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HomeMy WebLinkAbout94-70 - 1994-95 Tax and Revenue Anticipation NotesL RESOLUTION NO. 94 -70 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING AND PROVIDING FOR THE ISSUANCE AND SALE OF 1994 -95 TAX AND REVENUE ANTICIPATION NOTES • The following Resolution is hereby offered and read: WHEREAS, the Finance Director has determined that the City of Newport Beach (the "City ") will experience a cumulative cash flow deficit during the 1994 -95 fiscal year (which commences on July 1, 1994) and has informed the City Council of that fact; and WHEREAS, such cumulative cash flow deficit is expected to occur as a result of City expenditures exceeding available funds until such time as certain revenues of the City for such fiscal year are available; and WHEREAS, cities of the State of California (the "State ") are authorized by Article 7.6, Chapter 4, Part 1, Division 2, Title 5 of the Government Code of the State (commencing with Section 53850) (the "Act ") to borrow money by the issuance of short -term notes, the proceeds of which may be used and expended for any purpose for which a county is authorized to spend moneys; and WHEREAS, pursuant to the Act, short -term notes in an aggregate principal amount not to exceed $15,000,000 (the "Notes ") in substantially the form set forth in Exhibit A attached hereto shall be issued by the City Council of the City (the "City Council "); and WHEREAS, pursuant to Section 53856 of the Act, certain revenues that will be received by the City for the General Fund of the City during or allocable to fiscal year 1994 -95 may be pledged for the payment of the Notes and the interest thereon (as hereinafter provided); and WHEREAS, the City has chosen to sell the Notes at competitive bid following publication of notice of intention to sell such securities; WHEREAS, there has been presented to this meeting a proposed form of a Notice of Intention to Sell Securities and Notice Inviting Bids, attached hereto as Exhibits B and C, respectively; and WHEREAS, the City Council desires to approve a proposed form of a Preliminary Official Statement on file with the City Clerk (the "Preliminary Official Statement ") to be used in connection with the offer and sale of the Notes; and WHEREAS, the City desires to approve the forms of a bond counsel agreement and a financial advisor agreement attached hereto as Exhibits D and E; WHEREAS, the City now desires to authorize the execution of such documents and the performance of such acts as may be necessary or desirable to effect the issuance and sale of the Notes. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newport Beach hereby resolves as follows: Section 1. Board Determination. That the foregoing recitations are true and correct. • Section 2. Definitions. Unless the context otherwise requires, the terms defined in this Section 2 shall, for all purposes of this Resolution, as it now exists and as it may from time to time be amended or supplemented, have the meanings herein specified, as follows: "Business Day" means a day on which banks in the State of California and the City of New York are not required or authorized to remain closed and on which the New York Stock Exchange is not closed. "City" means the City of Newport Beach, California. "City Council" means the City Council of the City. "City Attorney" means the City Attorney of the City. "Code" means the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder. • "Designated Rate" means the rate of interest (not in excess of the lesser of 10% per annum or the maximum rate permitted by applicable law) borne by the Notes as set forth in the Contract of Purchase. "DTC" means The Depository Trust Company, New York, New York, acting as securities depository of the Notes, and its successors and assigns. "Finance Director" means the Finance Director of the City. "Fiscal Agent" means the Treasurer of the City. "Note" or "Notes" means the City of Newport Beach 1994 -95 Tax and Revenue Anticipation Notes authorized to be issued hereunder. "Note Register" means the books described in Section 10 hereof. "Note Registrar" means the Treasurer of the City. "Regulations" means any final, temporary or proposed regulations adopted or proposed by the United States Treasury Department from time to time with respect to obligations issued pursuant to Sections 103 and 141 to 150 of the Code. "Repayment Fund" means the City of Newport Beach 1994 -95 Tax and Revenue Anticipation Note Repayment Fund established pursuant to Section 7 hereof. "Treasurer" means the Treasurer of the City. "Underwriter" means the purchaser of the Notes selected in accordance with Section 13 of this Resolution. "Unrestricted Revenues" means taxes, income, revenue, cash receipts and other moneys which are received for the General Fund of the City during or allocable to fiscal year 1994 -95 and which are generally available for the payment of current expenses and other obligations of the City. Section 3. Terms of the Notes. 3.1 Authorization of Issuance. Solely for the purpose of anticipating taxes, income, revenue, cash receipts and other moneys to be received by the City for the General Fund of the City during or allocable to the fiscal year 1994 -95, the City hereby authorizes the borrowing of an aggregate principal amount not to exceed Fifteen Million Dollars ($15,000,000) by the issuance of notes under Sections 53850 et seq. of the Act. The Notes shall be designated, if and to the extent issued, the "City of Newport Beach 1994 -95 Tax and Revenue Anticipation Notes." The actual principal amount of the Notes to be issued shall be as set forth in the award of Notes attached to the Notice Inviting Bids. • 3.2 Denominations, Interest Rate. Maturity and Payment. The Notes shall be issued in denominations of $5,000 and in integral multiples thereof. The Notes shall be dated as of October 15, 1994, shall mature not later than thirteen (13) months after such date of issuance as determined by the Treasurer and as set forth on the form of the Note, and shall bear interest at the Designated Rate, payable to the registered owners of the Notes at maturity. Interest on the Notes shall be calculated on the basis of a 360 -day year of twelve (12) 30 -day months. Principal of and interest on the Notes shall be paid by check drawn on any Federal Reserve Bank or by wire transfer as directed by the registered owners of the Notes. PUBL: 169821117182459.2 2 07/28/94 3.3 Ownership of Notes. The City may treat the person in whose name the Notes are registered in the Note Register maintained by the Note Registrar as the absolute owner of the Notes for the purpose of receiving payment of principal of and interest on the Note and for all other purposes whatsoever, and the City shall not be affected by notice to the contrary. Section 4. Form of the Notes, Book -Entry System. 4.1 Form of Notes. The Notes shall be issued only in registered form, substantially in the form set forth in Exhibit A attached hereto and by this reference incorporated herein, the • blanks in said form to be filled in with appropriate words and figures. The Notes may be issued initially in temporary form and subsequently may be replaced by Notes in final form, and the Notes issued in final form may be typewritten. 4.2 Book -Entry System. The Treasurer is hereby authorized to take all action necessary to register ownership of the Notes in the name of Cede & Co., or such other nominee of DTC, as DTC may direct, including entering into a Letter of Representations with DTC (the "Letter of Representations ") setting forth the terms and conditions of, and procedures for, the book - entry -only form of registration and, with the assistance of the financial advisor and the Underwriter, the timely completion of and delivery to DTC's Underwriting Department of the requisite Eligibility Questionnaire in the form required by DTC. The Notes initially shall be issued in the form of a separate single certificated Note representing the aggregate principal amount of the Notes registered in the name of Cede & Co., as nominee of DTC, or such other nominee as DTC may direct, and will be available to actual purchasers of the Notes ( "Beneficial Owners "). Upon closing, the City shall notify DTC at which time DTC (in accordance with the Letter of Representations) shall credit the account of the Underwriter, and except as provided below, the Note shall remain with DTC until maturity. DTC shall be responsible for the payment of the principal of and interest on the Notes to DTC's participants or indirect participants (as participants and indirect participants are defined in the Preliminary Official Statement) for credit to the accounts of the Beneficial Owners through DTC's book -entry system, and the City shall not have any responsibility or obligation to such participants or the persons for whom such participants act as nominees with respect to the payments to the DTC participants (or indirect participants) or such Beneficial Owners. With respect to Notes registered in the name of Cede & Co., or such other nominee of DTC as DTC may direct, the City shall have no responsibility or obligation to any participant (or indirect participant) of DTC or to any person on whose behalf any such participant holds an interest in the Notes. Without limiting the foregoing, the City shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, its nominee or any participant (or indirect participant) with respect to any ownership interest in the Notes, (ii) the delivery to any participant (or indirect participant) or any other person, other than a registered owner as shown on the Note Register maintained by the Note Registrar, of any notice with respect to the Notes or (iii) the payments to any participant (or indirect participant) of DTC or any other person, other than a registered owner as shown on the Note Register maintained by the Note Registrar, of any amount with respect to principal of or interest on the Notes. DTC may determine to discontinue providing its services at any time by giving written notice to the City, and the City, in its sole discretion, may terminate the services of DTC if the City determines DTC is unable to discharge its responsibilities with respect to the Notes or the continuation of the registration of the Notes in the name of Cede & Co., or any other nominee of DTC, is deemed by the City not in the best interests of the Beneficial Owners. Upon the termination of the services of DTC and after which no substitute securities depository is selected by the City, the City will deliver Note certificates at the expense of the Beneficial Owners registered in the names of such Beneficial Owners in accordance with the provisions of this Resolution. • Section 5. Use of Proceeds. The moneys constituting the proceeds of the Note shall be deposited in the General Fund of the City and used and expended by the City for any purpose for which it is authorized to expend funds from the General Fund of the City. Section 6. Repayment Pledge. The principal amount of the Notes, together with the interest thereon, shall be payable from Unrestricted Revenues of the City. PUBU16982_11171B2459.2 3 07/28/94 As security for the payment of the principal of and interest on the Notes, the City hereby pledges its Unrestricted Revenues as follows: (i) a sum equal to twenty -five percent (25 %) of the aggregate principal amount of the Notes from the first moneys received by the City during the period from February 3 to March 2, 1995, and available for payment of the Notes, (ii) a sum equal to twenty -five percent (25%) of the aggregate principal amount of the Notes from the first moneys received by the City during the period from March 3 to March 30, 1995, and available for the payment of the Notes, and (iii) a sum equal to (a) fifty percent (50 %) of the aggregate principal amount of the Notes plus (b) interest accrued and to accrue thereon to the maturity thereof, from the first moneys received by the City during the period from April 28 to May 25, • 1995 and available for the payment of the Notes. The moneys required to be deposited in the Repayment Fund shall be hereinafter referred to as the "Pledged Revenues." The principal of and interest on the Notes shall, to the extent not paid from the Pledged Revenues, be paid from any other moneys of the City lawfully available therefor. Section 7. Repayment Fund. 7.1 Establishment. The Pledged Revenues (in cash or in investments permitted by Section 7.2 hereof which have a market value on such Business Day equal to the amount required to be deposited on such Business Day) shall be deposited by the City with, and held in trust by, the Fiscal Agent, as hereinafter appointed, in a special fund designated the "City of Newport Beach 1994 -95 Tax and Revenue Anticipation Note Repayment Fund," and shall be applied as directed in this Resolution. The principal of and interest on the Notes shall constitute a first lien and charge on amounts deposited in the Repayment Fund and any money deposited in the Repayment Fund shall be for the ratable benefit of the registered owners of the Notes. Until the principal of the Notes and all interest due thereon are paid in full or until provision has been made for the payment in full of the principal of and interest on the Notes, the moneys in the Repayment Fund shall be applied only for the purposes for which such Repayment Fund was created. The Pledged Revenues are required to be deposited in the Repayment Fund in the amounts indicated in Section 6 above not later than March 2, 1995, March 30, 1995 and May 25, 1995, respectively. If the amount of Pledged Revenues deposited in the Repayment Fund by March 2, March 30 or May 25, 1995 is less than the amount required to be deposited by those dates, the amount of the deficiency shall be satisfied and made up from any other moneys of the City lawfully available for payment of the Notes by the last Business Day of the next succeeding calendar month. In any event, funds sufficient to pay the principal of and interest on the Notes shall, to the extent not deposited from Pledged Revenues, be deposited from any other moneys of the City lawfully available therefor on or before June 30, 1995. Any balance in the Repayment Fund in excess of the amounts needed to pay the principal of and interest on the Notes shall be transferred to the General Fund of the City following the payment in full of the principal of and interest on the Notes. 7.2 Investment. Moneys in the Repayment Fund shall be invested as permitted by Section 53601 of the California Government Code. Investments of moneys on deposit in the Repayment Fund shall not have maturity dates later than the maturity date of the Notes. The proceeds of any such investments shall be retained by the Fiscal Agent in the Repayment Fund until the principal of all of the Notes and the interest thereon shall have been fully paid or until provision shall have been made for such payment, at which time any excess amount shall be transferred to the General Fund of the City. Section 8. Fiscal Agent. The Treasurer is hereby appointed Fiscal Agent for the Notes. Funds held by the Fiscal Agent in the Repayment Fund shall be held in trust by the Fiscal Agent, and accounted for separate and apart from other moneys of the City, and invested as provided in Section 7.2 hereof. Section 9. Execution of Notes. The Mayor or the Mayor Pro Tern or his or her designee is hereby authorized and directed to sign the Notes by use of his or her manual • signature, and the Treasurer or the Finance Director is hereby authorized and directed to sign the Notes by use of his or her manual signature, and the City Clerk or the Deputy City Clerk is hereby authorized to affix, imprint or otherwise reproduce the seal of the City thereon, and to countersign the Notes by use of his or her manual signature, and said officers are hereby authorized to cause the blank spaces thereof to be filled in as may be appropriate. Section 10. Registration. Transfer and Cancellation of the Notes. The Treasurer is hereby appointed to serve as the Note Registrar. The Note Registrar shall keep at his or her PUBLA6982_1 171 82459.2 4 07128194 principal office the Note Register on which the Notes shall be registered or transferred as hereinafter provided. The Notes shall be transferable only upon the Note Register by the registered owner thereof in person or by such registered owner's duly authorized attorney, upon surrender of the Notes together with a written instrument of transfer substantially in the form attached thereto duly executed by the registered owner or such registered owner's duly authorized attorney, and thereupon a new fully registered Note or Notes of the same series and maturity and in the same aggregate principal amount will be issued to the transferee. The Note Registrar shall require the • payment by the registered owner requesting such transfer of all expenses incurred by the Note Registrar and the City in connection with such transfer and any tax or other governmental charge required to be paid with respect to such transfer. Each Note which at or after maturity is surrendered to the Note Registrar for the collection of the principal and interest thereof shall be cancelled and forthwith destroyed by the Note Registrar. Section 11. Validity of Proceedings. It is hereby covenanted and warranted by the City that all representations and recitals contained in this Resolution are true and correct, and that the City and its appropriate officials have duly taken all proceedings necessary to be taken by them, and will take any additional proceedings necessary to be taken by them, for the levy, collection and enforcement of the taxes, revenue, income, cash receipts and other moneys pledged hereunder in accordance with law and for carrying out the provisions of this Resolution. Section 12. Tax Covenants. The City hereby covenants that it will not knowingly take any action, omit to take any action or permit the taking or omission of any action (including, without limitation, making or permitting any use of the proceeds of the Notes) if taking or omitting to take such action would cause the Notes to be arbitrage bonds, private activity bonds or federally - guaranteed obligations within the meaning of the Code, or would otherwise cause interest on the Notes to be included in the gross income of the registered owner and /or the Beneficial Owners thereof for federal income tax purposes. Section 13. Competitive Sale of Notes: Receipt of Bids. The Notice of Intention to Sell Securities attached hereto as Exhibit B is hereby approved subject to such changes as requested by Bond Counsel. The City Manager shall cause said Notice of Intention to Sell Securities (a) to be published in a newspaper published and of general circulation in the City of Newport Beach, California, by at least one (1) insertion at least ten (10) days prior to the day fixed for the receipt of bids; and (b) to be published in a financial publication generally circulated throughout the State, namely The Bond Buyer, by at least one (1) insertion at least fifteen (15) days prior to the day fixed for the receipt of bids. The City Manager of the City and the Financial Consultant are hereby authorized and directed to cause to be prepared and furnished to prospective bidders a reasonable number of copies of the notice inviting bids (including the bid form) substantially in the form attached hereto as Exhibit C, with such changes thereto as may be approved by the City Manager, together with a reasonable number of copies of the Official Statement. At the time and place shown in the Notice Inviting Bids for receipt of bids, the City Manager or his designee shall open the bids and shall accept the responsible bid offering to purchase the Notes at the lowest net interest cost, provided the net interest cost does not exceed 6% per annum and the discount does not exceed 2 %, and provided further the City Manager may reject all bids if in his judgment it is prudent to do so based on general financial considerations and the advice of the Financial Advisor. Section 14. Official Statement. The proposed form of Preliminary Official Statement to • be used in connection with the offer and sale of the Notes, a copy of which is on file with the City Clerk, is hereby adopted and approved, and the Treasurer is hereby authorized to execute and deliver the same, with such additions thereto and changes therein as the Treasurer, with the advice of the Financial Advisor (as defined in Section 16 herein), may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof. Such execution and delivery shall constitute evidence that the City deems the Preliminary Official Statement to be final as of its date for purposes of Rule 15c2 -12 of the Securities and Exchange Commission (the "Rule "), except for information which is permitted to be omitted therefrom under the Rule. Thereafter, the Treasurer is authorized to execute and deliver a final Official Statement, with ruB1.:16982_11171B2459.2 5 07/28/94 such additions thereto and changes therein as the Treasurer, with the advice of the Financial Advisor, may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof. The Underwriter is hereby authorized to distribute copies of the Official Statement as finally executed to persons who may be interested in the purchase of the Notes and is directed to deliver such copies to all actual purchasers of the Notes. Section 15. Bond Counsel. Stradling, Yocca, Carlson & Rauth, a Professional Corporation, Newport Beach, California is hereby appointed to act as Bond Counsel to the City in connection with the authorization and issuance of the Notes. The Mayor and the City Clerk • are hereby authorized and directed to execute and deliver an agreement for the rendition of Bond Counsel services in substantially the form attached hereto as Exhibit D. • Section 16. Financial Advisor. It is in the best interest of the City to appoint Miller & Schroeder Financial, Inc. as its Financial Advisor and to waive all request for proposal procedures. The Mayor and the City Clerk are hereby authorized and directed to execute and deliver an agreement for the rendition of financial advisor services in substantially the form attached hereto as Exhibit E. Section 17. Use of Deputies. Any agreement or document (including the Note) which pursuant to the terms of this Resolution is to be executed and delivered by a named City official may be executed and delivered by any deputy or other person designated by such City official to act on his or her behalf and in his or her place and stead. The City Manager is hereby authorized to award the Notes to the successful bidder and to note thereon the terms of sale thereof. Section 18. Other Documents. The appropriate officials of the City are each hereby authorized and directed to take such further action and to execute and deliver such other documents as may be required pursuant to the terms of the resolution or the Notice Inviting Bids, for and in the name and on behalf of the City. Regularly passed and adopted this 25th day of July 1994. QQ a 'gia Mayor of th ity Council of the City of Newport Beach ATTEST: "i f ✓ /mil /!_I City Clerk PUBL:16982_11171B2459.2 6 07/28/94 STATE OF CALIFORNIA ) ss COUNTY OF ORANGE ) I, , City Clerk of the City of Newport Beach, California, hereby certify that the foregoing resolution was duly and regularly adopted by said Council at a regular meeting thereof on the _ day of , 1994 and passed by the above vote of the Council. • Dated: • City Clerk of the City of Newport Beach, California, UZ Deputy Clerk PUBL: 16982_1117162459.2 7 07128194 EXHIBIT A CITY OF NEWPORT BEACH 1994 -95 TAX AND REVENUE ANTICIPATION NOTE $ Date: October 15, 1994 Registered Owner: Cede & Co. Registration Number: R -1 CUSIP Number FOR VALUE RECEIVED, the City of Newport Beach (the "City "), a political subdivision of the State of California, acknowledges itself indebted and for value received hereby promises to pay to the registered owner hereof, the principal sum of Dollars ($ ) on October 15, 1995, and to pay interest on said principal sum at maturity at the rate of percent (_ %) per annum from the date hereof, such interest to be calculated on the basis of a 360 -day year of twelve 30- day months. The principal of and interest on this Note shall be paid by check drawn on a Federal Reserve Bank or by wire transfer payable to the registered owner hereof upon presentation and surrender of this Note at maturity at the principal office of the Treasurer of the City, as Fiscal Agent, at Newport Beach, California. No interest shall be payable for any period after maturity during which the registered owner hereof fails to properly present this Note for payment. This Note is transferable, as provided in the Resolution (defined below), only upon a register to be kept for that purpose at the office of the Treasurer of the City (the "Note Registrar "), by the registered owner hereof in person or by such registered owner's duly authorized attorney, upon surrender of this Note together with a written instrument of transfer substantially in the form attached hereto duly executed by the registered owner or such registered owner's duly authorized attorney, and thereupon a new fully registered Note or Notes of the same series and maturity and in the same aggregate principal amount will be issued to the transferee in exchange therefor as provided in the Resolution upon payment of the charges therein prescribed. The City and the Note Registrar shall treat the person in whose name this Note is registered as the absolute owner hereof for all purposes, and the City and the Note Registrar shall not be affected by any notice to the contrary. It is hereby certified, recited and declared that this Note is one of an authorized issue of City of Newport Beach, California, 1994 -95 Tax and Revenue Anticipation Notes ( "the Notes ") aggregating Dollars ($ ) in principal amount; the Notes are all made, executed and delivered pursuant to and by authority of a resolution of the City Council of the City duly passed and adopted on July 25, 1994 (the "Resolution ") under and by authority of Article 7.6 (commencing with Section 53850) of Chapter 4, Part 1, Division 2, Title 5, of the California Government Code, and that all acts, conditions and things required to exist, to have happened and to have been performed precedent to and in the issuance of this Note exist, have happened and have been performed in regular and due time, form and manner as required by law, and that this Note, together with all other indebtedness and obligations of the City, does not exceed any limit prescribed by the Constitution or statutes of the State of California. Every capitalized term used herein which is not defined herein shall have the same meaning as provided therefor in the Resolution. The principal amount of the Notes, together with the interest thereon, shall be payable from Unrestricted Revenues (as defined in the Resolution) of the City. As security for the payment of the principal of and interest on the Notes, the City has pledged to deposit in trust in the Repayment Fund Unrestricted Revenues of the City as follows: (i) a sum equal to twenty- five percent (25 %) of the aggregate principal amount of the Notes from the first moneys received by the City during the period from February 3 to March 2, 1995, and available for payment of the Notes, (ii) a sum equal to twenty -five percent (25 %) of the aggregate principal amount of the Notes from the first moneys received by the City during the period from March 3 to March 30, 1995, and available for the payment of the Notes, and (iii) a sum equal to (a) fifty percent (50 %) of the aggregate principal amount of the Notes phis (b) interest accrued and to accrue thereon to the maturity thereof, from the first moneys received by the City during the period from April 28 to May 25, 1995 and available for the payment of the Notes. The moneys required to be deposited in the Repayment Fund are hereinafter called the "Pledged Revenues." If the amount PURL: 169921117 1 B2459.2 A -1 07/28/94 of Pledged Revenues deposited in the Repayment Fund by March 2, 1995, March 30, 1995 or May 25, 1995 is less than the amount required to be deposited by those dates, the amount of the deficiency shall be satisfied and made up from any other moneys of the City lawfully available for payment of the Notes by the last Business Day of the next succeeding calendar month. In any event, funds sufficient to pay the principal of and interest on the Notes shall, to the extent not deposited from Pledged Revenues, be deposited from any other moneys of the City lawfully available therefor on or before the maturity date of the Notes. The principal of the Notes and the interest thereon shall constitute a first lien and charge on amounts deposited in the Repayment Fund and any money deposited in the Repayment Fund shall be for the ratable benefit of the • owners of the Notes. Notwithstanding anything to the contrary contained herein, or in any other document mentioned herein, neither the Finance Director nor the Treasurer shall have any liability whatsoever for payment of the principal of or any interest on the Notes, and the Notes shall be payable solely from the moneys of the City. • Unless this Note is presented by an authorized representative of The Depository Trust Company ( "DTC ") to the City or to the Note Registrar, as its agent for registration of transfer, exchange or payment, and any Note issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. IN WITNESS WHEREOF, the City of Newport Beach has caused this Note to be executed by the manual signatures of the Mayor or the Mayor Pro Tern, or his or her designee, and the Treasurer /Finance Director, and to be countersigned by the manual signature of the City Clerk or the Deputy City Clerk, and has caused its seal or a facsimile thereof to be affixed, imprinted or reproduced hereon, all as of the 31st day of October, 1994. (SEAL) PUBL:16982_ 1117162459.2 A -2 07/28/94 ASSIGNMENT For value received the undersigned do(es) hereby sell(s), assign(s) and transfer(s) unto (Name, Address and Tax Identification or Social Security Number of Assignee) the within Note and hereby irrevocably constitute(s) and appoint(s) to transfer the same on the Note Register of the Note Registrar, with full power of substitution in the premises. • Dated: • Signature Signature Guaranteed By: Note: The signature on this Assignment must correspond with the name of the registered owner as written on the face of the within -Note in every particular, without alteration or enlargement or any change whatsoever; and such signature must be guaranteed by an eligible guarantor institution. PuBL: 16982_1 171 B24591 A -3 07/28/94 EXHIBIT B NOTICE OF INTENTION TO SELL SECURITIES Notice is hereby given that on August _, 1994, at 11:00 A.M., Pacific Time, or at such time on August _, 1994 or August _, 1994 until bids are accepted, in the offices of Stradling, Yocca, Carlson & Rauth, 660 Newport Center Drive, Suite 1600, Newport Beach, • California 92660, the City of Newport Beach will receive bids for the sale of its City of Newport Beach 1994 -95 Tax and Revenue Anticipation Notes in the aggregate principal amount of not to exceed Fifteen Million Dollars ($15,000,000). Copies of the Complete Notice Inviting Bids and other information concerning said bonds may be obtained from Miller & Schroeder Financial, Inc., 505 Lomas Santa Fe Drive, Suite 100, Solana Beach, California 92705 -0819, Telephone (619) 481 -5894. City Clerk, City of Newport Beach • PuBL: 16982_1 117182459.2 B -1 07128194 • EXHIBIT C NOTICE INVITING BIDS PUBL: 16982_11171 82459.2 C -] 07/28/94 NOTICE INVITING BIDS $4,300,000 CITY OF NEWPORT BEACH, CALIFORNIA 1994 -95 TAX AND REVENUE ANTICIPATION NOTES Notice Is Hereby Given that sealed bids for the purchase of $4,300,000 aggregate principal amount of the City of Newport Beach, California, 1994 -95 Tax and Revenue Anticipation Notes (the "Notes" herein) will be received and opened by a representative of the City of Newport Beach (herein the "City ") at the place and up to the time below specified. A • good faith check is required to be submitted with the bid (see "Good Faith Check" herein). TIME: 11:00 a.m. (Pacific Time), Thursday, October 20, 1994 PLACE: Stradling, Yocca, Carlson & Rauth Telephone: (714) 640 -7035 660 Newport Center, 16th Floor Facsimile: (714) 725 -4100 Dunes Conference Room Newport Beach, California 92660 Opening Of Bids And Award Of Notes: The bids will be opened at 11:00 a.m., Thursday, October 20, 1994 at the above - stated location and are expected to be awarded by a representative of the City later that same day. If bids are not accepted by the City on October 20, 1994, the Notes will be sold at the same time and place on October 27, 1994 or November 3, 1994, until bids are accepted. Official Statement: The City has caused a preliminary official statement to be prepared relating to the Notes (the "Preliminary Official Statement "), copies of which may be obtained at the office of the City's Financial Consultant, Miller & Schroeder Financial, Inc., 505 Lomas Santa Fe Drive, Suite 100, Solana Beach, California 92075, Attn: Robin M. Thomas, telephone (619) 481 -5894. The Preliminary Official Statement is in a form deemed final by the City for the purposes of SEC Rule 15c2- 12(b)(1), but is subject to revision, amendment and completion in a final official statement (the "Official Statement "). The City will furnish the successful bidder with a reasonable number of copies of the final Official Statement within seven (7) business days of award of the Notes without charge. THE NOTES Date; Denomination: The Notes are to be delivered as a single fully registered Note in the denomination of $4,300,000, dated as of October 15, 1994. When delivered, the Notes will be registered in the name of Cede & Co., as nominee of The Depository Trust Company, New York, New York (the "DTC "). DTC will act as securities depository for the Notes. Individual purchasers of Notes will be made in book -entry form only in the principal amounts of $5,000 each or any integral thereof. Purchasers of the Notes will not receive certificates representing their ownership interest in the Notes purchased. Bidders are referred to the Preliminary Official Statement for particulars related to the Notes. Maturity: The Notes will mature on October 15, 1995. Interest: The Notes will bear interest (computed on the basis of a 360 -day year and twelve 30 -day months) from their date at the rate to be fixed upon the sale thereof, but not to exceed 7% per annum. Interest will be payable at maturity of the Notes. EXHIBIT D BOND COUNSEL AGREEMENT CITY OF NEWPORT BEACH 1994 -95 TAX AND REVENUE ANTICIPATION NOTES • THIS AGREEMENT is made and entered into this _ day of _ 1994, by and between CITY OF NEWPORT BEACH, a political subdivision of the State of California (the "City "), and STRADLING, YOCCA, CARLSON & RAUTH, a Professional Corporation ('Bond Counsel "). RECITALS WHEREAS, the City desires to develop and implement a feasible and economical plan for issuing temporary notes and contemplates authorizing and selling not to exceed $15,000,000 of temporary notes with respect to its Fiscal Year 1994 -1995, (the "Notes" or the "Note Issue "); and WHEREAS, the City desires to retain Bond Counsel to perform the legal services hereinafter mentioned and to carry out the Note Issue in cooperation with the City's Financial Advisor; and WHEREAS, Bond Counsel represents that it is qualified to perform the services contemplated by this Agreement and that it is ready, willing and able to perform said services. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, the parties hereto agree as follows: I. Bond Counsel agrees to furnish the services specifically set forth below, and shall provide such other services as it deems are necessary or advisable, or are reasonable and necessary to accomplish the intent of this agreement. (a) Coordinate and cooperate with the City, its City Attorney, its Financial Advisor, and other experts involved in the structuring, issuance and sale of the Notes. (b) Participate in conferences scheduled by the City or the Financial Advisor. (c) Prepare all resolutions, notices and other documents for the issuance and sale of the Notes, and give instructions and advice in connection with the foregoing. (d) Advise on all tax matters relating to the Note Issue, including a review of the City's estimated revenues and expenses to determine the maximum amount of Notes that may be issued. (e) Work with the City's staff and the Financial Advisor in the preparation of the official statement or offering memorandum. is(f) Prepare the closing documents, including the tax certificate. (g) Prepare the form of the Notes, supervise their production or printing, signing, authentication and delivery and supervise the receipt of the Note proceeds. (h) Render and deliver a final approving opinion pertaining to the issuance of the Notes to the effect that: 1vBL:16982_11171B2459.2 D -1 07/28/94 The Notes have been properly authorized and issued and are valid and binding obligations. ii. Interest on the Notes is excluded from gross income for federal income tax purposes. Interest on the Notes is exempt from California personal income taxes. • (i) Render a supplemental opinion addressed to the City's Financial Advisor and the firm which submits the winning bid to purchase the Notes (the "Investment Bank ") to the effect that the final approving opinion addressed to the City may be relied upon by the Investment Bank and the Financial Advisor to the same extent as if such opinion was addressed to them. II. Services hereunder will be provided by attorneys employed by Bond Counsel under the direction of E. Kurt Yeager. III. During the performance of this Agreement, Bond Counsel agrees as follows: (a) In connection with the execution of this Agreement, Bond Counsel shall not discriminate against any employee or applicant for employment because of race, religion, color, sex or national origin. Such actions shall include, but not be limited to, the following: employment, promotion, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for employment. (b) Bond Counsel will comply with all federal regulations relative to nondiscrimination in federally- assisted programs. (c) Bond Counsel will comply with all applicable statutes and regulations relating to the Fair Political Practices Commission and further agrees to report to the City any and all benefits received by Bond Counsel from other participants in the borrowing. City acknowledges that Bond Counsel serves as counsel to Miller & Schroeder Financial, Inc. from time to time in financings for public agencies other than the City and consents to such representation. IV. Bond Counsel and the employees of Bond Counsel in the performance of this Agreement, shall act in an independent capacity and not as officers or agents of the City. Without the written consent of the City, this Agreement shall not be assigned by Bond Counsel in whole or in part. M Bond Counsel hereby represents that it presently has professional liability insurance in an amount in excess of $5,000,000 per occurrence and agrees that, if it is unable to maintain such insurance in effect to the date of delivery of the Notes, it will immediately notify the City of such • fact. VI. For services described in this Agreement, the City shall pay Bond Counsel a flat fee equal to $12,000, inclusive of all out of pocket expenses. The payment of such fees shall be contingent upon the issuance and closing of the Notes. POBL:16982_ 1117 1 B2459.2 D -2 07/28/94 • • Vll. No alteration or variation of the terms of this Agreement shall be valid unless in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. PUBL: 16982_ 11171 B2459.2 D -3 07/28/94 u IN WITNESS WHEREOF, on the date first herein above written, Stradling, Yocca, Carlson & Rauth, a Professional Corporation, Newport Beach, California, has caused this Agreement to be executed on its behalf and in its name by a duly authorized representative, and the City has caused this Agreement to be executed on its behalf and in its name by the Mayor of the City and attested by the City Clerk. ATTEST: City Clerk APPROVED AS TO FORM: 0 CITY OF NEWPORT BEACH 0 Mayor STRADLING, YOCCA, CARLSON & RAUTH, a Professional Corporation PuBL: 16982_117 1 B2459.2 D -4 07/28/94 EXHIBIT E FINANCIAL ADVISOR AGREEMENT CITY OF NEWPORT BEACH 1994 -95 TAX AND REVENUE ANTICIPATION NOTES • [To Be Inserted] PUBL: 16982_ 1117 B2459.2 E -1 07/28/94