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HomeMy WebLinkAboutCC Resolution 8447 (Northgate Refunding Assessment District)RESOLUTION NO. 8447 RESOLUTION APPROVING ESCROW DEPOSIT AND TRUST AGREEMENT CIVIC CENTER - NORTHGATE REFUNDING ASSESSMENT DISTRICT The City Council of the City of San Rafael resolves: As a part of the proceedings for improvements in Civic Center - Northgate Refunding Assessment District, this Council approves that certain agreement entitled, Escrow Deposit and Trust Agreement between the City of San Rafael and Bank of America National Trust and Savings Association, dated June 17, 1991, and attached to this resolution. The Mayor is authorized to sign the agreement and the City Clerk is authorized to attest its execution. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, California, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City held on the 17th day of June, 1991, by the following vote, to wit: AYES: COUNCILMEMBERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None • ' JEANNEl�� �EONCINI,\City Clerk ORIGINAL r ESCROW DEPOSIT AND TRUST AGREEMENT CIVIC CENTER - NORTHGATE REFUNDING ASSESSMENT DISTRICT CITY OF SAN RAFAEL This ESCROW DEPOSIT AND TRUST AGREEMENT (the "Agreement") is made on June 17, 1991, by and between the CITY OF SAN RAFAEL, a municipal corporation existing under the laws of the State of California (the "City"), and Bank of America National Trust and Savings Association, a national banking association organized and existing under the laws of the United States of America, as escrow holder (the "Escrow Holder"): W I T N E S S E T H: WHEREAS, pursuant to Resolution No. 7253 adopted on December 16, 1985, (the "Prior Resolution"), the City has issued its Limited Obligation Improvement Bonds, City of San Rafael, Civic Center - Northgate Assessment District, in the principal amount of $4,435,920.00 (the " Prior Bonds"); WHEREAS, the City has determined that, as a result of favorable financial market conditions, it is in the best interests of the City at this time to refund the entire outstanding principal amount of the Prior Bonds,.and to that end the City has authorized the issuance of its $3,365,000 principal amount of Refunding Bonds"), pursuant to the Resolution authorizing issuance of refunding bonds (the "Resolution of Issuance") adopted by the City on June 17, 1991; WHEREAS, the purpose of this agreement is to provide for the deposit and use of the proceeds of the Refunding Bonds to provide for the refunding of the Prior Bonds; WHEREAS, the Escrow Holder has full powers to act with respect to the irrevocable escrow and trust created herein and to perform the duties and obligations to be undertaken by it pursuant to this Agreement; NOW, THEREFORE, in consideration of the above premises and of the mutual promises and covenants herein contained and for other valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto DO HEREBY AGREE as follows: Section 1. Appointment of Escrow Holder. City hereby appoints the Escrow Holder as escrow holder for all purposes of this Agreement and in accordance with the terms and provisions of this Agreement, and the Escrow Holder hereby accepts such appointment. Section 2. Establishment of Escrow Fund. There is hereby created by the City with, and to be held by, the Escrow Holder, as security for the payment of the Prior Bonds, an.irrevocable escrow to be maintained in trust by the Escrow Holder on behalf of the City and for the benefit of the owners of the Prior Bonds, said escrow to be designated the "Prior Bonds Refunding Escrow Fund" (the "Escrow Fund"). All moneys and Federal Securities in the Escrow Fund are hereby irrevocably transferred to the Escrow Holder as security for payment of the Prior Bonds, in accordance with the provisions of the Prior Resolution to be held by the Escrow Holder in trust for the benefit of, and shall secure payment of principal, premium and interest to the owners of the Prior Bonds. If at any time the City shall receive actual knowledge that the moneys in the Escrow Fund, including the anticipated proceeds of the Federal securities, will not be sufficient to make all payments from such fund required by Section 4 hereof, the City shall notify the Escrow Holder in writing as soon as reasonably practicable of such fact, stating the amount of such deficiency and the fund to which it pertains, and the City shall immediately cure such deficiency. If at any time the Escrow Holder, in its capacity as Escrow Holder, shall receive actual knowledge that the moneys and Federal Securities in the Escrow Fund will not be sufficient to make any payment required from such fund by Section 4 hereof, the Escrow Holder shall notify the City of such fact as soon as reasonably practicable and the City shall immediately cure such deficiency. The Escrow Holder shall in no event or manner be responsible for the failure of the City to cure any deficiency in the Escrow Fund. Section 3. Deposit in Escrow Fund. Concurrently with the delivery of the Refunding Bonds, the City shall cause the net proceeds of sale thereof in the amount of $3,297,700.00 in immediately available funds to be transferred to the Escrow Holder, which amount shall be deposited in the Escrow Fund. On June 27, 1991, the City shall transfer $512,650.00 held in funds created for the Prior Bonds to the Escrow Holder. This amount is to be invested by the Escrow Holder with the understanding that the funds are to be available for the purchase of Federal Securities for the Escrow Fund, as described below, on July 1, 1991. Arrangements have been made by Stone & Youngberg, the underwriter, to purchase Federal Securities for the Escrow Fund on July 1, 1991, in an amount to yield $3,845,000 at maturity on August 29, 1991. The Escrow Holder is authorized to transfer the required amount from the Escrow Fund to Stone & Youngberg on July 1, 1991, for payment of the Federal Securities. The Federal Securities will be held by the Escrow Holder in the Escrow Fund. Any excess funds after said purchase will be returned to the City to be placed in the Refunding Fund for Civic Center - Northgate Refunding Assessment District. K Section 4. Instructions as to Application of Deposit. The total amount deposited in the Escrow Fund pursuant to Section 3 hereof shall be deemed to be and shall constitute the deposit required to be made by the City pursuant to the Resolution of Issuance. In accordance with said resolution, the City hereby instructs the Escrow Holder as its agent to apply said deposits to the payment of Prior Bonds from the amounts in the Escrow Fund, to redeem on September 2, 1991, the remaining outstanding principal amount of the Prior Bonds by paying said principal amount, together with interest accrued to said date and premium due on redemption, all in accordance with the Prior Resolution. Pursuant to the terms of the Prior Resolution, the City hereby instructs that, not less than 60 days prior to said date of redemption, the Escrow Holder, as agent for the City, shall mail to the registered owners of the Prior Bonds, notice of redemption which shall be in substantially the form set forth on Exhibit A attached hereto and by this reference incorporated herein. Section 5. Investment of Any Remaining Moneys. The Escrow Holder may invest and reinvest in direct obligations of the United States for which the faith and credit of the United States are pledged for the payment of principal and interest thereof ("Federal Securities") money, if any, remaining from time to time in the Escrow Fund until needed for payment of the Prior Bonds in accordance with Section 6 hereof, provided, however, that such moneys shall be invested or reinvested in Federal Securities for such maturities or at such interest rates as the Escrow Holder shall be directed in writing by the City, but only if such written directions shall be accompanied by an opinion of nationally recognized bond counsel that investment in accordance with such directions will not affect, for Federal income tax purposes, the exemption from Federal income taxes of the interest on the Prior Bonds or on the Refunding Bonds. Section 6. Substitution of Federal Securities. The City may at any time direct the Escrow Holder to substitute Federal Securities then issued by the United States of America for any or all of the federal Securities then deposited in the Escrow Fund, provided that any such direction and substitution shall be accompanied with a certification of an independent certified public accountant or firm of certified public accountants of favorable national reputation experienced in the refunding of obligations of political subdivisions that the Federal Securities then to be so deposited in the Escrow Fund, together with interest and income to be derived therefrom, shall be in an amount at all times at least sufficient to make the payments from such fund specified in Section 6 hereof and, further, to be accompanied with an opinion of nationally recognized bond counsel that the substitution will not affect, for Federal income tax purposes the exemption from Federal income taxes of the interest on the Prior Bonds.or the Refunding Bonds. In the event that, following any such substitution of 3 Federal Securities pursuant to this Section 6, there is an amount of moneys or Federal Securities in excess of an amount sufficient to make the payments required by Section 6 hereof, such excess shall be paid to the City. Section 7. Immunities and Liabilities of Escrow Holder. (A) The Escrow Holder undertakes to perform only such duties as are expressly and specifically set forth in this Agreement and no implied duties or obligations shall be read into this Agreement against Escrow Holder. (B) The Escrow Holder shall not have any liability hereunder except to the extent of its own negligence or willful misconduct. In no event shall the Escrow Holder be liable for any special, indirect or consequential damages, even if Escrow Holder or the City knows of the possibility of such damages. The Escrow Holder shall have no duty or responsibility under this Agreement in the case of any default in the performance of the covenants or agreements contained in either of the Prior Resolutions or the Resolution. The Escrow Holder is not required to resolve conflicting demands for money or property in its possession under this Agreement. (C) The Escrow Holder may consult with counsel of its own choice (which may be counsel to the City) and the opinion of such counsel shall be full and complete authorization to take or suffer in good faith any action hereunder in accordance with such opinion of counsel. (D) The Escrow Holder shall not be responsible for any of the recitals or representations contained herein, in the Prior Resolution or in the Resolution of Issuance. (E) The Escrow Holder may become the owner of, or acquire any interest in, any of the Refunding Bonds with the same rights that it would have if it were not the Escrow Holder, and may engage or be interested in any financial or other transaction with the City. (F) The Escrow Holder shall not be liable for the accuracy of any calculations provided as to the sufficiency of the moneys or Federal Securities deposited with it to pay the principal, interest, or premiums, if any, on the Prior Bonds. (G) The Escrow Holder shall not be liable for any action or omission of the City under this Agreement, the Prior Resolution or the Resolution of Issuance. (H) Whenever in the administration of this Agreement the Escrow Holder shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be 4 herein specifically prescribed) may, in the absence of negligence or willful misconduct on the part of the Escrow Holder, be deemed to be conclusively proved and established by a certificate of an authorized representative of the City, and such certificate shall, in the absence of negligence or willful misconduct on the part of the Escrow Holder, be full warrant to the Escrow Holder for any action taken or suffered by it under the provisions of this Agreement upon the faith thereof. (I) The Escrow Holder may conclusively rely, as to the truth and accuracy of the statements and correctness of the opinions and the calculations provided to it in connection with this Agreement, and shall be protected in acting, or refraining from acting, upon any written notice, instruction, request, certificate, document or opinion furnished to the Escrow Holder in connection with this Agreement and reasonably believed by the Escrow Holder to have been signed or presented by the proper party, and it need not investigate any fact or matter stated in such notice, instruction, request, certificate or opinion. (J) The Escrow Holder may at any time resign by giving written notice to the City of such resignation. The City shall promptly appoint a successor Escrow Holder by the resignation date. Resignation of the Escrow Holder will be effective only upon acceptance of appointment by a successor Escrow Holder. If the City does not appoint a successor, the Escrow Holder may petition any court of competent jurisdiction for the appointment of a successor Escrow Holder, which court may thereupon, after such notice, if any, as it may deem proper and prescribe and as may be required by law, appoint a successor Escrow Holder. After receiving a notice of resignation of an Escrow Holder, the City may appoint a temporary Escrow Holder to replace the resigning Escrow Holder until the City appoints a successor Escrow Holder. Any such temporary Escrow Holder so appointed by the City shall immediately and without further act be superseded by the successor Escrow Holder so appointed. (K) The City agrees to indemnify the Escrow Holder, its agents and its officers or employees for and hold the Escrow Holder, its agents, officers or employees harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, reasonable fees and disbursements of counsel for the Escrow Holder) which may be imposed on, incurred by, or asserted against the Escrow Holder at any time by reason of the performance of its duties as Escrow Holder hereunder and under the Resolution of Issuance, in any transaction arising out of this Agreement or the Resolution' or any of the transactions contemplated herein or in the Resolution of Issuance, unless due to the Escrow Holder's or its officers' or employees' or agents' negligence or willful misconduct. 5 (L) All notices, certificates or other communications hereunder with the Escrow Holder shall be addressed to the Escrow Holder at: Bank of America National Trust and Savings Association 55 Hawthorne Street, 8th floor San Francisco, California 94105 Attention: Corporate Trust Administration Section 8. Compensation of Escrow Holder. The Escrow Holder and the City hereby acknowledge that, subject to any prior agreement between the City and the Escrow Holder, the City shall reimburse the Escrow Holder from available funds of the City for compensation for performance of its duties under this Agreement and for all out-of-pocket costs such as mailing costs, redemption expenses, legal fees and other costs and expenses relating hereto including fees, costs and expenses relating to the purchase of any Federal Securities, but under no circumstances shall amounts deposited in the Escrow Fund be available for said purposes. Section 9. Term of this Agreement. This Agreement shall terminate upon the earlier of payment in full of the Prior Bonds or January 2, 1992. Upon termination of this Agreement, the Escrow Holder shall remit all funds held by it under this Agreement to the City and thereafter the owners of the Prior Bonds shall look solely to the City for payment thereof. IN WITNESS WHEREOF, the City and the Escrow Holder have each caused this Agreement to be executed by their duly authorized officers all as of the date first above written. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION Assistant Vic President CITY OF SAN RAFAEL Mayor ATTEST: JEAN M. LEON I, City Clerk 2 NOTICE OF ADVANCED MATURITY IMPROVEMENT- BONDS CITY OF SAN RAFAEL CIVIC CENTER - NORTHGATE ASSESSMENT DISTRICT SERIES NO. 1985-2, DATED DECEMBER 30, 1985 TO WHOM IT MAY CONCERN, holders or owners of the Bonds shown above, the City of San Rafael has advanced the maturity to and will redeem all of the outstanding Bonds on September 2, 1991 (the "Redemption Date"). The Bonds will be redeemed at the principal amount thereof and a premium of 3% of said principal amount, together with interest accrued to the Redemption Date. Interest on the Bonds redeemed shall cease to accrue on and from the Redemption Date. If the Bonds are not surrendered on the Redemption Date, there will be set aside to credit of holders or owners, the amounts as aforesaid. The amounts so set aside will be paid to the holders or owners of the Bonds upon demand and upon surrender and cancellation of the Bonds. For payment of the principal being redeemed, the Bonds must be surrendered: In Person: Bank of America National Trust & Savings Association Corporate Agency Service Center Department 9514, 6th Floor 55 Hawthorne Street San Francisco, CA 94105 By Mail: Bank of America National & Savings Association Corporate Agency Service Bond Call Department P. O. Box 37109 San Francisco, CA 94137 Trust Center All holders submitting Bonds for redemption must complete the enclosed Letter of Transmittal and deliver the transmittal with their Bonds to the Transfer Agent. Failure to provide a completed Form W-9 will.result in 20% back-up withholding to bondholders pursuant to the Interest and Dividend Compliance Act of 1983. Dated: June 28, 1991 CITY OF SAN RAFAEL EXHI BIT A