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
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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
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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.
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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:
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[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
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[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
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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
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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
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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