Res 85-109RESOLUTION NO. 85-109
RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF POWAY PROVIDING FOR THE ISSUANCE OF
SPECIAL TAX BONDS OF SOUTH POWAY COMMUNITY
FACILITIES DISTRICT NO. 1 (POMERADO BUSINESS
PARK PROJECT) AND AMENDING IN ITS ENTIRETY
RESOLUTION NO. 85-107
Recitals
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
Section 13.
Section 14.
TABLE OF CONTENTS
Definitions
Equality of Bonds, Pledge of Net Taxes
Amount, Issuance, Purpose and Nature of
Bonds
No General Issuer Liability
Description of Bonds; Interest Rates
Medium and Payment
Form of Bonds and Certificate of
Authentication
Execution and Authentication
Registration of Exchange or Transfer
Redemption of Bonds
(a) Redemption
(b) Selection of Bonds for Redemption
(c) Notice of Redemption
(d) Partial Redemption of Bonds
(e) Effect of Notice and Availability
of Redemption Money
(f) Redemption Fund
Funds and Accounts
Disposition of Bond Proceeds
Special Tax Fund
Administrative Expense Fund
Page
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Section 15.
Section 16.
Section 17.
Section 18.
Section 19.
Section 20.
Section 21.
Section 22.
Section 23
Section 24
Section 25
Section 26
Section 27
Section 28
Section 29.
Section 30.
Section 31.
Section 32.
Section 33.
Bond Fund
Reserve Fund
Acquisition Fund
Investments
Warranty
Covenants
Covenant 1.
Covenant 2.
Covenant 3.
Covenant
Punctual Payment
Levy of Special Tax
Commence Foreclosure
Proceedings
Arbitrage
Mutilated, Lost, Destroyed
or Stolen Bonds
Defeasance
Cancellation of Bonds
Supplemental Resolutions or Orders
Fiscal Agent
Liability of Fiscal Agent
Bond Register
Execution of Documents
and Proof of Ownership
Provisions Constitute Contract
Future Contracts
Severability
General Authorization
Effective Date of This Resolution
Exhibit A. Ballot Proposition
Exhibit B. Form of Bond
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A-1
B-1
RESOLUTION NO. 85-109
RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF POWAY PROVIDING FOR THE ISSUANCE OF
SPECIAL TAX BONDS OF SOUTH POWAY COMMUNITY
FACILITIES DISTRICT NO. 1 (POMERADO BUSINESS
PARK PROJECT) AND AMENDING IN ITS ENTIRETY
RESOLUTION NO. 85-107
On this 30th day of December, 1985, on a motion of Council
member Oravec, duly seconded by Council member Shepardson,
and carried the following Resolution is adopted acting in their
official capacity as the legislative body of the South Poway
Community Facilities District No. 1 (Pomerado Business Park
Pro3ect).
WHEREAS, the City Council of the City of Poway, California
(hereinafter referred to as the "legislative body of the local
agency"), has heretofor undertaken proceedings and declared
the necessity to issue bonds on behalf of a Community
Facilities District pursuant to the terms and provisions of the
"Mello-Roos Community Facilities Act of 1982," as amended,
being Chapter 2.5, Part 1, Division 2, Title 5 of the
Government Code of the State of California. Said Community
Facilities District is designated and known as
SOUTH POWAY COMMUNITY FACILITIES
DISTRICT NO. 1
(POMERADO BUSINESS PARK PROJECT)
(hereinafter referred to as the "Issuer"); and,
WHEREAS, pursuant to Ordinace No. 182 adopted by this
legislative body on the 26th day of November, 1985, the bond
proposition (attached as Exhibit A hereto and incorporated
herein by reference) was approved by the sole qualified voter
within the District:
WHEREAS, based upon such approval for incurring said
indebtedness and issuing special tax bonds the South Poway
Community Facilities District No. 1 (Pomerado Business Park
Project) is now authorized to issue bonds in the amount
hereinafter set forth and for the purpose set forth in said
proposition; and
WHEREAS, on November 26, 1985, the legislative body did
enact Ordinance No. 182 authorizing the levy of a special tax
in the Community Facilities District; and
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WHEREAS, the legislative body of the Community Facilities
District hereby desires to proceed to issue its bonds in the
aggregate principal amount of $30,000,000 designated as the
City of Poway (San Diego County, California) South Poway
Community Facilities District No. 1 (Pomerado Business Park
Project) Special Tax Bonds Series 1985.
WHEREAS, no bonds authorized pursuant to such an election
have been previously issued and sold;
WHEREAS, pursuant to the judgment in City of Poway v.
Marjorie K. Wahlsten, (San Diego County Superior Court Case No.
N31394) on December 24, 1985, the issuance of bonds of the
Issuer to be paid by a Special Tax authorized under the
Mello-Roos Community Facilities Act of 1982, as amended
(Sections 53311, the seq., of the California Government Code)
and collected within said Community Facilities District has
been declared valid and consistent with Articles XII~ A and
XIII B of the Constitution of the State of California;
NOW, THEREFORE, the City Council of the City of Poway DOES
HEREBY RESOLVE, DETERMINE AND ORDER as follows:
Section 1. Definitions. Unless the context otherwise
requires, the following terms shall have the following meanings:
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"Administrative Expenses" means the administrative costs
with respect to the calculation and collection of the Special
Taxes and any other costs related to Bonds or the Special Tax
for which the Special Tax may be levied in accordance with the
Applicable Bond Law.
"Applicable Bond Law" means the Mello-Roos Community
Facilities Act of 1982, as amended, Sections 53311, the seq.,
of the California Government Code.
"Authorized Investments" means subject to applicable law,
United States Treasury notes, bonds, bills or certificates of
indebtedness (including United States Treasury Obligations -
State and Local Government Series ("SLGS") or other direct
obligations issued by the United States Treasury for which the
faith and credit of the United States are pledged for the
payment of principal and interest); and (except with respect to
Section 22) obligations issued by banks for cooperatives,
federal and land banks, federal intermediate credit banks,
federal home loan banks, the Federal Home Loan Bank Board, the
Tennessee Valley Authority, or other federal agencies or United
States government-sponsored enterprises; and (except with
respect to Section 22) any other investment in which funds of
the Issuer may be legally invested, including, taxable
government money market portfolios restricted to obligations
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with maturities of one year or less issued or fully guaranteed
as to the principal and interest thereon by the full faith and
credit of the United States of America.
"Bond Register" means the books which the Fiscal Agent
shall keep or cause to be kept on which the registration and
transfer of the Bonds shall be recorded.
"Bondowner" or "Owner" means the person or persons in whose
name or names any Bond is registered.
"Bonds" means the City of Poway (San Diego County,
California) South Poway Community Facilities District No. 1
(Pomerado Business Park Project) Special Tax Bonds Series 1985.
"City" means the City of Poway, California.
"Fiscal Agent" means Security Pacific National Bank and any
successor thereto.
"Fiscal Year" means the period beginning on July 1 and
ending on the next following June 30.
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"Gross Taxes" means the amount of all Special Taxes and
proceeds from the sale of property collected pursuant to the
foreclosure provisions of this Resolution for the delinquency
of such Special Taxes.
"Interest Payment Date" means each March 2 and September 2,
commencing September 2, 1986.
"Issuer" means South Poway Community Facilities District
No. 1 (Pomerado Business Park Project) of the City, established
pursuant to the Applicable Bond Law.
"Maximum Annual Debt Service" shall be the maximum sum
obtained for any Fiscal Year prior to the final maturity on the
Bonds by totaling the following for each Fiscal Year:
(1) The principal amount of all outstanding Bonds
payable in such Fiscal Year; and
(2) The interest payable on the aggregate principal
amount of the Bonds outstanding in such fiscal year if the
Bonds are retired as scheduled; and
(3) The amount, if any, necessary to maintain in the
Reserve Fund an amount equal to the Reserve Requirement.
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"Net Taxes" means the amount of all Gross Taxes minus
Administrative Expenses.
"Ordinance" means Ordinance No. 182 adopted by the City
Council of the City on November 26, 1985, providing for the
levying of the Special Tax.
"Project" means collectively the reimbursement of sums
expended by the owner of property within the South Poway
Community Facilities District No. 1 (Pomerado Business Park
Project) for acquisition of water and sewer facilities, major
roads, drainage facilities and fire protection facilities as
more particularly described in proceedings taken pursuant to
the Resolution of Intention or any other facilities for the
benefit of South Poway Community Facilities District No. 1
(Pomerado Business Park Project) which may be financed in
accordance with the Applicable Bond Law.
"Project Costs" means the costs of financing the Project,
the costs of issuance of the Bonds and related costs.
"Record Date" means February 15 and/or August 15 of any
year in which any of the Bonds are outstanding.
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"Reserve Requirement" means on any date in any one year l0x
of the original $30,000,000 aggregate principal amount of the
Bonds.
"Resolution" means this Resolution, as amended or
supplemented pursuant to the terms hereof.
"Resolution of Intention" means Resolution No. 85-080
adopted by the City Council of the City on October 22, 1985,
stating the City's intention to form the South Poway Community
Facilities District No. 1 (Pomerado Business Park Project).
"Special Taxes" means the taxes authorized to be levied
pursuant to the landowner approval referred to in the recitals
and in accordance with the Applicable Bond Law on behalf of the
Issuer by the City and described in the Resolution of Intention.
"Treasurer" means the Treasurer of the City actiMg on
behalf of the District.
"Underwriter" means Drexel Burnham Lambert Incorporated.
Section 2. Equality of Bonds, Pledqe of Net Taxes.
Pursuant to the Applicable Bond Law and this Resolution, the
Bonds shall be equally payable from the Net Taxes without
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priority for number, date of the Bonds, date of sale, 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 thereof shall be exclusively paid from the Net Taxes
are hereby set aside for the payment of the'Bonds, and such Net
Taxes and any interest earned on the Net Taxes shall constitute
a trust fund for the payment of the interest on and principal
of the Bonds and so long as any of the Bonds or interest
thereon shall not be used for any other purpose, except as
permitted by this Resolution and shall be held in trust for the
benefit of the Bondowners and shall be applied pursuant to this
Resolution, or to this Resolution as modified pursuant to
provisions herein.
Nothing in this Resolution shall preclude: the redemption
prior to maturity of any Bonds subject to call and redemption
and payment of said Bonds from proceeds of refunding bonds
issued under the Applicable Bond Law as the same now exists or
as hereafter amended, or under any other law of the State of
California.
Section 3. Amount, Issuance, Purpose and Nature of Bonds.
Under and pursuant to the Applicable Bond Law, the Bonds in the
amount of $30,000,000 shall be issued for the purposes of
acquiring and completing the Project. The Bonds shall be and
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are special obligations of the Issuer and shall be payable as
to the principal thereof and interest thereon and any premiums
upon the redemption thereof solely from, the Net Taxes, the
amounts in the funds created hereunder and earnings thereon,
and the Pledged Revenues (as defined hereinafter) and the Net
Taxes and Pledged Revenues are ~ereby set aside for the payment
of the Bonds.
Section 4. No General Issuer Liability. The Bonds and
interest thereon, together with any premium paid thereon upon
redemption, are not obligations of the City. Except with
respect to the Special Tax, neither the credit nor the taxing
power of the Issuer or the City is pledged for the payment of
the Bonds or the interest thereon, and no Owner of the Bonds
may compel the exercise of the taxing power by the Issuer or
the City or the forfeiture of any of their property. The
principal of and interest on the Bonds and premiums upon the
redemption of any thereof are not a debt of the Issuer nor a
legal or equitable pledge, charge, lien, or encumbrance, upon
any of its property, or upon any of its income, receipts, or
revenues, except the Net Taxes which are, under the terms of
this Resolution and the Applicable Bond Law, set aside for to
the payment of the Bonds and interest thereon.
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Section 5. Description of Bonds; Interest Rates. The
Bonds shall be issued in fully registered form in denominations
of $5,000 or any integral multiple thereof within a single
maturity and shall be numbered as desired by the Fiscal Agent.
The Bonds shall be designated CITY OF POWAY' (SAN DIEGO COUNTY,
CALIFORNIA) SOUTH POWAY COMMUNITY FACILITIES DISTRICT NO. 1
(POMERADO BUSINESS PARK PROJECT) SPECIAL TAX BONDS SERIES
1985. The Bonds shall mature and be payable on March 2 in the
years, in the aggregate principal amounts, and shall bear
interest at the rates set forth as follows:
YEAR
1987
1988
1989
1990
1991
1992
PRINCIPAL INTEREST
AMOUNT RATE
$360 000
$385 000
$410 000
$440 000
$475 000
$515 000
6.5%
7.0%
7.5%
8.0%
8.2%
s. 4%
2000
$6,285,000 Term Bonds
9.5%
2011
$21,130,000 Term Bonds
9.75%
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Interest shall be payable with respect to each Bond on each
Interest Payment Date until the principal sum of that Bond has
been paid; provided, however, that if at the maturity date of
any Bond (or if the same is redeemable and shall be duly called
for redemption, then at the date fixed for redemption) funds
are available for the payment qr redemption thereof, in full
accordance with terms of this Resolution, such Bonds shall then
cease to bear interest.
Section 6. Medium and Payment. The Bonds shall be payable
both as to principal and interest, and as to any premiums upon
the redemption thereof, in lawful money of the United States of
America. The principal of the Bonds and any premiums due upon
the redemption thereof shall be payable upon presentation
thereof at the principal corporate trust office of ~the Fiscal
Agent in Los Angeles, California. Interest on any Bond shall
be payable from the Interest Payment Date next preceding the
date of authentication of that Bond, unless (i) such~date of
authentication is an Interest Payment Date in which event
interest shall be payable from such date of authentication,
(ii) the date of authentication is after a Record Date but
prior to the immediately succeeding Interest Payment Date, in
which event interest shall be payable from the Interest Payment
Date immediately succeeding the date of authentication or (iii)
the date of authentication is prior to the close of business on
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the first Record Date in which event interest shall be payable
from December 2, 1985; provided, however, that if at the time
of authentication of such Bond, interest is in default,
interest on that Bond shall be payable from the last Interest
Payment Date to which the interest has been'paid or made
available for payment. Interest on any Bond shall be paid to
the person whose name shall appear in the Bond Register as the
Owner of such Bond as of the close of business on the Record
Date. Such interest shall be paid by check or draft of the
Fiscal Agent mailed to such Bondowner at his or her address as
it appears on the Bond Register.
Section 7. Form of Bonds and Certificate of
Authentication. The Bonds shall be printed from steel engraved
or lithographic plates, and the Bonds and the certificate of
authentication shall be substantially in the form attached
hereto as Exhibit B, which form is hereby approved and adopted
as the form of the Bonds and of the certificate of
authentication.
Section 8. Execution and Authentication. The Bonds shall
be signed on behalf of the Issuer by the facsimile signature of
the Mayor of the City of Poway and the City Clerk, and the seal
of the Issuer (or a facsimile thereof) shall be impressed,
imprinted, engraved or otherwise reproduced thereon, and
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attested by the signature of the City Clerk. In case any one
or more of the officers who shall have signed or sealed any of
the Bonds shall cease to be such officer before the Bonds so
signed and sealed have been authenticated and delivered by the
Fiscal Agent (including new Bonds delivered pursuant to the
provisions hereof with reference to the transfer and exchange
of Bonds or to lost, stolen, destroyed or mutilated Bonds),
such Bonds may, nevertheless, be authenticated and delivered as
herein provided, and may be issued as if the person who signed
or sealed such Bonds had not ceased to hold such offices.
The Bonds shall bear thereon a certificate of
authentication, in the form set forth in Exhibit B hereto,
executed manually by the Fiscal Agent. Only such Bonds as
shall bear thereon such certificate of authentication shall be
entitled to any right or benefit under this Resolution, and no
Bond shall be valid or obligatory for any purpose until such
certificate of authentication shall have been duly executed by
the Fiscal Agent.
Section 9. Registration of Exchange or Transfer. The
registration of any Bond may, in accordance with its terms, be
transferred upon the Bond Register by the person in whose name
it is registered, in person or by his or her duly authorized
attorney, upon surrender of such Bond for cancellation at the
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principal corporate trust office of the Fiscal Agent,
accompanied by delivery of written instrument of transfer in a
form approved by the Fiscal Agent and duly executed by the
Bondowner or his or her duly authorized attorney. Bonds may be
exchanged at the principal corporate trust Office of the Fiscal
Agent for a like aggregate principal amount of Bonds or other
authorized denominations of the same maturity. The Fiscal
Agent will not charge for any new Bond issued upon any
exchange, but may require the Bondowner requesting such
exchange to pay any tax or other governmental charge required
to be paid with respect to such exchange. Whenever any Bond or
Bonds shall be surrendered for registration of transfer or
exchange, the Issuer shall execute and the Fiscal Agent shall
authenticate and deliver a new Bond or Bonds of the same
maturity, for a like aggregate principal amount; provided that
the Fiscal Agent shall not be required to register transfers or
make exchanges of (i) Bonds for a period of 15 days next
preceding any selection of the Bonds to be redeemed, or (ii)
any Bonds chosen for redemption.
Section 10. Redemption of Bonds.
(a)(i) Optional Redemption. The Bonds maturing on or
before March 2, 1996 are not subject to call and redemption
prior to maturity. The Bonds maturing on or after March 2,
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1997 may be redeemed, at the option of the Issuer on March 2,
1996, or on any Interest Payment Date thereafter, prior to
maturity in whole or in part, in inverse order of maturity and
by lot within a maturity, at the following redemption prices,
expressed as a percentage of par value, together with accrued
interest to the date of redemp%ion.
Redemption Dates
March 2, 1996 and September 2, 1996
March 2, 1997 and September 2, 1997
March 2, 1998 and September 2, 1998
March 2, 1999 and thereafter
Redemption Prices
103%
102%
101%
100%
In the event the Issuer shall elect to redeem Bonds as
provided in this Section 10, the Issuer shall give written
notice to the Fiscal Agent of its election so to redeem, the
redemption date and the principal amount of the Bonds to be
redeemed. Such notice shall be given at least 30 but no more
than 90 days prior to the redemption date or such shorter
period as shall be acceptable to the Fiscal Agent.
(a) (ii) Mandatory Redemption. The outstanding Term Bonds
maturing on March 2, 2000 will be called before maturity and
redeemed from the money that has been deposited into the
Redemption Fund on March 2, 1993, and on each March 2,
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thereafter prior to maturity, in accordance with the Sinking
Account Payment Schedule set forth below. The Bonds so called
for redemption shall be redeemed at a redemption price for each
redeemed Bond equal to the Principal amount thereof, plus
accrued interest to the redemption date without premium.
Year Principal
March 2 Amount
1993 $560,000
1994 615,000
1995 670,000
1996 735,000
1997 805,000
1998 880,000
1999 965,000
2000 1,055,000 (payment at maturity)
The outstanding Term Bonds maturing on March 2, 2011 will be
called before maturity and redeemed from the money that has been
deposited into the Redemption Fund on March 2, 2001, and on each
March 2, thereafter prior to maturity, in accordance with the
Sinking Account Payment Schedule set forth below. The Bonds so
called for redemption shall be redeemed at a redemption price
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is obtained by dividing the principal amount of such Bond to be
redeemed in part by $5,000. The Fiscal Agent shall promptly
notify the Issuer in writing of the Bonds, or portions thereof,
selected for redemption.
(c) Notice of Redemption. When the Fiscal Agent shall
receive notice from the Issuer of its election to redeem Bonds,
the Fiscal Agent shall give notice, in the name of the Issuer,
of the redemption of such Bonds. Such notice of redemption
shall (a) specify the serial numbers and the maturity date or
dates of the Bonds selected for redemption, except that where
all the Bonds subject to redemption, or all the Bonds of one
maturity, are to be redeemed, the serial numbers thereof need
not be specified; (b) state the date fixed for redemption; (c)
state the redemption price; (d) state the place or places where
the Bonds are to be redeemed; and (e) in the case of Bonds to be
redeemed only in part, state the portion of such Bond which is
to be redeemed. Such notice shall further state that on the
date fixed for redemption, there shall become due and payable on
each Bond or portion thereof called for redemption, the
principal thereof, together with any premium, and interest
accrued to the redemption date, and that from and after such
date, interest thereon shall cease to accrue and be payable. At
least 30 days but no more than 90 days prior to the redemption
date, the Fiscal Agent shall mail a copy of such notice, by
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for each redeemed Bond equal to the Principal amount thereof,
plus accrued interest to the redemption date without premium.
Year
March 2
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
Principal
Amount
$1,155,000
1,270,000
1,390,000
1,530,000
1,675,000
1,840,000
2,020,000
2,215,000
2 435,000
2 670,000
2 930,000 (payment at maturity)
(b) Selection of Bonds for Redemption. If less than all of
the outstanding Bonds are to be redeemed, the Fiscal Agent shall
select the Bonds to be redeemed by lot; provided, however, that
the portion of any Bond of a denomination of more than $5,000 to
be redeemed shall be in the principal amount of $5,000 or a
multiple thereof, and that, in selecting portions of such Bonds
for redemption, the Fiscal Agent shall treat each such Bond as
representing that number of Bonds of $5,000 denomination which
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first class mail, postage prepaid, to the respective Owners
therof at their addresses appearing on the Bond Register. The
actual receipt by the Owner of any Bond of Notice of such
redemption shall not be a condition precedent thereto, and
failure to receive such notice shall not affect the validity of
the proceedings for the redemption of such Bonds, or the
cessation of interest on the redemption date. A certificate by
the Fiscal Agent that notice of such redemption has been given
as herein provided shall be conclusive as against all parties
and it shall not be open to any Bondowner to show that he or she
failed to receive notice of such redemption.
(d) Partial Redemption of Bonds. Upon surrender of any
Bond to be redeemed in part only, the Issuer shall execute and
the Fiscal Agent shall authenticate and deliver to the
Bondowner, at the expense of the Issuer, a new Bond or Bonds of
authorized denominations equal in aggregate principal amount to
the unredeemed portion of the Bonds surrendered, with the same
interest rate and the same maturity.
(e) Effect of Notice and Availability of Redemption Money.
Notice of redemption having been duly given, as provided in this
Section 10, and the amount necessary for the redemption having
been made available for that purpose and being available
therefor on the date fixed for such redemption:
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(1) The Bonds, or portions thereof, designated
for redemption shall, on the date fixed for redemption,
become due and payable at the redemption price thereof
as provided in this Resolution, anything in this
Resolution or in the Bonds to the Contrary
notwithstanding;
(2) Upon presentation and surrender thereof at
the principal corporate trust office of the Fiscal
Agent, such Bonds shall be redeemed at the said
redemption price;
(3) After the redemption date the Bonds or
portions thereof so designated for redemption shall be
deemed to be no longer outstanding and such Bonds or
portions thereof shall cease to bear further interest;
and
(4) After the date fixed for redemption no Owner
of any of the Bonds or portions thereof so designated
for redemption shall be entitled to any of the benefits
of this Resolution, or to any other rights, except with
respect to payment of the redemption price and interest
accrued to the redemption date from the amounts so made
available.
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(f) Redemption Fund. Prior to the first redemption date
there shall be established by the Fiscal Agent a redemption fund
to be described or known as 1985 Bonds South Poway Community
Facilities District No. 1 Redemption Fund (herein sometimes
referred to as the "Redemption Fund"). PriOr to the redemption
date, the Fiscal Agent shall deposit in the Redemption Fund
moneys available for the purpose and sufficient to redeem, at
the premiums payable as provided in this Resolution, the Bonds
designated in such notice of redemption. Said moneys must be
set aside in said fund solely for that purpose and shall be
applied on or after the redemption date to the payment of
principal and premium on the Bonds to be redeemed upon
presentation and surrender of such Bonds and shall be used only
for that purpose. If, after all of the Bonds have been redeemed
and cancelled or paid and cancelled, there are moneys remaining
in said Redemption Fund, said moneys shall be transferred to the
Bond Fund; provided, that if said moneys are part of the
proceeds of refunding bonds said moneys shall be transferred to
the fund or account created for the payment of principal of and
interest on such refunding bonds.
Section 11. Funds and Accounts. There is hereby created
and established and shall be maintained by the Treasurer of the
Issuer within the treasury of the City the 1985 Bonds South
Poway Community Facilities District No. 1, Acquisition Fund
(hereinafter sometimes referred to as the "Acquisition Fund").
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The following funds and accounts are hereby created and
established and shall be maintained by the Fiscal Agent for the
administration and control of the Special Taxes.
(1) 1985 Bonds South Poway Community Facilities
District No. 1, Special Tax Fund (hereinafter sometimes
referred to as the "Special Tax Fund"). There is
hereby created in the Special Tax Fund a separate
subaccount thereof designated as the "Special Tax Fund
Pledged Revenues Subaccount".
(2) 1985 Bonds South Poway Community Facilities
District No. 1, Reserve Fund (hereinafter sometimes
referred to as the "Reserve Fund").
(3) 1985 Bonds South Poway Community Facilities
District No. 1, Administrative Expense Fund
(hereinafter referred to as the "Administrative Expense
Fund").
(4) 1985 Bonds South Poway Community Facilities
District No. 1, Bond Fund (hereinafter referred to as
the "Bond Fund"). There is hereby established in the
Bond Fund the following special trust accounts: (i)
the "Bond Interest Account", (ii) the "Serial Bond
Payment Account" and (iii) the "Term Bond Sinking Fund
Account".
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Section 12. Disposition of Bond Proceeds.. The proceeds of
the sale of the Bonds shall be received by the Fiscal Agent and
deposited as follows:
(1). The. amount representing the accrued interest and
capitalized interest in an amount equal to $4,230,919.34 on
the Bonds shall be placed in the Bond Interest Account of
the Bond Fund;
(2) The Reserve Requirement shall be placed in the
Reserve Fund;
(3) A sum equal to the amount necessary to pay fees
and expenses incurred in connection with the issuance and
saIe of Bonds, as provided in a Certificate of the Issuer,
shall be placed in the Bond Fund. To the extent any such
moneys placed in the Bond Fund are not used to pay costs of
issuance within 180 days after the delivery of the Bonds,
then such moneys shall be transferred to the Bond Interest
Account of the Bond Fund.
(4) The balance shall be placed in the Acquisition
Fund.
Section 13. Special Tax Fund. The Fiscal Agent shall, on
each date on which the Gross Taxes have been collected by the
Treasurer and deposited with the Fiscal Agent, deposit the Gross
Taxes in the Special Tax Fund, such Gross Taxes to be held in
trust and transferred in the amounts and priority set forth
below.
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0609k/2468/01 -24-
Notwithstanding anything herein to the contrary, moneys
transferred to the Special Tax Fund from the Acquisition Fund
shall, unless in the opinion of nationally recognized bond
counsel another use of such funds will not impair the exemption
of interest on any of the Bonds from Federal income taxation, be
held in a separate account within the Special Tax Fund and
moneys in such separate account shall not be invested at a yield
in excess of the yield on the Bonds and shall be applied only
(i) to the purchase of Bonds by the Issuer in the open market,
at a price not to exceed the principal amount thereof plus
accrued interest, which Bonds shall thereupon be cancelled,
(ii) to make interest payments on the Bonds, or (iii) to redeem
Bonds at the earliest redemption date permitted by this
Resolution, without premium.
The Treasurer of the District shall transfer to the Fiscal
Agent certain moneys pledged by the Poway Redevelopment Agency
for debt service on the Bonds (the "Pledged Revenues") in the
Special Tax Fund Pledged Revenue Subaccount thereof. Such
Pledged Revenues shall be transferred to the Special Tax Fund
and shall, unless in the opinion of nationally recognized bond
counsel another use of such funds will not impair the exemption
of interest on any of the Bonds from Federal income taxation, be
held in a separate account within the Special Tax Fund and such
Pledged Revenues shall not be invested at a yield in excess of
the yield on the Bonds and shall be applied only (i) to the
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0609k/2345/04 -25-
purchase of Bonds by the Issuer in the open market, at a price
not to exceed the principal amount thereof plus accrued
interest, which Bonds shall thereon be cancelled, (ii) to make
interest payments on the Bonds, or (iii) to redeem Bonds at the
earliest redemption date permitted by this Resolution, without
premium.
The Fiscal Agent shall transfer moneys from the Special Tax
Fund to the Bond Fund as necessary to pay debt service on the
Bonds.
Section 14. Administrative Expense Fund. On or before the
date amounts are needed to pay Administrative Expenses, the
Fiscal Agent shall withdraw from the Special Tax Fund and place
in the Administrative Expense Fund an amount necessary to pay
all Administrative Expenses. Moneys in the Administrative
Expense Fund may be invested in any Authorized Investments,
provided that the maturity or maturities thereof shall not be
later than the date or dates on which moneys must be available
to meet scheduled Administrative Expenses.
Section 15. Bond Fund. The interest on the Bonds until
maturity shall be paid by the Fiscal Agent from the Bond Fund.
At the maturity of the Bonds and, after all interest then due on
the Bonds then outstanding has been paid or provided for, moneys
12-30-85
0609k/2345/04 -26-
in the Bond Fund shall be applied to the payment of the
principal, and premium, if any, of any of such Bonds.
Without limiting the generality of the foregoing and for the
purpose of assuring that the payments referred to above will be
made as scheduled, the Special Taxes transferred to the Bond
Fund from the Special Tax Fund shall be used in the following
priority; provided, however, that to the extent that deposits
have been made in any of the Accounts referred to below from the
proceeds of the sale of the Bonds or otherwise, the deposits
below need not be made:
(A) Bond Interest Account. Deposits shall be made
into the Bonds Interest Account so that the balance in said
Account one (1) day prior to the date of the payment of any
installment of interest of the Bonds shall be equal to such
installment of interest. Moneys in the Bond Interest Account
shall be used for the payment of interest on the Bonds as the
same become due.
(B) Serial Bond Payment Account. After the deposits
have been made pursuant to subparagraph (a) above, deposits
shall next be made into the Serial Bond Payment Account so that
the balance in said Account on March 1 of each year shall equal
the principal payment on the then outstanding serial Bonds on
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0609k/2345/04 -27-
the next succeeding March 2. Moneys in the Serial Bond Payment
Account shall be used for the payment of the principal of such
serial Bonds as the same become due.
(C) Term Bond Sinkinq Fund Account. Commencing on
March 2, 1993 and on each March 2 thereafter to and including
March 2, 2000 for the Term Bonds maturing on March 2, 2000, and
commencing on March 2, 2001 and on each March 2 thereafter to
and including March 2, 2011 for the Term Bond maturing on
March 2, 2011, and after the deposits have been made pursuant to
the subparagraphs above, if the Special Taxes are sufficient
therefor, deposits shall next be made into the Term Bond Sinking
Fund Account so that the balance in said Account on such March 2
of the year involved shall equal the then current Minimum
Sinking Fund Payment on the then outstanding Term Bonds. Moneys
in the Term Bond Sinking Fund Account shall be used and applied
by the Fiscal Agent to call and redeem the largest principal
amount of outstanding term Bonds which can be called~with the
moneys available therefor. Any such call and redemption shall
be made in accordance with the provisions of Section 10 hereof
and according to the schedule of Minimum Sinking Fund Payments.
In lieu or partially in lieu of such call and redemption, moneys
in the Term Bonds Sinking Fund Account may be used to purchase
outstanding term Bonds in the manner hereinafter provided.
Purchases of outstanding term Bonds may be made by the Issuer at
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0609k/2345/04 -28-
public or private sale as and when and when and at such prices
as the Issuer may in its discretion determine but only at prices
(including brokerage or other expenses) not more than par plus
accrued interest plus the premium applicable at the next
following call date according to the schedule or schedules of
Redemption Years and Premium for Optional Call established
pursuant to the Resolution, and any accrued interest payable
upon the purchase of term Bonds may be paid from the amount
reserved in the Bond Interest Account for the payment of
interest on the next following interest payment date.
Section 16. Reserve Fund. There shall be maintained in the
Reserve Fund an amount equal to the Reserve Requirement.
Moneys in the Reserve Fund shall be used solely for the
purpose of paying the principal of and interest on the Bonds in
the event that the moneys in the Bond Fund are insufficient
therefor, and for that purpose the Fiscal Agent shall withdraw
from the Reserve Fund for deposit in the Bond Fund, moneys
necessary for such purpose. Notwithstanding anything herein to
the contrary, whenever moneys are withdrawn from the Reserve
Fund, an equal amount of moneys shall be placed in the Reserve
Fund by transfers from the first available moneys in the Special
Tax Fund.
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0609k/2345/04 -29-
Notwithstanding any provision herein to the contrary, moneys
in the Reserve Fund in excess of the Reserve Requirement shall
be withdrawn from the Reserve Fund by the Fiscal Agent on
September 2, 1986, and on each September 2 thereafter to and
including September 2, 1988 and transferred to the Acquisition
Fund. Commencing September 2, 1989 and on each September 2
thereafter moneys in the Reserve Fund in excess of the Reserve
Requirement shall be transferred to the Bond Fund.
Section 17. Acquisition Fund.
(a) The moneys in the Acquisition Fund shall be applied
exclusively to pay the Project Costs.
(b) Upon payment or reimbursement of the Project Costs, the
Treasurer shall transfer moneys on deposit in the Acquisition
Fund, to the extent such moneys are not needed for Project
Costs, to the Fiscal Agent to be placed in the SpeciJl Tax Fund.
(c) Notwithstanding anything herein to the contrary, if on
December 2, 1988, any funds remain on deposit in the Acquisition
Funds, the Treasurer shall immediately restrict the yield on
such amounts such that the yield on such amounts is not in
excess of the yield on the Bonds (as set forth in the
Non-Arbitrage Certificate of the Issuer), unless in the opinion
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0609k/2345/04 -30-
of nationally recognized bond counsel such restriction is not
necessary.
Section 18. Investments. Obligations purchased as
investments of moneys in any of the funds and accounts in which
investments are authorized, including the moneys in the
Acquisition Fund, shall be deemed at all times to be a part of
such funds and accounts and any income realized from such
investments shall be credited to such funds and any loss
resulting from such investments shall be charged to such funds
and accounts; provided, however, all investment earnings on all
amounts deposited in (i) the Reserve Fund and (ii) the Special
Tax Fund shall be deposited (1) in the Bond Fund until the
Project is completed, and (2) thereafter, in the Reserve Fund an
amount, if any, required to maintain the Reserve Requirement,
and second, in the Special Tax Fund. Moneys in said funds and
accounts may be from time to time invested by the Treasurer or
by the Fiscal Agent at the written direction of the Treasurer
subject to the following restrictions:
(a) Moneys in the Acquisition Fund shall be invested in
obligations which will by their terms mature as close as
practicable to the date the Issuer estimates the moneys
represented by the particular investment will be needed for
withdrawal from such fund.
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0609k/2345/04 -31-
(b) Moneys in the Bond Fund shall be invested only in
obligations which will by their terms mature on such dates so as
to ensure the payment of principal and interest on the Bonds as
the same become due.
(c) Half of the moneys in the Reserve Fund may be invested
in obligations which shall mature not more than five years form
the date of purchase by the Fiscal Agent and the balance shall
be invested in obligations which shall mature not more than ten
years from the date of purchase by the Fiscal Agent, provided
that no such security shall mature later than the final maturity
of the Bonds.
The Fiscal Agent shall sell at the best price obtainable or
present for redemption any obligations so purchased whenever it
may be necessary to do so in order to provide moneys to meet any
payment or transfer for such funds and accounts or from such
funds and accounts. For the purpose of determining at any given
time the balance in any such funds, any such investments
constituting a part of such funds and accounts shall be valued
at their cost. Notwithstanding anything herein to the contrary,
the Fiscal Agent shall not be responsible for any loss from
investments, sale or transfer authorized pursuant to this
Resolution.
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0609k/2345/04 -32-
Section 19. Warranty. The Issuer shall preserve and
protect the security of the Bonds and the rights against all
claims and demands of all persons.
Section 20. Covenants. So long as any of the Bonds issued
hereunder are outstanding and unpaid, the Issuer makes the
following covenants with the Bondowners under the provisions of
the Applicable Bond Law and this Resolution (to be performed by
the Issuer or its proper officers, agents or employees), which
covenants are necessary, convenient and desirable to secure the
Bonds and tend to make them more marketable; provided, however,
that said covenants do not require the Issuer to expend any
funds or moneys other than the Gross Taxes.
Covenant 1. Punctual Payment. The Issuer covenants that it
will duly and punctually pay or cause to be paid the principal
of and interest on every Bond issued hereunder, together with
the premium thereon, if any be payable, on the date, at the
place and in the manner mentioned in the Bonds and in accordance
with this Resolution to the extent Net Taxes are available
therefor, and that the payments into the Bond Fund and the
Reserve Fund will be made, all in strict conformity with the
terms of said Bonds and this Resolution, and that it will
faithfully observe and perform all of the conditions, covenants
and requirements of this Resolution and all resolutions
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0609k/2345/04 -33-
supplemental hereto and of the Bonds issued hereunder, and that
time of such payment and performance is of the essence of the
Issuer's contract with the Bondowners.
Covenant 2. Levy of Special Tax. The City Council of the
City on behalf of the Issuer shall levy the Special Tax to pay
principal, interest and Administrative Expenses of the Bonds and
any amounts required to replace monies withdrawn from the
Reserve Fund in order to maintain the Reserve Fund at the
Reserve Requirement so long as any Bonds issued under this
Resolution are outstanding. The levy of the Special Tax may be
reduced by the amount of funded interest, accrued interest and
the Pledged Revenues deposited in the Bond Fund provided such
amounts are available to pay principal and interest.
Covenant 3. Commence Foreclosure Proceedings. The Issuer
covenants for the benefit of the Owners of the Bonds that it
will commence appropriate foreclosure proceedings within the
earlier of 120 days of notice from the County of San Diego of a
delinquency in the aggregate Special Tax collections or 120 days
from receipt of Special Taxes from the County in an amount which
is less than the Special Tax levied, and diligently pursue to
completion such foreclosure proceedings in the event any Special
Tax installment becomes delinquent.
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Covenant 4. No Arbitraqe; No Consumer Loans. The Issuer
covenants and agrees to take no action which, in the opinion of
Bond Counsel, would result in the interest received by the
Bondholders becoming taxable under federal income tax laws. The
Issuer hereby covenants to the purchasers of the Bonds that it
will make no use of the proceeds of the Bonds at any time during
the term thereof which, if such use had been reasonably expected
at the date the Bonds are issued, would have caused such Bonds
to be "arbitrage bonds" within the meaning of Section 103(c) of
the United States Internal Revenue Code of 1954, as amended, and
applicable regulations adopted thereunder by the Internal
Revenue Service, and the Issuer hereby assumes the obligation to
comply with such Sections 103(c) and such regulations throughout
the term of the Bonds.
Notwithstanding any other provision of this Resolution,
except as provided below, the payment of principal of and
interest on the Bonds shall not be directly or indirectly
guaranteed (in whole or in part) by the United States (or any
agency or instrumentality thereof) and no portion of the moneys
contained in any of the funds or accounts created herein shall
be (i) used in making loans guaranteed by the United States (or
any agency or instrumentality thereof); (ii) invested directly
or indirectly in deposits or accounts insured by the Federal
Deposit Insurance Corporation, Federal Savings and Loan
12-30-85
0609k/2345/04 -35-
Insurance Corporation, National Credit Union Administration or
any other similar federally chartered corporation; (iii)
otherwise invested directly or indirectly in obligations
guaranteed (in whole or in part) by the United States (or any
agency or instrumentality thereof); except (a) during the
initial three year temporary period following issuance of the
Bonds and ending on December 15, 1988; and (b) amounts held in
the Reserve Fund or other reserve funds satisfying Section
103(c)(4)(B) of the Code; (c) amounts held in the Bond Service
Account and other bona fide debt service funds; (d) investments
in obligations issued by the United States Treasury; (e)
investments in obligations guaranteed by the Federal National
Mortgage Association, Government National Mortgage Association
or Federal Home Loan Mortgage Corporation, or (f) investments
permitted under regulations issued pursuant to Section
103(h)(3)(B) of the Code; (iv) used directly or indirectly to
make or finance loans (other than loans that enable the borrower
to finance any governmental tax or assessment of general
application for an essential governmental function or that are
used to acquire or carry nonpurpose obligations) to persons who
are not exempt persons so as to cause the issue to be deemed a
private loan bond within the meaning of Section 103(o) of the
Internal Revenue Code of 1954, as amended, and any regulations
of the United States Department of the Treasury issued
thereunder; or (v) such other investments as, in the opinion of
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0609k/2345/04 -36-
Bond Counsel, do not jeopardize the tax exempt status of
interest on the Bonds.
Section 21. Mutilated, Lost, Destroyed or Stolen Bonds. If
any Bond shall become mutilated, the Issuer'shall execute, and
the Fiscal Agent shall authenticate and deliver, a new Bond of
like tenor, date, maturity and number in exchange and
substitution for the Bond so mutilated, but only upon surrender
to the Fiscal Agent of the Bond so mutilated. Every mutilated
Bond so surrendered to the Fiscal Agent shall be cancelled and
delivered to the Issuer. If any Bond shall be lost, destroyed
or stolen, evidence of such loss, destruction or theft may be
submitted to the Fiscal Agent and, if such evidence is
satisfactory to the Issuer and, if any indemnity satisfactory to
the Issuer a~d the Fiscal Agent shall be given, the Issuer, at
the expense of the Bondowner, shall execute and the Fiscal Agent
shall authenticate and deliver, a new Bond of like tenor and
maturity, numbered and dated as such Fiscal Agent shall
determine in lieu of and in substitution for the Bond so lost,
destroyed or stolen. Any Bond issued under the provisions of
this Section 21 in lieu of any Bond alleged to be lost,
destroyed or stolen, shall be equally and proportionately
entitled to the benefits hereof with all other Bonds issued
hereunder. The Fiscal Agent shall not treat both the original
Bond and any duplicate Bond as being outstanding for the purpose
12-30-85
0609k/2345/04 -37-
deposit in the Bond Fund together with the interest to accrue
thereon, be fully sufficient to pay and discharge the principal
of and interest on all Bonds outstanding as and when the same
shall become due and payable; then, at the election of the
Issuer, and notwithstanding that any Bonds shall not have been
surrendered for payment, all o~ligations of the Issuer under
this Resolution with respect to all outstanding Bonds shall
cease and terminate, except for the obligation of the Fiscal
Agent to pay or cause to be paid to the Owners of the Bonds not
so surrendered and paid, all sums due thereon. Notice of such
election shall be filed with the Fiscal Agent not less than
sixty (60) days prior to such deposit, and shall be accompanied
by a certificate of a certified public accountant and an opinion
of a nationally recognized bond counsel certifying as to the
continued tax exempt status of the Bonds. Any funds held by the
Fiscal Agent, at the time of receipt of such notice from the
Issuer, which are not required for the purpose above mentioned,
shall be paid over to the Special Tax Fund.
Section 23. Cancellation of Bonds. Ail Bonds surrendered
to the Fiscal Agent for payment upon maturity or for redemption
shall upon payment therefor be cancelled immediately and
forthwith transmitted to the Treasurer. Any Bond purchased by
the Issuer as authorized herein shall be delivered to the
Fiscal Agent and cancelled forthwith and shall not be
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0609k/2345/04 -39-
of determining the principal amount of Bonds which may be
executed, authenticated and delivered hereunder or for the
purpose of determining any percentage of Bonds outstanding
hereunder, but both the original and duplicate Bond shall be
treated as one and the same. Notwithstanding any other
provision of this Section, in lieu of delivering a new Bond
which has been mutilated, lost, destroyed or stolen, and which
has matured, the Fiscal Agent may make payment with respect to
such Bonds.
Section 22. Defeasance.
paid and discharged in any one or more of the following ways:
(a) by paying or causing to be paid the principal of and
interest with respect to all Bonds outstanding, as and when the
same become due and payable;
(b) by depositing with the Fiscal Agent, in trust, at or
before maturity, money which, together with the amounts then on
deposit in the Bond Fund, is fully sufficient to pay'the
principal of and interest on all Bonds outstanding as and when
the same shall become due and payable; or
(c) by depositing with the Fiscal Agent, in trust, direct
obligations of, or obligations guaranteed by, the United States
of America, in which the Issuer may lawfully invest its money,
in such amount as the Fiscal Agent shall determine will,
together with the interest to accrue thereon and moneys then on
If all outstanding Bonds shall be ~-
12-30-85
0609k/2345/04 -38-
reissued. All of the cancelled Bonds shall be transferred to
and shall remain in the custody of the Treasurer until
destroyed pursuant to due authorization.
Section 24. Supplemental Resolutions or Orders. The
Issuer may from time to time, and at any time, without notice
to or consent of any of the Bondholders, adopt resolutions or
orders supplemental hereto for any of the following purposes:
(a) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other
provision herein, or to make any other provision with respect
to matters or questions arising under this Resolution or in any
additional resolution or order, provided that such action shall
not adversely affect the interest of the Bondholders;
(b) to the covenants and agreements of and the limitations
and the restrictions upon the Issuer contained in this
Resolution, other covenants, agreements, limitations and
restrictions to be observed by the Issuer which are hot
contrary to or inconsistent with this Resolution as theretofor
in effect;
(c) to modify, alter, amend or supplement this Resolution
in any other respect which is not materially adverse to the
Bondholders.
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0609k/2345/04 -40-
Exclusive of the resolutions or orders supplemental hereto
covered by the first paragraph of this Section 24, the Owners
of not less than 60~ in aggregate principal amount of the Bonds
then outstanding shall have the right to consent to and approve
the adoption by the Issuer of such resolutions or orders
supplemental hereto as shall b~ deemed necessary or desirable
by the Issuer for the purpose of waiving~ modifying, alternate,
amending, adding to or rescinding, in any particular, any of
the terms or provisions contained in this Resolution; provided,
however, that nothing herein shall permit, or be construed as
permitting, (a) an extension of the maturity date of the
principal, or the payment date of interest on, any Bond (b) a
reduction in the principal amount of, or redemption premium on,
any Bond or the rate of interest thereon, (c) a preference or
priority of any Bond or Bonds over any other Bond or Bonds, or
(d) a reduction in the aggregate principal amount of the Bonds
the Owners of which are required to consent to such resolution
or order, without the consent of the Owners of all Bonds then
outstanding~
If at any time the Issuer shall desire to adopt a
resolution or order supplemental hereto, which pursuant to the
terms of this Section 24 shall require the consent of the
Bondowners, the Issuer shall so notify the Fiscal Agent and
shall deliver to the Fiscal Agent a copy of the proposed
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0609k/2345/04 -41-
resolution or order. The Fiscal Agent shall, at the expense of
the Issuer, cause notice of the proposed resolution or order to
be mailed, by first class mail postage prepaid, to all
Bondowners at their address as they appear in the Bond
Register. Such notice shall briefly set forth the nature of
the proposed resolution or order and shall state that a copy
thereof is on file at the office of the Fiscal Agent for
inspection by all Bondowners. The failure of any Bondowners to
receive such notice shall not affect the validity of such
resolution or order when consented to and approved as in this
Section 24 provided. Whenever at any time within one year
after the date of the first mailing of such notice, the Fiscal
Agent shall receive an instrument or instruments purporting to
be executed by the Owners of not less than 60~ in aggregate
principal amount of the Bonds then outstanding, which
instrument or instruments shall refer to the proposed
resolution or order described in such notice, and shall
specifically consent to and approve the adoption thereof by the
Issuer substantially in the form of the copy there if referred
to in such notice as on file with the Fiscal Agent, such
proposed resolution or order, when duly adopted by the Issuer,
shall thereafter become a part of the proceedings for the
issuance of the Bonds as referred to in Section 30 hereof. In
determining whether the Owners of 60~ of the aggregate
principal amount of the Bonds have consented to the adoption of
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0609k/2345/04 -42-
any supplemental resolution or order, Bonds which are owned by
the Issuer or by any person directly or indirectly controlling
or controlled by or under the direct or indirect common control
with the Issuer, shall be disregarded and shall be treated as
though they were not outstanding for the purpose of any such
determination.
Upon the adoption of any resolution or order supplemental
hereto and the receipt of consent to any such resolution or
order from the Owners of the appropriate aggregate principal
amount of Bonds in instances where such consent is required
pursuant to the provisions of this Section 24, this Resolution
shall be, and shall be deemed to be, modified and amended in
accordance therewith, and the respective rights, duties and
obligations under this Resolution of the Issuer and all Owners
of Bonds then outstanding shall thereafter be determined,
exercised and enforced hereunder, subject to all respects to
such modifications and amendments.
Section 25. Fiscal Agent. The Issuer hereby appoints
Security Pacific National Bank as Fiscal Agent for the Bonds.
The Fiscal Agent is hereby authorized to and shall mail by
first class mail, postage prepaid interest payments to the
Bondowners, select Bonds for redemption, give notice of
redemption and meetings of Bondowners, maintain the Bond
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Register and maintain and administer the Special Tax Fund, the
Redemption Fund, the Reserve Fund and the Bond Fund. The
Fiscal Agent is hereby authorized to pay the principal of and
premium, if any, on the Bonds when the same are duly presented
to it for payment at maturity or on call and redemption, to
provide for the registration of transfer and exchange of Bonds
presented to it for such purposes, to provide for the
cancellation of Bonds all as provided in this Resolution, and
to provide for the authentication of Bonds, and shall perform
all other duties assigned to or imposed on it as provided in
this Resolution. The Fiscal Agent shall keep accurate records
of all funds administered by it and all Bond paid and
discharged by it. The Fiscal Agent initially appointed, and
any successor thereto, may be removed by the Issuer and a
successor or successors shall be a bank or a trust company
doing business in and having an office in the city where the
predecessor did business and had an office. So long as any
Bonds are outstanding and unpaid the Fiscal Agent and any
successor or successors thereto designated by the Issuer shall
continue to be Fiscal Agent successors thereto designated by
the Issuer shall continue to be Fiscal Agent of the Issuer for
all of said purposes until the designation of a successor or
successors as Fiscal Agent.
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A Fiscal Agent appointed hereunder may resign at any time
upon 60 days' written notice and after appointment of
successor. Upon merger, consolidaton, or reorganization of a
Fiscal Agent, the Issuer will appoint a new Fiscal Agent, which
may be the corporation resulting from such reorganization.
Section 26. Liability of Fiscal Agent. The recitals of
fact and all promises, covenants and agreements contained
herein and in the Bonds shall be taken as statements, promises,
covenants and agreements of the Issuer, and the Fiscal Agent
assumes no responsibility for the correctness of the same and
makes no representations~as to the validity or sufficiency of
this Resolution or of the Bonds, and shall incur no
responsibility in respect thereof, other than in connection
with its duties or obligations herein or in the Bonds or in the
certificate of authentication assigned to or imposed upon the
Fiscal Agent. The Fiscal Agent shall be under no
responsibility or duty with respect to the issuance of the
Bonds for value. The Fiscal Agent shall not be liable in
connection with the performance of its duties hereunder, except
for its own gross negligence or default.
Section 27. Bond Register. The Fiscal Agent will keep or
cause to be kept, at its principal corporate trust office,
sufficient books for the registration and transfer of the Bonds
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0609k/2345/04 -45-
which shall at all times be open to inspection by the Issuer,
and, upon presentation for such purpose, the Fiscal Agent
shall, under such reasonable regulations as it may prescribe,
register or transfer or cause to be transferred on said Bond
Register, Bonds as herein provided.
The Issuer and the Fiscal Agent may treat the Owner of the
Bond whose name appears on the Bond Register as the absolute
Owner of the Bond for any and all purposes, and the Issuer and
the Fiscal Agent shall not be affected by any notice to the
contrary. The Issuer and the Fiscal Agent may rely on the
address of the Bondowner as it appears in the Bond Register for
any and all purposes. It shall be the duty of the Bondowner to
give written notice to the Fiscal Agent of any change in the
Bondowner to give written notice to the Fiscal Agent of any
change in the Bondowner's address so that the Bond Register may
be revised accordingly.
Section 28. Execution of Documents and Proof of
Ownership. Any request, direction, consent, revocation of
consent, or other instrument in writing required or permitted
by this Resolution to be signed or executed by Bondowners may
be in any number of concurrent instruments of similar tenor may
be signed or executed by such Owners in person or by their
attorneys appointed by an instrument in writing for that
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0609k/2345/04 -46-
purpose, or by the bank, trust company or other depository for
such Bonds. Proof of the execution of any such instrument, or
of any instrument appointing any such attorney, and of the
ownership of Bonds shall be sufficient for the purposes of this
Resolution (except as otherwise herein provided), if made in
the following manner:
(a) The fact and date of the execution by any Owner or his
or her attorney of any such instrument and of any instrument
appointing any such attorney, may be proved by a signature
guarantee of any bank or trust company located within the
United States of America. Where any such instrument is
executed by an officer of a corporation or association or a
member of a partnership on behalf of such corporation,
association or partnership, such signature guarantee shall also
constitute sufficient proof of his authority.
(b) As to any Bond, the person in whose name the same
shall be registered in the Bond Register shall be deemed and
regarded as the absolute Owner thereof for all purposes, and
payment of or on account of the principal of any such Bond, and
the interest thereon, shall be made only to or upon the order
of the registered Owner thereof or his or her legal
representative. All such payments shall be valid and effectual
to satisfy and discharge the liability upon such Bond and the
interest thereon to the extent of the sum or sums to be paid.
The Fiscal Agent shall not be affected by any notice to the
contrary.
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Nothing contained in this Resolution shall be construed as
limiting the Fiscal Agent to such proof, it being intended that
the Fiscal Agent may accept any other evidence of the matters
herein stated which the Fiscal Agent may deem sufficient. Any
request or consent of the Owner of any Bond shall bind every
future Owner of the same Bond in respect of anything done or
suffered to be done by the Fiscal Agent in pursuance of such
request or consent.
Section 29. Provisions Constitute Contract. The
provisions of this Resolution shall constitute a contract
between the Issuer and the Bondowners and the provisions hereof
and thereof shall be enforceable by any Bondowner for the equal
benefit and protection of all Bondowners similarly situated by
mandamus, accounting, mandatory injunction or any other suit,
action or proceeding at law or in equity that is now or may
hereafter be authorized under the laws of the State of
California in any court of competant jurisdiction. Said
contract is made under and is to be construed in accordance
with the laws of the State of California.
No remedy conferred hereby upon any Bondowner is intended
to be exclusive of any other remedy, but each such remedy is
cumulative and in addition to every other remedy and may be
exercised without exhausting and without regard to any other
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remedy confrred ay the Applicable Bond Law or any other law of
the State of California. No waiver of any default or breach of
duty or contract by any Bondowner shall affect any subsequent
default or breach of duty or contract or shall impair any
rights or remedies on said subsequent default or breach. No
delay or omission of any Bondo~ner to exercise any right or
power accruing upon any default shall impair any such right or
power or shall be construed as a waiver of any such default or
acquiescence therein. Every substantive right and every remedy
conferred upon the Bondowners may be enforced and exercised as
often as may be deemed expedient. In case any suit, action or
proceeding to enforce any right or exercise any remedy shall be
brought or taken and the Bondowner shall prevail, said
Bondowner shall be entitled to receive from the Special Tax
Fund reimbursement for reasonable costs, expense, outlays and
attorney's fees and should said suit, action or proceeding be
abandoned, or be determined adversely to the Bondowners shall
be restored to their former positions, rights and remedies as
if such suit, action or proceeding had not been brought or
taken.
After the issuance and delivery of the Bonds this
Resolution shall be irrepealable, but shall be subject to
modifications to the extent and in the manner provided in this
Resolution, but to no greater extent and in no other manner.
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Section 30. Future Contracts. Nothing herein contained
shall be deemed to restrict or prohibit the Issuer from making
contracts or creating bonded or other indebtedness payable from
the general fund of the Issuer or from taxes or any source
other than the revenues of the Project as defined herein, and,
from and after the sale of the Bonds, the general fund of the
Issuer shall not include the revenues of the Project and no
contract or other obligations payable from the general fund of
the Issuer shall be payable from the revenues of the Project,
except as provided herein.
Section 31. Severability. If any covenant, agreement or
provision, or any portion thereof, contained in this
Resolution, or the application thereof to any person or
circumstance, is held to be unconstitutional, invalid or
unenforceable, the remainder of this Resolution and the
application of any such covenant, agreement or provision, or
portion thereof, to other persons or circumstances, ~hall be
deemed severable and shall not be affected thereby, and this
Resolution and the Bonds issued pursuant hereto shall remain
valid and the Bondowners shall retain all valid rights and
benefits accorded to them under the laws of the State of
California.
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Section 32. General Authorization. The Mayor of the City
Council and the City Clerk are hereby respectively authorized
to do and perform from time to time any and all acts and things
consistent with this Resolution necessary or appropriate to
carry the same into effect.
Section 33. Effective Date. This Resolution shall take
effect upon its adoption.
PASSED, ADOPTED AND APPROVED, by the City Council of the
City of Poway, California, at an adjourned regular meeting
thereof this 30th day of December, 1985.
Carl R. Kruse, Mayor, City of
Poway, for the South Poway
Community Facilities District
No. 1
ATTEST:
~le3~kl 'Cit~ of Poway, fior~
the South Poway Community
Facilities District No. 1
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EXHIBIT
PROPOSITION
CITY OF POW-AY
(SOUTH POWAY ~TY FACILITIES DISTRICT NO. 1)
AUTHORIZATION TO INCUR BOhDED I~DEBT~DNESS
AUTHORIZATION FOR SPECIAL TAX LEVY
Shall the South Poway (km,u,u~.ity Facilities District No. 1, City of Poway)
incur a bonded indebtedness in an amount not to excc~ $60,000,000.00 in 1985
dollars, to pay for certain public facilities for the construction, expansion,
rehabilitation or purchase of certain local facilities, including but not
limited to, park facilities, local recreational use parks, street and access
improvements, sewer improv~nents and drainage improv~nents, together with appur-
tenances and appurtenant work, and 2) levy a special max to secure said bonded
indebtedness and/or pay for the public capital facilities.
The appropriate mark placed in the voting square after the word "YES" shall
be counted in favor of the adoption of the proposition, and the appropriate mark
placed in the voting s~re after the word "NO" in the manner as authorized,
shall be counted against the adoption of said proposition.
EXHIBIT "B"
No.
INTEREST RATE
REGISTERED OWNER:
PRINCIPAL AMOUNT
UNITED STATES OF AMERICA
STATE OF CALIFORNIA
CITY OF POWAY (SAN DIEGO COUNTY)
SOUTH POWAY COMMUNITY FACILITIES DISTRICT NO. 1
(Pomerado Business Park Project)
SPECIAL TAX BOND SERIES 1985
MATURITY DATE DATED DATE
December 2, 1985
Drexel Burnham Lambert Incorporated
CUSIP
SOUTH POWAY COMMUNITY FACILITIES DISTRICT NO. 1 OF THE CITY
OF POWAY (the "District") situated in the County of San Diego,
State of California (the "City"), FOR VALUE RECEIVED, hereby
promises to pay solely from Special Taxes and Pledged Revenues
(as hereinafter defined) to be collected in District, the
registered owner named above, or registered assigns, on the
maturity date set forth above, unless redeemed prior thereto as
hereinafter provided, the principal amount set forth above, and
to pay interest on such principal amount from December 2, 1985
or from the most recent interest payment date to which interest
has been paid or duly provided for, semiannually on March 2 and
September 2, commencing September 2, 1986 at the interest rate
set forth above, until the principal amount hereof is paid or
made available for payment. The principal of and premium, if
any, on this Bond are payable to the registered owner hereof in
lawful money of the United States of America upon presentation
and surrender of this Bond at the principal corporate trust
office of Security Pacific National Bank in Los Angeles,
California (the "Fiscal Agent"). Interest on this Bond shall
be paid by check or draft of the Fiscal Agent mailed to the
registered owner hereof as of the close of business on the 15th
day of the month preceding the month in which the interest
payment date occurs (the "Record Date") at such registered
owner's address as it appears on the registration books
maintained by the Fiscal Agent.
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This Bond is one of a duly authorized issue of "City of
Poway (San Diego County) South Poway Community Facilities
District No. 1 (Pomerado Business Park Project) Special Tax
Bonds Series 1985" (the "Bonds") issued in the aggregate
principal amount of $30,000,000 pursuant to the Mello-Roos
Community Facilities Act of 1982, as amended, Sections 53311,
et seq., of the California Government Code (the "Mello-Roos
Act) for the purpose of financing the acquisition of certain
improvements in the District (the"Project"). The creation of
the Bonds and the terms and conditions thereof are provided for
by a resolution adopted by the.City Council of the City on
December 30, 1985 (the "Resolution"), and this reference
incorporates the Resolution herein, and by acceptance hereof
the owner of this Bond assents to said terms and conditions.
The Resolution is adopted under, this Bond is issued under and
both are to be construed in accordance with, the laws of the
State of California.
Pursuant to the Mello-Roos Act and the Resolution, the
principal of, premium, if any, and interest on this Bond are
payable solely from the annual special taxes authorized under
the Mello-Roos Act to be collected within the District (the
"Special Taxes").
Interest on this Bond shall be payable from the interest
payment date next preceding the date of registration hereof,
unless such date of registration is after a Record Date but on
or prior to an interest payment date, in which event interest
will be payable from such interest payment date, or unless such
date of registration is prior to the first Record Date, in
which event interest will be payable from December 2, 1985.
Any tax for the payment hereof shall be limited to the
Special Tax and Pledged Revenues, except to the extent that
provision for payment has been made by the City Coundil of the
City, as may be permitted by law. The Bonds do not constitute
obligations of the City or the District for which the City or
the District is obligated to levy or pledge, or has levied or
pledged, general or special taxation other than described
hereinabove. The City Council of the City has covenanted for
the benefit of the owners of the Bonds that it will commence
within 120 days and diligently pursue to completion appropriate
foreclosure actions in the event of delinquencies of any
Special Tax installments levied for payment of principal and
interest.
The Bonds maturing on or after March 2, 1997 may be
redeemed prior to maturity, in whole or in part, at the option
of the District on March 2, 1996, or on any interest payment
date thereafter prior to maturity, upon at least 30 days, but
not more than 90 days, prior written notice mailed to the
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registered owners at the addresses appearing on the bond
registry books, at the following redemption prices, expressed
as a percentage of par value, together with accrued interest to
the date of redemption:
Redemption Dates
March 2, 1996 and September 2, 1996
March 2, 1997 and September 2, 1997
March 2, 1998 and September 2, 1998
March 2, 1999 and thereafter
Redemption Prices
103%
102%
101%
100%
In addition, the Term Bonds maturing on March 2, 2000 and
March 2, 2011 shall be subject to mandatory redemption prior to
maturity, in part, by lot, at a price of par to the extent, in
the manner and subject to the terms of the Resolution.
Notice of redemption with respect to the Bonds to be
redeemed shall be given to the registered owners thereof, in
the manner, to the extent and subject to the provisions of the
Resolution.
This Bond shall be registered in the name of the Owner
hereof, as to both principal and interest.
Each registration and transfer of registration of this Bond
shall be entered by the Fiscal Agent in books kept by if for
this purpose and authenticated by its manual signature upon the
certificate of authentication and registration endorsed hereon.
No transfer hereof shall be valid for any purpos~ unless
made by the registered owner, by execution of the form of
assignment endorsed hereon, and authenticated as herein
provided, and the principal hereof, interest hereon and any
redemption premium shall be payable only to the registered
owner or to such owner's order. Interest on this Bond shall be
payable to the person whose name appears upon the registry
books as the registered owner hereof as of the close of
business on the 15th day of the month preceding the month in
which the interest payment date occurs, or to such person's
order.
The Fiscal Agent shall require the Bondowner requesting
transfer or exchange to pay any tax or other governmental
charge required to be paid with respect to such transfer or
exchange.
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This Bond shall not become valid or obligatory for any
purpose until the certificate of authentication and
registration hereon endorsed shall have been dated and signed
by the Fiscal Agent.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts,
conditions and things required by law to exist, happen and be
performed precedent to and in the issuance of this Bond have
existed, happened and been performed in due time, form and
manner as required by law, and that the amount of this Bond,
together with all other indebtgdness of the District, does not
exceed any debt limit prescribed by the laws or Constitution of
the State of California.
IN WITNESS WHEREOF, South Poway Community Facilities
District No. 1 has caused this Bond to be dated this 2nd day of
December, 1985, to be signed by the Mayor of the City Council
of the City by his facsimile signature and attested by the
facsimile signature of the City Clerk.
Carl R. Kruse, Mayor City of
Poway, for the South Poway
Community Facilities District
No. 1
ATTEST:
Marjorie K. Wahlsten, City
Clerk City of Poway, for
the South Poway Community
Facilities District No. 1
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FORM OF FISCAL AGENT'S CERTIFICATE
OF AUTHENTICATION AND REGISTRATION
This is one of the Bonds described in the within defined
Resolution.
Dated:
SECURITY PACIFIC NATIONAL BANK
as Fiscal Agent
By:
Authorized Officer
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned do(es) hereby sell, assign
and transfer unto the within-mentioned
registered Bond and hereby irrevocably constitute(s) and
appoint(s) attorney, to transfer the
same on the books of the Registrar with full power of
substitution in the premises.
Dated:
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