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RES-2021-003RESOLUTION NO. 2021- 0 0 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ANAHEIM, AUTHORIZING THE EXECUTION AND DELIVERY OF A SCHEDULE TO THE MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT FOR THE ACQUISITION, FINANCING AND LEASING OF CERTAIN EQUIPMENT FOR THE PUBLIC BENEFIT WITHIN THE TERMS PROVIDED HEREIN; AUTHORIZING THE EXECUTION AND DELIVERY OF OTHER DOCUMENTS REQUIRED IN CONNECTION THEREWITH; AND AUTHORIZING ALL OTHER ACTIONS NECESSARY TO THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS RESOLUTION. WHEREAS, the City of Anaheim (the "Lessee "), a municipal corporation, duly organized and existing under the laws of the State of California, is authorized by the laws of the State of California to purchase, acquire and lease personal property (tangible and intangible) for the benefit of the Lessee and its inhabitants and to enter into contracts with respect thereto; and WHEREAS, the City Council has determined that a need exists for the acquisition, purchase and financing of certain property consisting of five (5) Emergency Transport Ambulances (collectively, the "Equipment ") on the terms herein provided; and WHEREAS, the City Council on November 3, 2015 previously approved and authorized that certain Master Equipment Lease/Purchase Agreement with Banc of America Public Capital Corp (the "Lease'); and WHEREAS, in order to acquire such Equipment, the Lessee proposes to approve that certain Schedule of Property No. 3 to the Master Equipment Lease/Purchase Agreement, including the form of Schedule of Property and the form of Rental Payment Schedule, both attached thereto the (the `Additional Lease") with Banc of America Public Capital Corporation (or one of its affiliates), as lessor (the "Lessor "), and the Escrow and Account Agreement (the "Escrow Agreement") by and among the Lessor, Lessee, and Bank of America, National Association, as Escrow Agent, substantially in the proposed form presented tq the City Council at this meeting, and separate Schedules thereto substantially in the form attached to the Additional Lease and Escrow Agreement; and WHEREAS, the City Council deems it for the benefit of the Lessee and for the efficient and effective administration thereof to enter into the Lease, the Escrow Agreement and the Additional Lease and separate Schedules relating thereto from time to time as provided in the Agreements for. the purchase, acquisition, financing and leasing of the Equipment to be therein described on the terms and conditions therein and herein provided; and WHEREAS, the Lease, the Escrow Agreement and the Additional Lease are hereinafter collectively referred to as the "Agreements. " NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANAHEIM AS FOLLOWS: Section 1. Findings and Determinations. It is hereby found and determined that the terms of the Agreements (including the form of Schedule of Property and the form of Rental Payment Schedule, both attached thereto), in the form presented to the City Council at this meeting, are in the best interests of the Lessee for the acquisition, purchase, financing and leasing of the Equipment. Section 2. Approval of Documents. The form, terms and provisions of the Agreements (including the form of Schedule of Property and the form of Rental Payment Schedule, both attached thereto) are hereby approved in substantially the forms presented at this meeting, with such insertions, omissions and changes as shall be approved by the Finance Director, City Clerk and City Attorney of the Lessee (the `Authorized Officials ") executing the same, the execution of such documents being conclusive evidence of such approval. The Authorized Officials are each hereby authorized and directed to sign and deliver on behalf of the Lessee the Agreements, each Schedule thereto under which a separate Lease (as defined in the Agreements) is created, each Rental Payment Schedule attached thereto and any related exhibits attached thereto if and when required; provided, however, that, without further authorization from the City Council of the Lessee, (a) the aggregate principal component of Rental Payments under all Leases entered into pursuant to the Agreements shall not exceed $900,000.00; (b) the maximum term under any Lease entered into pursuant to the Agreements shall not exceed seven (7) years; and (c) the maximum interest rate used to determine the interest component of Rental Payments under each Lease shall not exceed the lesser of the maximum rate permitted by law or [two percent (2%)] per annum. The Authorized Officials may sign and deliver Leases to the Lessor on behalf of the Lessee pursuant to the Agreements on such terms and conditions as they shall determine are in the best interests of the Lessee up to the maximum aggregate principal component, maximum term and maximum interest rate provided above. The foregoing authorization shall remain in effect for a period of [one] year from the date hereof during which the Authorized Officials are authorized to sign and deliver Leases pursuant to the Agreements on the terms and conditions herein provided and to be provided in each such Lease. Section 3. Other Actions Authorized. The officers and employees of the Lessee shall take all action necessary or reasonably required by the parties to the Agreements to carry out, give effect to and consummate the transactions contemplated thereby (including the execution and delivery of Final Acceptance Certificates, Escrow Agreements and any tax certificate and agreement, as contemplated in the Agreements) and to take all action necessary in conformity therewith, including, without limitation, the execution and delivery of any closing and other documents required to be delivered in connection with the Agreements . Section 4. No General Liability. Nothing contained in this Resolution, the Agreements, any Lease, any Escrow Agreement nor any other instrument shall be construed with respect to the Lessee as incurring a pecuniary liability or charge upon the general credit of the Lessee or against its taxing power, nor shall the breach of any agreement contained in this Resolution, the Agreements, or any other instrument or document executed in connection therewith impose any pecuniary liability upon the Lessee or any charge upon its general credit or against its taxing power, 2 except to the extent that the Rental Payments payable under each Lease entered into pursuant to the Agreements are limited obligations of the Lessee, subject to annual appropriation, as provided in the Agreements. Section 5. Appointment ofAuthorized Lessee Representatives. The Finance Director, or designee, of the Lessee is hereby designated to act as authorized representatives of the Lessee for purposes of the Agreements until such time as the City Council of the Lessee shall designate any other or different authorized representative for purposes of the Agreements.. Section 6. Severability. If any section, paragraph, clause or provision of this Resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Resolution. Section 7. Effective Date. This Resolution shall be effective immediately upon its approval and adoption. THE FOREGOING RESOLUTION is approved and adopted by the City Council of the City of Anaheim this 12' da\ of Januar 3 . 2021, by the following roll call vote: AYES: Mayor Sidhu and Council Members Faessel, Diaz, Brandman, Moreno, Valencia, and O'Neil NOES: bone ABSENT: None ABSTAIN: None CITY OF ANAHEIM BY: MAY ATTEST: BY: CIT F THE CITY OF ANAHEIM 140133 SCHEDULE OF PROPERTY No. 3 Re: Master Equipment Lease/Purchase Agreement, dated as of November 30, 2015, between Banc of America Public Capital Corp, as Lessor, and City of Anaheim, as Lessee I. Defined Terms. All terms used herein have the meanings ascribed to them in the above -referenced Master Equipment Lease/Purchase Agreement (the "Agreement"). 2. Equipment. The Equipment shall consist of (5) Medix Metro Express RP -90 ES, Type III to be garaged within the geographic limits of Lessee, as more fully described with each disbursement from the Escrow Account in accordance with the Escrow and Account Control Agreement, together with all attachments, additions, accessions, parts, repairs, improvements, replacements and substitutions thereto as provided in the Agreement. 3. Payment Schedule. (a) Rental Payments; Commencement Date. The Rental Payments shall be in such amounts and payable on such Rental Payment Dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit B and incorporated herein by this reference, subject to adjustment upon the occurrence of an Event of Taxability as provided in Section 4.06 of the Agreement. Lessee's obligation to pay Rental Payments under the Lease created hereby shall commence on the earlier of (i) the date on which the Equipment listed in this Schedule is accepted by Lessee in the manner described in Section 5.01 of the Agreement, as evidenced by the Final Acceptance Certificate executed by Lessee and substantially in the form of Exhibit E attached to the Agreement, and (ii) the date on which sufficient moneys to acquire and install the Equipment listed in this Schedule are deposited for that purpose with an Escrow Agent pursuant to Section 3.04(c) of the Agreement (the earlier of such two dates being herein referred to as the "Commencement Date "). (b) Prepayment Price Schedule. The Prepayment Price on each Rental Payment Date shall be the amount set forth for such Rental Payment Date in the "Prepayment Price" column of the Rental Payment Schedule attached to this Schedule. The Prepayment Price is in addition to all Rental Payments then due under this Schedule (including the Rental Payment shown on the same line in the Rental Payment Schedule). 4.Representations, Warranties and Covenants. Lessee hereby represents, warrants and and covenants that its representations, warranties and covenants set forth in the Agreement (particularly Section 2.01 thereof) are true and correct as though made on the Commencement Date. Lessee further represents and warrants that (a) no Material Adverse Change has occurred since the dated date of the Agreement; (b) no Event of Default has occurred and is continuing under any Lease currently in effect; (c) no Event of Non -appropriation under any Lease currently in effect is threatened; (d) no Lease has been terminated as the result of the occurrence of an Event of Default or an Event of Non -appropriation; (e) the governing body of Lessee has authorized the execution and delivery of the Agreement and the Leases pursuant to Resolution No. , approved on January , 2021; (f) the Equipment listed in this Schedule is essential to the functions of Lessee or to the services Lessee provides its citizens; (g) Lessee has an immediate need for, and expects to make immediate use of, substantially all such Equipment, which will be used by Lessee only for the purpose of performing one or more of Lessee's governmental or proprietary functions consistent with the permissible scope of its authority; and (h) Lessee expects and anticipates adequate funds to be available for all future payments or rent due after the current budgetary period. 5. The Lease. The terms and provisions of the Agreement (other than to the extent that they relate solely to other Schedules or Equipment listed on other Schedules) are hereby incorporated into this Schedule by reference and made a part hereof. 6. Lease Proceeds. The Lease Proceeds that Lessor shall pay to the Escrow Agent in connection with this Schedule is $798,730.44, which $798,730.44 is for deposit into the Escrow Fund. It is expected that by eighteen (18) months from the date of this Schedule of Property No. 3, Lessee will have taken possession of all items of Equipment shown above and that the Lessee's final Disbursement Request pursuant to the Escrow Agreement will be signed by Lessee, approved by Lessor and delivered to the Escrow Agent on or before eighteen (18) months from the date of this Schedule. 7. Acquisition Period. The Acquisition Period applicable to this Schedule shall end at the conclusion of the eighteenth (18th) month following the date hereof. 8. Lease Term. The Lease Term shall consist of the Original Term and seven (7) consecutive Renewal Terms, with the final Renewal Term ending on January 15, 2028, subject to earlier termination pursuant to the Agreement. 9. Prepayment Option Commencement Date. For purposes of Section 10.01 of the Agreement, the Prepayment Option Commencement Date is January 15, 2025. 10. Contract Rate; Taxable Rate. The Contract Rate for this Schedule is 1.6900% per annum. The Taxable Rate for this Schedule is 2.1570% per annum. 11. Registration. Any Equipment that is a motor vehicle is to be registered and titled as follows: (a) Registered Owner: City of Anaheim (b) Lienholder Banc of America Public Capital Corp Northeast Center Building 2059 Northlake Parkway Tucker, GA 30084-5321 Lessee shall be responsible for the correct titling of all Equipment leased hereunder. Lessee will cause the original Certificates of Title to be delivered to Lessor for retention in Lessor's files throughout the Lease Term of the Lease created hereby. Dated: January 15, 2021 LESSOR: Banc of America Public Capital Corp 555 California Street, 4th Floor San Francisco, California 94104 Attention: Contract Administration LIM Name: Title: LESSEE: City of Anaheim 200 S. Anaheim Blvd Anaheim, CA 92805 Attention: Name: Title: Counterpart No. of manually executed and serially numbered counterparts. To the extent that the Lease created hereby constitutes chattel paper (as defined in the applicable Uniform Commercial Code), no security or ownership interest herein may be created through the transfer or possession of any Counterpart other than Counterpart No. 1. EXHIBIT B RENTAL PAYMENT SCHEDULE RENTAL RENTAL INTEREST PAYMENT PAYMENT PORTION PRINCIPAL DATE AMOUNT1.6� 900%) PORTION OUTSTANDING PREPAYMENT BALANCE PRICE 01/15/21 $0.00 $0.00 $0.00 $798,730.44 01/15/22 $121,947.04 $13,498.54 $108,448.50 $690,281.94 01/15/23 $121,947.04 $11,665.76 $110,281.28 $580,000.66 01/15/24 $121,947.04 $9,802.01 $112,145.03 $467,855.63 01/15/25 $121,947.04 $7,906.76 $114,040.28 $353,815.35 01/15/26 $121,947.04 $5,979.48 $115,967.56 $237,847.79 01/15/27 $121,947.04 $4,019.63 $117,927.41 $119,920.38 01/15/28 $121,947.03 $2,026.65 $119,920.38 $0.00 total $853,629.27 $54,898.83 $798,730.44 n/a n/a n/a $353,815.35 $237,847.79 $119,920.38 $0.00 Escrow and Account Control Agreement This Escrow and Account Control Agreement (this "Agreement"), dated as of January 15, 2021, by and among Banc of America Public Capital Corp, a Kansas corporation (together with its successors and assigns, hereinafter referred to as "Lessor"), the City of Anaheim, a political subdivision of the State of California (hereinafter referred to as "Lessee") and Bank of America, National Association, a national banking association organized under the laws of the United States of America (hereinafter referred to as "Escrow Agent"). Reference is made to that certain Schedule of Property No. 3 dated as of January 15, 2021 to Master Equipment Lease/Purchase Agreement dated as of November 30, 2015 between Lessor and Lessee (hereinafter referred to as the "Lease"), covering the acquisition and lease of certain Equipment described therein (the "Equipment"). It is a requirement of the Lease that the Acquisition Amount ($798,730.44) be deposited into a segregated escrow account under terms satisfactory to Lessor, for the purpose of fully funding the Lease, and providing a mechanism for the application of such amounts to the purchase of and payment for the Equipment. NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Creation of Escrow Account. (a) There is hereby created an escrow fund to be known as the "City of Anaheim Escrow Account Schedule 3" (the "Escrow Account") to be held by the Escrow Agent for the purposes stated herein, for the benefit of Lessor and Lessee, to be held, disbursed and returned in accordance with the terms hereof. (b) Lessee may, from time to time, provide written instructions for Escrow Agent to use any available cash in the Escrow Account to purchase any money market fund or liquid deposit investment vehicle that Escrow Agent from time to time makes available to the parties hereto. Such written instructions shall be provided via delivery to Escrow Agent of a signed and completed Escrow Account Investment Selection Form (such form available from Escrow Agent upon request). All funds invested by Escrow Agent at the direction of Lessee in such short-term investments (as more particularly described in Escrow Agent's Escrow Account Investment Selection Form) shall be deemed to be part of the Escrow Account and subject to all the terms and conditions of this Agreement. If any cash is received for the Escrow Account after the cut-off time for the designated short-term investment vehicle, the Escrow Agent shall hold such cash uninvested until the next Business Day. In the absence of written instructions from Lessee (on Escrow Agent's Escrow Account Investment Selection Form) designating a short- term investment of cash in the Escrow Account, cash in the Escrow Account shall remain uninvested and it shall not be collateralized. Escrow Agent shall have no obligation to pay interest on cash in respect of any period during which it remains uninvested. Lessee shall be solely responsible for ascertaining that all proposed investments and reinvestments are Qualified Investments and that they comply with federal, state and local laws, regulations and ordinances governing investment of such funds and for providing appropriate notice to the Escrow Agent for the reinvestment of any maturing investment. Accordingly, neither the Escrow Agent nor Lessor shall be responsible for any liability, cost, expense, loss or claim of any kind, directly or indirectly arising out of or related to the investment or reinvestment of all or any portion of the moneys on deposit in the Escrow Account, and Lessee agrees to and does hereby release the Escrow Agent and Lessor from any such liability, cost, expenses, loss or claim. Interest on the Escrow Account shall become part of the Escrow Account, and gains and losses on the investment of the moneys on deposit in the Escrow Account shall be borne by the Lessee. The Escrow Agent shall have no discretion whatsoever with respect to the management, disposition or investment of the Escrow Account. The Escrow Agent shall not be responsible for any market decline in the value of the Escrow Account and has no obligation to notify Lessor and Lessee of any such decline or take any action with respect to the Escrow Account, except upon specific written instructions stated herein. For purposes of this Agreement, "Qualified Investments" rneans any investments which meet the requirements of California. (c) Unless the Escrow Account is earlier terminated in accordance with the provisions of paragraph (d) below, amounts in the Escrow Account shall be disbursed by the Escrow Agent in payment of amounts described in Section 2 hereof upon receipt of written instruction(s) from Lessor, as is more fully described in Section 2 hereof. If the amounts in the Escrow Account are insufficient to pay such amounts, Lessee shall provide any balance of the funds needed to complete the acquisition of the Equipment. Any moneys remaining in the Escrow Account on or after the earlier of (i) the expiration of the Acquisition Period or (ii) the date on which Lessee executes an Acceptance Certificate shall be applied as provided in Section 4 hereof. (d) The Escrow Account shall be terminated at the earliest of (i) the final distribution of amounts in the Escrow Account, (ii) the date on which Lessee executes a Final Acceptance Certificate or (iii) written notice given by Lessor of the occurrence of an Event of Default under the Lease or termination of the Lease due to an Event of Non -appropriation. Notwithstanding the foregoing, this Agreement shall not terminate nor shall the Escrow Account be closed until all funds deposited hereunder have been disbursed. (e) The Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine and may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity of any instrument nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the receipt of such moneys, instruments or other documents received by it as the Escrow Agent, and for the disposition of the same in accordance herewith. Notwithstanding and without limiting the generality of the foregoing, concurrent with the execution of this Agreement, Lessee and Lessor, respectively, shall deliver to the Escrow Agent an authorized signers form in the form of Exhibit A-1 (Lessee) and Exhibit A-2 (Lessor) attached hereto. Notwithstanding the foregoing sentence, the Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications believed by it to have been sent or given by the parties or by a person or persons authorized by the parties. The Escrow Agent specifically allows for receiving direction by written or electronic transmission from an authorized representative with the following caveat, Lessee and Lessor agree to indemnify and hold harmless the Escrow Agent against any and all claims, losses, damages, liabilities, judgments, costs and expenses (including reasonable 2 attorneys' fees) (collectively, "Losses") incurred or sustained by the Escrow Agent as a result of or in connection with the Escrow Agent's reliance upon and compliance with instructions or directions given by written or electronic transmission given by each, respectively, provided, however, that such Losses have not arisen from the gross negligence or willful misconduct of the Escrow Agent, it being understood that forbearance on the part of the Escrow Agent to verify or confirm that the person giving the instructions or directions, is, in fact, an authorized person shall not be deemed to constitute gross negligence or willful misconduct. In the event conflicting instructions as to the disposition of all or any portion of the Escrow Account are at any time given by Lessor and Lessee, the Escrow Agent shall abide by the instructions or entitlement orders given by Lessor without consent of the Lessee. (f) Unless the Escrow Agent is guilty of gross negligence or willful misconduct with regard to its duties hereunder, Lessee agrees to and does hereby release and indemnify the Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other expense, fees or charges of any character or nature, which it may incur or with which it may be threatened by reason of its acting as Escrow Agent under this Agreement; and in connection therewith, does to the extent permitted by law indemnify the Escrow Agent against any and all expenses; including reasonable attorneys' fees and the cost of defending any action, suit or proceeding or resisting any claim. (g) If Lessee and Lessor shall be in disagreement about the interpretation of the Lease, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, but shall not be required to, file an appropriate civil action including an interpleader action to resolve the disagreement. The Escrow Agent shall be reimbursed by Lessee for all costs, including reasonable attorneys' fees, in connection with such civil action, and shall be fully protected in suspending all or part of its activities under the Lease until a final judgment in such action is received. (h) The Escrow Agent may consult with counsel of its own choice and shall have full and complete authorization and protection with the opinion of such counsel. The Escrow Agent shall otherwise not be liable for any mistakes of fact or errors of judgment, or for any acts or omissions of any kind unless caused by its willful misconduct. (i) Lessee shall reimburse the Escrow Agent for all reasonable costs and expenses, including those of the Escrow Agent's attorneys, agents and employees incurred for non -routine administration of the Escrow Account and the performance of the Escrow Agent's powers and duties hereunder in connection with any Event of Default under the Lease, any termination of the Lease due to an Event of Non -appropriation or in connection with any dispute between Lessor and Lessee concerning the Escrow Account. 0) The Escrow Agent or any successor may at any time resign by giving mailed notice to Lessee and Lessor of its intention to resign and of the proposed date of resignation ("the Effective Date"), which shall be a date not less than 60 days after such notice is delivered to an express carrier, charges prepaid, unless an earlier resignation date and the appointment of a successor shall have been approved by the Lessee and Lessor. After the Effective Date, the Escrow Agent shall be under no further obligation except to hold the Escrow 3 Account in accordance with the terms of this Agreement, pending receipt of written instructions from Lessor regarding further disposition of the Escrow Account. (k) The Escrow Agent shall have no responsibilities, obligations or duties other than those expressly set forth in this Agreement and no implied duties responsibilities or obligations shall be read into this Agreement. 2. Acquisition of Property. (a) Acquisition Contracts. Lessee will arrange for, supervise and provide for, or cause to be supervised and provided for, the acquisition of the Equipment, with moneys available in the Escrow Account. Lessee represents the estimated costs of the Equipment are within the funds estimated to be available therefor, and Lessor makes no warranty or representation with respect thereto. Lessor shall have no liability under any of the acquisition or construction contracts. Lessee shall obtain all necessary permits and approvals, if any, for the acquisition, equipping and installation of the Equipment, and the operation and maintenance thereof. Escrow Agent shall have no duty to monitor or enforce Lessee's compliance with the foregoing covenant. (b) Authorized Escrow Account Disbursements. It is agreed as between Lessee and Lessor that disbursements from the Escrow Account shall be made for the purpose of paying (including the reimbursement to Lessee for advances from its own funds to accomplish the purposes hereinafter described) the cost of acquiring the Equipment. (c) Requisition Procedure. No disbursement from the Escrow Account shall be made unless and until Lessor has approved such requisition. Prior to disbursement from the Escrow Account there shall be filed with the Escrow Agent a requisition for such payment in the form of Disbursement Request attached hereto as Schedule 1, stating each amount to be paid and the name of the person, firm or corporation to whom payment thereof is due. All disbursements shall be made by wire transfer. The Escrow Agent is authorized to obtain and rely on confirmation of such Disbursement Request and payment instructions by telephone call-back to the person or persons designated for verifying such requests on Exhibit A-2 (such person verifying the request shall be different than the person initiating the request). The Lessor and Lessee hereby confirm that any call-back performed by Escrow Agent to verify a disbursement instruction pursuant to a Disbursement Request submitted pursuant to this Section 2(c) before release, shall be made to Lessor only and Escrow Agent shall have no obligation to call-back Lessee. Each such Disbursement Request shall be signed by an authorized representative of Lessee (an "Authorized Representative") and by Lessor, and shall be subject to the following conditions, which Escrow Agent shall conclusively presume have been satisfied at such time as a requisition executed by Lessee and Lessor is delivered to it: Delivery to Lessor of an executed Disbursement Request in the form attached hereto as Schedule 1; and 4 2. Delivery to Lessor of copies of invoices (and proofs of payment of such invoices, if Lessee seeks reimbursement) and bills of sale (if title to such Equipment has passed to Lessee) therefor as required by Section 3.04 of the Lease and any additional documentation reasonably requested by Lessor. Lessee and Lessor agree that their execution of the form attached hereto as Schedule 1 and delivery of the executed form to Escrow Agent confirms that all of the requirements and conditions with respect to disbursements set forth in this Section 2 have been satisfied. 3. Deposit to Escrow Account. Upon satisfaction of the conditions specified in Section 3.04 of the Lease, Lessor will cause the Acquisition Amount to be deposited in the Escrow Account. Lessee agrees to pay any costs with respect to the Equipment in excess of amounts available therefor in the Escrow Account. 4. Excessive Escrow Account. Upon receipt of written instructions from Lessor including a representation that one of the following conditions has been satisfied (upon which representation Escrow Agent shall conclusively rely, any funds remaining in the Escrow Account on or after the earlier of (a) the expiration of the Acquisition Period or (b) the date on which Lessee executes an Acceptance Certificate, or upon a termination of the Escrow Account as otherwise provided herein, shall be distributed by the Escrow Agent to the Lessor in order for the Lessor to apply such funds to amounts owed by Lessee under the Lease in accordance with Section 4.07 of the Lease. 5. SecuriLN, Interest. The Escrow Agent and Lessee acknowledge and agree that the Escrow Account and all proceeds thereof are being held by Escrow Agent for disbursement or return as set forth herein. Lessee hereby grants to Lessor a first priority perfected security interest in the Escrow Account, and all proceeds thereof, and all investments made with any amounts in the Escrow Account. If the Escrow Account, or any part thereof, is converted to investments as set forth in this Agreement, such investments shall be made in the name of Escrow Agent and the Escrow Agent hereby agrees to hold such investments as bailee for Lessor so that Lessor is deemed to have possession of such investments for the purpose of perfecting its security interest. 6. Control of Escrow Account. In order to perfect Lessor's security interest by means of control in (i) the Escrow Account established hereunder, (ii) all securities entitlements, investment property and other financial assets now or hereafter credited to the Escrow Account, (iii) all of Lessee's rights in respect of the Escrow Account, such securities entitlements, investment property and other financial assets, and (iv) all products, proceeds and revenues of and from any of the foregoing personal property (collectively, the "Collateral"), Lessor, Lessee and Escrow Agent further agree as follows: (a) All terms used in this Section 6 which are defined in the Commercial Code of the state of California ("Commercial Code") but are not otherwise defined herein shall have the meanings assigned to such terms in the Commercial Code, as in effect on the date of this Agreement. 5 (b) Escrow Agent will comply with all entitlement orders originated by Lessor with respect to the Collateral, or any portion of the Collateral, without further consent by Lessee. (c) Provided that account investments shall be held in the name of the Escrow Agent, Escrow Agent hereby represents and warrants (a) that the records of Escrow Agent show that Lessee is the sole owner of the Collateral, (b) that Escrow Agent has not been served with any notice of levy or received any notice of any security interest in or other claim to the Collateral, or any portion of the Collateral, other than Lessor's claim pursuant to this Agreement, and (c) that Escrow Agent is not presently obligated to accept any entitlement order from any person with respect to the Collateral, except for entitlement orders that Escrow Agent is obligated to accept from Lessor under this Agreement and entitlement orders that Escrow Agent, subject to the provisions of paragraph (e) below, is obligated to accept from Lessee. (d) Without the prior written consent of Lessor, Escrow Agent will not enter into any agreement by which Escrow Agent agrees to comply with any entitlement order of any person other than Lessor or, subject to the provisions of paragraph (e) below, Lessee, with respect to any portion or all of the Collateral. Escrow Agent shall promptly notify Lessor if any person requests Escrow Agent to enter into any such agreement or otherwise asserts or seeks to assert a lien, encumbrance or adverse claim against any portion or all of the Collateral. (e) Except as otherwise provided in this paragraph (e) and subject to Section 1(b) hereof, Lessee may effect sales, trades, transfers and exchanges of Collateral within the Escrow Account, but will not, without the prior written consent of Lessor, withdraw any Collateral from the Escrow Account. Escrow Agent acknowledges that Lessor reserves the right, by delivery of written notice to Escrow Agent, to prohibit Lessee from effecting any withdrawals (including withdrawals of ordinary cash dividends and interest income), sales, trades, transfers or exchanges of any Collateral held in the Escrow Account. Further, Escrow Agent hereby agrees to comply with any and all written instructions delivered by Lessor to Escrow Agent (once it has had a reasonable opportunity to comply therewith) and has no obligation to, and will not, investigate the reason for any action taken by Lessor, the amount of any obligations of Lessee to Lessor, the validity of any of Lessor's claims against or agreements with Lessee, the existence of any defaults under such agreements, or any other matter. (f) Lessee hereby irrevocably authorizes Escrow Agent to comply with all instructions and entitlement orders delivered by Lessor to Escrow Agent. (g) Escrow Agent will not attempt to assert control, and does not claim and will not accept any security or other interest in, any part of the Collateral, and Escrow Agent will not exercise, enforce or attempt to enforce any right of setoff against the Collateral, or otherwise charge or deduct from the Collateral any amount whatsoever. (h) Escrow Agent and Lessee hereby agree that any property held in the Escrow Account shall be treated as a financial asset under such section of the Commercial Code as corresponds with Section 8-102 of the Uniform Commercial Code, notwithstanding any contrary provision of any other agreement to which Escrow Agent may be a party. (i) Escrow Agent is hereby authorized and instructed, and hereby agrees, to send to Lessor at its address set forth in Section 8 below, concurrently with the sending thereof to Lessee, duplicate copies of any and all monthly Escrow Account statements or reports issued or sent to Lessee with respect to the Escrow Account. 7. Information Required Under USA PATRIOT ACT. The parties acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to this Agreement agree that they will provide to the Escrow Agent such information as it may request, from time to time, in order for the Escrow Agent to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided. 8. Miscellaneous. Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the Lease. This Agreement may not be amended except in writing signed by all parties hereto. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original instrument and each shall have the force and effect of an original and all of which together constitute, and shall be deemed to constitute, one and the same instrument. Notices hereunder shall be made in writing and shall be deemed to have been duly given when personally delivered or when deposited in the mail, first class postage prepaid, or delivered to an express carrier, charges prepaid, or sent by facsimile with electronic confirmation, addressed to each party at its address below. Notices and other communications hereunder may be delivered or furnished by electronic mail provided that any formal notice be attached to an email message in PDF format and provided further that any notice or other communication sent to an e-mail address shall be deemed received upon and only upon the sender's receipt of affirmative acknowledgement or receipt from the intended recipient. For purposes hereof no acknowledgement of receipt generated on an automated basis shall be deemed sufficient for any purpose hereunder or admissible as evidence of receipt. If to Lessor: Banc of America Public Capital Corp 555 California Street, 4th Floor CA5-705-04-01 San Francisco, CA 94104 Attn: Contract Administration Fax: (415) 765-7373 If to Lessee: City of Anaheim 200 S. Anaheim Blvd Anaheim, CA 92805 Attn: Deborah A. Moreno Fax: (714) 765-5260 7 If to Escrow Agent: Bank of America, National Association Global Custody and Agency Services 540 W. Madison Street Mail Code: IL4-540-21-03 Chicago, Illinois 60661 Attention: GCAS AMRS Escrow Client Services Telephone: (312) 992-3272 Fax: (312) 453-4443 Email: gcas amrs escrow client service rr.bofa.com 9. Lessee and Lessor understand and agree that they are required to provide the Escrow Agent with a properly completed and signed Tax Certification (as defined below) and that the Escrow Agent may not perform its duties hereunder without having been provided with such Tax Certification. As used herein "Tax Certification" shall mean an IRS form W-9 or W-8 as described above. The Escrow Agent will comply with any U.S. tax withholding or backup withholding and reporting requirements that are required by law. With respect to earnings allocable to a foreign person, the Escrow Agent will withhold U.S. tax as required by law and report such earnings and taxes withheld, if any, for the benefit of such foreign person on IRS Form 1042-S (or any other required form), unless such earnings and withheld taxes are exempt from reporting under Treasury Regulation Section 1.1461-1(c)(2)(ii) or under other applicable law. With respect to earnings allocable to a United States person, the Escrow Agent will report such income, if required, on IRS Form 1099 or any other form required by law. The IRS Forms 1099 and/or 1042-S shall show the Escrow Agent as payor and the City of Anaheim as payee. Escrow Agent shall recognize the City of Anaheim as the designated party for regulatory reporting purposes. Lessee and Lessor agree that they are not relieved of their respective obligations, if any, to prepare and file information reports under Code Section 6041, and the Treasury regulations thereunder, with respect to amounts of imputed interest income, as determined pursuant to Code Sections 483 or 1272. The Escrow Agent shall not be responsible for determining or reporting such imputed interest. 10. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the parties hereto consent to jurisdiction in the State of California and venue in any state or Federal court located in the City of Santa Ana. 11. Any bank or corporation into which the Escrow Agent may be merged or with which it may be consolidated, or any bank or corporation to whom the Escrow Agent may transfer a substantial amount of its escrow business, shall be the successor to the Escrow Agent without the execution or filing of any paper or any further act on the part of any of the parties, anything herein to the contrary notwithstanding. Any bank or corporation into which the Lessor may be merged or with which it may be consolidated, or any bank or corporation to whom the Lessor may transfer a substantial amount of its business, shall be the successor to the Lessor without the execution or filing of any paper or any further act on the part of any of the parties, anything herein to the contrary notwithstanding. 8 12. This Agreement may be amended, modified, and/or supplemented only by an instrument in writing executed by all parties hereto. 13. No party hereto shall assign its rights hereunder until its assignee has submitted to the Escrow Agent (i) Patriot Act disclosure materials and the Escrow Agent has determined that on the basis of such materials it may accept such assignee as a customer and (ii) assignee has delivered an IRS Form W-8 or W-9, as appropriate, to the Escrow Agent which the Escrow Agent has determined to have been properly signed and completed. 14. Escrow Agent will treat information related to this Agreement as confidential but, unless prohibited by law, Lessee and Lessor authorize the transfer or disclosure of any information relating to the Agreement to and between the subsidiaries, officers, affiliates and other representatives and advisors of Escrow Agent and third parties selected by any of them, wherever situated, for confidential use in the ordinary course of business, and further acknowledge that Escrow Agent and any such subsidiary, officer, affiliate or third party may transfer or disclose any such information as required by any law, court, regulator or legal process. Lessor will treat information related to this Agreement as confidential but, unless prohibited by law, Escrow Agent and Lessee authorize the transfer or disclosure of any information relating to the Agreement to and between the subsidiaries, officers, affiliates, other representatives and advisors of Lessor and debt and equity sources and third parties selected by any of them, and to their prospective assignees wherever situated, for confidential use in the ordinary course of business, and further acknowledge that Lessor and any such subsidiary, officer, affiliate, debt and equity source or third party or prospective assignee may transfer or disclose any such information as required by any law, court, regulator or legal process. Lessee will treat the terms of this Agreement as confidential except on a "need to know" basis to persons within or outside Lessee's organization (including affiliates of such party), such as attorneys, accountants, bankers, financial advisors, auditors and other consultants of such party and its affiliates, except as required by any law, court, regulator or legal process and except pursuant to the express prior written consent of the other parties, which consent shall not be unreasonably withheld; 0 In Witness Whereof, the parties have executed this Escrow and Account Control Agreement as of the date first above written. Banc of America Public Capital Corp City of Anaheim as Lessor as Lessee In Name: Title: Bank of America, National Association As Escrow Agent By: -- —� - Name: Title: 10 M. Name: Title: SCHEDULE 1 to the Escrow and Account Control Agreement FORM OF DISBURSEMENT REQUEST Re: Schedule of Property No. 3 dated as of January 15, 2021 to Master Equipment Lease/Purchase Agreement dated as of November 30, 2015 by and between Banc of America Public Capital Corp, as Lessor, and the City of Anaheim, as Lessee (the "Lease") (Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the Lease.) In accordance with the terms of the Escrow and Account Control Agreement, dated as of January 15, 2021 (the "Escrow and Account Control Agreement") by and among Banc of America Public Capital Corp ("Lessor"), the City of Anaheim ("Lessee") and Bank of America, National Association, (the "Escrow Agent"), the undersigned hereby requests the Escrow Agent pay the following persons the following amounts from the Escrow Account created under the Escrow and Account Control Agreement for the following purposes: Disbursement Amounts: Payee's Name and Address Invoice Number Dollar Amount Purpose <Payee's Name> <invoice list OR < invoice amount> <general description of <Payee Address 1> "see attached" with equipment; ex "police cruiser"> <Payee Address 2> a spreadsheet> <Payee Address 3> <Payee Bank Name> <Payee Bank ABA/Routing> <Payee Bank Account No> <Payee Account Name> <*Payee Address and Payee Bank information is re uired.> <Payee's Name> <invoice list OR < invoice amount> <general description of <Payee Address 1> "see attached" with equipment; ex "police cruiser"> <Payee Address 2> a spreadsheet> <Payee Address 3> <Payee Bank Name> <Payee Bank ABA/Routing> <Payee Bank Account No> <Payee Account Name> <*Payee Address and Payee Bank information is required.> Lessee hereby represents, covenants and warrants for the benefit of Lessor on the date hereof as follows: (i) (a) Each obligation specified in the table herein titled as "Disbursement Amounts" has been incurred by Lessee in the stated amount, (b) the same is a proper charge against the Escrow Account for costs relating to the Equipment identified in the Lease, and (c) has not been paid (or has been paid by Lessee and Lessee requests reimbursement thereof). (ii) Each item of Equipment relating to an obligation specified in the table herein titled as "Disbursement Amounts" has been delivered, installed and accepted by Lessee. Attached hereto is a copy of the invoice with respect to such obligation. Standard-BOA-EA-BAPCC-815 (iii) The undersigned, as Authorized Representative, has no notice of any vendor's, mechanic's or other liens or rights to liens, chattel mortgages, conditional sales contracts or security interest which should be satisfied or discharged before such payment is made. (iv) This requisition contains no item representing payment on account, or any retained percentages which Lessee is, at the date hereof, entitled to retain (except to the extent such amounts represent a reimbursement to Lessee). (v) The Equipment is insured in accordance with the Lease. (vi) No Event of Default, and no event which with notice or lapse of time, or both, would become an Event of Default, under the Lease has occurred and is continuing at the date hereof. No Event of Non -appropriation has occurred or is threatened with respect to the Lease. (vii) The disbursement shall occur during the Acquisition Period. (viii) The representations, warranties and covenants of Lessee set forth in the Lease are true and correct as of the date hereof. (ix) No Material Adverse Change has occurred since the date of the execution and delivery of the Lease. Dated: CITY OF ANAHEIM By: Name: Title: Disbursement of funds from the Escrow Account in accordance with the foregoing Disbursement Request hereby is authorized BANC OF AMERICA PUBLIC CAPITAL CORP as Lessor under the Lease By: Name: Title: Standard -BOA -EA -B APCC-815 EXHIBIT A-1 INCUMBENCY AND AUTHORIZATION CERTIFICATE The undersigned, a duly elected or appointed and acting City Clerk of City of Anaheim ( "Lessee ") certifies as follows: A. The following listed persons are duly elected or appointed and acting officials of Lessee (the "Officials") in the capacity set forth opposite their respective names below and the facsimile signatures below are true and correct as of the date hereof, B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and deliver the Schedule of Property No. 3 dated as of January 15, 2021 to Master Equipment Lease/Purchase Agreement dated as of November 30, 2015 by and between Lessee and Banc of America Public Capital Corp ("Lessor"), the Escrow and Account Control Agreement dated as of January 15, 2021 by and among Lessor, Lessee and Bank of America, National Association, as Escrow Agent, all documents related thereto and delivered in connection therewith, and any future modification(s) or amendments thereof (collectively, the "Operative Agreements"), and the Operative Agreements each are the binding and authorized agreements of Lessee, enforceable in all respects in accordance with their respective terms. Name of Official Title Signature DEBORAH A. MORENO FINANCE DIRECTOR / CITY TREASURER Dated: January 15, 2021 By: Name: Theresa Bass Title: City Clerk (The signer of this Certificate cannot be listed above as authorized to execute the Agreements.) Stan dard-BOA-EA-BAPCC-815 EXHIBIT A-2 Escrow and Account Control Agreement dated as of January 15, 2021 by and among Banc of America Public Capital Corp, the City of Anaheim, and Bank of America, National Association Certificate of Authorized Representatives — Banc of America Public Capital Corp Name: Jennifer Schlosser Name: Augustine Reichenbach Title: Authorized Agent Title: Authorized Agent Phone: 443-541-3685 Phone: 443-541-2613 Facsimile: 804-662-1781 Facsimile: 904-312-6101 E-mail: jennifer.schlosserrdbaml.com E-mail: Au=Lustine.reichenback.`ii-baml.com Signature: Signature: Fund Transfer / Disbursement Authority Level: Fund Transfer/ Disbursement Authority Level: ❑ Initiate ❑ Initiate ❑ Verify transactions initiated by others ❑ Verify transactions initiated by others Name: Terri Preston Title: Authorized Agent Phone: 443-541-3642 Facsimile: 804-553-8124 E-mail: terri.nreston �rbaml.com Signature: Fund Transfer / Disbursement Authority Level: ❑ Initiate ❑ Verify transactions initiated by others Name: Title: Phone: Facsimile: E-mail: Signature: Fund Transfer / Disbursement Authority Level: ❑ Initiate ❑ Verify transactions initiated by others The Escrow Agent is authorized to comply with and rely upon any notices, instructions or other communications believed by it to have been sent or given by the person or persons identified above including without limitation, to initiate and verify funds transfers as indicated. Banc of America Public Capital Corp By. - - Name: Title: Date: January 15, 2021 Stan dard-BOA-EA-B AP CC -815 CLERK'S CERTIFICATE STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, THERESA BASS, City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original Resolution No. 2021-003 adopted at a regular meeting provided by law, of the Anaheim City Council held on the 12th day of January. 2021 by the following vote of the members thereof: AYES: Mayor Sidhu and Council Members Faessel, Diaz, Brandman, Moreno, Valencia and O'Neil NOES: None ABSENT: None ABSTAIN: None IN WITNESS WHEREOF, I have hereunto set my hand this 13th day of January. 2021 "iTY CLEAK OF THE CITY OF ANAHEIM (SEAL)