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HomeMy Public PortalAboutResolution 29-93 Local Improvement District no. 3 sale RESOLUTION NO. 29-93 A RESOLUTION OF THE CITY OF MCCALL, VALLEY COUNTY, IDAHO, APPROVING, PURSUANT TO SECTION 12 OF ORDINANCE NO. 641, ADOPTED BY THE MAYOR AND COUNCIL ON JULY 28, 1993 , A BOND PURCHASE AGREEMENT BETWEEN THE CITY OF MCCALL AND WESTHOFF-MARTIN & ASSOCIATES FOR THE SALE OF THE LOCAL IMPROVEMENT DISTRICT NO. 3 BONDS OF THE CITY OF MCCALL; ORDERING THE BONDS TO BE PRINTED; AUTHORIZING THE MAYOR, CITY CLERK, AND CITY TREASURER TO EXECUTE ADDITIONAL DOCUMENTS; AND PROVIDING FOR OTHER MATTERS RELATING TO LOCAL IMPROVEMENT DISTRICT NO. 3 WHEREAS, by adoption of Ordinance No. 641 on July 28, 1993, the Mayor and Council of the City of McCall, Valley County, Idaho (the "City") , authorized the issuance of the City's Local Improvement District No. 3 ("L.I.D. No. 3") bonds in the principal amount of $5,200, 000 (the "Bonds") and the sale of the Bonds to Westhoff-Martin & Associates, of Lafayette, California (the "Underwriter") , subject to certain interest rate and bond maturity restrictions, all subject to final approval by the City Council (the "Council") of the City; and WHEREAS, the Underwriter has presented to the City a written (' offer to purchase the Bonds, setting forth the rates of interest and other terms and conditions of the sale of the Bonds, all as authorized by Ordinance No. 641, and the Council desires to accept such offer and approve the sale and delivery of the Bonds in accordance with such offer. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MCCALL, as follows: Section 1: The Bond Purchase Agreement between the City and the Underwriter in the form annexed hereto as Exhibit "A" is hereby approved, and the Mayor and City Clerk are hereby authorized to execute the same on behalf of the City. Section 2 : The City's bond counsel is hereby authorized and directed to cause the Bonds to be printed in accordance with the Bond Purchase Agreement and the provisions of Ordinance No. 641 of the City. The Bonds shall be executed in accordance with Section 3 of Ordinance No. 641, and shall be delivered to West One Bank, Idaho, Boise, Idaho, for authentication and delivery. Section 3 : The Mayor, City Clerk, City Treasurer, and other officers of the City, or any one or more of such officers, as may be appropriate to the circumstances, are hereby authorized to Page 1 execute all such further documents and certifications as may be necessary to effectuate the sale and delivery of the Bonds in accordance with Ordinance No. 641 and the Bond Purchase Agreement. DATED this 12th day of August, 1993 . CITY OF MCCALL Valley County, Idaho (71/-0—) By / /A. 444 Mayor ATTEST: 4t/44. 1 City Clerk , Page 2 CITY OF McCALL (VALLEY COUNTY, IDAHO) LOCAL IMPROVEMENT DISTRICT NO. 3 SPECIAL ASSESSMENT BONDS BOND PURCHASE AGREEMENT August 12, 1993 Honorable City Council City of McCall 216 Park Street McCall, Idaho 83638 Dear Honorable Council: WESTHOFF-MARTIN & ASSOCIATES, the ("Underwriter"), acting not as a fiduciary for you, but on behalf of itself, hereby offers to enter into this Bond Purchase Agreement (the "Agreement") with you, the City of McCall (the "City"), for the purchase of the Bonds herein described. The Underwriter will purchase the Bonds from the City at a price as further described herein. This offer is made subject to the City's acceptance of this Agreement prior to 11:59 o'clock p.m, Idaho time, on the date set forth above, or such later date as may be mutually agreed upon. If this offer is not so accepted, this offer will be subject to withdrawal by the Underwriter upon notice delivered to the City at any time prior to delivery of the Bonds. Upon acceptance, this Agreement shall he in full force and effect in accordance with its terms and shall be binding upon the City and the Underwriter. 1. Purchase, Sale and Delivery of the Bonds. (a) Subject to the terms and conditions and in reliance upon the representations, warranties and agreements hereinafter set forth, the Underwriter hereby agrees to purchase from the City and the City hereby agrees to issue and deliver, on behalf of the Local Improvement District No. 3 for McCall, Idaho (the "District") to the Underwriter, all (but not less than all) of the City of McCall (Valley County, Idaho), Local Improvement District No. 3, Special Assessment Bonds (the "Bonds"), dated as of August 15, 1993, in an aggregate principal amount of $5,200,000. The Bonds shall have the maturities and bear interest at the rates shown in Exhibit A. Such interest is payable annually on August 15 of each year, commencing August 15, 1994. The Bonds are subject to redemption at the prices and according to the terms of Ordinance No. 641, adopted by the City Council of the City on July 28, 1993, as amended (the "Bond Ordinance"). • Honorable City Council City of McCall Page - 2 - The total purchase price of the Bonds shall be $5,042,961.80, which is the aggregate principal amount of the Bonds ($5,200,000), less an underwriting discount ($117,000), less an original issue discount ($40,038.20), plus accrued interest to the date of closing (as hereinafter defined) (the purchase price for the Bonds shall hereinafter be referred to as the "Purchase Price"). The Bonds shall otherwise be substantially in the form described in and shall be issued, delivered and secured under and pursuant to, and shall be payable and subject to redemption as provided in the Bond Ordinance, the Official Statement relating to the Bonds (the "Official Statement"), Title 50, Chapter 17 of the Idaho Code, and Title 57, Chapter 9 of the Idaho Code, (collectively, the references to the Idaho Code shall be hereinafter referred to as the "Bond Act"). (b) At 8:00 o clock a.m., Idaho time, on August 25, 1993, or on such date as we mutually agree upon (the "Closing Date"), the City will deliver or cause to be delivered to the Underwriter, at a location or locations within the United States of America to be designated by the Underwriter, the Bonds in definitive form, duly executed and authenticated. The Underwriter will accept such delivery and pay to the order of the City the purchase price of the Bonds as set forth in subparagraph (a) above in lawful money of the United States of America, payable by wire transfer of immediately available funds (such delivery and payment being herein referred to as the "Closing"). The definitive Bonds shall be delivered as fully registered Bonds in such denominations and registered in such names as the Underwriter shall have requested in writing to the Bond Registrar at least five (5) business days prior to the Closing. (c) By its acceptance of this Agreement, the City approves the Official Statement, with such changes as may be made thereto, with the approval of Davis Wright Tremaine, Bond Counsel (the "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 Official Statement, the Bond Ordinance, this Agreement 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 Agreement. (d) The Underwriter agrees to make a bona fide public offering of all the Bonds at the initial offering price set forth in the Official Statement, which price may be changed from time to time by the Underwriter. The City hereby ratifies the use by the Underwriter of any preliminary Official Statement in the marketing of the Bonds. Honorable City Council City of McCall Page - 3 - 2. Representations, Warranties and Agreements of the City. The City represents and warrants to and agrees with the Underwriter as of the date hereof and as of the Closing Date that: (a) The City is duly organized and validly existing as a City under the Constitution and laws of the State of Idaho and has, and at the Closing Date will have, full legal right, power, and authority (i) to enter into this Agreement, (ii) to issue, sell and deliver the Bonds to the Underwriter as provided herein, and (iii) to carry out, give effect to, and consummate the transactions contemplated by this Agreement, the Bond Ordinance, 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 agreements on its part contained in the Bond Ordinance, the Bond 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 Bond Ordinance and approved and authorized the execution and delivery of the Bonds, this Agreement, the Official Statement, and any other applicable agreements; and (ii) authorized and approved the performance by the City of its obligations contained in, and the taking of any and all action as may be necessary to carry out, give 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 Bond Ordinance, this Agreement, and any other applicable agreements will constitute the valid and legal special obligations of the City, binding in accordance with their terms (the Bonds of which are payable solely from the collection of assessments levied on all property subject to assessment within the District), 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 Idaho, the United States of America, of any department, division, agency, or instrumentality of either thereof, or any applicable court or administrative decree or order, of any loan agreement, note resolution, indenture, contract agreement, or other instrument to which the City is a party or is otherwise subject or bound; and the adoption of the Bond Ordinance, and the execution and delivery of the Bonds, this Agreement, any other applicable agreements, and the other instruments contemplated by any of such documents to which the City is a party, and compliance with the provisions of each thereof, will not, in any respect material to the transactions referred to herein or contemplated hereby, conflict with or constitute a breach Honorable City Council City of McCall Page - 4 - of or default under any applicable law or administrative rule or regulation of the State of Idaho, 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, of any loan agreement, note, resolution, indenture, contract, agreement, or other instrument to which the City is a party or is otherwise subject or bound. (e) All approvals, consents,authorizations, elections, and orders of or filing or registrations with any governmental authority, board, agency, or commission having jurisdiction over the City which would constitute a condition precedent to, or the absences of which would materially adversely affect, the performance by the City of its obligations hereunder and under the Bond Ordinance, the Bonds, and any other applicable agreements have been obtained. (f) The Bonds, the Bond Ordinance, 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 Bond Ordinance. (g) The special assessments referred to in the Official Statement have been duly and lawfully levied under and pursuant Title 50, Chapter 17, of the Idaho Code, and the Bond 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) As disclosed in the Official Statement, there are no outstanding assessment liens levied by the City against the properties within the District which are senior to the assessment liens referred to in paragraph (g) hereof. (i) To the best knowledge of the City, the Official Statement is, and will be, as of the Closing Date, true, correct, and complete in all material respects; and, to the best knowledge of the City, the Official Statement does not, and 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) The City: (i) certifies to the Underwriter, as of the date hereof, that the Preliminary Official Statement, dated July 30, 1993, and furnished in relation to the proposed sale of the Bonds (the "Preliminary Official Statement"), was "deemed final" (within the meaning of Rule 15c2-12 promulgated under the Securities Exchange Act of 1934 ("Rule 15c2-12") by the City as of its date, with permitted omissions: (ii) agrees to provide the Underwriter with as many copies as may be requested of the final Official Statement adopted by the City in relation to the sale by the City of the Bonds within seven (7) business days after the date hereof, at the sole cost and expense of the City; and (iii) agrees to provide the Underwriter, by written notice, of any "developments that impact the • Honorable City Council City of McCall Page - 5 - accuracy and completeness of the key representations" (within the meaning of Rule 15c2- 12) contained in the final Official Statement, which may occur in the period commencing as of the date hereof and ending on the 90th day next following such date of acceptance, unless such final Official Statement is available from a "nationally recognized municipal securities information repository" (within the meaning of Rule 15c2-12), in which event such period shall end on the 25th day next following such date of acceptance. (k) The Bond Ordinance creates a valid pledge of, lien upon, and security interest in the unpaid assessments in the District imposed to secure the Bonds and the interest on such unpaid assessments and the moneys in all funds and accounts established pursuant to the Bond Ordinance, including the investments thereof, subject in all cases to the provisions of the Bond Ordinance permitting the application thereof for the purposes and on the terms and conditions set forth therein. (1) No action, suit, proceeding, inquiry, or investigation, at law or in equity, before or by any court, regulatory agency, or public board or body is pending, or to the best knowledge of the City, 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 applications of the proceeds thereof in accordance with the Bond Ordinance, the collection or application of assessments 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 Bonds, the Bond Ordinance, any other applicable agreements, this Agreement, 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 Bond Ordinance, any other applicable agreements, this Agreement, 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 District, or which would adversely affect the exclusion from gross income of interest paid on the Bonds from federal income taxation or exemption under Idaho personal income taxation; nor to the best knowledge of the City, is there any basis therefor. 3. Conditions to the Obligations of the Underwriter. The Underwriter hereby enters into this Agreement in reliance upon the representations and warranties of the City contained herein and in reliance upon the representations and warranties to be contained in the documents and instruments to be delivered at the Closing and upon the performance by the City of its obligations hereunder, both on and as of the date hereof and as of the Closing Date. Accordingly, the Underwriter's obligations under this Agreement, to accept delivery of and pay for the Bonds on the Closing Date shall be subject, at the option of the Underwriter; (1) 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; (2) to the accuracy in all material respects of the statements of the officers and other officials of the City made • Honorable City Council City of McCall Page - 6 - in any certificate or other document furnished pursuant to the provisions hereof; (3) to the performance by the City of its obligations to be performed hereunder and under the Bond Ordinance at or prior to the Closing Date; and (4) to the following additional conditions: (a) The improvements being financed by the City within the District must be owned and controlled by the City upon acquisition thereof by the City. (b) The representations and warranties of the City contained herein shall be true, complete and correct in all material respects on the date hereof and on the Closing Date, as if made on and at the time of Closing. (c) At the time of the Closing, the Bond Ordinance, this Agreement, and any other applicable agreements, shall have been duly authorized, executed, issued and delivered by the respective parties thereto, in substantially the forms heretofore presented to the Underwriter, with only such changes as shall have been agreed to by the Underwriter, and said agreements, documents and instruments shall be in full force and effect, and shall not have been amended, modified or supplemented, except as shall have been agreed to by the Underwriter; and the Underwriter shall have received, in appropriate form, evidence thereof. (d) At the time of the Closing Date, the assessments for the Bonds shall have been approved and confirmed by the City and filed in the office of.the Recorder of Valley County, Idaho. (e) Between the date hereof and the Closing Date, the market price or marketability of the Bonds 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 make any payment for the Bonds), by reason of any of the following: (1) legislation enacted (or resolution passed) by or introduced or pending legislation amended in the Congress or recommended for passage by the President of the United States, the Secretary of the Treasury or any member of Congress, or a decision rendered by a court established under Article III of the Constitution of the United States or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed), press release, or other form of communication issued or made by or on behalf of the Treasury Department of the United States or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon interest as would be received by the owners of the Bonds with respect to the Bonds; Honorable City Council City of McCall Page - 7 - (2) the declaration of war or engagement in major military hostilities by the United States or the occurrences of any other national emergency or calamity relating to the effective operation of the government of or the financial community of the United States; (3) the declaration of a general banking moratorium by federal, New York or Idaho authorities, or the general suspension of trading on any national securities exchange; (4) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriters; or (5) legislation enacted (or resolution passed) by or introduced or pending legislation amended in the Congress or recommended for passage by the President of the United States, 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 communication issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements from which they are now exempt under the Securities Act of 1933, as amended, or that the Bond Ordinance is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements as contemplated hereby, otherwise is or would be in violation of the federal securities laws as amended and then in effect. (f) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter: (1) a certified copy of the Bond Ordinance duly executed and delivered by the respective parties; (2) the approving opinion, dated the Closing Date and addressed to the City, of Bond Counsel, and an opinion of such counsel, dated the Closing Date and addressed to the Underwriter, to the effect that such opinion may be relied upon by the Underwriter to the same extent as if such opinion were addressed to them; • Honorable City Council City of McCall Page - 8 - (3) a certificate or certificates, dated the Closing Date, signed by the Mayor or another duly authorized official of the City as may be authorized pursuant to the Bond Ordinance, and in form and substance satisfactory to the Underwriter, to the effect that, to the best of his or her knowledge, (A) the representations and warranties of the City contained in Section 2 of this Agreement 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; and (B) no litigation is pending or threatened (i) to restrain or enjoin the issuance, sale or delivery of any of the Bonds or the validity of the assessments, (ii) in any way contesting or affecting the validity of this Agreement, the Bonds or the Bond Ordinance, or (iii) in any way contesting the existence or powers of the District or the City; (4) The supplemental opinion, dated the Closing Date and addressed to the Underwriter, of Bond Counsel, substantially to the effect that (i) the statements contained in the Official Statement, on the cover and under the captions "THE BONDS", "SECURITY FOR THE BONDS", "REDEMPTION OF THE BONDS", "THE ASSESSMENT DISTRICT AND THE PROJECT-The Assessment District",and "BONDOWNERS' RISKS", insofar as such statements purport to summarize certain provisions of the Bonds and/or the formation and existence of the District, and "TAX EXEMPTION", insofar as such statements purport to summarize certain provisions of Federal and State of Idaho law, are accurate in all material respects; (ii) the Bonds are exempt from registration under the Securities Act of 1933, as amended, and the Bond Ordinance, as amended, is exempt from qualification under the Trust Indenture Act of 1939, as amended; and (iii) the Official Statement has been duly authorized,executed and delivered, and this Contract has been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the other parties thereto, constitutes a legal, valid and binding agreement of the City enforceable in accordance with its terms, subject to laws relating to bankruptcy, insolvency or other laws affecting the enforcement of creditorsrights generally and the application of equitable principles if equitable remedies are sought. (5) a non-arbitrage certificate in form satisfactory to Bond Counsel; (6) a 10b-5 opinion of Disclosure Counsel; Honorable City Council City of McCall Page - 9 - (7) A Certificate of Representations and Warranties of Spring Mountain Ranch Limited Partnership (the "Developer"),in the form of Exhibit B, attached hereto, signed by an authorized officer of the Developer; (8) An opinion, dated the Closing Date and addressed to the Underwriter, of counsel to the Developer, substantially to the effect that (i) In such counsel's capacity as counsel to the Developer, such counsel has reviewed the contents of the Preliminary Official Statement; (ii) In such counsel's knowledge, the statements in the Preliminary Official Statement and the Official Statement under the captions or subcaptions "INTRODUCTORY STATEMENT", "THE BONDS", "SECURITY FOR THE BONDS", "REDEMPTION OF THE BONDS", "SOURCES AND USES OF PROCEEDS", "THE ASSESSMENT DISTRICT AND THE PROJECT", "PROFILE OF THE COMMUNITY OF MCCALL", "BONDOWNERSRISKS", ' and "ABSENCE OF MATERIAL LITIGATION" insofar as such statements relate to the property in the proposed development, the ownership of said property, the financing and development of said property (including disclosure of the absorption study and the appraisal), or the Developer, as the case may be, and any contractual arrangements with respect thereto,do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements therein,in light of the circumstances under which they were made, not misleading; (iii) In such counsel's knowledge, the Developer has not submitted an application for, and has not received actual notice of, (a) the formation or authorization of any local improvement district or other type of financing district which would include any portion of the land within the District, or (b) the authorization or issuance of any debt secured by a special tax or assessment to be levied on any portion of the land within the District. (iv) In such counsel's knowledge, none of the subject property is delinquent in the payment of any taxes or assessments. • Honorable City Council City of McCall Page - 10 - (9) A no-litigation opinion, dated the Closing Date and addressed to the Underwriter, of counsel to the Developer, substantially to the effect that (i) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, pending or threatened against the Developer affecting the existence of the Developer or the titles of its officers to their respective offices or seeking to prohibit, restrain or enjoin the sale, execution or delivery of the Bonds or the collection of assessments pledged or to be pledged to pay the principal of and interest on the Bonds, or the pledge of and lien on the funds and accounts pursuant to the Bond Ordinance, or contesting or affecting the tax-exempt status of interest on the Bonds, or in any way contesting or affecting the validity or enforceability of the Bonds or the Bond Ordinance, or contesting the powers of the Developer or its authority to enter into, adopt or perform its obligations under any of the foregoing, or contesting in any way the completeness or accuracy of the Preliminary Official Statement, the Official Statement, or any amendment or supplement thereto, nor, in such counsel's knowledge, is there any basis for any such suit, action, proceeding, inquiry or investigation, wherein a final adverse decision, ruling, or finding could materially adversely affect the validity or enforceability of the Bonds, the Contract of Purchase or the Bond Ordinance or the operations or financial condition of the Developer or the ability of the Developer to perform its obligations under the foregoing. (ii) No proceedings are pending or to the best of such counsel's knowledge threatened in which the Developer may be adjudicated as bankrupt or discharged from any or all of its debts or obligations or granted an extension of time to pay its debts or a reorganization or readjustment of its debts. (iii) 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 to the best of such counsel's knowledge threatened in any way seeking to restrain or enjoin the development of our property or in any way seeking to invalidate or set aside any plat on land the Developer owns in the District. Honorable City Council City of McCall Page - 11 - (10) such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriter or Bond Counsel may reasonably request to evidence the truth and accuracy, as of the date hereof and as of the Closing Date, of the representations of the City herein, 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 Bond Ordinance. (g) On the Closing Date,immediately following the receipt of the proceeds of the sale of the Bonds, the Reserve Account for the Bonds shall be funded in an initial amount of five percent (5%) of the principal amount of the Bonds. This amount is determined by the Underwriter to be reasonably required in marketing the Bonds. 4. Expenses. (a) Neither the City nor the Underwriter shall be under any obligation to pay, other than out of Bond proceeds, any expenses incident to the City's or the Underwriter's obligations hereunder, including, but not limited to, (i) the fees and disbursements of any accountants and other experts, consultants or advisers retained; (ii) the cost of preparation, printing and mailing or delivery of the definitive Bonds; (iii) the cost of preparation, printing and distribution of the Preliminary Official Statement and of the Official Statement; (iv) the fees and disbursements of Bond Counsel; (v) the fees and disbursements of Disclosure Counsel; (vi) the fees and disbursements of the Bond Registrar, and its counsel; (vii) the cost of any appraisals used in connection with the marketing of the Bonds; and (viii) the costs of publication or mailing of notices as required by the Bond Ordinance. (b) The Underwriter shall pay (i) all advertising expenses in connection with the public offering of the Bonds (ii) the cost of preparation of this Agreement and (iii) all other expenses incurred by them or any of them in connection with the public offering and distribution of the Bonds. Honorable City Council City of McCall Page - 12 - 5. Notices. Any notice or other communication to be given to the City under this Agreement may be given by delivering the same in writing to: The City: City of McCall P.O. Box 1065 216 Park Street McCall, Idaho 83638 Attn: City Clerk w/copy City Attorney Underwriter: Westhoff-Martin & Associates 3675 Mt. Diablo Blvd., Suite 350 Lafayette, CA 94549 Attn: Mr. Mark Holmstedt 6. Parties in Interest: Governing Law. This Agreement is made solely for the benefit of the City and the Underwriter (including successors or assigns of the Underwriter) and no other person shall acquire or have any right hereunder or by virtue hereof. This Agreement shall be governed by the laws of the State of Idaho. 7. Survival of Representations and Warranties. The representations and warranties of the City set forth in or made pursuant to this Agreement shall not be deemed to have been discharged, satisfied or otherwise rendered void by reason of the Closing or termination of this Agreement and regardless of any investigations or statements as to the results thereof made by or on behalf of the Underwriter and regardless of delivery of and payment for the Bonds. 8. Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. • Honorable City Council City of McCall Page - 13 - 9. Effective. This Agreement shall become effective and binding upon the respective parties hereto upon the execution of the acceptance hereof by a duly authorized officer of the City, and shall be valid and enforceable as of the time of such acceptance. Very truly yours, WESTHOFF-MARTIN & ASSOCIATES By: R. Thomas Westhoff President ACCEPTED AS OF THE DATE ABOVE STATED: CITY OF McCALL By: A'll` 'ST: City Clerk ACCEP IED AS OF THE DATE ABOVE STATED: SPRING MOUNTAIN RANCH LIMITED PARTNERSHIP y. b'Neal cipvisio, dyc• 1 Psi iec By: rdet Name: PCS S- 0',Vela Title: Pre srd RUG 12 '93 11:14AM WESTHOFF-MARTIN P.2/2 Honorable City Council Cis), of McCall Page - 13 - 9. =Win. This Agreement shall become effective and binding upon the respective parties hereto upon the execution of the acceptance hereof the City, and shall be valid and enforceable as of the time by such ccepta authorized officer of Very truly yours, WESTHOFF-MARTIN & ASSOCIATES By: di" .4•0./..r:• 4111.1", • . .onus "esto President ACCEPTED AS OF THE DATE ABOVE STATED: crry OF McCALL /1°9 By: / ISS A ty er!" �.. - ACCEPTED AS OF THE DATE ABOVE STATED: SPRING MOUNTAIN RANCH LIMITED PARTNERSHIP By: Name: Title: EXHIBIT "A,, CITY OF McCALL (VALLEY COUNTY, IDAHO) LOCAL IMPROVEMENT DISTRICT NO. 3 SPECIAL ASSESSMENT BONDS Year (August 15) Amount Coupon Price 1996 $ 160,000 4.75% 100.000% 1997 $ 170,000 5.00% 100.000% 1998 $ 175,000 5.25% 99.782% 1999 $ 185,000 5.50% 99.499% 2000 $ 195,000 5.80% 99.437% 2001 $ 205,000 6.00% 99.378% 2002 $ 220,000 6.20% 99.325% 2003 $ 235,000 6.35% 99.275% 2004 $ 250,000 6.50% 99.230% 2005 $ 265,000 6.65% 99.190% 2006 $ 280,000 6.80% 99.154% 2007 $ 300,000 6.90% 99.120% 2008 $ 320,000 7.00% 99.540% 2009 $ 345,000 7.00% 99.056% 2010 $ 370,000 7.00% 99.024% 2011 $ 395,000 7.05% 98.999% 2012 $ 420,000 7.05% 98.972% 2013 ' $ 710,000 7.05% 98.947% $5,200,000 f• . EXHIBIT B $5,200,000 CITY OF MCCALL (VALLEY COUNTY, IDAHO) LOCAL IMPROVEMENT DISTRICT NO. 3 SPECIAL ASSESSMENT BONDS CERTIFICATE OF REPRESENTATIONS AND WARRANTIES OF THE DEVELOPERS The undersigned authorized officer of SPRING MOUNTAIN RANCH LIMITED PARTNERSHIP, an Idaho limited partnership, with O'Neill Enterprises, Inc. as the general partner, and the developer of the project within the above-referenced Local Improvement District No. 3 (the "Developer"), does hereby certify that: (i) I have reviewed the contents of the Preliminary Official Statement dated as of July 30, 1993 prepared in connection with the issuance of the above- referenced Bonds(the "Preliminary Official Statement"),and I have reviewed the contents of this Certificate and have met with our counsel for the purpose of discussing the meaning of its contents; (ii) Any and all information submitted to the City of McCall (the "City"), Haight & Haight, disclosure counsel, and Westhoff-Martin & Associates, as the underwriter (the "Underwriter"), in connection with the preparation of the Preliminary Official Statement and the Official Statement, dated August _, 1993 (the "Official Statement"), was and is true and correct; (iii) The statements in the Official Statement under the captions or subcaptions "INTRODUCTORY STATEMENT", "THE BONDS", "SECURITY FOR THE BONDS", "REDEMPTION OF THE BONDS", "SOURCES AND USES OF PROCEEDS", "THE ASSESSMENT DISTRICT AND THE PROJECT", "PROFILE OF THE COMMUNITY OF MCCALL", "BONDOWNERS' RISKS", and "ABSENCE OF MATERIAL LITIGATION" insofar as such statements relate to the property in the proposed development, the ownership of said property, the financing and development of said property(including disclosure of the absorption study and the appraisal), or the Developer, as the case may be, and any contractual arrangements with respect thereto, do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (iv) No proceedings are pending or to the best of my knowledge threatened in which the Developer may be adjudicated as bankrupt or discharged from any or all of its debts or obligations or granted an extension of time to pay its debts or a reorganization or readjustment of its debts; (v) 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 to the best of my knowledge threatened in any way seeking to restrain or enjoin the development of our property or in any way seeking to invalidate or set aside any plotted maps on land the Developer owns in the Local Improvement District No. 3; (vi) Any and all information submitted by the Developer to Toothman-Orton, the assessment engineer, in its preparation of the Engineer's Report, and to Brad Janoush, the appraiser, in connection with the preparation of the Appraisal Report, was and is true and correct; (vii) The Developer covenants that so long as the Bonds are outstanding, the Developer will not bring any action, suit, proceeding, inquiry or investigation at law or in equity, before any court, regulatory agency, public board or body which in any way seeks to challenge or overturn Local Improvement District No. 3, the levy of the assessments in accordance with the terms of the ordinances of the City or the validity of the Bonds or proceedings leading up to their issuance; (viii) The Developer has not submitted an application for, and has not received actual notice of, (a) the formation or authorization of any local improvement district or other type of financing district which would include any portion of the land within Local Improvement District No. 3, or (b) the authorization or issuance of any debt secured by a special tax or assessment to be levied on any portion of the land within Local Improvement District No. 3. (ix) None of the subject property is delinquent in the payment of any taxes or assessments; Dated: August 25, 1993 SPRING MOUNTAIN RANCH LIMITED PARTNERSHIP By: Name: Title: