Monday, April 24, 2023
Open session begins at 7:00 p.m.
City Council Chamber
City Hall, 460 N. Euclid Avenue
Residents may observe the City Council meetings remotely via livestream on the City website, Spectrum Cable TV Channel 3, or Frontier Cable TV Channel 26.
Pages
1.CALL TO ORDER AND ROLL CALL
2.ADDITIONS-DELETIONS TO AGENDA
3.ORAL COMMUNICATIONS
This is a time for any citizen to comment on item listed on the closed session agenda only. Anyone wishing to address the legislative body is requested to submit a speaker card to the City Clerk at or prior to speaking. The speakers are requested to keep their comments to no more than three (3) minutes. The use of visual aids will be included in the time limit.
CLOSED SESSION BEGINS AT 6:00 p.m.
4.CLOSED SESSION
a.CLOSED SESSION CONFERENCE WITH LABOR NEGOTIATORS
Government Code Section 54957.6
Agency Designated Representatives: City Manager Michael Blay, Assistant City Manager Stephen Parker, and Deputy Director of Human Resources/Risk Management Terry Doyle
Employee organizations: Upland Mid-Management Association, Upland City Employees Association, Upland Police Officers Association, and Upland Police Management Association
Unrepresented Employees: Executive Staff and Non-Represented/Confidential Employees
5.INVOCATION
Pastor Noel Anderson, First Presbyterian Church
6.PLEDGE OF ALLEGIANCE
7.PRESENTATIONS
A Proclamation recognizing World Wish Day 2023 accepted by Ronnie Medrano and Matt Ferrero on behalf of Make-A-Wish Orange County and the Inland Empire
8.CITY ATTORNEY
9.ORAL COMMUNICATIONS
This is a time for any citizen to comment on any item listed or not listed on the agenda.
Anyone wishing to address the legislative body is requested to submit a speaker card to the City Clerk at or prior to speaking. The speakers are requested to keep their comments to no more than three (3) minutes. Speakers will be given five (5) minutes during public hearings. The use of visual aids will be included in the time limit. Public comments and questions for the purpose of hearing current matters of concern in our community and to provide citizens a method for the public to hear those concerns in an open venue is encouraged. However, under the provisions of the Brown Act, the City Council is prohibited from discussion of items not listed on the agenda, and therefore, the City Council, City Manager, or City Attorney will take communications under advisement for consideration and appropriate response or discussion at a later time.
Individuals who demonstrate disruptive conduct during City Council meetings that prevent the City Council from conducting its meeting in an orderly manner are guilty of a misdemeanor as stated in PC403, disrupting a public meeting, and are subject to removal from the chamber or arrest.
10.CONSENT CALENDAR
All matters listed under the Consent Calendar are considered to be routine and will be enacted by one roll call vote. There will be no separate discussion of these items unless members of the legislative body request specific items be removed from the Consent Calendar for separate action.
Recommended Action:
Approve the Consent Calendar
a.APPROVAL OF MINUTES 5
Recommended Action:
Approve the Regular Meeting Minutes of April 10, 2023. (Staff Person: Keri Johnson)
b.ANNUAL DESTRUCTION OF RECORDS 9
CEQA: Not a Project.
Recommended Action:
Adopt a Resolution authorizing and directing the City Clerk to destroy certain City records pursuant to the Government Code of the State of California. (Staff Person: Keri Johnson)
c.APPROVAL OF MARCH WARRANT AND PAYROLL REGISTERS 22
CEQA: Not a Project.
Recommended Action:
Approve the March warrant registers (check numbers 42535-42983 and direct disbursements totaling $8,937,140.81 and payroll registers totaling $1,519,982.54 (check numbers 163012-163025 and electronic fund transfers 39381-39908). (Staff Person: Stephen Parker)
d.TREASURER’S REPORT MARCH 2023 31
CEQA: Not a Project.
Recommended Action:
Receive and file the March 2023 Treasurer’s Report. (Staff Person: Stephen Parker)
e.CONSIDER ADOPTING A RESOLUTION ESTABLISHING A POLICY
REGARDING REVENUE GENERATED FROM LEASES ON CITY PARK
PROPERTY
46 CEQA: Not a Project
Recommended Action:
Adopt a resolution that assigns revenue generated from leases on City park property for use only for the park containing the lease or any park located in the same City Council district. (Staff Person: Stephen Parker) f.AWARD OF BID FOR LANDECENA INTERIOR IMPROVEMENT PROJECT 50 CEQA: Determined to be Exempt.
Recommended Action:
Approve the specifications for Project No. 23923 – Landecena Interior Improvement Project; award a contract to RS Construction & Development Inc. in the amount of $124,108.00; approve a construction contingency in the amount of $12,892, for a total amount of $137,000; and authorize the City Manager to execute the agreement and any future extension within the City Manager’s authority. (Staff Person: Braden Yu)
g.CALRECYCLE USED OIL PAYMENT PROGRAM (OPP) CYCLE 13 GRANT AWARD
52 CEQA: Not a Project.
Recommended Action:
Accept the CalRecycle Used Oil Payment Program (OPP) Cycle 13 grant award of $12,267 and appropriate the funds. (Staff Person: Braden Yu)
11.PUBLIC HEARINGS
12.COUNCIL COMMITTEE REPORTS
a.COUNCIL REPORTS ON REGIONAL COMMITTEE MEETING, TRAINING, OR
CONFERENCE ATTENDANCE
Councilmembers will provide oral reports on any meetings, trainings, or conferences they attended on behalf of the City. This item is for information only. b.PUBLIC WORKS COMMITTEE MEETING, APRIL 11, 2023 55
The Committee Chairperson will report on the meeting. This is an information item only.
13.BUSINESS ITEMS
a.AWARD OF BID FOR ALPINE, VERNON, AND PALM REHABILITATION AND UTILITY IMPROVEMENTS (BID No. 2023-02)
59 CEQA: Determined to be categorically exempt from further environmental review pursuant to Section 15301(c) (Existing Facilities), of the CEQA guidelines.
Recommended Action:
Approve the Plans and Specifications for the Alpine, Vernon, and Palm Avenue Roadway and Utility Improvement Project; overrule Gentry General Engineering’s bid protest; award the construction contract to Vido Samarzich, Inc. in the amount of $3,945,362; authorize a construction contingency in the amount of $394,638, for a total amount of $4,340,000. (Staff Person: Braden Yu) b.ISSUANCE OF SPECIAL TAX BONDS FOR COMMUNITY FACILITIES DISTRICT NO. 2022-1 (ENCLAVE AT UPLAND)
62 CEQA: Not a Project
Recommended Action:
Adopt a resolution to authorize the issuance of Bonds of Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland, County of San Bernardino, State of California designated 2023 Special Tax Bonds, appointing Fiscal Agent, approving Fiscal Agent Agreement and Purchase Contract and authorizing negotiation of terms of the sale of said Bonds, approving Preliminary Official Statement and authorizing preparation of Final Official Statement and approving Continuing Disclosure Certificate. (Staff Person: Stephen Parker)
14.COUNCIL COMMUNICATIONS
15.CITY MANAGER
16.ADJOURNMENT
The next regularly scheduled City Council meeting is Monday, May 8, 2023.
NOTE: If you challenge the public hearing(s) or the related environmental determinations in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City of Upland, at, or prior to, the public hearing.
All Agenda items and back-up materials are available for public review at the Upland Public Library, downstairs reference desk at 450 North Euclid Avenue, the City Clerk's Office at 460 North Euclid Avenue and the City website at www.uplandca.gov .
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk's Office, 909-931-4120.
Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. [28 CFR 35.102-35.104 ADA Title II] On April 19, 2023 a true and correct copy of this agenda was posted on the bulletin boards at 450 N. Euclid Avenue (Upland Public Library) and 460 N. Euclid Avenue (Upland City Hall) and the City website at www.uplandca.gov
1 MINUTES OF THE REGULAR MEETING OF THE UPLAND CITY COUNCIL
April 10, 2023
City Council Chamber
City Hall, 460 N. Euclid Avenue
Members Present: Mayor Bill Velto, Councilmember James Breitling, Councilmember Carlos A. Garcia, Councilmember Shannan Maust, Councilmember Rudy Zuniga
Staff Present: City Manager Michael Blay, City Attorney Stephen P. Deitsch, City Clerk Keri Johnson
_____________________________________________________________________
1. CALL TO ORDER AND ROLL CALL
The regular meeting of the Upland City Council was called to order by Mayor Bill Velto at 6:00 p.m. in the Council Chamber of the Upland City Hall.
2. ADDITIONS-DELETIONS TO AGENDA
None.
3. ORAL COMMUNICATIONS
None.
4. CLOSED SESSION
At 6:01 p.m. Mayor Velto announced that the City Council would recess to Closed Session pursuant to Government Code
a. GOVERNMENT CODE SECTION 54956.95 - LIABILITY CLAIMS (WORKER'S COMP)
Claimant: Donald Dodt
Agency: City of Upland
b. CLOSED SESSION CONFERENCE WITH LEGAL COUNSEL - EXISTING
LITIGATION
(Paragraph (1) of subdivision (d) of California Government Code Section 54956.9)
Case Name: Ching Patterson v. City of Upland
San Bernardino County Superior Court of California Case No.CIVSB2205499 c. CLOSED SESSION CONFERENCE WITH REAL PROPERTY NEGOTIATORS California Government Code Section 54956.8
2 Property: Approximately 160 feet west of the southwest corner of Washington Boulevard and 6th Avenue in the City of Upland (Assessor Parcel Number, APN:
1046-233-25)
City Negotiators: City Manager Michael Blay, Development Services Director Robert Dalquest, and Economic Development Coordinator Melecio Picazo Negotiating Party: George Gibson
Under Negotiation: Price and Terms
The City Council reconvened in open session at 7:02 p.m.
5. INVOCATION
Mark Fields, Retired Pastor, Upland Community Resource Center
6. PLEDGE OF ALLEGIANCE
Led by Terri Galdo, Upland Chamber
7. PRESENTATIONS
Presentation of a Certificate of Recognition to Linda Clinton, 41st Assembly District 2023 Woman of Distinction
Presentation of a Certificate of Recognition to Diane Smyers, 2023 Woman of the Year from Assembly District 53
Proclamation declaring April 2023 as Child Abuse Prevention Month Presentation of a Certificate of Recognition to Neil Gerard for his years of service to Upland Community Emergency Response Team (CERT)
Proclamation declaring April 28, 2023 as National Arbor Day, accepted by Operations Supervisor/City Arborist Brett Lance
8. CITY ATTORNEY
City Attorney Deitsch announced the City Council received reports and there was no reportable action during Closed Session.
9. ORAL COMMUNICATIONS
Kati Parker, Upland, announced Upland Heritage's 2023 Home Tour and provided information on the event.
John Boyadjian, Upland, stated that the street he resides on has not been resurfaced since he has lived there and the street is in need of repairs.
10. CONSENT CALENDAR
Councilmember Zuniga removed Consent Calendar 10E for separate action.
Moved by: Councilmember Garcia
Seconded by: Councilmember Zuniga
Approve the Consent Calendar
3 Motion: Carried Unanimously
a. APPROVAL OF MINUTES
Approve the Regular Meeting Minutes of March 27, 2023 and the Special Workshop Minutes of April 3, 2023.
b. APPROVAL OF A SECOND EXTENSION TO THE AGREEMENT WITH CARL
WARREN AND COMPANY FOR CLAIMS ADMINISTRATION FOR THE CITY'S
SELF INSURANCE PROGRAM
Approve the second extension of the agreement with Carl Warren and Company for claims administration for the City’s self-insurance Program. c. CONSIDER APPROVAL OF THE REVISIONS TO THE JOB SPECIFICATIONS
FOR THE UTILITY SYSTEM WORKER SERIES
Approve the revisions to the job specifications for the Utility System Worker series.
d. CONSIDER APPROVAL OF ALLOCATION OF ASSET FORFEITURE FUNDS
AND USE OF FUNDS FOR TRAINING
Approve an appropriation of $5,000 using fund balance in the Asset Forfeiture Fund (220) and approve the use of funding to facilitate training. e. APPROVE PROFESSIONAL SERVICES AGREEMENTS WITH ARCHITERRA
DESIGN GROUP TO PREPARE CONSTRUCTION PLANS AND WITH
MADOLE & ASSOCIATES FOR CIVIL ENGINEERING SERVICES FOR THE
TOM THOMAS MAGNOLIA PLAZA
Moved by: Councilmember Zuniga
Seconded by: Councilmember Garcia
Approve Professional Services Agreements with Architerra Design Group in the amount of $140,292.75 to prepare construction plans and with Madole & Associates to provide Civil Engineering Services at no cost and for the City Council to accept this donation valued at $25,000, for the Tom Thomas Magnolia Plaza on 0.69-acre located between Second Avenue and Third Avenue, adjacent to the Pacific Electric Trail.
Motion: Carried Unanimously
11. PUBLIC HEARINGS
12. COUNCIL COMMITTEE REPORTS
a. COUNCIL REPORTS ON REGIONAL COMMITTEE MEETING, TRAINING, OR
CONFERENCE ATTENDANCE
Mayor Velto reported on his attendance of the Omnitrans, Historic Downtown Upland, and the IE Regional Sewer Program Policy Board meetings on behalf of the City.
4 13. BUSINESS ITEMS
a. ANNUAL COMPREHENSIVE FINANCIAL REPORT (ACFR) AND RELATED REPORTS FOR THE FISCAL YEAR ENDED JUNE 30, 2022
Assistant City Manager Parker introduced Brett Van Lant of Van Lant & Fankhanel, LLP, who presented the staff report, along with a PowerPoint presentation, which is on file in the City Clerk's office.
There was discussion regarding the City's payment to the Unfunded Actuarial Liability and the inter-fund borrowing.
The Council received and filed the Annual Comprehensive Financial Report, the Single Audit Report on Federal Award Programs, the Auditor’s Communication with Those Charged with Governance, the Auditor’s Report on Internal Control over Financial Reporting and Compliance and Other Matters, and the Independent Accountants’ Report of Agreed-Upon Procedures Applied to Appropriations Limit Worksheets for the Fiscal Year Ended June 30, 2022, no action was necessary.
14. COUNCIL COMMUNICATIONS
Councilmembers announced various activities and events throughout the community.
Mayor Velto requested Councilmembers Breitling and Maust work together to find opportunities for grants, Councilmembers Maust and Zuniga work on finding opportunities for the 2023 Christmas Parade and Festival, and stated that he and Councilmember Garcia would work on opportunities for District 3 businesses and improvements.
15. CITY MANAGER
16. ADJOURNMENT
Mayor Velto adjourned the meeting at 7:57 p.m. The next regularly scheduled City Council meeting is Monday, April 24, 2023.
Keri Johnson, City Clerk
DATE: April 24, 2023
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY, CITY MANAGER
PREPARED BY: KERI JOHNSON, CITY CLERK
SUBJECT: ANNUAL DESTRUCTION OF RECORDS
RECOMMENDED ACTION:
It is recommended that the City Council adopt a Resolution authorizing and directing the City Clerk to destroy certain City records pursuant to the Government Code of the State of California.
GOAL STATEMENT
The proposed action supports the City’s goal to provide for the appropriate maintenance, storage, and destruction of official City records.
BACKGROUND
Government Code Section 34090 provides for the destruction of certain records after they are no longer required.
Records Retention schedules have been prepared and approved for various departments, which set forth the timeframe for keeping records.
ISSUES AND ANALYSIS
The attached Resolution orders the destruction of records based upon the City's adopted retention schedule. The City's Records Management Program sets forth the timel y destruction of non-permanent records.
The files were reviewed by the City Clerk and the City Attorney. There is no known or anticipated litigation associated with the records in the 2023 destruction.
ENVIRONMENTAL DETERMINATION
Not a project.
FISCAL IMPACTS
The document destruction is expected to cost approximately $500 and was included in the FY 22/23 operating budget.
No additional appropriations are necessary.
ALTERNATIVES
Provide alternative direction to staff.
CEQA: Not a Project.
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
UPLAND, CALIFORNIA, AUTHORIZING AND DIRECTING
THE CITY CLERK TO DESTROY CERTAIN DOCUMENTS
PURSUANT TO THE GOVERNMENT CODE OF THE STATE OF
CALIFORNIA.
WHEREAS, Sections 34090, 34090.5 and 34090.7 of the Government Code of the State of California provide for the destruction of certain City records and documents, with the approval of the legislative body by resolution and the written consent of the City Attorney; and
WHEREAS, in the opinion of the City Clerk and City Attorney, the records and documents listed hereinafter are not of sufficient historical, administrative, legal, fiscal, research or other value, to justify their retention; and
WHEREAS, the City Attorney has consented to the destruction of such documents and records; and
WHEREAS, a list of records for the Finance Division, Police Department, and Recreation Division are attached hereto and incorporated herein by reference.
NOW, THEREFORE, the City Council of the City of Upland hereby finds, determines and resolves as follows:
Section 1. The City Clerk is hereby authorized and directed to destroy these records and documents shown on the attached list in accordance with the provision of Sections 34090, 34090.5 and 34090.7 of the Government Code.
Section 3. The City Council finds that this Resolution is not subject to the California Environmental Quality Act (“CEQA”) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the State CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Further, if the activity is deemed a project this City Council finds that this Resolution is exempt pursuant to Section 15061(b)(3) of the State CEQA Guidelines.
Section 5. Severability. If any section, subsection, subdivision, sentence, or clause or phrase in this Resolution or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Resolution or any part thereof. The City Council hereby declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases are declared unconstitutional, invalid, or ineffective.
Resolution No.
Section 5. Effective Date. This Resolution shall become effective immediately.
Section 6. The City Clerk shall certify the passage and adoption of this Resolution and enter it into the book of original resolutions.
PASSED, APPROVED and ADOPTED 24th day of April, 2023.
__________
Bill Velto, Mayor
I, Keri Johnson, City Clerk of the City of Upland, do hereby certify that the foregoing Resolution was adopted at a regular meeting of the City Council held on the 24th day of April, 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAINED:
ATTEST: __________
Keri Johnson, City Clerk
DATE: April 24, 2023
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY, CITY MANAGER
PREPARED BY: STEPHEN PARKER, CPA, ASSISTANT CITY MANAGER
LONDA BOCK-HELMS, CPA, FINANCE OFFICER
SUBJECT: APPROVAL OF MARCH WARRANT AND PAYROLL REGISTERS
RECOMMENDED ACTION:
It is recommended that the City Council approve the March warrant registers (check numbers 42535-42983 and direct disbursements totaling $8,937,140.81 and payroll registers totaling $1,519,982.54 (check numbers 163012-163025 and electronic fund transfers 39381-39908).
GOAL STATEMENT
The proposed action supports the City’s goal of managing the City’s resources in a fiscally responsible and transparent manner.
BACKGROUND
The City Council is presented with the financial disbursements for the purchase of materials, supplies, services, capital projects, and payroll warrants issued in the prior month. This process provides the City Council the opportunity to review monthly expenses of the city.
ISSUES AND ANALYSIS
In accordance with Government Code 37208, the Finance Officer hereby certifies that the attached warrant registers, direct disbursements, and payroll registers have been found to conform to the approved budget and have been paid.
These demands are submitted to the City Council for review and approval.
ENVIRONMENTAL DETERMINATION
The proposed action is not subject to the California Environmental Quality Act (CEQA). Section 15378 of the CEQA Guidelines defines a project subject to CEQA. The proposed action is not included within the definition of a “project” and thus is exempt.
FISCAL IMPACTS
Funds are available for the payment of the warrant registers, direct disbursements, and payroll registers in accordance with the FY 2022-23 operating budget.
ALTERNATIVES
Provide alternative direction to staff.
CEQA: Not a Project.
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 42535 03/01/2023 PRINTED 1123 HYATT LEGAL PLANS, INC 819.00 42536 03/01/2023 PRINTED 16823 PRE PAID LEGAL SVC, INC 86.70 42537 03/01/2023 PRINTED 99181 ACCOUNTEMPS 1,620.00
42538 03/01/2023 PRINTED 14 ACTION AWARDS 32.70
42539 03/01/2023 PRINTED 207 ADLERHORST INTERNATIONAL LLC 323.14 42540 03/01/2023 PRINTED 86261 ADORAMA 1,180.35
42541 03/01/2023 PRINTED 291 ADVANCE STORE CO, INC 697.53 42542 03/01/2023 PRINTED 12564 ALL CITY MANAGEMENT SERVICES INC 22,464.00 42543 03/01/2023 PRINTED 1313 UNIVERSAL PROTECTION SERVICE, LP 18,981.85 42544 03/01/2023 PRINTED 1291 AMTECH ELEVATOR SERVICES 2,384.04 42545 03/01/2023 PRINTED 715 BACKFLOW PREVENTION DEVICE INSPECTIONS, INC 124.00 42546 03/01/2023 PRINTED 819 BRINKS, INC 901.90
42547 03/01/2023 PRINTED 5944 BURRTEC WASTE INDUSTRIES 1,764,629.85 42548 03/01/2023 PRINTED 195 CALIFORNIA NEWSPAPERS PARTNERSHIP 363.25 42549 03/01/2023 PRINTED 1479 MAP COMMUNICATIONS INC 1,203.50 42550 03/01/2023 PRINTED 124 DEPARTMENT OF JUSTICE 320.00 42551 03/01/2023 PRINTED 1002 DUNN-EDWARDS 1,715.32
42552 03/01/2023 PRINTED 4402 VARGAS, LUPE B 220.00
42553 03/01/2023 PRINTED 2435 EVERSOFT 1,074.25
42554 03/01/2023 PRINTED 1587 EXPRESS BRAKE SUPPLY & DISTRIBUTORS INC 329.66 42555 03/01/2023 PRINTED 96251 FORD OF UPLAND 373.77
42556 03/01/2023 PRINTED 16410 GEOGRAPHICS 26,288.49
42557 03/01/2023 PRINTED 1237 GOODMAN, VANESSA 859.20
42558 03/01/2023 PRINTED 129521 GRAFIX SYSTEMS 224.23
42559 03/01/2023 PRINTED 90227 HEARD'S INVESTIGATIONS AND POLYGRAPH, LLC 200.00 42560 03/01/2023 PRINTED 36271 INLAND EMPIRE PRINTING 1,237.80 42561 03/01/2023 PRINTED 1133 DISTRIBUTOR OPERATIONS INC 115.72 42562 03/01/2023 PRINTED 1133 DISTRIBUTOR OPERATIONS INC 58.25 42563 03/01/2023 PRINTED 48371 JEEP CHRYSLER OF ONTARIO 524.49 42564 03/01/2023 PRINTED 529 KAISER FOUNDATION HEALTH PLAN 183,938.05 42565 03/01/2023 PRINTED 1441 KNIGHT CLAREMONT INC 575.22 42566 03/01/2023 PRINTED 3020 LAW ENFORCEMENT MEDICAL SVCS 12,740.00 42567 03/01/2023 PRINTED 408 LCC INLAND EMPIRE DIVISION 22,569.00 42568 03/01/2023 PRINTED 133641 LIFEWORKS 386.88
42569 03/01/2023 PRINTED 811 LIVEVIEW GPS INC 958.80
42570 03/01/2023 PRINTED 104441 LOMA LINDA UNIV CHILDRENS HOSP 7,700.00 42571 03/01/2023 PRINTED 1341 MARTINEZ, JOSHUA 200.00
42572 03/01/2023 PRINTED 16877 NEXTDAY DELIVERY SERVICE, LLC 263.87 42573 03/01/2023 PRINTED 117121 NUCKLES OIL COMPANY INC 31,391.66 42574 03/01/2023 PRINTED 42771 OCCU-MED LTD 2,134.57
42575 03/01/2023 PRINTED 30971 OCCUPATIONAL HEALTH CENTERS 535.50 42576 03/01/2023 PRINTED 6625 P F SERVICES INC 150.00
42577 03/01/2023 PRINTED 1601 PARKER, STEPHEN 26.35
42578 03/01/2023 PRINTED 532 PATTON SALES CORP 184.36
42579 03/01/2023 PRINTED 67381 ROUTE 66 CAR WASH INC 915.00 42580 03/01/2023 PRINTED 606 SAN BERNARDINO COUNTY SHERIFF'S 1,329.75 42581 03/01/2023 PRINTED 68671 SANDERS LOCK & KEY INC 50.00 42582 03/01/2023 PRINTED 1013 SHAW HR CONSULTING 400.00 42583 03/01/2023 PRINTED 637 SMART & FINAL IRIS CO 223.24 42584 03/01/2023 PRINTED 16607 STAPLES BUSINESS ADVANTAGE 72.09 42585 03/01/2023 PRINTED 69231 STEP SAVER CA LLC 1,899.55 42586 03/01/2023 PRINTED 1154 T-MOBILE USA 50.00
42587 03/01/2023 PRINTED 1098 TIREHUB, LLC 804.02
42588 03/01/2023 PRINTED 626 TMP ENTERPRISES, LLC 200.00 42589 03/01/2023 PRINTED 4481 V C A CENTRAL ANIMAL HOSPITAL 132.82 42590 03/01/2023 PRINTED 990 VEOLIA NORTH AMERICA, INC 198.36 42591 03/01/2023 PRINTED 112201 WAUSAU TILE CO 2,813.19 42592 03/01/2023 PRINTED 1725 WEST COAST ARBORISTS INC 73,449.15 42593 03/01/2023 PRINTED 1282 WESTERN ALLIANCE BUSINESS TRUST 85,812.15 42594 03/01/2023 PRINTED 51 STEVEN WYNO 163.45
42595 03/01/2023 PRINTED 999999 JAMES MARANO 251.41
42596 03/09/2023 PRINTED 79181 VELTO, BILL 10.00
42597 03/08/2023 PRINTED 18261 AMERICAN PUBLIC WORKS ASSOCIATION 2,387.50 42598 03/08/2023 PRINTED 99181 ACCOUNTEMPS 1,620.00
City of Upland
Accounts Payable Check Reconciliation Register
03/01/2023 - 03/31/2023
Prepared By: Maria Serna Page 1 of 8 4/3/2023Page 23 of 264
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 42599 03/08/2023 PRINTED 207 ADLERHORST INTERNATIONAL LLC 637.05 42600 03/08/2023 PRINTED 291 ADVANCE STORE CO, INC 671.96 42601 03/08/2023 PRINTED 964 MARLOW, BRIAN 4,995.00
42602 03/08/2023 PRINTED 131971 ANNEALTA GROUP 6,345.00 42603 03/08/2023 PRINTED 12378 ATKINSON ANDELSON LOYA RUDD 4,781.70 42604 03/08/2023 PRINTED 6683 ATMAA INC 3,020.00
42605 03/08/2023 PRINTED 1769 BIO-TOX LABORATORIES 3,437.00 42606 03/08/2023 PRINTED 1193 BRIDGEPAY NETWORK SOLUTIONS 27.50 42607 03/08/2023 PRINTED 195 CALIFORNIA NEWSPAPERS PARTNERSHIP 1,324.01 42608 03/08/2023 PRINTED 448 CINTAS CORPORATION 2,034.83 42609 03/08/2023 PRINTED 475 CITY OF MONTCLAIR 4,349.72 42610 03/08/2023 PRINTED 1246 CRAIG JORDAN CONSTRUCTION 843.00 42611 03/08/2023 PRINTED 1500 ONLINE REPLACEMENT CUSHIONS INC 84.05 42612 03/08/2023 PRINTED 1153 DENCO LIEN SALES, INC 739.00 42613 03/08/2023 PRINTED 124 DEPARTMENT OF JUSTICE 194.00 42614 03/08/2023 PRINTED 82651 ECONOLITE SYSTEMS 41,811.97 42615 03/08/2023 PRINTED 1499 EMPOWER TRUST COMPANY, LLC 600.00 42616 03/08/2023 PRINTED 16701 ENVIROMINE 7,548.75
42617 03/08/2023 PRINTED 97141 EUROFINS EATON ANALYTICAL INC 4,270.56 42618 03/08/2023 PRINTED 1165 EWING IRRIGATION 1,964.46 42619 03/08/2023 PRINTED 123041 FRIENDS OF UPL ANML SHLTR INC 1,611.91 42620 03/08/2023 PRINTED 78 FRONTIER 340.00
42621 03/08/2023 PRINTED 932 GANAHL LUMBER CO.28.17
42622 03/08/2023 PRINTED 1192 GATEWAY PACIFIC CONTRACTORS, INC 657,181.08 42623 03/08/2023 PRINTED 28871 GRAFFITI PROTECTIVE COATINGS 6,668.20 42624 03/08/2023 PRINTED 290 GRAINGER 411.58
42625 03/08/2023 PRINTED 5206 H D L COREN & CONE 4,562.50 42626 03/08/2023 PRINTED 306 HACH CO 159.04
42627 03/08/2023 PRINTED 90227 HEARD'S INVESTIGATIONS AND POLYGRAPH, LLC 200.00 42628 03/08/2023 PRINTED 56561 HLP INC 18,321.60
42629 03/08/2023 PRINTED 1592 HOUSING CALIFORNIA 1,075.00 42630 03/08/2023 PRINTED 153 INLAND EMPIRE UTILITIES AGENCY 100,931.45 42631 03/08/2023 PRINTED 4137 INLAND FAIR HOUSING MEDIATION BOARD/FHMB 3,352.94 42632 03/08/2023 PRINTED 114501 INTERWEST CONSULTING GROUP 11,768.00 42633 03/08/2023 PRINTED 284 J G BAUTISTA CONSULTING 4,800.00 42634 03/08/2023 PRINTED 48371 JEEP CHRYSLER OF ONTARIO 145.24 42635 03/08/2023 PRINTED 79821 K S M ELECTRIC 3,165.00
42636 03/08/2023 PRINTED 1586 KARBONOUS, INC 4,309.35
42637 03/08/2023 PRINTED 937 TURNER, KIMBERLY 3,954.00
42638 03/08/2023 PRINTED 15595 L D M ASSOCIATES INC 10,337.50 42639 03/08/2023 PRINTED 3020 LAW ENFORCEMENT MEDICAL SVCS 2,050.00 42640 03/08/2023 PRINTED 408 LCC INLAND EMPIRE DIVISION 600.00 42641 03/08/2023 PRINTED 1602 LOVE DRELARRIE LEWIS 100.00 42642 03/08/2023 PRINTED 122601 LOWE'S 1,548.27
42643 03/08/2023 PRINTED 122231 LUSSIER, JAMES 200.00
42644 03/08/2023 PRINTED 345 MK SMITH CHEVROLET 30,773.10 42645 03/08/2023 PRINTED 18381 MOUNTAIN MOTOR SPORTS 107.73 42646 03/08/2023 PRINTED 240 RICHARD BRADY & ASSOCIATES INC 50,990.79 42647 03/08/2023 PRINTED 1000 RICHARDSON BODY SHOP CORPORATION 539.90 42648 03/08/2023 PRINTED 1262 RUMBLE FISH PEST CONTROL INC 300.00 42649 03/08/2023 PRINTED 222 SAN BERNARDINO COUNTY 500.00 42650 03/08/2023 PRINTED 606 SAN BERNARDINO COUNTY SHERIFF'S 1,327.59 42651 03/08/2023 PRINTED 606 SAN BERNARDINO COUNTY SHERIFF'S 644.00 42652 03/08/2023 PRINTED 11671 SAN BERNARDINO COUNTY 81,044.17 42653 03/08/2023 PRINTED 131121 SHRED-IT USA JV LLC 485.84 42654 03/08/2023 PRINTED 507 SILVER & WRIGHT LLP 1,230.53 42655 03/08/2023 PRINTED 10673 SO CAL BOLT & IND SUPPLY CO 10.02 42656 03/08/2023 PRINTED 18062 SOFFA ELECTRIC INC 2,881.73 42657 03/08/2023 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 155.45 42658 03/08/2023 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 1,319.10 42659 03/08/2023 PRINTED 16607 STAPLES BUSINESS ADVANTAGE 49.16 42660 03/08/2023 PRINTED 1154 T-MOBILE USA 50.00
42661 03/08/2023 PRINTED 11583 THOMPSON PLUMBING SUPPLY 304.53 42662 03/08/2023 PRINTED 626 TMP ENTERPRISES, LLC 400.00 42663 03/08/2023 PRINTED 62321 U.S. TELEPACIFIC CORP 898.04 42664 03/08/2023 PRINTED 11484 U S BANK 3,657.00
42665 03/08/2023 PRINTED 1413 VAZQUEZ, DIANA 119.82
42666 03/08/2023 PRINTED 392 WAXIE SANITARY SUPPLY 1,161.66 42667 03/08/2023 PRINTED 999999 ARMANDO MELGOZA 220.00
Prepared By: Maria Serna Page 2 of 8 4/3/2023Page 24 of 264
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 42668 03/08/2023 PRINTED 999999 FUMIKO LOPEZ 49.00
42669 03/08/2023 PRINTED 999999 MARISSA PEREYDA 827.52
42670 03/08/2023 PRINTED 999999 OPENDOOR PROPERTY TRUST 116.54 42671 03/08/2023 PRINTED 999999 OPENDOOR PROPERTY TRUST 49.32 42672 03/08/2023 PRINTED 999999 OPENDOOR PROPERTY TRUST 124.82 42673 03/08/2023 PRINTED 999999 OPENDOOR PROPERTY TRUST 32.64 42674 03/08/2023 PRINTED 999999 OPENDOOR PROPERTY TRUST 75.17 42675 03/08/2023 PRINTED 999999 OPENDOOR PROPERTY TRUST 38.52 42676 03/08/2023 PRINTED 999999 OPENDOOR PROPERTY TRUST 45.01 42677 03/08/2023 PRINTED 999999 OPENDOOR PROPERTY TRUST 126.53 42678 03/15/2023 PRINTED 99181 ACCOUNTEMPS 4,219.60
42679 03/15/2023 PRINTED 291 ADVANCE STORE CO, INC 2,852.48 42680 03/15/2023 PRINTED 1380 ADVANTEC CONSULTING ENGINEERS, INC 10,620.00 42681 03/15/2023 PRINTED 25 AGUILAR-RILEY, VIRGINIA 668.44 42682 03/15/2023 PRINTED 3 AIRGAS USA LLC 830.92
42683 03/15/2023 PRINTED 1396 ALVAREZ, MARIA ELENA 410.40 42684 03/15/2023 PRINTED 1243 AMERICAN GLOBAL SECURITY, INC 10,478.15 42685 03/15/2023 PRINTED 131971 ANNEALTA GROUP 9,000.00 42686 03/15/2023 PRINTED 308 ASPINALL, ROBIN JEAN 100.00 42687 03/15/2023 PRINTED 119831 AXON ENTERPRISE, INC 228,188.47 42688 03/15/2023 PRINTED 3987 BALDY VIEW GYMNASTICS 852.25 42689 03/15/2023 PRINTED 1348 BAST, KAY 195.00
42690 03/15/2023 PRINTED 1374 BALCO HOLDINGS INC 722.00 42691 03/15/2023 PRINTED 119661 BEST BEST & KRIEGER LLP 43,688.92 42692 03/15/2023 PRINTED 1007 CALDWELL, CHRISTINE 100.00 42693 03/15/2023 PRINTED 195 CALIFORNIA NEWSPAPERS PARTNERSHIP 4,284.92 42694 03/15/2023 PRINTED 83401 CARL WARREN & CO 3,968.00 42695 03/15/2023 PRINTED 84141 CARTY, DIANE 513.00
42696 03/15/2023 PRINTED 709 CAT TRACKING, INC 4,750.00 42697 03/15/2023 PRINTED 12511 CALIFORNIA COMPUTER SCHOOLS 125.00 42698 03/15/2023 PRINTED 448 CINTAS CORPORATION 2,236.30 42699 03/15/2023 PRINTED 15266 CMRTA 40.00
42700 03/15/2023 PRINTED 1306 COMPLETE PAPERLESS SOLUTIONS 6,917.00 42701 03/15/2023 PRINTED 521 COUPLAND, DONNA 384.30
42702 03/15/2023 PRINTED 1153 DENCO LIEN SALES, INC 451.00 42703 03/15/2023 PRINTED 1002 DUNN-EDWARDS 1,230.26
42704 03/15/2023 PRINTED 97141 EUROFINS EATON ANALYTICAL INC 8,857.00 42705 03/15/2023 PRINTED 10485 EXPERIAN 77.00
42706 03/15/2023 PRINTED 1587 EXPRESS BRAKE SUPPLY & DISTRIBUTORS INC 576.30 42707 03/15/2023 PRINTED 1107 FLOCK GROUP INC 20,000.00 42708 03/15/2023 PRINTED 1486 FLORES, NORMA 26.00
42709 03/15/2023 PRINTED 3266 FOOTHILL FAMILY SHELTER 349.00 42710 03/15/2023 PRINTED 99418 FRANCHISE TAX BOARD 75.00 42711 03/15/2023 PRINTED 78 FRONTIER 84.99
42712 03/15/2023 PRINTED 78 FRONTIER 128.25
42713 03/15/2023 PRINTED 78 FRONTIER 550.00
42714 03/15/2023 PRINTED 78 FRONTIER 665.29
42715 03/15/2023 PRINTED 78 FRONTIER 1,220.00
42716 03/15/2023 PRINTED 78 FRONTIER 79.36
42717 03/15/2023 PRINTED 78 FRONTIER 1,747.13
42718 03/15/2023 PRINTED 58311 G H A TECHNOLOGIES 2,599.66 42719 03/15/2023 PRINTED 1237 GOODMAN, VANESSA 3,516.90 42720 03/15/2023 PRINTED 290 GRAINGER 669.57
42721 03/15/2023 PRINTED 158 HD SUPPLY FACILITIES MAINTENANCE LTD 206.75 42722 03/15/2023 PRINTED 329 HOLLIDAY ROCK CO INC 1,115.70 42723 03/15/2023 PRINTED 16340 INFOSEND INC 9,473.80
42724 03/15/2023 PRINTED 899 INTERNATIONAL CODE COUNCIL, INC 1,975.16 42725 03/15/2023 PRINTED 1606 INTERNATIONAL E-Z UP, INC 1,844.94 42726 03/15/2023 PRINTED 114501 INTERWEST CONSULTING GROUP 17,340.50 42727 03/15/2023 PRINTED 1161 IPS GROUP INC 62.35
42728 03/15/2023 PRINTED 635 RENTOKIL NORTH AMERICA INC 1,197.45 42729 03/15/2023 PRINTED 9463 JB'S POOLS & PONDS, INC 83.16 42730 03/15/2023 PRINTED 48371 JEEP CHRYSLER OF ONTARIO 183.37 42731 03/15/2023 PRINTED 157 JELCO GLASS AND DOOR, INC 2,325.00 42732 03/15/2023 PRINTED 1269 JOHNSON, JEFFREY 100.00
42733 03/15/2023 PRINTED 41971 JOHNSON, KERI 76.04
42734 03/15/2023 PRINTED 51411 KABBARA ENGINEERING 3,560.00 42735 03/15/2023 PRINTED 529 KAISER FOUNDATION HEALTH PLAN 188,775.15 42736 03/15/2023 PRINTED 80561 KEENAN & ASSOCIATES 12,237.00 Prepared By: Maria Serna Page 3 of 8 4/3/2023Page 25 of 264
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 42737 03/15/2023 PRINTED 1287 KOFF & ASSOCIATES 206.25
42738 03/15/2023 PRINTED 15595 L D M ASSOCIATES INC 8,687.50 42739 03/15/2023 PRINTED 16001 LAYNE, RANDALL 55.00
42740 03/15/2023 PRINTED 1482 MAROTTE, JAYLENE 100.00
42741 03/15/2023 PRINTED 21341 MATT CHLOR INC 8,307.41
42742 03/15/2023 PRINTED 950 MAYER, SERGE 100.00
42743 03/15/2023 PRINTED 1315 MORALES, BRANDON 200.00
42744 03/15/2023 PRINTED 16233 MPOWER COMMUNICATIONS 236.92 42745 03/15/2023 PRINTED 30971 OCCUPATIONAL HEALTH CENTERS 268.50 42746 03/15/2023 PRINTED 4509 PARKHOUSE TIRE INC 2,253.47 42747 03/15/2023 PRINTED 1159 PARKMOBILE LLC 26.95
42748 03/15/2023 PRINTED 33021 PELLITTERI, CHRISTOPHER 332.50 42749 03/15/2023 PRINTED 909 PSYCHOLOGICAL CONSULTING ASSOCIATES INC 495.00 42750 03/15/2023 PRINTED 349 RAIN MASTER IRRIGATION SYSTEMS 299.85 42751 03/15/2023 PRINTED 1591 COUNTY OF RIVERSIDE 1,200.00 42752 03/15/2023 PRINTED 1262 RUMBLE FISH PEST CONTROL INC 600.00 42753 03/15/2023 PRINTED 64 SAENZ, DANNY 270.00
42754 03/15/2023 PRINTED 3662 SAFETY-KLEEN SYSTEMS, INC 225.99 42755 03/15/2023 PRINTED 210 SALDANA DIAZ, NURYS E.315.00 42756 03/15/2023 PRINTED 20171 SAN BERNARDINO COUNTY SHERIFF 215.00 42757 03/15/2023 PRINTED 131121 SHRED-IT USA JV LLC 194.40 42758 03/15/2023 PRINTED 407 SINGLETON, DENICE 296.40
42759 03/15/2023 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 669.00 42760 03/15/2023 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 213.48 42761 03/15/2023 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 134.98 42762 03/15/2023 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 144.98 42763 03/15/2023 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 1,034.13 42764 03/15/2023 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 105.37 42765 03/15/2023 PRINTED 16607 STAPLES BUSINESS ADVANTAGE 3,002.85 42766 03/15/2023 PRINTED 1439 STATON, BRIAN 100.00
42767 03/15/2023 PRINTED 69231 STEP SAVER CA LLC 920.02 42768 03/15/2023 PRINTED 1431 STEWART, JACOB 200.00
42769 03/15/2023 PRINTED 678 SUN BADGE COMPANY INC 709.60 42770 03/15/2023 PRINTED 1156 T.R.L. SYSTEMS, INC 157,525.03 42771 03/15/2023 PRINTED 11000 TEAGUE, LON 1,684.37
42772 03/15/2023 PRINTED 4463 THE COUNSELING TEAM 1,800.00 42773 03/15/2023 PRINTED 11583 THOMPSON PLUMBING SUPPLY 1,073.30 42774 03/15/2023 PRINTED 99981 THOMSON REUTERS - WEST PAYMENT CENTER 1,427.41 42775 03/15/2023 PRINTED 1347 TINKERSPACE, INC 173.08
42776 03/15/2023 PRINTED 16541 ANDREW TODD 135.98
42777 03/15/2023 PRINTED 125411 TYLER TECHNOLOGIES INC 16,103.00 42778 03/15/2023 PRINTED 483 ULINE, INC 526.29
42779 03/15/2023 PRINTED 3557 UNDERGROUND SERVICE ALERT 457.90 42780 03/15/2023 PRINTED 17022 UPLAND MUSIC SCHOOL 294.00 42781 03/15/2023 PRINTED 133941 VERIZON 1,490.06
42782 03/15/2023 PRINTED 14735 VERIZON WIRELESS 6,191.11 42783 03/15/2023 PRINTED 14735 VERIZON WIRELESS 842.79
42784 03/15/2023 PRINTED 14735 VERIZON WIRELESS 540.50
42785 03/15/2023 PRINTED 14735 VERIZON WIRELESS 880.26
42786 03/15/2023 PRINTED 14735 VERIZON WIRELESS 356.65
42787 03/15/2023 PRINTED 14735 VERIZON WIRELESS 282.22
42788 03/15/2023 PRINTED 14735 VERIZON WIRELESS 320.08
42789 03/15/2023 PRINTED 14735 VERIZON WIRELESS 160.90
42790 03/15/2023 PRINTED 14735 VERIZON WIRELESS 40.01
42791 03/15/2023 PRINTED 14735 VERIZON WIRELESS 40.01
42792 03/15/2023 PRINTED 14735 VERIZON WIRELESS 46.52
42793 03/15/2023 PRINTED 14735 VERIZON WIRELESS 121.32
42794 03/15/2023 PRINTED 14735 VERIZON WIRELESS 120.03
42795 03/15/2023 PRINTED 14735 VERIZON WIRELESS 3,474.15 42796 03/15/2023 PRINTED 392 WAXIE SANITARY SUPPLY 934.16 42797 03/15/2023 PRINTED 271 WEST COAST TELCOM PRODUCTS 8,334.73 42798 03/15/2023 PRINTED 1725 WEST COAST ARBORISTS INC 75,948.50 42799 03/15/2023 PRINTED 766 WEST END CONSOLIDATED WATER CO 8,716.64 42800 03/15/2023 PRINTED 1345 YOUR PROPERTY SOLUTIONS 2,530.00 42801 03/15/2023 PRINTED 5193 ZAILO, ROBERT 183.30
42802 03/15/2023 PRINTED 999999 ARLENE PRADO 105.00
42803 03/15/2023 PRINTED 999999 LEONARD ENGINEERING 214.00 42804 03/15/2023 PRINTED 999999 US DEVELOPERS, INC DBA HOME RENEW 360 536.00 42805 03/15/2023 PRINTED 999999 AMS PAVING INC 986.50
Prepared By: Maria Serna Page 4 of 8 4/3/2023Page 26 of 264
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 42806 03/15/2023 PRINTED 999999 AMS PAVING INC 975.60
42807 03/15/2023 PRINTED 999999 DE ANZA 4 LLC 279.38
42808 03/15/2023 PRINTED 999999 DE ANZA 4 LLC 103.51
42809 03/15/2023 PRINTED 999999 DE ANZA 4 LLC 69.06
42810 03/15/2023 PRINTED 999999 DE ANZA 4 LLC 3.47
42811 03/15/2023 PRINTED 999999 FRANK REYES CONSTRUCTION 965.84 42812 03/15/2023 PRINTED 999999 FRANK REYES CONSTRUCTION 926.80 42813 03/15/2023 PRINTED 999999 MELBAY VANDERPOOL TRUST 98.74 42814 03/15/2023 PRINTED 999999 NPG ASPHALT 1,000.00
42815 03/15/2023 PRINTED 999999 NPG ASPHALT 1,000.00
42816 03/15/2023 PRINTED 999999 NPG ASPHALT 982.92
42817 03/15/2023 PRINTED 999999 OPENDOOR LABS INC 238.29 42818 03/15/2023 PRINTED 999999 OPENDOOR LABS INC 118.69 42819 03/15/2023 PRINTED 999999 OPENDOOR LABS INC 71.40 42820 03/15/2023 PRINTED 999999 WATT COMMUNITIES 3,312.03 42821 03/15/2023 PRINTED 999999 WATT COMMUNITIES 3,947.70 42822 03/15/2023 PRINTED 999999 WP WEST BUILDRES CALIFORNIA LP 640.00 42823 03/15/2023 PRINTED 999999 WP WEST BUILDRES CALIFORNIA LP 640.00 42824 03/22/2023 PRINTED 14 ACTION AWARDS 1,781.50
42825 03/22/2023 PRINTED 207 ADLERHORST INTERNATIONAL LLC 70.04 42826 03/22/2023 PRINTED 291 ADVANCE STORE CO, INC 1,489.52 42827 03/22/2023 PRINTED 125701 AMERICAN TECHNOLOGIES INC 92,432.46 42828 03/22/2023 PRINTED 1358 ANIMAL CARE EQUIPMENT & SERVICES LLC 1,118.90 42829 03/22/2023 PRINTED 699 APPLIED CONCEPTS 9,183.45
42830 03/22/2023 PRINTED 862 BADGER METER INC 24,247.04 42831 03/22/2023 PRINTED 1769 BIO-TOX LABORATORIES 2,009.00 42832 03/22/2023 PRINTED 917 BPS TACTICAL INC 103.44
42833 03/22/2023 PRINTED 1503 BROWN AND CALDWELL 14,059.57 42834 03/22/2023 PRINTED 101581 BRUCE ALLYN PLUMBING INC 15,719.76 42835 03/22/2023 PRINTED 325 CALIFORNIA ASSOCIATION OF CODE ENFORCEMENT 54.00 42836 03/22/2023 PRINTED 325 CALIFORNIA ASSOCIATION OF CODE ENFORCEMENT 50.00 42837 03/22/2023 PRINTED 325 CALIFORNIA ASSOCIATION OF CODE ENFORCEMENT 36.00 42838 03/22/2023 PRINTED 195 CALIFORNIA NEWSPAPERS PARTNERSHIP 2,945.88 42839 03/22/2023 PRINTED 600 CALIFORNIA STREET LIGHTING 5,304.00 42840 03/22/2023 PRINTED 118781 CARD INTEGRATORS CORPORATION 100.97 42841 03/22/2023 PRINTED 448 CINTAS CORPORATION 3,642.24 42842 03/22/2023 PRINTED 655 SCA OF CA LLC 106.25
42843 03/22/2023 PRINTED 163 CLINICAL LABORATORY OF SAN BERNARDINO, INC 9,507.50 42844 03/22/2023 PRINTED 984 CO-LINE WELDING, INC 2,327.00 42845 03/22/2023 PRINTED 14445 COPWARE INC 1,725.00
42846 03/22/2023 PRINTED 29001 DELANEY, CHRISTOPHER 30.00 42847 03/22/2023 PRINTED 16636 DELL MARKETING LP 4,584.34 42848 03/22/2023 PRINTED 1153 DENCO LIEN SALES, INC 177.00 42849 03/22/2023 PRINTED 124 DEPARTMENT OF JUSTICE 1,085.00 42850 03/22/2023 PRINTED 126011 DEPT OF INDUSTRIAL RELATIONS 225.00 42851 03/22/2023 PRINTED 97141 EUROFINS EATON ANALYTICAL INC 3,460.00 42852 03/22/2023 PRINTED 10485 EXPERIAN 77.24
42853 03/22/2023 PRINTED 96251 FORD OF UPLAND 43.94
42854 03/22/2023 PRINTED 96251 FORD OF UPLAND 80,532.00 42855 03/22/2023 PRINTED 78 FRONTIER 46.61
42856 03/22/2023 PRINTED 58311 G H A TECHNOLOGIES 2,097.92 42857 03/22/2023 PRINTED 11463 GENERAL PUMP CO 1,150.00 42858 03/22/2023 PRINTED 129521 GRAFIX SYSTEMS 90.38
42859 03/22/2023 PRINTED 290 GRAINGER 123.96
42860 03/22/2023 PRINTED 329 HOLLIDAY ROCK CO INC 3,131.37 42861 03/22/2023 PRINTED 629 HONEYCOTT, INC 165.00
42862 03/22/2023 PRINTED 4495 HOSE-MAN INC 8.98
42863 03/22/2023 PRINTED 1333 HR GREEN PACIFIC 20,226.25 42864 03/22/2023 PRINTED 153 INLAND EMPIRE UTILITIES AGENCY 37,822.40 42865 03/22/2023 PRINTED 106951 INTEGRATED TECHNOLOGY 1,171.27 42866 03/22/2023 PRINTED 83731 J & G ADVERTISING SPECIALTIES 2,543.50 42867 03/22/2023 PRINTED 48371 JEEP CHRYSLER OF ONTARIO 497.10 42868 03/22/2023 PRINTED 1356 JES RESTAURANT EQUIPMENT 7,481.54 42869 03/22/2023 PRINTED 477 JOHNSON, KERI 29.48
42870 03/22/2023 PRINTED 26101 KONICA MINOLTA 4,369.27
42871 03/22/2023 PRINTED 445 MATHISEN OIL CO INC 839.37 42872 03/22/2023 PRINTED 824 MK CONSULTING 1,979.82
42873 03/22/2023 PRINTED 879 MOTOROLA SOLUTIONS, INC 6,756.49 42874 03/22/2023 PRINTED 7816 MR T'S TOWING INC 600.00
Prepared By: Maria Serna Page 5 of 8 4/3/2023Page 27 of 264
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 42875 03/22/2023 PRINTED 1339 NEAL, KEVIN 60.00
42876 03/22/2023 PRINTED 30971 OCCUPATIONAL HEALTH CENTERS 271.50 42877 03/22/2023 PRINTED 64331 PACIFIC TELEMANAGEMENT SERVICE 63.00 42878 03/22/2023 PRINTED 4509 PARKHOUSE TIRE INC 2,650.56 42879 03/22/2023 PRINTED 67381 ROUTE 66 CAR WASH INC 581.00 42880 03/22/2023 PRINTED 1262 RUMBLE FISH PEST CONTROL INC 300.00 42881 03/22/2023 PRINTED 90591 S & J SUPPLY CO INC 26,880.01 42882 03/22/2023 PRINTED 601 SAN ANTONIO WATER CO 223,348.52 42883 03/22/2023 PRINTED 11671 SAN BERNARDINO COUNTY 8.23 42884 03/22/2023 PRINTED 20171 SAN BERNARDINO COUNTY SHERIFF 1,005.00 42885 03/22/2023 PRINTED 27281 SANITAS TECHNOLOGIES 395.00 42886 03/22/2023 PRINTED 637 SMART & FINAL IRIS CO 12.75 42887 03/22/2023 PRINTED 18062 SOFFA ELECTRIC INC 700.00 42888 03/22/2023 PRINTED 3835 SOUTH COAST A Q M D 2,482.44 42889 03/22/2023 PRINTED 21671 CHARTER COMMUNICATIONS HOLDINGS, LLC 714.51 42890 03/22/2023 PRINTED 16607 STAPLES BUSINESS ADVANTAGE 906.44 42891 03/22/2023 PRINTED 952 T TACTICAL SOLUTIONS, INC 4,525.50 42892 03/22/2023 PRINTED 1154 T-MOBILE USA 75.00
42893 03/22/2023 PRINTED 11000 TEAGUE, LON 172.57
42894 03/22/2023 PRINTED 99981 THOMSON REUTERS - WEST PAYMENT CENTER 1,427.41 42895 03/22/2023 PRINTED 62321 U.S. TELEPACIFIC CORP 2,532.59 42896 03/22/2023 PRINTED 98 TRITECH SOFTWARE SYSTEMS 120,692.78 42897 03/22/2023 PRINTED 11484 U S BANK 1,750.00
42898 03/22/2023 PRINTED 1595 VALLEY MAINTENANCE CORP 16,030.00 42899 03/22/2023 PRINTED 760 WATER FACILITIES AUTHORITY 1,489.60 42900 03/22/2023 PRINTED 1725 WEST COAST ARBORISTS INC 6,679.40 42901 03/22/2023 PRINTED 1282 WESTERN ALLIANCE BUSINESS TRUST 85,812.16 42902 03/22/2023 PRINTED 1261 WEX HEALTH INC 272.25
42903 03/22/2023 PRINTED 14050 WILLDAN FINANCIAL SERVICES 14,050.00 42904 03/22/2023 PRINTED 693 WYMAN, AARON 570.64
42905 03/22/2023 PRINTED 5193 ZAILO, ROBERT 183.30
42906 03/29/2023 PRINTED 99181 ACCOUNTEMPS 17,183.20
42907 03/29/2023 PRINTED 292 ACEVEDO, VICTOR 167.00
42908 03/29/2023 PRINTED 14 ACTION AWARDS 29.98
42909 03/29/2023 PRINTED 291 ADVANCE STORE CO, INC 499.44 42910 03/29/2023 PRINTED 15750 AFLAC PREMIUM HOLDING 824.06 42911 03/29/2023 PRINTED 88211 AIR-EX 10,682.00
42912 03/29/2023 PRINTED 3 AIRGAS USA LLC 100.40
42913 03/29/2023 PRINTED 12564 ALL CITY MANAGEMENT SERVICES INC 15,487.20 42914 03/29/2023 PRINTED 34571 ALL STATE POLICE EQUIPMENT 143.19 42915 03/29/2023 PRINTED 1313 UNIVERSAL PROTECTION SERVICE, LP 34,324.69 42916 03/29/2023 PRINTED 6109 AMERICAN HERITAGE LIFE INS CO 186.18 42917 03/29/2023 PRINTED 131971 ANNEALTA GROUP 8,970.00 42918 03/29/2023 PRINTED 289 ARROW TRAILER SUPPLIES INC 70.51 42919 03/29/2023 PRINTED 1242 ARROWHEAD SCIENTIFIC, INC 10,093.83 42920 03/29/2023 PRINTED 862 BADGER METER INC 1,200.00
42921 03/29/2023 PRINTED 1428 BAIRD + DRISKELL + ABRAMS COMMUNITY PLANNING 14,735.00 42922 03/29/2023 PRINTED 1130 BLANCO, MARCELO 217.66
42923 03/29/2023 PRINTED 1193 BRIDGEPAY NETWORK SOLUTIONS 24.30 42924 03/29/2023 PRINTED 5944 BURRTEC WASTE INDUSTRIES 24,569.75 42925 03/29/2023 PRINTED 195 CALIFORNIA NEWSPAPERS PARTNERSHIP 270.50 42926 03/29/2023 PRINTED 1191 CATHOLIC CHARITIES SAN BERNARDINO & RIVERSIDE 7,121.00 42927 03/29/2023 PRINTED 118781 CARD INTEGRATORS CORPORATION 25.63 42928 03/29/2023 PRINTED 45421 COSTAR REALTY INFORMATION GROUP INC 604.00 42929 03/29/2023 PRINTED 1614 CALIFORNIA SOCIETY OF MUNICIPAL FINANCE OFFICERS 150.00 42930 03/29/2023 PRINTED 4696 CUCAMONGA VALLEY WATER DISTRIC 69.96 42931 03/29/2023 PRINTED 65 DM CONTRACTING, INC 54,088.17 42932 03/29/2023 PRINTED 19101 DURAN, MAURICE 249.77
42933 03/29/2023 PRINTED 10485 EXPERIAN 78.20
42934 03/29/2023 PRINTED 99418 FRANCHISE TAX BOARD 75.00 42935 03/29/2023 PRINTED 78 FRONTIER 114.14
42936 03/29/2023 PRINTED 78 FRONTIER 1,720.91
42937 03/29/2023 PRINTED 129521 GRAFIX SYSTEMS 66.25
42938 03/29/2023 PRINTED 306 HACH CO 1,097.70
42939 03/29/2023 PRINTED 329 HOLLIDAY ROCK CO INC 1,803.27 42940 03/29/2023 PRINTED 899 INTERNATIONAL CODE COUNCIL, INC 1,456.78 42941 03/29/2023 PRINTED 1133 DISTRIBUTOR OPERATIONS INC 26.08 42942 03/29/2023 PRINTED 1133 DISTRIBUTOR OPERATIONS INC 49.78 42943 03/29/2023 PRINTED 1514 INTERSTATE STRIPING INC 133,495.81 Prepared By: Maria Serna Page 6 of 8 4/3/2023Page 28 of 264
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 42944 03/29/2023 PRINTED 48371 JEEP CHRYSLER OF ONTARIO 192.50 42945 03/29/2023 PRINTED 477 JOHNSON, KERI 1,836.74
42946 03/29/2023 PRINTED 79821 K S M ELECTRIC 49,271.90 42947 03/29/2023 PRINTED 529 KAISER FOUNDATION HEALTH PLAN 187,537.21 42948 03/29/2023 PRINTED 373 LA POLICE GEAR INC 341.29
42949 03/29/2023 PRINTED 1609 LANDSCAPE WEST MANAGEMENT SERVICES, INC 1,307.00 42950 03/29/2023 PRINTED 267 LARA, JASON 200.00
42951 03/29/2023 PRINTED 53781 LEAD TECH ENVIRONMENTAL 1,348.00 42952 03/29/2023 PRINTED 16091 LEAGUE OF CALIF CITIES/INLAND EMPIRE DIVISION 580.00 42953 03/29/2023 PRINTED 445 MATHISEN OIL CO INC 824.34 42954 03/29/2023 PRINTED 1123 HYATT LEGAL PLANS, INC 1,512.00 42955 03/29/2023 PRINTED 1409 MILLER, PATRICIA 34.19
42956 03/29/2023 PRINTED 536 NEW RESOURCES GROUP 2,218.37 42957 03/29/2023 PRINTED 117121 NUCKLES OIL COMPANY INC 34,465.19 42958 03/29/2023 PRINTED 6625 P F SERVICES INC 450.00
42959 03/29/2023 PRINTED 1159 PARKMOBILE LLC 780.10
42960 03/29/2023 PRINTED 16823 PRE PAID LEGAL SVC, INC 86.70 42961 03/29/2023 PRINTED 992 PRISTINE UNIFORMS, LLC 161.63 42962 03/29/2023 PRINTED 657 QUAD COUNTY PAINTING INC 795.00 42963 03/29/2023 PRINTED 1731 R E S ENVIRONMENTAL INC 1,280.00 42964 03/29/2023 PRINTED 10638 RICHARDS, WATSON & GERSHON 1,470.00 42965 03/29/2023 PRINTED 612 RIDE ON POWERSPORTS, INC 8,046.37 42966 03/29/2023 PRINTED 1262 RUMBLE FISH PEST CONTROL INC 600.00 42967 03/29/2023 PRINTED 90591 S & J SUPPLY CO INC 35,977.06 42968 03/29/2023 PRINTED 507 SILVER & WRIGHT LLP 58,984.41 42969 03/29/2023 PRINTED 16607 STAPLES BUSINESS ADVANTAGE 438.02 42970 03/29/2023 PRINTED 10218 STATE OF CALIFORNIA DMV 270.00 42971 03/29/2023 PRINTED 1014 SUNSET ELECTRICAL CONTRACTORS 1,567.67 42972 03/29/2023 PRINTED 90177 SWRCB - DWSRF ACCOUNTING OFFICE 12,665.91 42973 03/29/2023 PRINTED 889 PRUDENTIAL INSURANCE COMPANY OF AMERICA 27.08 42974 03/29/2023 PRINTED 11583 THOMPSON PLUMBING SUPPLY 48.14 42975 03/29/2023 PRINTED 18181 TIERRA WEST ADVISORS LLC 2,535.00 42976 03/29/2023 PRINTED 311 U S ARMOR CORPORATION 4,808.80 42977 03/29/2023 PRINTED 38131 U C ADVANTAGE INC 455.50 42978 03/29/2023 PRINTED 1310 UNITED PET CARE LLC 1,261.00 42979 03/29/2023 PRINTED 596 UPLAND ARENA SPORTS LLC 613.03 42980 03/29/2023 PRINTED 392 WAXIE SANITARY SUPPLY 1,007.66 42981 03/29/2023 PRINTED 1725 WEST COAST ARBORISTS INC 37,464.75 42982 03/29/2023 PRINTED 1005 WESTERN ALLIED CORP 24,350.00 42983 03/29/2023 PRINTED 999999 ADASTELIA SANDOVAL 480.00 PRINTED CHECKS (449 COUNT)6,062,103.37
30223001 03/02/2023 MANUAL 32091 SOUTHERN CALIF EDISON CO 76,400.05 30223002 03/02/2023 MANUAL 65181 CALPERS 167,792.01
30723001 03/07/2023 MANUAL 43651 U S BANK NATIONAL ASSN 50,559.63 30723002 03/07/2023 MANUAL 543 SOUTHERN CALIF GAS COMPANY 22,608.21 30723003 03/07/2023 MANUAL 10720 CITIZENS BUSINESS BANK 5,000.00 30723004 03/07/2023 MANUAL 1337 STANDARD INSURANCE COMPANY 2,951.62 30723005 03/07/2023 MANUAL 153 INLAND EMPIRE UTILITIES AGENCY 574,711.03 30823001 03/08/2023 MANUAL 11484 U S BANK 800,000.00
31023001 03/10/2023 MANUAL 1499 EMPOWER TRUST COMPANY, LLC 59,515.13 31523001 03/15/2023 MANUAL 1589 LIVELY INC 1,714.45
31523002 03/15/2023 MANUAL 441 MIDAMERICA ADMIN & RETIREMENT SOLUTIONS, LLC 2,050.59 31523003 03/15/2023 MANUAL 618 ICMA-RC 1,718.75
31523004 03/15/2023 MANUAL 1597 TRUSTMARK VOLUNTARY BENEFIT ADMINISTRATOR 2,363.22 31523005 03/15/2023 MANUAL 622 UPLAND CITY EMPLOYEE ASSOCIATION 960.00 31523006 03/15/2023 MANUAL 736 UPLAND POLICE MANAGEMENT ASSN 988.50 31523007 03/15/2023 MANUAL 737 UPLAND POLICE OFFICERS ASSN 4,977.50 31523008 03/15/2023 MANUAL 125761 CITY EMPLOYEE ASSOCIATES 287.50 31523009 03/15/2023 MANUAL 1594 COBRA PROFESSIONALS, INC 1,880.77 31523010 03/15/2023 MANUAL 624 DEPT OF THE TREASURY 100.00 31523011 03/15/2023 MANUAL 621 KAREN LONG 187.50
31623001 03/16/2023 MANUAL 32091 SOUTHERN CALIF EDISON CO 10,759.71 32323001 03/23/2023 MANUAL 83401 CARL WARREN & CO 44,594.61 32323002 03/23/2023 MANUAL 441 MIDAMERICA ADMIN & RETIREMENT SOLUTIONS, LLC 29,966.79 32323003 03/23/2023 MANUAL 621 KAREN LONG 187.50
32323004 03/23/2023 MANUAL 441 MIDAMERICA ADMIN & RETIREMENT SOLUTIONS, LLC 2,133.34 32323005 03/23/2023 MANUAL 618 ICMA-RC 1,768.75
32323006 03/23/2023 MANUAL 622 UPLAND CITY EMPLOYEE ASSOCIATION 960.00 Prepared By: Maria Serna Page 7 of 8 4/3/2023Page 29 of 264
CHECK #CHECK DATE CHECK TYPE VENDOR #VENDOR NAME CHECK AMOUNT 32323007 03/23/2023 MANUAL 125761 CITY EMPLOYEE ASSOCIATES 287.50 32323008 03/23/2023 MANUAL 736 UPLAND POLICE MANAGEMENT ASSN 988.50 32323009 03/23/2023 MANUAL 737 UPLAND POLICE OFFICERS ASSN 5,065.00 32323010 03/23/2023 MANUAL 1594 COBRA PROFESSIONALS, INC 1,880.77 32423001 03/24/2023 MANUAL 1589 LIVELY INC 1,714.45
32423002 03/24/2023 MANUAL 624 DEPT OF THE TREASURY 100.00 32423003 03/24/2023 MANUAL 1499 EMPOWER TRUST COMPANY, LLC 60,137.98 32723001 03/27/2023 MANUAL 114711 METROPOLITAN LIFE INSURANCE CO 2,112.83 32723002 03/27/2023 MANUAL 754 PUBLIC AGENCY COALITION ENTERPRISE 109,572.85 32723003 03/27/2023 MANUAL 960 MUNICIPAL DENTAL POOL 24,521.54 32823001 03/28/2023 MANUAL 65181 CALPERS 170,957.37
32823002 03/28/2023 MANUAL 760 WATER FACILITIES AUTHORITY 208,351.72 32823003 03/28/2023 MANUAL 91491 LIBRARY SYSTEMS & SERVICES LLC 115,962.00 33023001 03/30/2023 MANUAL 10720 CITIZENS BUSINESS BANK 75,400.00 33023002 03/30/2023 MANUAL 10720 CITIZENS BUSINESS BANK 38,800.00 33123001 03/31/2023 MANUAL 11484 U S BANK 143,087.80
33123002 03/31/2023 MANUAL 11484 U S BANK 48,959.97
MANUAL CHECKS (44 COUNT)2,875,037.44$
PRINTED CHECKS (449 COUNT)6,062,103.37$
MANUAL CHECKS (44 COUNT)2,875,037.44$
PRINTED & MANUAL CHECK TOTALS 8,937,140.81$
Prepared By: Maria Serna Page 8 of 8 4/3/2023Page 30 of 264
DATE: April 24, 2023
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY, CITY MANAGER
PREPARED BY: STEPHEN PARKER, CPA, ASSISTANT CITY MANAGER
LONDA BOCK-HELMS, CPA, FINANCE OFFICER
SUBJECT: TREASURER’S REPORT MARCH 2023
RECOMMENDED ACTION:
It is recommended that the City Council receive and file the March 2023 Treasurer’s Report.
GOAL STATEMENT
The proposed action supports the City’s goal to manage the City’s resources in a fiscally responsible manner.
BACKGROUND
Per California Government Code Section 53646(b), the City’s treasurer or chief fiscal officer may render a treasurer’s report to the City Council on a quarterly basis. The City has elected to provide this report to City Council monthly, but the City of Upland’s Investment Police (Approved May 23, 2022) requires the Investment Officer to provide a report quarterly to the Finance Committee at regularly scheduled meetings. This report shall include the type of investment, issuer, date of maturity, par, and dollar amount invested on all securities, current market value as of the date of the report, investments and monies held by the local agency, and shall additionally include a description of any of the local agency’s funds, investments, or programs, that are und er the management of contracted parties, including lending programs. The report shall include a statement of compliance with the investment policy and shall include a statement noting the City’s ability to meet its expenditure requirements for the next si x months.
ISSUES AND ANALYSIS
The submission of the monthly Treasurer’s Report is a compliance measure.
ENVIRONMENTAL DETERMINATION
The proposed action is not subject to the California Environmental Quality Act (CEQA). Section 15378 of the CEQA Guidelines defines a project subject to CEQA. The proposed action is not included within the definition of a “project” and thus is exempt.
FISCAL IMPACTS
There is no fiscal impact associated with this action.
ALTERNATIVES
Provide alternative direction to staff.
CEQA: Not a Project.
DATE: April 24, 2023
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY, CITY MANAGER
PREPARED BY: STEPHEN PARKER, CPA, ASSISTANT CITY MANAGER
DARREN CHAN, ACCOUNTING TECHNICIAN
SUBJECT: CONSIDER ADOPTING A RESOLUTION ESTABLISHING A POLICY REGARDING
REVENUE GENERATED FROM LEASES ON CITY PARK PROPERTY
RECOMMENDED ACTION:
It is recommended that the City Council adopt a resolution that assigns revenue generated from leases on City park property for use only for the park containing the lease or any park located in the same City Council district.
GOAL STATEMENT
The proposed action supports the City’s goal of providing resources to allow our City parks to be environmentally and fiscally sustainable and able to meet the needs of residents of all ages and interests.
BACKGROUND
The City Council at its meeting of December 13, 2021, requested an item be placed on the Council Agenda to consider formulating a policy to designate the revenue generated from lease agreements on city park property to be used entirely for the specific park containing the lease.
At its meeting of January 24, 2022, the City Council resolved to move forward with the development of a policy to restrict the allocation of lease-generated revenue. Additionally, after further discussion, and in the interest of increased flexibility, the City Council resolved to broaden the scope of use for the lease -generated revenue to include city parks in the same City Council district as the park containing the lease.
Currently, all revenue received from the lease agreements on city park properties are distributed into a lease revenue account in the General Fund, which is used to fund the provision of public services. The revenue is assigned, allocated or appropriated during the budget process.
ISSUES AND ANALYSIS
The City Council’s intent is to develop a policy restricting the use of revenue generated from leases on city park property. There are currently a total of thirteen (13) parks in the City, of which three (3) parks contain all existing lease agreements. These leases include wireless communication facilities, the YMCA (which provides in-kind services in lieu of rent) and use by the San Antonio Regional Hospital (SARH) for additional parking. The three parks that have existing lease agreements are San Antonio Park, Magnolia Park, and Memorial Park. The other ten (10) parks in the City do not have any lease agreements. There are a total of nine (9) lease s on City Park properties. The amount of revenue generated in Fiscal Year 2021-2022 is $281,824.
Restricting the use of revenue generated by these leases back to the parks in which the leases are contained will provide additional funds and an opportunity to enhance and maintain city parks for park patrons and the citizens of the City.
Additionally, doing so provides an equitable means to provide a benefit to the city parks containing these leases for any beneficial loss associated with containing the lease. Finally, in order to create greater flexibility with regard to the allocation of this revenue, City Council desired to broaden the scope of use for the funds to include parks that are located in the same City Council district as the park containing the lease. The attached resolution memorializes this City Council-initiated policy.
Specific uses of the allocated lease generated revenue should be brought before the City Council for approval through the budget or staff report process.
ENVIRONMENTAL DETERMINATION
Not a Project. A policy for recording and distributing funds is not a project.
FISCAL IMPACTS
This resolution would apportion revenue currently received into the General Fund and restrict its use for a specific purpose. The effect of the resolution would be a reduction of unallocated General Funds and an increase in General Fund spending in local parks.
ALTERNATIVES
Provide alternative direction to staff.
CEQA: Not a Project
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
UPLAND, CALIFORNIA TO ASSIGN REVENUE GENERATED
FROM LEASES ON CITY PARK PROPERTY FOR USE ONLY
FOR THE PARK CONTAINING THE LEASE OR ANY PARK
LOCATED IN THE SAME CITY COUNCIL DISTRICT
WHEREAS, there are currently nine (9) lease agreements on City Park properties generating hundreds of thousands of dollars a year; and WHEREAS, revenue generated by the leases on City park property is currently deposited to the General Fund; and
WHEREAS, the City Council desires to enhance the environmental and fiscal sustainability of all parks located in the City of Upland for the benefit of park patrons and the residents of the City; and
WHEREAS, at its January 24, 2022 meeting, the City Council instructed staff to establish a policy designed to assign revenue generated by leases on City park property specifically for the benefit of the parks in which the leases are located and other parks in the same district; and
WHEREAS, the City Council desires to assign all future revenues generated by leases on city park property for use in that park or another park located in the same district.
NOW THEREFORE, the City Council of the City of Upland hereby finds, determines and resolves as follows:
Section 1. The above recitals are true and correct.
Section 2. The City Council hereby resolves to create a policy by which revenue generated by leases on city park property will be assigned and restricted for the use of and benefit for the city park in which the lease is located and any other city park located in the same district as said same city park.
Section 3. This allocation of revenue generated by leases on city park property will apply to all future leases entered into that are located in city parks.
Section 4. Any use of revenue generated by leases on city park property shall be brought before and approved by the City Council through the budget or staff report process.
Section 5. Compliance with California Environmental Quality Act. The City Council finds that this Resolution is not subject to the California Environmental Quality Act (“CEQA”) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the State CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.
Resolution No.
Further, if the activity is deemed a project this City Council finds that this Resolution is exempt pursuant to Section 15061(b)(3) of the State CEQA Guidelines.
Section 6. Certification. The City Clerk shall certify the adoption of this Resolution and enter it into the book of original resolutions.
Section 7. Effective Date. This Resolution shall become effective at the commencement of the 2023-2024 Fiscal Year
PASSED, APPROVED and ADOPTED this 24th day of April, 2023.
Bill Velto, Mayor
I, Keri Johnson, City Clerk of the City of Upland, do hereby certify that the foregoing Resolution was adopted at a regular meeting of the City Council held on the 24th day of April, 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAINED:
ATTEST:
Keri Johnson, City Clerk
DATE: April 24, 2023
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY, CITY MANAGER
PREPARED BY: BRADEN YU, PUBLIC WORKS DIRECTOR
RICHARD SMIDERLE, OPERATIONS MANAGER
SUBJECT: AWARD OF BID FOR LANDECENA INTERIOR IMPROVEMENT PROJECT
RECOMMENDED ACTION:
It is recommended that the City Council approve the specifications for Project No. 23923 – Landecena Interior Improvement Project; award a contract to RS Construction & Development Inc. (RS Construction) in the amount of $124,108.00; approve a construction contingency in the amount of $12,892, for a total amount of $137,000; and authorize the City Manager to execute the agreement and any future extension within the City Manager’s authority.
GOAL STATEMENT:
The proposed action supports the City’s goal and objective to maintain and improve City building infrastructure. The Landecena building has become aged and in a state of disrepair due to its popularity for weekly functions and large events.
BACKGROUND:
On March 15, 2023, City staff conducted a mandatory job walk meeting for prospective bidding contractors for the Landecena Interior Improvement Project. The Project scope includes removal and disposal of the wall mirrors in the main banquet room; interior wall painting; remo val and replacement of all carpet with Luxury Vinyl Tile (LVT) flooring; and new carpet for one office, new ceiling tiles in the classroom, and removal and replacement of classroom countertops. Eleven (11) prospective bidders attended the job walk meeting.
ISSUES AND ANALYSIS:
On March 30, 2023, City staff conducted an official formal bid opening. The City received and opened four (4) bids for Project No. 23923, under bid No. 2023 -03. The bid results were as follows:
BIDDER BID AMOUNT*
RS Construction & Development Inc. $124,108.00
Corral Construction & Development Inc. $159,998.00
Alliance Facility Services $173,856.00
Cal State Construction Management Inc. $195,000.00
The City has reviewed the bid information and confirmed that RS Construction was the lowest responsible and responsive bidder. If awarded by the City Council, construction is anticipated to begin in May and substantially complete by end of July 2023.
ENVIRONMENTAL DETERMINATION:
This project is Categorically Exempt from the California Environmental Quality Act (CEQA).
FISCAL IMPACTS:
The City received Community Development Block Grant (CDBG) funds totaling $166,000 for the project.
The estimated project costs and funding are summarized below:
Funding
FY 2022-23 Account No. 209-7613-5258-23923 (CDBG Funds) $166,000.00 Less CDBG Contract Administration Cost ($17,697.00)
Total Project Cost: (Fund Availability) $148,303.00
Total Bid Amount
Phase 2 $124,108.00 Project Contingency _$12,892.00 Total Contract Work: $137,000.00
ALTERNATIVES
1. Reject all bids and authorize the City Clerk to re-advertise Project No. 23923.
Due to a successful bidding process, staff do not recommend the alternative.
2. Provide alternative direction to staff.
CEQA: Determined to be Exempt.
DATE: April 24, 2023
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY, CITY MANAGER
PREPARED BY: BRADEN YU, PUBLIC WORKS DIRECTOR
MARISSA PEREYDA, MANAGEMENT ANALYST II
SUBJECT: CALRECYCLE USED OIL PAYMENT PROGRAM (OPP) CYCLE 13 GRANT AWARD
RECOMMENDED ACTION:
It is recommended that the City Council accept the CalRecycle Used Oil Payment Program (OPP) Cycle 13 grant award of $12,267 and appropriate the funds.
GOAL STATEMENT
The proposed action supports the City’s goal of pursuing grant funding to supplement local funding sources and exercise prudent fiscal management of the City’s Solid Waste Fund .
BACKGROUND
On June 27, 2022, the City applied for the OPP 13 grant to support the City’s efforts to collect and properly recy cle used oil and oil filters. Used oil and oil filters are collected at the City’s Household Hazardous Waste (HHW) Collection Center located at the Public Works Yard at 1370 N. Benson Avenue. Additionally, used oil and oil filters are collected from the public at auto parts stores and auto repair facilities and reported as part of the City’s solid waste used oil collection program.
ISSUES AND ANALYSIS
The OPP program provides funding from the State for the continued proper management of used oil waste a nd environmental protection within San Bernardino County.
This program helps to fund San Bernardino County’s collection services contract, purchase used oil collection containers, and perform public outreach efforts and other activities associated with the proper collection and recycling of used oil and oil filters.
ENVIRONMENTAL DETERMINATION
This project is for grant funding, which is not considered a project under California Environmental Quality Act (CEQA).
FISCAL IMPACTS
The OPP 13 grant award funds will be tracked in Solid Waste Fund 641. With this action, the revenue and expenditures relating to this grant award will be added to the Fiscal Year 2023-24 operating budget.
ALTERNATIVES
Provide alternative direction to staff.
CEQA: Not a Project.
1 MINUTES OF THE REGULAR MEETING OF THE
PUBLIC WORKS COMMITTEE
April 11, 2023
5:00 p.m.
Carnegie Library Building
123 East D Street
_____________________________________________________________________
1. CALL TO ORDER AND ROLL CALL
The meeting was called to order at 5:01 p.m.
In attendance: Committee Chairperson Breitling, Committee Member Garcia, Citizen Advisory Members Hoss, Ickis, Rubio and Leach, Public Works Director Yu, Utility Manager Robles, Operations Manager Smiderle, Environmental Quality Administrator deMoet, Senior Engineer Gonzalez, Associate Engineer Swanner, Assistant Engineer Diaz, Management Analyst Madriz and Senior Planner Winter.
2. ORAL COMMUNICATIONS
None
3. AGENDA ITEMS
a. CAPITAL IMPROVEMENT PROJECT (CIP) UPDATE
Public Works Director Yu gave a presentation on Capital Improvement Projects that are currently under design, in construction, or substantially completed and highlighted flexible (asphalt) vs. Rigid (concrete) pavement; how potholes are formed; how potholes are repaired and 2023 pothole repair statistics. b. PRESENTATION OF PROPOSED SOLID WASTE RATES
Public Works Director Yu gave a presentation on a proposed Solid Waste Rate Adjustment for a Consumer Price Index (CPI) adjustment per Section 10.06 of the Agreement with Burrtec Waste Industries, Inc and proposed timeline.
4. ADJOURNMENT
The meeting was adjourned at 5:55 p.m. The next regularly scheduled Public Works Committee meeting is Tuesday, July 11, 2023.
**AGENDA**
Tuesday, April 11, 2023
5:00 p.m.
Carnegie Library Building
123 East D Street
Residents may observe the meeting remotely via livestream on the City website, Spectrum Cable TV Channel 3, or Frontier Cable TV Channel 26.
1.CALL TO ORDER AND ROLL CALL
2.ORAL COMMUNICATIONS
Citizens wishing to address the Committee on any matter that is listed or not listed on the agenda may do so at this time. Anyone wishing to address the Committee is requested to submit a speaker card to staff at or prior to speaking. The speakers are requested to keep their comments to no more than three (3) minutes.
Please note that under provisions of the Brown Act the Committee Members cannot respond to, nor take action on, items that are not listed on the agenda.
3.AGENDA ITEMS
a.CAPITAL IMPROVEMENT PROJECT (CIP) UPDATE
Recommended Action:
Receive and file the presentation on the state of various Capital Improvement Program (CIP) Projects for the month of April.
b.PRESENTATION OF PROPOSED SOLID WASTE RATES
Recommended Action:
Receive and file the presentation on the proposed solid waste rate adjustment and recommend that the City Council authorize staff to proceed with a Proposition 218 public notification and set a public hearing date of June 26, 2023, for consideration of a solid waste rate adjustment.
4.ADJOURNMENT
The next regularly scheduled Public Works Committee meeting is Tuesday, July 11, 2023.
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk's Office, 909-931-4120. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. [28 CFR 35.102-35.104 ADA Title II]
On April 6, 2023 a true and correct copy of this agenda was posted at 450 N. Euclid Avenue (Upland Public Library), 460 N. Euclid Avenue (Upland City Hall), 123 East D Street (Carnegie Library Building), and the City website at www.uplandca.gov
The full packet for the Public Works Committee
meeting can be viewed on our website at:
https://www.uplandca.gov/city-council-
agendasminutes
You may also view the video of the meeting at:
https://uplandca.gov/council-meeting-
broadcasts
(choose the tab for “other archived meetings”
to locate the meeting video)
DATE: April 24, 2023
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY, CITY MANAGER
PREPARED BY: BRADEN YU, PUBLIC WORKS DIRECTOR
BOB CRITCHFIELD, ENGINEERING MANAGER
SUBJECT: AWARD OF BID FOR ALPINE, VERNON, AND PALM REHABILITATION AND UTILITY IMPROVEMENTS (BID No. 2023-02)
RECOMMENDED ACTION:
It is recommended that the City Council approve the Plans and Specifications for the Alpine, Vernon, and Palm Avenue Roadway and Utility Improvement Project; overrule Gentry General Engineering’s bid protest; award the construction contract to Vido Samarzich, Inc. in the amount of $3,945,362; authorize a construction contingency in the amount of $394,638, for a total amount of $4,340,000.
GOAL STATEMENT
The proposed action supports the City’s goal of maintaining and improving the City’s public roadway, water, street lighting, and sewer facilities.
BACKGROUND
The City recently completed design and construction documents for pavement rehabilitation and underground utility improvements on Alpine Street, Vernon Drive, and Palm Avenue, generally located between 9 th Street to the south and Arrow Highway to the north. Specific improvements include installation of a new potable water main, water service laterals, and fire hydrant upgrades; replacement of old brick sewer manholes; LED street lighting improvements; reconstruction of asphalt concrete pavement; replacement of displaced curbs, gutters, sidewalks, curb ramps, and driveway approaches; and, replacement of traffic striping and markings.
ISSUES AND ANALYSIS
The Alpine, Vernon, and Palm Project Notice Inviting Bids (NIB) was advertised on February 10, 2023 and February 17, 2023 in accordance with the California Public Contract Code (Section 20164) and was also listed on the City’s website and distributed to various electronic plan rooms. On March 15, 2023 the City received and opened 5 bids for the Project, under Bid No. 2023-02, as follows:
BIDDER BID AMOUNT
Vido Samarzich, Inc. $3,945,362.00 (1)
Gentry General Engineering, Inc. $4,191,523.35
All American Asphalt $4,418,703.00
Hardy & Harper, Inc. $5,250,000.00
I.E. General Engineering, Inc. $8,955,814.10
Note: (1) = Corrected bid amount (due to clerical/math error)
The lowest responsible bidder was Vido Samarzich, Inc. of Rancho Cucamonga, California, with a bid of $3,945,362.00. The City has reviewed all 5 bid packages, and confirmed that Vido Samarzich, Inc. is the lowest responsible and responsive bidder.
On March 20, 2023, the City received a bid protest from the second low bidder, Gentry General Engineering, contending bid irregularities with regards to Vido Samarzich’s bid. In consultation with the City Attorney’s Office, staff has determined that the irregularities are minor, and Vido Samarzich did not have an unf air advantage over the other bidders. Consistent with the bid specifications, the City has the discretion to waive minor irregularities, and award the contract to Vido Samarzich, Inc.
ENVIRONMENTAL DETERMINATION
The project has been assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (“CEQA”), and the State CEQA Guidelines, and determined to be categorically exempt from further environmental review pursuant to Section 15301(c) (Existing Facilities), of the CEQA guidelines. The project involves repair and maintenance of existing public facilities and does not involve any expansion of use beyond that which is existing. The City filed the Notice of Exemption with the County of San Bernardino on August 1, 2022.
FISCAL IMPACTS
The estimated project costs, as well as the available funding, will be incorporated in to the City’s Fiscal Year 2023 - 24 Capital Improvement Program (CIP) Budget, to reflect the authorized expenditures as summarized below:
Estimated Project Costs
Basic Bid Amount $3,945,362.00
Construction Contingency (~10%) $394,638.00
Total Contract Work: $4,340,000.00
Previous Project Management, Bidding, Utility Relocations (FY 22-23) $155,225.00 Construction Administration and Inspection $60,000.00
City Furnished Materials (Water Meter Boxes) $20,000.00 Material Testing $20,000.00
Total Project Cost: $4,595,225.00
FY 2022/23 Funding
FY 22-23 CIP Acct. No. 204-7076 Alpine (Gas Tax) $668,000.00 FY 22-23 CIP Acct. No. 204-7077 Vernon (Gas Tax) $353,000.00 FY 23-24 CIP Acct. No. 204-7078 Palm (Gas Tax) $741,000.00 FY 23-24 CIP Acct. No. 640-9145 Alpine (Water) $522,000.00 FY 23-24 CIP Acct. No. 640-9146 Vernon (Water) $297,000.00 FY 23-24 CIP Acct. No. 640-9147 Palm (Water) $761,000.00 FY 23-24 CIP Acct. No. 645-7500-94006 (Sewer) $35,000.00
FY 2023/24 Funding
FY 23-24 CIP Acct. No. 204-7076 Alpine (Gas Tax) $226,000.00 FY 23-24 CIP Acct. No. 204-7077 Vernon (Gas Tax) $171,000.00 FY 23-24 CIP Acct. No. 204-7078 Palm (Gas Tax) $804,000.00 FY 23-24 CIP Acct. No. 640-9145 Alpine (Water) $60,000.00 FY 23-24 CIP Acct. No. 640-9146 Vernon (Water) $43,000.00 Total Project Funding: $4,681,000.00
ALTERNATIVES
1. Reject all bids and authorize the City Clerk to re-advertise the Project. Due to a successful bidding process, staff does not recommend this alternative.
2. Provide alternative direction to staff.
CEQA: Determined to be categorically exempt from further environmental review pursuant to Section 15301(c) (Existing Facilities), of the CEQA guidelines.
CITY OF UPLAND
PUBLIC WORKS DEPARTMENT, ENGINEERING DIVISION
PROJECT LOCATION MAP
Project: Alpine St., Vernon Dr. and Palm Ave. Pavement Rehabilitation and Utility Improvements Limits: Alpine Street, from Palm Avenue to West End.
Vernon Drive, from Palm Avenue to West End.
Palm Avenue, from 9th Street to Arrow Highway.
NOTE: SURVEY LIMITS SHALL
BE 100’ BEYOND ECR/BCR OF
CURBS.
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Arrow Highway
9th Street
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PROJECT LOCATION
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DATE: April 24, 2023
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY, CITY MANAGER
PREPARED BY: STEPHEN PARKER, CPA, ASSISTANT CITY MANAGER
LONDA BOCK-HELMS, CPA, FINANCE OFFICER
DOUG ANDERSON, CONSULTANT
SUBJECT: ISSUANCE OF SPECIAL TAX BONDS FOR COMMUNITY FACILITIES DISTRICT NO. 2022-1 (ENCLAVE AT UPLAND)
RECOMMENDED ACTION:
It is recommended that the City Council, for itself and acting as legislative body of Community Facilities District No. 2022-1 (Enclave at Upland) adopt a resolution to authorize the issuance of Bonds of Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland, County of San Bernardino, State of California designated 2023 Special Tax Bonds, appointing Fiscal Agent, approving Fiscal Agent Agreement and Purchase Contract and authorizing negotiation of terms of the sale of said Bonds, approving Preliminary Official Statement and authorizing preparation of Final Official Statement and approving Continuing Disclosure Certificate.
GOAL STATEMENT
The proposed action supports the City’s goal of providing sound fiscal stewardship and providing decent housing, a suitable living environment and expanded economic opportunities for citizens.
BACKGROUND
Community Facilities District No. 2022-1 (the “District”) was formed and established by the City on June 27, 2022 following a public hearing by the City Council, as legislative body of the District, and a landowner election which authorized the incurrence of bonded indebtedness in an aggregate principal amount of not to exceed $6,500,000 and approved the levy of special taxes.
ISSUES AND ANALYSIS
The proposed Special Tax Bonds (the “2023 Bonds") will be issued to finance certain development impact fees of the City of Upland relating to public facility improvements serving property within the District, fund a reserve fund and capitalized interest through the first two interest payment dates, and pay for bond issuance costs. The special taxes will be levied by the District and collected by t he San Bernardino County Treasurer-Tax Collector on taxable parcels within the District in the same manner and at the same time as ad valorem property taxes. The repayment of principal and interest on the 2023 Bonds will be secured solely by the special taxes levied within the District, and the 2023 Bonds will not be a debt of the City’s General Fund.
The 2023 Bonds will have a 30-year term with a total estimated principal amount of approximately $4.26 million, with annual debt service payments of appro ximately $271,900 per year. In furtherance of Section VIII of the City’s Land Secured Financing Policy, debt service on the 2023 Bonds will be structured so that the annual special taxes (less an amount of $20,000 for the District’s annual administrative expenses and based on the maximum special taxes authorized in the formation proceedings) are projected to provide at least 110 percent debt service coverage for the 2023 Bonds in all years. The final repayment schedule will be determined when the 2023 Bond s are priced and final interest rates are determined, which is expected to occur by the second week of May 2023. The estimated closing date and distribution of proceeds would occur by the last week of May 2023.
Summary of Documents
1. Preliminary Official Statement – this is the District’s offering document that will be presented to potential investors in the 2023 Bonds, and includes information about the City and the District, as well as a summary of the terms and payment obligations of the District for the 2023 Bonds and disclosure to investors about the risks of investing in the 2023 Bonds. The final interest rates and terms will be inserted after the 2023 Bonds are priced.
2. Fiscal Agent Agreement - this document defines the payment terms and conditions, and funds and accounts of the 2023 Bonds which will be administered by the Fiscal Agent, U.S. Bank N.A., on behalf of the District, including the debt service Reserve Account.
3. Bond Purchase Agreement - this document provides the terms and conditions by which the Underwriter, Hilltop Securities Inc., will purchase the 2023 Bonds. The final interest rates and terms will be inserted after the 2023 Bonds are priced.
4. Continuing Disclosure Certificate - the Disclosure Certificate defines the City's obligation to provide annual updates of information related to the District and the special tax revenues, for the benefit of the Bondholders and other interested parties, pursuant to federal regulations.
ENVIRONMENTAL DETERMINATION
Not a project; the issuance of bonds does not constitute a project.
FISCAL IMPACTS
There is no fiscal impact associated with this action. All costs incurred as a result of the bond issuance will be paid from the bond proceeds.
ALTERNATIVES
Provide alternative direction to staff.
CEQA: Not a Project
46708.00809\40997408.4
RESOLUTION NO. ____
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
UPLAND, CALIFORNIA, AUTHORIZING THE ISSUANCE OF
BONDS OF COMMUNITY FACILITIES DISTRICT NO. 2022-1
(ENCLAVE AT UPLAND) OF THE CITY OF UPLAND, COUNTY
OF SAN BERNARDINO, STATE OF CALIFORNIA
DESIGNATED 2023 SPECIAL TAX BONDS, APPOINTING
FISCAL AGENT, APPROVING FISCAL AGENT AGREEMENT
AND PURCHASE CONTRACT AND AUTHORIZING
NEGOTIATION OF TERMS OF THE SALE OF SAID BONDS,
APPROVING PRELIMINARY OFFICIAL STATEMENT AND
AUTHORIZING PREPARATION OF FINAL OFFICIAL
STATEMENT AND APPROVING CONTINUING DISCLOSURE
CERTIFICATE
WHEREAS, Community Facilities District 2022-1 (Enclave at Upland) of the City of Upland, County of San Bernardino, State of California (the “District”) was established on June 27, 2022 by adoption by the City Council (the “City Council”) of the City of Upland (the “City”) of Resolution No. 6672; and WHEREAS, on June 27, 2022, the City Council also adopted Resolution No. 6673 determining the necessity for the District to incur bonded indebtedness in an aggregate principal amount not to exceed $6,500,000; and WHEREAS, on June 27, 2022, consolidated special elections were held within the District and there was submitted to the qualified voters of the District, among other propositions, the proposition of whether a bonded indebtedness in an aggregate principal amount not to exceed $6,500,000 should be incurred by and for the District for the purpose of financing certain public facilities for the benefit of the District (the “Facilities”), and more than two-thirds of the votes cast in said consolidated special elections were cast in favor of incurring such bonded indebtedness, and the District was thereby authorized to issue bonds in an aggregate principal amount not to exceed $6,500,000 for the purposes set forth in said proposition; and WHEREAS, the City Council has determined that it is necessary that bonds of the District designated “Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland 2023 Special Tax Bonds” be issued in an aggregate principal amount which shall not exceed $6,500,000 (the “Bonds”) to finance a portion of the costs of the acquisition or construction of the Facilities; and WHEREAS, payment of the principal of and interest on the Bonds will be secured by special taxes to be levied on parcels of taxable property in the District (the “Special Taxes”); and
WHEREAS, pursuant to Section 53345.8 of the California Government Code, the City Council, as the legislative body of the District, may sell bonds of the District only if it determines prior to the sale of such bonds that the value of the real property that would be subject to the Special Tax to pay debt service on the bonds will be at least three (3) times the principal amount of the bonds to be sold and the principal
Resolution No.
amount of all other bonds outstanding that are secured by a special tax levied pursuant to the Mello-Roos Community Facilities Act of 1982 (Section 53311, et seq., of the California Government Code) on property within the District or a special assessment levied on property within the District; and
WHEREAS, the appraised value of the taxable property within the District, based upon the appraisal prepared by Kitty Siino & Associates, Inc. (the “Appraiser”), and as set forth in the report of the Appraiser dated March 28, 2023 (the “Appraisal”), is $43,825,598 as of February 1, 2023 date of value; and WHEREAS, if the Bonds are issued and sold in an aggregate principal amount that does not exceed $6,500,000, the appraised value of the taxable property in the District, as set forth in the Appraisal, will be more than three (3) times such principal amount of the Bonds, and there are no other special tax or assessment bonds of the District; and
WHEREAS, there has been presented to the City Council a form of Purchase Contract (the “Purchase Contract”) whereby Hilltop Securities, Inc. (the “Underwriter”) has offered to purchase the Bonds from the City, and a form of Preliminary Official Statement relating to the Bonds; and WHEREAS, there has also been presented to the City Council a form of Fiscal Agent Agreement (the “Fiscal Agent Agreement”) with respect to the Bonds to be executed and delivered by the City and U.S. Bank Trust Company, National Association, as fiscal agent (the “Fiscal Agent”), whereby the Fiscal Agent will authenticate and deliver the Bonds and perform certain other duties; and WHEREAS, there has also been presented to the City Council a form of Continuing Disclosure Certificate to be executed and delivered by the City, for the benefit of the owners of the Bonds and in order to assist the Underwriter in complying with Rule 15c2-12(b)(5) of the Securities and Exchange Commission, as amended (the “Rule”); and
WHEREAS, the City Council has considered the forms of the Fiscal Agent Agreement, the Continuing Disclosure Certificate, the Purchase Contract and the Preliminary Official Statement and has determined that it is in the best interest of the owners of property in and the future residents of the District that the City Council authorize the issuance and sale of the Bonds and the execution and delivery of said agreements and approve and authorize the distribution of the Preliminary Official Statement subject to the conditions hereinafter contained; and WHEREAS, Section 5852.1 of the Government Code of the State of California (“Section 5852.1”) provides that the City Council obtain from an underwriter, financial advisor or private lender and disclose, in a meeting open to the public, prior to authorization of the issuance of the Bonds, good faith estimates of: (a) the true interest cost of the Bonds, (b) the finance charge of the Bonds, meaning the sum of all fees and charges paid to third parties, (c) the amount of proceeds of the Bonds received less the finance charge described above and any reserves or capitalized interest paid or funded with proceeds of the Bonds and (d) the sum total of all debt
Resolution No.
service payments on the Bonds calculated to the final maturity of the Bonds plus the fees and charges paid to third parties not paid with the proceeds of the Bonds; and WHEREAS, in accordance with Section 5852.1, the City Council has obtained such good faith estimates from Urban Futures, Inc., the City’s municipal advisor (the “Municipal Advisor”), and such estimates are disclosed in Exhibit A attached hereto; and
WHEREAS, the City Council wishes at this time to authorize all proceedings relating to the issuance and sale of the Bonds and all other agreements and documents relating thereto.
NOW, THEREFORE, the City Council of the City of Upland hereby finds, determines and resolves as follows:
SECTION 1. Findings. The City Council finds (a) that the preceding recitals are true and correct, (b) that the sale of the Bonds at private sale, without advertising for bids, will result in a lower overall cost to the District, and (c) that if the Bonds are issued and sold in an aggregate principal amount that does not exceed $6,500,000, the value of the parcels of real property within the District which will be subject to the levy of the Special Taxes to pay the principal of and interest on the Bonds, based on the appraised value of such parcels as determined by the Appraiser and as set forth in the Appraisal, i.e., $43,825,598, will be more than three (3) times the principal amount of such Bonds and all other outstanding bonds that are secured by special taxes that are to be levied on such parcels or special assessments that have been levied on such parcels.
SECTION 2. Authorization of the Issuance of the Bonds. The City Council authorizes the issuance and sale of the Bonds in an aggregate principal amount which shall not exceed $6,500,000. The Mayor, City Manager, Finance Officer and/or the City Clerk (each an “Authorized Representative”) are each authorized and directed to take all steps and actions which are necessary to accomplish the issuance, sale and delivery of the Bonds pursuant to the authorization given by and the conditions specified in this Resolution. The Mayor and the City Clerk of the City are authorized to execute the Bonds for and on behalf of the City and the District by their manual or facsimile signatures. The Bonds shall be dated as of their date of delivery pursuant to the Purchase Contract.
SECTION 3. Approval of Fiscal Agent Agreement. The form of Fiscal Agent Agreement which provides generally for (i) the authentication and delivery by the Fiscal Agent of the Bonds, (ii) the establishment and administration by the Fiscal Agent of certain funds and accounts for the benefit of the City and the owners of the Bonds, (iii) the payment by the Fiscal Agent of the principal of and interest on the Bonds from the Special Tax Revenues (as defined therein), and (iv) the performance of other duties by the Fiscal Agent, is approved in the form provided to the City Council at the meeting at which this Resolution is adopted, and the Authorized Representatives are each individually authorized to execute and deliver, on behalf of the City, such Fiscal Agent Agreement with respect to the Bonds.
Resolution No.
SECTION 4. Approval of Preliminary Official Statement; Preparation of Final Official Statement. The Preliminary Official Statement is approved, and the Authorized Representatives are each individually authorized to consent to and assist in the preparation of such modifications thereto as may be specified by Best Best & Krieger LLP, bond counsel and disclosure counsel to the City (“Bond Counsel”), and the Municipal Advisor. The Authorized Representatives are each individually authorized to determine, with the assistance of Bond Counsel and the Municipal Advisor when the Preliminary Official Statement is to be deemed final within the meaning of the Rule and to deliver a certificate to that effect to the Underwriter. The Underwriter is authorized to distribute the Preliminary Official Statement as approved hereby, or as modified with the consent of the City Manager or the Finance Director, or to prospective purchasers of the Bonds. The Authorized Representatives and the Municipal Advisor are each authorized to participate in the preparation of the Final Official Statement, based on the Preliminary Official Statement, and such modifications thereto as may be agreed to by Bond Counsel, the Municipal Advisor and the Underwriter. The Authorized Representatives are each authorized to sign the Final Official Statement on behalf of the City and the District.
SECTION 5. Appointment of Professionals. The City Council hereby authorizes and approves the following professionals to provide services in connection with the issuance of the Bonds:
(a) Fiscal Agent. U.S. Bank Trust Company, National Association is appointed as Fiscal Agent pursuant to the Fiscal Agent Agreement and to take any and all action provided therein to be taken by the Fiscal Agent; (b) Municipal Advisor. Urban Futures, Inc. is hereby appointed to provide municipal advisory services;
(c) Bond Counsel and Disclosure Counsel. Best Best & Krieger LLP is hereby appointed as bond and disclosure counsel in connection with the issuance of the Bonds; and
(d) Special Tax Consultant. Willdan Financial Services is hereby appointed as Special Tax Consultant in connection with the issuance of the Bonds.
SECTION 6. Sale of Bonds; Purchase Contract. The City Council approves and authorizes the issuance and sale of the Bonds by negotiation with the Underwriter pursuant to the Purchase Contract between the City and the Underwriter in the form presented to the City Council at the meeting at which this Resolution is adopted, together with any changes therein or additions thereto which are deemed advisable by the Authorized Representatives upon consultation with Bond Counsel and the Municipal Advisor. The Authorized Representatives are each authorized and directed to execute and deliver the final form of the Purchase Contract on behalf of the City and the District upon the submission of an offer by the Underwriter to purchase the Bonds, which offer is acceptable to the City Manager and is consistent with the requirements of this Resolution; provided that the true interest cost on the Bonds shall not exceed five and seventy-five hundredths percent (5.75%) the Underwriter’s discount for the purchase of the Bonds shall not be greater than one and five tenths
Resolution No.
percent (1.50%) (exclusive of original issue discount) of the aggregate principal amount of the Bonds; and the last maturity of the Bonds shall be paid and redeemed no later than September 1, 2053. When the City Manager has negotiated the Purchase Contract with the Underwriter within the parameters specified above and when the other terms and conditions of the Purchase Contract are satisfactory to the City Manager or the Finance Officer and Bond Counsel, the City Manager or the Finance Officer is authorized to execute and deliver the Purchase Contract to the Underwriter on behalf of the City and the District.
SECTION 7. Accountability Measures. Pursuant to Section 53410 of the California Government Code, the issuance of and sale of the Bonds is subject to the following accountability measures:
(a) The proceeds of the Bonds shall be applied only for the specific purposes identified in the propositions regarding the authorization of the District incurring bonded indebtedness which the qualified electors of the District approved in the election held on June 27, 2022;
(b) Except as otherwise provided in the Fiscal Agent Agreement, the proceeds of the sale of the Bonds shall be deposited in the funds and accounts established pursuant to the Fiscal Agent Agreement and the proceeds deposited in each such fund or account shall be expended as provided in the Fiscal Agent Agreement with respect to each such fund or account; and (c) The Finance Officer shall file a report with the City Council at least once in each calendar year, beginning in 2024, which shall contain the information required by Section 53411 of the California Government Code with respect to the expenditure of the proceeds of the sale of the Bonds and the status of the construction and acquisition of the public facilities comprising the Project (as defined in the Fiscal Agent Agreement).
SECTION 8. Findings Regarding the Levy and Rates of Special Taxes. The City Council finds that the City will covenant in the Fiscal Agent Agreement, for the benefit of the owners of the Bonds, that it will not initiate proceedings under the Mello-Roos Community Facilities Act of 1982 to reduce the Maximum Special Tax rates on then existing Developed Property (as defined in the Fiscal Agent Agreement) in the District below the amounts which are necessary to provide Special Tax Revenues in an amount equal to estimated Administrative Expenses for the then current Fiscal Year plus an amount equal to one hundred ten percent (110%) of Maximum Annual Debt Service on the Outstanding Bonds. The City Council further finds and determines that any reduction or limitation of the Special Tax rates below the Maximum Rates would interfere with the timely retirement of the Bonds.
SECTION 9. Approval of Continuing Disclosure Certificate. The Continuing Disclosure Certificate is approved in the form submitted to the City Council at the meeting at which this Resolution is adopted, and the City Manager or the Finance Officer is authorized to execute and deliver said certificate on behalf of the City.
Resolution No.
SECTION 10. Modifications. The approval of the Fiscal Agent Agreement, the Continuing Disclosure Certificate and the Purchase Contract given by this Resolution shall apply to any modification or amendment of any of said agreements which is agreed upon and approved by Bond Counsel, the Municipal Advisor and the City Manager or the Finance Officer as being necessary to carry out the provisions thereof and the authorization and direction provided in this Resolution.
SECTION 11. Further Action. The Authorized Representatives are authorized to take any and all action which is directed by Bond Counsel with respect to the execution and delivery of the Fiscal Agent Agreement, the Continuing Disclosure Certificate and the Purchase Contract and the issuance, sale and delivery of the Bonds, which in the opinion of Bond Counsel is necessary in order for the authorization and direction provided in this Resolution to be carried out.
SECTION 12. Conditions of Approval. The approvals, authorization and direction given by this Resolution are conditioned upon the satisfaction of the requirements of Section 6 hereof with respect to the issuance and sale of the Bonds.
The officers of the City designated above shall not take any action with respect to the execution and delivery of the Fiscal Agent Agreement, the Continuing Disclosure Certificate and the Purchase Contract or the issuance, sale and delivery of the Bonds unless and until such conditions are satisfied; provided, however, that upon satisfaction of such conditions, this Resolution shall be fully effective and shall be carried out by such officers without further approval or action of the City Council. The approvals, authorization and direction provided by this Resolution shall continue, subject to the satisfaction of such conditions, until December 31, 2023, and the Bonds may be sold, and the Bonds, the Fiscal Agent Agreement, the Continuing Disclosure Certificate, the Purchase Contract, the Preliminary Official Statement and the Final Official Statement may be dated, entered into, executed and delivered or distributed, as appropriate, on any date selected by the Authorized Representatives and the Municipal Advisor and the Underwriter prior to said date.
SECTION 13. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 14. Electronic and Digital Signatures. The City Council hereby approves the execution and delivery of all agreements, documents, certificates and instruments referred to herein with electronic signatures as may be permitted under the California Uniform Electronic Transactions Act and digital signatures as may be permitted under Section 16.5 of the California Government Code using DocuSign.
SECTION 15. Certification. The City shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions.
SECTION 16. Effective Date. This Resolution and the action thereby shall be effective upon adoption.
Resolution No.
APPROVED, APPROVED and ADOPTED this 24th day of April, 2023.
Bill Velto, Mayor
I, Keri Johnson, City Clerk of the City of Upland, do hereby certify that the foregoing Resolution was adopted at a regular meeting of the City Council held on the 24th day of April, 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAINED:
ATTEST:
Keri Johnson, City Clerk
46708.00809\40997408.4
A-1
EXHIBIT A
GOOD FAITH ESTIMATES
The good faith estimates set forth herein are provided with respect to the Bonds in accordance with California Government Code Section 5852.1. Such good faith estimates have been provided to the City by the Municipal Advisor in consultation with the Underwriter.
Principal Amount. The Municipal Advisor has informed the City that, based on the financing plan and current market conditions, it’s good faith estimate of the aggregate principal amount of the Bonds to be sold is $4,260,000.00 (the “Estimated Principal Amount”), which excludes approximately $29,207.00 of net discount estimated to be generated based on current market conditions. Net discount is generated when, on a net aggregate basis for a single issuance of bonds, the price paid for such bonds is lower than the face value of the bonds.
True Interest Cost of the Bonds. The Municipal Advisor has informed the City that, assuming that the Estimated Principal Amount of the Bonds is sold, and based on market interest rates prevailing at the time of preparation of such estimate, its good faith estimate of the true interest cost of the Bonds, which means the rate necessary to discount the amounts payable on the respective principal and interest payment dates to the purchase price received for the Bonds, is 4.88%.
Finance Charge of the Bonds. The Municipal Advisor has informed the City that, assuming that the Estimated Principal Amount of the Bonds is sold, and based on market interest rates prevailing at the time of preparation of such estimate, its good faith estimate of the finance charge for the Bonds, which means the sum of all fees and charges paid to third parties (or costs associated with the Bonds), is $238,900.00.
Amount of Proceeds to be Received. The Municipal Advisor has informed the City that, assuming that the Estimated Principal Amount of the Bonds is sold, and based on market interest rates prevailing at the time of preparation of such estimate, its good faith estimate of the amount of proceeds expected to be received by the City, on behalf of the District, for the sale of the Bonds, less the finance charge of the Bonds, as estimated above, and any reserves or capitalized interest paid or funded with proceeds of the Bonds, is $3,561,559.00.
Total Payment Amount. The Municipal Advisor has informed the City that, assuming that the Estimated Principal Amount of the Bonds is sold, and based on market interest rates prevailing at the time of preparation of such estimate, its good faith estimate of the total payment amount, which means the sum total of all payments the District will make to pay debt service on the Bonds, plus the finance charge for the Bonds, as described above, not paid with the proceeds of the Bonds, calculated to the final maturity of the Bonds, is $8,155,900.00 (excluding any offsets from reserves or capitalized interest).
46708.00809\40997408.4
A-2
The foregoing estimates constitute good faith estimates only. The actual principal amount of the Bonds issued and sold, the true interest cost thereof, the finance charges thereof, the amount of proceeds received therefrom and total payment amount with respect thereto may differ from such good faith estimates due to (a) the actual date of the sale of the Bonds being different than the date assumed for purposes of such estimates, (b) the actual principal amount of Bonds sold being different from the Estimated Principal Amount, (c) the actual amortization of the Bonds being different than the amortization assumed for purposes of such estimates, (d) the actual market interest rates at the time of sale of the Bonds being different than those estimated for purposes of such estimates, (e) other market conditions, or (f) alterations in the financing plan or finance charges, or a combination of such factors. The actual date of sale of the Bonds and the actual principal amount of Bonds sold will be determined by the City, on behalf of the District, based on the timing of the need for proceeds of the Bonds and other factors. The actual interest rates borne by the Bonds will depend on market interest rates at the time of sale thereof. The actual amortization of the Bonds will also depend, in part, on market interest rates at the time of sale thereof. Market interest rates are affected by economic and other factors beyond the control of the City.
46708.00809\40996543.3
___________________________________________________________________________
FISCAL AGENT AGREEMENT
by and between
CITY OF UPLAND
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Fiscal Agent
Dated as of __________ 1, 2023
Relating to
Community Facilities District No. 2022-1
(Enclave at Upland)
of the City of Upland,
County of San Bernardino
State of California
$____________
2023 Special Tax Bonds
___________________________________________________________________________
46708.00809\40996543.3
TABLE OF CONTENTS
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ARTICLE I AUTHORITY AND DEFINITIONS .................................................................. 2 Section 1.01. Authority for this Agreement ....................................................................... 2 Section 1.02. Agreement for Benefit of Owners ................................................................ 2 Section 1.03. Definitions.................................................................................................... 2 ARTICLE II THE BONDS ..................................................................................................... 13 Section 2.01. Principal Amount; Designation.................................................................. 13 Section 2.02. Terms of Bonds. ......................................................................................... 13 Section 2.03. Redemption. ............................................................................................... 14 Section 2.04. Form of Bonds ........................................................................................... 17 Section 2.05. Execution of Bonds .................................................................................... 17 Section 2.06. Transfer of Bonds ...................................................................................... 17 Section 2.07. Exchange of Bonds .................................................................................... 18 Section 2.08. Bond Register............................................................................................. 18 Section 2.09. Temporary Bonds....................................................................................... 18 Section 2.10. Bonds Mutilated, Lost, Destroyed or Stolen .............................................. 19 Section 2.11. Special Obligation ...................................................................................... 19 Section 2.12. Book-Entry ................................................................................................. 19 Section 2.13. Parity Bonds ............................................................................................... 21 ARTICLE III ISSUANCE OF BONDS; APPLICATION OF PROCEEDS; IMPROVEMENT FUND; SPECIAL TAX FUND; ADMINISTRATIVE
EXPENSE FUND; COSTS OF ISSUANCE FUND......................................... 21 Section 3.01. Issuance and Delivery of Bonds ................................................................ 21 Section 3.02. Application of Proceeds of Sale of Bonds. ................................................ 21 Section 3.03. Improvement Fund. .................................................................................... 21 Section 3.04. Special Tax Fund. ...................................................................................... 22 Section 3.05. Administrative Expense Fund. ................................................................... 23 Section 3.06. Costs of Issuance Fund. ............................................................................. 24 ARTICLE IV SPECIAL TAX REVENUES; BOND FUND; RESERVE FUND ................... 24 Section 4.01. Pledge of Special Tax Revenues. ............................................................... 24 Section 4.02. Bond Fund. ................................................................................................. 25 Section 4.03. Reserve Fund. ............................................................................................ 27 ARTICLE V OTHER COVENANTS OF THE CITY ........................................................... 28 Section 5.01. Punctual Payment....................................................................................... 28 Section 5.02. Special Obligation ...................................................................................... 29 Section 5.03. Extension of Time for Payment ................................................................. 29 Section 5.04. Against Encumbrances............................................................................... 29 Section 5.05. Books and Accounts .................................................................................. 29 Section 5.06. Protection of Security and Rights of Owners ............................................ 29 Section 5.07. Collection of Special Tax Revenues .......................................................... 29
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Section 5.08. Levy of Special Taxes for Administrative Expenses ................................. 30 Section 5.09. Further Assurances ..................................................................................... 31 Section 5.10. Tax Covenants ........................................................................................... 31 Section 5.11. Covenant to Foreclose................................................................................ 31 Section 5.12. Prepayment of Special Taxes ..................................................................... 32 Section 5.13. Calculation of Prepayments ....................................................................... 32 Section 5.14. Continuing Disclosure ............................................................................... 32 Section 5.15. Accountability Measures ........................................................................... 32 ARTICLE VI INVESTMENTS; DISPOSITION OF INVESTMENT PROCEEDS; LIABILITY OF THE CITY .............................................................................. 32 Section 6.01. Deposit and Investment of Moneys in Funds ............................................ 32 Section 6.02. Rebate Fund; Rebate to the United States .................................................. 33 Section 6.03. Liability of City.......................................................................................... 34 Section 6.04. Employment of Agents by City ................................................................. 35 ARTICLE VII THE FISCAL AGENT ...................................................................................... 35 Section 7.01. Appointment of Fiscal Agent ..................................................................... 35 Section 7.02. Liability of Fiscal Agent ............................................................................ 36 Section 7.03. Information ................................................................................................ 38 Section 7.04. Notice to Fiscal Agent ............................................................................... 38 Section 7.05. Compensation, Indemnification ................................................................. 38 Section 7.06. Books and Accounts .................................................................................. 38 ARTICLE VIII MODIFICATION OR AMENDMENT OF THIS AGREEMENT................... 39 Section 8.01. Amendments Permitted. ............................................................................. 39 Section 8.02. Owners’ Meetings ...................................................................................... 40 Section 8.03. Procedure for Amendment with Written Consent of Owners .................... 40 Section 8.04. Disqualified Bonds..................................................................................... 41 Section 8.05. Effect of Supplemental Agreement ............................................................ 41 Section 8.06. Endorsement or Replacement of Bonds Issued After Amendments .......... 41 Section 8.07. Amendatory Endorsement of Bonds .......................................................... 41 ARTICLE IX EVENTS OF DEFAULT AND REMEDIES .................................................... 41 Section 9.01. Events of Default ....................................................................................... 41 Section 9.02. Remedies of Owners .................................................................................. 42 Section 9.03. Application of Special Taxes and Other Funds After Default ................... 42 Section 9.04. Restoration of Positions ............................................................................. 43 Section 9.05. Rights and Remedies Cumulative .............................................................. 43 Section 9.06. Delay or Omission Not Waiver .................................................................. 43 ARTICLE X MISCELLANEOUS .......................................................................................... 43 Section 10.01. Benefits of Agreement Limited to Parties ............................................... 43
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TABLE OF CONTENTS
(continued)
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Section 10.02. Successor is Deemed Included in All References to Predecessor ........... 43 Section 10.03. Discharge of Agreement. ......................................................................... 43 Section 10.04. Execution of Documents and Proof of Ownership by Owners ................ 44 Section 10.05. Waiver of Personal Liability .................................................................... 45 Section 10.06. Notices to and Demands on City and Fiscal Agent ................................. 45 Section 10.07. Partial Invalidity....................................................................................... 45 Section 10.08. Unclaimed Moneys .................................................................................. 45 Section 10.09. Applicable Law ........................................................................................ 46 Section 10.10. Conflict with Act...................................................................................... 46 Section 10.11. Conclusive Evidence of Regularity ......................................................... 46 Section 10.12. Payment on Business Day ........................................................................ 46 Section 10.13. Counterparts ............................................................................................. 46
EXHIBIT A – FORM OF BOND .............................................................................................. A-1
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1 FISCAL AGENT AGREEMENT
THIS FISCAL AGENT AGREEMENT (the “Agreement”) is made and entered into as of __________ 1, 2023, by and between the City of Upland, a municipal corporation, duly organized and existing under the laws of the State of California (the “City”), for and on behalf of Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland, County of San Bernardino, State of California (the “District”), and U.S. Bank Trust Company, National Association, a national banking association organized and existing under the laws of the United States of America, as fiscal agent (the “Fiscal Agent”).
W I T N E S S E T H:
WHEREAS, the City Council of the City (the “City Council”) has established the District pursuant to the provisions of the Mello-Roos Community Facilities Act of 1982, as amended, Chapter 2.5 (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the California Government Code (the “Act”); and
WHEREAS, the District is authorized to incur bonded indebtedness and issue bonds in the aggregate principal amount of $6,500,000 for the purpose of financing the construction and acquisition of certain public facilities and the City Council has determined that it is necessary that bonds of the District be issued and sold in the aggregate principal amount of $____________ for the purpose of financing the construction and acquisition of the public facilities which are hereinafter identified as the Project; and
WHEREAS, on [April 24], 2023, the City Council adopted Resolution No. _____ (the “Resolution”) authorizing the issuance and sale of Bonds pursuant to this Agreement, designated “Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland 2023 Special Tax Bonds” (the “Bonds”) for the purpose of financing the construction and acquisition of such public facilities, or to reimburse the costs thereof; and WHEREAS, it is in the public interest and for the benefit of the District, the City, the persons responsible for the payment of special taxes and the owners of the Bonds that the City enter into this Agreement to provide for the issuance of the Bonds, the disbursement of proceeds of the Bonds, the disposition of the special taxes securing the Bonds, and the administration and payment of the Bonds; and
WHEREAS, all things necessary to cause the Bonds, when executed by the City and authenticated by the Fiscal Agent for the District and issued as in the Act, the Resolution (as hereinafter defined) and this Agreement provided, to be legal, valid and binding special obligations of the District in accordance with their terms, and all things necessary to cause the authorization, execution and delivery of this Agreement and the authorization, execution, authentication and delivery of the Bonds, subject to the terms hereof, have in all respects been duly authorized; NOW, THEREFORE, in consideration of the covenants and provisions herein set forth and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree as follows:
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2 ARTICLE I
AUTHORITY AND DEFINITIONS
Section 1.01. Authority for this Agreement. This Agreement is entered into pursuant to the provisions of the Act and the Resolution.
Section 1.02. Agreement for Benefit of Owners. The provisions, covenants and agreements herein set forth to be performed by or on behalf of the City and/or the District shall be for the equal benefit, protection and security of the Owners. All of the Bonds, without regard to the time or times of their issuance or maturity, shall be of equal rank without preference, priority or distinction of any of the Bonds over any other thereof, except as expressly provided in or permitted by this Agreement. The Fiscal Agent may become the owner of any of the Bonds with the same rights it would have if it were not Fiscal Agent.
Section 1.03. Definitions. Unless the context otherwise requires, the terms defined in this Section 1.03 shall, for all purposes of this Agreement, of any Supplemental Agreement, and of any certificate, opinion or other document herein mentioned, have the meanings herein specified. All references herein to “Articles,” “Sections” and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Agreement, and the words “herein,” “hereof,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or subdivision hereof.
“Act” means the Mello-Roos Community Facilities Act of 1982, as amended, Chapter 2.5 (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the California Government Code.
“Administrative Expenses” means any or all of the following: the fees and expenses of the Fiscal Agent (including any fees or expenses of its counsel), the expenses of the City in carrying out its duties hereunder (including, but not limited to, the levying and collection of the S pecial Taxes) including the fees and expenses of its counsel, an allocable share of the salaries of City staff directly related thereto and a proportionate amount of City general administrative overhead related thereto, any amounts paid by the City from its general funds pursuant to Section 6.02 hereof, the fees and expenses of the Municipal Advisor, and the Special Tax Consultant, the costs of the District, the City or any designee of either thereof of complying with the arbitrage rebate requirements; the costs to the District, the City or any designee of either thereof of complying with the District, City or obligated persons disclosure requirements associated with applicable federal and state securities laws and of the Act; the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs of the District, or City, or any designee of either thereof related to an appeal of the Special Tax; the costs associated with the release of funds from an escrow account; and the District’s annual administration fee and third party expenses; and all other costs and expenses of the City or the Fiscal Agent incurred in connection with the discharge of their respective duties hereunder and, in the case of the City, in any way related to the administration of the District. “Administrative Expense Fund” means the fund by that name established by Section 3.05(A) hereof.
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3 “Agreement” means this Fiscal Agent Agreement, as it may be amended or supplemented form time to time by any Supplemental Agreement adopted pursuant to the provisions hereof. “Annual Debt Service” means, for each Bond Year, the sum of (i) the interest due on the Outstanding Bonds in such Bond Year, assuming that the Outstanding Bonds are retired as scheduled, and (ii) the principal amount of the Outstanding Bonds scheduled to be paid. “Appraisal” means the appraisal of the estimated market values of the properties within the District prepared by Kitty Siino & Associates, Inc. dated March 28, 2023. “Auditor” means the Auditor-Controller of the County of San Bernardino. “Authorized Officer” means the Mayor, the City Manager, the Finance Officer and/or the City Clerk, or any officer or employee of the City authorized by the City Council or by an Authorized Officer to undertake the action referenced in this Agreement as required to be undertaken by an Authorized Officer.
“Bond Counsel” means Best Best & Krieger LLP or any attorney or firm of attorneys acceptable to the City and nationally recognized for expertise in rendering opinions as to the legality and tax-exempt status of securities issued by public entities. “Bond Fund” means the fund by that name established by Section 4.02(A) hereof. “Bond Year” means the period beginning on the Closing Date and ending on September 1, 2023 and thereafter the period beginning on each September 2 and ending on the following September 1.
“Bonds” means, unless otherwise expressly provided, the Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland 2023 Special Tax Bonds authorized by and at any time Outstanding pursuant to the Act and this Agreement. “Business Day” means any day other than (i) a Saturday or a Sunday or (ii) a day on which banking institutions in the State of California or in any state in which the Fiscal Agent has its Principal Office are authorized or obligated by law or executive order to be closed. “Capitalized Interest Sub-Account” means the sub-account by that name within the Interest Account of the Bond Fund established pursuant to Section 4.02 (A). “City” means the City of Upland.
“City Council” means the City Council of the City.
“Closing Date” means the date upon which there is an exchange of the Bonds for the proceeds representing payment of the purchase price of the Bonds by the Original Purchaser. “Code” means the Internal Revenue Code of 1986, as amended.
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4 “Continuing Disclosure Certificate” means the Continuing Disclosure Certificate of the City, dated as of __________, 2023, as originally executed by the City and as it may be amended from time to time in accordance with the terms thereof. “Costs of Issuance” means items of expense payable or reimbursable directly or indirectly by the City and related to the authorization, sale and issuance of the Bonds, which items of expense shall include, but not be limited to, printing costs, costs of reproducing and binding documents, including but not limited to the preliminary official statement and official statement regarding the Bonds, closing costs, filing and recording fees, premiums for any reserve fund, surety bond or bond insurance policy, initial fees and charges of the Fiscal Agent including its first annual administration fee and the fees of its counsel, expenses incurred by the City in connection with the issuance of the Bonds and the establishment of the District, Bond (underwriter’s) discount, legal fees and charges, including the fees of Bond Counsel and counsel to the Underwriter, Municipal Advisor’s fees, charges for authentication, transportation and safekeeping of the Bonds and other costs, charges and fees in connection with the foregoing. “Costs of Issuance Fund” means the fund by that name established by Section 3.06(A) hereof.
“Debt Service” means the amount of interest and principal payable on the Bonds scheduled to be paid during the period of computation, excluding amounts payable during such period which relate to principal of the Bonds which are scheduled to be retired and paid before the beginning of such period.
“Defeasance Securities” means, for purposes of Section 10.03(C) hereof, the following:
(i) United States Treasury Certificates, Notes and Bonds (including State and Local Government Series - “SLGs”);
(ii) Direct obligations of the United States Treasury which have been stripped by the Treasury itself, CATS, TIGRS and similar securities;
(iii) Resolution Funding Corporation (REFCORP) obligations; provided that only the interest component of REFCORP strips which have been stripped by request of the Federal Reserve Bank of New York in book-entry form are acceptable; (iv) Pre-refunded municipal bonds rated “Aaa” by Moody’s and “AAA” by Standard & Poor’s; provided, however, that if the issue is only rated by Standard & Poor’s (i.e., there is no Moody’s rating), then the pre-refunded bonds must have been pre-refunded with cash, direct United States or United States guaranteed obligations, or “AAA” rated pre-refunded municipal bonds; and
(v) Obligations issued by the following agencies which are backed by the full faith and credit of the United States of America:
(a) U.S. Export-Import Bank
Direct obligations or fully guaranteed certificates of beneficial ownership
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5 (b) Farmers Home Administration
Certificates of beneficial ownership
(c) Federal Financing Bank
(d) General Services Administration
Participation certificates
(e) United States Maritime Administration
Guaranteed Title XI financing
(f) United States Department of Housing and Urban Development Project notes
Local Authority Bonds
New Communities Debentures - United States government
guaranteed debentures
United States Public Housing Notes and Bonds - United States government guaranteed public housing notes and bonds.
“District” means Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland, County of San Bernardino, State of California. “Event of Default” shall mean any one or more of the events described in Section 9.1 hereof.
“Federal Securities” means any of the following which at the time of investment are legal investments under the laws of the State of California for the moneys proposed to be invested therein:
(i) Cash; and
(ii) Direct general obligations of (including obligations issued or held in book entry form on the books of the Department of the Treasury of the United States of America and CATS and TIGRS), or obligations, the payment of principal of and interest on which is unconditionally guaranteed by the United States of America.
“Fiscal Agent” means U.S. Bank Trust Company, National Association, the Fiscal Agent appointed by the City, acting as an independent fiscal agent with the duties and powers herein provided, its successors and assigns, and any other corporation or association which may at any time be substituted in its place, as provided in Section 7.01 hereof. “Fiscal Year” means the twelve-month period extending from July 1 in a calendar year to June 30 of the succeeding year, both dates inclusive.
“Improvement Fund” means the fund by that name established by Section 3.03(A) hereof.
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6 “Independent Financial Consultant” means a firm of certified public accountants, a financial consulting firm, a consulting engineering firm or engineer which is not an employee of, or otherwise controlled by, the City.
Information Services” means in accordance with then-current guidelines of the Securities and Exchange Commission, the Electronic Municipal Market Access System (referred to as “EMMA”), a facility of the Municipal Securities Rulemaking Board (at http://emma.msrb.org) or such service or services as the City may designate in a certificate delivered to the Fiscal Agent. “Interest Account” means the account by that name established in the Bond Fund by Section 4.02 (A).
“Interest Payment Dates” means March 1 and September 1 of each year, commencing September 1, 2023 until the maturity or redemption of all Outstanding Bonds. “Investment Earnings” means all interest earned and any gains and losses on the investment of moneys in any fund or account created by this Agreement, excluding interest earned and gains and losses on the investment of moneys in the Rebate Fund. “Maximum Annual Debt Service” means the largest Annual Debt Service for any Bond Year after the calculation is made through the final maturity date of any Outstanding Bonds. “Moody’s” shall mean Moody’s Investors Service, a national rating service with offices in New York, New York.
“Municipal Advisor” means an independent financial consulting firm appointed by the City to advise the City as to financial matters relating to the Bonds. “Officer’s Certificate” means a written certificate of the City signed by an Authorized Officer of the City.
“Ordinance” means any ordinance of the City or resolution of the City Council levying the Special Taxes.
“Original Purchaser” means the first purchaser of the Bonds from the City. “Outstanding,” when used as of any particular time with reference to the Bonds, means (subject to the provisions of Section 8.04 hereof) all Bonds except:
(i) Bonds theretofore canceled by the Fiscal Agent or surrendered to the Fiscal Agent for cancellation;
(ii) Bonds called for redemption which, for the reasons specified in Section 2.03 (F) hereof, are no longer entitled to any benefit under this Agreement other than the right to receive payment of the redemption price therefor;
(iii) Bonds paid or deemed to have been paid within the meaning of Section 10.03 hereof; and
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7 (iv) Bonds in lieu of or in substitution for which other Bonds shall have been authorized, executed, issued and delivered by the City and authenticated by the Fiscal Agent pursuant to this Agreement or any Supplemental Agreement.
“Owner” means any person who shall be the registered owner of any Outstanding Bond. “Parity Bonds” means bonds issued by the District for the purpose of accomplishing the defeasance and redemption of all or a portion of the Outstanding Bonds pursuant to Section 2.13 hereof.
“Permitted Investments” means:
(i) Federal Securities;
(ii) Bonds, debentures, notes or other evidence of indebtedness issued or guaranteed by any of the following federal agencies and provided such obligations are backed by the full faith and credit of the United States of America (stripped securities are only permitted if they have been stripped by the agency itself):
(a) U.S. Export-Import Bank
Direct obligations or fully guaranteed certificates of beneficial ownership (b) Farmers Home Administration
Certificates of beneficial ownership
(c) Federal Financing Bank
(d) Federal Housing Administration Debentures
(e) General Services Administration
Participation certificates
(f) Government National Mortgage Association (GNMA)
GNMA - guaranteed mortgage-backed bonds
GNMA - guaranteed pass-through obligations
(g) U.S. Maritime Administration
Guaranteed Title XI financing
(h) U.S. Department of Housing and Urban Development
Project Notes
Local Authority Bonds
New Communities Debentures - United States government guaranteed debentures
U.S. Public Housing Notes and Bonds - United States government guaranteed public housing notes and bonds;
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8 (iii) Bonds, debentures, notes or other evidence of indebtedness issued or guaranteed by any of the following non-full faith and credit United States government agencies (stripped securities are only permitted if they have been stripped by the agency itself):
(a) Federal Home Loan Bank System
Senior debt obligations
(b) Federal Home Loan Mortgage Corporation
Participation Certificates
Senior debt obligations
(c) Federal National Mortgage Association
Mortgage-backed securities and senior debt obligations
(d) Student Loan Marketing Association
Senior debt obligations
(e) Resolution Funding Corporation
(REFCORP) obligations
(f) Farm Credit System
Consolidated systemwide bonds and notes;
(iv) Money market funds registered under the Federal Investment Company Act of 1940, whose shares are registered under the Federal Securities Act of 1933, and having a rating by Standard & Poor’s of “AAAm-G,” “AAA-m” or “AA-m” and, if rated by Moody’s, rated “Aaa,” “Aa1” or “Aa2” by Moody’s, including funds for which the Fiscal Agent, its parent holding company, if any, or any affiliates or subsidiaries of the Fiscal Agent or such holding company receive and retain a fee for services provided to the fund whether as a custodian, transfer agent, investment advisor or otherwise;
(v) Certificates of deposit secured at all times by collateral described in clauses (i) and/or (ii) above. Such certificates must be issued by commercial banks, including the Fiscal Agent and its affiliates, savings and loan associations or mutual savings banks. The collateral must be held by a third party and the Fiscal Agent on behalf of the Owners of the Bonds must have a perfected first security interest in the collateral;
(vi) Certificates of deposit, savings accounts, deposit accounts or money market deposits which are fully insured by FDIC, including BIF and SAIF including those that may be issued or provided by the Fiscal Agent and its affiliates; (vii) Investment agreements with domestic or foreign banks, insurance companies or corporations the long-term debt or claims paying ability of which or, in the case of a guaranteed corporation, the long-term debt of the guarantor, or, in the case of a monoline financial guaranty insurance company, the claims paying ability or financial strength, of the guarantor is rated in at least the double A category by Standard & Poor’s and Moody’s; provided that, by the terms of the investment agreement:
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9 (a) interest payments are to be made to the Fiscal Agent at times and in amounts as necessary to pay Debt Service on the Bonds (if the funds invested pursuant to the investment agreement are from the Reserve Fund);
(b) the investment agreement shall provide that the invested funds are available for withdrawal without penalty or premium at any time upon not more than seven (7) days’ prior notice (the City and the Fiscal Agent shall give or cause to be given notice in accordance with the terms of the investment agreement so as to receive funds thereunder with no penalty or premium payable.);
(c) the investment agreement shall provide that it is the unconditional and general obligation of, and is not subordinated to any other obligation of, the provider thereof; (d) the City and the Fiscal Agent receive the opinion of domestic counsel (which opinion shall be addressed to the City and the Fiscal Agent) that such investment agreement is legal, valid, binding and enforceable upon the provider in accordance with its terms and of foreign counsel (if applicable) in form and substance acceptable, and addressed to, the City and the Fiscal Agent;
(e) the investment agreement shall provide that if during its term (1) the provider’s (or its guarantor’s) rating by either Standard & Poor’s or Moody’s falls below “AA-” or “Aa3”, respectively, the provider shall, at its option, within ten (10) days of receipt of publication of such downgrade, either (i) collateralize the investment agreement by delivering or transferring in accordance with the applicable state and federal laws (other than by means of entries on the provider’s books) to the City, the Fiscal Agent or a third party acting solely as agent therefor (the “Holder of the Collateral”) collateral free and clear of any third-party liens or claims, the market value of which collateral is maintained at one hundred four percent (104%) of securities identified in clauses (i) and (ii) of this definition; or (ii) assign the investment agreement and all of its obligations thereunder to a financial institution mutually acceptable to the provider, the City and the Fiscal Agent which is rated either in the first or second highest category by Standard & Poor’s and Moody’s; and
(2) the provider’s (or its guarantor’s) rating by either Standard & Poor’s or Moody’s is withdrawn or suspended or falls below “A-” or “A3”, respectively, the provider must, at the direction of the City or the Fiscal Agent, within ten (10) days of receipt of such direction, repay the principal of and accrued but unpaid interest on the invested funds, in either case with no penalty or premium to the City or the Fiscal Agent; and (f) the investment agreement shall provide and an opinion of counsel shall be rendered, in the event collateral is required to be pledged by the provider under the terms of the investment agreement at the time such collateral is delivered, that the Holder of the Collateral has a perfected first priority security interest in the collateral, any substituted collateral and all proceeds thereof (in the case of bearer securities, this shall mean the Holder of the Collateral is in possession of such collateral); and
(g) the investment agreement shall provide that if during its term
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10 (1) the provider shall default in its payment obligations, the provider’s obligations under the investment agreement shall, at the direction of the City or the Fiscal Agent, be accelerated and amounts invested and accrued but unpaid interest thereon shall be paid to the City or the Fiscal Agent, as appropriate; and
(2) the provider shall become insolvent, not pay its debts as they become due, be declared or petition to be declared bankrupt, etc. (“event of insolvency”), the provider’s obligations shall automatically be accelerated and amounts invested and accrued but unpaid interest thereon shall be paid to the City or the Fiscal Agent, as appropriate; (viii) Commercial paper rated, at the time of purchase, “Prime - 1” by Moody’s and “A-1” or better by Standard & Poor’s;
(ix) Bonds or notes issued by any state or municipality which are rated by Moody’s and/or Standard & Poor’s in one of the two highest rating categories assigned by them; (x) Federal funds or bankers acceptances with a maximum term of one year of any bank or deposit accounts, including the Fiscal Agent and its affiliates, which has an unsecured, uninsured and unguaranteed obligation rating of “Prime - 1” or better by Moody’s and “A-1” or better by Standard & Poor’s;
(xi) Repurchase agreements which satisfy the following criteria:
(a) Repurchase agreements must be between the City or the Fiscal Agent and an entity which is:
(1) A primary dealer on the Federal Reserve reporting dealer list which is rated “A” or better by Standard & Poor’s and Moody’s, or (2) A bank rated “A” or above by Standard & Poor’s and Moody’s; or (3) A corporation the long-term debt or claims paying ability of which, or in the case of a guaranteed corporation, the long-term debt of the guarantor, or, in the case of a monoline financial guaranty insurance company, the claims paying ability or financial strength of the guarantor, is rated in at least the double A category by Standard & Poor’s and Moody’s. (b) The written agreement must include the following:
(1) Securities which are acceptable for transfer are:
(A) direct obligations of the United States government, or (B) obligations of federal agencies backed by the full faith and credit of the United States of America (or the Federal National Mortgage Association (FNMA) or the Federal Home Loan Mortgage Corporation (FHLMC)),
(2) The collateral must be delivered to the City or the Fiscal Agent (if the Fiscal Agent is not supplying the collateral) or a third party acting as agent for the Fiscal Agent
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11 (if the Fiscal Agent is supplying the collateral) before or simultaneous with payment (perfection by possession of certificated securities),
(3) (A) The securities must be valued weekly, marked-to-market at current market price plus accrued interest, and
(B) The value of the collateral must be at least equal to one hundred four percent (104%) of the amount of money transferred by the Fiscal Agent to the dealer, bank or corporation under the agreement plus accrued interest. If the value of the securities held as collateral is reduced below one hundred four percent (104%) of the value of the amount of money transferred by the Fiscal Agent, then additional acceptable securities and/or cash must be provided as collateral to bring the value of the collateral to one hundred four percent (104%); provided, however, that if the securities used as collateral are those of FNMA or FHLMC, then the value of the collateral must equal to one hundred five percent (105%) of the amount of money transferred by the Fiscal Agent; and
(xii) the Local Agency Investment Fund in the State Treasury of the State of California as permitted by the State Treasurer pursuant to Section 16429.1 of the California Government Code.
“Principal Account” means the account by that name established in the Bond Fund by Section 4.02 (A).
“Principal Office” means the principal corporate trust office of the Fiscal Agent in Los Angeles, California or such other addresses may be specified in writing by the Fiscal Agent; provided, however, that for purposes of the transfer, registration, exchange, payment and surrender of Bonds “Principal Office” means the office or agency of the Fiscal Agent at which, at any time, its corporate trust agency business shall be conducted or such other office or address as may be specified in writing by the Fiscal Agent.
“Proceeds,” when used with reference to the Bonds, means the aggregate principal amount of the Bonds, plus accrued interest and premium, if any, less original issue discount, if any, less Original Purchaser’s discount.
“Project” means the public facilities which are to be financed with the proceeds of the sale of the bonds of the District, as described in Resolution No. 6672 adopted by the City Council on June 27, 2022.
“Rate and Method of Apportionment” means the rate and method of apportionment of special taxes originally authorized to be levied on property within the District as approved at a special election held within the District on June 27, 2022, and as it may be modified from time to time in accordance with the Act.
“Rebate Certificate” means the certificate delivered by the City upon the delivery of the Bonds relating to Section 148 of the Code, or any functionally similar replacement certificate. “Rebate Fund” means the fund by that name established by Section 6.02 hereof.
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12 “Record Date” means the fifteenth (15th) day of the month next preceding the applicable Interest Payment Date whether or not such day is a Business Day. “Regulations” means the temporary and permanent regulations of the United States Department of the Treasury promulgated under the Code.
“Representation Letter” means the representation letter which the City has delivered to The Depository Trust Company (“DTC”) with respect to the utilization of the book-entry system maintained by DTC for the issuance and registration of bonds. “Reserve Fund” means the fund by that name established by Section 4.03(A) hereof. “Reserve Requirement” means, as of the date of calculation, as determined by the City and provided in writing to the Fiscal Agent, the lesser of (i) ten percent (10%) of the original issue price of the Bonds calculated in accordance with Treasury Regulations Section 1.148-2(f)(1), (ii) Maximum Annual Debt Service on the Bonds or (iii) 125 percent (125%) of average Annual Debt Service on the Bonds.
“Resolution” means Resolution No. _____, adopted by the City Council on [April 24], 2023.
“Securities Depositories” means The Depository Trust Company, 55 Water Street, 50th Floor, New York, New York, 10041-0099, Call Notification Department, Fax (212) 855-7232, and, in accordance with then current guidelines of the Securities and Exchange Commission, such other securities depositories as the City may designate in an Officer’s Certificate delivered to the Fiscal Agent.
“Special Taxes” or “Special Tax” means Special Tax A (as defined in the Rate and Method of Apportionment) levied by the City Council on parcels of taxable property within the District pursuant to the Act and this Agreement.
“Special Tax Fund” means the fund by that name established by Section 3.04(A) hereof. “Special Tax Prepayments” means amounts received by the City as prepayments of all or a portion of the Special Tax obligation of a parcel of property in the District. “Special Tax Prepayments Account” means the account by that name established by the Fiscal Agent in the Bond Fund pursuant to Section 4.02(A) hereof. “Special Tax Revenues” means the proceeds of the Special Taxes received by the City, including any scheduled payments, interest and penalties thereon and proceeds of the redemption or sale of property sold as a result of foreclosure of the lien of the Special Taxes in the amount of said lien and interest and penalties thereon.
“Standard & Poor’s” shall mean S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, a national rating service with offices in New York, New York.
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13 “Tax Consultant” means an engineer or financial consultant or other such person or firm with expertise in the apportionment and levy of special taxes in community facilities districts which is employed by the City to assist the City in levying the Special Taxes.
ARTICLE II
THE BONDS
Section 2.01. Principal Amount; Designation. The Bonds in the aggregate principal amount of $____________ are hereby authorized to be issued by the City for the District under and subject to the terms of the Resolution, this Agreement, the Act and other applicable laws of the State of California. The Bonds shall be designated “Community Facilities District No. 2022- 1 (Enclave at Upland) of the City of Upland 2023 Special Tax Bonds.” The Bonds shall be issued in the form attached hereto as Exhibit A.
Section 2.02. Terms of Bonds.
(A) The Bonds. The Bonds shall be issued as fully registered bonds, without coupons, in the denominations of $5,000 or any integral multiple thereof. The Bonds shall be lettered and numbered in a customary manner as determined by the Fiscal Agent. The Bonds shall be dated __________, 2023.
(B) Maturities. The Bonds shall mature and become payable on September 1 of each year, as follows:
Maturity Dates
(September 1)
Principal
Amounts
Interest
Rates
(C) Interest. The Bonds shall bear interest at the rates set forth in subsection (B) above payable on the Interest Payment Dates in each year. Interest shall be calculated on the basis of a 360-day year composed of twelve 30-day months. Each Bond shall bear interest from the Interest Payment Date next preceding the date of authentication thereof unless (i) it is authenticated on an Interest Payment Date, in which event it shall bear interest from such Interest Payment Date, or (ii) it is authenticated prior to an Interest Payment Date and after the close of business on the Record Date preceding such Interest Payment Date, in which event it shall bear interest from such Interest Payment Date, or (iii) it is authenticated prior to the Record Date preceding the first Interest Payment Date, in which event it shall bear interest from __________, 2023; provided, however, that if at the time of authentication of a Bond, interest is in default thereon, such Bond shall bear interest from the Interest Payment Date to which interest has previously been paid or made available for payment thereon or from __________, 2023, if no interest has previously been paid or made available for payment thereon.
(D) Method of Payment. Interest on the Bonds is payable by check of the Fiscal Agent mailed by first class mail, postage prepaid, on each Interest Payment Date, to the registered Owner thereof at such registered Owner’s address as it appears on the registration books
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14 maintained by the Fiscal Agent at the close of business on the Record Date preceding the Interest Payment Date. The principal of the Bonds and any premium on the Bonds are payable in lawful money of the United States of America by check of the Fiscal Agent upon surrender of such Bonds at the Principal Office of the Fiscal Agent; provided, however, that at the written request of the Owner of at least $1,000,000 in aggregate principal amount of Outstanding Bonds filed with the Fiscal Agent prior to any Record Date, interest on such Bonds shall be paid to such Owner on each succeeding Interest Payment Date by wire transfer of immediately available funds to an account in the United States of America designated in such written request. (E) CUSIP Identification Numbers. “CUSIP” identification numbers shall be imprinted on the Bonds, but such numbers shall not constitute a part of the contract evidenced by the Bonds. In addition, failure on the part of the City or the Fiscal Agent to use such CUSIP numbers in any notice to the Owners shall not constitute an Event of Default or any violation of the City’s contract with the Owners and shall not impair the effectiveness of any such notice.
Section 2.03. Redemption.
(A) Optional Redemption. The Bonds are subject to redemption prior to their stated maturity dates at the option of the City on September 1, 20__, or any date thereafter, from such maturities as selected by the City (and by lot within any one maturity), in integral multiples of $5,000, at the option of the City from moneys derived by the City from any source, at a redemption price (expressed as a percentage of the principal amount of the Bonds to be redeemed), together with accrued interest to the date of redemption, as follows:
Redemption Dates Redemption Price
September 1, 20__ through August 31, 20__ 103%
September 1, 20__ through August 31, 20__ 102
September 1, 20__ through August 31, 20__ 101
September 1, 20__ and any date thereafter 100
(B) Mandatory Redemption From Special Tax Prepayments. The Bonds are subject to mandatory redemption prior to their stated maturity dates on any Interest Payment Date, as selected among maturities by the City (and by lot within any one maturity), in integral multiples of $5,000, from moneys derived by the City from Special Tax Prepayments, at redemption prices (expressed as percentages of the principal amounts of the Bonds to be redeemed), together with accrued interest to the date of redemption, as follows:
Redemption Dates Redemption Price
Any Interest Payment Date through September 1, 20__ 103% March 1, 20__ and September 1, 20__ 102
March 1, 20__ and September 1, 20__ 101
September 1, 20__ and any Interest Payment Date thereafter 100
(C) Mandatory Sinking Fund Redemption. The Outstanding Bonds maturing on September 1, 20__, September 1, 20__ and September 1, 20__ are subject to mandatory sinking fund redemption, in part, on September 1, 20__, September 1, 20__ and September 1, 20__, respectively and on each September 1 thereafter to maturity, by lot, at a redemption price equal to
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15 the principal amount thereof to be redeemed, together with accrued interest to the date of redemption, without premium, and from sinking payments as follows:
Bonds Maturing on September 1,
Redemption Date
(September 1) Sinking Payment
Bonds Maturing on September 1,
Redemption Date
(September 1) Sinking Payment
Bonds Maturing on September 1,
Redemption Date
(September 1) Sinking Payments
The amounts in the foregoing schedules shall be reduced by the City pro rata among redemption dates, in order to maintain substantially level Debt Service, as a result of any prior or partial redemption of the Bonds pursuant to subsection (A) or subsection (B) above. The City shall provide the Fiscal Agent with a revised sinking fund schedule. (D) Purchase of Bonds. In lieu of payment at maturity or redemption under this Section 2.03, moneys in the Bond Fund may be used and withdrawn by the Fiscal Agent for purchase of Outstanding Bonds, upon the filing with the Fiscal Agent of an Officer’s Certificate requesting such purchase, at public or private sale as and when, and at such prices (including brokerage and other charges) as such Officer’s Certificate may provide, but in no event may Bonds be purchased at a price in excess of the principal amount thereof, plus interest accrued to the date of purchase. In such event, the City shall, as may be appropriate, provide to the Fiscal Agent a revised maturity schedule or a revised mandatory sinking fund schedule for the Bonds, or both. (E) Notice to Fiscal Agent. An Authorized Officer shall give the Fiscal Agent written notice of the City’s intention to redeem Bonds not less than forty-five (45) days prior to the applicable redemption date specifying the principal amounts and maturities of the Bonds to be redeemed. The provisions of this subsection (E) shall not apply to the redemption of the Bonds pursuant to Section 2.03(C) hereof.
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16 (F) Redemption Procedure by Fiscal Agent. The Fiscal Agent shall cause notice of any redemption to be mailed by first class mail, postage prepaid, at least thirty (30) days but not more than sixty (60) days prior to the date fixed for redemption, or electronically submitted, to the Securities Depositories and to one or more Information Services selected by an Authorized Officer, and to the respective registered Owners of any Bonds designated for redemption, at their addresses appearing on the Bond registration books maintained by the Fiscal Agent at its Principal Office; but such mailing shall not be a condition precedent to such redemption and failure to mail or to receive any such notice, or any defect therein, shall not affect the validity of the proceedings for the redemption of such Bonds. The Fiscal Agent shall also cause notice of any redemption to b e mailed, in such manner and within such time, to the Underwriter.
Such notice shall state the date of such notice, the date of issue of the Bonds, the place or places of redemption, the redemption date, the redemption price and, if less than all of the then Outstanding Bonds are to be called for redemption, shall designate the CUSIP numbers and Bond numbers of the Bonds to be redeemed, by giving the individual CUSIP number and Bond number of each Bond to be redeemed, or shall state that all Bonds between two stated Bond numbers, both inclusive, are to be redeemed or that all of the Bonds of one or more maturities have been called for redemption, shall state as to any Bond called for redemption in part the portion of the principal of the Bond to be redeemed, shall require that such Bonds be then surrendered at the Principal Office of the Fiscal Agent for redemption at the said redemption price, and shall state that further interest on such Bonds will not accrue from and after the redemption date. The cost of the mailing and publication of any such redemption notice shall be paid by the District.
Any notice of optional redemption of the Bonds delivered in accordance with this Section
2.03 may be conditional and if any condition stated in the notice of redemption shall not have been satisfied on or prior to the redemption date, said notice shall be of no force and effect and the District shall not be required to redeem such Bonds and the redemption shall not be made and the Fiscal Agent shall within a reasonable time thereafter give notice, to the persons and in the manner in which the notice of redemption was given, that such condition or conditions were not met and that the redemption was cancelled.
Upon the payment of the redemption price of Bonds being redeemed, each check or other transfer of funds issued for such purpose shall, to the extent practicable, bear the CUSIP number identifying, by issue and maturity, the Bonds being redeemed with the proceeds of such check or other transfer.
In the event of a mandatory redemption pursuant to Section 2.03(B) hereof, the City shall transfer or cause to be transferred to the Fiscal Agent for deposit in the Bond Fund moneys in an amount equal to the redemption price of the Bonds being redeemed on or before the fifteenth (15th) day of the month preceding the Interest Payment Date upon which such Bonds are to be redeemed.
If less than all the Bonds Outstanding are to be redeemed, 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, in selecting portions of such Bonds for redemption, the Fiscal Agent shall treat each such Bond as representing the number of Bonds of $5,000 denomination which is obtained by dividing the principal amount of such Bond to be redeemed in part by $5,000.
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17 Whenever provision is made in this Agreement for the redemption of less than all of the Bonds of a maturity or any given portion thereof, the Fiscal Agent shall select the Bonds of such maturity to be redeemed, from all Bonds of such maturity or such given portion thereof not previously called for redemption, by lot within a maturity in any manner which the Fiscal Agent in its sole discretion shall deem appropriate.
Upon surrender of Bonds redeemed in part only, the City shall execute and the Fiscal Agent shall authenticate and deliver to the Owner, at the expense of the District, a new Bond or Bonds, of the same maturity, of authorized denominations in aggregate principal amount equal to the unredeemed portion of the Bond or Bonds.
(G) Effect of Redemption. From and after the date fixed for redemption, if funds available for the payment of the redemption prices of the Bonds called for redemption shall have been deposited in the Bond Fund, such Bonds shall cease to be entitled to any benefit under this Agreement other than the right to receive payment of the redemption price, and interest shall cease to accrue on the Bonds to be redeemed on the redemption date specified in the notice of redemption.
All Bonds redeemed and purchased by the Fiscal Agent pursuant to this Section 2.03 shall be canceled by the Fiscal Agent.
Section 2.04. Form of Bonds. The Bonds, including the Fiscal Agent’s certificate of authentication and the assignment to appear thereon, shall be substantially in the form set forth in Exhibit A attached hereto and by this reference incorporated herein, with necessary or appropriate variations, omissions and insertions as permitted or required by this Agreement.
Section 2.05. Execution of Bonds. The Bonds shall be executed on behalf of the District by the facsimile signatures of the Mayor and City Clerk of the City, who are in office on the date of this Agreement or at any time thereafter. If any officer whose signature appears on any Bond ceases to be such officer before delivery of the Bond to the Owner, such signature shall nevertheless be as effective as if the officer had remained in office until the delivery of the Bond to the Owner. Any Bond may be signed and attested on behalf of the District by such persons as at the actual date of the execution of such Bond shall be the proper officers of the City although at the nominal date of such Bond any such person shall not have been such officer of the City.
Only such Bonds as shall bear thereon a certificate of authentication in substantially the form set forth in Exhibit A hereto, as appropriate, manually executed and dated by the Fiscal Agent, shall be valid or obligatory for any purpose or entitled to the benefits of this Agreement, and such certificate of authentication of the Fiscal Agent shall be conclusive evidence that such Bonds have been duly authenticated, registered and delivered hereunder, and are entitled to the benefits of this Agreement.
Section 2.06. Transfer of Bonds. Any Bond may, in accordance with its terms, be transferred, upon the books required to be kept pursuant to the provisions of Section 2.08 hereof, by the person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Bond for cancellation at the Principal Office of the Fiscal Agent, accompanied by delivery of a duly executed written instrument of transfer in a form acceptable to the Fiscal
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18 Agent. The cost for any services rendered or any expenses incurred by the Fiscal Agent in connection with any such transfer shall be paid by the District. The Fiscal Agent shall collect from the Owner requesting transfer of a Bond any tax or other governmental charge required to be paid with respect to such transfer.
Whenever any Bond or Bonds shall be surrendered for transfer, the City shall execute and the Fiscal Agent shall authenticate and deliver a new Bond or Bonds of like aggregate principal amount.
No transfers of Bonds shall be required to be made (i) during the fifteen (15) days preceding the date established by the Fiscal Agent for selection of Bonds for redemption, or (ii) with respect to Bonds which have been selected for redemption.
Section 2.07. Exchange of Bonds. Bonds may be exchanged at the Principal Office of the Fiscal Agent only for a like aggregate principal amount of Bonds of authorized denominations and of the same maturity and interest rate. The cost for any services rendered or any expense incurred by the Fiscal Agent in connection with any such exchange shall be paid by the District. The Fiscal Agent shall collect from the Owner requesting exchange of a Bond any tax or other governmental charge required to be paid with respect to such exchange.
No exchanges of Bonds shall be required to be made (i) during the fifteen (15) days preceding the date established by the Fiscal Agent for selection of Bonds for redemption, or (ii) with respect to Bonds which have been selected for redemption.
Section 2.08. Bond Register. The Fiscal Agent shall keep, or cause to be kept, at its Principal Office sufficient books for the registration and transfer of the Bonds which books shall show the series, number, CUSIP identification number, date of issuance, amount, rate of interest and Owner of each Bond and shall at all times be open to inspection by the City during regular business hours upon reasonable notice; 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 registered or transferred, on said books, the ownership of the Bonds as hereinbefore provided.
Section 2.09. Temporary Bonds. The Bonds may be initially issued in temporary form exchangeable for definitive Bonds when ready for delivery. The temporary Bonds may be printed, lithographed or typewritten, shall be of such denominations as may be determined by the City, and may contain such reference to any of the provisions of this Agreement as may be appropriate.
Every temporary Bond shall be executed by the City upon the same conditions and in substantially the same manner as the definitive Bonds. If the City issues temporary Bonds it will execute and furnish definitive Bonds without delay and thereupon the temporary Bonds shall be surrendered, for cancellation, in exchange for the definitive Bonds at the Principal Office of the Fiscal Agent or at such other location as the Fiscal Agent shall designate, and the Fiscal Agent shall authenticate and deliver in exchange for such temporary Bonds an equal aggregate principal amount of definitive Bonds of authorized denominations. Until so exchanged, the temporary Bonds shall be entitled to the same benefits under this Agreement as definitive Bonds authenticated and delivered hereunder.
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19 Section 2.10. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond shall become mutilated, the City, at the expense of the Owner of said Bond, shall execute, and the Fiscal Agent shall authenticate and deliver, a replacement Bond of like tenor and principal amount 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 canceled and destroyed by the Fiscal Agent. 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 be satisfactory to it and indemnity satisfactory to it shall be given, the City, at the expense of the Owner, shall execute, and the Fiscal Agent shall authenticate and deliver, a replacement Bond of like tenor and principal amount in lieu of and in substitution for the Bond so lost, destroyed or stolen. The City or Fiscal Agent may require payment of a sum not exceeding the actual cost of preparing each replacement Bond delivered under this Section 2.10 and of the expenses which may be incurred by the City and the Fiscal Agent for the preparation, execution, authentication and delivery thereof.
Any Bond delivered under the provisions of this Section 2.10 in replacement of any Bond alleged to be lost, destroyed or stolen shall constitute an original additional contractual obligation of the District whether or not the Bond so alleged to be lost, destroyed or stolen is at any time enforceable by anyone, and shall be equally and proportionately entitled to the benefits of this Agreement with all other Bonds issued pursuant to this Agreement.
Section 2.11. Special Obligation. All obligations of the City and the District under this Agreement and the Bonds shall be special obligations of the City and the District, payable solely from the Special Tax Revenues and the funds pledged therefor pursuant hereto. Neither the faith and credit nor the taxing power of the City, the District (except to the limited extent set forth herein) or the State of California or any political subdivision thereof is pledged to the payment of the Bonds.
Section 2.12. Book-Entry. The Bonds shall be initially issued in the form of a single, fully registered Bond for each maturity (which may be typewritten). Upon initial issuance, the ownership of such Bonds shall be registered in the name of the Nominee identified below as nominee of The Depository Trust Company, New York, New York and its successors and assigns (the “Depository” or “DTC”). Except as hereinafter provided, all of the Outstanding Bonds shall be registered in the name of the nominee of the Depository, which may be the Depository, as determined from time to time pursuant to this Section 2.12 (the “Nominee”).
With respect to the Bonds registered in the name of the Nominee, neither the City nor the Fiscal Agent shall have any responsibility or obligation to any broker-dealers, banks and other financial institutions from time to time for which the Depository holds Bonds as securities depository (the “Participant”) or to any person on behalf of which such a Participant holds an interest in the Bonds. Without limiting the immediately preceding sentence, neither the City nor the Fiscal Agent shall have any responsibility, liability or obligation whatsoever with respect to (i) the accuracy of the records of the Depository, the Nominee, or any Part icipant with respect to any ownership interest in the Bonds, (ii) the delivery to any Participant or any other person, other than an Owner of a Bond as shown in the registration books maintained by the Fiscal Agent pursuant to Section 2.08 hereof (the “Registration Books”), of any notice with respect to the Bonds, including any notice of redemption, (iii) the selection by the Depository and its Participants of the beneficial interests in the Bonds to be redeemed in the event the City redeems the Bonds in part, or (iv) the payment to any Participant or any other person, other than an Owner of a Bond as shown
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20 in the Registration Books, of any amount with respect to principal of or interest on the Bonds. The City and the Fiscal Agent may treat and consider conclusively the person in whose name each Bond is registered as the holder and absolute Owner of such Bond for the purpose of payment of principal and interest with respect to such Bond, for the purpose of giving notices of redemption, if applicable, and other matters with respect to such Bond, for the purpose of registering transfers with respect to such Bond, and for all other purposes whatsoever. The City shall pay all principal of and interest on the Bonds only to or upon the order of the respective Owner of a Bond, as shown in the Registration Books, or his or her attorney duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge the City’s obligations with respect to payment of principal of and interest on the Bonds to the extent of the sum or sums so paid. No person other than an Owner of a Bond, as shown in the Registration Books, shall receive a Bond evidencing the obligation of the City to make payments of principal and interest pursuant to this Agreement. Upon delivery by the Depository to the Owners of the Bond, and the City of written notice to the effect that the Depository has determined to substitute a new nominee in place of the Nominee, and subject to the provisions herein with respect to Record Dates, the word Nominee in this Agreement shall refer to such nominee of the Depository.
In the event (i) the Depository determines not to continue to act as securities depository for the Bonds, or (ii) the Depository shall no longer so act and gives notice to the City of such determination, then the City will discontinue the book-entry system with the Depository. If the City determines to replace the Depository with another qualified securities depository, the City shall prepare or direct the preparation of a new, single, separate, fully registered Bond, per maturity, registered in the name of such successor or substitute qualified securities depository or its nominee. If the City fails to identify another qualified securities depository to replace the Depository, then the Bonds shall no longer be restricted to being registered in the Registration Books in the name of the Nominee, but shall be registered in whatever name or names Owners of the Bonds transferring or exchanging Bonds shall designate, in accordance with the provisions of Sections 2.06 and 2.07 hereof, and the City shall prepare and deliver Bonds to the Fiscal Agent for authentication and delivery to the Owners thereof for such purpose.
In the event of a reduction in aggregate principal amount of Bonds Outstanding or an advance refunding of part of the Bonds Outstanding, the Depository, in its discretion, (a) may request the City to prepare and issue a new Bond or (b) may make an appropriate notation on a Bond indicating the date and amounts of such reduction in principal, but in such event the Registration Books maintained by the Fiscal shall be conclusive as to what amounts are Outstanding with respect to the Bond, except in the case of final maturity, in which case the Bond must be presented to the Fiscal Agent prior to payment.
Notwithstanding any other provision of this Agreement to the contrary, so long as any Bond is registered in the name of the Nominee, all payments of principal and interest with respect to such Bond and all notices with respect to such Bond shall be made and given, respectively, as provided in the Representation Letter or as otherwise instructed by the Depository and acceptable to the City.
The initial Nominee shall be Cede & Co., as Nominee of DTC.
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21 Section 2.13. Parity Bonds. The District and the City covenant that except as provided below they will not issue any other obligations payable, as to principal or interest, from the Special Tax Revenues which have, or purport to have, any lien upon the Special Tax Revenues superior to or on a parity with the lien of the Bonds. Nothing in this Agreement shall, however, preclude, subject to the limitations contained hereunder, 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 Act as the same now exists or as hereafter amended, or under any other law of the State of California, which shall be payable from and have a lien upon the Special Tax Revenues on a parity with the Bonds to be outstanding following the issuance of such refunding bonds.
ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS;
IMPROVEMENT FUND; SPECIAL TAX FUND; ADMINISTRATIVE EXPENSE FUND;
COSTS OF ISSUANCE FUND
Section 3.01. Issuance and Delivery of Bonds. At any time after the execution of this Agreement, the City may issue the Bonds for the District in the aggregate principal amounts set forth in Section 2.01 hereof and deliver the Bonds to the Original Purchaser. The Authorized Officers of the City are hereby authorized and directed to deliver any and all documents and instruments necessary to cause the issuance of the Bonds in accordance with the provisions of the Act, the Resolution and this Agreement, to authorize the payment of Costs of Issuance by the Fiscal Agent from the proceeds of the Bonds, and to do and cause to be done any and all acts and things necessary or convenient for delivery of the Bonds to the Original Purchaser.
Section 3.02. Application of Proceeds of Sale of Bonds.
The Proceeds of the sale of the Bonds to the Original Purchaser shall be paid to the Fiscal Agent, who shall forthwith set aside, pay over and deposit such Proceeds on the Closing Date as follows:
(A) Deposit in the Reserve Fund the amount of $____________, which constitutes the Reserve Requirement on the Closing Date; (B) Deposit in the Improvement Fund the amount of $____________; (C) Deposit in the Costs of Issuance Fund the amount of $____________; and (D) Deposit in the Capitalized Interest Sub-Account of the Interest Account of the Bond Fund of $______.
Section 3.03. Improvement Fund.
(A) Establishment of Improvement Fund. There is hereby established, as a separate fund to be held by the Fiscal Agent, the “Community Facilities District No. 2022-1 of the City of Upland 2023 Special Tax Bonds Improvement Fund.” Moneys in the Improvement Fund shall be held by the Fiscal Agent for the benefit of the City, and shall be disbursed, except as
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22 otherwise provided in subsection (D) of this Section 3.03, for the payment or reimbursement of the costs of the design, acquisition and construction of the Project. (B) Procedure for Disbursement. Disbursements from the Improvement Fund shall be made by the Fiscal Agent upon receipt of an Officer’s Certificate which shall:
(i) set forth the amount required to be disbursed, the purpose for which the disbursement is to be made and the person to which the disbursement is to be paid along with payment instructions; and
(ii) certify that no portion of the amount then being requested to be disbursed was set forth in any Officer’s Certificate previously filed with the Fiscal Agent requesting disbursement, and that the amount being requested is an appropriate disbursement from the Improvement Fund.
(C) Investment. Moneys in the Improvement Fund shall be invested and deposited in accordance with Section 6.01 hereof. Investment Earnings with respect to the Improvement Fund shall be retained by the Fiscal Agent in such fund to be used for the purposes of such fund.
(D) Closing of Fund. Upon the filing of an Officer’s Certificate stating that the construction and acquisition of the Project has been completed and that all costs of the Project have been paid or are not required to be paid from the Improvement Fund, and further stating that moneys on deposit in the Improvement Fund are not needed to complete the Project or reimburse the cost thereof, the Fiscal Agent shall transfer the amount, if any, remaining in the Improvement Fund to the Principal Account of the Bond Fund to be used to pay the principal of the Bonds. (E) Officer’s Certificate. Upon receipt of an Officer’s Certificate delivered pursuant to this Section 3.03, the Fiscal Agent is authorized to act thereon without further inquiry and shall not be responsible for the accuracy of the statements made in such Officer’s Certificate or the application of the funds disbursed pursuant thereto, and shall be absolutely protected and incur no liability in relying on such Officer’s Certificate.
Section 3.04. Special Tax Fund.
(A) Establishment of Special Tax Fund. There is hereby established, as a separate fund to be held by the Fiscal Agent, the “Community Facilities District No. 2022-1 of the City of Upland 2023 Special Tax Bonds Special Tax Fund” to the credit of which the City shall deposit, as hereinafter provided, not later than ten (10) Business Days after receipt, all Special Tax Revenues received by the City. Moneys in the Special Tax Fund, and all accounts therein, shall be held in trust by the Fiscal Agent for the benefit of the City and the Owners of the Bonds, shall be disbursed as provided below and, pending disbursement, shall be subject to a lien in favor of the Owners of the Bonds.
Notwithstanding the foregoing, any amounts received by the City which constitute Special Tax Prepayments shall be transferred by the City not later than ten (10) Business Days after receipt to the Fiscal Agent for deposit by the Fiscal Agent in the Special Tax Prepayments Account established pursuant to Section 4.02(A) hereof.
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23 (B) Disbursements. As soon as practicable after the receipt from the City of any Special Tax Revenues, but no later than ten (10) Business Days after such receipt, the Fiscal Agent shall withdraw from the Special Tax Fund and deposit in the Administrative Expense Fund an amount which is estimated by the City, in a written communication from an Authorized Officer delivered to the Fiscal Agent (upon which the Fiscal Agent may conclusively rely) to be sufficient, together with the amount then on deposit in the Administrative Expense Fund, to pay the Administrative Expenses during the current Fiscal Year (as determined by the City); provided, however, that the amount deposited in the Administrative Expense Fund prior to the deposits to the Interest Account and the Principal Account of the Bond Fund, as provided below, will not exceed $25,000 for each Fiscal Year. Thereafter, the Fiscal Agent shall deposit in the Interest Account and the Principal Account of the Bond Fund, as provided in Section 4.02(B). If, after such deposits are made to the Administrative Expense Fund, the Interest Account and the Principal Account, there are funds remaining on deposit in the Special Tax Fund, the City shall instruct the Fiscal Agent by an Officer’s Certificate (upon which the Fiscal Agent may conclusively rely) to transfer such amount from the Special Tax Fund to and deposit it in the Reserve Fund to the extent that the amount on deposit therein is less than the Reserve Requirement.
On September 2 of each year the amount, if any, on deposit in the Special Tax Fund, together with the amount then on deposit in the Bond Fund (including the Principal Account therein but not including, however, the Interest Account or the Special Tax Prepayments Account), as determined by the City, shall not exceed the greater of (i) one year’s earnings on such amounts, or (ii) one-twelfth (1/12th) of Annual Debt Service for the then current Bond Year. If on September 2 of any year the amount on deposit in the Special Tax Fund, together with the amount then on deposit in the Bond Fund (other than such excluded amounts), exceeds the maximum amount allowable pursuant to the preceding sentence, as determined by the City and communicated in writing by an Authorized Officer to the Fiscal Agent (upon which the Fiscal Agent may conclusively rely), moneys shall be transferred from the Special Tax Fund to the Administrative Expense Fund to pay any additional Administrative Expenses during the then current Fiscal Year, as directed in writing by the City. The Fiscal Agent shall have no obligation to monitor the City’s obligations as set forth in the foregoing sentence. Subject to the requirement described above, on each September 2, commencing September 2, 20__ any funds remaining in the Special Tax Fund which are not needed to pay principal of or interest on the Bonds then due and payable may be retained in the Special Tax Fund to reduce the Special Taxes levied in future years (subject to the limitations set forth in the Rate and Method of Apportionment). (C) Investment. Moneys in the Special Tax Fund shall be invested and deposited in accordance with Section 6.01 hereof. Investment Earnings shall be retained in the Special Tax Fund to be used for the purposes of such fund.
Section 3.05. Administrative Expense Fund.
(A) Establishment of Administrative Expense Fund. There is hereby established, as a separate account to be held by the Fiscal Agent, the “Community Facilities District No. 2022-1 of the City of Upland 2023 Special Tax Bonds Administrative Expense Fund” to the credit of which deposits shall be made as required by Section 3.04(B) hereof. Moneys in the Administrative Expense Fund shall be held in trust by the Fiscal Agent for the benefit of the City, and shall be disbursed as provided below.
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24 (B) Disbursement. Amounts in the Administrative Expense Fund shall be withdrawn by the Fiscal Agent and paid to the City or its order upon receipt by the Fiscal Agent of an Officer’s Certificate stating the amount to be withdrawn, that such amount is to be used to pay an Administrative Expense (or a Cost of Issuance) and the nature of such Administrative Expense (or Cost of Issuance).
(C) Investment. Subject to the provisions of subsection (B) above, moneys in the Administrative Expense Fund shall be invested and deposited in accordance with Section 6.01 hereof. Investment Earnings shall be retained by the Fiscal Agent in the Administrative Expense Fund to be used for the purposes of such fund.
Section 3.06. Costs of Issuance Fund.
(A) Establishment of Costs of Issuance Fund. There is hereby established, as a separate account to be held by the Fiscal Agent, the “Community Facilities District No. 2022-1 of the City of Upland 2023 Special Tax Bonds Costs of Issuance Fund” to the credit of which a deposit shall be made as required by paragraph (B) of Section 3.02 hereof. Moneys in the Costs of Issuance Fund shall be held in trust by the Fiscal Agent and shall be disbursed as provided in subsection (B) of this Section for the payment or reimbursement of Costs of Issuance. (B) Disbursement. Amounts in the Costs of Issuance Fund shall be disbursed to pay Costs of Issuance, as set forth in a requisition containing respective amounts to be pai d to the designated payees, signed by an Authorized Officer and delivered to the Fiscal Agent concurrently with the delivery of the Bonds. The Fiscal Agent shall pay all Costs of Issuance upon receipt of an invoice from any such payee which requests payment in an amount which is less than or equal to the amount set forth with respect to such payee in such requisition, or upon receipt of an Officer’s Certificate requesting payment of a Cost of Issuance not listed on the initial requisition delivered to the Fiscal Agent on the Closing Date. Each such invoice or Officer’s Certificate shall be sufficient evidence to the Fiscal Agent of the facts stated therein and the Fiscal Agent shall have no duty to confirm the accuracy of such facts. The Fiscal Agent shall maintain the Costs of Issuance Fund for a period of ninety (90) days from the Closing Date and shall then transfer and deposit any moneys remaining therein, including any Investment Earnings thereon, in the Improvement Fund.
(C) Investment. Moneys in the Costs of Issuance Fund shall be invested and deposited in accordance with Section 6.01 hereof. Investment Earnings shall be retained by the Fiscal Agent in the Costs of Issuance Fund to be used for the purposes of such fund.
ARTICLE IV
SPECIAL TAX REVENUES; BOND FUND; RESERVE FUND
Section 4.01. Pledge of Special Tax Revenues.
The Bonds shall be secured by a pledge of and lien upon (which shall be effected in the manner and to the extent herein provided) all of the Special Tax Revenues (except the amount which will be deposited in the Administrative Expense Fund for each Fiscal Year pursuant to Section 3.04(B) hereof) and all moneys deposited in the Bond Fund and all moneys deposited in the Reserve Fund. The Bonds shall be equally secured by a pledge of and lien upon the Special
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25 Tax Revenues and such moneys without priority for number, date of Bond, date of execution or date of delivery; and the payment of the interest on and principal of the Bonds and any premium upon the redemption of any thereof shall be and is secured by a pledge of and lien upon the Special Tax Revenues and such moneys. The Special Tax Revenues and all moneys deposited into such accounts are hereby dedicated in their entirety to the payment of the principal of the Bonds, and interest and any premium on, the Bonds, as provided herein and in the Act, until all of the Bonds have been paid and retired or until moneys or Defeasance Securities have been set aside irrevocably for that purpose in accordance with Section 10.03 hereof.
Section 4.02. Bond Fund.
(A) Deposits. There is hereby established, as a separate fund to be held by the Fiscal Agent, the “Community Facilities District No. 2022-1 of the City of Upland 2023 Special Tax Bonds Bond Fund” to the credit of which deposits shall be made as required by Section 3.04(B) and Section 4.03(C) and (D) hereof and any other provision of this Agreement or the Act. There are hereby established in the Bond Fund, as separate accounts to be held by the Fiscal Agent, the “Interest Account” and within the Interest Account, the “Capitalized Interest Sub-Account,” and the “Principal Account.” There is hereby also established in the Bond Fund, as a separate account to be held by the Fiscal Agent, the “Special Tax Prepayments Account” to the credit of which deposits shall be made as required by Section 3.04(A) hereof. Moneys in the Bond Fund shall be held in trust by the Fiscal Agent for the benefit of the Owners of the Bonds, shall be disbursed for the payment of the principal of, and interest and any premium on, the Bonds as provided below, and, pending such disbursement, shall be subject to a lien in favor of the Owners of the Bonds.
(B) Disbursements. On or before each Interest Payment Date, the Fiscal Agent shall transfer from the Special Tax Fund and deposit into the following respective accounts in the Bond Fund, the following amounts in the following order of priority, the requirements of each such account (including the making up of any deficiencies in any such account resulting from lack of Special Tax Revenues sufficient to make any earlier required deposit) at the time of deposit to be satisfied before any transfer is made to any account subsequent in priority:
(1) Interest Account. On or before each Interest Payment Date, the Fiscal Agent shall deposit in the Interest Account an amount required to cause the aggregate amount on deposit in the Interest Account to equal the amount of interest becoming due and payable on the Bonds on such date. No deposit need be made into the Interest Account on any Interest Payment Date if the amount on deposit therein is at least equal to the interest becoming due and payable on the Bonds on such date. All moneys in the Interest Account , including the Capitalized Interest Sub-Account, shall be used and withdrawn by the Fiscal Agent solely for the purpose of paying the interest on the Bonds as it shall become due and payable (including accrued interest on any Bonds redeemed prior to maturity). All funds in the Capitalized Interest Sub- Account shall be used and withdrawn to pay interest on the Bonds prior to using any other funds on deposit in the Interest Account for such purpose. All amounts on deposit in the Interest Account on the first day of any Bond Year, to the extent not required to pay any interest then having become due and payable on the Outstanding Bonds shall be withdrawn therefrom by the Fiscal Agent and transferred to the Special Tax Fund.
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26 (2) Principal Account. On or before each Interest Payment Date which occurs on September 1, the Fiscal Agent shall deposit in the Principal Account an amount required to cause the aggregate amount on deposit in the Principal Account to equal the principal amount of the Bonds becoming due and payable on such date pursuant to Section 2.02 hereof, or the redemption price of the Bonds (consisting of the principal amount thereof and any applicable redemption premium) required to be redeemed on such date pursuant to any of the provisions of Section 2.03 hereof. All moneys in the Principal Account shall be used and withdrawn by the Fiscal Agent solely for the purpose of (i) paying the principal of the Bonds at the maturity thereof, or (ii) paying the principal of and premium (if any) on any Bonds upon the redemption thereof pursuant to Section 2.03 hereof. All amounts on deposit in the Principal Account on the first day of any Bond Year, to the extent not required to pay the principal of any Outstanding Bonds then having become due and payable, shall be withdrawn therefrom by the Fiscal Agent and transferred to the Special Tax Fund.
In the event that moneys on deposit in the Special Tax Fund will be insufficient on any Interest Payment Date for the Fiscal Agent to deposit the required amounts in the Interest Account and the Principal Account, as provided above, the Fiscal Agent shall deposit the available funds first to the Interest Account up to the full amount required to cause the aggregate amount on deposit therein to equal the amount of interest becoming due and payable on the Bonds on the Interest Payment Date, and shall then deposit the remaining available funds in the Special Tax Fund to the Principal Account up to the full amount required to cause the aggregate amount on deposit therein to equal the amount, if any, of principal becoming due and payable on the Bonds on the Interest Payment Date. If, after making such deposits to the Interest Account and the Principal Account, and after transferring moneys from the Reserve Fund to such accounts, as provided in Section
4.03(B) hereof, the amount on deposit in the Principal Account is insufficient to pay the full amount of the principal of each of the Bonds which is due or is to be redeemed on the Interest Payment Date, the Fiscal Agent shall make a prorated payment of the principal of each of such Bonds as specified in an Officer’s Certificate provided to the Fiscal Agent. (C) Special Tax Prepayments Account Deposits and Disbursements. Within ten (10) Business Days after receiving a Special Tax Prepayment the City shall deliver the amount thereof to the Fiscal Agent, together with an Officer’s Certificate notifying the Fiscal Agent that the amount being delivered is a Special Tax Prepayment which is to be deposited in the Special Tax Prepayments Account. Upon receiving a Special Tax Prepayment from the City and such an Officer’s Certificate, the Fiscal Agent shall deposit the amount of the Special Tax Prepayment in the Special Tax Prepayments Account. Such an Officer’s Certificate may be combined with the Officer’s Certificate which the City is required to deliver to the Fiscal Agent pursuant to Section
4.03(F) hereof. Moneys on deposit in the Special Tax Prepayments Account shall be transferred by the Fiscal Agent to the Principal Account on the next date for which notice of the redemption of the Bonds can timely be given under Section 2.03(F) hereof and shall be used to redeem the Bonds on the redemption date selected in accordance with Section 2.03(B) hereof. Pending such transfer, the moneys on deposit in the Special Tax Prepayments Account shall be invested in Defeasance Securities, in accordance with Section 6.01 hereof, at such yield as, in the opinion of Bond Counsel, is necessary to preserve the exclusion of interest on the Bonds from gross income for purposes of federal income taxation. Investment earnings on the moneys on deposit in the Special Tax Prepayments Account shall be retained in such account. The City shall provide
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27 direction in writing to the Fiscal Agent which shall include an exhibit of the Bond Counsel’s determination.
(D) Investment. Except as provided in subsection (C) above, moneys in the Bond Fund, including all accounts therein, shall be invested and deposited in accordance with Section 6.01 hereof. Investment Earnings shall be retained in the Bond Fund, except to the extent they are required to be deposited by the Fiscal Agent in the Rebate Fund in accordance with Section 6.02 hereof.
Amounts in the Bond Fund, including all accounts therein, shall also be withdrawn and deposited in the Rebate Fund as provided in Section 6.02 hereof.
Section 4.03. Reserve Fund.
(A) Establishment of Fund. There is hereby established, as a separate fund to be held by the Fiscal Agent, the “Community Facilities District No. 2022-1 of the City of Upland 2023 Special Tax Bonds Reserve Fund” to the credit of which a deposit shall be made as required by paragraph (A) of Section 3.02 hereof, which deposit is equal to the Reserve Requirement, and to which deposits shall be made as provided in Section 3.04(B) hereof. Moneys in the Reserve Fund shall be held in trust by the Fiscal Agent for the benefit of the Owners of the Bonds as a reserve for the payment of the principal of and interest and any premium on the Bonds and shall be subject to a lien in favor of the Owners of the Bonds. (B) Use of Fund. Except as otherwise provided in this Section, (i) all amounts on deposit in the Reserve Fund shall be used and withdrawn by the Fiscal Agent solely for the purpose of making transfers to the Interest Account and the Principal Account of the Bond Fund in the event of any deficiency at any time in either of such accounts of the amount then required for payment of the principal of and interest and any premium on the Bonds or, in accordance with the provisions of subsection (E) of this Section 4.03, for the purpose of redeeming Bonds. (C) Transfer Due to Deficiency in Interest and Principal Accounts. Whenever transfer is made from the Reserve Fund to the Interest Account or the Principal Account due to a deficiency in either such account, the Fiscal Agent shall provide written notice thereof to the City. (D) Transfer of Excess of Reserve Requirement. Whenever, on any September 2, the amount in the Reserve Fund, less Investment Earnings resulting from the investment of the funds therein which pursuant to Section 6.02 hereof must be rebated to the United States, as previously directed by the City, exceeds the Reserve Requirement, as calculated by the City, the Fiscal Agent shall provide written notice to the City of the amount of the excess. Upon receiving written direction from an Authorized Officer (upon which the Fiscal Agent may conclusively rely), the Fiscal Agent shall, subject to the requirements of Section 6.02 hereof, transfer an amount from the Reserve Fund which will reduce the amount on deposit therein to an amount equal to the Reserve Requirement to the Interest Account and the Principal Account, in the priority specified in Section 4.02(B)(1) and (2) hereof, to be used for the payment of the interest on and principal of the Bonds on the next succeeding Interest Payment Date in accordance with Section 4.02 hereof.
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28 (E) Transfer When Balance Exceeds Outstanding Bonds. Whenever the balance in the Reserve Fund is equal to or exceeds the amount required to redeem or pay the Outstanding Bonds, including interest accrued to the date of payment or redemption and premium, if any, due upon redemption, the Fiscal Agent shall, upon receiving written direction from an Authorized Officer (upon which the Fiscal Agent may conclusively rely), transfer the amount in the Reserve Fund to the Interest Account and the Principal Account, in the priority specified in Section
4.02(B)(1) and (2) hereof, to be applied, on the next succeeding Interest Payment Date, to the payment and redemption, in accordance with Section 2.03 and Section 4.02 hereof of all of the Outstanding Bonds. In the event that the amount available to be so transferred from the Reserve Fund to the Interest Account and the Principal Account exceeds the amount required to pay and redeem the Outstanding Bonds, the excess shall be transferred to the City to be used for any lawful purpose of the City.
(F) Transfers on Payment of Special Tax Obligations. Whenever the City receives a Special Tax Prepayment, the City shall by an Officer ’s Certificate notify the Fiscal Agent thereof and of the amount by which the Reserve Fund is to be reduced and which is transferrable from the Reserve Fund to the Principal Account of the Bond Fund, which amount shall be specified in the Officer’s Certificate. Each such Officer’s Certificate shall be accompanied by a report of an Independent Financial Consultant verifying the accuracy of the calculation of the amount to be transferred from the Reserve Fund to the Principal Account (“Verification”). Upon receipt of each such Officer’s Certificate and Verification, upon which the Fiscal Agent may conclusively rely, the Fiscal Agent shall at such time as the amount of such Special Tax Prepayment will be used to redeem Bonds, as provided in Section 4.02(B)(2) hereof, transfer the amount specified in such Officer’s Certificate to the Principal Account and use such amount, together with the amount of such Special Tax Prepayment, to redeem Bonds, as provided in Section
4.02(B)(2) hereof. Notwithstanding the preceding provisions of this subsection, no amount shall be transferred from the Reserve Fund to the Principal Account if the amount on deposit in the Reserve Fund is, or as a result of such transfer would be, less than the Reserve Requirement following such redemption.
(G) Investment. Moneys on deposit in the Reserve Fund shall be invested in Permitted Investments which do not have maturities extending beyond five (5) years; provided, however, if the Reserve Fund is invested in an investment agreement (as defined in clause (vii) of the definition of Permitted Investments in Section 1.03 hereof) or a repurchase agreement (as defined in clause (xi) of such definition) such agreement may have a maturity longer than five (5) years if the Fiscal Agent is authorized by the provisions of such agreement to draw the full amount thereof, without penalty, if required for the purposes of the Reserve Fund. The City shall cause the Permitted Investments, other than such investment agreements, in which moneys on deposit in the Reserve Fund are invested to be valued at fair market value and at least once in each Fiscal Year. The Fiscal Agent’s pricing service, as reflected on its monthly statements, satisfies fair market value.
ARTICLE V
OTHER COVENANTS OF THE CITY
Section 5.01. Punctual Payment. The City will punctually pay or cause to be paid the principal of and interest and any premium on the Bonds when and as due in strict conformity with
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29 the terms of this Agreement and any Supplemental Agreement to the extent that the Special Tax Revenues are available therefor, and it will faithfully observe and perform all of the conditions, covenants and requirements of this Agreement and all Supplemental Agreements and of the Bonds.
Section 5.02. Special Obligation. The Bonds are special obligations of the City and the District and are payable solely from and secured solely by the Special Tax Revenues and the amounts in the Bond Fund, the Reserve Fund and the Special Tax Fund.
Section 5.03. Extension of Time for Payment. In order to prevent any accumulation of claims for interest after maturity, the City shall not, directly or indirectly, extend or consent to the extension of the time for the payment of any claim for interest on any of the Bonds and shall not, directly or indirectly, be a party to the approval of any such arrangement by purchasing or funding said claims for interest or in any other manner. In case any such claim for interest shall be extended or funded, whether or not with the consent of the City, such claim for interest so extended or funded shall not be entitled, in case of default hereunder, to the benefits of this Agreement, except subject to the prior payment in full of the principal of all of the Bonds then Outstanding and of all claims for interest which shall not have been so extended or funded.
Section 5.04. Against Encumbrances. The City shall not encumber, pledge or place any charge or lien upon any of the Special Tax Revenues or other amounts pledged to the Bonds superior to or on a parity with the pledge and lien herein created for the benefit of the Bonds, except as permitted by this Agreement.
Section 5.05. Books and Accounts. The City shall keep, or cause to be kept, proper books of record and accounts, separate from all other records and accounts of the City in which complete and correct entries shall be made of all transactions relating to the expenditure of amounts disbursed from the Administrative Expense Fund. Such books of record and accounts shall at all times during business hours, upon reasonable notice, be subject to the inspection of the Owners of not less than ten percent (10%) of the aggregate principal amount of the Bonds then Outstanding, or their representatives duly authorized in writing.
Section 5.06. Protection of Security and Rights of Owners. The City will preserve and protect the security of the Bonds and the rights of the Owners, and will warrant and defend t heir rights against all claims and demands of all persons. From and after the delivery of any of the Bonds by the City, the Bonds shall be incontestable by the City.
Section 5.07. Collection of Special Tax Revenues. The City shall comply with all requirements of the Act, including the enactment of necessary Ordinances, so as to assure the timely collection of Special Tax Revenues, including without limitation, the enforcement of the payment or collection of delinquent Special Taxes.
On or within five (5) Business Days of June 1 of each year, the Fiscal Agent shall provide the City with a notice stating the amount then on deposit in the Special Tax Fund, the Bond Fund and the Reserve Fund (including all accounts and sub-accounts therein), the monthly statements provided by the Fiscal Agent shall satisfy this notice requirement. The receipt of such notice by the City or the failure of the Fiscal Agent to give such notice shall in no way affect the obligations of the City under the following two paragraphs. The Fiscal Agent shall have no liability if it does
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30 not provide such notice to the City. Upon receipt of such notice, the City shall communicate with the Auditor to ascertain the relevant parcels on which the Special Taxes are to be levied, taking into account any parcel splits during the preceding and then current Fiscal Year.
The City shall effect the levy of the Special Taxes each Fiscal Year in accordance with the Act by August 10 of each year (or such later date as may be authorized by the Act or any amendment thereof) that the Bonds are Outstanding, such that the computation of the levy is complete before the final date on which the Auditor will accept the transmission of the Special Tax amounts for the parcels within the District for inclusion on the tax roll for the Fiscal Year then beginning. Upon the completion of the computation of the amounts of the levy of the Special Taxes, the City shall prepare or cause to be prepared, and shall transmit to the Auditor, such data as the Auditor requires to include the levy of the Special Taxes on the tax roll. Notwithstanding the preceding provisions of this paragraph, the City Council may elect, as permitted by the Act, to collect the Special Taxes to be levied for any Fiscal Year directly from the owners of the parcels of taxable property upon which the Special Taxes are levied rather than by transmitting the Special Taxes to the Auditor for collection on the tax roll; provided that, in such event, the City shall otherwise comply with the provisions of this Section 5.07.
The City shall fix and levy the amount of Special Taxes within the District required for the payment of the principal of and interest on any Outstanding Bonds becoming due and payable during the ensuing calendar year, including any necessary replenishment of the Reserve Fund, and the amount estimated to be sufficient to pay the Administrative Expenses during such calendar year. The Special Taxes so levied shall not exceed the authorized amounts for the District as provided in the proceedings for the establishment of the District.
The Special Taxes shall be payable and be collected (except in the event of judicial foreclosure proceedings pursuant to Section 5.11 hereof) in the same manner and at the same time and in the same installments as the general taxes on real property are payable, and have the same priority, become delinquent at the same times and in the same proportionate amounts and bear the same proportionate penalties and interest after delinquency as do the general taxes on real property.
The City will not, in collecting the Special Taxes or in processing any such judicial foreclosure proceedings, exercise any authority which it has pursuant to Sections 53340, 53344.1, 53356.1 and 53356.5 of the California Government Code in any manner which would materially and adversely affect the interests of the Owners and, in particular, will not permit the tender of Bonds in full or partial payment of any Special Taxes except upon receipt of a certificate of an Independent Financial Consultant certifying that to accept such tender will not result in the City having insufficient Special Tax Revenues to pay the principal of and interest on the Bonds and remaining Outstanding following such tender.
Section 5.08. Levy of Special Taxes for Administrative Expenses. The City covenants that, to the extent that it is legally permitted to do so, (a) it will levy the Special Taxes for the payment of the Administrative Expenses which are expected to be incurred in each Fiscal Year, and (b) it will not initiate proceedings under the Act to reduce the Maximum Special Tax rates (the “Maximum Rates”) on then existing Developed Property in the District below the amounts which are necessary to provide Special Tax Revenues in an amount equal to estimated Administrative Expenses for the then current Fiscal Year plus an amount equal to one hundred ten percent (110%)
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31 of Maximum Annual Debt Service on the Outstanding Bonds. For purposes of this Section, “Developed Property” has the meaning set forth in the Rate and Method of Apportionment.
The City further covenants that in the event an ordinance is adopted by initiative pursuant to Section 3 of Article XIII C of the California Constitution, which purports to reduce or otherwise alter the Maximum Rates, it will commence and pursue legal action seeking to preserve its ability to comply with its covenant contained in the preceding paragraph.
Section 5.09. Further Assurances. The City will adopt, make, execute and deliver any and all such further ordinances, resolutions, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Agreement, and for better assuring and confirming unto the Owners of the Bonds of the rights and benefits provided in this Agreement.
Section 5.10. Tax Covenants. The City covenants that:
(A) It will not take any action or omit to take any action, which action or omission, if reasonably expected on the date of the initial issuance and delivery of the Bonds, would have caused any of the Bonds to be “arbitrage bonds” within the meaning of Section 103(b) and Section 148 of the Code;
(B) It will not take any action or omit to take any action, which action or omission, if reasonably expected on the date of initial issuance and delivery of the Bonds, would result in loss of exclusion from gross income for purposes of federal income taxation under Section 103(a) of the Code of interest paid with respect to the Bonds; (C) It will not take any action or omit to take any action, which action or omission, if reasonably expected on the date of initial issuance and delivery of the Bonds, would have caused any of the Bonds to be “private activity bonds” within the meaning of Section 141 of the Code;
(D) It will comply with the Rebate Certificate as a source of guidance for achieving compliance with the Code; and
(E) In order to maintain the exclusion from gross income for purposes of federal income taxation of interest paid with respect to the Bonds, it will comply with each applicable requirement of Section 103 and Sections 141 through 150 of the Code.
The covenants of the City contained in this Section 5.10 shall survive the payment, redemption or defeasance of Bonds pursuant to Section 10.03 hereof.
Section 5.11. Covenant to Foreclose. Pursuant to Section 53356.1 of the California Government Code, the City covenants with and for the benefit of the Owners of the Bonds that:
(i) it will order, and cause to be commenced, judicial foreclosure proceedings against properties in the District with delinquent Special Taxes in excess of $5,000 by the October 1 following the close of the Fiscal Year in which such Special Taxes were due, and (ii) if the amount on deposit in the Reserve Fund is less than the Reserve Requirement it will commence judicial foreclosure proceedings against all properties in the District with delinquent Special Taxes by the October 1
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32 following the close of each Fiscal Year in which it receives Special Taxes in an amount which is less than ninety-five percent (95%) of the total Special Taxes levied, and diligently pursue to completion such foreclosure proceedings.
Section 5.12. Prepayment of Special Taxes. The City shall cause all applications of owners of property in the District to prepay and satisfy the Special Tax obligation for their property to be reviewed by the Tax Consultant and shall not accept any such prepayment unless such consultant certifies in writing that following the acceptance of the proposed prepayment by the City and the redemption of Bonds with such prepayment, the maximum amount of the Special Taxes that may be levied on all Taxable Property (as defined in the Rate and Method of Apportionment) in the District following such prepayment will be at least 1.10 times Maximum Annual Debt Service on the Bonds which will remain Outstanding following such redemption plus estimated Administrative Expenses.
Section 5.13. Calculation of Prepayments. The City will cause all Special Tax Prepayments to be calculated to include the amount of the premium on the Outstanding Bonds that will be redeemed with the Special Tax Prepayment and negative arbitrage on the investment of the Special Tax Prepayment from the date of receipt until the Interest Payment Date upon which the Special Tax Prepayment and the amount to be transferred from the Reserve Fund to the Principal Account pursuant to Section 4.03(F) hereof will be used to redeem Outstanding Bonds pursuant to Section 2.03(B) hereof. The City will not include in any calculation of the amount of any Special Tax Prepayment for any parcel of taxable property in the District a proportionate amount of the amount then on deposit in the Reserve Fund, if at the time of such calculation the amount on deposit in the Reserve Fund is less than the Reserve Requirement.
Section 5.14. Continuing Disclosure. The City hereby covenants and agrees that they will comply with and carry out all of the provisions of the Continuing Disclosure Certificate.
Section 5.15. Accountability Measures. The City shall comply with the requirements of Section 53410 of the California Government Code with respect to the deposit and expenditure of the Proceeds of the sale of the Bonds and shall cause the appropriate officer of the City to file a report with the City Council no later than January 31, 2024, and annually thereafter, which shall contain the information required by Section 53411 of the California Government Code with respect to the expenditure of the Proceeds.
ARTICLE VI
INVESTMENTS; DISPOSITION OF INVESTMENT PROCEEDS;
LIABILITY OF THE CITY
Section 6.01. Deposit and Investment of Moneys in Funds. Subject in all respects to the provisions of Section 6.02 hereof, moneys in any fund or account created or established by this Agreement and held by the Fiscal Agent shall be invested by the Fiscal Agent in Permitted Investments, as directed pursuant to an Officer’s Certificate filed with the Fiscal Agent at least two (2) Business Days in advance of the making of such investments. In the absence of any such Officer’s Certificate, the Fiscal Agent shall hold funds uninvested. The Fiscal Agent shall not have any responsibility for determining the legality of any Permitted Investments. The Fiscal Agent shall have no obligation to pay additional interest or maximize investment income on any
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33 funds held by it. Neither the City nor the Owners of the Bonds shall have any claim of any kind against the Fiscal Agent in connection with investments properly made pursuant to this Section 6.01. Obligations purchased as an investment of moneys in any fund or account shall be deemed to be part of such fund or account, subject, however, to the requirements of this Agreement for transfer of Investment Earnings in funds and accounts.
The Fiscal Agent and its affiliates may act as sponsor, advisor, depository, principal or agent in the holding, acquisition or disposition of any investment. The Fiscal Agent shall not incur any liability for losses arising from any investments made pursuant to this Section 6.01. For purposes of determining the amount on deposit in any fund or account held hereunder, all Permitted Investments or investments credited to such fund or account shall be valued at the cost thereof (excluding accrued interest and brokerage commissions, if any).
Subject in all respects to the provisions of Section 6.02 hereof, investments in any and all funds and accounts may be commingled in a single fund for purposes of making, holding and disposing of investments, notwithstanding provisions herein for transfer to or holding in or to the credit of particular funds or accounts of amounts received or held by the Fiscal Agent hereunder, provided that the Fiscal Agent shall at all times account for such investments strictly in accordance with the funds and accounts to which they are credited and otherwise as provided in this Agreement.
The Fiscal Agent shall sell or present for redemption, any investment security whenever it shall be necessary to provide moneys to meet any required payment, transfer, withdrawal or disbursement from the fund or account to which such investment security is credited, and the Fiscal Agent shall not be liable or responsible for any loss resulting from the acquisition or disposition of any such investment security in accordance herewith.
The City acknowledges that to the extent regulations of the Comptroller of the Currency or other applicable regulatory entity grant the City or the District the right to receive brokerage confirmations of securities transactions as they occur, the City for itself and the District specifically waives receipt of such confirmations to the extent permitted by law. The Fiscal Agent shall furnish the City periodic cash transaction statements which include detail for all investment transactions made by the Fiscal Agent hereunder.
The Fiscal Agent may make any investments hereunder through its own bond or investment department or trust investment department, or those of its parent or any affiliate.
Section 6.02. Rebate Fund; Rebate to the United States. There is hereby created, to be held by the Fiscal Agent, as a separate account distinct from all other funds and accounts held by the Fiscal Agent under this Agreement, the Rebate Fund. The Fiscal Agent shall, in accordance with written directions received from an Authorized Officer, deposit into the Rebate Fund moneys transferred by the City to the Fiscal Agent pursuant to the Rebate Certificate or moneys transferred by the Fiscal Agent from the Reserve Fund. The Rebate Fund shall be held either uninvested or invested only in Federal Securities at the written direction of the City. Moneys on deposit in the Rebate Fund shall be applied only to payments made to the United States, to the extent such payments are required by the Rebate Certificate. The Fiscal Agent shall, upon written request and direction of the City, make such payments to the United States.
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34 The Fiscal Agent may rely conclusively upon the City’s determinations, calculations and certifications required by this Section. The Fiscal Agent shall have no responsibility to independently make any calculation or determination or to review the City’s calculations hereunder. The Fiscal Agent’s sole responsibilities under this Section 6.02 are to follow the written instructions of the City pertaining hereto. The City shall be responsible for any fees and expenses incurred by the Fiscal Agent pursuant to this Section 6.02.
The Fiscal Agent shall, upon written request and direction from the City, transfer to or upon the order of the City any moneys on deposit in the Rebate Fund in excess of the amount, if any, required to be maintained or held therein in accordance with the Rebate Certificate.
Section 6.03. Liability of City. The City shall not incur any responsibility in respect of the Bonds or this Agreement other than in connection with the duties or obligations explicitly herein or in the Bonds assigned to or imposed upon it. The City shall not be liable in connection with the performance of its duties hereunder, except for its own negligence or willful default. The City shall not be bound to ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants or agreements of the Fiscal Agent herein or of any of the documents executed by the Fiscal Agent in connection with the Bonds.
In the absence of bad faith, the City may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the City and conforming to the requirements of this Agreement. The City shall not be liable for any error of judgment made in good faith unless it shall be proved that it was negligent in ascertaining the pertinent facts.
No provision of this Agreement shall require the City to expend or risk its own general funds or otherwise incur any financial liability (other than with respect to the Special Tax Revenues) in the performance of any of its obligations hereunder, or in the exercise of and of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
The City may rely and shall be protected in acting or refraining from acting upon any notice, resolution, request, consent, order, certificate, report, warrant, Bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or proper parties. The City may consult with counsel, who may be counsel to the City, with regard to legal questions, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith and in accordance therewith.
Whenever in the administration of its duties under this Agreement the City shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of willful misconduct on the part of the City, be deemed to be conclusively proved and established by a certificate of the Fiscal Agent, and such certificate shall be full warranty to the City for any action taken or suffered under the provisions of this Agreement or any Supplemental Agreement upon the faith thereof, but in its discretion the City may, in lieu thereof,
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35 accept other evidence of such matter or may require such additional evidence as to it may seem reasonable.
Section 6.04. Employment of Agents by City. In order to perform its duties and obligations hereunder, the City may employ such persons or entities as it deems necessary or advisable. The City shall not be liable for any of the acts or omissions of such persons or entities employed by it in good faith hereunder, and shall be entitled to rely, and shall be fully protected in doing so, upon the opinions, calculations, determinations and directions of such persons or entities.
ARTICLE VII
THE FISCAL AGENT
Section 7.01. Appointment of Fiscal Agent. U.S. Bank Trust Company, National Association is hereby appointed Fiscal Agent, registrar and paying agent for the Bonds. The Fiscal Agent undertakes to perform such duties, and only such duties, as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Fiscal Agent.
Any company into which the Fiscal Agent may be merged or converted or with which it may be consolidated or any company resulting from any merger, conversion or consolidation to which it shall be a party or any company to which the Fiscal Agent may sell or transfer all or substantially all of its corporate trust business, provided such company shall be eligible under the following paragraph of this Section 7.01, shall be the successor to the Fiscal Agent without the execution or filing of any paper or any further act, anything herein to the contrary notwithstanding.
The City may, upon a 30-day notice of removal, remove the Fiscal Agent initially appointed, and any successor thereto, and may appoint a successor or successors thereto, but any such successor shall be a bank, national banking association, corporation or trust company having a combined capital (exclusive of borrowed capital) and surplus of at least $50,000,000, and subject to supervision or examination by federal or state authority. If such bank, national banking association, corporation or trust company publishes a report of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority above referred to, then for the purposes of this Section 7.01, combined capital and surplus of such bank, national banking association or trust company shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
The Fiscal Agent may at any time resign by giving written notice to the City and by giving to the Owners notice by mail of such resignation. Upon receiving notice of such resignation, the City shall promptly appoint a successor Fiscal Agent by an instrument in writing. Any resignation or removal of the Fiscal Agent shall become effective upon acceptance of appointment by the successor Fiscal Agent.
If no appointment of a successor Fiscal Agent shall be made pursuant to the foregoing provisions of this Section 7.01 within forty-five (45) days after the Fiscal Agent shall have given to the City written notice or after a vacancy in the office of the Fiscal Agent shall have o ccurred by reason of its inability to act, the Fiscal Agent, at the expense of the City, or any Owner may apply to any court of competent jurisdiction to appoint a successor Fiscal Agent. Said court may
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36 thereupon, after such notice, if any, as such court may deem proper, appoint a successor Fiscal Agent.
Section 7.02. Liability of Fiscal Agent. The recitals of facts, covenants and agreements herein and in the Bonds contained shall be taken as statements, covenants and agreements of the City and the District, and the Fiscal Agent assumes no responsibility for the correctness of the same, nor makes any representations as to the validity or sufficiency of this Agreement or of the Bonds, nor shall the Fiscal Agent incur any responsibility in respect thereof, other than i n connection with the duties or obligations herein or in the Bonds assigned to or imposed upon it.
The Fiscal Agent shall not be liable in connection with the performance of its duties hereunder, except for its own negligence or willful misconduct. The Fiscal Agent assumes no responsibility or liability for any information, statement or recital in any offering memorandum or other disclosure material prepared or distributed with respect to the issuance of the Bonds.
In the absence of bad faith, the Fiscal Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Fiscal Agent and conforming to the requirements of this Agreement. Except as provided above in this paragraph, the Fiscal Agent shall be protected and shall incur no liability in acting or proceeding, or in not acting or not proceeding, in good faith, reasonably and in accordance with the terms of this Agreement, upon any resolution, order, not ice, request, consent or waiver, certificate, statement, affidavit, or other paper or document which it shall in good faith reasonably believe to be genuine and to have been adopted or signed by the proper person or to have been prepared and furnished pursuant to any provision of this Agreement, and the Fiscal Agent shall not be under any duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument.
The Fiscal Agent shall not be liable for any error of judgment made in good faith by the Fiscal Agent unless it shall be proved that the Fiscal Agent was negligent in ascertaining the pertinent facts.
No provision of this Agreement shall require the Fiscal Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers.
The Fiscal Agent shall not be responsible for accounting for, or paying to, any party to this Agreement, including, but not limited to the City and the Owners, any returns on or benefit from funds held for payment of unredeemed Bonds or outstanding checks and no calculation of the same shall affect, or result in any offset against, fees due to the Fiscal Agent under this Agreement.
The Fiscal Agent shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement at the request or direction of any of the Owners pursuant to this Agreement unless such Owners shall have offered to the Fiscal Agent reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
The Fiscal Agent may become the owner of the Bonds with the same rights it would have if it were not the Fiscal Agent.
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37 All indemnification and releases from liability granted herein to the Fiscal Agent shall extend to the directors, officers and employees of the Fiscal Agent.
The Fiscal Agent shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Agreement and delivered using Electronic Means (“Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Fiscal Agent, or another method or system specified by the Fiscal Agent as available for use in connection with its services hereunder); provided, however, that the City shall provide to the Fiscal Agent an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the City whenever a person is to be added or deleted from the listing. If the City elects to give the Fiscal Agent Instructions using Electronic Means and the Fiscal Agent in its discretion elects to act upon such Instructions, the Fiscal Agent’s understanding of such Instructions shall be deemed controlling. The City understands and agrees that the Fiscal Agent cannot determine the identity of the actual sender of such Instructions and that the Fiscal Agent shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Fiscal Agent have been sent by such Authorized Officer. The City shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Fiscal Agent and that the City and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the City. The Fiscal Agent shall not be liable for any losses, costs or expenses arising directly or indirectly from the Fiscal Agent’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The City agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Fiscal Agent, including without limitation the risk of the Fiscal Agent acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Fiscal Agent and that there may be more secure methods of transmitting Instructions than the method(s) selected by the City; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Fiscal Agent immediately upon learning of any compromise or unauthorized use of the security procedures.
The permissive right of the Fiscal Agent to do things enumerated in this Agreement shall not be construed as a duty and it shall not be answerable for other than its negligence or willful misconduct.
The Fiscal Agent may execute any of the trusts or powers hereof and perform the duties required of it hereunder by or through attorneys, agents, affiliates, or receivers, and shall be entitled to advice of counsel concerning all matters of trust and its duty hereunder, and the Fiscal Agent shall not be answerable for any willful misconduct or negligence on the part of any attorney, agent or receiver selected by it with reasonable care.
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38 Section 7.03. Information. The Fiscal Agent shall provide to the City such information relating to the Bonds and the funds and accounts maintained by the Fiscal Agent hereunder as the City shall reasonably request, including, but not limited to, quarterly statements reporting funds held and transactions by the Fiscal Agent.
Section 7.04. Notice to Fiscal Agent. The Fiscal Agent may rely and shall be protected in acting or refraining from acting upon any notice, resolution, request, consent, order, certificate, report, warrant, Bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or proper parties. The Fiscal Agent may consult with counsel, who may be counsel to the City, with regard to legal questions, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by the Fiscal Agent hereunder in good faith and in accordance therewith.
Whenever in the administration of its duties under this Agreement the Fiscal Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of willful misconduct on the part of the Fiscal Agent, be deemed to be conclusively proved and established by a certificate of the City, and such certificate shall be full warranty to the Fiscal Agent for any action taken or suffe red under the provisions of this Agreement or any Supplemental Agreement upon the faith thereof, but in its discretion the Fiscal Agent may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as to it may seem reasonable.
Section 7.05. Compensation, Indemnification. The City shall pay to the Fiscal Agent from time to time reasonable compensation for all services rendered as Fiscal Agent under this Agreement, and also all reasonable expenses, charges, fees and other disbursements, including those of its attorneys, agents and employees, incurred in and about the performance of its powers and duties under this Agreement, and the Fiscal Agent shall have a first priority lien therefor on any funds at any time held by it in the Administrative Expense Fund, and the Fiscal Agent shall pay and reimburse all expenses, charges, fees and other disbursements, including those of its attorneys, agents and employees, incurred in connection therewith from the funds held by it in the Administrative Expense Fund. The City further agrees, to the extent permitted by applicable law, to indemnify and save the Fiscal Agent, its officers, employees, directors and agents, harmless against any liabilities, costs, claims, expenses or charges of any kind whatsoever (including fees and expenses of its attorneys) which it may incur in the exercise and performance of its powers and duties hereunder which are not due to its negligence or willful misconduct. The obligation of the City under this Section 7.05 shall survive resignation or removal of the Fiscal Agent under this Agreement and payment of the Bonds and discharge of this Agreement.
Section 7.06. Books and Accounts. The Fiscal Agent shall keep, or cause to be kept, proper books of record and accounts, separate from all other records and accounts of the Fiscal Agent, in which complete and correct entries shall be made of all transactions made by it to the expenditure of amounts disbursed from the Bond Fund, the Special Tax Fund, the Administrative Expense Fund, the Reserve Fund and the Costs of Issuance Fund. Such books of record and accounts shall, upon reasonable notice, at all times during business hours be subject to the inspection of the City and the Owners of not less than ten percent (10%) of the aggregate principal amount of the Bonds then Outstanding, or their representatives duly authorized in writing.
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39 ARTICLE VIII
MODIFICATION OR AMENDMENT OF THIS AGREEMENT
Section 8.01. Amendments Permitted.
(A) This Agreement and the rights and obligations of the District and the City and of the Owners of the Bonds may be modified or amended at any time by a Supplemental Agreement pursuant to the affirmative vote at a meeting of the Owners, or with the written consent, without a meeting, of the Owners of at least sixty percent (60%) in aggregate principal amount of the Bonds then Outstanding, exclusive of Bonds disqualified as provided in Section 8.04 hereof.
No such modification or amendment shall (i) extend the maturity of any Bond or the time for paying interest thereon, or otherwise alter or impair the obligation of the City on behalf of the District to pay the principal of, and the interest and any premium on, any Bond, without the express consent of the Owner of such Bond, or (ii) permit the creation of any pledge of or lien upon the Special Tax Revenues, or the moneys on deposit in the Special Tax Fund, the Bond Fund or the Reserve Fund, superior to or on a parity with the pledge and lien created for the benefit of the Bonds (except as otherwise permitted by the Act, the laws of the State of California and this Agreement), (iii) reduce the percentage of Bonds required for the amendment hereof, or (iv) reduce the principal amount of or redemption premium on any Bond or reduce the interest rate thereon.
Any such amendment may not modify any of the rights or obligations of the Fiscal Agent without its written consent. The Fiscal Agent shall be furnished an opinion of counsel that any such Supplemental Agreement entered into by the City and the Fiscal Agent complies with the provisions of this Section 8.01 and the Fiscal Agent may conclusively rely on such opinion. (B) This Agreement and the rights and obligations of the District and the City and the Owners may also be modified or amended at any time by a Supplemental Agreement, without the consent of any Owners, only to the extent permitted by law and only for any one or more of the following purposes:
(1) to add to the covenants and agreements of the City and the District in this Agreement contained, other covenants and agreements thereafter to be observed, or to limit or surrender any right or power herein reserved to or conferred upon the City and the District; (2) to make modifications not adversely affecting any Outstanding Bonds in any material respect;
(3) to make such provisions for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provisions of this Agreement, or in regard to questions arising under this Agreement, as the City and the Fiscal Agent may deem necessary or desirable and not inconsistent with this Agreement, and which shall not adversely affect the rights of the Owners;
(4) to make such additions, deletions or modifications as may be necessary or desirable to assure compliance with Section 148 of the Code relating to required rebate of moneys to the United States or otherwise as may be necessary to assure exclusion from gross income for federal income tax purposes of interest on the Bonds or to conform with the Regulations; or
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40 (5) to provide for the issuance of Parity Bonds to pay and discharge the indebtedness of a portion of the Outstanding Bonds pursuant to Section 2.13 and Section 10.03 hereof.
Section 8.02. Owners’ Meetings. The City may at any time call a meeting of the Owners.
In such event, the City is authorized to fix the time and place of any such meeting and to prov ide for the giving of notice thereof and to fix and adopt rules and regulations for the conduct of the meeting.
Section 8.03. Procedure for Amendment with Written Consent of Owners. The City and the Fiscal Agent may at any time enter into a Supplemental Agreement am ending the provisions of the Bonds or of this Agreement or any Supplemental Agreement, to the extent that such amendment is permitted by Section 8.01(A) hereof, to take effect when and as provided in this Section 8.03. A copy of the Supplemental Agreement, together with a request to Owners for their consent thereto, shall be mailed by first class mail, postage prepaid, by the Fiscal Agent to each Owner of Bonds Outstanding, but failure to mail copies of the Supplemental Agreement and request shall not affect the validity of the Supplemental Agreement when assented to as in this Section provided.
Such a Supplemental Agreement shall not become effective unless there shall be filed with the Fiscal Agent the written consents of the Owners of at least sixty percent (60%) in aggregate principal amount of the Bonds then Outstanding (exclusive of Bonds disqualified as provided in Section 8.04) and a notice shall have been mailed as hereinafter in this Section provided. Each such consent shall be effective only if accompanied by proof of ownership of the Bonds for which such consent is given, which proof shall be such as is permitted by Section 10.04 hereof. Any such consent shall be binding upon the Owner of the Bonds giving such consent and on any subsequent Owner (whether or not such subsequent Owner has notice thereof) unless such consent is revoked in writing by the Owner giving such consent or a subsequent Owner by filing such revocation with the Fiscal Agent prior to the date when the notice hereinafter in this Section provided for has been mailed.
After the Owners of the required percentage of Bonds shall have filed their consents to the Supplemental Agreement, the City shall mail a notice to the Owners in the manner hereinbefore provided in this Section for the mailing of the Supplemental Agreement, stating in substance that the Supplemental Agreement has been consented to by the Owners of the required percentage of Bonds and will be effective as provided in this Section (but failure to mail copies of said notice shall not affect the validity of the Supplemental Agreement or consents thereto). Proof of the mailing of such notice shall be filed with the Fiscal Agent. A record, consisting of the documents required by this Section 8.03 to be filed with the Fiscal Agent, shall be proof of the matters therein stated until the contrary is proved. The Supplemental Agreement shall become effective upon the filing with the Fiscal Agent of the proof of mailing of such notice, and the Supplemental Agreement shall be deemed conclusively binding (except as otherwise hereinabove specifically provided in this Article VIII) upon the City, the District and the Owners of all Bonds then Outstanding at the expiration of sixty (60) days after such filing, except in the event of a final decree of a court of competent jurisdiction setting aside such consent in a legal action or equitable proceeding for such purpose commenced within such sixty (60)-day period.
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41 Section 8.04. Disqualified Bonds. Bonds owned or held for the account of the City, excepting any pension or retirement fund, shall not be deemed Outstanding for the purpose of any vote, consent or other action or any calculation of Outstanding Bonds provided for in this Article VIII, and shall not be entitled to vote upon, consent to, or participate in any action provided for in this Article VIII. Upon request of the Fiscal Agent, the City shall specify to the Fiscal Agent those Bonds disqualified pursuant to this Section and the Fiscal Agent may conclusively rely on such certificate.
Section 8.05. Effect of Supplemental Agreement. From and after the time any Supplemental Agreement becomes effective pursuant to this Article VIII, this Agreement shall be deemed to be modified and amended in accordance therewith, and the respective rights, duties and obligations under this Agreement of the City and all Owners of Bonds Outstanding shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such Supplemental Agreement shall be deemed to be part of the terms and conditions of this Agreement for any and all purposes.
Section 8.06. Endorsement or Replacement of Bonds Issued After Amendments. The City may determine that Bonds issued and delivered after the effective date of any action taken as provided in this Article VIII shall bear a notation, by endorsement or otherwise, in form approved by the City, as to such action. In that case, upon demand of the Owner of any Bond Outstanding at such effective date and upon presentation of his Bond for that purpose at the Principal Office of the Fiscal Agent or at such other office as the City may select and designate for that purpose, a suitable notation shall be made on such Bond. The City may determine that new Bonds, so modified as in the opinion of the City is necessary to conform to such action, shall be prepared, executed and delivered. In that case, upon demand of the Owner of any Bonds then Outstanding, such new Bonds shall be exchanged at the Principal Office of the Fiscal Agent without cost to any Owner, for like Bonds then Outstanding, upon surrender of such Bonds.
Section 8.07. Amendatory Endorsement of Bonds. The provisions of this Article VIII shall not prevent any Owner from accepting any amendment as to the particular Bonds held by him, provided that due notation thereof is made on such Bonds.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.01. Events of Default. Any one or more of the following events shall be an Event of Default:
(a) failure to pay any installment of principal of any Bonds when and as the same shall become due and payable, whether at maturity as therein expressed, by proceedings for redemption or otherwise;
(b) failure to pay any installment of interest on any Bonds when and as the same shall become due and payable; or
(c) other than as referred to in subsection (a) or (b), failure by the City, for and on behalf of the District, to observe or perform any covenant, condition, agreement or provision in this Agreement on its part to be observed or performed for a period of thirty (30) days after
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42 written notice, specifying such failure and requesting that it be remedied, has been given to the City by the Fiscal Agent or the Owners of 25% in aggregate principal amount of the Outstanding Bonds ; except that, if such failure can be remedied but not within such thirty (30) day period and if the City has taken all action reasonably possible to remedy such failure within such thirty (30) day period, such failure shall not become an Event of Default for so long as the City shall diligently proceed to remedy same.
Section 9.02. Remedies of Owners. Upon the occurrence and continuance of an Event of Default, the Owners shall have the right to exercise all remedies contemplated under this Agreement as follows:
(a) by mandamus or other action, suit, or proceeding at law or in equity to enforce the Owner's rights against the City, and its members, officers and employees, and to compel the City, and its members, officers and employees perform and carry out their duties under the Act and the agreements and covenants with the Owner contained herein; (b) by suit in equity to enjoin any acts or things that are unlawful or violate the rights of the Owners; or
(c) by suit, action or proceeding in any court of competent jurisdiction, to require the City and its officers and employees, acting for and on behalf of the District, to account as if it and they were the trustees of an express trust.
Section 9.03. Application of Special Taxes and Other Funds After Default. If an Event of Default shall occur and be continuing, all Special Taxes, including any penalties, costs, fees and other charges accruing under the Act, and any other funds then held or thereafter received by the Fiscal Agent under any of the provisions of this Agreement shall be applied by the Fiscal Agent as follows and in the following order:
First, to the payment of any expenses necessary in the opinion of the Fiscal Agent to protect the interests of the Owners of the Bonds and payment of reasonable fees, charges, and expenses of the Fiscal Agent (including reasonable fees and disbursements of its counsel) incurred in and about the performance of its powers and duties under this Agreement; Second, to the payment of the principal of and interest then due with respect to the Bonds (upon presentation of the Bonds to be paid, and stamping thereon of the payment if only partially paid, or surrender thereof if fully paid) subject to the provisions of this Agreement, as follows:
(a) to the payment of all installments of interest then due in the order of the maturity of such installments, and, if the amount available shall not be sufficient to pay in full any installment or installments maturing on the same date, then to the payment thereof ratably, according to the amounts due thereon, without any discrimination or preference; and (b) to the payment of the unpaid principal of any Bonds which shall have become due, whether at maturity or by call for redemption, with interest on the overdue principal at the rate borne by the respective Bonds on the date of maturity or redemption, and, if the amount available shall not be sufficient to pay in full all the Bonds, together with such interest, then to the
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43 payment thereof ratably, according to the amounts of principal due on such date, without any discrimination or preference.
Section 9.04. Restoration of Positions. In case any proceedings taken by the Owners on account of any Event of Default shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Owners, then in every such case the City and the Owners, subject to any determination in such proceedings, shall be restored to their former positions and rights hereunder, severally and respectively, and all rights, remedies, powers, and duties of the City and the Owners shall continue as though no such proceedings had been taken.
Section 9.05. Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Owners is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right or remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 9.06. Delay or Omission Not Waiver. No delay or omission of any Owners to exercise any right or remedy accruing upon an Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Agreement or by law to the Owners of the Bonds may be exercised from time to time, and as often as may be deemed expedient, by the Owners.
ARTICLE X
MISCELLANEOUS
Section 10.01. Benefits of Agreement Limited to Parties. Nothing in this Agreement, expressed or implied, is intended to give to any person other than the City, the Fiscal Agent and the Owners, any right, remedy or claim under or by reason of this Agreement. Any covenants, stipulations, promises or agreements in this Agreement contained by and on behalf of the City shall be for the sole and exclusive benefit of the Owners and the Fiscal Agent.
Section 10.02. Successor is Deemed Included in All References to Predecessor. Whenever in this Agreement or any Supplemental Agreement either the City or the Fiscal Agent is named or referred to, such reference shall be deemed to include the successors or assigns thereof, and all the covenants and agreements in this Agreement contained by or on behalf of the City or th e Fiscal Agent shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not.
Section 10.03. Discharge of Agreement.
If the City shall pay and discharge the indebtedness on all or a portion (a “Partial Discharge”) of the Outstanding Bonds in any one or more of the following ways:
(A) by well and truly paying or causing to be paid the principal of and interest and any premium on such Bonds, as and when the same become due and payable;
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44 (B) by depositing with the Fiscal Agent, in trust, at or before maturity, an amount of money which, together with the amounts then on deposit in the Bond Fund (including all accounts therein), the Special Tax Fund and the Reserve Fund, or in the event of a Partial Discharge, the appropriate portion of such amounts, as determined by the City, is fully sufficient to pay such Bonds, including all principal, interest and redemption premiums, if any; or (C) by irrevocably depositing with the Fiscal Agent, in trust, cash or non- callable Defeasance Securities in such amount as the City shall determine, as confirmed by an Independent Financial Consultant, will, together with the interest to accrue thereon and amounts then on deposit in the Bond Fund (including all accounts therein), the Special Tax Fund and the Reserve Fund, or in the event of a Partial Discharge, the appropriate portion of such amounts, as determined by the City and confirmed by an Independent Financial Consultant, be fully sufficient to pay and discharge the indebtedness on such Bonds (including all principal, interest and redemption premiums) at or before their respective maturity dates; and if such Bonds are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in this Agreement provided or provision satisfactory to the Fiscal Agent shall have been made for the giving of such notice, then, at the election of the City, and notwithstanding that any such Bonds shall not have been surrendered for payment, the pledge of the Special Tax Revenues and other funds provided for in this Agreement and all other obligations of the City and the District under this Agreement with respect to such Bonds shall cease and terminate, except the obligation of the City to pay or cause to be paid to the Owners of such Bonds not so surrendered and paid all sums due thereon, the obligation of the City to pay all amounts owing to the Fiscal Agent pursuant to Section 7.05 hereof, and the obligations of the City pursuant to the covenants contained in Section 5.10 hereof; and thereafter Special Taxes shall not be payable to the Fiscal Agent. Notice of such election shall be filed with the Fiscal Agent. The satisfaction and discharge of this Agreement as to all of the Outstanding Bonds shall be without prejudice to the rights of the Fiscal Agent to charge and be reimbursed by the City for the expenses which it shall thereafter incur in connection herewith.
Any funds held by the Fiscal Agent to pay and discharge the indebtedness on such Bonds, upon payment of all fees and expenses of the Fiscal Agent, which are not required for such purpose, shall be paid over to the City.
Section 10.04. Execution of Documents and Proof of Ownership by Owners. Any request, declaration or other instrument which this Agreement may require or permit to be executed by Owners may be in one or more instruments of similar tenor, and shall be executed by Owners in person or by their attorneys appointed in writing.
Except as otherwise herein expressly provided, the fact and date of the execution by any Owner or his attorney of such a request, declaration or other instrument, or of a writing appointing such an attorney, may be proved by the certificate of any notary public or other officer authorized to take acknowledgments of deeds to be recorded in the state in which he purports to act, that the person signing such request, declaration or other instrument or writing acknowledged to him the execution thereof, or by an affidavit of a witness of such execution, duly sworn to before such a notary public or other officer.
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45 Except as otherwise herein expressly provided, the ownership of registered Bonds and the amount, maturity, number and date of holding the same shall be proved by the registration books maintained by the Fiscal Agent pursuant to Section 2.08 hereof.
Any request, declaration or other instrument or writing of the Owner of any Bond shall bind all future Owners of such Bond in respect of anything done or suffered to be done by the City or the Fiscal Agent in good faith and in accordance therewith.
Section 10.05. Waiver of Personal Liability. No member, officer, agent or employee of the City or the District shall be individually or personally liable for the payment of the principal of, or interest or any premium on, the Bonds; but nothing herein contained shall relieve any such member, officer, agent or employee from the performance of any official duty provided by law.
Section 10.06. Notices to and Demands on City and Fiscal Agent. Any notice or demand which by any provision of this Agreement is required or permitted to be given or served by t he Fiscal Agent to or on the City may be given or served by being deposited postage prepaid (first class, registered or certified) in a post office letter box addressed (until another address is filed by the City with the Fiscal Agent) as follows:
City of Upland
460 North Euclid Avenue
Upland, CA 91785-0460
Attn: Assistant City Manager
Any notice or demand which by any provision of this Agreement is required or permitted to be given or served by the City to or on the Fiscal Agent may be given or served by being deposited postage prepaid (first class, registered or certified) in a post office letter box addressed (until another address is filed by the Fiscal Agent with the City) as follows:
U.S. Bank Trust Company, National Association
Global Corporate Trust Services
633 West 5th Street, 24th Floor
Los Angeles, CA 90071
Reference: Upland City CFD 2022-1
Section 10.07. Partial Invalidity. If any section, paragraph, sentence, clause or phrase of this Agreement shall for any reason be held by a court of competent jurisdiction to be illegal or unenforceable, such holding shall not affect the validity of the remaining portions of this Agreement. The City hereby declares that it would have executed and delivered this Agreement and each and every other section, paragraph, sentence, clause or phrase hereof and authorized the issue of the Bonds pursuant thereto irrespective of the fact that any one or more sections, paragraphs, sentences, clauses or phrases of this Agreement may be held illegal, invalid or unenforceable.
Section 10.08. Unclaimed Moneys. Anything contained herein to the contrary notwithstanding, any moneys held by the Fiscal Agent in trust for the payment and discharge of the principal of, and the interest and any premium on, the Bonds which remains unclaimed for two (2) years after the date when the payment of such principal, interest and premium have become
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46 payable, if such moneys were held by the Fiscal Agent at such date, shall be paid by the Fiscal Agent to the City as its absolute property free from any trust, and the Fiscal Agent shall thereupon be released and discharged with respect thereto and the Owners of such Bonds shall look only to the City for the payment of the principal of, and interest and any premium on, their Bonds.
Section 10.09. Applicable Law. This Agreement shall be governed by and enforced in accordance with the laws of the State of California applicable to contracts made and performed in the State of California.
Section 10.10. Conflict with Act. In the event of a conflict between any provision of this Agreement with any provision of the Act as in effect on the Closing Date, the provision of the Act shall prevail over the conflicting provision of this Agreement.
Section 10.11. Conclusive Evidence of Regularity. Bonds issued pursuant to this Agreement shall constitute conclusive evidence of the regularity of all proceedings under the Act relative to their issuance and the levy of the Special Taxes.
Section 10.12. Payment on Business Day. In any case where the date of the payment of interest or of principal (and premium, if any) of the Bonds or the date fixed for redemption is other than a Business Day, the payment of interest or principal (and premium, if any) need not be made on such date but may be made on the next succeeding day which is a Business Day with the same force and effect as if made on the date required, and no interest shall accrue for the period from and after such date.
Section 10.13. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original.
(Signature page follows)
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IN WITNESS WHEREOF, the City has caused this Agreement to be executed in its name on behalf of the District, and the Fiscal Agent, in acknowledgment of its acceptance of the trusts created hereunder, has caused this Agreement to be executed in its name, all as of __________, 2023.
CITY OF UPLAND, for and on behalf of
COMMUNITY FACILITIES DISTRICT NO.
2022-1 (ENCLAVE AT UPLAND) OF THE CITY
OF UPLAND, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA
By:
Michael Blay
City Manager
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, as Fiscal Agent
By:
Authorized Officer
-Signature Page-
Fiscal Agent Agreement
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EXHIBIT A
FORM OF BOND
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY (AS DEFINED IN THE FISCAL AGENT AGREEMENT) TO THE FISCAL
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
BOND AUTHENTICATED AND DELIVERED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CE DE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. $
UNITED STATES OF AMERICA
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
COMMUNITY FACILITIES DISTRICT NO. 2022-1
(ENCLAVE AT UPLAND)
OF THE CITY OF UPLAND
2023 SPECIAL TAX BOND
INTEREST RATE MATURITY DATE DATED DATE CUSIP NO.
__________, 2023
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: DOLLARS
The City of Upland (the “City”), for and on behalf of Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland, County of San Bernardino, State of California (the “District”), for value received, hereby promises to pay, from the Special Taxes (as hereinafter defined) to be collected in the District or amounts in certain of the funds and accounts held under the Agreement (as hereinafter defined) to the registered owner named above, or registered assigns, on the maturity date specified above, the principal amount specified above, and to pay interest on such principal amount from _________, 20__, or from the most recent interest payment date to which interest has been paid or duly provided for, semiannually on March 1 and September 1, commencing September 1, 2023 (“Interest Payment Dates”), at the interest rate specified above, until the principal amount hereof is paid or made available for payment. The principal of this Bond is payable by check to the registered owner hereof in lawful money of the United States of America upon presentation and surrender of this Bond at the Principal Office of U.S. Bank Trust Company, National Association (the “Fiscal Agent”). Interest on this Bond shall be paid by check of the Fiscal Agent mailed by first class mail, postage prepaid, on each Interest Payment Date to the
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registered owner hereof as of the close of business on the fifteenth (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; except that at the written request of the owner of at least $1,000,000 in aggregate principal amount of outstanding Bonds filed with the Fiscal Agent prior to the Record Date preceding any Interest Payment Date, interest on such Bonds shall be paid to such owner on such Interest Payment Date by wire transfer of immediately available funds to an account in the United States of America designated in such written request.
This Bond is one of a duly authorized issue of bonds approved by the qualified electors of the District pursuant to the Mello-Roos Community Facilities Act of 1982, as amended, Chapter
2.5 (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the California Government Code (the “Mello-Roos Act”), for the purpose, among others, of financing the construction and acquisition of certain public facilities within and for the District, and is one of the series of Bonds designated “Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland 2023 Special Tax Bonds (the “Bonds”), in the aggregate principal amount of $____________. The issuance of the Bonds and the terms and conditions thereof are provided for by a resolution adopted by the City Council of the City on __________, 2023 (the “Resolution”), and the Fiscal Agent Agreement, dated as of __________ 1, 2023, between the City and the Fiscal Agent (the “Agreement”), and this reference incorporates the Resolution and the Agreement herein, and by acceptance hereof the owner of this Bond assents to the terms and conditions of the Resolution and the Agreement. The Resolution is adopted under, the Agreement is executed under, this Bond is issued under, and all are to be construed in accordance with, the laws of the State of California.
Pursuant to the Mello-Roos Act, the Agreement and the Resolution, the principal of and interest on the Bonds are payable from the annual levy of Special Taxes authorized under the Mello-Roos Act to be collected within the District (the “Special Taxes”) and are secured by a pledge of and first lien upon the revenues derived therefrom and certain funds held by the Fiscal Agent pursuant to the Agreement.
Interest on this Bond shall be payable from the Interest Payment Date next preceding the date of its authentication, unless (i) it is authenticated on an Interest Payment Date, in which event it shall bear interest from such Interest Payment Date, or (ii) it is authenticated prior to an Interest Payment Date and after the close of business on the Record Date preceding such Interest Payment Date, in which event it shall bear interest from such Interest Payment Date, or (iii) it is authenticated prior to the Record Date preceding the first Interest Payment Date, in which event it shall bear interest from __________, 2023; provided, however, that if at the time of authentication of this Bond, interest is in default hereon, this Bond shall bear interest from the Interest Payment Date to which interest has previously been paid or made available for payment hereon, or from _________, 20__ if no interest has previously been paid or made available for payment hereon.
Any tax for the payment hereof shall be limited to the Special Taxes, except to the extent that provision for payment has been made by the City as may be permitted by law. The Bonds do not constitute obligations of the City for which the City is obligated to levy or pledge, or has levied or pledged, general or special taxation other than as described hereinabove.
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The City has covenanted for the benefit of the owners of the Bonds that (i) it will order, and cause to be commenced, judicial foreclosure proceedings against properties in the District with delinquent Special Taxes in excess of $5,000 by the October 1 following the close of the Fiscal Year in which such Special Taxes were due, and (ii) if the amount on deposit in the Reserve Fund is less than the Reserve Requirement it will commence judicial foreclosure proceedings against all properties in the District with delinquent Special Taxes by the October 1 following the close of each Fiscal Year in which it receives Special Taxes in an amount which is less than ninety-five percent (95%) of the total Special Taxes levied, and diligently pursue to completion such foreclosure proceedings.
The Bonds are subject to redemption prior to their stated maturity dates at the option of the City on September 1, 20__, or any date thereafter, from such maturities as selected by the City (and by lot within any one maturity), in integral multiples of $5,000, at the option of the City from moneys derived by the City from any source, at a redemption price (expressed as a percentage of the principal amount of the Bonds to be redeemed), together with accrued interest to the date of redemption, as follows:
Redemption Dates Redemption Price
September 1, 20__ through August 31, 20__ 103%
September 1, 20__ through August 31, 20__ 102
September 1, 20__ through August 31, 20__ 101
September 1, 20__ and any date thereafter 100
The Bonds are subject to mandatory redemption prior to their stated maturity dates on any Interest Payment Date, as selected among maturities by the City (and by lot within any one maturity), in integral multiples of $5,000, from moneys derived by the City from Special Tax Prepayments, at redemption prices (expressed as percentages of the principal amounts of the Bonds to be redeemed), together with accrued interest to the date of redemption, as follows:
Redemption Dates Redemption Price
Any Interest Payment Date through September 1, 20__ 103% March 1, 20__ and September 1, 20__ 102
March 1, 20__ and September 1, 20__ 101
September 1, 20__ and any Interest Payment Date thereafter 100
The outstanding Bonds maturing on September 1, 20__, September 1, 20__ and September 1, 20__ are subject to mandatory sinking fund redemption, in part, without premium, on September 1, 20__, September 1, 20__ and September 1, 20__, respectively, and on each September 1 thereafter to maturity as provided in the Agreement.
Notice of redemption with respect to the Bonds to be redeemed shall be given to the registered owners thereof, in the manner and to the extent provided in the Agreement.
From and after the date fixed for redemption, if funds available for the payment of the redemption prices of the Bonds selected for redemption shall have been deposited in the Bond Fund, such Bonds shall cease to be entitled to any benefit under the Agreement other than the right
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to receive payment of the redemption price, and interest shall cease to accrue on the Bonds to be redeemed on the redemption date specified in the notice of redemption.
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 entere d by the Fiscal Agent in books kept by it for that purpose and authenticated by the manual signature of an authorized signatory of the Fiscal Agent upon the certificate of authentication endorsed hereon.
No transfer or exchange hereof shall be valid for any purpose unless made by the registered owner or his duly authorized attorney, by execution of the form of assignment endorsed hereon, and authenticated as herein provided, and the principal hereof and interest hereon shall be payable only to the registered owner or to such owner’s order.
The Fiscal Agent shall require the registered owner requesting transfer or exchange hereof to pay any tax or other governmental charge required to be paid with respect to such transfer or exchange.
The Agreement and the rights and obligations of the City and the District thereunder may be modified or amended as set forth therein.
This Bond shall not become valid or obligatory for any purpose until the certificate of authentication hereon endorsed shall have been dated and manually signed on behalf of 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.
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IN WITNESS WHEREOF, the City of Upland, for Community Facilities District No. 2022-1 (Enclave at Upland) thereof, has caused this Bond to be dated __________, 2023, and to be signed by the facsimile signature of the Mayor of the City and countersigned by the facsimile signature of the City Clerk.
ATTEST:
CITY OF UPLAND for and on behalf of
COMMUNITY FACILITIES DISTRICT NO.
2022-1 (ENCLAVE AT UPLAND) OF THE
CITY OF UPLAND, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA
City Clerk of the City of Upland
Mayor of the City of Upland
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CERTIFICATE OF AUTHENTICATION
This is one of the Bonds described in the within-defined Agreement.
Dated: ____________, 2022
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, Fiscal Agent
By:
Authorized Signatory
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ASSIGNMENT
For value received, the undersigned do(es) hereby sell, assign and transfer unto ______________________________________________________________________________ (Name, Address and Tax Identification or
_____________________________________________________________________________, Social Security Number of Assignee)
the within registered Bond and hereby irrevocably constitute(s) and appoint(s) _________________________________ attorney, to transfer said Bond on the books of the Fiscal Agent, with full power of substitution in the premises.
Dated: ____________________
NOTE: The signature(s) on this assignment
must correspond with the name(s) as written on
the face of the within Bond in every particular
without alteration or enlargement or any
change whatsoever.
Signature Guaranteed:
NOTE: Signature guarantee shall be made by
a guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable
to the Fiscal Agent.
1 $_____
COMMUNITY FACILITIES DISTRICT NO. 2022-1
(ENCLAVE AT UPLAND) OF THE CITY OF UPLAND
2023 SPECIAL TAX BONDS
BOND PURCHASE AGREEMENT
_______, 2023
City of Upland
Community Facilities District No. 2022-1
(Enclave at Upland) of the City of Upland
460 North Euclid Avenue,
P.O. Box 460
Upland, CA 91785
Ladies and Gentlemen:
The undersigned, Hilltop Securities Inc., as underwriter (the “Underwriter”), acting not as a fiduciary or agent for you, but on behalf of itself, offers to enter into this Bond Purchase Agreement (this “Purchase Agreement”) with the City of Upland (the “City”) for its Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland (the “Community Facilities District”), which upon acceptance will be binding upon the Underwriter and the City. The agreement of the Underwriter to purchase the Bonds (as hereinafter defined) is contingent upon the City satisfying all of the obligations imposed upon it under this Purchase Agreement. This offer is made subject to the City’s acceptance by the execution of this Purchase Agreement and its delivery to the Underwriter at or before 11:59 p.m., California time, on the date hereof, and, if not so accepted, will be subject to withdrawal by the Underwriter upon notice delivered to the City at any time prior to the acceptance hereof by the City. All capitalized terms used herein, which are not otherwise defined herein, shall have the respective meanings provided for such terms in a Fiscal Agent Agreement, dated as of ________ 1, 2023 (the “Fiscal Agent Agreement”) between the City, for and on behalf of the Community Facilities District, and U.S. Bank Trust Company, National Association, as fiscal agent (the “Fiscal Agent”).
1. Purchase, Sale and Delivery of the Bonds.
Subject to the terms and conditions and in reliance upon the representations, warranties and agreements set forth herein, the Underwriter hereby agrees to purchase from the City and the City hereby agrees to sell to the Underwriter all (but not less than all) of the $______ aggregate principal amount of the Community Facilities District No. 2022-1 (Enclave at Upland) of the City of Upland 2023 Special Tax Bonds (the “Bonds”), dated the Closing Date (as hereinafter defined), bearing interest at the rates and maturing on the dates and in the principal amounts set forth in Exhibit A hereto. The Bonds shall be subject to redemption as set forth in the Fiscal Agent Agreement. The purchase price for the Bonds shall be $______ (being 100% of the aggregate principal amount thereof less a net original issue discount of $______ and less an Underwriter’s discount of $______).
The Underwriter agrees to make a bona fide initial public offering of al l of the Bonds in compliance with federal and state securities laws, at a price not in excess of the initial offering prices
2 (or yields) set forth in Exhibit A attached hereto and incorporated herein by reference. Subsequent to the initial public offering, the Underwriter reserves the right to change the public offering prices (or yields) as it deems necessary in connection with the offering of the Bonds, without any requirement of prior notice, provided that the Underwriter shall not change the interest r ates set forth in Exhibit A.
The Bonds may be offered and sold to certain dealers at prices lower than such initial offering prices.
The Bonds shall be substantially in the form described in, shall be issued and secured under the provisions of, and shall be payable from the Special Tax Revenues and certain other amounts as provided in the Fiscal Agent Agreement and 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 (the “Community Facilities District Act”). The issuance of the Bonds has been duly authorized by the City pursuant to Resolution No. ____ (the “Resolution”), adopted by its City Council of the City (the “City Council”), on _________, 2023.
The proceeds of the Bonds shall be used to: (i) finance the construction and acquisition of public facilities to be owned and operated by the City needed with respect to the development within the Community Facilities District, (ii) fund a reserve fund securing the Bonds, and (iii) pay costs of issuance of the Bonds.
A. The City hereby acknowledges that the Underwriter is entering into this Purchase Agreement in reliance on the representations, warranties and agreements made by the City and the City shall take all action necessary to enforce its rights hereunder for the benefit of the Underwriter and shall immediately notify the Underwriter if it becomes aware that any representation, warranty or agreement made by the City herein is incorrect in any material respect.
The City acknowledges and agrees that: (i) the primary role of the Underwriter, as an underwriter, is to purchase securities for resale to investors in an arm’s -length commercial transaction between the City and the Underwriter and that the Underwriter has financial and other interests that differ from those of the City and the Community Facilities District; (ii) the Underwriter is not acting as a municipal advisor, financial advisor or fiduciary to the City, or any other person or entity and has not assumed any advisory or fiduciary responsibility to the City with respect to the transaction contemplated hereby and the discussions, undertakings and proceedings leading thereto (irrespective of whether the Underwriter has provided other services or is currently providing other services to the City on other matters); (iii) the only obligations the Underwriter has to the City with respect to the transaction contemplated hereby expressly are set forth in this Purchase Agreement, except as otherwise provided by applicable rules and regulations of the Securities and Exchange Commission or the rules of the Municipal Securities Rulemaking Board (the “MSRB”); and (iv) the City has consulted its own legal, accounting, tax, financial and other advisors, as appli cable, to the extent it has deemed appropriate in connection with the transaction contemplated herein. The City acknowledges that it has previously provided the Underwriter with an acknowledgement of receipt of the required Underwriter disclosure under Rule G-17 of the MSRB.
B. Pursuant to the authorization of the City, the Underwriter has distributed copies of the Preliminary Official Statement dated _______, 2023 relating to the Bonds, which, together with the cover page, inside cover page and appendices thereto and as supplemented is collectively herein called the “Preliminary Official Statement.” By its acceptance of this Purchase Agreement, the City hereby consents to and ratifies the use and distribution by the Underwriter of the Preliminary Official Statement, and the City agrees to execute a final official statement relating to the Bonds (the “Official Statement”) which will consist of the Preliminary Official Statement with such changes as
3 may be made thereto, with the approval of Best Best & Krieger LLP, Bond Counsel and Disclosure Counsel (herein called “Bond Counsel”), and the Underwriter, and to provide copies thereof to the Underwriter as set forth in Section 2(T) hereof. The City hereby authorizes and requires the Underwriter to use and promptly distribute, in connection with the offer and sale of the Bonds, the Preliminary Official Statement, the Official Statement and any supplement or amendment thereto.
The City further authorizes the Underwriter to use and distribute, in connection with the o ffer and sale of the Bonds, the Fiscal Agent Agreement, this Purchase Agreement and all information contained herein, and all other documents, certificates and statements furnished by or on behalf of the City to the Underwriter in connection with the transactions contemplated by this Purchase Agreement. The Preliminary Official Statement and/or the Official Statement may be delivered and printed in a “designated electronic format” as defined in the MSRB’s Rule G -32 and as may be agreed to by the City and the Underwriter. The City confirms that it does not object to distribution of the Preliminary Official Statement or the Official Statement in electronic form. A copy of the most recent Preliminary Official Statement sent to a potential purchaser shall be sent by first class mail o r electronically (or other equally prompt means) not later than the first business day following the day upon which each such request is received.
C. To assist the Underwriter in complying with Securities and Exchange Commission Rule 15c2-12(b)(5) (the “Rule”), the City will undertake pursuant to the Continuing Disclosure Certificate, in the form attached to the Official Statement (the “Continuing Disclosure Certificate”), to provide annual reports and notices of certain enumerated events. A description of this undertaking is set forth in the Preliminary Official Statement and will also be set forth in the Official Statement.
D. Except as the Underwriter and the City may otherwise agree, the City will deliver to the Underwriter, at the offices of Bond Counsel in Riverside, California, or at such other location as may be mutually agreed upon by the Underwriter and the City, the documents hereinafter mentioned on the Closing Date (defined below); and the City will deliver to the Underwriter through The Depository Trust Company’s (“DTC”) FAST delivery system, the Bonds, in definitive form (all Bonds bearing CUSIP® numbers printed thereon), duly executed by the City and authenticated by the Fiscal Agent in the manner provided for in the Fiscal Agent Agreement and the Community Facilities District Act at 8:00 a.m. California time, on _______, 2023 (the “Closing Date”), and the Underwriter will accept such delivery and pay the purchase price of the Bonds as set forth in paragraph (A) of this Section by wire transfer, payable in federal or other immediately available funds (such delivery and payment being herein referred to as the “Closing”). The Bonds shall be in fully registered book-entry form (which may be typewritten) and shall be registered in the name of Cede & Co., as nominee of DTC, which will act as securities depository for the Bonds, and the specimen Bonds will be made available for checking by the Underwriter not less than 2 days prior to the Closing.
2. Representations, Warranties and Covenants of the City. The City represents, warrants and covenants to the Underwriter that:
A. The City is a public body, corporate and politic, duly organized and validly existing pursuant to the Constitution and laws of the State of California (the “State”), and has duly authorized the formation of the Community Facilities District pursuant to resolutions duly adopted by the City Council (the “Community Facilities District Formation Resolutions” and, together with the Resolution, the “Community Facilities District Resolutions”) and the Act. The City Council, as