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HomeMy WebLinkAboutCC Resolution 9012 (Peacock Gap Reassessment District)RESOLUTION NO. 9012 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL PROVIDING FOR THE ISSUANCE OF BONDS; APPROVING THE SALE OF SAID BONDS; AND APPROVING THE OFFICIAL STATEMENT FOR SAID BONDS (PEACOCK GAP REASSESSMENT DISTRICT) WHEREAS, the City Council of the City of San Rafael (the "City"), by proceedings duly had and taken, including specifically Resolution No. 6909 duly adopted on August 20, 1984, duly provided for the issuance of its "City of San Rafael Improvement Bonds, Peacock Gap Improvement District" in the aggregate principal amount of $9,171,065.00 (the "Original Bonds") under and pursuant to the conditions and terms of the Improvement Bond Act of 1915 (being Division 10 of the California Streets and Highways Code), the unmatured portion of which is now outstanding; and WHEREAS, the City Council has determined to issue refunding bonds (the "Refunding Bonds") for the purpose of refunding the unmatured portion of the Original Bonds now outstanding under and pursuant -to the conditions and terms of the Refunding Act of 1984 for 1915 Improvement Act Bonds, being Division 11.5 of the California Streets and Highways Code (the "Act"), and to provide for the levy and collection of reassessments as security for the Refunding Bonds; and WHEREAS, the City Council referred the matter of the refunding of the Original Bonds and the levy and collection of reassessments as security for the Refunding Bonds to Muni Financial Services ("MFS"), as the qualified firm retained by the City in these proceedings, and directed said MFS to prepare and file with the City Clerk a report in writing containing the matters specified in Section 9523 of the California Streets and Highways Code; and WHEREAS, said MFS has prepared and filed with the City Clerk a report in writing containing the matters required by Section 9523 of the California Streets and Highways Code, which SF2-20566.1 L said report was presented by the City Clerk to the City Council for consideration; and WHEREAS, said report was carefully considered and reviewed by the City Council, and the City Council was fully advised in the premises, and on the basis of such review the City Council found and determined that, as set forth in said report, (a) each estimated annual installment of principal and interest on the reassessment (other than amounts added to such annual installments due to delinquencies in the payment of the assessments for the Original Bonds) for the assessment district for which the Original Bonds were issued is less than the corresponding annual installment of principal and interest on the portion of the original assessment being superseded and supplanted by the same percentage for all subdivisions of land within such assessment district; (b) the number of years to maturity of the Refunding Bonds allocable to such assessment district for which the Original Bonds were issued is not more than the number of years to the last maturity of the Original Bonds for such assessment district; and (c) the principal amount of the reassessment (other than amounts added to such principal amount due to delinquencies in the payment of the assessments for the Original Bonds) on each subdivision of land within such assessment district for which the Original Bends were issued is less than the unpaid principal amount of the portion of the original assessment being superseded and supplanted by the same percentage for each subdivision of land within such assessment district; and accordingly the City Council found and determined that all of the conditions in connection with the issuance of the Refunding Bonds specified in Section 9525 of the California Streets and Highways Code were and have been duly satisfied; and WHEREAS, said report was thereafter adopted, approved and confirmed by the City Council, and the reassessments as contained therein in the principal amount of $2,405,000.00 were thereby confirmed and levied by the City Council; and SF2-20566.1 2 WHEREAS, Miller & Schroeder Financial, Inc. (the "Underwriter") has submitted an offer to purchase the Refunding Bonds, pursuant to a Purchase Contract (the "Contract") now on file with the City Clerk; NOW, THEREFORE, The City Council of the City of San Rafael hereby resolves: Section 1. The foregoing recitals are true and correct and the City Council so finds and determines. Section 2. The 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, to happen and to be performed precedent to and in the issuance of the Refunding Bonds under the Act as hereinafter authorized and provided do exist, have happened and have been performed in due time, form and manner as required by the Act and all other applicable laws, and the City is now authorized pursuant to each and every requirement of law to issue the Refunding Bonds in the manner and form as in this resolution provided. Section 3. The Refunding Bonds in the aggregate principal amount of $2,405,000.00 shall be issued upon and shall represent and shall be secured by said reassessments in accordance with the provisions of the Act to provide means for refunding the Original Bonds, including payment of all costs of issuing the Refunding Bonds. The Refunding Bonds shall be issued as hereinafter set forth and shall be known as the "Limited Obligation Refunding Improvement Bonds, City of San Rafael, Peacock Gap Reassessment District." The Refunding Bonds shall be issued as fully registered bonds, shall be of the denomination of $5,000 or any integral multiple of $5,000, as determined by the registered owners thereof (not exceeding the principal amount of SR -20566.1 3 Refunding Bonds maturing at any one time), shall be dated October 1, 1993 (which is hereby fixed and determined to be the date of issue of the Refunding Bonds), and shall mature and bear interest as hereinafter provided in Section 14. The Refunding 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 on a day during the period from the sixteenth (16th) day of the month next preceding an Interest Payment Date to such Interest Payment Date, both inclusive, in which event they shall bear interest from such Interest Payment Date, or unless such date of authentication and registration is on a day on or before the fifteenth (15th) day of the month next preceding the first Interest Payment Date, in which event they shall bear interest from October 1, 1993. Such interest shall be payable on March 2, 1994, and thereafter semiannually on September 2 and March 2 of each year until and at the respective maturity dates of the Refunding Bonds. The principal of and redemption premiums, if any, on the Refunding Bonds shall be payable in lawful money of the United States of America at the corporate trust office of Bank of America National Trust and Savings Association as paying agent (the "Paying Agent") in Los Angeles, California. Payment of the interest on the Refunding Bonds due on or before the maturity or prior redemption thereof shall be made by check mailed to the registered owners of the Refunding Bonds at their addresses as they appear at the close of business as of the fifteenth (15th) day of the month prior to each such Interest Payment Date on the registration books maintained by the Paying Agent, and payment of the principal of and redemption premiums, if any, on the Refunding Bonds shall be made only upon surrender thereof by the registered owners thereof on their maturity dates or on redemption prior to maturity to the Paying Agent. SF2-20566.1 4 Any Refunding Bond may be redeemed in whole or in part in integral multiples of the minimum authorized denomination of the Refunding Bonds on the second day of March or September in any year, at the option of the City, upon payment of the principal amount thereof and interest accrued thereon to the date of redemption, together with a premium equal to three percent (30) of such principal amount redeemed; provided, that the City shall proceed pursuant to Part 11.1 of the Improvement Bond Act of 1915 in determining those Refunding Bonds or portions thereof to be redeemed and the manner of the redemption thereof; and urovided further, that notice of redemption of any Refunding Bond shall be given by the City as provided in the Act. The City Council declares and determines that it does not and will not obligate itself to advance funds from the City treasury to cure any deficiency which may occur at any time in the Redemption Fund created in Section 9 of this resolution. Section 4. The City and the Paying Agent shall be entitled to treat the person in whose name any such Refunding Bond is registered as the owner thereof for all purposes hereof and under any applicable laws, notwithstanding any notice to the contrary received by the Paying Agent or the City; and the City and the Paying Agent shall have no responsibility for transmitting payments to, communicating with, notifying, or otherwise dealing with any persons other than the registered owners of such Refunding Bonds. Section S. The Refunding Bonds shall be in substantially the following form, the blanks in said form to be filled in with appropriate words or figures, namely: SF2-20566.1 5 [FORM OF BOND] UNITED STATES OF AMERICA STATE OF CALIFORNIA COUNTY OF MARIN REGISTERED REGISTERED NUMBER LIMITED OBLIGATION REFUNDING IMPROVEMENT BOND CITY OF SAN RAFAEL PEACOCK GAP REASSESSMENT DISTRICT INTEREST MATURITY RATE DATE % September 2, REGISTERED OWNER: PRINCIPAL AMOUNT: BOND CUSIP DATE NUMBER October 1, 1993 DOLLARS Under and by virtue of the "Refunding Act of 1984 for 1915 Improvement Act Bonds," being Division 11.5 of the California Streets and Highways Code (the "Act"), the City of San Rafael of the County of Marin in the State of California (the "City") will, out of the Redemption Fund hereinafter referred to, pay to the registered owner set forth above on the maturity date set forth above (subject to the right of prior redemption hereinafter reserved) the principal amount set forth above in lawful money of the United States of America, and in like manner will pay interest from the Interest Payment Date next preceding the date on which this Refunding Bond is authenticated and registered (unless this Refunding Bond is authenticated and registered on a day during the period from the sixteenth (16th) day of the month next preceding an Interest Payment Date to such Interest Payment Date, both inclusive, in which event it shall bear interest from such Interest Payment Date, or unless this Refunding Bond is authenticated and registered on a day on or before the fifteenth (15th) day of the month next preceding the first Interest Payment Date, in which event it shall bear interest from October 1, 1993) until payment of such principal sum shall have been discharged, at the interest rate per annum set forth above, payable semiannually on March 2 and September 2 in each year commencing on March 2, 1994; and the City Council has declared and determined that it does not and will not obligate itself to advance funds from the City treasury to cure SF2-20566.t 6 any deficiency which may occur at any time in said Redemption Fund. Both the principal hereof and redemption premium hereon are payable at the corporate trust office of Bank of America National Trust and Savings Association, the Paying Agent in Los Angeles, California (the "Paying Agent"), and the interest hereon is payable by check mailed to the owner hereof at the owner's address as it appears on the registration books of the Paying Agent, or at such address as may have been filed in writing with the Paying Agent for that purpose, at the close of business as of the fifteenth (15th) day of the month next preceding each Interest Payment Date. REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH ON THE REVERSE SIDE HEREOF WHICH SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE. This Refunding Bond shall not be entitled to any benefit under the Act or the Resolution, or become valid or obligatory for any purpose, until the certificate of authentication and registration hereon endorsed shall have been dated and signed by the Paying Agent. IN WITNESS WHEREOF, the City Council of the City of San Rafael has caused this Refunding Bond to be signed by the Treasurer of the City and by the City Clerk, and has caused its corporate seal to be impressed hereon, all as of October 1, 1993. CITY OF SAN RAFAEL City Clerk Treasurer of the City of San Rafael of the City of San Rafael [SEAL] [Form of and Certificate of Authentication and Registration] CERTIFICATE OF AUTHENTICATION AND REGISTRATION This is one of the Refunding Bonds described in the within -mentioned Resolution which has been authenticated and registered on BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Paying Agent By Authorized Signatory SF2-20566.1 7 [Reverse of Bond] LIMITED OBLIGATION REFUNDING IMPROVEMENT BOND CITY OF SAN RAFAEL PEACOCK GAP REASSESSMENT DISTRICT This Refunding Bond is one of several annual series of Refunding Bonds of like date, tenor and effect, but differing in amounts, maturities and interest rates, issued by the City under the Act and the resolution providing for its issuance (the "Resolution") for the purpose of providing funds for refunding assessment bonds originally issued to pay for the improvements described in said proceedings, and is secured by the moneys in the Redemption Fund provided in the Resolution and by the unpaid portion of reassessments levied for the payment hereof, and, including principal and interest, is payable exclusively out of said fund. Purchase of this Refunding Bond constitutes the consent of the purchaser to all of the terms of the Resolution. This Refunding Bond will continue to bear interest after maturity at the rate above stated; provided, it is presented at maturity and payment thereof 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 thereon will run until maturity. This Refunding Bond, or any portion of it in the amount of five thousand dollars ($5,000) or any integral multiple thereof, may be redeemed and paid in advance of maturity upon the second day of March or September in any year by giving at least thirty (30) days' notice by registered or certified mail to the registered owner hereof at the owner's address as it appears on the registration books of the Paying Agent by paying principal and accrued interest together with a premium equal to three percent (30W) of the principal amount redeemed. This Refunding Bond is transferable by the registered owner hereof, in person or by the owner's attorney duly authorized in writing, at the office of the Paying Agent, subject to the terms and conditions provided in the Resolution, including the payment of certain charges, if any, upon surrender and cancellation of this Refunding Bond. Upon such transfer, a new SF2-20566.1 8 registered Refunding Bond or Bonds, of any authorized denomination or denominations, of the same maturity, for the same aggregate principal amount, will be issued to the transferee in exchange therefor. Refunding Bonds shall be registered only in the name of an individual (including joint owners), a corporation, a partnership or a trust. Neither the City nor the Paying Agent shall be required to make such exchange or registration of transfer of any Refunding Bond between the fifteenth (15th) day of the month immediately preceding any Interest Payment Date and the Interest Payment Date itself. The City and the Paying Agent may treat the registered owner hereof as the absolute owner for all purposes, and the City and the Paying Agent shall not be affected by any notice to the contrary. [Form of Legal Opinion] I hereby certify that the following is a full and correct copy of the signed legal opinion of ORRICK, HERRINGTON & SUTCLIFFE, San Francisco, California, on file in my office. City Clerk [Form of Assignment] 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 Paying Agent, with full power of substitution in the premises. Date: SIGNATURE GUARANTEED: SF2-20566.1 9 NOTE: The signature(s) to this Agreement 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. The signature(s) must be guaranteed by an eligible guarantor institution. Social Security Number, Taxpayer Identification Number or other Identifying Number of Assignee: Section 6. The Treasurer and the City Clerk (the "Clerk") are hereby authorized and directed, respectively, as such officers to execute each of the Refunding Bonds on behalf of the City, and the Clerk is hereby authorized and directed to affix the official seal of the City thereto; and such signing and sealing as herein provided may be facsimiles engraved, printed or lithographed on the definitive bonds, and shall be a sufficient and binding execution of the Refunding Bonds by the City. In case either of such officers whose signature appears on the Refunding Bonds shall cease to be such officer before the delivery of the Refunding 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 Refunding Bonds. Only such of the Refunding Bonds as shall bear thereon a certificate of registration and authentication in the form hereinabove set forth, executed and dated by the Paying 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 Refunding Bonds so authenticated have been duly authorized, executed, issued and delivered hereunder and are entitled to the benefits hereof. Section 7. The Paying Agent, only from moneys provided by the City, shall pay interest on the Refunding Bonds due on or before the maturity or prior redemption thereof to the registered owners thereof as their names appear at the close of business as SF2-20566.1 10 of the fifteenth (15th) day of the month next preceding each Interest Payment Date on the registration books required to be kept by the Paying Agent pursuant to this section as the registered owners thereof, such interest to be paid by check mailed to such registered owners at their addresses appearing on such books or at such other addresses as they may have filed in writing with the Paying Agent for that purpose, and to pay to such registered owners the principal of and redemption premiums, if any, on the Refunding Bonds upon presentation and surrender of the Refunding Bonds to the Paying Agent at maturity or on redemption prior to maturity. The Paying Agent will keep at its corporate trust office in Los Angeles, California sufficient books for the registration, transfer and exchange of the Refunding Bonds, and upon presentation for such purpose the Paying Agent shall, under such reasonable regulations as he or she may prescribe, register or transfer or exchange Refunding Bonds on such books as hereinafter provided. Any Refunding Bond may be transferred or exchanged on such books by the registered owner thereof, in person or by a 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 Refunding Bond for cancellation accompanied by delivery of a duly executed written instrument of transfer or exchange in a form approved by the Paying Agent. Whenever any Refunding Bond or Refunding Bonds shall be surrendered for transfer or exchange, the City shall execute and the Paying Agent shall authenticate and deliver a new Refunding Bond or Refunding Bonds of authorized denominations and of the same maturity date aggregating the principal amount of the Refunding Bond or Refunding Bonds so surrendered. The City and the Paying Agent may deem and treat the registered owner of any Refunding Bond as the absolute owner of such Refunding Bond for SF2-20566.1 11 the purpose of receiving payment thereof and for all other purposes, whether such Refunding Bond shall be overdue or not, and neither the City nor the Paying 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 Refunding Bond shall be made only to such registered owner as above provided, which payment shall be valid and effectual to satisfy and discharge liability on such Refunding Bond to the extent of the sum or sums so paid. Section B. Said reassessments in the aggregate amount of $2,405,000.00, as hereinabove referred to and as determined by the City Council, together with interest thereon computed at the rate specified in the Refunding Bonds (which interest shall begin to run from the date of the Refunding Bonds), shall, in accordance with and consistent with the Act, remain and constitute a trust fund for the redemption and payment of the principal of the Refunding Bonds and for the interest due thereon, and said reassessments 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 City shall annually make records in its office showing the several installments of principal and interest on said reassessments which are to be collected for the forthcoming year during the term of the Refunding Bonds; and an annual installment of said reassessments shall be payable and shall be collected in each year corresponding in amount to the amount of Refunding Bonds unpaid and to accrue that year, which amount shall be sufficient to pay the Refunding Bonds as the same become due, and an annual installment of interest on said reassessments shall be payable and shall be collected in each year corresponding in amount to the amount of interest which will accrue on the Refunding Bonds outstanding for such year, which amount shall be sufficient to pay the interest thereon that shall become due in the next succeeding March and September. The annual proportion of said reassessments coming due in any year, SF2-20566.1 12 together with the annual interest on such reassessments, 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 the County of Marin are payable, and said reassessment installments and said annual interest on said reassessments 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 the County. The City Council hereby covenants with the registered owners of the Refunding Bonds that it will annually review the public records of the County relating to the collection of said reassessment installments in order to determine, by a date not later than August 1 of each year, the amount of said reassessment installments collected and the amount thereof delinquent in the prior fiscal year, and on the basis of such review the City will, within sixty (60) days thereafter, institute foreclosure proceedings as authorized by law in order to enforce the lien of each delinquent installment of said reassessment installments and will diligently prosecute and pursue such foreclosure proceedings to judgment and sale, except that the City, in any particular case, may advance, from funds other than the Reserve Fund, the amount of the delinquency plus interest at the yield on the Refunding Bonds from the date of delinquency, and thus relieve itself of the obligation to institute or prosecute the foreclosure action. In that event, when the delinquency is cured, the City may reimburse itself for its advance, and may retain for its own use all penalties and interest and costs paid in respect of the cure of the delinquent assessment installment. Section 9. There is hereby created and established a fund to be known as the "Limited Obligation Refunding Improvement Bonds, City of San Rafael, Peacock Gap Reassessment District Redemption Fund," which fund shall be kept by the City and shall constitute a crust fund for the benetit of the registered owners SF2-20566.1 13 of the Refunding Bonds, and all sums received by the City which are received from the collection of said reassessments (except for those amounts allocable to administrative expenses), and of the interest and penalties thereon, shall upon receipt be deposited in said fund. At the time of the issuance of the Refunding Bonds, the City shall deposit in the Redemption Fund from the proceeds of sale of the Refunding Bonds the amount representing the accrued interest, if any, received on the delivery of the Refunding Bonds, and all sums to become due for the principal of and the interest on the Refunding Bonds shall be withdrawn by the City from said fund pursuant to invoice or notice presented by the Paying Agent for and paid to the Paying Agent for use for the payment of the principal of and the interest on the Refunding Bonds, and the Refunding Bonds and the interest thereon shall not be paid out of any other funds. Any surplus remaining in said fund after payment of all Refunding Bonds and the interest thereon shall be applied as directed by the City. 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, and all interest earned on such investments shall be credited to said fund, except as otherwise required by Section 13 of this resolution. Section 10. There is hereby created and established a fund to be known as the "Limited Obligation Refunding Improvement Bonds, City of San Rafael, Peacock Gap Reassessment District, Refunding Fund," which fund shall be kept by the Paying Agent pursuant to an Escrow Deposit and Trust Agreement between the City and the Paying Agent dated October 7, 1993 (the "Escrow Agent") and shall constitute a trust fund for the benefit of the registered owners of the Original Bonds. At the time of the issuance of the Refunding Bonds, the Paying Agent shall deposit in the Refunding Fund from the proceeds of sale of the Refunding Bonds an amount which, together with any other money deposited therein, will be sufficient to redeem all outstanding Original SF2-20566.1 14 Bonds on January 2, 1994, together with the payment of the redemption premiums thereon and the accrued interest thereon. All money in said fund shall be transferred on October 7, 1993, to the Paying Agent to be held by the Paying Agent pursuant to the Escrow Agreement exclusively for the purpose of redeeming all outstanding Original Bonds on January 2, 1994, together with the payment of the redemption premiums thereon and the accrued interest thereon, and all such money shall be invested by such Paying Agent (as directed by the Treasurer) in obligations maturing not later than January 2, 1994, the payment of the interest on and principal of which is secured by the full faith and credit of the United States of America; provided, that after completion of said transfer any surplus money remaining in said fund shall be deposited by the Paying Agent in the Redemption Fund. Section 11. There is hereby created and established a fund to be known as the "Limited Obligation Refunding Improvement Bonds, City of San Rafael, Peacock Gap Reassessment District Special Reserve Fund," which fund shall be kept by the City and shall constitute a trust fund for the benefit of the registered owners of the Refunding Bonds. There shall be deposited into the Special Reserve Fund the amount of $120,250.00 from the proceeds of the sale of the Refunding Bonds. That amount, less any amounts transferred to the Redemption Fund pursuant to Section 8884 of the Streets and Highways Code, shall constitute the "Reserve Requirement" for the Refunding Bonds. The Special Reserve Fund shall be maintained by the Finance Director. A. During the term of the Refunding Bonds, the amount in the special reserve fund shall be available for transfer into the redemption fund in accordance with Section 8883 and 8808 of the Streets and Highways Code. The amount so advanced shall be reimbursed to the special reserve fund from the proceeds of redemption or sale of the parcel for which payment of delinquent assessment installments was made from the Special Reserve Fund. SF2-20566.1 15 B. If any assessment is prepaid before final maturity of the Refunding Bonds, the amount of principal which the assessee is required to prepay shall be reduced by an amount which is in the same ratio to the original amount of the Special Reserve Fund as the original amount of the prepaid assessment bears to the total amount of unpaid assessments originally securing the Refunding Bonds. This reduction in the amount of principal prepaid shall be balanced by a transfer from the Special Reserve Fund to the Redemption Fund in the same amount. C. Proceeds of investment of the Special Reserve Fund shall be initially retained in the Special Reserve Fund. Each September 3, any amounts in the Special Reserve Fund in excess of the Reserve Requirement shall be deposited in the Redemption Fund. D. When the amount in the Special Reserve Fund equals or exceeds the amount required to retire the remaining unmatured Refunding Bonds (whether by advance retirement or otherwise), the amount of the Special Reserve Fund shall be transferred to the Redemption Fund, and the remaining installments of principal and interest not yet due from assessed property owners shall be cancelled without payment. Section 12. There is hereby created and established a fund to be known as the "Limited Obligation Refunding Improvement Bonds, City of San Rafael, Peacock Gap Reassessment District, Expense Fund," which fund shall be kept by the City. After making the deposits in the Redemption Fund as required by Section 9, in the Refunding Fund as required by Section 10, and in the Special Reserve Fund as required by Section 11, all remaining proceeds of the sale of the Refunding Bonds shall be deposited in the Expense Fund and shall be kept separate and distinct from all other City funds. All money in the Expense Fund shall be disbursed on such dates and in such amounts as are necessary to pay all costs of issuing the Refunding Bonds (as SF2-20566.1 16 provided under the Act), including all expenses incident to the calling, retiring or paying of the Original Bonds and to the issuance of the Refunding Bonds, and including, but not limited to, fees of bond counsel, underwriters, certified public accountants and rating agencies, printing and advertising costs, and administrative expenses of the City. All money remaining in the Expense Fund on the one hundred eightieth (180th) day following the date of delivery of the Refunding Bonds shall be deposited in the Redemption Fund. Section 13. The City will not take or omit to take any action that would cause the interest on the Refunding Bonds to be included in gross income for federal income tax purposes. Without limiting the generality of the foregoing: (a) The City will not directly or indirectly use or allow the use of more than 10%s of the proceeds of the Refunding Bonds in the trade or business of any nongovernmental persons, and the City will not allow any actions to be taken that would result in the Refunding Bonds being treated as federally guaranteed pursuant to Section 149(b) of the Internal Revenue Code of 1986, as amended (the "Code"); and (b) The City will not directly or indirectly use or allow the use of the proceeds of the Refunding Bonds in a manner that would cause the Refunding Bonds to be arbitrage bonds described in Section 148 of the Code, and in particular, the City will not invest or allow the investment of proceeds of the Refunding Bonds in investments with a yield materially higher than the yield on the Refunding Bonds except as described in the Tax Certificate executed in connection with the issuance of the Refunding Bonds. In addition, the City will pay from time to time all amounts required to be rebated to the United States Government pursuant to Section 148(f) of the Code. If the City fails to expend all proceeds of the Refunding Bonds within six (6) months of the date of issue thereof, or establishes any funds SF2-20566.1 1-7 pledged to the payment of the Refunding Bonds other than as currently provided herein, the City shall contact nationally recognized bond counsel for advice relative to compliance with the rebate requirements of Section 148 of the Code. Section 14. The Contract is hereby approved for execution by the City, and the Treasurer or his designee is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver to the Underwriter the Contract in substantially said form providing for the sale of the Refunding Bonds to the Underwriter, which Refunding Bonds shall have maturities resulting in approximately equal annual payments of interest on and principal of the Refunding Bonds in each one-year period ending on September 2 throughout the term of the Refunding Bonds and shall bear interest at a net interest cost not to exceed 6.8672262% per annum and with an underwriter's discount of not more than two per cent (2.00%) of the principal amount represented thereby, plus accrued interest, with such changes in the Contract as such officer may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof, and the Refunding Bonds shall mature in the principal amounts in the years and shall bear interest at the interest rates provided in the Contract. Section 15. The Official Statement in preliminary form relating to the Refunding Bonds (the "Official Statement"), submitted to this meeting and on file with the Clerk, is hereby approved, with such changes as the Treasurer or his designee shall approve, and the Treasurer or his designee is hereby authorized and directed to approve the distribution of the Official Statement in preliminary form when he is satisfied with it and to certify on behalf of the City that the Official Statement in preliminary form has been "deemed final" by the City, except for certain final pricing and related information pursuant to Rule 15c2-12 of the Securities and Exchange Commission, and the Treasurer is hereby authorized and directed, SF2-20566.1 18 for and in the name and on behalf of the City, to execute and deliver to the Underwriter the Official Statement in final form, with such changes as the Treasurer may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof. Section 16. The Treasurer is directed to cause the Refunding Bonds to be printed, and to cause the blank spaces thereof to be filled in, and to procure their execution by the proper officers, and thereafter to deliver them, when so executed, to the Paying Agent, who shall authenticate them, and thereafter to deliver them to the Underwriter as purchaser thereof on receipt by the City of the purchase price thereof. The Treasurer and the Clerk are further authorized and directed to make, execute and deliver to the purchaser of the Refunding Bonds a signature certificate in the form customarily required by purchasers of municipal bonds, certifying to the genuineness and due execution of the Refunding Bonds, and the City Attorney is authorized and directed to make, execute and deliver to the purchaser of the Refunding Bonds a no -litigation certificate in the form customarily required by purchasers of municipal bonds, certifying to all facts within his knowledge relative to any litigation which may or might affect the City or said officers or the Refunding Bonds, and the Treasurer is further authorized and directed to make, execute and deliver to the purchaser of the Refunding Bonds a receipt in the form customarily required by purchasers of municipal bonds, evidencing the payment of the purchase price of the Refunding 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 Refunding Bonds is hereby authorized to rely upon and shall be justified in relying upon such signature certificate, such no -litigation certificate and such receipt with respect to the Refunding Bonds executed, sold and delivered pursuant to the authority of this Resolution. Additionally, the officers of the City are hereby authorized and directed, jointly SF2-20566.1 19 and severally, to do any and all things and to execute and deliver any and all documents and contracts which they may deem necessary or advisable in order to consummate the sale, execution and delivery of the Refunding Bonds and otherwise to carry out, give effect to and comply with the terms and intent of this resolution, the Refunding Bonds, the Contract and the Official Statement; and any such actions heretofore taken by such officers in connection therewith are hereby ratified, confirmed and approved. Section 17. The City Council hereby approves that certain form of Escrow Deposit and Trust Agreement between the City of San Rafael and Bank of America National Trust and Savings Association, dated October 7, 1993, for its services as Escrow Agent in this refunding transaction. A copy of the form of Escrow Deposit and Trust Agreement is attached to this Resolution as Exhibit A. The Treasurer or his designee is directed to fill in the blanks in the agreement and make changes as deemed necessary after consultation with Bond Counsel. The Treasurer is authorized to approve the final Escrow Deposit and Trust Agreement. Section 18. This resolution shall take effect immediately. 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 7th day of September, 1993, by the following vote, to wit: AYES: COUNCILMEMBERS: Breiner, Cohen, Shippey, Thayer & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None JEJ$ M. LEONCI I, City Clerk SF2-20566.1 20 ESCROW DEPOSIT AND TRUST AGREEMENT This ESCROW DEPOSIT AND TRUST AGREEMENT is made and entered into as of this 7th day of October, 1993, (the "Agreement") by and between the City of San Rafael, a municipal corporation of the State of California (the "City") and Bank of America National Trust and Savings Association, as escrow holder hereunder (the "Escrow Bank"). The City Council of the City of San Rafael has authorized issuance of its Limited Obligation Refunding Improvement Bonds, Peacock Gap Reassessment District (the "Bonds") in the amount of $2,500,000.00 pursuant to the Refunding Act of 1984 for 1915 Improvement Act Bonds, as amended, and pursuant to its Resolution Providing for the Issuance of Refunding Bonds (Resolution No. 9 0 1 , dated September 7, 1993, the "Bond Resolution"). The bonds to be refunded by the proceeds of the Bond are the outstanding City of San Rafael, Improvement Bonds, Peacock Gap Improvement District, issued September 4, 1984 (the "Prior Bonds"). The Prior Bonds maturing on September 2, 1994 and thereafter (the "Refunded Bonds") are the bonds to be refunded pursuant to this Agreement. Interest due on all of the outstanding Prior Bonds on January 2, 1994 is also being paid pursuant to this Agreement. Pursuant to the provisions of the Refunded Bonds themselves, the Refunded Bonds may be redeemed on the second day of January or July in any year by giving at least 60 days' notice by registered mail to the owners thereof. The Bond is issued for the purpose of providing funds to pay the principal of and premium on Refunded Bonds on the redemption date of January 2, 1994. The City wishes to deposit the funds necessary to redeem the Refunded Bonds with the Escrow Bank and to enter into this Agreement for the purpose of providing the terms and conditions for the deposit and application of amounts so deposited. The Escrow Bank has all powers to act with respect to the irrevocable escrow and trust created herein and to perform the duties and obligations to be undertaken pursuant to the Agreement. In consideration of the above premises and of the mutual promises and covenants herein contained and for other valuable consideration, the parties hereto agree as follows: Section 1. Appointment of Escrow Bank. The City hereby appoints the Escrow Bank as escrow holder for all purposes of this Agreement and in accordance with the terms and provisions of this Agreement, the Escrow Bank hereby accepts such appointment. SP2-20678.1 41734 -3 -DCII -08127/93 Section 2. Establishment of Refundina Fund. The Escrow Bank hereby agrees to maintain the Refunding Fund established under Section 10 of the Bond Resolution as an irrevocable special trust account which shall be held by the Escrow Bank in trust as security for the payment of the principal of and premium on the Refunded Bonds. Section 3. Deposit and Application of Funds. Concurrently with delivery of the Bond, the City shall cause to be transferred to the Escrow Bank for deposit into the Refunding Fund the amount of $ in immediately available funds to be invested in the securities set forth in Exhibit A attached hereto and by this reference incorporated herein (the "Escrow Securities"). Section 4. Instructions as to Application of Deposit. The City hereby irrevocably directs and instructs the Escrow Bank to acquire the Escrow Securities from amounts deposited in the Refunding Fund, and to apply the maturing principal and interest on the Escrow Securities, to pay the accrued interest, principal of and premium on the Refunded Bonds to fully redeem the Refunded Bonds on January 2, 1994. Any amounts remaining after the redemption of the Refunded Bonds shall be paid to the City. Section 5. Notice of Redemption. The City hereby irrevocably instructs the Escrow Bank to take all steps required to redeem the Refunded Bonds on January 2, 1994 at a redemption price equal to the principal amount thereof plus a premium of five percent (5%) of the principal amount to be redeemed. The City hereby irrevocably instructs the Escrow Bank at the expense of the City to cause a notice of redemption of the Refunded Bonds, in the form already jointly drafted by the City and the Escrow Bank, a copy of which is attached hereto as Exhibit B and by this reference incorporated herein, to be mailed by registered mail, postage prepaid, by October 21, 1993, to the registered owners of the Refunded Bonds at their respective addresses appearing on the registration books maintained by the Paying Agent of the Refunded Bonds. Section 6. Liabilities and Obliaations of Escrow Bank. The Escrow Bank shall have no obligation to make any payment or disbursement of any type or incur any financial liability in the performance of its duties under this Agreement unless the City shall have deposited sufficient funds with the Escrow Bank. The Escrow Bank may rely and shall be protected in acting upon the Written or oral instructions of the City or its agents relating to any matter or action as Escrow Bank under this Agreement. The City covenants to indemnify and hold harmless the Escrow Bank against any loss, liability or expense, including legal fees in connection with the performance of its duties hereunder, except the Escrow Bank shall not be indemnified against any loss, liability or expense resulting from its negligence or willful default. Such indemnification shall survive the termination and discharge of this Agreement. SF2-20678.1 2 41734 -3 -DC& -08/27/93 The Escrow Bank undertakes only such duties as are expressly and specifically set forth in this Agreement and no implied duties or obligations shall be inferred from this Agreement against the Escrow Bank. The Escrow Bank shall not be responsible for any of the recitals or representations made herein other than that the Escrow Bank is qualified to accept and administer the trusts created hereunder. The Escrow Bank shall not be liable for the accuracy of any calculations provided as to the sufficiency of the moneys deposited with it to pay the principal of or interest or premium on the Refunded Bonds. The Escrow Bank shall not have any liability hereunder except to the extent of its own negligence or willful default. In no event shall the Escrow Bank be liable for any special, indirect or consequential damages. The Escrow Bank 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 the resolutions authorizing the Prior Bonds or the Bond Resolution and shall not be required to resolve conflicting demands to money or property in its possession under this Agreement. The Escrow Bank may consult with counsel of its own choice and the opinion of such counsel shall be full and complete authorization to take or suffer in good faith any action in accordance with such opinion of counsel. IN WITNESS WHEREOF, caused this Agreement to officers (the City acting granted in Section 16 of day of October, 1993. the City and the Escrow Bank have each be executed by their duly authorized by its Treasurer pursuant to authority the Bond Resolution) all as of the 7th CITY OF SAN RAFAEL By City Treasurer BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION By SF2-20678.1 3 417343 -DCB -08127193 EXHIBIT A DESCRIPTION OF ESCROW SECURITIES NAME State and Local Government Series INTEREST ISSUE AMOUNT RATE DATE MATURITY DATE SF2.20678.1 41734 -3 -DCB -0887193 EXHIBIT B NOTICE OF REDEMPTION TO THE HOLDERS OF CITY OF SAN RAFAEL IMPROVEMENT BONDS PEACOCK GAP IMPROVEMENT DISTRICT CUSIP NOTICE IS HEREBY GIVEN that pursuant to the provisions of Resolution adopted by the City Council of the City of San Rafael, Marin County, California, on August 20, 1984, authorizing the issuance of the Improvement Bonds, City of San Rafael, Peacock Gap Improvement District; all of the above- described Bonds outstanding, bearing the following distinctive numbers and maturing in the following years, have been designated for redemption on January 2, 1994, and will be redeemed and paid on or after said date at a redemption price equal to 105% of the principal amount thereof, plus accrued interest thereon to the date fixed for redemption: Principal Amount: Prefix: Number: Maturity Date: Interest on the above -enumerated Bonds will cease to accrue on January 2, 1994, the date fixed for redemption, and said Bonds should be presented for payment on or after the redemption date at the principal trust office of Bank of America National Trust and Savings Association, One Embarcadero Center, 20th Floor, San Francisco, CA 94111. CITY OF SAN RAFAEL, Marin County, California Dated: SF2-20678.1 5 417343 -DCB -09/27193