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HomeMy WebLinkAboutResolution 2006-190 road improvement bonds for tangerine farms road improvement district RESOLUTION NO. 2006-190 RESOLOUTION OF THE MAYOR AND COMMON COUNCIL OF THE TOWN OF MARANA, ARIZONA, (1) PROVIDING FOR THE SALE AND ISSUANCE OF NOT TO EXCEED $30,000,000 AGGREGATE PRINCIPAL AMOUNT OF TOWN OF MARANA, ARIZONA TANGERINE FARMS ROAD IMPROVEMENT DISTRICT IMPROVEMENT BONDS; (2) PRESCRIBING CERTAIN TERMS AND CONDITIONS OF THE BONDS INCLUDING THE DELEGATION TO THE MANAGER OF THE TOWN OF MARANA, ARIZONA OF THE AUTHORITY TO DESIGNATE THE FINAL PRINCIPAL AMOUNTS, MATURITY DATES, INTEREST RATE AND YIELDS AND OTHER MATTERS WITH RESPECT TO THE BONDS; (3) MAKING CERTAIN FINDINGS, CERTIFICATIONS AND COVENANTS WITH RESPECT TO THE BONDS; (4) DELEGATING TO SUCH MANAGER THE AUTHORITY TO APPOINT A BOND REGISTRAR AND PAYING AGENT WITH RESPECT TO THE BONDS, APPROVING AN AGREEMENT WITH SUCH BOND REGISTRAR AND PAYING AGENT AND AN AGREEMENT WITH A SECURITIES DEPOSITORY AND AUTHORIZING THE MAYOR OR VICE MAYOR OF THE TOWN TO EXECUTE AND DELIVER SUCH AGREEMENTS; (5) DELEGATING TO SUCH MANAGER THE AUTHORITY TO ACCEPT A PROPOSAL FOR THE PURCHASE OF THE BONDS, APPROVING A BOND PURCHASE AGREEMENT WITH RESPECT TO SUCH PROPOSAL AND AUTHORIZING THE MAYOR OR VICE MAYOR OF THE TOWN TO EXECUTE AND DELIVER SUCH AGREEMENT; (6) RATIFYING ALL ACTIONS TAKEN WITH RESPECT TO THE PREPARATION AND DISTRIBUTION OF A PRELIMINARY OFFICIAL STATEMENT WITH RESPECT TO THE BONDS INCLUDING THE DELEGATION TO SUCH MANAGER OF THE AUTHORITY TO APPROVE THE FORM THEREOF AND TO DEEM THE SAME FINAL; (7) DELEGATING TO SUCH MANAGER THE AUTHORITY TO APPROVE A FORM OF OFFICIAL STATEMENT WITH RESPECT TO THE BONDS, AUTHORIZING THE MAYOR OR VICE MAYOR OF THE TOWN TO EXECUTE SUCH OFFICIAL STATEMENT AND AUTHORIZING DISTRIBUTION OF SUCH OFFICIAL STATEMENT; (8) APPROVING A CONTINUING DISCLOSURE UNDERTAKING PERTAINING TO PROVIDING CERTAIN FUTURE INFORMATION WITH RESPECT TO THE BONDS AND AUTHORIZING THE MAYOR OR VICE MAYOR OF THE TOWN TO EXECUTE AND DELIVER SUCH UNDERTAKING; (9) RATIFYING ALL ACTIONS TAKEN TO FURTHER THIS RESOLUTION AND AUTHORIZING THE TAKING OF ALL OTHER ACTIONS NECESSARY TO THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS RESOLUTION AND (10) DECLARING AN EMERGENCY WHEREAS, on June 6, 2006, the Mayor and Common Council of the Town of Marana, Arizona (the "Town"), passed and adopted Resolution No. 2006-76 (the "Resolution of Intention") which declared its intention to provide the "Work" defined in the Resolution of Inten- tion, determined that improvement bonds be issued and sold to represent the costs and expenses thereof (the "Bonds") and declared the Work to be of more than local or ordinary public benefit and that the costs and expenses thereof be assessed upon a certain district, provided that the Work be performed under the provisions of Title 48, Chapter 4, Article 2, Arizona Revised Statutes, and all amendments thereto (the "Act"), the Work, the district to be assessed (the "District") and the Bonds to be issued and sold being fully described in the Resolution of Intention to which reference is hereby made for such descriptions; and WHEREAS, a copy of the Resolution of Intention was published in the Daily Territorial, a newspaper generally circulated in the Town, as required by law; and WHEREAS, a copy of the Resolution of Intention was published in the Daily Territorial, a newspaper generally circulated in the Town, as required by law; and WHEREAS, the Superintendent of Streets of the Town (the "Superintendent of Streets") caused to be posted along the line of the Work on the streets, alleys and rights-of-way to be improved, at not more than three hundred (300) feet apart, notices of the passage of the Resolution of Intention, said notices being headed in letters at least one (1) inch in height and stating the fact of the passage of the Resolution of Intention; and WHEREAS, within the fifteen (15) days since the date of the last publication of the Resolution of Intention and the completion of the posting of such notices, no protests against the Work or objections to the extent of the District were filed with the Clerk of the Town during the time prescribed by law; and WHEREAS, as such, the furnishing of all labor, materials, transportation, services and equipment for the Work was ordered by Resolution No. 2006-108 adopted on July 18,2006 by the Mayor and Cornmon Council ofthe Town; and WHEREAS, upon completion of final plans and specifications for the Work (induding any addendums with respect thereto, the "Final Plans and Specifications") and the filing thereof with the Clerk of the Town, sealed proposals were received pursuant to an "Advertisement for Bids and Notice of the Passage of the Resolution Ordering the Improvement and Inviting Sealed Proposals for the Work For Town of Marana, Arizona Tangerine Farms Road Improvement District" (the "Notice"), which was duly published as provided by law, for the Work; and WHEREAS, the proposal of Hunter Contracting Co. (the "Contractor") was determined to be the lowest and best bid of a responsible bidder for the kind of material and specifications set forth in the Final Plans and Specifications at the unit prices named for the Work in such proposal on file in the Office of the Clerk of the Town, and such proposal in all respects complied with the terms of the Notice; and WHEREAS, the total amount bid by the Contractor for the Construction Contract was $23,459,459.00 and the total amount of the costs (induding for the Construction Contract) and the incidental expenses, before the addition of capitalized interest, as shown in the engineer's official estimate, was $27,577,500.15; and WHEREAS, on October 3, 2006, the Mayor and Council of the Town passed and adopted Resolution No. 2006-158 (the "Resolution Ordering Work") which awarded the contract for the Work (the "Construction Contract") to the Contractor and provided that not more than $748,357.26 would be contributed by the Town with respect to the Work; and WHEREAS, MMLA Psomas, the Engineers for the District, prepared and presented to the Mayor and Common Council of the Town duplicate diagrams of the property contained within the District showing each separate lot, numbered consecutively, the approximate areas in square feet of each lot, and the location of the lot in relation to the Work (the "Diagram"), which were approved by the Mayor and Common Council of the Town by the Resolution Ordering Work along with the method of assessment to be applied with respect to the Diagram (which the Mayor and Cornmon Council of the Town hereby ratify and confirm, induding the fact that the acquisition of certain property necessary with regard to the Work, the payment of the cost of certain of the Work on behalf of a property owner from whom certain of such property was necessary and a portion of the cost of the railroad underpass are to be assessed directly against property owned by the Town); and 2 WHEREAS, the Superintendent of Streets has heretofore entered into the Construction Contract with the Contractor whereby the Contractor agreed to construct the Work in accordance with the Final Plans and Specifications and its proposal; and WHEREAS, the Superintendent of Streets will levy and record an assessment, indicating the several assessments imposed on the lots or parcels of land benefited by the Work in the District (the "Assessment"), and the Superintendent of Streets will execute, and the Mayor of the Town will countersign, a warrant to the Finance Director of the Town (the "Finance Director") to collect the Assessment; and WHEREAS, the Assessment and such warrant will be returned by the Finance Director as prescribed by law; and WHEREAS, the certified list of unpaid amounts with respect to the Assessment will be filed with the Clerk of the Town by the Superintendent of Streets indicating the amount that is unpaid; and WHEREAS, the Mayor and Common Council of the Town have determined to sell and issue the Bonds in the aggregate principal amount of not to exceed $30,000,000, payable from the Assessment and to provide for certain other matters related thereto; and WHEREAS, the Mayor and Common Council of the Town will receive a proposal from Stone & Youngberg LLC (the "Underwriter"), and has determined that the Bonds should be sold through negotiation to the Underwriter; and WHEREAS, the Mayor and Common Council of the Town desire to (i) authorize the sale and issuance to the Underwriter of the Bonds; (ii) delegate to the Manager of the Town the authority to determine certain of the terms of the Bonds and various other matters; (iii) prescribe the form of the Bonds and (iv) ratify and confirm all prior acts of the Mayor and Common Council of the Town, of Jocelyn C. Bronson while acting as Clerk of the Town, of Kevin Brann while acting as Superintendent of Streets of the Town, and of Eric Montague while acting as Finance Director ofthe Town with respect to the District; and WHEREAS, all things required to be done preliminary to the authorization and issuance of the Bonds have been duly done and performed in the manner required by law, and the Mayor and Common Council of the Town are now empowered to proceed with the authorization of the sale and issuance of the Bonds, NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE TOWN OF MARANA, ARIZONA, THAT: Section 1. (A) The Bonds, to be designated "Town of Marana, Arizona Tangerine Farms Road Improvement District Improvement Bonds," are authorized to be offered and publicly sold and issued by the Town as special assessment improvement bonds pursuant to, and in accordance with, the provisions of the Act and this Resolution to provide funds for the purposes set forth in the Resolution of Intention and the Resolution Ordering the Work. (B) The Manager of the Town is hereby authorized and directed to determine on behalf of the Town: (1) the dated date and total principal amount ofthe Bonds (but not to exceed $30,000,000 aggregate principal amount); (2) the final principal and maturity date schedules of the Bonds (but none of the Bonds to mature more than twenty-five (25) years from their date of issuance); (3) the interest rate of the Bonds (but not to exceed eight percent (8%) per annum) and the dates for payment of such interest (the "interest payment dates"); (4) the 3 provisions for redemption in advance of maturity of the Bonds; (5) the sales price, sales date and sales terms of the Bonds (including for original issue discount) and (6) the provision for credit enhancement, if any, for the Bonds upon the advice of the Underwriter; provided, however, that such determinations must result in a yield for federal income tax purposes of not to exceed seven percent (7%) with respect to the Bonds. (C) The Bonds shall bear interest at the single per annum rate determined as described hereinabove from their date to the maturity or prior redemption of each Bond, payable on the interest payment dates. The Bonds shall be issued in the denominations of $1,000 of principal amount due on a specific maturity date or integral multiples thereof and only in fully registered form and be numbered, by maturity, from" 1 " consecutively upwards. (D) A "Bond Registrar and Paying Agent" with respect to the Bonds shall be appointed by the Manager of the Town, and the Town shall comply with and carry out all the provisions of a standard form of Bond Registrar and Paying Agent Agreement with respect thereto which is hereby approved and which the Mayor or, in the absence thereof, Vice Mayor of the Town is hereby authorized, for and on behalf of the Town, to execute, and the Clerk of the Town to attest and deliver, in a final form satisfactory to the Mayor or, in the absence thereof, Vice Mayor of the Town, which by the execution thereof the same so finds. The Bond Registrar and Paying Agent shall maintain the books of the Town for the registration of ownership of each Bond. A Bond may be transferred on the registration books upon delivery of the Bond to the Bond Registrar and Paying Agent, accompanied by a written instrument of transfer in form and with guaranty of signature satisfactory to the Bond Registrar and Paying Agent, duly executed by the registered owner of the Bond to be transferred or the attorney-in-fact or legal representative thereof, containing written instructions as to the details of the transfer of such Bond. No transfer of any Bond shall be effective until entered on the registration books. (E) The principal of and premium, if any, on the Bonds shall be payable upon presentation and surrender thereof at the designated corporate trust office of the Bond Registrar and Paying Agent. Interest on the Bonds shall be payable by check mailed to the registered owner thereof, as shown on the registration books for the Bonds maintained by the Bond Registrar and Paying Agent at the address appearing therein at the close of business on the 15th day of the calendar month next preceding that interest payment date. The principal of and premium, if any, or interest on the Bonds shall be payable in lawful money of the United States of America. (F) In all cases upon the transfer of a Bond, the Bond Registrar and Paying Agent shall enter the transfer of ownership in the registration books and shall authenticate and deliver in the name of the transferee or transferees a new fully registered Bond or Bonds, as the case may be, of the appropriate denominations (except that no Bond shall be issued which relates to more than a single principal maturity) for the aggregate principal amount which the registered owner is entitled to receive at the earliest practicable time in accordance with the provisions of this Section. The Town or the Bond Registrar and Paying Agent shall charge the registered owner of such Bond, for every such transfer of a Bond, an amount sufficient to reim- burse them for any transfer fee, tax or governmental charge required to be paid with respect to such transfer and may require that such transfer fee, tax or governmental charge be paid before any such new Bond shall be delivered. (G) The Town and the Bond Registrar and Paying Agent shall not be required to issue or transfer any Bonds during a period beginning with the opening of business on the 15th business day next preceding either any interest payment date or any date of selection of Bonds to be redeemed and ending with the close of business on the interest payment date or 4 day on which the applicable notice of redemption is given or to transfer any Bonds which have matured or have been selected for redemption. (H) (1) Based on the determinations made as described hereinabove, the Bonds shall be subject to redemption prior to maturity, in whole or in part, on any date on or after a date determined by the Manager of the Town from prepaYment of, and from amounts collected pursuant to a public auction of property upon a delinquency in paYment of installments of, the Assessment by the paYment of the principal amount of each Bond to be redeemed plus interest accrued to the date fixed for redemption and plus a premium, the premium to be calculated as a percentage of the principal amount of such Bond to be redeemed, as determined by the Manager ofthe Town. (2) Based on such determinations, the Bonds shall also be subject to redemption prior to maturity, in whole or in part, on any date determined by the Manager of the Town by the paYment ofthe principal amount of each Bond to be redeemed, plus accrued interest to the date fixed for redemption and plus a premium, the premium to be calculated as a percentage of the principal amount of such Bond to be redeemed, as determined by the Manager ofthe Town. (I) The maturity of Bonds to be redeemed shall be chosen by the Town, and the Bonds within such maturity shall be chosen by lot from that maturity by the Bond Registrar and Paying Agent, but in any case, only so that approximately equal debt service shall be paid each year. (J) Not more than forty-five (45) nor less than thirty (30) days before any redemption date, the Bond Registrar and Paying Agent shall cause a notice of any such redemption to be mailed by first-class mail, postage prepaid, to the registered owner of each Bond to be redeemed at the address shown on the registration books maintained by the Bond Registrar and Paying Agent. Failure to mail notice to any registered owner of Bonds shall not affect the validity of the proceedings for the redemption of Bonds with respect to the registered owners of other Bonds. (K) The Bonds shall be subject to a Book-Entry System (as that term is hereinafter defined) of ownership and transfer, except as provided in subsection (3) of this subsection. The general provisions for effecting the Book-Entry System are as follows: (1) The Town hereby designates The Depository Trust Company, New York, New York, as the initial Depository (as that term is hereinafter defined) hereunder. (2) Notwithstanding the provisions regarding exchange and transfer of Bonds under subsections (D), (E), (F) and (G) of this section, the Bonds shall initially be evidenced by one typewritten certificate for each maturity, in an amount equal to the aggregate principal amount thereof. The Bonds so initially delivered shall be registered in the name of "Cede & Co." as nominee for The Depository Trust Company. The Bonds may not thereafter be transferred or exchanged on the registration books of the Town maintained by the Bond Registrar and Paying Agent except: (a) to any successor Depository designated pursuant to subsection (3) of this subsection; (b) to any successor nominee designated by a Depository or 5 (c) if the Town shall elect to discontinue the Book- Entry System pursuant to subsection (3) of this subsection, the Town shall cause the Bond Registrar and Paying Agent to authenticate and deliver replacement Bonds in fully registered form in authorized denominations in the names of the Beneficial Owners or their nominees, as certified by the Depository, at the expense of the Town; thereafter the provisions of subsections (D), (E), (F), (G) and (H) of this subsection regarding registration, transfer and exchange of the Bonds shall apply. (3) The Bond Registrar and Paying Agent, pursuant to a request from the Town for the removal or replacement of the Depository, and upon thirty (30) days' notice to the Depository, may remove or replace the Depository. The Bond Registrar and Paying Agent shall remove or replace the Depository at any time pursuant to the request of the Town. The Depository may determine not to continue to act as Depository for the Bonds upon thirty (30) days written notice to the Town and the Bond Registrar and Paying Agent. If the use of the Book Entry System is discontinued, then after the Bond Registrar and Paying Agent has made provision for notification of the Beneficial Owners of their book entry interests in the Bonds by appropriate notice to the then Depository, the Town and the Bond Registrar and Paying Agent shall permit withdrawal of the Bonds from the Depository and authenticate and deliver the Bond certificates in fully registered form and in denominations authorized by this Section to the assignees of the Depository or its nominee. Such withdrawal, authentication and delivery shall be at the cost and expense (including costs of printing or otherwise preparing, and delivering, such replacement Bond certificates) of the Town. (4) So long as the Book-Entry System is used for the Bonds, the Town and the Bond Registrar and Paying Agent shall give any notice of redemption or any other notices required to be given to registered owners of Bonds only to the Depository or its nominee registered as the owner thereof. Any failure of the Depository to advise any of its participants, or of any participant to notify the Beneficial Owner, of any such notice and its content or effect shall not affect the validity of the redemption of the Bonds to be redeemed or of any other action premised on such notice. Neither the Town nor the Bond Registrar and Paying Agent shall be responsible or liable for the failure of the Depository or any participant thereof to make any payment or give any notice to a Beneficial Owner in respect of the Bonds or any error or delay relating thereto. (5) Notwithstanding any other provision of this Resolution or the Bonds to the contrary, so long as the Bonds are subject to a Book-Entry System, it shall not be necessary for the registered owner to present the applicable Bond for payment of mandatory redemption installments, if any. The mandatory redemption installments may be noted on books kept by the Bond Registrar and Paying Agent and the Depository for such purpose, and the Bonds shall be tendered to the Bond Registrar and Paying Agent at their maturity. (6) For purposes of this Resolution, "Beneficial Owners" shall mean actual purchasers of the Bonds whose ownership interest is evidenced only in the Book-Entry System maintained by the Depository, "Book-Entry System" shall mean a system for clearing and settlement of securities transactions among participants of a Depository (and other parties having custodial relationships with such participants) through electronic or manual book-entry changes in accounts of such participants maintained by the Depository hereunder for recording ownership of the Bonds by Beneficial Owners and transfers of ownership interests in the Bonds, and "Depository" 6 shall mean The Depository Trust Company, New York, New York or any successor depository designated pursuant to this Section. (L) The Bonds shall be executed on behalf of the Town by the manual or facsimile signature of the Mayor of the Town and attested by the manual or facsimile signature of the Clerk of the Town, and such officials are hereby authorized and directed to execute the Bonds as aforesaid. (M) The Bonds shall be in substantially the following form, allowing those executing the Bonds to make insertions and deletions necessary to conform the Bonds as provided by the delegations allowed by this Resolution: 7 UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE TOWN OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. REGISTERED NO. ........... REGISTERED $......... UNITED STATES OF AMERICA STATE OF ARIZONA COUNTY OF PIMA TOWN OF MARANA, ARIZONA TANGERINE FARMS ROAD IMPROVEMENT DISTRICT IMPROVEMENT BOND Interest Rate: ...% per annum Maturity Date: January 1, .... Original Issue Date: .......... 1, 2006 CUSIP: REGISTERED OWNER: CEDE & CO. PRINCIP AL AMOUNT: ...................................... DOLLARS KNOW ALL MEN BY THESE PRESENTS: THAT THE TOWN OF MARANA, ARIZONA, a duly organized municipal corporation (the "Town"), for value received, hereby promises to pay to the Registered Owner specified above or registered assigns, solely from the sources hereinafter specified, the Principal Amount specified above on the aforesaid Maturity Date and to pay interest on the Principal Amount at the aforesaid Interest Rate on ............ 1, ...., and on January 1 and July 1 of each year thereafter (each an "interest payment date") from the date of this Bond to its maturity or its redemption prior to maturity. The principal of and premium, if any, on this Bond are payable upon presentation and surrender hereof at the designated corporate trust office of .......................... .............. ................, as "Bond Registrar and Paying Agent." Interest on this Bond is payable by check or draft mailed to the Registered Owner as shown on the registration books for the Bonds of the issue of which this Bond is one (the "Bonds") maintained by the Bond Registrar and Paying Agent at the address appearing therein at the close of business on the 15th day of the calendar month next preceding that interest payment date. The principal of and any premium, if any, and interest on this Bond are payable in lawful money of the United States of America on the respective dates when principal and interest become due. This Bond is one of an issue of ........................... Dollars ($......,000) in aggregate principal amount issued pursuant to law and Resolution No. 2006-_ adopted on November 21, 2006 (the "Resolution"), by the Mayor and Common Council of the Town, for the work and improvements described (i) in the "Plans" on file in the offices of the Superintendent of Streets 8 and Clerk of the Town described in Resolution No. 2006-75, adopted on June 6, 2006 (the "Resolution of Intention"), by the Mayor and Common Council of the Town and (ii) in summary fashion in Exhibit C to the Resolution of Intention (collectively, the "Work") to be performed, the Work having been initiated pursuant to the Resolution of Intention, and is payable only out of a special fund to be held by the Town, collected from installments of special assessments imposed on the lots, pieces and parcels ofland benefited by the Work (the "Special Fund"). The Special Fund is set apart by law for the payment of the Bonds and can be used for no other purpose. It is hereby certified and declared that the Work is authorized by law; that all the acts, conditions and things required to be done, precedent to and in the issuance of the Bonds, have been done and performed in regular and due form as required by the laws of the State of Arizona and all ordinances and resolutions of the Town; that the special assessments out of which the Bonds are to be paid are first liens on the property assessed, subject only to the lien for general taxes and prior special assessments; and that any bona fide purchaser for value of this Bond has the right to rely on the recitals herein contained. For the assessment or reassessment, collection and payment of said special assessments, the full faith and diligence of the Town are hereby irrevocably pledged. The Bonds are subject to redemption prior to maturity, in whole or in part, on any interest payment date on or after .......... 1,200.., from prepayment ofthe special assessments out of which the Bonds are to be paid and from amounts collected pursuant to a public auction of property upon a delinquency in payment of installments of such an assessment by the payment of the principal amount of each Bond to be redeemed plus interest accrued to the date fixed for redemption and plus a premium, the premium to be calculated as a percentage of the principal amount of such Bond to be redeemed as follows: Redemption Dates Premium January 1, ...., through and including December 31, .... January 1, ...., through and including December 31, .... January 1, ...., and thereafter ...% The Bonds are also subject to redemption prior to maturity, in whole or in part, on any date on or after January 1, 20.., by the payment of the principal amount of each Bond to be redeemed, plus interest accrued to the date fixed for redemption and plus a premium, the premium to be calculated as a percentage of the principal amount of such Bond to be redeemed as follows: Redemption Dates Premium January 1, ...., through and including December 31,.... January 1, ...., through and including December 31, .... January 1, ...., and thereafter ...% Mandatory Redemption. The Bonds maturing on January 1 of the following years will be redeemed on January 1 of the following years (and as chosen by lot by the Bond Registrar and Paying Agent from such maturity) and in the following principal amounts at a price equal to the principal amount thereof plus interest accrued to the date of redemption, but without premium: Term Bond Maturing January 1, 20.. 9 Year Redeemed Principal Amount Redeemed $...,000 ...,000 Term Bond Maturing January 1,20.. Year Redeemed Principal Amount Redeemed $...,000 ...,000 The maturity of the Bonds to be redeemed shall be chosen by the Town, and the Bonds within such maturity shall be chosen by lot from that maturity by the Bond Registrar and Paying Agent, but in any case, only so that approximately equal principal shall be paid each year. Not more than 45 nor less than 30 days before any redemption date, the Bond Registrar and Paying Agent shall cause a notice of any such redemption to be mailed by first-class mail, postage prepaid, to the registered owner of each Bond to be redeemed at the address shown on the registration books maintained by the Bond Registrar and Paying Agent. Failure to mail notice to any registered owner of Bonds shall not affect the validity of the proceedings for the redemption of Bonds with respect to the registered owners of other Bonds. The Bond Registrar and Paying Agent will maintain the registration books of the Town for the registration of ownership of each Bond as provided in the Resolution. This Bond may be transferred on the registration books upon delivery hereof to the Bond Registrar and Paying Agent, accompanied by a written instrument of transfer in form and with guaranty of signature satisfactory to the Bond Registrar and Paying Agent, duly executed by the registered owner of this Bond or the attorney-in-fact or legal representative thereof, containing written instructions as to the details of the transfer. No transfer of this Bond shall be effective until entered on the registration books. The Town and the Bond Registrar and Paying Agent will not be required to issue or transfer any Bonds during a period beginning with the opening of business on the 15th business day next preceding either any interest payment date or any date of selection of Bonds to be redeemed and ending with the close of business on the interest payment date or day on which the applicable notice of redemption is given or to transfer any Bonds which have matured or have been selected for redemption. In all cases upon the transfer of a Bond, the Bond Registrar and Paying Agent will enter the transfer of ownership in the registration books and will authenticate and deliver in the name of the transferee or transferees a new fully registered Bond or Bonds of the denominations of $1,000 or any integral multiple thereof (except that no Bond shall be issued which relates to more than a single principal maturity) for the aggregate principal amount which the registered owner is entitled to receive at the earliest practicable time in accordance with the provisions of the Resolution. The Town or the Bond Registrar and Paying Agent will charge the registered owner of such Bond, for every such transfer of a Bond, an amount sufficient to reimburse them for any transfer fee, tax or other governmental charge required to be paid with respect to such transfer, and may require that such transfer fee, tax or governmental charge be paid before any such new Bond shall be delivered. This Bond shall not be entitled to any security or benefit under the Resolution or be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Bond Registrar and Paying Agent. 10 IN WITNESS WHEREOF, the TOWN OF MARANA, ARIZONA, has caused this Bond to be signed in its name by the facsimile signature of the Mayor of the Town and attested by the facsimile signature ofthe Clerk ofthe Town. TOWN OF MARANA, ARIZONA BX......... .~~ ~~~~~.~~~)...... Mayor, Town of Marana, Arizona ATTEST: ......... ~~.~~~~~~!~~..... Clerk, Town of Marana, Arizona Date of Authentication: CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds described in the within-mentioned Resolution and is one of the Town of Marana, Arizona Tangerine Farms Road Improvement District Improvement Bonds. ............. ........................, as Bond Registrar and Paying Agent By................................. Authorized Representative 11 ASSIGNMENT For value received, the undersigned sells, assigns and transfers unto .............................. the within Bond and irrevocably constitutes and appoints ................. attorney to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: ................... Signature Signature Guaranteed: [Insert proper legend) Notice: The assignor's signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without alteration or any change whatsoever. ALL FEES AND COSTS OF TRANSFER SHALL BE PAID BY THE TRANSFEROR The following abbreviations, when used in the inscription on the face of the within Bond, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - TEN ENT - JT TEN - as tenants in common as tenants by the entireties as joint tenants with right of survivorship and not as tenants in common UNIF GIFT/TRANS MIN ACT - .......... Custodian ........ (Cust) (Minor) under Uniform Gifts/Transfers to Minors Act ........... (State) Additional abbreviations may also be used though not included in the above list. 12 Section 2. If there is a deficiency in the funds collected from the Assessment to pay the principal of or interest on the Bonds when due, the Town shall, pursuant to the authority contained in Title 48, Chapter 4, Article 2, Section 48-609, Arizona Revised Statutes, as amended, and without condition, on or before December 31 and June 30 in each of the years in which the payments of the principal of or interest on the Bonds are due, make good such deficiency by making a temporary loan to the special fund which is set apart for the payment of the principal of or interest on the Bonds (the "Special Fund"), so that the principal of and the interest on the Bonds shall be paid when due on the next succeeding January 1 or July 1 as the case may be. Section 3. The proceeds of the sale of the Bonds (which will be net of underwriting discount of the Underwriter and from which amounts due bond counsel, in both cases in the amounts indicated in the Estimate, shall be paid in connection with initial delivery of the Bonds), together with the cash collections and money to be contributed by the Town, if any, shall be placed in a special fund (the "Construction Fund") to be held by the Finance Director of the Town and to be used for payment, or reimbursement for prior payments by the Town, of incidental expenses, condemnation and acquisition costs and expenses, interest, if any, during construction and not more than six (6) months thereafter to be paid from such proceeds (the "Capitalized Interest") and for payments to the Contractor for construction of the Work. The Capitalized Interest shall be held in a special subaccount in the Construction Fund and applied only to pay interest on the Bonds. The remaining proceeds of the sale of the Bonds deposited in the Construction Fund (after payment of such incidental expenses and condemnation and acquisition costs and expenses) shall be used to make monthly payments to the Contractor on a basis of ninety percent (90%) of the value of the work actually performed, as estimated by the Superintendent of Streets of the District, to and including the last day of each preceding calendar month. The balance due the Contractor shall be paid after the Mayor and Common Council of the Town have approved the Assessment after the hearing thereon. Pending use of the proceeds of the sale of the Bonds, the Finance Director of the Town shall invest the proceeds of the Bonds deposited to the Construction Fund as permitted by law. Upon the completion of construction of the Work and the approval of the Assessment, all moneys remaining in the Construction Fund not expected to be used to pay the final amounts owed to the Contractor or for the payment of interest or the payment of final incidental expenses and condemnation costs and expenses shall, except to the extent returned to owners of property in the District who have heretofore made cash payments to the Town, be transferred to the principal account of the Special Fund and be applied to the payment of the Bonds. Section 4. (A) The Manager of the Town is hereby authorized to accept a proposal of the Underwriter for the purchase of the Bonds, and the Bonds are hereby ordered sold to the Underwriter substantially in accordance with the terms of the Purchase Contract presented to the Mayor and Common Council of the Town at the meeting at which this Resolution is adopted, as completed with the terms of such proposal (the "Bond Purchase Agreement"). The Mayor, or in the absence thereof, Vice Mayor of the Town is hereby authorized to execute, and the Clerk of the Town to attest and deliver, the Bond Purchase Agreement, for and on behalf of the Mayor and Common Council of the Town, in substantially the form submitted to them at the meeting at which this Resolution was adopted and in a final form satisfactory to the Mayor, or in the absence thereof, Vice Mayor of the Town, and such execution by the Mayor or Vice Mayor of the Town shall indicate the approval thereof on behalf of the Mayor and Common Council ofthe Town by the Mayor or Vice Mayor of the Town. (B) The Mayor and other officers of the Town are hereby authorized and directed to cause the Bonds to be delivered to or upon the order of the Underwriter upon receipt of payment therefor and satisfaction of the other conditions for delivery thereof in accordance with the terms of the sale provided in the Bond Purchase Agreement. 13 Section 5. (A) (1) The preparation, distribution and use of the Preliminary Official Statement relating to the Bonds in substantially the form presented to the Mayor and Common Council of the Town before the meeting at which this Resolution was adopted is in all respects hereby ratified, approved and confirmed, and the Mayor, or in the absence thereof, Vice Mayor of the Town is hereby authorized to deem the same "final" for purposes of applicable securities laws when finalized. (2) The Underwriter is authorized to cause to be prepared, and the Mayor, or in the absence thereof, Vice Mayor of the Town is authorized and directed to approve, on behalf of the Mayor and Common Council of the Town, and the Mayor or Vice Mayor of the Town to execute and deliver, a final Official Statement in substantially the form of the Preliminary Official Statement, modified to reflect matters related to the sale of the Bonds, for distribution and use in connection with the offering and sale of the Bonds. The execution and delivery of such final Official Statement by the Mayor, or in the absence thereof, Vice Mayor of the Town shall be conclusively deemed to evidence the approval of the status, form and contents thereofby the Mayor and Common Council ofthe Town. (B) The City shall comply with and carry out all the provisions of a continuing disclosure undertaking, to be dated the date of initial issuance of the Bonds (the "Undertaking"), with respect to the Bonds which the Mayor, or in the absence thereof, Vice Mayor of the Town is hereby authorized, for and on behalf of the Mayor and Common Council of the Town, to execute, and the Clerk of the Town to attest and deliver, in substantially the form included in the Preliminary Official Statement, with such additions, deletions and modifications as shall be approved by the Manager of the Town, and such execution and delivery shall constitute evidence of the approval of such officer of any departures from the form included in the Preliminary Official Statement. Notwithstanding any other provision of this Resolution, failure of the City (if obligated pursuant to the Undertaking) to comply with the Undertaking shall not be considered an event of default; however, any Beneficial Owner (as such term is here- inafter defined) may take such actions as may be necessary and appropriate, including seeking specific performance by court order, to cause the District to comply with its obligations under this Section. For purposes of this Section, "Beneficial Owner" means any person which (a) has the power, directly or indirectly, to vote or consent with respect to, or to dispose of ownership of, any Bonds or Certificates (including persons holding Bonds or Certificates through nominees, depositories or other intermediaries), or (b) is treated as the owner of any Bonds or Certificates for federal income tax purposes. Section 6. All prior acts of the Mayor and Common Council of the Town, of Jocelyn C. Bronson while acting as Clerk of the Town, of Kevin Brann while acting as Superintendent of Streets of the Town and of Eric Montague while acting as Finance Director of the Town are hereby ratified and confirmed. The Mayor, or in the absence thereof, Vice Mayor ofthe Town and the other officers ofthe Town are hereby authorized to execute such certificates and receipts as in the opinion of Bond Counsel are necessary in connection with the issuance and delivery of the Bonds. Section 7. (A) No investment or other use of the proceeds of any Bonds shall be made or directed to be made which would cause such Bonds to be "arbitrage bonds" as that term is defined in Section 148 (or any successor provision thereto) of the Internal Revenue Code of 1986, as amended, or "private activity bonds" as that term is defined in Section 141 (or any successor provision thereto) of such Code, and the requirements of such Code sections and related regulations shall be complied with throughout the term of the Bonds. The procedures and covenants contained in any arbitrage rebate provision or separate agreement executed in connection with the issuance of the Bonds shall be complied with for so long as compliance is necessary in order to maintain the exclusion from gross income for federal income tax purposes 14 of interest on the Bonds. In consideration of the purchase and acceptance of the Bonds by the holders from time to time thereof and of retaining such exclusion and as authorized by Title 35, Chapter 3, Article 7, Arizona Revised Statutes, as amended, the Mayor and Common Council of the Town covenants, and the appropriate officials of the Town are hereby directed, to take all action required to preserve such exclusion or to refrain from taking any action prohibited by such Code which would adversely affect in any respect such exclusion. (B) All necessary and desirable steps to comply with the requirements hereunder in order to ensure that interest on the Bonds is excluded from gross income for federal income tax purposes under such Code shall be taken; provided, however, compliance with any such requirement shall not be required in the event the Town receives a Bond Counsel's Opinion (as such term is defined in the next section) that either (i) compliance with such requirement is not required to maintain the exclusion from gross income of interest on the Bonds, or (ii) compliance with some other requirement will meet the requirements of such Code. In the event the Town receives such a Bond Counsel's Opinion, this Resolution shall be amended to conform to the requirements set forth in such opinion. (C) If for any reason any requirement hereunder is not complied with, all necessary and desirable steps to correct such noncompliance shall be taken within a reasonable period of time after such noncompliance is discovered or should have been discovered with the exercise of reasonable diligence, and the Town shall pay any required interest or penalty under Regulations section 1.148-3(h) hereinafter described. Section 8. (A) Terms not otherwise defined in Subsection (B) hereof shall have the meanings given to them in the arbitrage certificate of the Town delivered in connection with the issuance of the Bonds. (B) The following terms shall have the following meanings: Bond Counsel's Opinion shall mean an opinion signed by an attorney or firm of attorneys of nationally recognized standing in the field of law relating to municipal bonds selected by the Town. Bond Year shall mean each one-year period beginning on the day after the expiration of the preceding Bond Year. The first Bond Year shall begin on the date of issue of the Bonds and shall end on the date selected by the Town, provided that the first Bond Year shall not exceed one calendar year. The last Bond Year shall end on the date of retirement of the last Bond. Bond Yield is as indicated in such arbitrage certificate. Bond Yield shall be recomputed if required by Regulations section 1.148-4(b)(4) or 4(h)(3). Bond Yield shall mean the discount rate that produces a present value equal to the Issue Price of all unconditionally payable payments of principal, interest and fees for qualified guarantees within the meaning of Regulations section 1.148-4(f) and amounts reasonably expected to be paid as fees for qualified guarantees in connection with the Bonds as determined under Regulations section 1.148-4(b). The present value of all such payments shall be computed as of the date of issue of the Bonds and using semiannual compounding on the basis ofa 360-day year. Code shall mean the Internal Revenue Code of 1986, as amended, and any successor provisions thereto. 15 Gross Proceeds shall mean: (i) any amounts actually or constructively received by the Town from the sale of the Bonds but excluding amounts used to pay accrued interest on the Bonds within one year of the date of issuance of the Bonds; (ii) transferred proceeds of the Bonds under Regulations section 1.148-9; (iii) any amounts actually or constructively received from investing amounts described in (i), (ii) or this (iii); and (iv) replacement proceeds of the Bonds within the meaning of Regulations section 1.148-1(c). Replacement proceeds include amounts reasonably expected to be used directly or indirectly to pay debt service on the Bonds, pledged amounts where there is reasonable assurance that such amounts will be available to pay principal or interest on the Bonds in the event the Town encounters financial difficulties and other replacement proceeds within the meaning of Regulations section 1.148-1(c)(4). Whether an amount is Gross Proceeds is determined without regard to whether the amount is held in any fund or account established under this Resolution. Investment Property shall mean any security, obligation (other than a tax- exempt bond within the meaning of Code section 148(b)(3)(A)), annuity contract or investment- type property within the meaning of Regulations section 1.148-1 (b). Issue Price is as indicated in such arbitrage certificate, which is the initial offering price to the public (not including bond houses and brokers, or similar persons or organizations acting in the capacity of underwriters of wholesalers) at which price a substantial amount of the Bonds was sold, less any bond insurance premium and reserve surety bond premium. Issue price shall be determined as provided in Regulations section 1.148-1 (b). Nonpurpose Investment shall mean any Investment Property acquired with Gross Proceeds, and which is not acquired to carry out the governmental purposes of the Bonds. Payment shall mean any payment within the meaning of Regulations section 1. 148-3(d)(1) with respect to a Nonpurpose Investment. Rebate Requirement shall mean at any time the excess of the future value of all Receipts over the future value of all Payments. For purposes of calculating the Rebate Requirement the Bond Yield shall be used to determine the future value of Receipts and Pay- ments in accordance with Regulations section 1. 148-3(c). The Rebate Requirement is zero for any Nonpurpose Investment meeting the requirements of a rebate exception under section 148( t)( 4) of the Code or Regulations section 1.148-7. Receipt shall mean any receipt within the meaning of Regulations section 1. 148-3(d)(2) with respect to a Nonpurpose Investment. Regulations shall mean the sections 1.148-1 through 1.148-11 and section 1.150-1 of the regulations of the United States Department of the Treasury promulgated under the Code, including and any amendments thereto or successor regulations. (C) Within 60 days after the end of each Bond Year, the Town shall cause the Rebate Requirement to be calculated and shall pay to the United States of America: 16 (1) not later than 60 days after the end of the fifth Bond Year and every fifth Bond Year thereafter, an amount which, when added to the future value of all previous rebate payments with respect to the Bonds (determined as of such Computation Date), is equal to at least 90% of the sum of the Rebate Requirement (determined as of the last day of such Bond Year) plus the future value of all previous rebate payments with respect to the Bonds (determined as of the last day of such Bond Year); and (2) not later than 60 days after the retirement of the last Bond, an amount equal to 100% of the Rebate Requirement (determined as of the date of retirement of the last Bond). Each payment required to be made under this Section shall be filed with the Internal Revenue Service Center, Ogden, Utah 84201, on or before the date such payment is due, and shall be accompanied by IRS Form 8038-T. (D) No Nonpurpose Investment shall be acquired for an amount in excess of its fair market value. No Nonpurpose Investment shall be sold or otherwise disposed of for an amount less than its fair market value. (E) For purposes of Subsection (D), whether a Nonpurpose Investment has been purchased or sold or disposed of for its fair market value shall be determined as follows: (1) The fair market value of a Nonpurpose Investment generally shall be the price at which a willing buyer would purchase the Nonpurpose Investment from a willing seller in a bona fide arm's length transaction. Fair market value shall be determined on the date on which a contract to purchase or sell the Nonpurpose Investment becomes binding. (2) Except as provided in Subsection (F) or (G), a Nonpurpose Investment that is not of a type traded on an established securities market, within the meaning of Code section 1273, is rebuttably presumed to be acquired or disposed of for a price that is not equal to its fair market value. (3) If a United States Treasury obligation is acquired directly from or sold or disposed of directly to the United States Treasury, such acquisition or sale or disposition shall be treated as establishing the fair market value of the obligation. (F) The purchase price of a certificate of deposit that has a fixed interest rate, a fixed payment schedule and a substantial penalty for early withdrawal is considered to be its fair market value if the yield on the certificate of deposit is not less than: (1) United States; and the yield on reasonably comparable direct obligations of the (2) the highest yield that is published or posted by the provider to be currently available from the provider on reasonably comparable certificates of deposit offered to the public. 17 (G) A guaranteed investment contract shall be considered acquired and disposed of for an amount equal to its fair market value if: (1) A bona fide solicitation in writing for a specified guaranteed investment contract, including all material terms, is timely forwarded to all potential providers. The solicitation must include a statement that the submission of a bid is a representation that the potential provider did not consult with any other potential provider about its bid, that the bid was determined without regard to any other formal or informal agreement that the potential provider has with the Town or any other person (whether or not in connection with the Bonds), and that the bid is not being submitted solely as a courtesy to the Town or any other person for purposes of satisfying the requirements in the Regulations that the Town receive bids from at least one reasonably competitive provider and at least three providers that do not have a material financial interest in the Bonds. (2) All potential providers have an equal opportunity to bid, with no potential provider having the opportunity to review other bids before providing a bid. (3) At least three reasonably competitive providers (i.e. having an established industry reputation as a competitive provider of the type of investments being purchased) are solicited for bids. At least three bids must be received from providers that have no material financial interest in the Bonds (e.g., a lead underwriter within 15 days of the issue date of the Bonds or a financial advisor with respect to the investment) and at least one of such three bids must be from a reasonably competitive provider. If the Town uses an agent to conduct the bidding, the agent may not bid. (4) The highest-yielding guaranteed investment contract for which a qualifying bid is made (determined net of broker's fees) is purchased. (5) The determination of the terms of the guaranteed investment contract takes into account as a significant factor the reasonably expected deposit and drawdown schedule for the amounts to be invested. (6) The terms for the guaranteed investment contract are commercially reasonable (i.e. have a legitimate business purpose other than to increase the purchase price or reduce the yield of the guaranteed investment contract). (7) The provider of the investment contract certifies the administrative costs (as defined in Regulations section 1.148-5( e)) that it pays (or expects to pay) to third parties in connection with the guaranteed investment contract. (8) The Town retains until three years after the last outstanding Bond is retired, (i) a copy of the guaranteed investment contract, (ii) a receipt or other record of the amount actually paid for the guaranteed investment contract, including any administrative costs paid by the Town and a copy of the provider's certification described in (7) above, (iii) the name of the person and entity submitting each bid, the time and date of the bid, and the bid results and (iv) the bid solicitation form and, if the terms of the guaranteed investment contract 18 deviates from the bid solicitation form or a submitted bid is modified, a brief statement explaining the deviation and stating the purpose of the deviation. (H) The employment of such experts and consultants to make, as necessary, any calculations in respect of rebates to be made to the United States of America in accordance with Section 148(t) ofthe Code with respect to the Bonds, is hereby authorized. Section 9. All of the provisions of this Resolution shall constitute a contract between the Town and the registered owners of the Bonds, and no amendments, alterations or modifications of this Resolution shall be made which shall in any manner impair, impede or lessen the rights of the registered owners of the Bonds then outstanding. Section 10. After the issuance and delivery of the Bonds, this Resolution shall be and remain irrepealable until the Bonds and the interest thereon shall have been fully paid, cancelled and discharged. Section 11. If any section, paragraph, clause or provision of this Resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Resolution. Section 12. All resolutions or parts thereof, inconsistent herewith, are hereby waived to the extent only of such inconsistency. This waiver shall not be construed as reviving any resolution or any part thereof. Section 13. The immediate operation of the provisions of this Resolution is necessary for the preservation of the public peace, health and safety of the residents and citizens of the Town for the reason that the Bonds must be sold without delay; an emergency is, therefor hereby declared to exist; this Resolution is enacted as an emergency measure and shall be in full force and effect immediately upon its passage and adoption by the Mayor and Common Council of the Town, as required by law and this Resolution is hereby exempt from the referendum provisions of the Constitution and laws of the State of Arizona. 19 PASSED, ADOPTED AND APPROVED by the Mayor and Common Council of the Town of Marana, Arizona, this 21st day of November, 2006. ATTEST: 327672273.1-11/21/2006 ~~, Ed Honea, Mayor 20 ~r CER TIFICA TION I hereby certify that the foregoing Resolution No. 2006-190 was duly passed and adopted by the Mayor and Common Council of the Town of Marana, at a regular meeting held on November 21, 2006, and that a quorum was present thereat and the vote was 6:~ ayes and O. nays.