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HomeMy WebLinkAbout1990-132 .~ 1 RESOLUTION NO. Qn_l1.7 2 3 RESOLUTION OF SALE OF BONDS, REDEMPTION FUND CITY OF SAN BERNARDINO MAKING AWARD FOR PROVIDING FOR THE ESTABLISHMENT OF A THE AND 4 WHEREAS, the COMMON COUNCIL of the CITY OF SAN BERNARDINO, 5 CALIFORNIA, has heretofore instituted and conducted proceedings 6 under the terms and provisions of the "Municipal Improvement Act 7 of 1913", being Division 12 of the Streets and Highways Code of 8 the state of California, for the construction of certain publ.ic 9 works of improvement, together with appurtenances and appurte- 10 nant work, in a special assessment district kn,own and designated 11 as ASSESSMENT DISTRICT NO. 977A (hereinafter referred to as the 12 "Assessment District"); and, 13 WHEREAS, in the Resolution of Intention it was determined 14 and declared that bonds should issue under the provisions of the 15 "Improvement Bond Act of 1915", being Division 10 of the Streets 16 and Highways Code of the State of California; and, 17 WHEREAS, there has now been received, in proper form, a 18 purchase agreement (hereinafter the IIPurchase Agreement") for 19 the purchase of said bonds to issue under said proceedings, 20 which is considered to best serve the interests of owners of 21 land included within the Assessment District and should be 22 accepted. 23 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON 24 COUNCIL OF THE CITY OF SAN BERNARDINO THAT: 25 SECTION 1. The above recitals are all true and correct. 26 SECTION 2. This legislative body does hereby make an award 27 and accept, approve and authorize the execution of the Purchase 28 3/9/90 ."'" RESOLUTION MAKING AWARD FOR SALE OF BONDS 1 Agreement for the improvement bonds from BATEMAN EICHLER, HILL 2 RICHARDS INCORPORATED at the interest rates and terms as set 3 forth in said Purchase Agreement as on file with the transcript 4 of these proceedings and open for public inspection. 5 SECTION 3. Said sale is subject to all the terms and 6 conditions as set forth in the Resolution of Issuance, in the 7 Bond Indenture in its final form, and in the accepted Purchase 8 Agreement. 9 I HEREBY CERTIFY that the foregoing resolution was duly 10 adopted by the Mayor and Common Council of the City of San 11 Bernardino at a meeting thereof, held TAglll ~r 12 on the day of 1990, by the 16th Apri 1 13 following vote, to wit: 14 15 AYES: Council Members Estrada, Reilly, Flores, Maudslev. 16 Minor, Pope-Ludlam 17 NOES: None 18 ABSENT: Council Member Miller 19 20 . /) .Ar7d0J?//;~#/ City Clerk 21 //o#'A~ 22 The day of foregoing resolution is April thY'" / hereby 1990. approved 23 24 lcomlp, M or San ~ernardino 25 Approved as to form and legal content: 26 27 James F. Penman City Attorney 28 By: i}A#~ / J - 3/9/90 . ~ CITY OF SAN BERNARDINO 1915 ACT LIMITED OBLIGATION IMPROVEMENT BONDS ASSESSMENT DISTRICT NO. 977A PURCHASE CONTRACT April 16, 1990 Mayor and City Council city of San Bernardino 300 North "D" Street San Bernardino, California 92418 Dear Mayor and Councilmembers: Bateman Eichler, Hill Richards, Incorporated (the "Underwriter"), acting not as fiduciary or agent for you, but on behalf of itself, offers to enter into this Purchase Contract with the city of San Bernardino (the "city"), which upon acceptance will be binding upon the City and upon the Underwriter. This offer is made subject to the City's acceptance by the execution of this Purchase Contract and its delivery to the Underwriter at or before 11:59 p.m., local time, on the date set forth herein above, 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. 1. Purchase. Sale and Deliverv of the Bonds. (a) Subject to the terms and conditions and in reliance upon the representations, warranties and agreements herein set forth, 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 City of San Bernardino 1915 Act Limited Obligation Improvement Bonds for Assessment District No. 977A (the "Bonds"), in an aggregate principal amount not to exceed $683,412, dated as of April 2, 1990 bearing interest from said date (payable on March 2 and September 2 in each year commencing September 2, 1990) at such rates per annum and maturing on such dates and in such amounts as set forth in the form of Exhibit A hereto. The Bonds shall be substantially in the form described in, shall be issued upon satisfaction of the contingencies set forth in, shall be secured under the provisions of, and shall be payable and 1 subject to redemption as provided in a Bond Indenture adopted by the City on April 16, 1990, (as amended from time to time, the "Indenture"), the Preliminary Official statement relating to the Bonds attached hereto as Exhibit "B" (the "Preliminary Official statement") and the Improvement Bond Act of 1915, constituting Division 10 of the streets and Highways Code of the state of California (the "Act"). (b) By its acceptance of this proposal, the City approves the Preliminary Official statement and the final official statement relating to the Bonds (the "Official Statement") consisting of the Preliminary Official statement with such changes as may be made thereto, with the approval of the City's Attorney, the city's Bond Counsel and the Underwriter, from time to time prior to the Closing Date. The city hereby authorizes the Underwriter to use and distribute in connection with the offer and sale of the Bonds: the Preliminary Official statement, the Official statement the Indenture, this Purchase Contract and all information contained herein, and all other documents, certificates and statements furnished by the city to the Underwriter in connection with the transactions contemplated by this Purchase Contract. (c) Except as the City and the Underwriter may otherwise agree, the city will deliver to the Underwriter at 9:00 a.m. local time, on or before April 26, 1990 or such later date as may be acceptable to the Underwriter (the "CLosing Date"), (i) at the offices of Brown & Diven, in San Diego, California, the Bonds, in definitive form (all Bonds being lithographed on steel engraved borders and bearing CUSIP numbers), duly executed by the City in the manner provided for in the Indenture and the Act; and (ii) at the offices of Brown & Diven, San Diego, California, the other documents hereinafter mentioned and the Underwriter will accept such delivery and pay the purchase price of the Bonds by certified or official bank check payable in immediately available funds (such delivery and payment being herein referred to as the "Closing"). The Bonds shall be made available to the Underwriter not later than 24 hours prior to the Closing Date for purposes of inspection and packaging. The Bonds shall be in fully registered form and shall be registered in accordance with instructions to be supplied to the City by the Underwriter. 2. Representations. The City represents underwriter that: Warranties and Aqreements of and warrants to and agrees the Citv. with the (a) The City is duly organized and validly existing under the Constitution and laws of the State of California and has, and at the Closing Date will have, full legal right, power and authority (i) to enter into this Purchase Contract, (ii) to issue, sell and deliver the Bonds to the Underwriter 2 as provided herein, and (iii) to carry out, give effect to and consummate the transactions contemplated by this Purchase Contract, the Indenture, the Official statement and any City resolutions or agreements referred to therein. (b) The City has complied, and will at the Closing Date be in compliance, in all material respects, with the Indenture, the Act, and all other applicable laws and the agreements referred to in subsection (a) hereof. (c) The City has, or prior to the closing Date, will have, duly and validly: (i) adopted the Indenture and approved and authorized the execution and delivery of the Bonds, this Purchase Contract, the Official statement and any other applicable agreements; and (ii) authorized and approved the performance by the city of its obligation contained in, and the taking of any and all action as may be necessary to carry out, given effect to and consummate the transactions contemplated by, each of said documents; and at the closing Date (assuming due authorization, execution and delivery by the respective other parties thereto, where necessary) the Bonds, the Indenture, this Purchase Contract, and any other applicable agreements will constitute the valid, legal and binding obI igations of the city, enforceable in accordance with their respective terms, subject to bankruptcy, insolvency and other laws affecting the enforcement of creditors' rights in general and to the application of equitable principles if equitable remedies are sought. (d) The City is not, and at the closing Date will not be, in any respect material to the transactions referred to herein or contemplated hereby, in breach of or default under any law or administrative rule or regulation of the state of California, the united states of America, or of any department, division, agency or instrumentality of either thereof, or any applicable court or administrative decree or order, or any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the city is a party or is otherwise subj ect or bound; and the adoption of the Indenture, and the execution and delivery of the Bonds, this Purchase Contract, any other applicable agreements and the other City instruments contemplated by any of such documents to which the City is a party, and compl iance with the provisions of each thereof, will not, in any respect material to the transactions referred to herein or contemplated hereby, confl ict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the state of California, the united states of America, or of any department, division, agency or instrumentality of either thereof, or any applicable court or administrative decree or order or any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a party or is otherwise subject or bound. 3 (e) All approvals, consents, authorizations, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the city of its obligations hereunder and under the Indenture, the Bonds and any other applicable agreements have been obtained and are in full force and effect. (f) The Bonds, the Indenture, and other applicable agreements conform as to form and tenor to the descriptions thereof contained in the Official statement; and the Bonds, when delivered to and paid for by the Underwriter on the Closing date as provided herein, will be validly issued and outstanding and entitled to all the benefits and security of the Indenture. (g) The special assessments referred to in the Official statement have been duly and lawfully levied under and pursuant to the Act, and such assessments constitute valid and legally binding liens on the properties on which they have been levied, all as described in the Official statement. (h) Except as disclosed in the Official statement, there are no outstanding assessment liens against any of the properties within the City's Assessment District No. 977A (the "Assessment District") which are senior to the assessment liens referred to in paragraph (g) hereof. (i) To the best knowledge of the City after diligent inquiry, the Preliminary Official statement is, and the Official statement will be, as of the Closing Date, true, correct and complete in all material respects; and, to the best knowledge of the City after diligent inquiry, the Preliminary Official statement does not, and the Official statement will not, as of the Closing Date, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (j) During the period commencing on the date hereof and ending on the date 90 days following the Closing Date, if any event shall occur of which the City has knowledge and as a result of which it may be necessary to supplement the Official statement in order to make the statements therein, in light of the circumstances existing at such time, not misleading, the city shall forthwith notify the Underwriter thereof and, if in the opinion of the Underwriter such event requires an amendment or supplement to the Official statement, the City will at no expense to the Underwriter amend or supplement the Official statement in a form and manner jointly approved by the City and the Underwriter. 4 (k) The Indenture creates a valid pledge of, lien upon and security interest in the unpaid assessments in the Assessment District and the interest thereon and the moneys in all funds and accounts established pursuant to the Indenture, including the investments thereof, subject in all cases to the provisions of the Indenture permitting the application thereof for the purposes and on the terms and conditions set forth therein. (1) To the best knowledge of the city after diligent inquiry, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, or pUblic board or body (except for actions filed by or on behalf of the City) is pending or threatened, in any way affecting the existence of the City or the titles of its officers to their respective offices or seeking to restrain or to enjoin the issuance, sale or delivery of the Bonds, the application of the proceeds thereof in accord with the Indenture, the collection or application of assessment pledged or to be pledged to pay the principal of and interest on the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the assessments, the Bonds, the Indenture, any other applicable agreements, this Purchase Contract, or any action of the City contemplated by any of said documents, or in any way contesting the completeness or accuracy of the Official statement or the powers of the City or its authority with respect to the Bonds, the Indenture, any other applicable agreements, this Purchase Contract or any action of the city contemplated by any of said documents, or in any way seeking to enjoin or restrain the City from approving the development of any of the property within the Assessment District, or which would adversely affect the exclusion from gross income for purposes of federal income taxes of interest paid on the Bonds or the exemption of such interest from California personal income taxation; nor to the best knowledge of the City is there any basis therefor. (m) The City will furnish such information, execute such instruments and take such other action in cooperation with the Underwriter as the Underwriter may reasonably request to qualify the Bonds for offer and sale under the "blue sky" or other securities laws and regulations of such states and other jurisdictions of the United states as the Underwriter may designate; provided, however, that the City shall not be required to consent to service of process outside of California. (n) Any certificate signed by any official of the City authorized to do so shall be deemed a representation and warranty by the City to the Underwriter as to the statements made therein. 5 (0) The City will apply the proceeds of the Bonds to the acquisition of public improvements of benefit to the Assessment District in accordance with the Indenture and all other applicable documents and as described in the Official statement. (p) The City will not invest or otherwise use proceeds of the Bonds in any manner which would cause the Bonds to be considered arbitrage bonds within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended. (q) The city will give reasonable notice to the Underwriter prior to its approval of any reapportionment of any assessment so as to provide the Underwriter with an opportunity to advise the City whether and to what extent such reapportionment would result in a reduction in the security for the Bonds provided by the unpaid assessment. (r) The city will, at the underwriter's request, take any action reasonably necessary to assure or maintain the exclusion from gross income for purposes of federal income taxes of interest on the Bonds and will not take any action, or permit any action to be taken with respect to which it may exercise control, which would result in the loss of that exclusion. (s) The City will not refund some, but not all, of the Bonds if, as a result of such refunding, the average value to lien ratio applicable to parcels with unpaid assessments securing the Bonds which were not refunded would be less than an average 6.84:1 lien to value ratio. 3. Conditions to the Obliqations of the Underwriter. The obligations of the Underwriter to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the city contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the officers and other officials of the City, as well as of the other individuals referred to herein, made in any certificates or other documents furnished pursuant to the provisions hereof; to the performance by the City of its obligations to be performed hereunder at or prior to the Closing Date; and to the following additional conditions: (a) At the closing Date, the Indenture, and any other applicable agreements shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby and by this Purchase Contract, all such actions as, in 6 the opinion of Brown & Diven ("Bond Counsel"), shall be necessary and appropriate; (b) At the Closing Date, the Official Statement shall be in form and substance satisfactory to the Underwriter. (c) not be District, At the Closing Date, taxes and assessments shall delinquent on properties within the Assessment except as specifically approved by the Underwriter; (d) Between the date hereof and the Closing Date, the market price or marketability of the Bonds (at the yields to be set forth in Exhibit A) shall not have been materially adversely affected, in the jUdgment of the Underwriter (evidenced by a written notice to the City terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following: (i) legislation introduced in or enacted by the Congress or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation has been referred for consideration, or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department of the United States of America or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such interest as would be received by any holder of a Bond; (ii) legislation introduced in or enacted (or resolution passed) by the Congress or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended, or that the Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, including any or all underlying arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws as amended and then in effect; 7 (iii) a general suspension of trading in securities on the New York stock Exchange or the American stock Exchange, the establishment of minimum prices on either such exchange, the establishment of material restrictions (not in force as of the date hereof) upon trading in securities generally by any governmental authority or any national securities exchange, a general banking moratorium declared by federal, State of New York or State of California officials authorized to do so, or a war or other national calamity; (iv) the withdrawal or downgrading of any rating of any securities of the City by a national rating agency; (v) any amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the City, its property, income, securities (or interest thereon), the validity or enforceability of the assessment; (vi) the New York Stock Exchange or other national securi ties exchange or any governmental authority, shall impose, as to the Bonds or obligations of the general character of the Bonds, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, underwriters; (vii) any event occurring, or information becoming known which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or has the effect that the Official statement contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (viii) general political, economic and market conditions which, in the sole opinion of the Underwriter, shall not be satisfactory to permit the sale of the Bonds. (e) At or prior to the Closing Date, the Underwriter shall have received two counterpart originals or certified copies of the following documents, in each case satisfactory in form and substance to the Underwriter: (i) the Official Statement, executed on behalf of the City by the mayor or an authorized member of its City Council, or such other official as may be approved by the Underwriter; 8 (ii) the Indenture, together with a certificate of the City Clerk of the City, dated as of the Closing Date, to the effect that it is a true, correct and complete copy of the one duly adopted by the City and that it has not been amended, modified or rescinded (except as may have been agreed to by the Underwriter) and is in full force and effect as of the Closing Date; (iii) an unqualified opinion, dated the Closing Date and addressed to the City, of Bond Counsel to the effect that the Bonds are the valid, legal, binding obligations of the City and that the interest thereon is excluded from gross income for purposes of federal income taxes, if not a specific preference item for purposes of federal individual and corporate alternative minimum taxes and is exempt from personal income taxes of the state of California, all as provided in the Official statement, together with an unqualified opinion of Bond Counsel, dated the Closing Date and addressed to the Underwriter, to the effect that such opinion addressed to the City may be relied upon by the Underwriter to the same extent as if such opinion was addressed to it; (iv) an opinion, dated the Closing Date and addressed to the Underwriter, of Bond Counsel to the effect that (1) this Purchase Contract has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the Underwriter, constitutes a legal, valid and binding agreement of the city, enforceable in accordance with its terms, subj ect to bankruptcy, insol vency and other laws affecting the enforcement of creditors' rights in general and except as such enforceability may be limited by the application of equitable principles if equitable remedies are sought; (2) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; (3) the Bonds and the Indenture conform as to form and tenor to the descriptions thereof contained in the Official statement, and the statements contained in the Official Statement on the cover and under the captions "Introductory statement", "The Bonds", "Security for the Bonds", "Special Risk Factors", "Miscellaneous Legal Opinion", and "Miscellaneous Tax Exempt", insofar as such statements purport to summarize certain provisions of the Act, the Bonds, the Indenture, and other applicable laws and agreements, present a fair and accurate summary of such provisions, and such summaries do not contain any untrue statements of a material fact or omit to state a material fact required to be stated in the Official Statement or necessary to make the statements made therein, in the light of the circumstances under which they are made, not misleading in any material respect; (4) 9 the Indenture and the Bonds constitute legal, valid and binding agreements of the City enforceable in accordance with their terms except as such enforceability may be limited by bankruptcy, insolvency and other laws affecting the enforcement of creditors I rights in general and the application of equitable principles if equitable remedies are sought; (5) the Indenture creates a valid pledge of, lien upon and security interest in the proceeds of the Bonds, the unpaid assessments in the Assessments District and the interest thereon, and the moneys in all funds and accounts established pursuant to the Indenture, including the investments thereof, subject in all cases to the provisions of the Indenture permitting the application thereof for the purposes and on the terms and conditions set forth therein; (6) the assessments in the Assessment District have been duly and lawfully levied under and pursuant to the Act and constitute valid and legally binding liens on the respective properties on which they were levied; and (7) based upon the information provided to such counsel in the course of their participation in the preparation of the Official statement and (except as provided above) without having undertaken to determine independently the accuracy or completeness of the statements contained in the Official statement, such counsel have no reason to believe that the Official statement (except for the financial and statistical data included therein and assumptions with respect thereto, as to which no view need be expressed) as of the date of the Official statement omitted, or as of the Closing Date omits, to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (v) an opinion, dated the Closing Date and addressed to the Underwriter, of Brown & Diven, Bond Counsel, to the effect that (1) the Bonds are exempt from the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended, and (2) based upon the information made available to them in the course of their participation in the preparation of the Official Statement as bond counsel and without having undertaken to determine independently or assuming any responsibility for the accuracy, completeness or fairness of the statements contained in the Official Statement, such counsel do not believe that the Official Statement, as of its date and as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no opinion or belief need be expressed as to any appendices and any other financial and 10 i------- statistical data such memoranda specified by the contained in the of said firms, Underwriter. Official statement); and or of other counsel (vi) a certificate, dated the Closing Date and signed by the Mayor to the effect that (1) the representations and warranties of the City contained herein are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date; (2) to the best knowledge of said officer, no event has occurred since the date of the Official statement which should be disclosed in the Official Statement in order to make the statements and information therein not misleading in any material respect; and (3) the City has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Purchase Contract, the Indenture, and the Official Statement at and prior to the Closing Date; (vii) An opinion, dated the Closing Date and addressed to the Underwriter, of the City Attorney, to the effect that (1) to his best knowledge after diligent inquiry no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body, is pending or threatened affecting the existence of the City or the titles of its officers to their respective offices, or seeking to restrain or to enj oin the issuance, sale or delivery of the Bonds, the application of the proceeds thereof in accordance with the Indenture, the collection or application of the assessment and the interest thereon to pay the principal of and interest on the Bonds, or contesting or affecting the validity or enforceability of the Bonds, the Indenture, this Purchase Contract, or action of the City contemplated by any of said documents, or contesting the completeness or accuracy of the Official Statement or the powers of the City or its authority with respect to the Bonds, the Indenture, this Purchase Contract, or any action on the part of the City contemplated by any of said documents, or seeking to enjoin or restrain the City from approving the development of any of the property within the Assessment District, or which challenges the exclusion of interest paid on the Bonds from gross income for purposes of federal income taxation or the exemption of such interest from California personal income taxation, nor to his knowledge is there any basis therefor; (2) the City is duly organized and validly existing under the Constitution and laws of the State of California with full legal right, power and authority to issue the Bonds and to perform all of its obligations under this Purchase Contract, and the Bonds; (3) to the best of the knowledge of the City I s Attorney the city has duly and validly adopted the Indenture, and 11 it is in full force and effect; (4) to the best of the knowledge of the City's Attorney the City has duly authorized, executed and delivered this Purchase Contract and the Official statement; (5) to the best of the knowledge of the city's Attorney assuming due authorization, execution and delivery by the Underwriter, this Purchase Contract constitutes a legal, valid and binding agreement of the City enforceable in accordance with its terms, subject to bankruptcy, insolvency and other laws affecting the enforcement of creditors' rights in general and to the application of equitable principles if equitable remedies are sought; and (6) the statements contained in the Official statement (excluding the Appendices thereto as to which no opinion is expressed), to the best of the knowledge of the city's Attorney and without undertaking to verify the same with independent investigation, do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (viii) a transcript of all proceedings relating to the authorization, issuance, sale and delivery of the Bonds; (ix) a certificate, dated the Closing Date, of GFB- Friedrich & Associates, Inc. to the effect that the material contained in the Official statement under the heading "The Assessment District" does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (x) the final appraisal report of Michael Frauenthal & Associates, Inc. setting forth appraised values for the 96 parcels within the Assessment District addressed therein not less than the respective appraised values set forth in the Preliminary Official Statement and a certificate of such person dated the Closing Date, confirming his consent to the reproduction of the appraisal report in the Official statement and to the effect that, as of the date hereof and as of the Closing Date, the appraisal report set forth in the Official statement and the statements in the Official Statement under the caption "Land Values" did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; (xi) such additional legal opinions, certificates (including a non-arbitrage certificate), instruments and 12 other documents as the Underwriter may reasonably request to evidence the truth and accuracy, as of the date hereof and as of the Closing Date, of the City's representations and warranties contained herein and of the statements and information contained in the Official statement and the due performance or satisfaction by the City at or prior to the Closing of all agreements then to be performed and all conditions then to be satisfied by the City in connection with the transactions contemplated hereby and by the Indenture and the Official statement. All the opinions, letters, certificates, instruments and other documents mentioned in this section or elsewhere in this Purchase Contract shall be deemed to be in compliance with the terms hereof if, and only if, they are in form and substance satisfactory to the Underwriter. If any of the conditions to the obligations of the Underwriter contained in this section or elsewhere in this Purchase Contract shall not have been satisfied when and as required herein, all obligations of the Underwriter hereunder may be terminated by the Underwriter at, or at any time prior to, the Closing Date by written notice to the City. 4. Indemnification. The City will indemnify and hold harmless the Underwriter, and each person, if any, who controls the Underwriter within the meaning of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, from and against any and all losses, claims, damages, expenses or liability, joint or several, to which they or any of them may become subject under the Securities Act of 1933, as amended and the Securities Exchange Act of 1934, as amended, or under any other statue or at common law or otherwise, and, except as hereinafter provided, will reimburse the Underwriter and each such controlling person, if any, for any legal or other expenses reasonably incurred by them or any of them in connection with investigating or defending any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact with respect to the information contained in the Official Statement (inClUding the appendices thereto) which the City has supplied or which related directly to the Assessment District or arise out of or are based Upon the omission or alleged omission to state therein a material fact with respect to such information required to be stated therein or necessary in order to make the statements therein not misleading. Promptly after receipt by the Underwriter or any such controlling person of notice of the commencement of any action in respect of which indemnity may be sought against the City under this paragraph, such person will notify the City in writing of the commencement thereof, and, subject to the provisions hereinafter stated, the City may assume the defense 13 of such action (including the employment of counsel, as the case may be, and the payment of expenses) insofar as such action shall relate to any alleged liability in respect of which indemnity may be sought against the city. The Underwriter or any such controlling persons shall have the right to employ counsel in any such action and to provide or participate in the defense thereof, and the fees and expenses of such counsel reasonably incurred shall be at the expense of the city, provided that the city shall consent to the selection of such counsel. The City shall not be liable to indemnify any person for any settlement of any such action effected without its consent. 5. Expenses. (a) Whether or not the Underwriter accepts delivery of and pays for the Bonds as set forth herein, it shall be under no obligation to pay, and the city shall payor cause to be paid (out of the proceeds of the Bonds or any other legally available funds of the city) all expenses incident to the performance of the City's obligations hereunder, including but not limited to the cost of printing, engraving and delivering the Bonds to the Underwriter; the cost of printing, distribution and delivery of the Preliminary Official statement and the Official statement in reasonable quantities as requested by the Underwriter; the fees and disbursements of Bond Counsel, accountants, engineers, appraisers, and any other experts or consultants retained in connection with the Bonds; and any other expenses not specifically enumerated in paragraph (b) of this section incurred in connection with the issuance of the Bonds. (b) Whether or not the Bonds are delivered to the Underwriter as set forth herein, the city shall be under no obligation to pay, and the Underwriter shall pay, all expenses paid or incurred to qualify the Bonds for sale under any "blue sky" laws; and all other expenses paid or incurred by the Underwriter in connection with its offering and distribution of the Bonds not specifically enumerated in paragraph (a) of this section. 6. Notices. Any notice or other communication to be given to the city under this Purchase Contract may be given by delivering the same in writing to Craig A. Graves, city Treasurer, city of San Bernardino, 300 North "D" street, San Bernardino, California 92418; and any notice or other communication to be given to the Underwriter under this Purchase Contract may be given by delivering the same in writing to Bateman Eichler, Hill Richards, Inc., 1205 Prospect street, suite 550, La Jolla, California 92037, Attention: Pamela D. Newcomb. 7. Parties solely for in the Interest. benefit This of the Purchase City and Contract is made the Underwriter 14 (including successors or assignees of the Underwriter) and no other person, including but not limited to any owner of land within the Assessment District, shall acquire or have any right hereunder or by virtue hereof. 8. survival of Representations and Warranties. The representations and warranties of the city, set forth in or made pursuant to this Purchase Contract, shall not be deemed to have been discharged, satisfied or otherwise rendered void by reason of the closing or termination of this Purchase Contract, regardless of any investigations made by or on behalf of the Underwriter (or statements as to the results of such investigations) concerning such representations and statements of the city and regardless of delivery of and payment for the Bonds. 9. Offerincr bv Underwriter. It is understood that the Underwriter proposes to offer the Bonds for sale to the public (which may include selected dealers) as set forth in the Official statement. Concessions from the public offering price may be allowed to selected dealers. It is understood that the initial public offering price and concessions set forth in the Official statement may vary after the initial public offering. It is further understood that the Bonds may be offered to the public at prices other than the par value thereof. The net premium on the sale of the Bonds, if any, shall accrue to the benefit of the Underwriter. The city hereby confirms the authority and use by the Underwriter of the Official statement. 10. Time. Time shall be of the essence of this Agreement. 11. Counteroarts. This Agreement may be executed in any number of counterparts. 15 12. Effective. This Purchase Contract shall become effective and binding upon the respective parties hereto upon the execution of the acceptance hereof by the City and shall be valid and enforceable as of the time of such acceptance. Very truly yours, BATEMAN EICHLER, HILL RICHARDS INCORPORATED By 'T'a."",,<: \.... 1) 'h........., uwo-- First Vice President Accepted: CITY OF SAN -- Its 16 EXHIBIT A TO PURCHASE CONTRACT Maturity September 2 Principal Annual Rate Interest Debt Service 1990 $ 20,440.23 $ 20,440.23 1991 $ 13,412 6.20% 49,056.54 62,468.54 1992 20,000 6.30% 48,225.00 68,225.00 1993 20,000 6.40% 46,965.00 66,965.00 1994 20,000 6.50% 45,685.00 65,685.00 1995 20,000 6.60% 44,385.00 64,385.00 1996 25,000 6.70% 43,065.00 68,065.00 1997 25,000 6.80% 41,390,00 66,390.00 1998 25,000 6.90% 39,690.00 64,690.00 1999 30,000 7.00% 37,965.00 67,965.00 2000 30,000 7.10% 35,865.00 65,865.00 2001 35,000 7.20% 33,735.00 68,735.00 2002 35,000 7.25% 31,215.00 66,215.00 2003 35,000 7.30% 28,677.50 63,677.50 2004 40,000 7.35% 26,122.50 66,122.50 2005 45,000 7.40% 23,182.50 68,182.50 2006 45,000 7.45% 19,852.50 64,852.50 2007 50,000 7.50% 16,500.00 66,500.00 2008 55,000 7.50% 12,750.00 67,750.00 2009 55,000 7.50% 8,625.00 63,625.00 2010 60.000 7.50% 4.500.00 64.500.00 Total $683,412 $657 ,891. 77 $1,341,303.77 The purchase price for the Bonds shall be 98% plus accrued interest on the Bonds from their dated date until the Closing Date. The foregoing dates, amounts, coupon rates and purchase price have been agreed to this 16th day of April, 1990. CITY OF SAN BERNARDINO BATEMAN EICHLER, HILL RICHARDS INCORPORATED By: ~ Mayor --.'-'"""7 By: , {) - c.""",, I~ l). 'vL"'-" <.~ First Vice President EXHIBIT B TO PURCHASE CONTRACT (Attach Preliminary Official statement)