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HomeMy WebLinkAboutCC Resolution 6909 (Peacock Gap Impr District)RESOLUTION NO. 6909 CITY OF SAN RAFAEL PEACOCK GAP IMPROVEMENT DISTRICT RESOLUTION PROVIDING FOR THE ISSUANCE OF $9,171,065 PRINCIPAL AMOUNT OF "CITY OF SAN RAFAEL IMPROVEMENT BONDS, PEACOCK GAP IMPROVEMENT DISTRICT"; PRESCRIBING THE DATE AND FORM OF SAID BONDS AND PRESCRIBING THE MATURITIES THEREOF AND THE INTEREST RATES THEREON AND THE REDEMPTION PROVISION THEREFOR; AUTHORIZING THE EXECUTION OF SAID BONDS; APPOINTING A FISCAL AGENT FOR SAID BONDS; PROVIDING FOR THE COLLECTION OF ASSESSMENTS TO PAY THE PRINCIPAL OF AND INTEREST ON SAID BONDS; AND PROVIDING FOR A RESERVE FUND FOR SAID BONDS WHEREAS, the City Council of the City of San Rafael (the "City"), by Resolution of Intention No. 6738 heretofore duly adopted on February 6, 1984, declared its intention to order the acquisition and construction in the City of certain designated public improvements under the Municipal Improvement Act of 1913 in an assessment district (therein provided for), and further declared its intention to issue Co f 6 14 bonds under the Improvement Bond Act of 1915 to represent unpaid assessments, reference being hereby made to said Resolution of Intention No. 6738 for further particulars; and WHEREAS, an assessment in said assessment district was thereafter duly confirmed, adopted and levied by Resolution No. Egg adopted by this City Council on August 6, 1984, and said improvements were thereby ordered to be made, and the assessment and diagram were duly recorded and notice thereof was duly recorded, and the assessment became a lien upon the land upon which it was levied and became due and payable, all in the manner provided by law; and WHEREAS, notice of recording said assessment was thereafter duly given to all persons owning property in said assessment district, and all of such persons waived their rights to pay their assessments; and WHEREAS, the Treasurer of the City thereafter made and filed with the Superintendent of Streets of the City and the Engineer of Work for said assessment district and the City Clerk of the City a complete list of all assessments unpaid upon said assessment, showing unpaid assessments in the aggregate amount of $9,171,065, and said Treasurer has determined, and this City Council hereby finds and determines, that said assessments so listed as unpaid upon said list of unpaid assessments are unpaid and that the aggregate amount thereof is said amount of $9,171,065; 2 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Rafael, as follows: Section 1. This City Council has reviewed all proceedings heretofore taken relative to the foregoing and has found, as a result of such review, and does hereby find and determine that all acts, conditions and things required by law to exist, happen and be performed precedent to and in the issuance of improvement bonds as hereinafter provided do exist, have happened and have been performed in due time, form and manner as required by law, and the City is now authorized pursuant to each and every requirement of law to issue improvement bonds in the manner and form as in this resolution provided. Section 2. Improvement bonds of the City in the aggregate principal amount of $9,171,065 shall be issued upon and shall represent and shall be secured by said unpaid assessments in accordance with the provisions of the Improvement Bond Act of 1915 to provide means for paying for the acquisition and construction in the City of San Rafael, Peacock Gap Improvement District, of the public improvements more particularly described in Exhibit A, attached hereto and incorporated herein and made a part hereof. Said $9,171,065 principal amount of improvement bonds shall be issued as hereinafter set forth and shall be known as "City of San Rafael Improvement Bonds, Peacock Gap Improvement District" (the "Bonds"). The Bonds shall be issued as fully registered 3 bonds, shall be of the denomination of $5,000 or any integral multiple of $5,000 (not exceeding the principal amount of Bonds maturing at any one time), except that the first numbered Bond maturing on July 2, 1986 and all Bonds issued upon transfer or exchange therefor shall be of the denomination of $1,065, shall be dated September 4, 1984 (which is hereby fixed and determined to be the date of issue of the Bonds) and shall mature and bear interest as set forth in the following schedule: Principal Maturity Date Interest Amount (July 2) Rate $ 1,065 1986 10 25,000 1987 10 195,000 1988 10 215,000 1989 10 235,000 1990 10 260,000 1991 10 2859000 1992 10 310,000 1993 10.20 450000 1994 10.40 3801000 1995 10.50 4.0,000 1996 10.60 4659000 1997 10.70 515,000 1998 10.75 570,000 1999 10.75 630,000 2000 10.75 695,000 2001 10.90 770,non nnn 2002 in X55, nnn 2003 -so in R5 95n non 2004 • 10-R.9 , 1,n5n� nnn 2005 in -R5 The Bonds shall bear interest from the interest payment date next preceding the date of authentication and registration thereof, unless such date of authentication and registration is an interest payment date, in which event they shall bear interest from such date, or unless such date of R authentication and registration is prior to the first interest payment date, in which event they shall bear interest from September 4, 1984. Such interest shall be payable on January 2, 1986, and thereafter semiannually on January 2 and July 2 of each year until and at the respective maturity dates of the Bonds. Both the interest on and principal of and redemption premiums, if any, on the Bonds shall be payable in lawful money of the United States of America at the principal corporate trust office of Bank of America National Trust and Savings Association in San Francisco, California, the Fiscal Agent of the City for the Bonds. Payment of the interest on the Bonds due on or before the maturity or prior redemption thereof shall be made by check or draft mailed to the registered owners of the Bonds at their addresses as they appear on the registration books maintained by the Fiscal Agent pursuant to Section 5. Payment of the principal of and redemption premiums, if any, on the Bonds shall be made only upon surrender thereof on their maturity dates or on redemption prior to maturity at the office of the Fiscal Agent. Any Bond may be redeemed in whole or in part in integral multiples of the minimum authorized denomination of the Bonds on the second day of January or July in any year, at the option of the Treasurer of the City, upon payment of the principal amount thereof and interest accrued thereon to 0 the date of redemption, together with a premium equal to five per cent (5%) of such principal amount redeemed; provided, however, that said Treasurer shall proceed pursuant to Part 11.1 of the Improvement Bond Act of 1915 in determining those Bonds to be redeemed and the manner of the redemption thereof. Notice of redemption of any Bond shall be given by the Treasurer of the City as provided in the Improvement Bond Act of 1915. Section 3. The Bonds shall be in substantially the following form, the blanks in said form to be filled in with appropriate words or figures, namely: V LUM Interest Rate [FORM OF BOND] UNITED STATES OF AMERICA STATE OF CALIFORNIA COUNTY OF MARIN CITY OF SAN RAFAEL IMPROVEMENT BOND PEACOCK GAP IMPROVEMENT DISTRICT Maturity Date Dated as of CUSIP September 4, 1984 Under and by virtue of the Improvement Bond Act of 1915, Division 10 of the Streets and Highways Code, the City of San Rafael (the "City") will, on the maturity date set forth above, out of the redemption fund for the payment of the bonds issued upon assessments made for the improvements in an assessment district designated "City of San Rafael, Peacock Gap Improvement District," which said improvements and assessment district are more fully described in Resolution of Intention No. 6738 duly passed by the City Council of the City on February 6, 1984, pay to or registered assigns the sum of DOLLARS with interest thereon at the interest rate per annum set forth above from the interest payment date next preceding the date of authentication and registration of this bond, unless such date of authentication and registration is an interest payment date, in which event it shall bear interest from such date, or unless such date of authentication and registration is prior to the first interest payment date, in which event it shall bear interest from September 4, 1984, all as is hereinafter specified, at the principal corporate trust office of Bank of America National Trust and Savings Association in San Francisco, California, the Fiscal Agent of the City for the bonds. Interest due on or before the maturity or prior redemption of this bond shall be payable 7 only by check or draft mailed to the registered owner hereof, and the principal hereof and redemption premium, if any, hereon shall be payable only upon surrender hereof on the maturity date or on redemption prior to maturity of this bond. This bond is one of several annual series of bonds of like date, tenor and effect, but differing in amounts, maturities and interest rates, issued by the City under said law for the purpose of providing means for paying for the improvements described in said Resolution of Intention and is secured by the moneys in said redemption fund and by unpaid assessments made for the payment of said improvements, and, including principal and interest, is payable exclusively out of said fund. The interest is payable semiannually, to wit: On the second day of January and July in each year hereafter; provided, that the first interest payment is for interest to the second day of January, 1986, and thereafter the interest payments are for the semiannual interest. This bond will continue to bear interest after maturity at the rate above stated; provided, it is presented at maturity and payment hereof is refused upon the sole ground that there are not sufficient moneys in said redemption fund with which to pay the same. If it is not presented at maturity, interest hereon will run until maturity. This bond may be redeemed and paid in advance of maturity in whole or in part in integral multiples of the minimum authorized denomination of the bonds upon the second day of January or July in any year by giving the notice provided in said law and by paying principal and accrued interest together with a premium equal to five per cent (5%) of the principal amount redeemed. This bond is transferable by the registered owner hereof, in person or by his duly authorized attorney, at the above-mentioned office of the Fiscal Agent, upon surrender of this bond for cancellation accompanied by delivery of a duly executed written instrument of transfer in a form satisfactory to the Fiscal Agent, and thereupon a new bond or bonds of authorized denominations and of the same maturity date aggregating the principal amount of this bond will be issued to the transferee in exchange herefor, in the manner, subject to the conditions and upon payment of the charges provided in the resolution providing for the issuance of this bond. The City and the Fiscal Agent may deem and treat the registered owner of this bond as the absolute owner hereof t for the purpose of receiving payment hereof and for all other purposes, and neither the City nor the Fiscal Agent shall be affected by any notice or knowledge to the contrary; and payment of the interest on and principal of and redemption premium, if any, on this bond shall be made only to such registered owner, which payment shall be valid and effectual to satisfy and discharge liability on this bond to the extent of the sum or sums so paid. Subject to the conditions and upon payment of the charges provided in the resolution providing for the issuance of this bond, this bond may be exchanged at the above-mentioned office of the Fiscal Agent for the same principal amount of bonds of the same maturity date of other authorized denominations. This bond shall not be entitled to any benefits under the resolution providing for its issuance or become valid or obligatory for any purpose until the certificate of authentication and registration hereon endorsed shall have been signed by the Fiscal Agent. IN WITNESS WHEREOF, the City of San Rafael has caused this bond to be signed by the facsimile signature of the Treasurer of the City and by the facsimile signature of the City Clerk of the City and has caused said City Clerk to imprint thereon its corporate seal, all on the 4th day of September, 1984. [SEAL] Treasurer of the City of San Rafael City Clerk of the City of San Rafael [Form of Fiscal Agent's Certificate of Authentication and Registration] This is one of the bonds described in the within -mentioned resolution. Bank of America National Trust and Savings Association, as Fiscal Agent By Authorized Officer Date: [Form of Assignment] For value received the undersigned do(es) hereby sell, assign and transfer unto the within bond and do(es) hereby irrevocably constitute and appoint attorney to transfer the same on the register of the Fiscal Agent, with full power of substitution in the premises. Date: NOTE: The signature(s) to this Assignment must correspond with the name(s) as written on the face of the within bond in every particular, without alteration or enlargement or any change whatsoever. 10 Section 4. The Treasurer of the City and the City Clerk of the City are hereby authorized and directed, respectively, as such officers to execute each of the Bonds on behalf of the City by use of their printed, lithographed or engraved facsimile signatures, and said City Clerk is hereby authorized and directed to affix the official seal of the City thereto, which seal may be printed, engraved, lithographed or otherwise placed by facsimile thereon. Such signing and sealing as herein provided shall be a sufficient and binding execution of the Bonds by the City. In case any of such officers whose signature appears on the Bonds shall cease to be such officer before the delivery of the Bonds to the purchaser, such signature shall nevertheless be valid and sufficient for all purposes the same as though such officer had remained in office until the delivery of the Bonds. Only such of the Bonds as shall bear thereon a certificate of registration and authentication in the form hereinabove set forth, executed and dated by the Fiscal Agent, shall be entitled to any benefits hereunder or be valid or obligatory for any purpose, and such certificate shall be conclusive evidence that the Bonds so authenticated have been duly authorized, executed, issued and delivered hereunder and are entitled to the benefits hereof. Section 5. Bank of America National Trust and Savings Association at its principal corporate trust office in San Francisco, California, is hereby appointed Fiscal 11 Agent of the City for the purpose of paying the interest on and principal of and redemption premiums, if any, on the Bonds and for the purpose of performing the other obligations imposed on it in this resolution. The Fiscal Agent may at any time resign, which resignation shall become effective upon the appointment of a successor Fiscal Agent. Upon receiving notice of such resignation the City shall promptly appoint a successor Fiscal Agent, except that if no successor Fiscal Agent shall have been appointed by the City within thirty (30) days of receiving such notice, the resigning Fiscal Agent may petition any court of competent jurisdiction for the appointment of a successor Fiscal Agent. The City may at any time in its sole discretion remove the Fiscal Agent initially appointed and any successor thereto and may appoint a successor or successors thereto by an instrument in writing; provided, that the City agrees that it will at all times maintain a Fiscal Agent with a principal corporate trust office in San Francisco, California. The Fiscal Agent is hereby authorized to pay interest on the Bonds due on or before the maturity or prior redemption thereof to the registered owners thereof as their names appear on the registration books required to be kept by it pursuant to this section as the registered owners thereof, such interest to be paid by check or draft mailed to such registered owners at their addresses appearing on such books or at such other addresses as they may have filed with it for that purpose, 12 and to pay to such registered owners the principal of and redemption premiums, if any, on the Bonds upon presentation and surrender of the Bonds to it at maturity or on redemption prior to maturity. The Fiscal Agent will keep at its principal corporate trust office in San Francisco, California, sufficient books for the registration, transfer and exchange of the Bonds, which books shall at all times be open to inspection by the City. Upon presentation for such purpose the Fiscal Agent shall, under such reasonable regulations as it may prescribe, register or transfer or exchange Bonds on such books as hereinafter provided. Any Bond may be transferred or exchanged on such books by the registered owner thereof, in person or by his duly authorized attorney, upon payment by the person requesting such transfer or exchange of any tax or other governmental charge required to be paid with respect to such transfer or exchange and upon surrender of such Bond for cancellation accompanied by delivery of a duly executed written instrument of transfer or exchange in a form approved by the Fiscal Agent, except that no such transfer or exchange shall be required to be made during the fifteen (15) days preceding each interest payment date. Whenever any Bond or Bonds shall be surrendered for transfer or exchange, the City shall execute and the Fiscal Agent shall authenticate and deliver a new Bond or Bonds of authorized denominations and 0 W1 r of the same maturity date aggregating the principal amount of the Bond or Bonds so surrendered. The City and the Fiscal Agent may deem and treat the registered owner of any Bond as the absolute owner of such Bond for the purpose of receiving payment thereof and for all other purposes, whether such Bond shall be overdue or not, and neither the City nor the Fiscal Agent shall be affected by any notice or knowledge to the contrary; and payment of the interest on and principal of and redemption premium, if any, on such Bond shall be made only to such registered owner, which payment shall be valid and effectual to satisfy and discharge liability on such Bond to the extent of the sum or sums so paid. The City shall from time to time, upon request of the Fiscal Agent and subject to any agreement between the City and the Fiscal Agent then in force, pay the Fiscal Agent compensation for its services, reimburse the Fiscal Agent for all its advances and expenditures, including but not limited to advances to and fees and expenses of independent accountants, counsel and engineers or other experts employed by it in the exercise and performance of its rights and obligations hereunder, and indemnify and save the Fiscal Agent harmless against liabilities not arising from its own negligence or willful misconduct which it may incur in the exercise and performance of its rights and obligations hereunder; provided, that the Fiscal Agent shall not have any lien for such compensation or reimbursement against any 14 moneys held by it in any of the funds established hereunder, although it may take whatever legal actions are lawfully available to it directly against the City. The statements, agreements, conditions, covenants and terms contained herein and in the Bonds shall be taken as statements, agreements, conditions, covenants and terms of the City, and the Fiscal Agent does not assume any responsibility for the correctness of the same or for the observance or performance by the City of the same and does not make any representation as to the sufficiency or validity hereof or of the Bonds. The Fiscal Agent shall not incur any responsibility in respect hereof other than in connection with the rights and obligations assigned to or imposed upon it herein or in the Bonds, and the Fiscal Agent may conclusively rely on the written instructions, representations and calculations received by it from the City Council of the City or from any officer of the City or from any officer of Marin County hereunder. Any moneys held by the Fiscal Agent in any of the funds required to be maintained by it hereunder shall be held in demand or time deposits (including certificates of deposit) of any bank (including the Fiscal Agent) authorized to accept deposits of public funds, and shall be secured at all times by such obligations as are required by law and to the fullest extent required by law, except that such moneys may (and, upon the written direction of the Treasurer of the 15 City, shall) be invested in lawful investments of City funds or repurchase agreements of lawful investments of City funds which, in the case of moneys in the Redemption Fund, will, as nearly as practicable, mature on or before the dates when such moneys are anticipated to be needed for disbursement hereunder, and which, in the case of moneys in the Reserve Fund, will mature not later than five years from the date of purchase, or July 2, 2005, whichever is earlier. All such moneys deposited or invested by the Fiscal Agent shall be deposited or invested so as to obtain the highest yield which the Fiscal Agent deems practicable, having due regard for the safety of such moneys, and the Fiscal Agent may act as principal or agent in the acquisition or disposition of any such deposit or investment and may, for the purpose of any such deposit or investment, commingle any of the moneys held by it hereunder regardless of the fund in which held. The Fiscal Agent shall not be liable or responsible for any loss suffered in connection with any such deposit or investment made by it under the terms of and in accordance with this section. Anything to the contrary herein notwithstanding, the Fiscal Agent may sell or present for redemption any securities so purchased whenever it shall be necessary in order to meet any payment of the money so invested, and the Fiscal Agent shall not be liable or responsible for any losses resulting from any such investment sold or presented for redemption. Any interest or profits on such deposits or 16 investments shall be deposited in the fund from which such deposit or investment was made. Section 6. Said unpaid assessments in the aggregate amount of $9,171,065, as shown on said list hereinabove referred to and as determined by the Treasurer of the City and this City Council, together with interest thereon computed at the rate specified in the Bonds (which interest shall begin to run from the date of the Bonds), shall, in accordance with and consistent with the Improvement Bond Act of 1915, remain and constitute a trust fund for the redemption and payment of the principal of the Bonds and for the interest due thereon, and said assessments and each installment thereof and the interest and penalties thereon shall constitute a lien against the lots and parcels of land on which they are made until the same be paid. The Auditor of the City shall annually make a record in his office showing the several installments of principal and interest on said assessments which are to be collected for the forthcoming year during the term of the Bonds; and an annual installment of said unpaid assessments shall be payable and shall be collected in each year corresponding in amount to the amount of Bonds unpaid and to accrue that year, which amount shall be sufficient to pay the Bonds as the same become due, and an annual installment of interest on said unpaid assessments shall be payable and shall be collected in each year corresponding in amount to the amount of interest 17 which will accrue on the Bonds outstanding for such year, which amount shall be sufficient to pay the interest thereon that shall become due in the next succeeding January and July. The annual proportion of each assessment coming due in any year, together with the annual interest on such assessment, shall be payable in the same manner and at the same time and in the same installments as the general taxes on real property in Marin County are payable, and said assessment installments and said annual interest on said unpaid assessments shall be payable and become delinquent on the same dates and in the same proportionate amounts and bear the same proportionate penalties and interest after delinquency as do general taxes on real property in Marin County. This City Council hereby covenants with the holders of the Bonds that in the event any assessment, or installment thereof, including any interest thereon, is not paid when due, it will order and cause to be commenced within one hundred fifty (150) days following the date of delinquency, and thereafter diligently prosecute, judicial foreclosure proceedings upon such delinquent assessment or installment thereof and interest thereon, which foreclosure proceedings shall be commenced and prosecuted without regard to available surplus funds of the City, including money available in the Reserve Fund provided in Section 9 of this resolution. This City Council hereby further covenants with the holders of the 18 Bonds that it will monitor the records of the Tax Collector of Marin County and, not later than one hundred fifty (150) days following the date when each assessment, or any installment thereof, including any interest thereon, is due, it will advise the Fiscal Agent either that there are no such delinquencies, or that there are such delinquencies, and (in the latter case) whether or not it has caused to be commenced the aforesaid judicial foreclosure proceedings. If the City has advised the Fiscal Agent that such judicial foreclosure proceedings have not been commenced, then the Fiscal Agent agrees that it will use its best efforts to institute a suit at law or in equity to compel the City Council of the City to commence such foreclosure proceedings (the expenses of which suit shall be paid by the City in accordance with Section 5 hereof); provided, that the Fiscal Agent shall not be responsible for monitoring the records of the Tax Collector of Marin County or for taking any action other than as specified herein. Section 7. There is hereby created and established a fund to be known as the "City of San Rafael Improvement Bonds, Peacock Gap Improvement District Redemption Fund," which shall be kept by the Fiscal Agent. All sums received by the City from the Treasurer of Marin County which are received from the collection of unpaid assessments, and of the interest and penalties thereon, shall upon receipt be forthwith paid to the Fiscal Agent for deposit in said fund, 19 and all sums to become due for the principal of and the interest on the Bonds shall be paid from said fund, and the Bonds and the interest thereon shall not be paid out of any other funds. Any surplus remaining in said fund after payment of all Bonds and the interest thereon shall be applied as directed by the City. Section 8. There is hereby created and established a fund to be known as the "City of San Rafael Improvement Bonds, Peacock Gap Improvement District Improvement Fund," which shall be kept by the Treasurer of the City. After making the transfer to the Fiscal Agent for deposit in the Reserve Fund as required by Section 9, all remaining proceeds of the sale of the Bonds shall be placed by said Treasurer to the credit of said fund and shall be kept separate and distinct from all other City funds. All moneys in said fund shall be invested in any lawful investments of City funds maturing not later than the date on which such moneys are required for disbursement as herein provided. All interest earned on such investments shall be credited to said fund. The moneys in said fund shall be applied exclusively for the purpose of paying the cost of the improvements referred to in Section 2 of this resolution, including payment of the incidental expenses in connection with such improvements; provided, that after completion of said improvements and the payment of all claims from said fund, any surplus moneys remaining in said tend (as determined by this City Council) 20 shall be used as a credit on the assessment (as provided in Section 10427.1 of the Streets and Highways Code), except that the first $50,000 of any such surplus moneys shall be used for the maintenance of said improvements (as provided in Section 10427(c) of the Streets and Highways Code). Section 9. There is hereby created and established a separate fund to be known as the "City of San Rafael Improvement Bonds, Peacock Gap Improvement District Reserve Fund," which fund shall be kept by the Fiscal Agent and which shall constitute a trust fund for the benefit of the holders of the Bonds. At the time of the issuance of the Bonds, the City shall transfer to the Fiscal Agent from the proceeds of the sale of the Bonds for deposit by the Fiscal Agent in said fund a sum of money equal to five per cent (5%) of the aggregate principal amount of the Bonds, and all money in said fund shall be paid and transferred in the following amounts and at the following times and under any of the following circumstances: (a) Whenever there are insufficient funds in the Redemption Fund to meet the next maturing installment of principal of or interest on the Bonds, an amount necessary to satisfy such deficiency shall be transferred by the Fiscal Agent from the Reserve Fund to the Redemption Fund. The City agrees that if such insufficiency was caused by delinquent payment of installments of assessments, then an amount equal to the amount so transferred shall be reimbursed and 21 deposited by the City in the Reserve Fund from the proceeds of redemption or sale of the parcel in respect of which payment of installments of assessments was delinquent. (b) In the event unpaid assessments are paid in cash prior to their final due date, the City shall instruct the Fiscal Agent in writing to transfer from the Reserve Fund to the Redemption Fund an amount equal to the ratio of the total amount initially provided for the Reserve Fund to the total amount originally assessed in the proceedings for the Bonds multiplied by the reduction in said assessments, which amount shall be calculated by the City and which such calculations shall be set forth in such instructions. (c) If at any time the amount of interest earned by the investment of any portion of the Reserve Fund together with the principal amount in the Reserve Fund shall accumulate to an amount which exceeds fifteen per cent (15%) of the aggregate principal amount of the Bonds less the discount thereon, plus any accrued interest, such excess shall be returned by the Fiscal Agent to the City and shall be credited by the City upon the unpaid assessments in the manner set forth in the Improvement Bond Act of 1915. (d) Whenever the balance in the Reserve Fund is sufficient to retire all the remaining outstanding Bonds, the City shall instruct the Fiscal Agent to transfer the balance in the Reserve Fund to the Redemption Fund and the City shall cease the collection of the principal and interest on the 22 unpaid assessments. In such case, the City shall credit such balance against the assessments remaining unpaid in the manner set forth in the Improvement Bond Act of 1915, with the amount apportioned to each unpaid assessment credited against the last unpaid assessment installment; and if the amount apportioned to each parcel exceeds the amount of said last installment, then such excess shall be credited against the next preceding unpaid assessment installment or installments until exhausted. In the event that the balance in the Reserve Fund at the time of such transfer exceeds the amount required to retire all outstanding Bonds, then such excess shall be returned by the Fiscal Agent to the City and shall be apportioned by the City to each parcel upon which an individual assessment remained unpaid at the time the balance in the Reserve Fund was sufficient to retire all outstanding Bonds, and such payments shall be made by the City in cash to the respective owners of the parcels, except that if such excess is not greater than one thousand dollars ($1,000), such excess may be transferred to the general fund of the City. Section 10. This City Council hereby covenants with the holders of all the Bonds at any time outstanding that it will make no use of the proceeds of the Bonds which will cause the Bonds to be "arbitrage bonds" subject to federal income taxation by reason of Section 103(c) of the Internal Revenue Code of 1954. To that end, so long as any 23 of the Bonds are outstanding, this City Council, with respect to the proceeds of the Bonds, shall comply with all requirements of said Section 103(c) and all regulations of the United States Department of the Treasury issued thereunder to the extent that such requirements are, at the time, applicable and in effect. Section 11. The City Clerk of the City is directed to cause the Bonds to be lithographed, printed or engraved, and to cause the blank spaces thereof to be filled in to comply with the provisions hereof, and to procure their execution by the proper officers, and thereafter to deliver them, when so executed, to the Fiscal Agent, who shall authenticate them, and thereafter to deliver them to the purchaser thereof on receipt by the Treasurer of the City of the purchase price thereof. Said Treasurer and City Clerk are further authorized and directed to make, execute and deliver to the purchaser of the Bonds a signature and no -litigation certificate in the form customarily required by purchasers of municipal bonds, certifying to the genuineness and due execution of the Bonds and further certifying to all facts within their knowledge relative to any litigation which may or might affect the City or said assessment district or said officers or the Bonds, and said Treasurer is further authorized and directed to make, execute and deliver to the purchaser of the Bonds a receipt in the form customarily required by purchasers of municipal bonds, evidencing the 24 payment of the purchase price of the Bonds, which receipt shall be conclusive evidence that said purchase price has been paid and has been received by the City. Any purchaser or subsequent taker or holder of the Bonds is hereby authorized to rely upon and shall be justified in relying upon such signature and no -litigation certificate and such receipt with respect to the Bonds executed, sold and delivered pursuant to the authority of this resolution. Section 12. This resolution shall take effect immediately. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of said City held on Monday , the 20t day of August , 198_, by the following vote, to wit: AYES: Councilmembers: Frugoli, Nave, Russom & Mayor Mulryan NOES: Councilmembers: None ABSENT: Councilmembers: Breiner J E M. LEONCINI, City Clerk 25 EXHIBIT A The engineering design for and the installation of a water storage facility to be owned and operated by Marin Municipal Water District, including pipelines, pressure stations, control fittings, valves, pumps, motors, easements and other interests in land, and associated appurtenances for such installation; The engineering design for, rights of way, in fee and by easement, and installation of a realignment and change of grade of San Pedro Road from a point near its intersection with Riviera Drive to a point near its intersection with Biscayne Drive, including grading, curbing and surfacing and relocation and subsurface water, sewer, and drainage lines; The acquisition of fee title for, and the improvement of, the Peacock Gap Neighborhood Park in conformance with Resolution No. 6479 of the City Council of the City of San Rafael; The engineering design for and installation of streets, curbs, sidewalks, sewer collection lines, water service lines and appurtenances to be owned and operated by Marin Municipal Water District, subsurface street telephone lines, conduits and appurtenances to be owned and operated by Pacific Telephone and Telegraph Company (Pacific Telesis Company), subsurface gas and electric lines, conduits and appurtenances to be owned and operated by Pacific Gas and Electric Company and subsurface conduits and wires to be owned and operated by Viacom Cablevision, including grading, curbing and surfacing, electroliers, traffic signing and controls and ornamental planting upon public property; all as the foregoing stated acquisitions and improvements relate to the land of N.Y.-Cal Industrial Corp., heretofore made the subject of a tentative map approved by the City of San Rafael; The engineering design for and installation of streets, curbs, sidewalks, sewer collection lines, water service lines and appurtenances to be owned and operated by Marin Municipal Water District, subsurface street telephone lines, conduits and appurtenances to be owned and operated by Pacific Telephone and Telegraph Company (Pacific Telesis Company), subsurface gas and electric lines, conduits and appurtenances to be owned and operated by Pacific Gas and Electric Company and subsurface conduits and wires to be owned and operated by Viacom Cablevision, including grading, curbing and surfacing, electroliers, traffic signing and controls and ornamantal planting upon public property; all as the foregoing stated acquisitions and improvements relate to the land of San Rafael School District, heretofore made the subject of a tentative map approved by the City of San Rafael; The acquisition of fee title for, and the improvement of, the park shown on the tentative map of the lands of San Rafael School District heretofore approved by the City Council fo the city of San Rafael. 2 __-ACOCK GAP IMPROVEMENT DISTRICT FEE AGREEMENT THIS AGREEMENT, made and entered into this 20th day of AUGUST, 1984, between the City of San Rafael, California, hereinafter called "CITY" and the BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association, hereinafter called "BANK". W I T N E S S E T H: WHEREAS, CITY has authorized the issuance of '9,171,065.00 Improvement Bonds and wishes BANK to act as Fiscal Agent to register, transfer ownership and pay principal and interest on said bonds. BANK, as a Fiscal Agent, Registrar, Transfer Agent and Paying Agent, wishes to register, transfer ownership and pay said bonds and additional bonds and interest thereon. 1. CITY hereby appoints BANK its Fiscal Agent to register, transfer ownership and pay bonds and interest thereon. 2. CITY will, on or before the date bonds and interest is to be paid, deposit immediately available funds with the Corporate Agency Division of BANK in San Francisco; otherwise BANK will not be required to make any disbursement. 3. BANK will cause all of said bonds to be honored in accordance with their terms for registration, transfer of ownership or payment at maturity or when by their terms they otherwise become payable upon presentation to BANK. BANK will hold and apply any monies deposited with it solely for the payment of the bonds and interest thereon. 4. CITY will deliver or cause to be delivered to the BANK, at least six (6) days prior to the original issue date of the bonds the following documents: - Original issuance instructions from Underwriters - Supply of bonds - Specimen bonds - Bond resolution(s) - Bond legal opinion(s) - Semiannual Debt service schedule(s) BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION y 1 5. CITY will pay to BANK fees as set forth Uelow: INITIAL ACCEPTANCE FEE: $5,000.00 The initial fee for the acceptance of the account, including the review of the Indenture and supporting documents, registration and delivery of the Bonds and the setting up of all required records. (plus $.35 for each Bond authenticated on original issuance) (The fees of outside counsel will be in addition to the above acceptance fee). ANNUAL ADMINISTRATION FEE $4,500.00 This fee includes the follow-up necessary to determine that the covenants of the Resolution have been complied with and the annual maintenance and servicing of 100 bondholder accounts or any portion thereof; the issuance and registration of bonds (except the original issuance); postings; interest disbursement; stop payment and replacement of lost or missing interest checks; correspondence and research required; documentary transfers; replacement of lost or stolen bonds; and one bondholder list. Should the annual bondholder account base exceed 10LI accounts, then in addition to the minimum annual maintenance and servicing fee of $500.00, a charge of $3.00 per bondholder account will be charged for the excess of 100 bondholder accounts. ADDITIONAL FEES - Issuance and Registration of over 100 bonds per year - each bond: - Payment of bonds upon maturity or call - Each Bond: - Bondholder list over one - each holder: minimum charge per List: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION -2 $.y5 $3.00 $.05 $50.00 MAILINGS - PREPAi, LABELS - Label production - each: $.05 minimum charge: $50.00 - Mail processing by machine - each: $.10 - Mail processing by hand - each: $.25 minimum charge: $75.00 SINKING FUNDS AND REDEMPTION (If Applicable) Selection of bonds for redemption and preparation of Notice of Redemption: $500.00 Purchase of bonds for retirements, each purchase: $75.00 ANNUAL ADMINISTRATION FEE FOR RESERVE FUND (If Applicable) Per Reserve Fund: $100.00 INVESTMENT OF FUNDS (If Applicable) Each transaction: $75.00 Each investment other than Bank of America issued securities or Bank of America Certificates of Deposit. This service charge will cover costs of placement of an investment, settlement, safekeeping of the security, collection of interim interest and the costs of redemption. OUT -OF -POCKET -EXPENSE Fees do not include out-of-pocket expense such as, but not limited to, counsel fees, postage, insurance, wires, stationery, co -agent fees (if any), costs of printing forms or letters, publication of notices of redemption, expenses of BANK personnel traveling to attend closings or meetings, etc. These out-of-pocket expenses will be charged at the actual cost incurred. ADDITIONAL SERVICES The above schedule of fees are for the ordinary services in connection with the items mentioned, and should BANK be called upon to render any additional services in connection with the items mentioned, or any services not set forth in the above schedule, or services during default, a reasonable charge, depending upon the services rendered, will be made. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION -3- 6. The foz,_,oing schedule is subject to cha,-ye upon providing at least ninety (90) days advance written notice. 7. BANK will submit its statement for fees and expenses due BANK and CITY will pay said statement in accordance with Paragraph 2 of this Agreement. Statements for fees and expenses unpaid after 30 days are subject to a handling charge of 2% per month. 8. All notices, documents and other correspondence will be mailed or delivered to BANK at Bank of America, Corporate Agency Division, Department #9528, P. 0. Box 37002, San Francisco, California 94137 and to CITY at 1400 Fifth Avenue, San Rafael, California 94909, or to such other address as either party shall from time to time indicate in writing to the other. 9. CITY upon ninety (90) days written notice to BANK, may terminate this Agreement. 10. BAW upon ninety (90) days written notice to CITY, may terminate this Agreement. THE TERMS AND CONDITIONS OF THIS Agreement are intended for the mutual benefit of CITY and BAN1< exclusively, and are not intended to give any third party any right or claim, contractual or otherwise, hereunder. IN WITNESS WHEREOF, the parties have caused these presents to be duly executed, the day and year first above written. 0013F CITY OF SAN RAFAEL BAV4< OF AMERICA NATIONAL TRUST 1 By LAWRENCE E. MULRYAN Title MAYOR ATTEST: By JE NNE M. LEONC NI Title CITY CLERK Approved as to form: AND SAVINGS ASSOCIATION Title 1 BANK OF AMERICA NATIONAL TRUST AND SAILINGS ASSOCIAT ION -4-