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