Resolution 1994-06
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RESOLUTION NO. 94 - 6
RESOLUTION APPROVING PAYING AGENT/REGISTRAR AGREEMENT WITH
BANK OF AMERICA NATIONAL mUST AND SAVINGS ASSOCIATION
NORTH FOREST STREET ASSESSMENT DISTRICT
CITY OF GILROY
The City Council of the City of Gilroy resolves:
As a part of the proceedings for improvements in North Forest Street Assessment
District, City of Gilroy, County of Santa Clara, State of California, this Council approves
that certain agreement between the CITY OF GILROY and BANK OF AMERICA
NATIONAL mUST AND SAVINGS ASSOCIATION dated January 21, 1994, and attached to
this resolution.
The Mayor is authorized to sign the agreement and the City Clerk is authorized
to attest its execution.
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I HEREBY CERTIFY THAT the foregoing resolution was duly and regularly
adopted and passed by the City Council of the City of Gilroy, California, at a regular
meeting thereof held on the 18th day of January, 1994, by the following vote of the
members thereof:
AYES and in fayor, thereof, Council members: GILROY, KLOECKER, MORALES,
, ROGERS, ROWLISON, VALDEZ and GAGE.
NOES, Councilmembers: None
ABSENT, Councilmembers: None
=~ t.
Mayor ~
RESOLUTION NO. 94 - 6
ORIGINAL
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PAYING AGENT/REGISTRAR AGREEMENT
THIS PAYING AGENT/REGISTRAR AGREEMENT (this "Agreement"), is
entered into as of January 21, 1994 by and between the City of
Gilroy (the "Issuer"), and Bank of America National Trust and
Savings Association (the "Bank"), as Paying Agent and Registrar.
RECITALS
WHEREAS the Issuer has duly authorized and provided for the
issuance of its Bonds, entitled City of Gilroy North Forest Street
Assessment District Limited Obligation Improvement Bonds (the
"Bonds") in an aggregate principal amount of $2,311,492.00 to be
issued as fully registered bonds without coupons;
WHEREAS the Issuer will ensure all things necessary to make
the Bonds the valid obligations of the Issuer, in accordance with
their terms, will be done upon the issuance and delivery thereof;
WHEREAS the Issuer and the Bank wish to provide the terms
under which Bank will act as Paying Agent to pay the principal,
redemption premium (if any) and interest on the Bonds, in
accordance with the terms thereof, and under which the Bank will
act as Registrar for the Bonds;
WHEREAS the Bank has agreed to serve in such capacities for
and on behalf of the Issuer and has full power and authority to
perform and serve as Paying Agent and Registrar for the Bonds;
WHEREAS the Issuer has duly authorized the execution and
delivery of this Agreement; and all things necessary to make this
Agreement a valid agreement have been done.
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE ONE
DEFINITIONS
section 1.01. Definitions.
For all purposes of this Agreement except as otherwise
expressly provided or unless the context otherwise requires:
"Bank" means Bank of America National Trust and Savings
Association, a national banking association organized and existing
under the laws of the united States of America.
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"Bond Register" means the book or books of registration kept
by the Bank in which are maintained the names and addresses and
principal amounts registered to each Registered Owner.
"Bond Resolution" means the Resolution of the Issuer pursuant
to which the Bonds were issued.
"Bond" or "Bonds" means anyone or all of the $2,311,492.00 in
a9gregate principal amount of bonds entitled City of Gilroy North
Forest street Assessment District Limited Obligation Improvement
Bonds.
"Fiscal Year" means the fiscal year of the Issuer ending on June 30
of each year.
"Issuer" means the City of Gilroy.
"Issuer Request" means a written request signed in the name of
the Issuer and delivered to the Bank.
"paying Agent" means the Bank when it is performing the
function of paying agent for the Bonds.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision
of a government or any entity whatsoever.
"Registered Owner" means a Person in whose name a Bond is
registered in the Bond Register.
"Registrar" means the Bank when it is performing the function
of registrar for the Bonds.
"stated Maturity" when used with respect to any Bond means the
date specified in the Bond Resolution as the date on which the
principal of such Bond is due and payable.
ARTICLE TWO
APPOINTMENT OF BANK AS
PAYING AGENT AND REGISTRAR
section 2.01. Appointment and Acceptance.
The Issuer hereby appoints the Bank to act as Paying Agent
with respect to the Bonds, to pay to the Registered Owners in
accordance with the terms and provisions of this Agreement and the
Bond Resolution, the principal of, redemption premium (if any), and
interest on all or any of the Bonds.
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The Issuer hereby appoints the Bank as Registrar with respect
to the Bonds. As Registrar, the Bank shall keep and maintain for
and on behalf of the Issuer, books and records as to the ownership
of the Bonds and with respect to the transfer and exchange thereof
as provided herein and in the Bond Resolution.
The Bank hereby accepts its appointment, and agrees to act as
Paying Agent and Registrar.
section 2.02. Comoensation.
As compensation for the Bank's services as Paying Agent and
Registrar, the Issuer hereby agrees to pay the Bank the fees and
amounts set forth in a separate agreement between the Issuer and
the Bank for the first year of this Agreement, and thereafter the
fees and amounts set forth in the Bank's current fee schedule then
in effect for services as Paying Agent/Registrar for
municipalities, which shall be supplied by the Bank to the Issuer
on or before 90 days prior to the close of the Fiscal Year of the
Issuer if there are any changes, and shall be effective upon the
first day of the following Fiscal Year.
In addition, the Issuer agrees to reimburse the Bank, upon its
request, for all reasonable and necessary out-of-pocket expenses,
disbursements, and advances, including without limitation the
reasonable fees, expenses , and disbursements of its agents and
attorneys, made or incurred by the Bank in connection with entering
into and performing under this Agreement and in connection with
investigating and defending itself against any claim or liability
in connection with its performance hereunder.
ARTICLE THREE
PAYING AGENT
section 3.01. Duties of Paving Agent.
As Paying Agent, the Bank, provided sufficient collected funds
have been provided to it for such purpose by or on behalf of the
Issuer, shall pay on behalf of the Issuer the principal of,
redemption premium, if any, and interest on each Bond in accordance
with the provisions of the Bond Resolution.
section 3.02. pavrnent Dates.
The Issuer hereby instructs the Bank to pay the principal of,
redemption premium (if any) and interest on the Bonds on the dates
specified in the Bond Resolution.
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ARTICLE FOUR
REGISTRAR
Section 4.01. Initial Deliverv of Bonds.
The Bonds will be initially registered and delivered to the
purchaser designated by the Issuer as one Bond for each maturity.
If such purchaser delivers a written request to the Bank not later
than five business days prior to the date of initial delivery, the
Bank will, on the date of initial delivery, deliver Bonds of
authorized denominations, registered in accordance with the
instructions in such written request.
section 4.02. Duties of Registrar.
The Bank shall provide for the proper registration of
transfer, exchange and replacement of the Bonds.
Every Bond surrendered for transfer or exchange shall be duly
endorsed or be accompanied by a written instrument of transfer, the
signature on which as been guaranteed by an eligible guarantor
institution, in form acceptable to the Bank, duly executed by the
Registered Owner thereof or his attorney duly authorized in
writing. The Registrar may request any supporting documentation it
deems necessary or appropriate to effect are-registration.
section 4.03. Unauthenticated Bonds.
The Issuer shall provide to the Bank on a continuing basis, an
adequate inventory of unauthenticated Bonds to facilitate
transfers. The Bank agrees that it will maintain such
unauthenticated Bonds in safekeeping.
section 4.04. Form of Bond Register.
The Bank as Registrar will maintain its records as Bond
Registrar in accordance with the Bank's general practices and
procedures in effect from time to time.
section 4.05. Reports.
The Issuer may request the information in the Bond Register at
any time the Bank is customarily open for business, provided that
reasonable time is allowed the Bank to provide an up-to-date
listing and to convert the information into written form.
The Bank will not release or disclose the content of the Bond
Register to any person other than to the Issuer at its written
request, except upon receipt of a subpoena or court order or as may
otherwise be required by law. Upon receipt of a subpoena or court
order the Bank will notify the Issuer.
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section 4.06. Cancelled Bonds.
All Bonds surrendered for payment, redemption, transfer,
exchange, or replacement, if surrendered to the Bank, shall be
promptly cancelled by it and, if surrendered to the Issuer, shall
be delivered to the Bank and, if not already cancelled, shall be
promptly cancelled by the Bank. The Issuer may at any time deliver
to the Bank for cancellation any Bonds previously authenticated and
delivered which the Issuer may have acquired in any manner
whatsoever, and all Bonds so delivered shall be promptly cancelled
by the Bank. All cancelled Bonds held by the Bank for its
retention period then in effect and shall thereafter be destroyed
and evidence of such destruction furnished to the Issuer upon its
written request.
ARTICLE FIVE
THE BANK
section 5.01.Duties of Bank.
The Bank undertakes to perform the duties set forth herein.
No implied duties or obligations shall be read into this Agreement
against the Bank. The Bank hereby agrees to use the funds
deposited with it for payment of the principal of and interest on
the Bonds to pay the same as it shall become due and further agrees
to establish and maintain such accounts and funds as may be
required for the Bank to function as Paying Agent.
section 5.02.Reliance on Documents. Etc.
(a) The Bank may conclusively rely, as to the truth of the
statements and correctness of the opinions expressed therein,
on certificates or opinions expressed therein, on
certificates or opinions furnished to the Bank by the Issuer.
(b)
made
than
with
The Bank shall not be liable for any error of judgment
in good faith. The Bank shall not be liable for other
its gross negligence or willful misconduct in connection
any act or omission hereunder.
(c) No provision of this Agreement shall require the Bank to
expend or risk its own funds or otherwise incur any financial
liability for performance of any of its duties hereunder, or
in the exercise of any of its rights or powers.
(d) The Bank may rely, or be protected in acting or
refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note, security or other
paper or document believed by it to be genuine and to have
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been signed or presented by the proper party or parties. The
Bank need not examine the ownership of any Bond, but shall be
protected in acting upon receipt of Bonds containing an
endorsement or instruction of transfer or power of transfer
which appears on its face to be signed by the Registered
Owner or agent of the Registered Owner.
(e) The Bank may consult with counsel, and the written advice
or opinion of counsel shall be full authorization and
protection with respect to any action taken, suffered or
omitted by it hereunder in good faith and reliance thereon.
(f) The Bank may exercise any of the powers hereunder and
perform any duties hereunder either directly or by or through
agents or attorneys and shall not be liable for the actions
of such agent or attorney if appointed by it with reasonable
care.
section 5.03. Recitals of Issuer.
The recitals contained in the Bond Resolution and the Bonds
shall be taken as the statements of the Issuer, and the Bank
assumes no responsibility for their correctness.
Section 5.04. Mav Own Bonds.
The Bank, in its individual or any other capacity, may become
the owner or pledgee of Bonds with the same rights it would have if
it were not the Paying Agent and Registrar for the Bonds.
section 5.05. Money Held bv Bank.
Money held by the Bank hereunder need not be segregated from
other funds.
The Bank shall have no duties with respect to investment of
funds deposited with it and shall be under no obligation to pay
interest on any money received by it hereunder.
Any money deposited with or otherwise held by the Bank for the
payment of the principal, redemption premium (if any) or interest
on any Bond and remaining unclaimed for two years after such
deposit will be paid by the Bank to the Issuer, and the Issuer and
the Bank agree that the Registered Owner of such Bond shall
thereafter look only to the Issuer for payment thereof, and that
all liability of the Bank with respect to such moneys shall
thereupon cease.
Section 5.06. Other Transactions.
The Bank may engage in or be interested in any financial or
other transaction with the Issuer.
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section 5.07. Interoleader.
The Issuer and the Bank agree that the Bank may seek
adjudication of any adverse claim, demand, or controversy over its
person as well as funds on deposit, in a court of competent
jurisdiction. The Issuer and the Bank further agree that the Bank
has the right to file an action in interpleader in any court of
competent jurisdiction to determine the rights of any person
claiming any interest herein.
section 5.08. Indemnification.
The Issuer shall indemnify the Bank, its officers, directors,
employees and agents ("Indemnified Parties") for, and hold them
harmless against any loss, cost, claim, liability or expense
arising out of or in connection with the Bank's acceptance or
administration of the Bank's duties hereunder or under the Bond
Resolution (except any loss, liability or expense as may be
adjudged by a court of competent jurisdiction to be attributable to
the Banks gross negligence or willful misconduct), including the
cost and expense (including its counsel fees) of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties under this Agreement.
Such indemnity shall survive the termination or discharge of this
Agreement or discharge of the Bonds.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
section 6.01. Amendment.
This Agreement may be amended only by an agreement in writing
signed by both of the parties hereto.
section 6.02. Assiqnment
This Agreement may not be assigned by either party without the
prior written consent of the other party.
section 6.03. Notices.
Any request, demand, authorization, direction, notice,
consent, waiver or other document provided or permitted hereby to
be given or furnished to the Issuer or the Bank shall be mailed or
delivered to the Issuer or the Bank, respectively, at the address
shown herein, or such other address as may have been given by one
party to the other by fifteen (15) days written notice.
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section 6.04. Effect of Headinqs.
The Article and section headings herein are for convenience of
reference only and shall not affect the construction hereof.
section 6.05. Successors and Assiqns.
All covenants and agreements herein by the Issuer and the Bank
shall bind their successors and assigns, whether so expressed or
not.
section 6.06. Severability.
If any provision of this Agreement shall be determined to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby.
section 6.07. Benefits of Aqreement.
Nothing herein, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, any
benefit or any legal or equitable right, remedy or claim
hereunder.
section 6.08. Entire Aqreement.
This Agreement and the Bond Resolution constitute the entire
agreement between the parties hereto relative to the Bank acting as
Paying Agent and Registrar.
section 6.09. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which shall
constitute one and the same Agreement.
section 6.10. Term and Termination.
This Agreement shall be effective from and after its date and
until the Bank resigns or is removed in accordance with the Bond
Resolution; provided, however, that no such termination shall be
effective until a successor has been appointed and has accepted the
duties of the Bank hereunder. The Bank may resign at any time by
giving written notice thereof to the Issuer. If the Bank shall
resign, be removed or become incapable of acting, the Issuer shall
promptly appoint a successor Paying Agent and Registrar. If an
instrument of acceptance by a successor Paying Agent and Registrar
shall not have been delivered to the Bank within thirty (30 days
after the Bank gives notice of resignation, the Bank may petition
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any court of competent jurisdiction at the expense of the Issuer
for the appointment of a successor Paying Agent and Registrar. In
the event of resignation or removal of the Bank as Paying Agent and
Registrar, upon the written request of the Issuer and upon payment
of all amounts owing to the Bank hereunder the Bank shall deliver
to the Issuer or its designee all funds and unauthenticated Bonds,
and a copy of the Bond Register. The provisions of section 2.02
and section 5.08 hereof shall survive and remain in full force and
effect following the termination of this Agreement.
section 6.11. Governinq Law.
This Agreement shall be construed in accordance with and shall
be governed by the laws of the State of California.
section 6.12. Documents to be Filed with Bank.
At the time of the Bank's appointment as Paying Agent and
Registrar, the Issuer shall file with the Bank the following
documents: (a) a certified copy of the Bond Resolution and a
specimen Bond; (b) a copy of the opinion of bond counsel provided
to the Issuer in connection with the issuance of the Bonds; and (c)
an Issuer Request containing written instructions to the Bank with
respect to the issuance and delivery of the Bonds, including the
name of the Registered Owners and the denominations of the Bonds.
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BANK OF AMERICA NT&SA
Schedule of Fees For Services as Registrar and Paying Agent
City of Gilroy
North Forest Street Assessment District
Limited Obligation Improvement Bonds
Approximately $2.3 million
ACCEPTANCE FEE: "
(Covers nvtew of tWc:tU1'U!rIIS and set-up of proaxIllres and a:JrrlrOl$.)
Payable at Closing:
5250.00
ANNUAL ADMINISTRATION FEE:
$700.00
TRANSACTION CHARGES:
Payment of Interest, per Check:
Payment of Principal, per Check:
($Soo minlnulm ~r rt!demptionlmaturity)
Initial issuance of Certificates, each:
Subsequent transfers/cancellations, each Certificate:
Each Certificateholder account maintained per month:
Each payment by wire transfer:
Mailing tax forms/notices, per form:
$0.55
52.90
$1.50
52.00
$0.25 '
$25.00
$1.00
OUT-OF-POCKET EXPENSES:
(plus indirf!Cf our-of-podrzr al J'; of D.1I1lualfee and activity dlarges)
A T COST
The above fee schedule is based upon the following assumptions:
(1) We will be appointed both Registrar and Paying Agent.
(2) There will be no administrative duties other than to oversee transfer activity and the
payment of interest and principal.
(3) The issuer will be responsible for the payment of our fees
(4) The issuer will deposit good funds with us on the business day prior to the date the
payment is mailed (two business days prior to the date payment is due and payable).
(5) There will be no investment responsibilities.
DATED: January 7, 1994
CONFIDENTIAL
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
The city ~y
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By:
Title:
Treasurer
Address:
7351 Rosanna Street
Gilroy, CA 95020
ATTEST:
Bank of America National Trust & Savings Association,
as Paying Agent Transfer Agent and Reg'strar
By:
Title: Senior Authorized Officer
Address: Corporate Agency
701 South Western Avenue
Glendale, California 91201
Attention: Diversity Team
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