereof subject to the limitations described in the first paragraph of this
section. The original issue discount accrues over the term to maturity of the Bond on the basis
of a constant interest rate compounded on each interest or principal payment date (with
straight-line interpolations between compounding dates). The amount of original issue discount
accruing during each period is added to the adjusted basis of such Bonds to determine taxable
gain upon disposition (including sale, redemption, or payment on maturity) of such Bond. The
Tax Code contains certain provisions relating to the accrual of original issue discount in the
case of purchasers of the Bonds who purchase the Bonds after the initial offering of a
substantial amount of such maturity. Owners of such Bonds should consult their own tax
advisors with respect to the tax consequences of ownership of Bonds with original issue
discount, including the treatment of purchasers who do not purchase in the original offering, the
allowance of a deduction for any loss on a sale or other disposition, and the treatment of
accrued original issue discount on such Bonds under federal individual and corporate
alternative minimum taxes.
Under the Tax Code, original issue premium is amortized on an annual basis over the
term of the Bond (said term being the shorter of the Bond's maturity date or its call date). The
amount of original issue premium amortized each year reduces the adjusted basis of the owner
of the Bond for purposes of determining taxable gain or loss upon disposition. The amount of
original issue premium on a Bond is amortized each year over the term to maturity of the Bond
on the basis of a constant interest rate compounded on each interest or principal payment date
(with straight-line interpolations between compounding dates). Amortized Bond premium is not
deductible for federal income tax purposes. Owners of Premium Bonds, including purchasers
who do not purchase in the original offering, should consult their own tax advisors with respect
to State of California personal income tax and federal income tax consequences of owning such
Bonds.
California Tax Treatment of Interest. In further opinion of Bond Counsel, interest on the
Bonds is exempt from California personal income taxes.
-19-
Additional Tax Considerations. Owners of the Bonds should also be aware that the
ownership or disposition of, or the accrual or receipt of interest on, the 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 Bonds other than as
expressly described above.
Bond Counsel Opinion. The form of Bond Counsel's opinion is set forth in Appendix D.
RATING
Based upon the Bond Insurer's commitment to deliver its policy of municipal insurance
for the Bonds, Standard & Poor's Ratings Services ("S&P") and Moody's Investors Service
("Moody's") have assigned their municipal bond rating of .... and .... , respectively, to the
Bonds, with the understanding that upon delivery of the Bonds, a bond insurance policy insuring
the payment When due of the principal and interest evidenced by the Bonds will be issued by
the Insurer.
A rating reflects only the views of the rating organization and an explanation of the
significance of such rating may be obtained from the rating organization. Generally, a rating
agency bases its rating on the information and materials furnished to it and on investigations,
studies and assumptions of its own. There is no assurance such rating will continue for any
given period of time or that such rating will not be revised downward or withdrawn entirely by the
rating agency, if in the judgment of the rating agency, circumstances so warrant. Any downward
change in or withdrawal of the rating might have an adverse effect on the market price or
marketability of the Bonds.
UNDERWRITING
The Bonds are being purchased by
Underwriter has agreed to purchase the
$ (constituting the $
Bonds, plus a net original issue premium of $
of $ .).
Bonds
(the "Underwriter"). The
at an aggregate purchase price of
aggregate principal amount of the
and less an Underwriter's discount
The Underwriter will purchase all of the Bonds, if any are purchased. The obligation to
make such purchase is subject to certain terms and conditions, the approval of certain legal
matters by counsel, and certain other conditions.
The Underwriter may offer and sell Bonds to certain dealers and others at a price lower
than the offering price stated on the cover page of this Official Statement. The offering price
may be changed from time to time by the Underwriter.
CONTINUING DISCLOSURE
The Authority. The Authority has covenanted in a continuing disclosure certificate (the
"Authority Continuing Disclosure Certificate"), for the benefit of the holders and beneficial
owners of the Bonds, to provide notices of the occurrence of certain enumerated events. The
notices of such events will be timely filed by the Authority or the dissemination agent with the
-20-
Repositories and a State repository, if any. The specific nature of the information to be
contained in the notices of material events and certain other terms of the Authority Continuing
Disclosure Certificate are summarized in "APPENDIX E - Form of Authority Continuing
Disclosure Certificate." These covenants have been made to assist the Underwriter in
complying with Securities and Exchange Commission Rule 15c2-12(b)(5) (the "Rule").
The Authority has never failed to comply, in any material respect, with an undertaking
under the Rule.
The Local Agency. The Local Agency has covenanted in a continuing disclosure
certificate (each a "Local Agency Continuing Disclosure Certificate"), for the benefit of the
holders and beneficial owners of the Bonds, to provide annually certain financial information and
operating data relating to the Local Agency by not later nine months following the end of the
Local Agency's fiscal year (which currently ends on June 30), or March 31 of each year
commencing March 31, 2007, including the audited Financial Statements of the Local Agency
(together, the "Local Agency Annual Report"), and to provide notices of the occurrence of
certain other enumerated events.
The City of Ukiah has never failed to comply, in any material respect, with an
undertaking under the Rule.
The specific nature of the information to be contained in the Local Agency Annual Report
or notices of material events and certain other terms of the Local Agency Continuing Disclosure
'Certificate are summarized in "APPENDIX F - Form of Local Agency Continuing Disclosure
Certificate."
ABSENCE OF LITIGATION
The Local Agency. The Local Agency will certify (or its legal counsel will issue an
opinion) in connection with the issuance of the Bonds to the effect that there is no action, suit or
proceeding known to the Local Agency to be pending or threatened, restraining or enjoining the
execution or delivery of the Bonds, the Installment Payments, the Indenture or the Installment
Sale Agreement, or in any way contesting or affecting the validity of the foregoing or any
proceeding of the Local Agency taken with respect to any of the foregoing.
The Authority. There is no pending or, to the best knowledge of the Authority,
threatened litigation seeking to restrain or enjoin the issuance, sale, execution or delivery of the
Bonds, or in any way contesting or affecting the validity of the Bonds or any proceeding of the
Authority taken with respect to the issuance or sale thereof, the pledge or application of any
moneys or security provided for the payment of the Bonds, or existence or powers of the
Authority, or the authority of the Authority to enter into any document relating to the Indenture,
the Installment Sale Agreement or the Bonds.
CERTAIN LEGAL MATTERS
Jones Hall, A Professional Law Corporation, San Francisco, California, Bond Counsel,
will render an opinion with respect to the validity and enforceability of the Indenture and as to
the validity of the Bonds. The proposed form of this opinion is attached as APPENDIX D.
-21-
Certain legal matters will also be passed upon for the Authority by Jones Hall, A
Professional Law Corporation, as Disclosure Counsel, and for the Local Agency by the City
Attorney. Certain legal matters will also be passed upon by Kenneth K Moy, counsel to the
Authority. Bond Counsel and Disclosure Counsel will receive compensation contingent upon
the sale and delivery of the Bonds.
EXECUTION
This Official Statement and its distribution have been duly authorized and approved by
the Authority and the Local Agency.
ASSOCIATION OF BAY AREA GOVERNMENTS
Finance Director
-22-
APPENDIX A
INFORMATION CONCERNING THE CITY OF UKIAH'S WASTEWATER SYSTEM
The City of Ukiah
Incorporated on March 8, 1876, the City of Ukiah (the "City") is located approximately
100 miles north of San Francisco in the northern coastal region of California on U.S. Highway
101. The area is centrally located between the Bay Area, Eureka and Sacramento. With the
northern Coastal Mountains as a backdrop, the City is situated in the fertile Yokayo Valley.
Surrounded by rich grape vineyards and pear orchards, Ukiah is just over an hour drive from the
Mendocino Coast and the coastal redwoods.
The largest industry in the City and in the rest of Mendocino County (the "County") is
agriculture. However, in the past 10 years more and more small non-agricultural manufacturer,
information firms and mail order businesses have started operations here. And, as the County
seat, a large number of the City's residents are employed by government.
The City operates under a Council-City Manager form of government and provides a full
range of services, including police, fire fighting and medical emergency, wastewater collection,
treatment and disposal of effluent, water treatment and distribution, electric power distribution
and generation, street lighting and maintenance, parks and recreation, and a municipal golf
course.
The current members of the City's City Council are listed below:
Member
Mark Ashiku, Mayor
Phil Baldwin, Vice Mayor
Mari Rodin
Doug Crane
John McCowen
Ending date of current term
November 2006
November 2006
November 2008
November 2008
November 2006
See "Background Demographic Information" below.
Service Area
The City and the Ukiah Valley Sanitation District (the "Sanitation District") provide
sewer collection, treatment and disposal (the "Wastewater System") to a population of
approximately 35,000 residents. The Sanitation District was created by the Board of
Supervisors of Mendocino County on July 6, 1954 for the purpose of providing sewer service for
the unincorporated areas suburban to the City.
Pursuant to a Participation Agreement, dated July 19, 1995, as amended by an
Amendment No. 1 dated March 24, 1999, and an Amendment No. 2 dated December 15, 2004
(as amended, the "Participation Agreement"), the City and the Sanitation District have agreed
that the City will operate, as a unified system, the wastewater treatment plant, the District's
collection and transmission system and the City's system for the collection and disposal of
wastewater (the "Wastewater System").
A-1
As of April 2005, the Wastewater System served over 8,600 accounts totaling more than
10,600 sewer units. A sewer unit is defined as being a single unit of sewer discharge having
characteristics of flow, B.O.D. and suspended solids equivalent to that generated by a typical
single family residential unit. The definition of a sewer unit is included in the Participation
Agreement between the City and District and is used to allocate Costs between the City and
District.
Management
General. Day to day management of the Wastewater System is the responsibility of the
City's Public Utilities Department. The City's Finance Department is in charge of billing and
collection for City and Sanitation District customers. Sewer bills are included in a consolidated
bill that includes charges for electricity, water, garbage and sewer service. Bills are mailed on a
monthly basis.
Participation Agreement. Pursuant to a Participation Agreement, dated July 19, 1995,
as amended by an Amendment No. 1 dated March 24, 1999, and an Amendment No. 2 dated
December 15, 2004 (as amended, the "Participation Agreement"), the City and the Sanitation
District have agreed that the City will operate the Wastewater System on behalf of itself and the
Sanitation District.
Pursuant to the Participation Agreement:
The annual costs for entire sewer system (treatment plant, trunk and sewer
collection system of the City and District), including maintenance, operation,
administration, repair and replacement, upgrading, debt service, insurance and
financial services are allocated between the City and the District annually.
[Additional description to come].
· The City is the paying and receiving agent for all Sanitation District operation and
maintenance funds.
Title, management and control of the sewer treatment plant and any additions or
changes to it remain in the City. The City is obligated to maintain the plant and
furnish personnel for the maintenance, operation and control of the plant. The
City is also obligated to service and maintain the trunk lines and collection lines.
The City will operate, maintain and repair the Sanitation District's sewage
collection system, including all sewer mains and laterals constructed within the
District as part of its sewer collection system. The City will construct all required
sewer laterals for new connections from the nearest main to the property line. If
a subdivider is required to install sewer lines as a condition of the subdivision's
approval, the City is required to inpect the lines to ensure compliance with District
standards but the City is not required to construct the lines or contract for their
construction.
The District will establish by ordinance or resolution, as appropriate, such rules
and regulations as are necessary for the orderly administrating of the District's
System. The District will fix, prescribe and revise rates, connection fees and
other fees and charges for the services and facilities.
A-2
The Participation Agreement provides that the Board of Directors of the Sanitation
District and the City Council of the City will meet together at least once each year prior to the
commencement of the fiscal year (i.e., July 1), for, among other purposes, approving the annual
budget for the Wastewater System operations. The City prepares the budget and the Board of
Directors of the Sanitation District and the City Council must both approve it (the Participation
Agreement establishes a resolution process for disputed items).
The term of the Participation Agreement is 30 years (terminating July 19, 2025). Either
party may terminate by giving the other party 5 years' advance written notice (subject to
restrictions on termination established by the Financing Agreement, as described in the
Financing Agreement section below).
In 2004 the City and District updated the Participation Agreement in anticipation of the
rehabilitation/upgrade of the existing treatment plant (collectively, the "Project"). The City and
the Sanitation District executed Amendment No. 2 Dated 2004), providing as follows, among
other things:
Increased capacity would be allocated between the Sanitation District (65%) and
the City (35%) based on an estimate of the number of units that will be needed
by the City and District through 2020. The allocation of increased capacity is
subject to annual review to insure the cost sharing reflects the actual proportion
of new connections between City and District.
Each of the Sanitation District and the City will establish rates (connection fees
and sewer service fees) sufficient to pay its share of the costs of the Project. The
Sanitation District is allocated 65% of such costs and the City is allocated 35% of
such costs (subject to annual review).
Financing Agreement. In anticipation of issuance of the Bonds, the City and the
Sanitation District executed a Financing Agreement, dated as of January __, 2006, in which the
parties agreed as follows:
A portion of the City's Installment Payments (the "Sanitation District Payments")
will be apportioned to the Sanitation District in accordance with the methodology
set forth in the Participation Agreement.
The Sanitation District will fix, prescribe and revise rates, fees and charges for
the services and facilities furnished by the Sanitation District's portion of the
Wastewater System during each fiscal year of the Sanitation District, which are at
least sufficient, after making allowances for contingencies and error in the
estimates, to yield net revenues (being total revenues less all other costs
apportioned to the Sanitation District under the Participation Agreement for the
operation, maintenance and repair of the Sanitation District's portion of the
Wastewater System) which are at least equal to 120% of the aggregate amount
of District Payments for such fiscal year. All such revenues will be collected by
the City in accordance with the Participation Agreement, and the City will apply
such revenues to pay the Sanitation District Payments on behalf of the Sanitation
District. For purpose of this covenant, transfers from a Rate Stabilization Fund in
any fiscal year will be included in the net revenues for such fiscal year.
A-3
The Sanitation District has the right at any time to establish a Rate Stabilization
Fund to be held by it or by the City for the purpose of stabilizing the rates and
charges imposed by the Sanitation District with respect to the Wastewater
System. From time to time the Sanitation District may deposit amounts in the
Rate Stabilization Fund, from any source of legally available funds, as the
Sanitation District may determine.
The Sanitation District may, but is not be required to, withdraw from any amounts
on deposit in the Rate Stabilization Fund and transfer such amounts to the City in
any fiscal year for the purpose of paying any portion of the District Payments
coming due and payable in such fiscal year. Amounts on deposit in a Rate
Stabilization Fund are not pledged to and do not secure the District Payments.
All interest or other earnings on deposits in the Rate Stabilization Fund will be
retained therein or, at the option of the Sanitation District, be applied for any
other lawful purposes. The Sanitation District may at any time withdraw any or
all amounts on deposit in the Rate Stabilization Fund and apply such amounts for
any other lawful purposes of the Sanitation District.
The Sanitation District may not issue or incur any additional bonds or other
obligations having any priority in payment out of the revenues levied hereunder
over the Sanitation District Payments, or which are secured on a parity with the
Sanitation District Payments.
So long as the Authority Bonds remain outstanding, the City and the Sanitation
District will not cancel the Participation Agreement or permit the Participation
Agreement to terminate in accordance with its terms, unless the Sanitation
District first enters into an agreement with the Authority containing terms and
provisions which are substantially similar to the terms and provisions of the
Installment Sale Agreement. [Revisions will be incorporated]
Wastewater System Facilities
Existing Facilities. The Wastewater System's existing facilities include the following a
collection system and treatment plant. The original plant was built in 1958 with a capacity of 2.5
MGD average dry weather flow (ADWF) and peak wet weather flow (PWWF) of 10.5 MGD with
all discharge to the Russian River. The design BOD and TSS loadings were each 5,400 pounds
per day. In 1974 the Regional Board eliminated the year round discharge to the Russian River
and a combination of evaporation/percolation ponds were added to dispose of effluent between
May and September. In 1983 the plant capacity was increased to 2.8 MGD ADWF and 7.0
MGD PDWF. In 1986 a third percolation pond was added and in 1989 a pumping station was
constructed. To meet Regional Board standards, advanced wastewater treatment (AVVT) was
added in 1995. AWT consists of ferric chloride and polymer addition before clarification and
dual-media filtration. The effluent from the secondary clarifiers is disinfected in a chlorine pipe
contactor and then pumped to the AWT facility and/or discharged to the evaporation/percolation
ponds (B&C 1-1).
Future Facilities. The project was designed to produce a plant that can reliably meet
effluent requirements for the design year 2025 and produce Class A biosolids. A new influent
pump station will be built to address deficiencies of the existing one. Two climber-type bar
screens and a bypass channel will be used to remove coarse solids. Four aerated grit tanks will
A-4
be added and the existing secondary clarifiers will be converted to primary clarifiers. New
trickling filter will provide plant redundancy and a pre-aeration tank will be converted to an
equipment gallery to house the snail separation and dewatering facilities. The existing primary
clarifiers will be converted to solids contact tanks to meet current and future discharge
requirements.
Wastewater Volume
The following table sets forth the volume of wastewater treated by the Wastewater
System in the 10 previous fiscal years.
Table 1
City of UkiahlUkiah Valley Sanitation District
Wastewater System
Wastewater Volume
Fiscal Years -
Need to confirm with Tim B at B&C (design engineers)
Ye a r
2OO4
2003
2002
2001
2000
1999
1998
1997
1996
1995
Average Flow
In Year
(Million Gallons/Day)
Average Flow
In Peak Month
(Million Gallons/Day)
10 Year Average
Latest 3 Year Average
Source: City of Ukiah.
Customer Base
The following table sets forth a five-year history of the number of accounts for the
Wastewater System.
A-5
Table 2
City of UkiahlUkiah Valley Sanitation District
Wastewater System
Number of Accounts
Fiscal Year 2000-01 through 2004-05
Number of
Fiscal Year Accounts [1]
2004-05 8,600
2003-04 8,076
2002-03 7,969
2001-02 7,989*
2000-01 7,698
(1)
Source: For 2004/05 from April 2005 query, for remainder years from
Sewer Statistics report as of March of each year; for March 2002
there is an adjustment for a data entry error.
The following table shows billings as a percentage of total billings of the Sewer System
by type of customer for active accounts during Fiscal Year 2004-05 [Pending].
User Type
Table 3
City of UkiahlUkiah Valley Sanitation District
Wastewater System
Summary of Accounts and Billings by User Type
Fiscal Year 2004-05
Billings Percent of
('$000s) Total (4)
Residential 1,662 69.5%
Commercial 731 30.5%
Other 0 0.0%
Total 2,393 100.0%
Source: City of Ukiah Budget 2005~06; projected actuals for 2004/05
A-6
The following table sets forth the Wastewater System's major users and their flows for
2004/05 based on a total annual flow of
Table 4
City of Ukiah/Ukiah Valley Sanitation District
Wastewater System
Largest Users
Fiscal Year 2004105
City of Ukiah/Ukiah Valley Sanitation District
Wastewater System
10 Largest Users
Fiscal Year 2004/05
Business
Name
% of
Gross Total Gross
Revenues Revenues
UKIAH UNIFIED SCH. DIST
MENDOCINO BREWING CO.
G & O MOBILE COUNTRY CLUB
DEEP VALLEY MOBILE HOME PARK
MENDOCINO COMM. COLLEGE
HENNY PENNY RESTAURANT
PLEASANT CARE INC
NOR CAL FOODS LLC
DISCOVERY INN
FOXCREEK APTS
36,000
18 000
16 000
16 000
14 000
13 000
11 000
11 000
10 000
91000
154,000 6.44%
Source: BWA estimates based on projected actuals for 2004/05
1.50%
0.75%
O.67%
0.67%
O.59%
O.54%
0.46%
0.46%
0.42%
0.38%
Rates and Charges
The City and the Sanitation District's establish service rates to pay for the operations of
the sewer system and capacity/connection fees to fund the growth/expansion of the system.
The City and Sanitation District adopted an updated rate structure and a series of increases in
November of 2005. New service rates became effective December 2005.
In the November 2005 rate structure update the City and Sanitation District eliminated
the flat rates that had been in place for over 10 years and adopted a consumption based rate
structure that rates include a service charge and a connection fee.
Service Charge. The City Council approved the current sewer service charge structure
pursuant to Resolution No. 2006-20 adopted on November 21 2005. The Board of Directors of
the Sanitation District approved the same sewer service charge structure pursuant to Ordinance
No. 25 adopted on November 2, 2005.
In both cases, the service charge is based on consumption (subject to a minimum
service charge for each category)l which is defined as the amount of water used in the month of
A-7
January as measured by the water meter at the location of the sewer service. Water use is
measured in units of one hundred cubic feet ("HCF"), which is equal to 748 gallons. Each unit
of consumption is billed at the consumption rate for the appropriate customer category. Sewer
System customers are classified as Residential, Commercial or Industrial based on the
content/strength of their discharge, as established by industry standards and Regional Water
Quality Control Board guidelines. Unit sewer rates for each customer category are based on the
cost of treating each unit of effluent for that category.
Table 5
City of UkiahlUkiah Valley Sanitation District
Wastewater System
Adopted Sewer Service Charges
Typical SFR (1)
Sewer Rates Effective:
Dec 1,2005 July 1, 2006 July 1, 2007 July 1, 2008 July 1, 2009
$28.00 $38.00 $43.00 $55.00 $62.90
Residential Rates
Fixed/minimum (per month per dwelling)
Consumption unit rate ($/hcf)
$20.97 $28.43 $32.26 $41.31 $47.18
0.82 1.12 1.27 1.62 1.85
Commercial Rates (2)
Low strength unit rate ($/hcf)
Moderate strength unit rate ($/hcf)
Medium strength unit rate ($/hcf)
High strength unit rate ($/hcf)
Special (3)
3.29 4.46 5.06 6.48 7.40
3.51 4.77 5.41 6.92 7.91
6.22 8.44 9.57 12.24 13.99
8.01 10.87 12.32 15.77 18.02
(1) Projected monthly bill for a typical single family residence with Janua~ water use of 8.5 hcf
(2) Commercial customers are charged for consumption times the unit rate but no less than the residential fixed/minimum monthly
rate
(3) Determined on a case-by-case basis
Comparative Service Charges. The following table compares the sewer service charge
imposed by the City and the Sanitation District with those of neighboring communities,
assuming [type of use, e.g., residential, and volume]
A-8
Table 6
City of UkiahlUkiah Valley Sanitation District
Wastewater System
Comparative Service Charges
Agency Ra~
[Updated sewer rate comparisons to come]
Source: City of Ukiah.
Connection Fee. The City Council approved a Sewer System connection fee of
$ pursuant to Resolution No. , adopted on ~ [Discuss additional provisions
as warranted]
The Board of Directors of the Sanitation District approved a Sewer System connection
fee of $ pursuant to Ordinance No. , adopted on [Discuss additional
provisions as warranted]
Environmental and Regulatory Compliance
In the Participation Agreement, the Sanitation District and the City covenant to comply
with the waste discharge/NPDES permits issued to the City for the operation of the Wastewater
System and with applicable provisions of state and federal law.
The City believes that it is currently in material compliance with all applicable
environmental laws and regulations applicable to its Wastewater System, and believes the
Sanitation District is similarly in material compliance [discuss basis for this representation].
Employee Retirement and Health Care
One of the expenses of the Wastewater System is its share of the City's pension and
health care benefit plans. For fiscal year 2004-05, the City allocated approximately % of
these costs to the Wastewater System. [update for fiscal year 2004-05]
A-9
Employee Retirement Systems. The City's two defined benefit pension plans,
Miscellaneous Plan of the City of Ukiah and Safety Plan of the City of Ukiah (the "Plans"),
provide retirement and disability benefits, annual cost-of-living adjustments, and death benefits
to plan members and beneficiaries. The Plans are part of the Public Agency portion of the
California Public Employees Retirement System (CalPERS), an agent multiple-employer plan
administered by CalPERS, which acts as a common investment and administrative agent for
participating public employees within the State of California. State statutes within the Public
Employees' Retirement Law establish a menu of benefit provisions as well as other
requirements.
Funding Policy. Active plan members in the Plans are required to contribute 8.0%
(10% for safety employees) of their annual covered salary. The City is required to contribute the
actuarially determined remaining amounts necessary to fund the benefits for its members. The
actuarial methods and assumptions used are those adopted by the CalPERS Board of
Administration. The required employer contribution rate for fiscal 2003-04 was 8.871%. The
contribution requirements of the plan members are established by State statute and the
employer contribution rate is established and may be amended by CalPERS.
Annual Pension Cost. For fiscal year 2003-04 the City's annual pension cost was
$432,580 for miscellaneous employees and $0 for safety employees. In addition, the City paid
$678,926 representing substantially all of the employees' required contributions under the terms
of the City's various employee bargaining unit agreements. The required contribution for fiscal
year 2003-04 was determined as part of the June 30, 2001, actuarial valuation using the entry
age normal actuarial cost method with the contributions determined as a percent of pay.
The actuarial assumptions include (a) 8.25% investment rate of return (net of
administrative expenses); (b) projected salary increases that vary by duration of service ranging
from 3.75% to 14.20% for miscellaneous members (4.27% to 11.59% for safety members), and
(c) 3.75% cost-of-living adjustment. Both (a) and (b) include an inflation component of 3.5%.
The actuarial value of the Plan's assets was determined using a technique that smoothes the
effect of short-term volatility in the market value of investments over a two to five year period
depending on the size of the investment gains and/or losses.
Three-Year Trend Information
Year Ending Annual Pension Cost Net Pension Net Pension
June 30 Miscellaneous Safety Obligation Obligation
2002 $ 0 $0 100% $0
2003 0 0 100 0
2004 432,580 0 100 0
As of June 30, 2003 (based on a CalPERS statement dated October 2004), the
unfunded accrued actuarial liability (UAAL) of the City's Miscellaneous Plan was $5,940,255
and the unfunded actuarial liability of the City's Safety Plan was $372,690. The Plans' unfunded
actuarial liabilities are being amortized as a level percentage of projected payrolls on a closed
basis. The remaining amortization period was 31 years (15 years for safety) as of June 30,
2004.
Deferred Compensation. The City offers its employees deferred compensation plans
created in accordance with Internal Revenue Code Section 457. The plans, available to all City
employees, permit employees to defer a portion of their salary until future years. Participation in
A-10
the plans is optional. The deferred compensation is not available to employees until termination,
retirement, death, or unforeseeable emergency. The City has adopted the provisions of GASB
Statement 32 and, therefore, the assets and liabilities of these plans are excluded from its
financial statements.
Health Benefits. The City pays a fixed contribution to the cost of employees' medical
benefits. The City does not pay any health benefits when employees separate from service with
the City.
Proposition 218
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 generally became
effective on November 6, 1996, changes, among other things, the procedure for the imposition
of any new or increased "fee" or "charge," which is defined as "any levy other than an ad
valorem tax, a special tax or an assessment, imposed by a [local government] upon a parcel or
upon a person as an incident of property ownership, including user fees or charges for a
property related service" (and referred to herein as a "property-related fee or charge").
Specifically, Article XIIID requires that, 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 property-related
fee or charge.
Further, revenues derived from a property-related 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. Further, the amount of a property-
related fee or charge may not exceed the proportional cost of the service attributable to the
parcel and no property-related 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.
Since Proposition 218 was enacted in 1996, appellate court cases and an Attorney
General opinion have indicated that fees and charges levied for water and wastewater services
are not property-related fees and charges and thus are not subject to the above described
requirements regarding notice, hearing and protests in connection with any increase in the fees
and charges being imposed.
However, in Richmond v. Shasta Community Services District (9 Cal. Rptr. 3rd 121), the
California Supreme Court addressed the applicability of the notice, hearing and protest
provisions of Article XlIID to certain water service-related charges. In Richmond, the Court held
that connection charges, including those similar to the City's "Facilities Fees," are not subject to
Proposition 218. The Court also indicated in dicta that a fee for ongoing water service through
an existing connection could, under certain circumstances, constitute a property-related fee and
charge, with the result that a local government imposing such a fee and charge must comply
with the notice, hearing and protest requirements of Article XlIID.
A-11
In July 2004 the California Court of Appeal, Fourth District, held, in Bighorn-Desert View
Water Agency v. Beringson (180 Cal. App 4th 890), that the costs of water services are not
property related or incidents of property ownership because they are based on consumption and
not on property ownership. The Court had reached this conclusion previously in an earlier
decision in the Bighorn case, but the California Supreme Court had directed the California Court
of Appeal to reconsider its decision in light of the Richmond case mentioned above. The
California Supreme Court has granted a petition for hearing in the Bighorn case. The Agency is
unable to predict when the California Supreme Court will hear the case, or what the outcome of
that hearing will be.
Most recently, in Howard Jarvis Taxpayers Association v. City of Fresno (March 23,
2005), the California Court of Appeal, Fifth District concluded that water, sewer and trash fees
are property-related fees subject to Proposition 218 and must comply with Article XlIID. The
California Supreme Court denied the City of Fresno's petition for review of the Court of Appeal's
decision on June 15, 2005.
The City most recently adopted rates for the Wastewater System on November 2, 2005
and did so in compliance with Proposition 218. [discuss Sanitation District]
The provisions of Proposition 218 have not been fully interpreted by the courts. The City
is unable to predict how Article XIIIC and Article XIIID will be interpreted by the courts and what,
if any, further implementing legislation will be enacted, and 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 increased fees and charges for the Wastewater System.
Litigation
At the time of issuance of the Bonds, the City will certify, that to the best knowledge of
the City, there is no action, suit, proceeding or investigation at law or in equity before or by any
court or governmental agency or body pending or threatened against the City to restrain or
enjoin the authorization, execution or delivery of the Installment Sale Agreement, or the pledge
of the Net Revenues or the collection of the Installment Payments, or in any way contesting or
affecting validity of the Installment Sale Agreement, or in any way contesting or affecting the
transactions described in this Official Statement.
Outstanding Indebtedness
Net Revenues of the Wastewater Enterprise have been pledged by the City to the
following indebtedness:
A loan from the California Department of Water Resources in the maximum
amount of $6,592,944 maturing , , with an interest rate of 3% (the "State
Loan"). As of June 30, 2005, the outstanding principal amount of the State Loan
was $. . Principal of and interest on the State Loan are payable annually.
[If appropriate, discuss Rural Economic Development Infrastructure Program
loan to Ukiah Valley Sanitation District of $475,595 (balance of $180,503 as of
6/30/04). City is not obligated to repay the loan but shows it as a liability within
the City's agency funds]
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· [Discuss any other outstanding indebtedness of the City's wastewater enterprise
or the Sanitation District.]
The following table shows Wastewater System revenues and expenses for fiscal years
2001-02 through 2004-05 based on the City's audited financial statements; the City's audited
financial statements for fiscal year 2004-05 are attached at the end of this Appendix.
Table 7
City of UkiahlUkiah Valley Sanitation District
Wastewater System
Sewer Fund - Summary of Revenues and Expenses
2001-02 through 2004-05
[To
Revenue
Service Charges
Interest Earned (1)
Other Revenue
2001-02 2002-03 2003-04 2004-05
$2,302,000 $2,283,000 $2,363,000 $2,393,000
235,000 224,000 (61,000) 17,000
24,000 33,000 53,000 68,000
2,561,000 2,540,000 2,355,000 2,478,000
Total Revenue
Expenditures
Salaries and Benefits
Operations and Maintenance
Capital Expenditures
Total Expenditures
778,000 868,000 929,000 963,000
1,333,000 1,376,000 1,364,000 1,574,000
177,000 218,000 185,000 92,000
2,288,999 21,462,000 2,478,000 2,629,000
Net Revenues $273,000 $78,000 ($123,000) ($151,000)
(1) [Explain trend]
Source: City of Ukiah.
be updated based on 2004-05 audited financial statements.]
Projected Operating Results and Debt Service Coverage
The following table presents a summary of projected Wastewater System revenues,
expenses and debt coverage ratios. [Draft version shown: (1) describe assumptions about
expense increases and rate increases and (2) show debt service and debt service coverage]
A-13
Table 8
City of UkiahlUkiah Valley Sanitation District
Wastewater System
Pro Forma Cash Flow
Fiscal Year 2005-06 through 2009-10
Revenues
Service Charge Revenues (1)
Interest Earnings (2)
Connection Fees (3)
Other Revenues
Total Revenues
2005/06 2006/07 2007/08 2008/09 2009/10
2,895,000 5,140,000 5,876,000 7,581,000 8,602,000
109,000 225,000 262,000 307,000 351,000
982,000 982,000 982,000 982,000 982,000
15,000 15,000 15,000 15,000 15,000
4,001,000 6,362,000 7,135,000 8,885,000 9,950,000
Operating Expenses
Salaries and Benefits (4)
Operations and Maintenance (5)
Total Operating Expenses
1,094,554 1,182,000 1,277,000 1,379,000 1,434,000
1,558,999 1,606,000 1,654,000 1,704,000 1,755,000
2,653,553 2,788,000 2,931,000 3,083,000 3,189,000
Net Revenues (6)
1,347,447 3,574,000 4,204,000 5,802,000 6,761,000
Debt Service
Outstanding Parity Debt
Projected Debt Service on the Bonds
Less Capitalized Interest (7)
Total Debt Service
426,000 426,000 426,000 426,000 426,000
0 3,300,000 3,500,000 3,900,000 4,750,000
~ (1,400,000) (1,200,000) ~ ~
426,000 2,326,000 2,726,000 4,326,000 5,176,000
Income Available for Capital and
Other Purposes
921,447 1,248,000 1,478,000 1,476,000 1,585,000
Debt Service Coverage (8)
3.16 1.54 1.54 1.34 1.31
I Based on sewer rate schedule adopted November 2, 2005 and updated customer account data.
2 Projected at 3.5% of estimated beginning annual fund reserves.
3 Conservatively estimated based on 90 new sewer billing units per year, lower than historical growth.
4 Projected to escalate at the annual rate of 8% through 2008/09, then at the annual rate of 4% thereafter.
5 Projected to escalate at the annual rate of 3%.
6 Net Revenues equal Total Revenues less Operating Expenses.
7 Capitalized interest to be funded from City reserves concurrent with the bond issuance.
8 Debt Service Coverage equals Net Revenues divided by Total Debt Service.
A-14
City Investment Practices
The City invests its funds, including funds of the Wastewater System, in accordance with
the City's Investment Policy, most recently amended in September 2002. Management
responsibility for the City's investments is delegated, for a one-year period, subject to annual
review and delegation, to the City Treasurer. The City Treasurer may further delegate day-to-
day management to a professional external investment advisor. The City Treasurer reports to
the Investment Oversight Committee and the City Council on a monthly basis.
According to the most recent investment report provided to the City Council, for the year
ended ,2006, the City has invested funds as set forth in the table below. As of
,
2006, the market value of the investment portfolio was approximately ~% of the investment
portfolio's book value. The net annual yield of the portfolio as of ,2006 was %.
CITY OF UKIAH
Investment Portfolio Summary
(as of ,2006)
Type of Investment
Book Value Market Value Percent of Total
[To come]
TOTAL
Source: City of Ukiah.
Background Demographic Information
Population. Population estimates of the past five years for the City, the County and the
State are shown in the following table.
CITY OF UKIAH, COUNTY OF MENDOClNO AND STATE OF CALIFORNIA
Population Estimates
Calendar Years 2001 through 2005
Year City of Ukiah Mendocino County State of California
2001 15,595 87,014 34,441,561
2002 15,700 87,865 35,088,671
2003 15,943 88,650 35,691,442
2004 15,943 89,369 36,271,091
2005 15,959 89,974 36,810,358
Source: California State Department of Finance.
A-15
Employment. According to the California Employment Development Department, for
calendar year 2004, the unemployment rate was 6.5% for the County of Mendocino and 6.6%
for the City of Ukiah..
The table below shows the County's labor patterns during 2000 through 2004.
'COUNTY OF MENDOCINO
Wage and Salary Employment
Calendar Years 2000 through 2004
2000 2001 2002 2003 2004
Civilian Labor Force 43,720 44,800 46,060 45,450 44,190
Employment 41,310 42,150 43,000 42,340 41,330
Unemployment 2,410 2,650 3,060 3,110 2,860
Unemployment Rate 5.5% 5.9% 6.6% 6.9% 6.5%
Agricultural 2,490 2,470 2,340 2,170 2,410
Total Non-Agricultural 30,250 30,980 31,530 30,890 29,620
Construction 1,490 1,640 1,660 1,610 1,480
Natural Resources & Mining 650 480 360 350 340
Manufacturing 4,790 4,080 3,750 3,380 3,140
Trade, Transportation & Public
Utilities 5,870 6,080 6,050 5,940 5,920
Wholesale Trade 610 640 640 600 610
Retail Trade 4,560 4,730 4,670 4,630 4,630
Finance & Insurance 560 590 590 630 620
Real Estate, Rental & Leasing 390 560 580 570 580
Services 790 850 840 820 750
Government 6,370 6,750 7,750 7,840 7,380
Source: California Employment Development Department.
The table below shows the City's labor patterns during 2000 through 2004.
CITY OF UKIAH
Wage and Salary Employment
Calendar Years 2000 through 2004
Civilian Labor Force
Employment
Unemployment
Unemployment Rate
2000 2001 2002 2003 2004
7,400 7,700 7,800
7,000 7,200 7,300
400 500 500
5.6% 6.0% 6.8%
Source: California Employment Development Department.
7,7OO
7,20O
5OO
7.O%
7,500
7,000
50O
6.6%
A-16
Commercial Activity. Total taxable sales during the first three quarters of calendar
year 2004 in the City were reported to be $273,610,000, a 8.1% increase over the total taxable
sales of $253,143,000 reported during the first three quarters of calendar year 2003. The
number of establishments selling merchandise subject to sales tax and the valuation of taxable
transactions in the City is presented in the following table. Annual figures for 2004 are not yet
available.
CITY OF UKIAH
Taxable Retail Sales
Number of Permits and Valuation of Taxable Transactions
(Dollars in Thousands)
Retail Stores
Total All Outlets
Number Taxable Number Taxable
of Permits Transactions of Permits Transactions
1999 307 $252,332 694 $278,820
2000 337 271,063 701 299,073
2001 315 293,141 674 322,678
2002 325 306,854 694 337,094
2003 367 312,003 746 346,531
Source: California State Board of Equalization, Taxable Sales in California (Sales & Use Tax).
Total taxable sales during the first three quarters of calendar year 2004 in the County
were reported to be $833,598,000 a 6.3% increase over the total taxable sales $784,056,000
reported during the first three quarters of calendar year 2003. The number of establishments
selling merchandise subject to sales tax and the valuation of taxable transactions in the County
is presented in the following table. Annual figures for 2004 are not yet available.
A-17
COUNTY OF MENDOCINO
Taxable Retail Sales
Number of Permits and Valuation of Taxable Transactions
(Dollars in Thousands)
Retail Stores
Total All Outlets
Number Taxable Number Taxable
of Permits Transactions of Permits Transactions
1999 1,341 $644,055 3,579 $ 896,221
2000 1,383 705,365 3,549 982,128
2001 1,382 720,407 3,624 1,006,273
2002 1,407 758,790 3,620 1,040,646
2003 1,527 788,924 3,742 1,064,891
Source: State Board of Equalization.
Largest Employers. The following tables list some of the largest non-manufacturing and
manufacturing/distribution employers within the County area.
COUNTY OF MENDOClNO
Largest Employers
(As of January 1, 2005)
Employer Name
Coyote Valley Shodakai Casino
Fetzer Tasting Room & Visitor
Fetzer Vineyards
Fetzer Vineyards
Forest Ranger Unit Hdqrs
Frank R Howard Memorial Hosp
Hardwood
Harwood Products Inc
Home Depot
Hopland Sho Ka Wah Casino
Laborers Hod Carriers Local
Little River Inn
Mendocino Coast District Hosp
Mendocino County Coroner Ofc
Mendocino County Food Stamps
Mendocino County Social Svc
Mental Health Svc-Mendocino
Metalfx
Raley's Supermarket
Retech
Safeway
Trinity School
Ukiah City Hall
Ukiah Valley MediCal Ctr
Wal-Mart
Location
Redwood Valley
Hopland
Hopland
Hopland
Willits
Willits
Branscomb
Branscomb
Ukiah
Hopland
Ukiah
Littleriver
Fort Bragg
Ukiah
Ukiah
Ukiah
Ukiah
Willits
Ukiah
Ukiah
Ukiah
Ukiah
Ukiah
Ukiah
Ukiah
Industry
Casinos
Wineries
Bed & Breakfast Accommodations
Bed & Breakfast Accommodations
Government Offices-State
Hospitals
Hardwoods
Lumber-Wholesale
Home Improvements
Casinos
Associations
Resorts
Hospitals
Government Offices-County
County Government-Social/Human Resources
County Government-Social/Human Resources
Mental Health Services
Sheet Metal Fabricators
Grocers-Retail
Importers
Grocers-Retail
Schools
City Government-Executive Offices
Hospitals
Department Stores
Source: State of California Employment Development Department.
A-18
Effective Buying Income. "Effective Buying Income" is defined as personal income
less personal tax and nontax payments, a number often referred to as "disposable" or "after-tax"
income. Personal income is the aggregate of wages and salaries, other labor-related income
(such as employer contributions to private pension funds), proprietor's income, rental income
(which includes imputed rental income of owner-occupants of non-farm dwellings), dividends
paid by corporations, interest income from all sources, and transfer payments (such as
pensions and welfare assistance). Deducted from this total are personal taxes (federal, state
and local), nontax payments (fines, fees, penalties, etc.) and personal contributions to social
insurance. According to U.S. government definitions, the resultant figure is commonly known as
"disposable personal income."
The following table summarizes the total effective buying income for the County of
Mendocino, the State and the United States for the period 1999 through 2003. Annual figures
for 2004 are not yet available.
EFFECTIVE BUYING INCOME
For Calendar Years 1999 Through 2003
(As of January 1)
Year
Area
Total Effective
Buying Income
(000s omitted)
Median Household
Effective
Buying Income
1999
County of Mendocino $ 1,200,656 $28,315
California 590,376,663 39,492
United States 4,877,786,658 37,233
2000
County of Mendocino $ 1,283,336 $30,998
California 652,190,282 44,464
United States 5,230,824,904 39,129
2001
County of Mendocino $ 1,322,332 $31,848
California 650,521,407 43,532
United States 5,303,481,498 38,365
2002
County of Mendocino $ 1,434,410 $33,590
California 647,879,427 42,484
United States 5,340,682,818 38,035
2003
County of Mendocino $ 1,446,248 $34,072
California 674,721,020 42,924
U n ited States 5,466,880,008 38,201
Source: Sales and Marketing Management, The Survey of Buying Power, Demographics USA.
A-19
Assessed Valuations. The following table shows the assessed valuations for the City
from 1999-00 through 2004-05.
Year Local Secured Utility Unsecured Total
1999-00 $651,560,762 $13,469 $49,446,261 $701,020,492
2000-01 684,894,512 0 51,454,905 736,349,417
2001-02 716,876,355 0 53,056,515 769,932,870
2002-03 770,075,813 0 50,289,853 820,365,666
2003-04 831,902,128 0 53,614,565 885,516,693
2004-05 880,920,012 0 53,186,288 934,106,300
2005-06 953,993,844 0 60,179,094 1,014,172,938
Source: California Municipal Statistics, Inc.
Construction
The following tables show a five year summary of the valuation of building permits
issued in the City and County.
CITY OF UKIAH
BUILDING PERMIT VALUATION
(Valuation in Thousands of Dollars)
2000 2001 2002 2003 2004
Permit Valuation:
New Single-family $ 469.9 $1,509.7 $1,392.3 $1,575.7 $ 381.9
New Multi-family 609.3 2,408.3 11,971.2 0.0 433.7
Res. Alterations/Additions 1,221.6 1,324.5 2,669.5 2,353.5 2,871.1
Total Residential 2,300.9 5,242.5 16,032.9 3,929.2 3,686.7
New Commercial 102.9 11,286.4 2,306.2 600.0 4,032.6
New Industrial 0.0 152.6 0.0 1,581.0 0.0
New Other 2,287.3 3,242.7 2,057.3 1,512.6 2,192.8
Com. Alterations/Additions 1,613.3 2,161.4 2,538.4 3,190.7 3,085.0
Total Nonresidential 4,003.5 16,843.2 6,901.9 6,884.4 9,310.3
New Dwelling Units:
Single Family 4 14 9 9 4
Multiple Family 11 3.._~8 113 0 10
TOTAL 15 52 122 9 14
Source: Construction Industry Research Board, Building Permit Summary.
A-20
COUNTY OF MENDOCINO
BUILDING PERMIT VALUATION
(Valuation in Thousands of Dollars)
2000 2001 2002 2003 2004
Permit Valuation:
New Single-family $21,126.4 $24,534.4 $29,973.8 $33,061.2 $27,928.0
New Multi-family 58.8 2,659.7 12,888.5 213.6 1,991.5
Res. Alterations/Additions 8,682.2 8,532.0 13,989.6 15,091.5 14,280.2
Total Residential 29,867.5 35,726.1 56,851.9 48,366.2 44,199.8
New Commercial 1,324.3 13,857.2 4,988.4 1,521.9 4,559.5
New Industrial 3,016.1 4,917.2 416.7 6,332.0 1,980.2
New Other 7,036.0 9,311.2 9,073.1 8,036.2 7,375.6
Com. Alterations/Additions 7,940.9 7,411.8 7,927.1 8,581.7 8,514.8
Total Nonresidential 19,317.2 35,497.6 22,405.3 24,471.7 22,430.1
New Dwelling Units:
Single Family 268 308 335 378 318
Multiple Family 2 45 123 4_ 3..~2
TOTAL 270 353 458 382 350
Source: Construction Industry Research Board, Building Permit Summary.
A-21
[INSERT CITY OF UKIAH AUDITED FINANCIAL STATEMENTS HERE]
A-22
APPENDIX B
SPECIMEN BOND INSURANCE POLICY
APPENDIX C
SUMMARY OF PRINCIPAL LEGAL DOCUMENTS
The following is a brief summary of the provisions of the Indenture of Trust for the Bonds
and the individual Installment Sale Agreement. Such summary is not intended to be definitive,
and reference is made to the complete documents for the complete terms thereof.
C-1
APPENDIX D
PROPOSED FORM OF BOND COUNSEL OPINION
D-1
APPENDIX E
FORM OF AUTHORITY CONTINUING DISCLOSURE CERTIFICATE
This CONTINUING DISCLOSURE CERTIFICATE (the "Disclosure Certificate") is
executed and delivered by the ASSOCIATION OF BAY AREA GOVERNMENTS (the
"Authority") in connection with the issuance by the Authority of its $ 2006 Water
and Wastewater Revenue Bond, Series A (the "Bonds"). The Bonds are being issued under an
Indenture of Trust, dated as of January 1, 2006 (the "Indenture"), between the Authority and
Wells Fargo Bank, National Association, as trustee (the "Trustee"). The Authority covenants and
agrees as follows:
Section 1. Purpose of the Disclosure Certificate. This Disclosure Certificate is being
executed and delivered by the Authority for the benefit of the holders and beneficial owners of
the Bonds and in order to assist the Participating Underwriters in complying with S.E.C. Rule
15c2-12(b)(5).
Section 2. Definitions. In addition to the definitions set forth in the Trust Agreement,
which apply to any capitalized term used in this Disclosure Certificate unless otherwise defined
in this Section 2, the following capitalized terms shall have the following meanings:
"Dissemination Agent" shall mean Wells Fargo Bank, National Association, or any
successor Dissemination Agent designated in writing by the Authority and which has filed with
the Authority and the Trustee a written acceptance of such designation.
"Listed Events" shall mean any of the events listed in Section 3(a) of this Disclosure
Certificate.
"National Repository" shall mean any Nationally Recognized Municipal Securities
Information Repository for purposes of the Rule.
"Participating Underwriter" shall mean any of the original underwriters of the Bonds
required to comply with the Rule in connection with offering of the Bonds.
"Repository" shall mean each National Repository and each State Repository.
"Rule" shall mean Rule 15c2-12(b)(5) adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as the same may be amended from
time to time.
"State Repository" shall mean any public or private repository or entity designated by the
State of California as a state repository for the purpose of the Rule and recognized as such by
the Securities and Exchange Commission. As of the date of this Disclosure Certificate, there is
no State Repository.
Section 3. Reporting of Significant Events.
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(a) Under the provisions of this Section 3, the Authority shall give, or cause to be
given, notice of the occurrence of any of the following events with respect to the Bonds,
if material:
(i)
(ii)
(~ii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
Principal and interest payment delinquencies.
Non-payment related defaults.
Unscheduled draws on debt service reserves reflecting financial
difficulties.
Unscheduled draws on credit enhancements reflecting financial
difficulties.
Substitution of credit or liquidity providers, or their failure to perform.
Adverse tax opinions or events affecting the tax-exempt status of the
security.
Modifications to rights of Bond holders.
Contingent or unscheduled redemption of Bonds.
Defeasances.
Release, substitution, or sale of property securing repayment of the
securities.
Rating changes.
(b) Whenever the Authority obtains knowledge of the occurrence of a Listed
Event, the Authority shall as soon as possible determine if such event would be material
under applicable Federal securities law.
(c) If the Authority determines that knowledge of the occurrence of a Listed Event
would be material under applicable Federal securities law, the Authority shall promptly
file a notice of such occurrence with the Municipal Securities Rulemaking Board and
each State Repository with a copy to the Trustee. Notwithstanding the foregoing, notice
of Listed Events described in subsections (a)(viii) and (ix) need not be given under this
subsection any earlier than the notice (if any) of the underlying event is given to holders
of affected Bonds under the Trust Agreement.
Section 4. Termination of Reporting Obligation. The Authority's obligations under this
Disclosure Certificate shall terminate upon the legal defeasance, prior redemption or payment in
full of all of the Bonds. If such termination occurs prior to the final maturity of the Bonds, the
Authority shall give notice of such termination in the same manner as for a Listed Event under
Section 3(c).
Section 5. Dissemination Agent. The Authority may, from time to time, appoint or engage
a Dissemination Agent to assist it in carrying out its obligations under this Disclosure Certificate,
and may discharge any such Dissemination Agent, with or without appointing a successor
Dissemination Agent. The initial Dissemination Agent shall be Wells Fargo Bank, National
Association. Any Dissemination Agent may resign by providing thirty days' written notice to the
Authority and the Trustee.
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Section 6. Amendment; Waiver. Notwithstanding any other provision of this Disclosure
Certificate, the Authority may amend this Disclosure Certificate, and any provision of this
Disclosure Certificate may be waived, provided that the following conditions are satisfied:
(a) if the amendment or waiver relates to the provisions of Section 3(a), it may
only be made in connection with a change in circumstances that arises from a change in
legal requirements, change in law, or change in the identity, nature, or status of an
obligated person with respect to the Bonds, or type of business conducted;
(b) the undertakings herein, as proposed to be amended or waived, would, in the
opinion of nationally recognized bond counsel, have complied with the requirements of
the Rule at the time of the primary offering of the Bonds, after taking into account any
amendments or interpretations of the Rule, as well as any change in circumstances; and
(c) the proposed amendment or waiver either (i) is approved by holders of the
Bonds in the manner provided in the Indenture for amendments to the Indenture with the
consent of holders, or (ii) does not, in the opinion of nationally recognized bond counsel,
materially impair the interests of the holders or beneficial owners of the Bonds.
Section 7. Additional Information. Nothing in this Disclosure Certificate shall be deemed
to prevent the Authority from disseminating any other information, using the means of
dissemination set forth in this Disclosure Certificate or any other means of communication, or
including any other information in any notice of occurrence of a Listed Event, in addition to that
which is required by this Disclosure Certificate. If the Authority chooses to include any
information in any notice of occurrence of a Listed Event in addition to that which is specifically
required by this Disclosure Certificate, the Authority shall have no obligation under this
Disclosure Certificate to update such information or include it in any future notice of occurrence
of a Listed Event.
Section 8. Default. In the event of a failure of the Authority to comply with any provision
of this Disclosure Certificate the Trustee, at the written direction of any Participating Underwriter
or the holders of at least 25% aggregate principal amount of Outstanding Bonds, shall, but only
to the extent moneys or other indemnity, satisfactory to the Trustee, has been furnished to the
Trustee to hold it harmless from any loss, costs, liability or expense, including fees and
expenses of its attorneys and any additional fees of the Trustee, or any holder or beneficial
owner of the Bonds may, take such actions as may be necessary and appropriate, including
seeking mandate or specific performance by court order, to cause the Authority to comply with
its obligations under this Disclosure Certificate. A default under this Disclosure Certificate shall
not be deemed an Event of Default under the Trust Agreement, and the sole remedy under this
Disclosure Certificate in the event of any failure of the Authority to comply with this Disclosure
Certificate shall be an action to compel performance.
Section 9. Duties, Immunities and Liabilities of Dissemination Agent. The Dissemination
Agent and the Trustee shall have only such duties as are specifically set forth in this Disclosure
Certificate. The Dissemination Agent shall be paid compensation in accordance with the
indenture for its services provided hereunder in accordance with its schedule of fees as
amended from time to time and all expenses, legal fees and advances made or incurred by the
Dissemination Agent in the performance of its duties hereunder. The Dissemination Agent and
the Trustee shall have no duty or obligation to review any information provided to it by the
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Authority and shall not be deemed to be acting in any fiduciary capacity for the Authority, the
Bond holders or any other party.
E-4
Section 10. Beneficiaries. This Disclosure Certificate shall inure solely to the benefit of
the Authority, the Trustee, the Dissemination Agent, the Participating Underwriters and holders
and beneficial owners from time to time of the Bonds, and shall create no rights in any other
person or entity.
Date: ,2006
ASSOCIATION OF BAY AREA
GOVERNMENTS
By
Finance Director
ACKNOWLEDGED:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Dissemination Agent
By
Vice President
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APPENDIX F
FORM OF LOCAL AGENCY CONTINUING DISCLOSURE CERTIFICATE
This CONTINUING DISCLOSURE CERTIFICATE (the "Disclosure Certificate") is
executed and delivered by the City of Ukiah (the "Local Agency") in connection with the
issuance by the Association of Bay Area Governments of its $ 2006 Water and
Wastewater Revenue Bonds, Series A (the "Bonds"). The Bonds are being issued under an
Indenture of Trust, dated as of January 1, 2006 (the "Indenture"), between the Association of
Bay Area Governments (the "Authority") and Wells Fargo Bank, National Association, as trustee
(the "Trustee"). The Bonds are secured by and payable from Revenues, which consist, in part,
of payments (the "Installment Payments") made by the Local Agency under an Installment Sale
Agreement, dated as of January 1, 2006 (the "Installment Sale Agreement"), among the
Authority, the Trustee and the Local Agency.
The Local Agency covenants and agrees as follows:
Section 1. Purpose of the Disclosure Certificate. This Disclosure Certificate is being
executed and delivered by the Local Agency for the benefit of the holders and beneficial owners
of the Bonds and in order to assist the Participating Underwriters in complying with S.E.C. Rule
15c2-12(b)(5).
Section 2. Definitions. In addition to the definitions set forth in the Trust Agreement,
which apply to any capitalized term used in this Disclosure Certificate unless otherwise defined
in this Section 2, the following capitalized terms shall have the following meanings:
"Annual Report" shall mean any Annual Report provided by the Local Agency under, and
as described in, Sections 3 and 4 of this Disclosure Certificate.
"CPO" means the Internet-based filing system currently located at
www. DisclosureUSA.org, or such other similar filing system approved by the Securities and
Exchange Commission.
"Dissemination Agent" shall mean , or any successor Dissemination Agent
designated in writing by the Local Agency and which has filed with the Local Agency and the
Trustee a written acceptance of such designation.
"National Repository" shall mean any Nationally Recognized Municipal Securities
Information Repository for purposes of the Rule.
"Participating Underwriter" shall mean any of the original underwriters of the Bonds
required to comply with the Rule in connection with offering of the Bonds.
"Repository" shall mean each National Repository and each State Repository.
"Rule" shall mean Rule 15c2-12(b)(5) adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as the same may be amended from
time to time.
"State Repository" shall mean any public or private repository or entity designated by the
State of California as a state repository for the purpose of the Rule and recognized as such by
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the Securities and Exchange Commission. As of the date of this Disclosure Certificate, there is
no State Repository.
Section 3. Provision of Annual Reports.
(a) The Local Agency shall, or upon written direction shall cause the
Dissemination Agent to, not later than nine months after the end of the Local Agency's
fiscal year (currently June 30), commencing with the report for the 2005-06 fiscal year,
provide to each Repository (or, in lieu of providing to each Repository, provide to the
CPO) an Annual Report which 'is consistent with the requirements of Section 4 of this
Disclosure Certificate with a copy to the Trustee. Not later than fifteen (15) Business
Days prior to said date, the Local Agency shall provide the Annual Report to the
Dissemination Agent (if other than the Local Agency). The Annual Report may be
submitted as a single document or as separate documents comprising a package, and
may include by reference other information as provided in Section 4 of this Disclosure
Certificate; provided that the audited financial statements of the Local Agency may be
submitted separately from the balance of the Annual Report, and later than the date
required above for the filing of the Annual Report if not available by that date. If the Local
Agency's fiscal year changes, it shall give notice of such change to the Municipal
Securities Rulemaking Board and each State Repository with a copy to the Trustee. The
Local Agency shall provide a written certification with each Annual Report furnished to
the Dissemination Agent and the Trustee to the effect that such Annual Report
constitutes the Annual Report required to be furnished by the Local Agency hereunder.
(b) If the Local Agency is unable to provide to the Repositories an Annual Report
by the date required in subsection (a), the Local Agency shall, by written direction, cause
the Dissemination Agent to provide to (i) each National Repository or the Municipal
Securities Rulemaking Board and (ii) each appropriate State Repository (with a copy to
the Trustee) a notice, in substantially the form attached as Exhibit A. In lieu of filing the
notice with each Repository, the Local Agency or the Dissemination Agent may file such
notice with the CPO.
(c) The Dissemination Agent shall:
(i) determine each year prior to the date for providing the Annual Report
the name and address of each National Repository and each State Repository, if
any; and
(ii) if the Dissemination Agent is other than the Local Agency, file a report
with the Local Agency certifying that the Annual Report has been provided under
this Disclosure Certificate, stating the date it was provided and listing all the
Repositories to which it was provided.
Section 4. Content of Annual Reports. The Local Agency's Annual Report shall contain
or incorporate by reference the following:
(a) Audited Financial Statements prepared in accordance with generally
accepted accounting principles as promulgated to apply to governmental entities from
time to time by the Governmental Accounting Standards Board. If the Local Agency's
audited financial statements are not available by the time the Annual Report is required
to be filed under Section 3(a), the Annual Report shall contain unaudited financial
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statements in a format similar to the financial statements contained in the final Official
Statement, and the audited financial statements shall be filed in the same manner as the
Annual Report when they become available.
(b) Unless otherwise provided in the audited financial statements filed on or prior
to the annual filing deadline for Annual Reports provided for in Section 3 above, financial
information and operating data with respect to the Local Agency for preceding fiscal
year, substantially similar to that provided in the corresponding tables and charts in the
Official Statement for the Bonds:
(i) An update for the previous fiscal year of the table in the
Official Statement showing coverage provided by the Local Agency's Net
Revenues with respect to the Installment Payments.
(ii) The Wastewater System's revenues and expenses for the
most recently-completed fiscal year in the form of the table in the Official
Statement.
(iii) Information concerning any revision in the adopted rates
and charges which are generally imposed by the Local Agency upon
customers of the Wastewater System in the form of the tables in the
Official Statement.
(iv) A description of any additional indebtedness incurred
during the prior fiscal year which is payable from Net Revenues on a
parity with the Installment Payments.
Any or all of the items listed above may be included by specific reference to other
documents, including official statements of debt issues of the Local Agency or related
public entities, which have been submitted to each of the Repositories or the Securities
and Exchange Commission. If the document included by reference is a final official
statement, it must be available from the Municipal Securities Rulemaking Board. The
Local Agency shall clearly identify each such other document so included by reference.
(c) In addition to any of the information expressly required to be provided under
this Disclosure Certificate, the Local Agency shall provide such further material
information, if any, as may be necessary to make the specifically required statements, in
the light of the circumstances under which they are made, not misleading.
Section 5. Reporting of Significant Events.
(a) The Local Agency shall give, or cause to be given, notice of the
occurrence of any of the following events with respect to the Installment Payments, if
material:
(1) Principal and interest payment delinquencies.
(2) Non-payment related defaults.
(3) Unscheduled draws on debt service reserves reflecting financial
difficulties.
(4) Unscheduled draws on credit enhancements reflecting financial
difficulties.
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(5)
(6)
(7)
(8)
(9)
(10)
(11)
Substitution of credit or liquidity providers, or their failure to
perform.
Adverse tax opinions or events affecting the tax-exempt status of
the security.
Modifications to rights of security holders.
Contingent or unscheduled bond calls.
Defeasances.
Release, substitution, or sale of property securing repayment of the
securities.
Rating changes.
(b) Whenever the Local Agency obtains knowledge of the occurrence of a
Listed Event, the Local Agency shall as soon as possible determine if such event would
be material under applicable Federal securities law.
(c) If the Local Agency determines that knowledge of the occurrence of a
Listed Event would be material under applicable Federal securities law, the Local
Agency shall promptly file a notice of such occurrence with (i) each National Repository
or the Municipal Securities Rulemaking Board and (ii) each applicable State Repository.
Notwithstanding the foregoing, notice of Listed Events described in subsections (a)(8)
and (9) need not be given under this subsection any earlier than the notice (if any) of the
underlying event is given to holders of affected Bonds pursuant to the Indenture.
In lieu of filing the notice of Listed Event with each Repository in accordance with
the preceding paragraph, the Local Agency or the Dissemination Agent may file such
notice of a Listed Event with the CPO.
Section 6. Termination of Reportin,q Obli,qation. The Local Agency's obligations under
this Disclosure Certificate shall terminate upon the legal defeasance, prior prepayment or
payment in full of all of the Installment Payments. If such termination occurs prior to the final
maturity of the Local Agency's obligations under the Installment Payments, the Local Agency
shall promptly file a notice of such occurrence in the same manner as for a Listed Event under
Section 5(c).
Section 7. Dissemination A,qent. The Local Agency may, from time to time, appoint or
engage a Dissemination Agent to assist it in carrying out its obligations under this Disclosure
Certificate, and may discharge any such Dissemination Agent, with or without appointing a
successor Dissemination Agent. The initial Dissemination Agent shall be
Any Dissemination Agent may resign by providing thirty days' written
notice to the Local Agency and the Trustee.
Section 8. Amendment; Waiver. Notwithstanding any other provision of this Disclosure
Certificate, the Local Agency may amend this Disclosure Certificate, and any provision of this
Disclosure Certificate may be waived, provided that the following conditions are satisfied:
(a) if the amendment or waiver relates to the provisions of Sections 3(a), 4 or
5(a), it may only be made in connection with a change in circumstances that arises from
a change in legal requirements, change in law, or change in the identity, nature, or
status of an obligated person with respect to the Bonds, or type of business conducted;
F-4
(b) the undertakings herein, as proposed to be amended or waived, would, in the
opinion of nationally recognized bond counsel, have complied with the requirements of
the Rule at the time of the primary offering of the Bonds, after taking into account any
amendments or interpretations of the Rule, as well as any change in circumstances; and
(c) the proposed amendment or waiver either (i) is approved by holders of the
Bonds in the manner provided in the Indenture for amendments to the Indenture with the
consent of holders, or (ii) does not, in the opinion of nationally recognized bond counsel,
materially impair the interests of the holders or beneficial owners of the Bonds.
If the annual financial information or operating data to be provided in the Annual Report
is amended under the provisions hereof, the first annual financial information filed pursuant
hereto containing the amended operating data or financial information shall explain, in narrative
form, the reasons for the amendment and the impact of the change in the type of operating data
or financial information being provided.
If an amendment is made to the undertaking specifying the accounting principles to be
followed in preparing financial statements, the annual financial information for the year in which
the change is made shall present a comparison between the financial statements or information
prepared on the basis of the new accounting principles and those prepared on the basis of the
former accounting principles. The comparison shall include a qualitative discussion of the
differences in the accounting principles and the impact of the change in the accounting
principles on the presentation of the financial information, in order to provide information to
investors to enable them to evaluate the ability of the Local Agency to meet its obligations. To
the extent reasonably feasible, the comparison shall be quantitative. A notice of the change in
the accounting principles shall be sent to the Municipal Securities Rulemaking Board and each
State Repository with a copy to the Trustee.
Section 9. Additional Information. Nothing in this Disclosure Certificate shall be deemed
to prevent the Local Agency from disseminating any other information, using the means of
dissemination set forth in this Disclosure Certificate or any other means of communication, or
including any other information in any Annual Report or notice of occurrence of a Listed Event,
in addition to that which is required by this Disclosure Certificate. If the Local Agency chooses to
include any information in any Annual Report or notice of occurrence of a Listed Event in
addition to that which is specifically required by this Disclosure Certificate, the Local Agency
shall have no obligation under this Disclosure Certificate to update such information or include it
in any future Annual Report or notice of occurrence of a Listed Event.
Section 10. Default. In the event of a failure of the Local Agency to comply with any
provision of this Disclosure Certificate the Trustee, at the written direction of any Participating
Underwriter or the holders of at least 25% aggregate principal amount of Outstanding Bonds,
shall, but only to the extent moneys or other indemnity, satisfactory to the Trustee, has been
furnished to the Trustee to hold it harmless from any loss, costs, liability or expense, including
fees and expenses of its attorneys and any additional fees of the Trustee, or any holder or
beneficial owner of the Bonds may, take such actions as may be necessary and appropriate,
including seeking mandate or specific performance by court order, to cause the Local Agency to
comply with its obligations under this Disclosure Certificate. A default under this Disclosure
Certificate shall not be deemed an Event of Default under the Installment Sale Agreement or the
indenture, and the sole remedy under this Disclosure Certificate in the event of any failure of the
Local Agency to comply with this Disclosure Certificate shall be an action to compel
performance.
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Section 11. Duties, Immunities and Liabilities of Dissemination Agent. The Dissemination
Agent and the Trustee shall have only such duties as are specifically set forth in this Disclosure
Certificate, and the Local Agency agrees to indemnify and save the Dissemination Agent and
the Trustee, their officers, directors, employees and agents, harmless against any loss, expense
and liabilities which they may incur arising out of or in the exercise or performance of its powers
and duties hereunder, including the costs and expenses (including attorneys fees) of defending
against any claim of liability, but excluding liabilities due to the Dissemination Agent's or the
Trustee's respective negligence or willful misconduct. The Dissemination Agent shall be paid
compensation by the Local Agency for its services provided hereunder in accordance with its
schedule of fees as amended from time to time and all expenses, legal fees and advances
made or incurred by the Dissemination Agent in the performance of its duties hereunder. The
Dissemination Agent and the Trustee shall have no duty or obligation to review any information
provided to it by the Local Agency and shall not be deemed to be acting in any fiduciary
capacity for the Local Agency, the Bond holders or any other party. The obligations of the Local
Agency under this Section 11 shall survive resignation or removal of the Dissemination Agent
and payment of the Bonds.
SECTION 12. Beneficiaries. This Disclosure Certificate shall inure solely to the benefit of
the Local Agency, the Trustee, the Dissemination Agent, the Participating Underwriters and
holders and beneficial owners from time to time of the Bonds, and shall create no rights in any
other person or entity.
Date: ,2006
CITYOF UKIAH
[ACKNOWLEDGED:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Dissemination Agent
By
Title
By
Vice President
F-6
EXHIBIT A
NOTICE TO MUNICIPAL SECURITIES RULEMAKING BOARD AND EACH STATE REPOSITORY OF
FAILURE TO FILE ANNUAL REPORT
Name of Issuer:
Association of Bay Area Governments
Name of Local Agency: City of Ukiah
Name of Issue: Association of Bay Area Governments $ 2006
Water and Wastewater Revenue Bonds, Series A
Date of Issuance: ,2006
NOTICE IS HEREBY GIVEN that the City of Ukiah (the "Local Agency") has not provided
an Annual Report with respect to the above-named Bonds as required by that certain
Installment Sale Agreement, dated as of January 1, 2006, between the Authority, the trustee
named therein, and the Local Agency. The Local Agency anticipates that the Annual Report will
be filed by
Dated:
CITYOF UKIAH
By
Name
Title
F-7
APPENDIX G
DTC AND THE BOOK-ENTRY ONLY SYSTEM
The information in this Appendix concerning The Depository Trust Company ("DTC"),
New York, New York, and DTC's book-entry system has been obtained from DTC and the
Authority takes no responsibility for the completeness or accuracy thereof. The Authority
cannot and does not give any assurances that DTC, DTC Participants or Indirect Participants
will distribute to the Beneficial Owners (a) payments of interest, principal or premium, if any, with
respect to the Bonds, (b) certificates representing ownership interest in or other confirmation or
ownership interest in the Bonds, or (c) redemption or other notices sent to D TC or Cede & Co.,
its nominee, as the registered owner of the Bonds, or that they will so do on a timely basis, or
that D TC, D TC Participants or D TC Indirect Participants will act in the manner described in this
Appendix. The current "Rules" applicable to DTC are on file with the Securities and Exchange
Commission and the current "Procedures" of DTC to be followed in dealing with DTC
Participants are on file with D TC.
The Depository Trust Company ("DTC"), New York, NY, will act as securities depository
for the Bonds. The Bonds will be issued as fully-registered securities registered in the name of
Cede & Co. (DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered security certificate will be issued for each
maturity of the Bonds, each in the aggregate principal amount of such maturity, and will be
deposited with DTC.
DTC, the world's largest depository, is a limited-purpose trust company organized under
the New York Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency" registered under
the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds and provides
asset servicing for over 2 million issues of U.S. and non-U.S, equity issues, corporate and
municipal debt issues, and money market instruments from over 85 countries that DTC's
participants ("Direct Participants") deposit with DTC. DTC also facilitates the post-trade
settlement among Direct Participants of sales and other securities transactions in deposited
securities, through electronic computerized book-entry transfers and pledges between Direct
Participants' accounts. This eliminates the need for physical movement of securities certificates.
Direct Participants include both U.S. and non-U.S, securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. DTC is a wholly-owned
subsidiary of The Depository Trust & Clearing Corporation ("DTCC"). DTCC, in turn, is owned
by a number of Direct Participants of DTC and Members of the National Securities Clearing
Corporation, Government Securities Clearing Corporation, MBS Clearing Corporation, and
Emerging Markets Clearing Corporation, (respectively, "NSCC", "GSCC", "MBSCC", and
"EMCC", also subsidiaries of DTCC), as well as by the New York Stock Exchange, Inc., the
American Stock Exchange LLC, and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others such as both U.S. and non-U.S, securities brokers
and dealers, banks, trust companies, and clearing corporations that clear through or maintain a
custodial relationship with a Direct Participant, either directly or indirectly ("Indirect
Participants"). DTC has Standard & Poor's highest rating: AAA. The DTC Rules applicable to its
Participants are on file with the Securities and Exchange Commission. More information about
DTC can be found at www.dtcc.com.
G-1
Purchases of the Bonds under the DTC system must be made by or through Direct
Participants, which will receive a credit for the Bonds on DTC's records. The ownership interest
of each actual purchaser of each Security ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase. Beneficial Owners are, however, expected to receive written
confirmations providing details of the transaction, as well as periodic statements of their
holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into
the transaction. Transfers of ownership interests in the Bonds are to be accomplished by entries
made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership interests in the
Bonds, except in the event that use of the book-entry system for the Bonds is discontinued.
To facilitate subsequent transfers, all Bonds deposited by Direct Participants with DTC
are registered in the name of DTC's partnership nominee, Cede & Co., or such other name as
may be requested by an authorized representative of DTC. The deposit of the Bonds with DTC
and their registration in the name of Cede & Co. or such other DTC nominee do not effect any
change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the
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 Direct and Indirect
Participants will remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to Direct Participants, by
Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to
Beneficial Owners will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time. Beneficial Owners of the Bonds
may wish to take certain steps to augment the transmission to them of notices of significant
events with respect to the Bonds, such as redemptions, tenders, defaults, and proposed
amendments to the Security documents. For example, Beneficial Owners of the Bonds may
wish to ascertain that the nominee holding the Bonds for their benefit has agreed to obtain and
transmit notices to Beneficial Owners. In the alternative, Beneficial Owners may wish to provide
their names and addresses to the registrar and request that copies of notices be provided
directly to them.
Redemption notices shall be sent to DTC. If less than all of the Bonds within an issue
are being redeemed, DTC's practice is to determine by lot the amount of the interest of each
Direct Participant in such issue to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with'
respect to the Bonds unless authorized by a Direct Participant in accordance with DTC's
Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to the Authority 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 Bonds are credited on the
record date (identified in a listing attached to the Omnibus Proxy).
Payments of principal of, premium, if any, and interest evidenced by the Bonds will be
made to Cede & Co., or such other nominee as may be requested by an authorized
representative of DTC. DTC's practice is to credit Direct Participants' accounts upon DTC's
receipt of funds and corresponding detail information from the Authority or the Trustee, on
payable date in accordance with their respective holdings shown on DTC's records. Payments
by Participants to Beneficial Owners will be governed by standing instructions and customary
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practices, as is the case with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of such Participant and not of DTC (nor
its nominee), the Trustee, or the Authority, subject to any statutory or regulatory requirements
as may be in effect from time to time. Payment of principal of, premium, if any, and interest
evidenced by the Bonds to Cede & Co. (or such other nominee as may be requested by an
authorized representative of DTC) is the responsibility of the Authority 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.
DTC may discontinue providing its services as depository with respect to the Bonds at
any time by giving reasonable notice to the Authority or the Trustee. Under such circumstances,
in the event that a successor depository is not obtained, Bond certificates are required to be
printed and delivered.
The Authority may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor securities depository). In that event, Bond certificates will be
printed and delivered.
In the event that the'book-entry system is discontinued as described above, the
requirements of the Indenture will apply. The foregoing information concerning DTC concerning
and DTC's book-entry system has been provided by DTC, and neither the Authority or the
Trustee take any responsibility for the accuracy thereof.
Neither the Authority or the Underwriter can and do not give any assurances that DTC,
the Participants or others will distribute payments of principal, interest or premium, if any,
evidenced by the Bonds paid to DTC or its nominee as the registered owner, or will distribute
any redemption notices 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. Neither the
Authority or the Underwriter is responsible or liable for the failure of DTC or any Participant to
make any payment or give any notice to a Beneficial Owner with respect to the Bonds or an
error or delay relating thereto.
The information in this section concerning DTC and DTC's book-entry system has been
obtained from sources that the Authority believes to be reliable, but the Authority takes no
responsibility for the accuracy thereof.
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