HomeMy WebLinkAboutRA Resolution 2009-17 (Issuance of Bonds)SAN RAFAEL REDEVELOPMENT AGENCY
RESOLUTION NO. 2009-17
Sixth Supplemental Resolution
Authorizing the Issuance
of Not to Exceed
$16,000,000 Principal Amount of
Central San Rafael Redevelopment Project
Tax Allocation Refunding Bonds, Series 2009
Adopted November 16, 2009
TABLE OF CONTENTS
ARTICLE XXV
ADDITIONAL DEFINITIONS
25.01. Additional Definitions....................................................................................................
25.02. Amended Definitions....................................................................................................
ARTICLE XXVI
ISSUANCE AND ADDITIONAL TERMS OF SERIES 2009 BONDS
26.01. Authorization and Purpose of Series 2009 Bonds ........................................................
26.02. Terms of Series 2009 Bonds........................................................................................
26.03. Redemption of Series 2009 Bonds...............................................................................
26.04. Notice of Redemption...................................................................................................
26.05. Form of Series 2009 Bonds..........................................................................................
26.06. Application of Proceeds of Sale of Series 2009 Bonds: Allocation Among Funds an(
Accounts...............................................................................................................
26.07. Establishment and Application of Series 2009 Expense Account ................................
26.08. Establishment and Application of Series 1999 Refunding Account .............................
26.09. Establishment and Application of Series 2009 Project Account ...................................
26.10. Terms of Series 2009 Bonds Subject to the Resolution ...............................................
26.11. Use of Depository .........................................................................................................
26.12. General Authorization to Agency Chairperson and Other Agency Officers .................
26.13. Sale of Bonds; Purchase Contract...............................................................................
2614 Approval of Official Statement
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ARTICLE XXVII
ADDITIONAL COVENANTS OF THE AGENCY
27.01. Tax Covenants; Rebate Fund...........................................................................................
27.02. Housing Set-Aside............................................................................................................
27.03. Future Obligations; Pledge Limitation ........ .... --....... ......................................................
27.04. Agreements with Other Taxing Agencies.........................................................................
27.05. Concerning the Series 2009 Bond Insurer and the Reserve Facility for the Series 2009
Bonds........................................................................................................................
27.06. Continuing Disclosure.......................................................................................................
27.07. Designation of Series 2009 Bonds...... ---------------- ..........._................................................
ARTICLE XXVIII
AMENDMENT TO RESOLUTION
28.01. Discharge of Bonds..
APPENDIX A -- FORM OF SERIES 2009 BOND
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RESOLUTION NO. 2009-17
Moved: Member Brockbank Seconded: Member Connolly
Sixth Supplemental Resolution Authorizing the Issuance of Not to Exceed
$16,000,000 Principal Amount of Central San Rafael Redevelopment Project Tax
Allocation Refunding Bonds, Series 2009
WHEREAS, the San Rafael Redevelopment Agency (the "Agency") has heretofore
issued its Central San Rafael Redevelopment Project Tax Allocation Refunding Bonds, Series
1977 (the "Series 1977 Bonds") pursuant to Resolution No. 77-69, adopted by the Agency on
August 15, 1977 (the "Master Resolution"); and
WHEREAS, the Agency has heretofore issued its Central San Rafael Redevelopment
Project Tax Allocation Refunding Bonds, Series 1992 (the "Series 1992 Bonds"), pursuant to the
Master Resolution and Resolution No. 92-6, adopted April 20, 1992 (the "1992 Resolution"); and
WHEREAS, the Agency has heretofore issued its Central San Rafael Redevelopment
Project Tax Allocation Bonds, Series 1995 (the "Series 1995 Bonds") pursuant to the Master
Resolution, the 1992 Resolution and Resolution No. 95-27, adopted September 5, 1995 (the
"1995 Resolution"); and
WHEREAS, the Agency has heretofore issued its Central San Redevelopment Project
Tax Allocation Bonds, Series 1999 (the "Series 1999 Bonds") pursuant to the Master
Resolution, the 1992 Resolution, the 1995 Resolution and Resolution No. 99-16, adopted June
7, 1999 (the "1999 Resolution"); and
WHEREAS, the Agency has heretofore issued its Central San Redevelopment Project
Tax Allocation Refunding Bonds, Series 2002 (the "Series 2002 Bonds") pursuant to the Master
Resolution, the 1992 Resolution, the 1995 Resolution, the 1999 Resolution and Resolution No.
2002-24, adopted September 16, 2002 (the "2002 Resolution"); and
WHEREAS, the Agency has heretofore also adopted Resolution No. 96-85 on
November 18, 1996 (the "1996 Resolution" and, together with the Master Resolution, the 1992
Resolution, the 1995 Resolution, the 1996 Resolution, the 1999 Resolution, the 2002
Resolution, this Sixth Supplemental Resolution and any other supplemental resolution adopted
pursuant to Article VII of the Master Resolution, the "Resolution");
WHEREAS, the Master Resolution provides for the issuance of Additional Bonds (as
defined in the Master Resolution) for the purpose of financing or refinancing the Project (as
defined in the Master Resolution); and
WHEREAS, the Master Resolution provides that it may be amended or supplemented to
make provisions not affecting any outstanding series of Bonds of the Agency or for the purpose
of curing ambiguities or curing, correcting or supplementing defective provisions in the Master
Resolution, as the Agency deems necessary or desirable and not inconsistent with the Master
Resolution, and which do not adversely affect the rights of the Holders of the Bonds; and
WHEREAS, the Agency has determined to issue an additional series of bonds under the
Master Resolution to refund the Series 1999 Bonds that are current interest bonds and to aid in
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the further financing of the Project, which bonds shall be designated "San Rafael
Redevelopment Agency Central San Rafael Redevelopment Project Tax Allocation Refunding
Bonds, Series 2009" (the "Series 2009 Bonds");
NOW THEREFORE, BE IT RESOLVED BY THE SAN RAFAEL REDEVELOPMENT
AGENCY, AS FOLLOWS:
ARTICLE XXV
ADDITIONAL DEFINITIONS
25.01. Additional Definitions. Unless the context otherwise requires, the terms
defined in this Section 25.01 shall, for all purposes of this Sixth Supplemental Resolution and of
any resolutions supplemental hereto, and of any certificate, opinion or other documents herein
mentioned, have the meanings herein specified. Capitalized terms not defined in this Section
25.01 shall have the meanings attributed to them pursuant to Section 1.01, Section 10.01,
Section 14.01, Section 18.01 or Section 21.01.
"Reserve Facility Provider for the Series 2009 Bonds" means the company identified as
such, if any, in the Series 2009 Sales Certificate, or any successor thereto.
"Series 1999 Irrevocable Refunding Instructions" means the Irrevocable Refunding
Instructions to be dated the date of delivery of the Series 2009 Bonds, from the Agency to U.S.
Bank National Association, as Fiscal Agent for the Series 1999 Bonds, pursuant to which the
Series 1999 Bonds that are current interest bonds are being redeemed and discharged.
"Series 1999 Refunding Account" means the account by that name established and
applied pursuant to Section 26.08 for the purpose of refunding the Series 1999 Bonds.
"Series 2009 Beneficial Owner" means any person who has the power, directly or
indirectly, to vote or consent with respect to, or to dispose of ownership of, any Series 2009
Bonds, including persons holding Series 2009 Bonds through nominees or depositories.
"Series 2009 Bond Insurance Policy" means the municipal bond new issue insurance
policy, if any, issued by the Series 2009 Bond Insurer that guarantees payment of principal of
and interest on the Series 2009 Bonds.
"Series 2009 Bond Insurer" means the company identified as such, if any, in the Series
2009 Sales Certificate, or any successor thereto.
"Series 2009 Bonds" means the San Rafael Redevelopment Agency, Central San Rafael
Redevelopment Project Tax Allocation Refunding Bonds, Series 2009, issued pursuant to
Article XXVI hereof.
"Series 2009 Call Protection Date" means the date prior to which the Series 2009 Bonds
are not subject to optional redemption, as set forth in the Series 2009 Sales Certificate.
"Series 2009 Continuing Disclosure Certificate" means that certain Continuing
Disclosure Certificate of the Issuer dated the date of the issuance and delivery of the Series
2009 Bonds, as originally executed and as it may be amended from time to time in accordance
with the terms thereof.
"Series 2009 Expense Account" means the account of that name established and
applied pursuant to Section 26.07 for the purpose of paying the Costs of Issuance of the Series
2009 Bonds.
"Series 2009 Financial Guaranty Agreement" means the agreement, if any, by such
name between the Agency and the Reserve Facility Provider of Series 2009 Bonds pursuant to
which the Reserve Facility for the Series 2009 Bonds is executed and delivered.
"Series 2009 Issue Date" means, with respect to the Series 2009 Bonds, the dated date
of the Series 2009 Bonds, as set forth in the Series 2009 Sales Certificate.
"Series 2009 Participating Underwriter" or "Participating Underwriter" shall have the
meaning ascribed thereto in the Series 2009 Continuing Disclosure Certificate.
"Series 2009 Principal Payment Date" means, with respect to the Series 2009 Bonds
any December 1 on which principal of the Series 2009 Bonds is scheduled to be paid, as set
forth in the Series 2009 Sales Certificate.
"Series 2009 Project Account" means the account by that name established hereunder
by the Agency within the Redevelopment Fund to hold a portion of the proceeds of the Series
2009 Bonds prior to expenditure on the Project.
"Series 2009 Sales Certificate" means the Series 2009 Sales Certificate executed and
delivered by the Executive Director pursuant to Section 26.02 hereof specifying certain terms of
the Series 2009 Bonds.
"Series 2009 Sinking Account Payment Date" means, with respect to the Series 2009
Bonds, any December 1 on which Sinking Account Installments on any Series 2009 Bonds are
scheduled to be paid, as set forth in the Series 2009 Sales Certificate.
25.02. Amended Definitions. The definition of Information Services and Securities
Depositories set forth in the 1992 Resolution is hereby amended to read as follows:
"Information Services" means, in accordance with then current guidelines of the
Securities and Exchange Commission, one or more services selected by the Trustee
which are then providing information with respect to called bonds, or, if the Trustee does
not select a service, then such service or services as the Agency may designate in
writing to the Trustee.
"Securities Depositories" means The Depository Trust Company; and, in
accordance with then current guidelines of the Securities and Exchange Commission,
such other addresses and/or such other securities depositories as the Agency may
designate.
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ARTICLE XXVI
ISSUANCE AND ADDITIONAL TERMS OF SERIES 2009 BONDS
26.01. Authorization. Purpose and Execution of Series 2009 Bonds. The Agency
has reviewed all proceedings heretofore taken relative to the authorization of the Series 2009
Bonds and has found, as a result of such review, and hereby finds and determines that all acts,
conditions and things required by law to exist, happen or be performed precedent to and in
connection with the issuance of the Series 2009 Bonds do exist, have happened and have been
performed in due time, form and manner as required by law, and the Agency is now duly
authorized, pursuant to each and every requirement of law, to issue the Series 2009 Bonds in
the manner and form provided in the Resolution. The Agency further finds and determines that
it is in compliance with all covenants set forth in the Master Resolution and hereby authorizes
and directs the Chairperson of the Agency (the "Chairperson"), the Executive Director of the
Agency (the "Executive Director") or the Director of Economic Development of the City of San
Rafael (the "Director of Economic Development") to file a Certificate of the Agency to that effect
with the Fiscal Agent. Accordingly, the Series 2009 Bonds shall be issued for the purpose of
providing funds to aid in financing the Project. The Series 2009 Bonds shall be designated
generally as the "San Rafael Redevelopment Agency Central San Rafael Redevelopment
Project Tax Allocation Refunding Bonds, Series 2009." Notwithstanding Section 2.05 of the
Resolution, the Series 2009 Bonds may also be executed by the Director of Economic
Development.
26.02. Terms of Series 2009 Bonds. The aggregate principal amount of Series 2009
Bonds issued by the Agency under and subject to the terms of the Resolution and the Law shall
not exceed sixteen million dollars ($16,000,000). The Series 2009 Bonds shall be issued in
such aggregate principal amount, shall be dated such Issue Date, shall bear interest at such
rate or rates (payable on June 1 and December 1 of each year, commencing June 1, 2010 or
such later date as may be set forth in the Sales Certificate) not exceeding the maximum rate
permitted by law, shall mature and become payable as to principal on such Series 2009
Principal Payment Dates in the amounts and subject to such Series 2009 Sinking Account
Payments on such Series 2009 Sinking Account Payment Dates, if any, and shall be subject to
such other terms and conditions appropriate to the Series 2009 Bonds, including such terms
and conditions, if any, required by either the Series 2009 Bond Insurer or the Series 2009
Reserve Facility Provider for the Series 2009 Bonds or otherwise relating to the Series 2009
Bond Insurance Policy and the Reserve Facility issued in connection with the Series 2009
Bonds, as the Chairperson of the Agency or his designee deem appropriate and necessary, all
as set forth in the Series 2009 Sales Certificate. The Chairperson, the Executive Director and
the Director of Economic Development are each, acting alone, hereby authorized and directed
to execute and deliver the Series 2009 Sales Certificate to the Fiscal Agent at the time of the
initial delivery of the Series 2009 Bonds.
Notwithstanding the foregoing, the Series 2009 Sales Certificate shall not specify an
interest rate on any Series 2009 Bond in excess of nine percent (9%) per annum; a true interest
cost on all the Series 2009 Bonds in excess of four percent (4%) per annum; nor a maturity date
for any Series 2009 Bond after December 1, 2022. Additionally, the underwriter's discount with
respect to the Series 2009 Bonds shall not exceed one percent (1.00%) of the principal amount
thereof, excluding original issue discount.
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The Series 2009 Bonds shall be issued as fully registered bonds in the denomination of
$5,000, or any integral multiple of $5,000 (not exceeding the principal amount of Series 2009
Bonds maturing at any one time). The Series 2009 Bonds shall be initially issued registered in
the name of "Cede & Co.," as nominee of The Depository Trust Company, and shall be
evidenced by one Series 2009 Bond for each maturity date of the Series 2009 Bonds in a
denomination corresponding to the total principal amount of the Series 2009 Bonds maturing on
each such date. The Series 2009 Bonds shall bear interest from the interest payment date next
preceding the date of registration thereof, unless such date of registration is an interest payment
date, in which event they shall bear interest from such date, or unless such date of registration
is prior to the first interest payment date, in which event they shall bear interest from their Issue
Date; provided, however, that if, at the time of registration of any Series 2009 Bonds, interest is
then in default on the Outstanding Series 2009 Bonds, such Series 2009 Bonds shall bear
interest from the interest payment date to which interest has previously been paid or made
available for payment on the Outstanding Series 2009 Bonds. Payment of interest on the
Series 2009 Bonds due on or before the maturity or prior redemption of such Series 2009 Bonds
shall be made to the person whose name appears on the Series 2009 Bond registration books
of the Fiscal Agent as the registered owner thereof, as of the close of business on the fifteenth
(15th) day of the month preceding the interest payment date (the "Record Date"), such interest
to be paid by check mailed by first class mail, postage prepaid, on each interest payment date
to such registered owner at his address as it appears on such books or at such other address
as he may have filed with the Fiscal Agent for that purpose prior to the Record Date, or, upon
written request of a registered owner of at least $1,000,000 in aggregate principal amount of
Series 2009 Bonds (specifying such account information as the Fiscal Agent shall require), by
wire transfer in immediately available funds to an account within the continental United States
designated by such registered owner prior to the Record Date.
Interest on the Series 2009 Bonds shall be computed on the basis of a 360 -day year of
twelve 30 -day months. Principal of and redemption premiums, if any, on Series 2009 Bonds,
and interest due at maturity or upon prior redemption, shall be payable in lawful money of the
United States of America upon the surrender thereof at maturity or upon the prior redemption
thereof at the corporate trust office of the Fiscal Agent in St. Paul, Minnesota, or such other
corporate trust office as may be designated by the Fiscal Agent. Each payment of principal of
or interest on the Series 2009 Bonds shall include the CUSIP identification number, if any, on
the Series 2009 Bond with respect to which payment is made.
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26.03. Redemption of Series 2009 Bonds.
(a) Optional Redemption. Series 2009 Bonds due on or before the Series 2009 Call
Protection Date shall not be subject to redemption on or before their respective stated
maturities. Series 2009 Bonds maturing by their terms after the Series 2009 Call Protection
Date shall be subject to redemption as a whole or in part either on a pro rata basis among
maturities or in inverse order of maturity (as determined by the Agency), and by lot within any
one maturity, prior to their respective maturity dates, upon notice as provided in Section 26.04
hereof, at the option of the Agency, on any date on or after the Series 2009 Call Protection
Date, from funds derived by the Agency from any source, at the redemption prices for the
applicable redemption dates as specified in the Series 2009 Sales Certificate, together with
interest accrued thereon to the date fixed for redemption. Notwithstanding the preceding
sentence, the Agency may determine, as set forth in the Sales Certificate, that certain of the
Series 2009 Bonds are not subject to optional redemption or that certain of the Series 2009
Bonds shall have a Series 2009 Call Protection Date which is different than the Series 2009 Call
Protection Date for other Series 2009 Bonds.
If less than all of the Series 2009 Bonds or the Series 2002 Bonds are redeemed
pursuant to this subsection 26.03(a) or to subsection 22.03(a) at any one time, the Fiscal Agent
shall redeem that amount of Series 2009 Bonds and Series 2002 Bonds in the proportion which
the principal amount of the then Outstanding Series 2009 Bonds and Series 2002 Bonds bear to
the principal amount of all of the then Outstanding Bonds that are subject to optional
redemption.
(b) Sinking Account Redemption. Series 2009 Bonds which are Term Bonds, if any,
shall also be subject to mandatory redemption in part by lot prior to their stated maturity dates,
on the Sinking Account Payment Dates therefor specified in the Series 2009 Sales Certificate,
solely from funds deposited by the Agency in the Term Bonds Sinking Account for such Term
Bonds established pursuant to the Series 2009 Sales Certificate, at the principal amount thereof
plus accrued interest thereon to the redemption date, without premium, upon notice as provided
in Section 26.04 hereof.
In lieu of mandatory Sinking Account Payments, amounts on deposit in the Special
Fund, to the extent not required for debt service on the Bonds, may be withdrawn and used by
the Agency at any time to purchase Series 2009 Bonds which are Term Bonds at public or
private sale at such prices (including brokerage and other charges and including accrued
interest) as the Agency may in its discretion determine. The par amount of any of the Term
Bonds so purchased by the Agency in any twelve-month period ending on October 1 in any year
shall be credited towards and will reduce the par amount of the Term Bonds otherwise required
to be redeemed on the December 1 following such October 1.
26.04. Notice of Redemption. Notice of redemption shall be mailed by first class mail
by the Fiscal Agent, not less than thirty (30) nor more than sixty (60) days prior to the
redemption date to (i) the respective Owners of Series 2009 Bonds designated for redemption
at their addresses appearing on the bond registration books of the Fiscal Agent as of the
fifteenth day prior to the date of mailing such notice, (ii) one or more Information Services, (iii)
the Securities Depositories, and (iv) the Series 2002 Bond Insurer and the Series 2009 Bond
Insurer, if any. The Agency shall provide written notice to the Fiscal Agent of any optional
redemption and special mandatory redemption not less than forty-five (45) days prior to the
proposed redemption date. Each notice of redemption shall state the date of such notice, the
Series 2009 Bonds to be redeemed, the date of issue of such Series 2009 Bonds, the
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redemption date, the redemption price, the place or places of redemption (including the name
and appropriate address or addresses and telephone number or numbers of the Fiscal Agent),
the CUSIP number (if any) of the maturity or maturities, and, if less than all of any such maturity,
the distinctive certificate numbers of the Series 2009 Bonds of such maturity to be redeemed
and, in the case of Series 2009 Bonds to be redeemed in part only, the respective portions of
the principal amount thereof to be redeemed. Each such notice shall also state that on said
date there will become due and payable on each of such Series 2009 Bonds the redemption
price thereof or of said specified portion of the principal amount thereof in the case of a Series
2009 Bond to be redeemed in part only, together with premiums, if any thereof, and that from
and after such redemption date interest thereon shall cease to accrue, and shall require that
such Series 2009 Bonds be then surrendered at the address or addresses of the Fiscal Agent
specified in the redemption notice. The Fiscal Agent shall mail by first class mail a second,
identical notice of redemption sixty days after the scheduled redemption date to Owners who
failed to surrender their Series 2009 Bonds in connection with such redemption.
Failure by the Fiscal Agent to give notice pursuant to this Section to any Bond Insurer, or
to any one or more of the Information Services or Securities Depositories, or the insufficiency of
any such notice shall not affect the sufficiency of the proceedings for redemption. The failure of
any Owner to receive any redemption notice mailed to such Owner and any defect in the notice
so mailed shall not affect the sufficiency of the proceedings for redemption.
Notwithstanding any other provision of the Resolution, the Agency shall have the right to
cause the Fiscal Agent to rescind any notice of redemption given in connection with a
redemption pursuant to Section 26.03(a) if on the date set for such redemption, the Agency has
not provided sufficient funds to the Fiscal Agent to effect such redemption. Any notice of
redemption given in connection with a redemption pursuant to Section 26.03(a) shall state that
such notice is subject to rescission by the Agency.
26.05. Form of Series 2009 Bonds. The Series 2009 Bonds, the authentication and
registration endorsement and the assignment to appear thereon shall be substantially in the
form attached hereto as Appendix "A", with such necessary or appropriate variations, omissions
and insertions as permitted or required by this Resolution and the Series 2009 Sales Certificate.
26.06. Application of Proceeds of Sale of Series 2009 Bonds; Allocation Amonq
Funds and Accounts. Upon receipt of payment for the Series 2009 Bonds from the purchaser
thereof, the Fiscal Agent shall set aside and deposit the proceeds received from such sale and
delivery in the following respective funds and in the following order of priority:
(a) The Fiscal Agent shall deposit in the Series 2009 Expense Fund
established pursuant to Section 26.07 the amount specified in the Series 2009 Sales
Certificate;
(b) The Fiscal Agent shall deposit in the Series 1999 Refunding Account
established pursuant to Section 26.08 the amount specified in the Series 2009 Sales
Certificate;
(c) The Fiscal Agent shall deposit in the Reserve Account the amount
specified in the Series 2009 Sales Certificate; and
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(d) The Fiscal Agent shall transfer to the Treasurer of the Agency for deposit
in the Series 2009 Project Account established pursuant to Section 26.09 the remainder
of such proceeds.
26.07. Establishment and Application of Series 2009 Expense Account. (a) The
Fiscal Agent shall establish, maintain and hold in trust a separate account designated as the
"Series 2009 Expense Account." The moneys in the Series 2009 Expense Account shall be
used and withdrawn by the Fiscal Agent to pay the Costs of Issuance of the Series 2009 Bonds.
(b) Before any payment from the Series 2009 Expense Account shall be made, the
Agency shall file or cause to be filed with the Fiscal Agent a requisition of the Agency stating (i)
the item number of such payment; (ii) the name of the person to whom each such payment is
due, which may be the Agency in the case of reimbursement for costs theretofore paid by the
Agency; (iii) the respective amounts to be paid; (iv) the purpose by general classification for
which each obligation to be paid was incurred; and (v) that obligations in the stated amounts
have been incurred by the Agency and are presently due and payable and that each item
thereof is a proper charge against the Series 2009 Expense Account and has not been
previously paid from said account.
(c) The Fiscal Agent shall maintain the Series 2009 Expense Account for a period of
180 days following the date of delivery of the Series 2009 Bonds and then shall transfer any
balance therein to the Agency for deposit in the Series 2009 Project Account, and the Series
2009 Expense Account shall be closed.
26.08. Establishment and Application of Series 1999 Refundinq Account. The
Fiscal Agent shall establish, maintain and hold in trust a separate account designated as the
"Series 1999 Refunding Account." All amounts on deposit in the Series 1999 Refunding
Account on the Series 2009 Issue Date shall be applied only as provided in the Series 1999
Refunding Instructions, and are not otherwise available to the payment of debt service on any
other Bonds outstanding under the Resolution.
26.09. Establishment and Application of Series 2009 Proiect Account. The Agency
shall establish, maintain and hold a separate fund designated as the "Series 2009 Project
Account" within the Redevelopment Fund. The moneys in the Series 2009 Project Account
shall be used and withdrawn by the Agency to pay the costs of the portion of the Project to be
financed with the proceeds of the Series 2009 Bonds. All investment earnings on funds held in
the Series 2009 Project Account shall be deposited in the Series 2009 Project Account unless
deposited by the Agency in the Rebate Fund.
26.10. Terms of Series 2009 Bonds Subiect to the Resolution. Except as in this
Sixth Supplemental Resolution expressly provided, every term and condition contained in the
Resolution shall apply to this Sixth Supplemental Resolution and to the Series 2009 Bonds with
the same force and effect as if the same were herein set forth at length, with such omissions,
variations and modifications thereof as may be appropriate to make the same conform to this
Sixth Supplemental Resolution.
This Sixth Supplemental Resolution and all the terms and provisions herein contained
shall form part of the Resolution as fully and with the same effect as if all such terms and
provisions had been set forth in the Resolution. The Resolution is hereby ratified and confirmed
and shall continue in full force and effect in accordance with the terms and provisions thereof,
as amended and supplemented hereby.
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26.11. Use of Deoositorv. Notwithstanding any provision of the Resolution to the
contrary:
(a) The Series 2009 Bonds shall be initially issued as provided in Section 26.02.
Registered ownership of the Series 2009 Bonds, or any portions thereof, may not thereafter be
transferred except:
(i) To any successor of The Depository Trust Company or its nominee, or to
any substitute depository designated pursuant to clause (ii) of this subsection (a)
("substitute depository"); provided that any successor of The Depository Trust Company
or substitute depository shall be qualified under any applicable laws to provide the
service proposed to be provided by it;
(ii) To any substitute depository not objected to by the Fiscal Agent, upon (1)
the resignation of The Depository Trust Company or its successor (or any substitute
depository or its successor) from its functions as depository, or (2) a determination by
the Agency that The Depository Trust Company or its successor (or any substitute
depository or its successor) is no longer able to carry out its functions as depository;
provided that any such substitute depository shall be qualified under any applicable laws
to provide the services proposed to be provided by it; or
(iii) To any person as provided below, upon (1) the resignation of The
Depository Trust Company or its successor (or substitute depository or its successor)
from its functions as depository; provided that no substitute depository which is not
objected to by the Fiscal Agent can be obtained, or (2) a determination by the Agency
that it is in the best interests of the Agency to remove The Depository Trust Company or
its successor (or any substitute depository or its successor) from its function as
depository.
(b) In the case of any transfer pursuant to clause (i) or clause (ii) of subsection
26.11(a) hereof, upon receipt of all Series 2009 Bonds shall be executed and delivered,
registered in the name of such successor or such substitute depository, or their nominees, as
the case may be, all as specified in such Written Request. In the case of any transfer pursuant
to clause (iii) of subsection 26.11(a) hereof, upon receipt of all outstanding Series 2009 Bonds
by the Fiscal Agent together with a Written Request, new Series 2009 Bonds shall be executed
and delivered in such denominations and registered in the names of such persons as requested
in such Written Request, subject to the limitations of Section 26.02 hereof; provided the Fiscal
Agent shall not be required to deliver such new Series 2009 Bonds within a period less than 60
days from the date of receipt of such Written Request.
(c) In the case of partial redemption, cancellation or an advance refunding of any
Series 2009 Bonds evidencing all or a portion of the principal maturing in a particular year, The
Depository Trust Company shall make an appropriate notation on such Series 2009 Bonds
indicating the date and amounts of such reduction in principal in form acceptable to the Fiscal
Agent.
(d) The Agency and the Fiscal Agent shall be entitled to treat the person in whose
name any Series 2009 Bond is registered as the Holder thereof for all purposes of the
Resolution and any applicable laws, notwithstanding any notice to the contrary received by the
Fiscal Agent or the Agency; and the Agency and the Fiscal Agent shall have no responsibility for
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transmitting payments to, communication with, notifying, or otherwise dealing with any beneficial
owners of the Series 2009 Bonds. Neither the Agency nor the Fiscal Agent will have any
responsibility or obligations, legal or otherwise, to the beneficial owners or to any other party
including The Depository Trust Company or its successor (or substitute depository or its
successor), except for the Holder of any Series 2009 Bond.
(e) So long as all outstanding Series 2009 Bonds are registered in the name of
"Cede & Co." or its registered assign, the Agency and the Fiscal Agent shall cooperate with
"Cede & Co.," as sole registered Holder, and its registered assigns in effecting payment of the
principal of and redemption premium, if any, and interest on the Series 2009 Bonds by
arranging for payment in such manner that funds for such payments are properly identified and
are made immediately available on the date they are due.
26.12. General Authorization to Agencv Chairperson and Other Agencv Officers.
The Chairperson, the Executive Director, the Director of Economic Development and all other
officers, agents or employees of the Agency are hereby authorized and directed, jointly and
severally, to do any and all things and to execute and deliver any and all documents which they
may deem necessary or advisable in order to consummate the issuance, sale and delivery of
the Series 2009 Bonds, to provide for the issuance of the Series 2009 Bonds in book -entry form,
to obtain a Reserve Facility for the Series 2009 Bonds and a Series 2009 Bond Insurance
Policy, to provide for the refunding of the Series 1999 Bonds that are current interest bonds
(including the delivery of one or more escrow agreements or refunding instructions) and
otherwise to effectuate the purposes of the Resolution, and any such actions previously taken
by the Chairperson, the Executive Director or the Director of Economic Development and such
other officers, agents or employees are hereby ratified, confirmed and approved in all respects.
Jones Hall, A Professional Law Corporation, is hereby designated as bond counsel and
disclosure counsel with respect to the Series 2009 Bonds, and the Executive Director and the
Director of Economic Development are authorized, if they deem it necessary or advisable, to
enter into an agreement for legal services with Jones Hall, A Professional Law Corporation,
provided that any amounts payable to such firm shall be contingent upon the successful
issuance of the Series 2009 Bonds and shall be payable solely from the proceeds of the Series
2009 Bonds.
26.13. Sale of Bonds; Purchase Contract. The Purchase Contract relating to the
Series 2009 Bonds (the "Purchase Contract"), among the Agency, the City of San Rafael Joint
Powers Financing Authority and E. J. De La Rosa & Co., Inc., substantially in the form on file
with the Secretary of the Agency and incorporated herein by reference, is hereby approved.
The Chairperson, the Executive Director, the Director of Economic Development or their
designee is hereby authorized to sell the Series 2009 Bonds by negotiated sale as set forth in
the Purchase Contract; provided that the maximum underwriter's discount or compensation shall
not exceed one percent (1.00%) of the principal amount of the Series 2009 Bonds, excluding
original issue discount. The Chairperson, the Executive Director, the Director of Economic
Development or their designees are each authorized, acting alone, to execute and deliver the
Purchase Contract, and are also authorized to take any and all actions reasonably required to
consummate the sale and issuance of the Series 2009 Bonds, including the correction of any
irregularity, ambiguity or other defect contained herein by inserting appropriate language
correcting such irregularity, ambiguity or defect in the Sales Certificate.
26.14. Approval of Official Statement. The preliminary Official Statement relating to
the Series 2009 Bonds, in the form presented to this meeting, is hereby approved. The
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Chairperson, the Executive Director or the Director of Economic Development or their designee
are hereby authorized, each acting alone, to "deem final' the preliminary Official Statement in
substantially said form pursuant to Rule 15c2-12 of the Securities and Exchange Commission.
The Chairperson, the Executive Director, the Director of Economic Development or their
designee are hereby authorized, each acting alone, to execute and deliver the final Official
Statement in substantially said form with such additions thereto or changes therein as are
approved by the Director of Economic Development.
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ARTICLE XXVII
ADDITIONAL COVENANTS OF THE AGENCY
27.01. Tax Covenants; Rebate Fund.
(a) In addition to all of the funds and accounts created pursuant to the Resolution,
the Fiscal Agent shall establish and maintain with respect to the Series 2009 Bonds a fund
separate from any other fund or account established and maintained hereunder designated as
the "Series 2009 Rebate Fund." Upon the written direction of the Agency, there shall be
deposited in the Series 2009 Rebate Fund such amounts as are required to be deposited
therein pursuant to the Tax Certificate relating to the Series 2009 Bonds. All money at any time
deposited in the Series 2009 Rebate Fund shall be held by the Fiscal Agent in trust, to the
extent required to satisfy the rebate requirement, as set forth in the Certificate as to Arbitrage of
Agency delivered in connection with the Series 2009 Bonds (the "Arbitrage Certificate"), for
payment to the United States of America. Notwithstanding the provisions of Article IV of the
Resolution relating to the pledge of Tax Revenues, the allocation of money in the Special Fund,
the investments of money in any fund or account and the defeasance of Outstanding Bonds, all
amounts required to be deposited into or on deposit in the Series 2009 Rebate Fund shall be
governed exclusively by this Section 27.01 and by the Series 2009 Tax Certificate (which is
incorporated herein by reference). The Fiscal Agent shall be deemed conclusively to have
complied with such provisions if it follows the written directions of the Agency, and shall have no
liability or responsibility to enforce compliance by the Agency with the terms of the Arbitrage
Certificate.
(b) The Agency shall not use or permit the use of any proceeds of Series 2009
Bonds or any funds of the Agency, directly or indirectly, to acquire any securities or obligations,
and shall not take or permit to be taken any other action or actions, which would cause any
Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code of "federally
guaranteed" within the meaning of Section 149(b) of the Code and any such applicable
requirements promulgated from time to time thereunder and under Section 103(c) of the Internal
Revenue Code of 1954, as amended, as applicable. The Agency shall observe and not violate
the requirements of Section 148 of the Code and any such applicable regulations. The Agency
shall comply with all requirements of Sections 148 and 149(d) of the Code to the extent
applicable to the Bonds. In the event that at any time the Agency is of the opinion that for
purposes of this Section 27.01(b) it is necessary to restrict or to limit the yield on the investment
of any moneys held by the Fiscal Agent under this Resolution, the Agency shall so instruct the
Fiscal Agent under this Resolution in writing, and the Fiscal Agent shall take such action as may
be necessary in accordance with such instructions.
The Agency shall not use or permit the use of any proceeds of the Series 2009 Bonds or
any funds of the Agency, directly or indirectly, in any manner, and shall not take or omit to take
any action that would cause any of the Bonds to be treated as an obligation not described in
Section 103(a) of the Code.
(c) Notwithstanding any provisions of this Section 27.01 if the Agency shall provide
to the Fiscal Agent an opinion of nationally recognized bond counsel that any specified action
required under this Section 27.01 is no longer required or that some further or different action is
required to maintain the exclusion from federal income tax of interest with respect to the Bonds,
the Fiscal Agent and the Agency may conclusively rely on such opinion in complying with the
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requirements of this section, and the covenants hereunder shall be deemed to be modified to
that extent.
(d) The Agency hereby designates the Series 2009 Bonds for purposes of paragraph
(3) of section 265(b) of the Code and represents that not more than $30,000,000 aggregate
principal amount of obligations the interest on which is excludable (under section 103(a) of the
Code) from gross income for federal income tax purposes (excluding (i) private activity bonds,
as defined in section 141 of the Code, except qualified 501(c)(3) bonds as defined in section
145 of the Code and (ii) current refunding obligations to the extent the amount of the refunding
obligation does not exceed the outstanding amount of the refunded obligation), including the
Series 2009 Bonds, has been or will be issued by the Agency, including all subordinate entities
of the Agency, during the calendar year 2009.
27.02. Housinq Set -Aside. The Agency shall comply with all requirements of the Law
relating to the deposit of taxes allocated to the Agency from the Project Area in the Low and
Moderate Income Housing Fund established by the Agency pursuant to the Law.
27.03. Future Obliqations; Pledqe Limitation. So long as any Bonds are
Outstanding, the Agency shall not enter into any obligation or make any expenditure payable
from taxes allocated to the Agency under the Law the payments of which, together with
payments theretofore made or to be made with respect to other obligations or expenditures
(including, but not limited to the Bonds) previously entered into or made by the Agency, would
exceed the then -effective limit on the amount of taxes which can be allocated to the Agency
pursuant to the Redevelopment Plan. Notwithstanding any other provision hereof, the pledge of
Tax Revenues in favor of the Holders shall be limited as required by Section 16112.7(e) of the
Government Code.
27.04. Aqreements with Other Taxing Aqencies. So long as any Series 2009 Bonds
are Outstanding under the Resolution, the Agency shall not enter into any agreement (except
for any agreement in effect at the time of the adoption of Second Supplemental Resolution) with
any other taxing agency which operates as a waiver of the Agency's right to receive Tax
Revenues under the Agency's Redevelopment Plan, unless such agreement is made expressly
subordinate and junior to the terms of the Resolution and the Bonds and to the repayment of
Policy Costs. The Agency shall not undertake proceedings for amendment of the
Redevelopment Plan if such amendment shall result in payments to one or more taxing entities
pursuant to Sections 33607.5 and 33607.7 of the Law unless the Agency shall first determine
that such payments will not adversely impair the Agency's ability to pay debt service on the
Bonds.
27.05. Concerninq the Series 2009 Bond Insurer and the Reserve Facility for the
Series 2009 Bonds. The Agency shall, in the Series 2009 Sales Certificate, agree to such
covenants and conditions as are required by the Series 2009 Bond Insurer and the Reserve
Facility Provider for the Series 2009 Bonds, and such covenants and conditions shall have the
same force and effect as if set forth in this Sixth Supplement Resolution.
27.06. Continuing Disclosure. The Agency hereby covenants and agrees that it will
comply with and carry out all of the provisions of the Series 2009 Continuing Disclosure
Certificate. Notwithstanding any other provision of the Resolution, failure of the Agency to
comply with the Series 2009 Continuing Disclosure Certificate shall not be considered an event
of default under the Resolution.
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27.07. Desianation of Series 2009 Bonds. If the issuance of the Series 2009 Bonds
occurs in calendar year 2010, the Series 2009 Bonds may, at the option of the Agency, instead
be designated "San Rafael Redevelopment Agency Central San Rafael Redevelopment Project
Tax Allocation Refunding Bonds, Series 2010."
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ARTICLE XXVIII
AMENDMENT TO RESOLUTION
28.01. Discharge of Bonds. Notwithstanding Section 9.03 of the Resolution, the
Agency may discharge all or a portion of a Series of Bonds by making the deposit described in
Section 9.03 (1), (2) or (3) with respect to such Bonds, and such Bonds shall no longer be
deemed to be outstanding under the Resolution.
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I, Esther C. Beirne, Agency Secretary of the San Rafael Redevelopment Agency, hereby
certify that the foregoing resolution was duly and regularly introduced and adopted at a regular
meeting of said Agency held on the 16th day of November, 2009, by the following vote, to wit:
AYES: MEMBERS: Brockbank, Connolly, Heller, Miller & Chairman Boro
NOES: MEMBERS: None
ABSENT: MEMBERS: None
51.
Esther C. Beirne, Agency Secretary