HomeMy WebLinkAboutCity of Tamarac Resolution R-2010-161Temp. Reso. #11.960 - November 15, 201.0
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CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2010- / w l
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA AMENDING AND
SUPPLEMENTING RESOLUTION NO. 98-156, AS REPLACED
BY RESOLUTION NO.99-178 AS FURTHER AMENDED AND
SUPPLEMENTED BY RESOLUTION NO.99-192, RESOLUTION
NO. R-2002-125 AND RESOLUTION NO. R-2009-92,
AUTHORIZING THE ISSUANCE OF NOT EXCEEDING
$11,000,000 SALES TAX REFUNDING REVENUE BOND,
SERIES 2010 OF THE CITY OF TAMARAC, FLORIDA, TO
REFUND CERTAIN INDEBTEDNESS DESCRIBED HEREIN
AND TO PAY ASSOCIATED TRANSACTIONAL COSTS;
ADDING BACKUP SECURITY IN THE FORM OF A
COVENANT TO BUDGET AND APPROPRIATE LEGALLY
AVAILABLE NON -AD VALOREM REVENUES OF THE CITY;
FIXING CERTAIN TERMS AND DETAILS OF SUCH BOND;
AUTHORIZING THE PRIVATE NEGOTIATED SALE OF SUCH
BOND TO BRANCH BANKING AND TRUST COMPANY
PURSUANT TO THE TERMS AND CONDITIONS DESCRIBED
HEREIN; APPROVING THE FORM OF AND AUTHORIZING
THE EXECUTION OF AN ESCROW DEPOSIT AGREEMENT;
SELECTING A PAYING AGENT, BOND REGISTRAR AND
ESCROW AGENT; MAKING SUCH DETERMINATIONS AS
ARE REQUIRED TO AFFORD SUCH BOND "BANK
QUALIFIED" STATUS; AUTHORIZING OTHER REQUIRED
ACTIONS; PROVIDING FOR SEVERABILITY AND AN
EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC,
FLORIDA:
SECTION 1. AUTHORITY FOR THIS RESOLUTION. The City of Tamarac, Florida (the
"City") is authorized to adopt this resolution (the "Resolution") under the authority granted by
the Constitution and laws of the State of Florida, particularly Chapter 166, Florida Statutes, as
amended, its municipal charter, and other applicable provisions of law.
SECTION 2. DEFINITIONS. Unless otherwise defined in the Bond Resolution, the
following words and phrases shall have the following meanings:
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"Authorized Denominations" means an amount equal to the principal amount of the
Series 2010 Bond.
"Bond Resolution" means Resolution No. 98-156 adopted by the City Commission on
May 27, 1998, as amended and supplemented from time to time, and as particularly replaced by
Resolution No. 99-178 adopted by the City Commission on July 14, 1999, as amended and
supplemented by Resolution No. 99-192 adopted by the City Commission on July 14, 1999, as
amended and supplemented by Resolution No. R-2002-125 adopted by the City Commission on
May 8, 2002, as amended and supplemented by Resolution No. R-2009-92 adopted by the City
Commission on July 8, 2009, and as amended and supplemented hereby.
"City Attorney" means the City Attorney of the City, or any deputy or assistant City
Attorney.
"City Clerk" means the City Clerk of the City, or any deputy or assistant City Clerk.
"City Manager" means the City Manager of the City, or any deputy or assistant City
Manager.
"Code" means the Internal Revenue Code of 1986, as amended, and any Treasury
Regulations, whether temporary, proposed or final, promulgated thereunder or applicable
thereto.
"Escrow Agent" means Regions Bank, Jacksonville, Florida as the bank or trust company
which shall execute the Escrow Deposit Agreement with the City simultaneous with the
issuance of the Series 2010 Bond.
"Escrow Deposit Agreement" means that certain Escrow Deposit Agreement by and
between the City and the Escrow Agent, for the purpose of providing for the payment of the
Refunded Bonds, which agreement shall be in substantially the form attached hereto as
Exhibit D.
"Financial Advisor" means Larson Consulting Services, LLC, Orlando, Florida.
"Maturity Date" means April 1, 2022, unless earlier redeemed.
"Mayor" means the Mayor or Vice Mayor of the City.
"Non -Ad Valorem Revenues" means all revenues of the City not derived from ad
valorem taxation, and which are lawfully available to be used to pay debt service on the Series
2010 Bond.
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"Original Purchaser" means Branch Banking and Trust Company, the original purchaser
of the Series 2010 Bond.
"Person" shall mean an individual, a corporation, a partnership, an association, a joint
stock company, a trust, any unincorporated organization or governmental entity.
"Refunded Bonds" means all or a portion of the City's Sales Tax Revenue Bonds, Series
2002, to be determined by the Mayor and the City Manager in the Escrow Deposit Agreement.
"Refunded Note" means a portion of the City's Taxable Redevelopment Revenue Note,
Series 2008.
"Series 2002 Bonds" means any of the City's Sales Tax Revenue Refunding Bonds, Series
2002 which are not being refunded with proceeds of the Series 2010 Bond.
"Series 2009 Bond" means the City's Sales Tax Revenue Refunding Bond, Series 2009.
SECTION 3. FINDINGS. It is hereby found and determined that:
A. Pursuant to the Bond Resolution, the City authorized the issuance of
"Additional Parity Bonds" from time to time.
B. In furtherance thereof and pursuant to the Bond. Resolution, the City
deems it to be in its best interest to issue its Sales Tax Refunding Revenue Bond, Series
2010 as "Additional Parity Bonds" in the aggregate principal amount of not to exceed
$11,000,000 (the "Series 2010 Bond") in order to refund the Refunded Bonds to achieve
present value debt service savings, and to refund the Refunded Note on a permanent,
fixed rate basis.
C. Following a request for proposals ("RFP") from the City dated October 22,
2010, the City has received an offer from the Original Purchaser to purchase the Series
2010 Bond. The Financial Advisor, following a review of all the bank responses to the
RFP, has recommended that the proposal from the Original Purchaser is the best means
by which to achieve these objectives.
D. In consideration of the purchase and acceptance of the Series 2010 Bond
by those who shall own the same from time to time, the Bond Resolution shall be
deemed to be and shall constitute a contract between the City and such Series 2010
Bondholder.
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E. All of the provisions, covenants, pledges and conditions in the Bond
Resolution shall be applicable to the Series 2010 Bond herein authorized and such Series
2010 Bond shall constitute a 'Bond" within the meaning of the Bond Resolution.
F. The Bond Resolution provides that the Bond shall be dated, shall mature
on such dates and in such amounts, shall bear such rates of interest, shall be payable in
such places and shall be subject to such redemption provisions, among other matters, as
shall be determined by resolution adopted by the City and it is now appropriate to
determine by this Resolution such matters and the manner of finalizing such terms and
details with respect to the Series 2010 Bond.
G. The City deems it necessary, desirable and in the best interests of the City
and its citizens to refund the Refunded. Bonds and the Refunded Note for the reasons
heretofore stated.
H. Issuance of the Series 2010 Bond to refund the Refunded Bonds and the
Refunded Note satisfies a paramount public purpose and will provide for and promote
general economic and social benefit to the City and its citizens.
I. Except for the pledge thereof pursuant to the Bond Resolution to secure
the Refunded Bonds, any Series 2002 Bonds, and the Series 2009 Bonds, the Sales Tax
Revenues have not heretofore been pledged or encumbered in any manner.
J. The estimated Pledged Revenues will be sufficient to pay the principal of
and interest on any Series 2002 Bonds, the Series 2009 Bonds and the Series 2010 Bond
(collectively, the 'Bonds"), as the same become due, and all other payments provided for
in the Bond Resolution.
K. The principal of and interest on the Bonds and all other payments
provided for in the Bond Resolution will be payable solely from the Pledged Revenues,
and the ad valorem taxing power of the City has not been pledged to pay the principal
of and interest on the Bonds and, except as otherwise provided in the Bond Resolution,
the Bonds shall not constitute a lien upon any property of the City.
L. The City desires to amend the Bond Resolution to permit the City to
establish separate subaccounts in the Debt Service Reserve Account each to be created to
secure only one or more different Series of Bonds, and to permit the City to determine
that a Series of Bonds will not be secured by the Debt Service Reserve Account or any
subaccount therein.
M. Pursuant to Section 4.1 of the Bond Resolution, the amendment of such
definitions requires the consent in writing of 51% or more of the Bondholders which is
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expected to occur upon the issuance of the Series 2010 Bond, at which time the
amendment will become effective.
N. The Series 2010 Bond will not be secured by the Debt Service Reserve
Account, or any subaccount therein or any surety bonds held by the City.
O. The City desires to make such determinations as are required to afford
the Series 2010 Bond "bank qualified" status for purposes of Section 265(b)(3)(B) of the
Code.
P. The Series 2010 Bond and the interest thereon will be payable solely from
and secured by a lien upon and pledge of the Pledged Revenues on parity with any
Series 2002 Bonds, the Series 2009 Bond, and any Additional Parity Bonds thereafter
issued. Debt service on the Series 2010 Bond, to the extent of any deficiencies, will be
additionally secured by the City's covenant to budget and appropriate Non -Ad Valorem
Revenues as provided herein.
Q. The City shall never be required to maintain or continue any of the
activities of the City which generate user service charges, regulatory fees or any other
Non -Ad Valorem Revenues.
SECTION 4. AUTHORIZATION OF THE SERIES 2010 BOND AND REFUNDING.
There is hereby authorized to be issued a Bond designated as "City of Tamarac, Florida Sales
Tax Refunding Revenue Bond, Series 2010" as an "Additional Parity Bond" authorized to be
issued pursuant to the Bond Resolution for the purpose of refunding the Refunded Bonds and
the Refunded Note and paying costs of issuing the Series 2010 Bond, in the aggregate principal
amount of not to exceed $11,000,000. Because of the characteristics of the Series 2010 Bond,
prevailing market conditions, and additional savings to be realized from an expeditious sale of
the Series 2010 Bond, it is in the best interest of the City to accept the offer of the Original
Purchaser to purchase the Series 2010 Bond at a private negotiated sale, following the
competitive selection process. Prior to the issuance of the Series 2010 Bond, the Issuer shall
receive from the Original Purchaser a Purchaser's Certificate, the form of which is attached
hereto as Exhibit B and the Disclosure Letter containing the information required by Section
218.385, Florida Statutes, a form of which is attached hereto as Exhibit C.
SECTION 5. DESCRIPTION OF THE SERIES 2010.BOND. The Series 2010 Bond shall be
issued as a Serial Bond with a final maturity of the Maturity Date, to be dated the date of the
execution and delivery, which shall be a date agreed upon by the City and the Original
Purchaser, and shall have such other terms and provisions, including a fixed interest rate
(subject to adjustment) not exceeding the maximum interest rate permitted by the Act, principal
and interest payment terms, and a redemption provision as stated herein and/or in the form of
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the Series 2010 Bond attached hereto as Exhibit A. Interest on the Series 2010 Bond shall be
calculated on the basis of a 360 day year consisting of twelve 30-day months.
The Series 2010 Bond will not be secured by the Debt Service Reserve Account or any
subaccount therein.
The Series 2010 Bond is to be in substantially the form set forth on Exhibit A attached
hereto, together with such non -material changes as shall be approved by the Mayor and the
City Manager, such approval to be conclusively evidenced by the execution thereof by the
Mayor. The Series 2010 Bond shall be executed on behalf of the City with the manual or
facsimile signature of the Mayor and the City Manager and a facsimile of the official seal of the
City, such signatures to be attested by the City Clerk and approved as to form by the City
Attorney. In case any one or more of the officers who shall have signed or sealed the Series 2010
Bond or whose facsimile signature shall appear thereon shall cease to be such officer of the City
before the Series 2010 Bond so signed and sealed has been actually sold and delivered, the
Series 2010 Bond may nevertheless be sold and delivered as herein provided and may be issued
as if the person who signed or sealed the Series 2010 Bond had not ceased to hold such office.
The Series 2010 Bond may be signed and sealed on behalf of the City by such person who at the
actual time of the execution of such Series 2010 Bond shall hold the proper office of the City,
although, at the date of such Series 2010 Bond, such person may not have held such office or
may not have been so authorized. The City may adopt and use for such purposes the facsimile
signatures of any such persons who shall have held such offices at any time after the date of the
adoption of this Resolution, notwithstanding that either or both shall have ceased to hold such
office at the time the Series 2010 Bond shall be actually sold and delivered.
SECTION 6. EXECUTION OF ESCROW DEPOSIT AGREEMENT; REDEMPTION OF
REFUNDED BONDS. The City hereby approves the Escrow Deposit Agreement as set forth in
the form attached hereto as Exhibit D. The Escrow Deposit Agreement shall be executed in the
name of the City by the Mayor and the City Manager, such signatures to be attested to by the
City Clerk, the official seal of the City to be imprinted thereon, and shall be approved as to form
by the City Attorney, with such additional changes and insertions therein as are subsequently
approved, and such execution and delivery shall be conclusive evidence of the approval thereof
by such officers. The City hereby also authorizes the Director of Financial Services to engage
such professionals as in his discretion are competent to provide a verification report with
respect to the Refunded Bonds.
Subject to the execution and delivery of the Series 2010 Bond to refund the Refunded
Bonds, there is hereby authorized a deposit of proceeds of the Series 2010 Bond which, together
with other legally available funds of the City and investment earnings thereon, if any, is equal
to the principal of and interest and redemption premiums, if any, on the Refunded Bonds when
due in accordance with the schedules to be attached to the Escrow Deposit Agreement to pay
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principal and interest on the Refunded Bonds and to pay applicable call premiums and any
costs with respect thereto.
Subject to the execution and delivery of the Series 2010 Bond for the purpose of
refunding the Refunded Bonds, the City hereby irrevocably calls the callable Refunded Bonds
for early redemption on April 1, 2012, or such other date as determined by the Mayor and the
City Manager in the Escrow Deposit Agreement, at a redemption price of 100% of the principal
amount of such callable Refunded Bonds to be redeemed, plus accrued interest thereon to the
redemption date. Not before issuance of the Series 2010 Bond and not less than thirty (30) days
prior to such redemption date, the City hereby directs U.S. Bank National Association, in its
capacity as Paying Agent and Bond Registrar for the Refunded Bonds (the "2002 Paying
Agent"), to mail a notice of the redemption of the Refunded Bonds to each holder thereof in
accordance with the requirements of Section 6 of Resolution No. R-2002-125 adopted by the City
Commission on May 8, 2002 in the form to be prepared by Bond Counsel. Furthermore, upon
issuance of the Series 2010 Bond for the purposes of refunding the Refunded Bonds, the City
hereby directs the 2002 Paying Agent to mail a notice of defeasance to each holder of the
Refunded Bonds in the form to be prepared by Bond Counsel.
SECTION 7. REGISTRATION AND EXCHANGE OF THE SERIES 2010 BOND;
PERSONS TREATED AS HOLDER. The Series 2010 Bond is initially registered to the Original
Purchaser. So long as the Series 2010 Bond shall remain unpaid, the Bond Registrar will keep
books for the registration and transfer of the Series 2010 Bond. The Series 2010 Bond shall be
transferable only upon such registration books and not less than in Authorized Denominations.
The Person in whose name a Series 2010 Bond shall be registered and be deemed and
regarded as the absolute owner thereof for all purposes, and payment of principal and interest
on the Series 2010 Bond shall be made only to or upon the written order of the Holder. All such
payments shall be valid and effectual to satisfy and discharge the liability upon such Series 2010
Bond to the extent of the sum or sums so paid.
SECTION 8. REDEMPTION PROVISIONS. The Series 2010 Bond shall be subject to
redemption in such amounts and at such times as set forth in the Series 2010 Bond attached
hereto as Exhibit A. At least five (5) days before the redemption date, a notice of any such
redemption, shall be mailed, first class mail, postage prepaid, to all registered owners of Series
2010 Bond to be redeemed at their addresses as they appear on the registration books.
SECTION 9. APPOINTMENT OF BOND REGISTRAR AND PAYING AGENT. The
City is hereby designated as the initial Paying Agent and Bond Registrar for the Series 2010
Bond. The City may appoint a successor Bond Registrar and Paying Agent so long as it
provides written notice to the Owner of the Series 2010 Bond.
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SECTION 10. BACKUP COVENANT TO BUDGET AND APPROPRIATE. Subject to
the next paragraph, as additional security for the Series 2010 Bond, and only to the extent Sales
Tax Revenues are insufficient, the City covenants and agrees and has a positive and affirmative
duty to appropriate in its annual budget, by amendment, if necessary, from Non -Ad Valorem
Revenues, amounts sufficient to pay principal of and interest on the Series 2010 Bond not being
paid from other amounts as the same shall become due. Such covenant and agreement on the
part of the City to budget and appropriate such amounts of Non -Ad Valorem Revenues shall be
cumulative to the extent not paid, and shall continue until such Non -Ad Valorem Revenues or
other legally available funds in amounts sufficient to make all such required payments shall
have been budgeted, appropriated and actually paid. No lien upon or pledge of such budgeted
Non -Ad Valorem Revenues shall be in effect until such monies are budgeted and appropriated
as provided herein. The City further acknowledges and agrees that the obligations of the City
to include the amount of such amendments in each of its annual budgets and to pay such
amounts from Non -Ad Valorem Revenues may be enforced in a court of competent jurisdiction
in accordance with the remedies set forth in the Bond Resolution.
Until such monies are budgeted and appropriated as provided herein, such covenant to
budget and appropriate does not create any lien upon or pledge of such Non -Ad Valorem
Revenues, nor does it preclude the City from pledging in the future its Non -Ad Valorem
Revenues, nor does it require the City to levy and collect any particular Non -Ad Valorem
Revenues, nor does it give the holder of the Series 2010 Bond a prior claim on the Non -Ad
Valorem Revenues as opposed to claims of general creditors of the City. Such covenant to
budget and appropriate Non -Ad Valorem Revenues is subject in all respects to the prior
payment of obligations secured by a pledge of such Non -Ad Valorem Revenues heretofore or
hereafter entered into (including the payment of debt service on bonds and other debt
instruments). Anything in this Resolution to the contrary notwithstanding, it is understood and
agreed that all obligations of the City hereunder shall be payable from the portion of Non -Ad
Valorem Revenues budgeted and appropriated as provided for herein and nothing herein shall
be deemed to pledge ad valorem tax power or ad valorem taxing revenues or to permit or
constitute a mortgage or lien upon any assets owned by the City and no holder of the Series
2010 Bond nor any other person, may compel the levy of ad valorem taxes on real or personal
property within the boundaries of the City or the use or application of ad valorem tax revenues
in order to satisfy any payment obligations hereunder or to maintain or continue any of the
activities of the City which generate user service charges, regulatory fees, or any other Non -Ad
Valorem Revenues. The obligation of the City to budget, appropriate and make payments
hereunder from its Non -Ad Valorem Revenues is subject to the availability of Non -Ad Valorem
Revenues after the satisfaction of the funding requirements for obligations having an express
lien on or pledge of such revenues, the provisions of Section 166.241, Florida Statutes, and the
funding requirements for essential governmental services of the City. Notwithstanding any
provisions of this Resolution or the Series 2010 Bond to the contrary, the City shall never be
obligated to maintain or continue any of the activities of the City which generate user service
charges, regulatory fees or any Non -Ad Valorem Revenues. Until such monies are budgeted
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and appropriated as provided herein, neither this Resolution nor the obligations of the City
hereunder shall be construed as a pledge of or a lien on all or any legally available Non -Ad
Valorem Revenues of the City other than Sales Tax Revenues, but shall be payable solely as
provided herein.
SECTION 11. INTERESTED PARTIES. Nothing in the Bond Resolution expressed or
implied is intended or shall be construed to confer upon, or to give to any person or entity,
other than the City, the Bond Registrar, the Paying Agent, and the registered owners of the
Series 2010 Bond, any right, remedy or claim under or by reason of the Bond Resolution or any
covenants, condition or stipulation thereof, and all covenants, stipulations, promises and
agreements in the Bond Resolution contained by and on behalf of the City shall be for the sole
and exclusive benefit of the City, the Bond Registrar, the Paying Agent, and the registered
owners of the Series 2010 Bond.
SECTION 12. EVENTS OF DEFAULT. The following events shall each constitute an
event of default under the Bond Resolution and the Series 2010 Bond:
A. failure to pay the principal of or interest on the Series 2010 Bond when due;
B. the dissolution or liquidation of the City, or the filing by the City of a voluntary
petition in bankruptcy, or the commission by the City of any act of bankruptcy, or adjudication
of the City as a bankrupt, or assignment by the City for the benefit of its creditors, or
appointment of a receiver for the City, or the entry by the City into an agreement of
composition with its creditors, or the approval by a court of competent jurisdiction of a petition
applicable to the City in any proceeding for its reorganization instituted under the provisions of
the Federal Bankruptcy Act, as amended, or under any similar act in any jurisdiction which
may now be in effect or may hereafter be enacted; and
C. the City shall default in the due and punctual performance of any of the other
covenants, conditions, agreements and provisions contained in the Series 2010 Bond or the Bond
Resolution on the part of the City to be performed, and such default shall continue for a period
of thirty (30) days after written notice from the Paying Agent or any holder of Series 2010 Bond.
Upon occurrence of an event in items A, B, or C above, the remedial rights of the Holder
shall be as provided in the Bond Resolution.
SECTION 13. FEDERAL INCOME TAX COVENANTS.
A. The City covenants with the Holder of the Series 2010 Bond that it shall not use
the proceeds of such Series 2010 Bond in any manner which would cause the interest on such
Series 2010 Bond to be or become includable in the gross income of the Holder thereof for
federal income tax purposes.
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B. The City covenants with the Holder of the Series 2010 Bond that neither the City
nor any person under its control or direction will make any use of the proceeds of such Series
2010 Bond (or amounts deemed to be proceeds under the Code) in any manner which would
cause such Series 2010 Bond to be an "arbitrage bond" within the meaning of Section 148 of the
Code and neither the City nor any other person shall do any act or fail to do any act which
would cause the interest on such Series 2010 Bond to become includable in the gross income of
the Holders thereof for federal income tax purposes.
C. The City hereby covenants with the Holders of each Series 2010 Bond that it will
comply with all provisions of the Code necessary to maintain the exclusion of interest on the
Series 2010 Bond from the gross income of the Holder thereof for federal income tax purposes,
including, in particular, the payment of any amount required to be rebated to the U.S. Treasury
pursuant to the Code.
SECTION 14. AMENDMENT TO BOND RESOLUTION. Pursuant to Section 4.1 of the
Bond Resolution, the following amendment is hereby adopted, but shall not become effective
until the City receives the consent in writing of 51% or more of the Bondholders. The following
paragraph is hereby added to the end of 3.4(C)(iii) of the Bond Resolution:
Notwithstanding anything in this Resolution to the contrary, the City may
establish separate subaccounts in the Debt Service Reserve Account each to be created to
secure only one or more different Series of Bonds, or the City may determine that a
Series of Bonds is not secured by the Debt Service Reserve Account or any subaccount
therein. If the City establishes a separate subaccount to secure one or more Series of
Bonds, "Reserve Requirement" in connection with such subaccount shall mean the lesser
of (1) Maximum Annual Debt Service with respect to the Bonds secured thereby, (2)10%
of the original principal amount of Bonds secured thereby, and (3) 125% of Average
Annual Debt Service with respect to Bonds secured thereby.
SECTION 15. BANK QUALIFIED STATUS. The City hereby designates the Series 2010.
Bond as a "qualified tax-exempt obligation" within the meaning of Section 265(b)(3)(B) Code.
The City and any subordinate entities of the City and any issuer of "tax-exempt" debt that issues
"on behalf of the City do not reasonably expect during the calendar year 2010 to issue more
than $30,000,000 of "tax-exempt" obligations including the Series 2010 Bond, exclusive of any
private activity bonds as defined in Section 141(a) of the Code (other than qualified 501(c)(3)
bonds as defined in Section 145 of the Code).
SECTION 16. PRIOR RESOLUTIONS. All prior resolutions of the City inconsistent with
the provisions of the Bond Resolution are hereby amended and supplemented to conform with
the provisions herein contained and, except as may otherwise amended and supplemented
hereby, the Bond Resolution shall remain in full force and effect.
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SECTION 17. NO PERSONAL LIABILITY. Neither the members of the City
Commission nor any person executing the Series 2010 Bond shall be personally liable therefor or
be subject to any personal liability or accountability by reason of the issuance thereof.
SECTION 18. GENERAL AUTHORITY. The Mayor, the City Manager, the City
Attorney and any other proper officials of the City are hereby authorized to do all acts and
things required of them by this Resolution, the Bond Resolution, the Escrow Deposit
Agreement, the Series 2010 Bond, or any other agreement or contract relating to the Series 2010
Bond, or that may otherwise be desirable or consistent with accomplishing the full, punctual
and complete performance of all the terms, covenants and agreements contained in any of the
foregoing and each member, employee, attorney and officer of the City is hereby authorized
and directed to execute and deliver any and all papers and instruments, including without
limitation tax returns, non -arbitrage certificates, and various other certificates, and to cause to
be done any and all acts and things necessary or proper for carrying out the transactions
contemplated thereby.
SECTION 19. SEVERABILITY AND INVALID PROVISIONS. If any one or more of the
covenants, agreements or provisions herein contained shall be held contrary to any express
provision of law or contrary to the policy of express law, but not expressly prohibited or against
public policy, or shall for any reason whatsoever be held invalid, then such covenants,
agreements or provisions shall be null and void and shall be deemed separable from the
remaining covenants, agreements or provisions and shall in no way affect the validity of the
other provisions hereof or of the Series 2010 Bond.
SECTION 20. BOND RESOLUTION TO CONTINUE IN FORCE. The Bond Resolution
and all the terms and provisions thereof, are and shall remain in full force and effect.
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SECTION 21. EFFECTIVE DATE. This Resolution shall be effective immediately upon
its adoption.
PASSED AND ADOPTED the 8th day of December, 2010.
CITY OF TAMARAC, FLORIDA
BETH TALABISCO
MAYOR
ATTEST:
RECORD OF COMMISSION VOTE:
MAYOR TALABISCO '
DIST 1:
V/M BUSHNELL
DIST 2:
COMM. GOMEZ
DIST 3:
COMM. GLASSER_ (�C �-
DIST 4:
COMM. DRESSLER�-
I HEREBY CERTIFY THAT I HAVE
APPROVED THIS RESOLUTION
AS TO FORM.
SAMUEL S. GOREN
CITY ATTORNEY
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EXHIBIT A
FORM OF BOND
Dated: ; 2010 $
Maturity Date: April 1, 2022
CITY OF TAMARAC, FLORIDA
SALES TAX REFUNDING REVENUE BOND, SERIES 2010
KNOW ALL MEN BY THESE PRESENTS that the City of Tamarac, Florida (the
"Issuer"), a municipal corporation created and existing pursuant to the Constitution and the
laws of the State of Florida, for value received, promises to pay from the sources hereinafter
provided, to the order of BRANCH BANKING AND TRUST COMPANY or registered assigns
(hereinafter, the "Owner"), the principal sum of $ in the manner described
below, together with interest on the principal balance outstanding at the rate of per annum of
2.25% (subject to adjustment as described below, the "Interest Rate") calculated on the basis of a
360 day year consisting of twelve 30-day months.
Principal of and interest on this Bond is payable in lawful money of the United States of
America at such place as the Owners may designate to the Issuer in writing.
Interest shall be payable in arrears semi-annually to the Owner on each April 1 and
October 1, commencing on April 1, 2011.
Principal on this Bond shall be payable on April 1 of the following years:
Year Principal Payment
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
R.
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As described above, the final installment of the entire unpaid principal balance, together
with all accrued and unpaid interest hereon, is due and payable on the Maturity Date.
This Bond is being issued for the primary purpose of refunding all or a portion of the
Issuer's Sales Tax Revenue Bonds, Series 2002 and a portion of the Issuer's Taxable
Redevelopment Revenue Note, Series 2008, under the authority of and in full compliance with
the Constitution and laws of the State of Florida, particularly Chapter 166, Florida Statutes, the
municipal charter of the Issuer, and other applicable provisions of law (collectively, the "Act"),
and Resolution No. 98-156 adopted by the City Commission on May 27, 1998, as amended and
supplemented from time to time, and as particularly replaced by Resolution No. 99-178 adopted
by the City Commission on July 14, 1999, as amended and supplemented by Resolution No. 99-
192 adopted by the City Commission on July 14, 1999, as amended and supplemented by
Resolution No. R-2002-125 adopted by the City Commission on May 8, 2002, as amended and
supplemented by Resolution No. R-2009-92 adopted by the City Commission on July 8, 2009,
and as amended and supplemented by Resolution No. R-2010- adopted by the City
Commission on , 2010 (collectively, the "Resolution"), and is subject to the
terms and conditions of the Resolution. All capitalized undefined terms shall have the meaning
ascribed thereto in the Resolution.
This Bond and the interest thereon are payable solely from and secured by a lien upon
and a pledge of the Pledged Revenues on parity with any of the Issuer's Sales Tax Revenue
Refunding Bonds, Series 2002 which are not being refunded with proceeds of this Bond, the
Issuer's Sales Tax Revenue Refunding Bond, Series 2009 and any Additional Parity Bonds
hereafter issued. In addition, this Bond is secured by a covenant to budget and appropriate
Non -Ad Valorem Revenues of the Issuer, as provided for in the Resolution.
The Issuer is not obligated to pay this Bond or the interest hereon except from the
sources described in the Resolution, and the full faith and credit of the Issuer is not pledged for
the payment of this Bond and this Bond does not constitute an indebtedness of the Issuer within
the meaning of any constitutional, statutory, or other provisions or limitation; and it is expressly
agreed by the Holder of this Bond that such Holder shall never have the right to require or
compel the exercise of the ad valorem taxing power of the Issuer, or taxation in any form of any
real or personal property therein, for the payment of the principal of and interest on this Bond,
or the making of any other sinking fund and other payments provided for in the Resolution.
It is further agreed between the Issuer and the Holder of this Bond that this Bond and
the obligation evidenced thereby shall not constitute alien upon any property of or in the
Issuer, but shall constitute a lien only on the Pledged Revenues pledged thereto, all in the
manner provided in the Resolution.
1
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This Bond shall be subject to redemption on any interest payment date at the option of
the Issuer in whole but not in part at a price equal to 101% of the principal amount thereof to be
redeemed, plus accrued interest to the date fixed for redemption.
If for any reason it shall be determined that any portion of this Bond is not a "qualified
tax-exempt obligation" within the meaning of Section 265(b)(3)(B) of the Code, then the Interest
Rate on this Bond shall be increased to such rate as shall provide the Owner of this Bond with
the same after-tax yield on this Bond.
If any interest on this Bond becomes includable in the gross income of the Owner for
Federal income tax purposes (a "Determination of Taxability") or because of the enactment of
any amendments to existing law, the effect of which would adversely affect the Owner's after-
tax yield with respect to this Bond, then the Owner shall have the right to adjust the Interest
Rate in order to maintain the same after-tax yield as if such event had not occurred. This
adjustment shall survive payment of this Bond until such time as the federal statute of
limitations under which the interest on this Bond could be declared taxable under the Code
shall have expired.
For so long as this Bond is owned by the Owner, the Interest Rate set forth above
assumes a Maximum Corporate Tax rate of 35%. In the event of a change in the Maximum
Corporate Tax rate, so long as this Bond is owned by the Owner, or its successors and assigns,
the Owner shall have the right to adjust such Interest Rate in order to maintain the same after-
tax yield.
"Determination of Taxability" shall mean the circumstance of interest paid or payable on
this Bond becoming includable for federal income tax purposes in the gross income of the
Owner as a consequence of any act, omission or event whatsoever and regardless of whether
the same was within or beyond the control of the Issuer. A Determination of Taxability will be
deemed to have occurred upon (i) the receipt by the Issuer or the Owner of an original or a copy
of an Internal Revenue Service Technical Advice Memorandum or Statutory Notice of
Deficiency or other official letter or correspondence from the Internal Revenue Service which
holds that any interest payable on this Bond is includable in the gross income of the Owner;
(ii) the issuance of any public or private ruling of the Internal Revenue Service that any interest
payable on this Bond is includable in the gross income of the Owner, or (iii) receipt by the Issuer
or the Owner of an opinion of a Bond Counsel that any interest on this Bond has become
includable in the gross income of the Owner for federal income tax purposes. For all purposes
of this definition, a Determination of Taxability will be deemed to occur on the date as of which
the interest on this Bond is deemed includable in the gross income of the Owner.
"Maximum Corporate Tax Rate" shall mean the highest marginal United States federal
income tax rate applicable to the taxable income of corporations without regard to any increase
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Page 16
Revision #3 - November 29, 2010
in tax designed to normalize the rate for all income at the highest marginal tax rate, which as of
the date hereof is 35%.
BY ACCEPTANCE HEREOF, THE OWNER OF THIS BOND IS CONCLUSIVELY
DEEMED TO HAVE CONSENTED TO AND APPROVED THE PROVISIONS IN THE BOND
RESOLUTION, INCLUDING THE AMENDMENTS DESCRIBED IN SECTION 14 OF
RESOLUTION NO. R-2009-92 AND SECTION 14 OF RESOLUTION NO. R-2010 AND THE
OWNER OF THIS BOND SHALL HAVE NO RIGHT TO OBJECT TO SUCH AMENDMENTS.
SUCH AMENDMENTS WILL BECOME EFFECTIVE AFTER RECEIVING THE REQUISITE
CONSENT OF THE HOLDERS OF 51% OR MORE OF THE OUTSTANDING BONDS ISSUED
PURSUANT TO THE RESOLUTION. REFERENCE IS MADE TO THE RESOLUTION FOR A
DESCRIPTION OF SUCH AMENDMENTS.
Additional Parity Bonds may be issued by the Issuer from time to time upon the
conditions and within the limitations and in the manner provided in the Resolution.
The original registered owner, and each successive registered owner of this Bond shall
be further conclusively deemed to have agreed and consented to the following terms and
conditions:
a. The Bond Registrar shall keep books for the registration of this Bond and for the
registration of transfers of this Bond as provided in the Resolution. This Bond shall be
transferable by the registered owner thereof in person or by his attorney duly authorized in
writing only upon the books of the Issuer kept by the Bond Registrar and only upon surrender
hereof together with a written instrument of transfer satisfactory to the Bond Registrar duly
executed by the registered owner or his duly authorized attorney. Upon the transfer of any
such Bond, the Issuer shall issue in the name of the transferee a new Bond.
b. The Issuer, the Paying Agent and the Bond Registrar may deem and treat the
Person in whose name any Bond shall be registered upon the books kept by the Bond Registrar
as the absolute owner of such Bond, whether such Bond shall be overdue or not, for the purpose
of receiving payment of, or on account of, the principal of and interest on such Bond as the same
becomes due, and for all other purposes. All such payments so made to any such registered
owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon
such Bond to the extent of the sum or sums so paid, and neither the Issuer, the Paying Agent,
nor the Bond Registrar shall be affected by any notice to the contrary.
C. At the option of the registered owner thereof and upon surrender hereto at the
principal trust office of the Bond Registrar with a written instrument of transfer satisfactory to
the Bond Registrar duly executed by the registered owner or his duly authorized attorney and
upon payment by such registered owner of any charges which the Bond Registrar or the Issuer
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Temp. Reso. #11960 — November 15, 2010
Page 17
Revision #3 — November 29, 2010
may make as provided in the Resolution, this Bond may be exchanged for Bonds of the same
Series and maturity of any other Authorized Denominations.
d. In all cases in which the privilege of exchanging this Bond or transferring this
Bond is exercised, the Issuer shall execute and the Bond Registrar shall authenticate and deliver
Bonds in accordance with the provisions of the Resolution. There shall be no charge for any
such exchange or transfer of Bonds, but the Issuer or the Bond Registrar may require payment
of a sum sufficient to pay any tax, fee or other governmental charge required to be paid with
respect to such exchange or transfer. Neither the Issuer nor the Bond Registrar shall be required
(i) to transfer or exchange Bonds for a period of 15 days next preceding an interest payment
date on such Bonds or next preceding any selection of Bonds to be redeemed or thereafter until
after the mailing of any notice of redemption; or (ii) to transfer or exchange any Bonds called for
redemption.
It is hereby certified and recited that all acts, conditions and things required to exist, to
happen, and to be performed, precedent to and in the issuance of this Bond exist, have
happened and have been performed in regular and due form and time as required by the laws
and Constitution of the State of Florida applicable thereto, and that the issuance of this Bond,
and of the Series of Bonds of which this Bond is one, is in full compliance with all constitutional,
statutory or charter limitations or provisions.
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Temp. Reso. #11960 -- November 1.5, 2010
Page 18
Revision #3 — November 29, 2010
IN WITNESS WHEREOF, the City of Tamarac, Florida has caused this Bond to be
executed in its name by the manual signature of its Mayor and City Manager, attested by the
manual signature of its City Clerk, and approved as to form by the manual signrl�'
of its City
Attorney, and its seal to be impressed hereon, all as of this day of 2010.
(SEAL)
ATTESTED:
CITY OF TAMARAC, FLORIDA
By:
Name: Beth Talabisco
Title: Mayor
By:
Name: Jeffrey L. Miller
Title: City Manager
APPROVED AS TO FORM:
By: By: 'L�a_ Z�-' I
Name: Peter M. J. Richardson, CRM, CMC Name: Samuel S. Goren
Title: City Clerk Title: City Attorney
FORM OF CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds delivered pursuant to the within mentioned Resolution.
CITY OF TAMARAC, FLORIDA, as Bond
Registrar
Date of Authentication:
2010 By:
Name: Mark C. Mason, CPA
Title: Director of Financial Services
1
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1
Page 19
Revision #3 - November 29, 2010
ASSIGNMENT AND TRANSFER
FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto
(please print or typewrite name and address of transferee)
the written bond and rights thereunder, and hereby irrevocably constitutes and
appoints Attorney to transfer the within bond on the books kept for registration thereof with
full power of substitution in the premises.
Dated:
In the presence of:
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Revision #3 - November 29, 2010
EXHIBIT B
FORM OF PURCHASER'S CERTIFICATE
This is to certify that Branch Banking and Trust Company (the "Purchaser") has not
required the City of Tamarac, Florida (the "Issuer") to deliver any offering document and has
conducted its own investigation, to the extent it deems satisfactory or sufficient, into matters
relating to business affairs or conditions (either financial or otherwise) of the Issuer in
connection with the issuance of the $ City of Tamarac, Florida Sales Tax Refunding
Revenue Bond, Series 2010, dated , 2010 (the "Bond"), and no inference should be
drawn that the Purchaser, in the acceptance of the Bond, is relying on Bond Counsel or Issuer's
Counsel as to any such matters other than the legal opinion rendered by Bond Counsel, Bryant
Miller Olive P.A. and by Issuer's Counsel, Goren, Cherof, Doody & Ezrol, P.A. Any capitalized
undefined terms used herein not otherwise defined shall have the meaning set forth in
Resolution No. 98-156 adopted by the City Commission on May 27, 1998, as supplemented and
amended from time to time, and as particularly replaced by Resolution No. 99-178 adopted by
the City Commission on July 14, 1999, as amended and supplemented by Resolution No. 99-192
adopted by the City Commission on July 14, 1999, as amended and supplemented by Resolution
No. R-2002-125 adopted by the City Commission on May 8, 2002, as amended and
supplemented by Resolution No. R-2009-92 adopted by the City Commission on July 8, 2009,
and as amended and supplemented by Resolution No. R-2010-- adopted by the City
Commission on 2010 (collectively, the "Resolution").
We are aware that investment in the Bond involves various risks, that the Bond is not a
general obligation of the Issuer or payable from ad valorem tax revenues, and that the payment
of the Bond is secured solely from the sources described in the Resolution (the "Bond Security").
We have made such independent investigation of the Bond Security as we, in the
exercise of sound business judgment, consider to be appropriate under the circumstances. In
making our investment decision, we have relied upon the accuracy of information which has
been provided to us by the Issuer.
We have knowledge and experience in financial and business matters and are capable of
evaluating the merits and risks of our investment in the Bond and can bear the economic risk of
our investment in the Bond.
We acknowledge and understand that the Resolution is not being qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"), and is not being registered in reliance
upon the exemption from registration under Section 3(a)(2) of the Securities Act of 1933, Section
517.051(1), Florida Statutes, and/or Section 517.061(7), Florida Statutes, and that neither the
Issuer, Bond Counsel nor Issuer's Counsel shall have any obligation to effect any such
registration or qualification.
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Temp. Reso. #11960 - November 15, 2010
Page 21
Revision #3 - November 29, 2010
We are not acting as a broker or other intermediary, and are purchasing the Bond as an
investment for our own account and not with a present view to a resale or other distribution to
the public. We understand that the Bond may not be transferred in a denomination less than an
Authorized Denomination in any circumstances.
We are a "state banking corporation" under the laws of the State of North Carolina. We
are not purchasing the Bond for the direct or indirect promotion of any scheme or enterprise
with the intent of violating or evading any provision of Chapter 517, Florida Statutes.
DATED this of _ , 2010.
BRANCH BANKING AND
TRUST COMPANY
By:
Name: Michael C. Smith
Title: Assistant Vice President
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Revision #3 - November 29, 2010
EXHIBIT C
FORM OF DISCLOSURE LETTER
The undersigned, as purchaser, proposes to negotiate with the City of Tamarac, Florida
(the "Issuer") for the private purchase of its City of Tamarac, Florida Sales Tax Refunding
Revenue Bond, Series 2010 (the 'Bond") in the principal amount of $ . Prior to
the award of the Bond, the following information is hereby furnished to the Issuer:
1. Set forth is an itemized list of the nature and estimated amounts of expenses to
be incurred for services rendered to us (the "Purchaser") in connection with the issuance of the
Bond (such fees and expenses to be paid by the Issuer):
Greenberg Traurig, P.A.
Purchaser Counsel Fees -- $3,500
Credit Review Fee -- $2,500
2. (a) No other fee, bonus or other compensation is estimated to be paid by the
Purchaser in connection with the issuance of the Bond to any person not regularly employed or
retained by the Purchaser (including any "finder" as defined in Section 218.386(1)(a), Florida
Statutes), except as specifically enumerated as expenses to be incurred by the Purchaser, as set
forth in paragraph (1) above.
(b) No person has entered into an understanding with the Purchaser, or to the
knowledge of the Purchaser, with the Issuer, for any paid or promised compensation or
valuable consideration, directly or indirectly, expressly or implied, to act solely as an
intermediary between the Issuer and the Purchaser or to exercise or attempt to exercise any
influence to effect any transaction in the purchase of the Bond.
3. The amount of the underwriting spread expected to be realized by the Bank is $0.
4. The management fee to be charged by the Bank is $0.
5. Truth -in -Bonding Statement:
The Bond is being issued primarily to refund the Refunded Bonds and the Refunded
Note, as described in the Resolution hereafter defined, and to pay costs related thereto.
Unless earlier redeemed, the Bond is expected to be repaid by April 1, 2022. At an
interest rate of 2.25%, total interest paid over the life of the Bond is estimated to be
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Temp. Reso. #1.1960 - November 15, 2010
Page 23
Revision #3 - November 29, 2010
The Bond will be payable from Pledged Revenues sufficient to make such payments,
appropriated and deposited as described in Resolution No. 98-156 adopted by the City
Commission on May 27, 1998, as amended and supplemented from time to time, and as
particularly replaced by Resolution No. 99-178 adopted by the City Commission on July 1.4,
1999, as amended and supplemented by Resolution No. 99-192 adopted by the City
Commission on July 14, 1999, as amended and supplemented by Resolution No. R-2002-125
adopted by the City Commission on May 8, 2002, as amended and supplemented by Resolution
No. R-2009-92 adopted by the City Commission on July 8, 2009, and as amended and
supplemented by Resolution No. R-2010- adopted by the City Commission on
. 2010 (collectively, the "Resolution"). In addition, the Bond will be payable from
a covenant to budget and appropriate from Non -Ad Valorem Revenues as described in the
Resolution. See the Resolution for a definition of Pledged Revenues. Based on the above
assumptions, issuance of the Bond is estimated to result in an annual average of approximately
$ of revenues of the Issuer not being available to finance the services of the Issuer
during the life of the Bond.
6. The name and address of the Purchaser is as follows:
Branch Banking and Trust Company
5130 Parkway Plaza Boulevard, Building #9
Charlotte, North Carolina 28217
IN WITNESS WHEREOF, the undersigned has executed this Disclosure Statement on
behalf of the Purchaser this day of 2010.
BRANCH BANKING AND
TRUST COMPANY
By:
Name: Michael C. Smith
Title: Assistant Vice President
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Revision #3 - November 29, 2010
EXHIBIT D
FORM OF ESCROW DEPOSIT AGREEMENT
THIS ESCROW DEPOSIT AGREEMENT, dated as of 2010, by and between
the CITY OF TAMARAC, FLORIDA (the "Issuer"), and REGIONS BANK, a banking corporation
organized and existing under the laws of the State of Alabama and qualified to exercise trust
powers under the laws of the State of Florida, with a designated corporate trust office in
Jacksonville, Florida, as Escrow Agent, and its successors and assigns (the "Escrow Agent");
WITNESSETH:
WHEREAS, the Issuer previously issued its Sales Tax Revenue Bonds, Series 2002; and
WHEREAS, the Issuer now desires to refund the 2002 Bonds which mature on and after
April 1, 2013 (the "Refunded Bonds"); and
WHEREAS, the execution of this Escrow Deposit Agreement and full performance of the
provisions hereof shall defease and discharge the Issuer's obligations relating to the Refunded
Bonds;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the Issuer and the Escrow Agent agree as follows:
SECTION 1. Definitions. As used herein, the following terms mean:
(a) "Agreement" means this Escrow Deposit Agreement.
(b) "Bond" means the $ City of Tamarac, Florida Sales Tax Refunding
Revenue Bond, Series 2010, issued under the Bond Resolution.
(c) "Bond Counsel" means Bryant Miller Olive P.A., or any other law firm
nationally -recognized in the area of public finance.
(d) "Bond Resolution" shall mean Resolution No. 98-156 adopted by the City
Commission on May 27, 1998, as amended and supplemented from time to time, and as
particularly replaced by Resolution No. 99-178 adopted by the City Commission on July 14,
1999, as amended and supplemented by Resolution No. 99-192 adopted by the City
Commission on July 14, 1999, as amended and supplemented by Resolution No. R-2002-125
adopted by the City Commission on May 8, 2002, as amended and supplemented by Resolution
No. R-2009-92 adopted by the City Commission on July 8, 2009, and as amended and
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Page 25
Revision #3 — November 29, 2010
supplemented by Resolution No. R-2010- adopted by the City Commission on
2010.
(e) "Escrow Account" means the account hereby created and entitled Escrow
Account established and held by the Escrow Agent pursuant to this Agreement in which cash
and investments will be held for payment of the principal, interest, and redemption premium, if
any, on the Refunded Bonds.
(f) "Federal Securities" shall mean securities of the type which are described in
clause (ii) of the definition of "Permitted Investments" in Section 1.1 of the Bond Resolution.
(g) 'Issuer" means the City of Tamarac, Florida, and its successors and assigns.
(h) "Refunded Bonds" has the meaning ascribed above.
(i) "Total Debt Service for the Refunded Bonds" means the sum of the principal of,
redemption premium, if any, and interest remaining unpaid with respect to the Refunded
Bonds in accordance with Schedule A attached hereto assuming the callable Refunded Bonds
are called for early redemption on April 1, 2012.
SECTION 2. Deposit of Funds. The Issuer hereby deposits $ with the Escrow
Agent for deposit into the Escrow Account, in immediately available funds, which funds the
Escrow Agent acknowledges receipt of, to be held in irrevocable escrow by the Escrow Agent
separate and apart from other funds of the Escrow Agent and applied solely as provided in this
Agreement. An amount equal to $ of such funds are being derived from proceeds
of the Bond. An amount equal to $ of such funds are being derived from the
Principal Account and Interest Account (as such terms are defined in the Bond Resolution). The
Issuer represents that the Federal Securities, the interest to be earned thereon, and the cash
deposited to the Escrow Account (i) are at least equal to the Total Debt Service for the Refunded
Bonds as of the date of such deposit, and (ii) are sufficient to pay principal, interest and.
redemption premium on the Refunded Bonds as they become due and payable in accordance
with Schedule A attached hereto.
SECTION 3. Use and Investment of Funds. The Escrow Agent acknowledges receipt of
the sum described in Section 2 and agrees:
(a) to hold the funds and investments purchased pursuant to this Agreement in
irrevocable escrow during the term of this Agreement for the sole benefit of the holders of the
Refunded Bonds;
(b) to immediately invest $ of such funds derived from the proceeds
of the Bond and other legally available funds of the Issuer in the Federal Securities set forth on
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Revision #3 - November 29, 2010
Schedule C attached hereto and to hold such securities and $ of such funds in cash in
accordance with the terms of this Agreement;
(c) in the event the securities described on Schedule C cannot be purchased,
substitute securities may be purchased with the consent of the Issuer but only upon receipt of
verification from an independent certified public accountant that the Federal Securities, the
interest to be earned thereon, and the cash deposited in the Escrow Account will not be less
than the Total Debt Service for the Refunded Bonds, and only upon receipt of an opinion of
Bond Counsel that such securities constitute Federal Securities for purposes of this Agreement;
and
(d) there will be no investment or reinvestment of funds except as set forth in this
Section 3 and except as set forth in Section 5.
SECTION 4. Payment of Bond and Expenses.
(a) Refunded Bonds. On the dates and in the amounts set forth on Schedule A, the
Escrow Agent shall transfer to U.S. Bank National Association, the Paying Agent for the
Refunded Bonds (the "Paying Agent"), in immediately available funds solely from amounts
available in the Escrow Account, a sum sufficient to pay the principal of, interest on and
redemption premium, if applicable, on the Refunded Bonds, as shown on Schedule A.
(b) Expenses. The Issuer shall pay the fees and expenses of the Escrow Agent as set
forth on Schedule B attached hereto.
(c) Surplus. After making the payments from the Escrow Account described in
Subsections 4(a) and (b) above, the Escrow Agent shall retain in the Escrow Account any
remaining cash in the Escrow Account in excess of the Total Debt Service for the Refunded
Bonds until the termination of this Agreement pursuant to the terms of Section 13 hereof, and
shall then pay any remaining funds to the Issuer.
(d) Priority of Payments. The holders of the Refunded Bonds shall have an express
first priority security interest in the funds and Federal Securities in the Escrow Account until
such funds and Federal Securities are used and applied as provided in this Agreement.
SECTION 5. Reinvestment.
(a) Except as provided in Section 3 and in this Section 5, the Escrow Agent shall
have no power or duty to invest any funds held under this Agreement or to sell, transfer or
otherwise dispose of or make substitutions of the Federal Securities held hereunder.
1
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(b) At the written request of the Issuer and upon compliance with the conditions
hereinafter stated, the Escrow Agent shall sell, transfer or otherwise dispose of any of the
Federal Securities acquired hereunder and shall substitute other Federal Securities and reinvest
any excess receipts in Federal Securities. The Issuer will not request the Escrow Agent to
exercise any of the powers described in the preceding sentence in any manner which will cause
interest on the Bond to be included in the gross income of the holders thereof for purposes of
Federal income taxation. The transactions may be effected only if (i) an independent certified
public accountant selected by the Issuer shall certify or opine in writing to the Issuer and the
Escrow Agent that Federal Securities, interest to be earned thereon, and cash remaining on hand
after the transactions are completed will, assuming no reinvestment or any earnings, be not less
than the Total Debt Service for the Refunded Bonds, and that reinvestment in such Federal
Securities will not postpone the anticipated transfer of moneys from the Escrow Account to the
Paying Agent pursuant to Section 4(a) hereof, and (ii) the Escrow Agent shall receive an opinion
from a nationally recognized bond counsel acceptable to the Issuer to the effect that the
transactions, in and by themselves, will not cause interest on such Bond or the Refunded Bonds
to be included in the gross income of the holders thereof for purposes of Federal income
taxation and such substitution is in compliance with this Agreement. Subsection 4(c) above
notwithstanding, cash in excess of the Total Debt Service for the Refunded Bonds caused by
substitution of Federal Securities shall, as soon as practical, be paid to the Issuer.
Notwithstanding any provision of this Agreement to the contrary, no forward purchase
agreement relating to the future reinvestment of cash held hereunder shall be executed unless
the following condition is met: to the extent either Moody's Investors Service, Inc., Fitch
Ratings, and/or Standard & Poor's Ratings Services have an outstanding rating on the Refunded
Bonds, at least one of such rating agencies must give written confirmation that it will not lower
or withdraw the rating as a result of the Issuer's execution of such forward purchase agreement.
In the event of any inconsistency between the terms and conditions of such forward purchase
agreement and this Agreement, the terms and conditions of this Agreement shall control.
SECTION 6. Redemption or Acceleration of Maturity. The Issuer will not accelerate the
maturity of, or exercise any option to redeem before maturity, any Refunded Bonds, except as
set forth on Schedule A attached hereto.
SECTION 7. Indemnity. To the extent permitted by law and without waiving sovereign
immunity, the Issuer hereby assumes liability for, and hereby agrees to indemnify, protect, save
and keep harmless, the Escrow Agent and its respective successors, assigns, agents and
servants, from and against any and all liabilities, obligations, losses, damages, penalties, claims,
actions, suits, costs, expenses and disbursements (including reasonable legal fees and
disbursements) of whatsoever kind and nature which may be imposed on, incurred by, or
asserted against at any time, the Escrow Agent (whether or not also indemnified against the
same by the Issuer or any other person under any other agreement or instrument) and in any
way relating to or arising out of the execution and delivery of this Agreement, the establishment
of the Escrow Account established hereunder, the acceptance of the funds and securities
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Page 28
Revision #3 — November 29, 2010
deposited therein, the purchase of the Federal Securities, the retention of the Federal Securities
or the proceeds thereof and any payment, transfer or other application of funds or securities by
the Escrow Agent in accordance with the provisions of this Agreement; provided, however, that
the Issuer shall not be required to indemnify the Escrow Agent against its own negligence or
willful misconduct. In no event shall the Issuer be liable to any person by reason of the
transactions contemplated hereby other than to the Escrow Agent as set forth in this Section.
The indemnities contained in this Section shall survive the termination of this Agreement. The
Escrow Agent shall not be liable for any deficiencies in the amounts necessary to pay the Total
Debt Service for the Refunded Bonds. Furthermore, the Escrow Agent shall not be liable for the
accuracy of the calculation as to the sufficiency of moneys and the principal amount of Federal
Securities and the earnings thereon to pay the Total Debt Service for the Refunded Bonds.
SECTION 8. Responsibilities of Escrow Agent. The Escrow Agent and its respective
successors, assigns, agents and servants shall not be held to any personal liability whatsoever,
in tort, contract, or otherwise, in connection with the execution and delivery of this Agreement,
the establishment of the Escrow Account, the acceptance of the funds deposited therein, the
purchase of the Federal Securities, the retention of the Federal Securities or the proceeds thereof
or for any payment, transfer or other application of moneys or securities by the Escrow Agent in
accordance with the provisions of this Agreement or by reason of any non -negligent or non -
willful act, omission or error of the Escrow Agent made in good faith in the conduct of its
duties. The Escrow Agent shall, however, be responsible for its negligent or willful failure to
comply with its duties required hereunder, and its negligent or willful acts, omissions or errors
hereunder. The duties and obligations of the Escrow Agent may be determined by the express
provisions of this Agreement. The Escrow Agent may consult with counsel, who may or may
not be counsel to the Issuer, at the Issuer's expense, and in reliance upon the opinion of such
counsel, shall have full and complete authorization and protection in respect of any action
taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow
Agent shall deem it necessary or desirable that a matter be proved or established prior to
taking, suffering or omitting any action under this Agreement, such matter may be deemed to
be conclusively established by a certificate signed by an authorized officer of the Issuer.
SECTION 9. ResigLiation of Escrow A ent. The Escrow Agent may resign and thereby
become discharged from the duties and obligations hereby created, by notice in writing given to
the Issuer, any rating agency then providing a rating on either the Refunded Bonds or the Bond,
and the Paying Agent for the Refunded Bonds not less than sixty (60) days before such
resignation shall take effect. Such resignation shall not take effect until the appointment of a
new Escrow Agent hereunder.
SECTION 10. Removal of Escrow Agent.
(a) The Escrow Agent may be removed at any time by an instrument or concurrent
instruments in writing, executed by the holders of not less than fifty-one percent (51%) in
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aggregate principal amount of the Refunded Bonds then outstanding, such instruments to be
filed with the Issuer, and notice in writing given by such holders to the original purchaser or
purchasers of the Bond and published by the Issuer once in a newspaper of general circulation
in the territorial limits of the Issuer, and in a daily newspaper or financial journal of general
circulation in the City of New York, New York, not less than sixty (60) days before such removal
is to take effect as stated in said instrument or instruments. A photographic copy of any
instrument filed with the Issuer under the provisions of this paragraph shall be delivered by the
Issuer to the Escrow Agent.
(b) The Escrow Agent may also be removed at any time for any breach of trust or for
acting or proceeding in violation of, or for failing to act or proceed in accordance with, any
provisions of this Agreement with respect to the duties and obligations of the Escrow Agent by
any court of competent jurisdiction upon the application of the Issuer or the holders of not less
than five percent (5%) in aggregate principal amount of the Bond then outstanding, or the
holders of not less than .five percent (5%) in aggregate principal amount of the Refunded Bonds
then outstanding.
(c) The Escrow Agent may not be removed until a successor Escrow Agent has been
appointed in the manner set forth herein.
SECTION 11. Successor Escrow Agent.
(a) If, at any time hereafter, the Escrow Agent shall resign, be removed, be dissolved
or otherwise become incapable of acting, or shall be taken over by any governmental official,
agency, department or board, the position of Escrow Agent shall thereupon become vacant. If
the position of Escrow Agent shall become vacant for any of the foregoing reasons or for any
other reason, the Issuer shall immediately appoint an Escrow Agent to fill such vacancy and,
upon such appointment, all assets held hereunder shall be transferred to such successor. The
Issuer shall either (i) publish notice of any such appointment made by it once in each week for
four (4) successive weeks in a newspaper of general circulation published in the territorial limits
of the Issuer and in a daily newspaper or financial journal of general circulation in the City of
New York, New York, or (ii) mail a notice of any such appointment made by it to the holders of
the Refunded Bonds within thirty (30) days after such appointment.
(b) At any time within one year after such vacancy shall have occurred, the holders
of a majority in principal amount of the Bond then outstanding or a majority in principal
amount of. the Refunded Bonds then outstanding, by an instrument or concurrent instruments
in writing, executed by either group of such Bondholders and filed with the governing body of
the Issuer, may appoint a successor Escrow Agent, which shall supersede any Escrow Agent
theretofore appointed by the Issuer. Photographic copies of each such instrument shall be
delivered promptly by the Issuer, to the predecessor Escrow Agent and to the Escrow Agent so
appointed by such Bondholders. In the case of conflicting appointments made by such.
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Bondholders under this paragraph, the first effective appointment made during the one year
period shall govern.
(c) If no appointment of a successor Escrow Agent shall be made pursuant to the
foregoing provisions of this Section, the holder of any Refunded Bonds then outstanding, or any
retiring Escrow Agent, may apply to any court of competent jurisdiction to appoint a successor
Escrow Agent. Such court may thereupon, after such notice, if any, as such court may deem
proper and prescribe, appoint a successor Escrow Agent.
(d) Any corporation or association into which the Escrow Agent may be converted
or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate
trust business and assets as a whole or substantially as a whole, or any corporation or
association resulting from any such conversion, sale, merger, consolidation or transfer to which
it is a party, ipso facto, shall be and become successor Escrow Agent hereunder and vested with
all the trust, powers, discretions, immunities, privileges and all other matters as was its
predecessor, without the execution or filing of any instrument or any further act, deed or
conveyance on the part of any parties hereto, anything herein to the contrary notwithstanding,
provided such successor shall have reported total capital and surplus in excess of $15,000,000,
provided that such successor Escrow Agent assumes in writing all the trust, duties and
responsibilities of the Escrow Agent hereunder.
SECTION 12. Payment to Escrow Agent. The Escrow Agent hereby acknowledges that
it has agreed to accept compensation under the Agreement pursuant to the terms of Schedule B
attached hereto for services to be performed by the Escrow Agent pursuant to this Agreement.
The Escrow Agent shall not be compensated from amounts on deposit in the Escrow Account,
and the Escrow Agent shall have no lien or claim against funds in the Escrow Account for
payment of obligations due it under this Section.
SECTION 13. Term. This Agreement shall commence upon its execution and delivery
and shall terminate when the Refunded Bonds have been paid and discharged in accordance
with the proceedings authorizing the Refunded Bonds, except as provided in Section 8.
SECTION 14. Severability. If any one or more of the covenants or agreements provided
in this Agreement on the part of the Issuer or the Escrow Agent to be performed should be
determined by a court of competent jurisdiction to be contrary to law, notice of such event shall
be sent to the municipal bond insurer(s) for the Refunded Bonds, if any, as well as Moody's
Investors Service, Inc., Fitch Ratings and Standard & Poor's Ratings Services (but only to the
extent such agencies have a rating outstanding on any of the Refunded Bonds), and while such
covenant or agreements herein contained shall be null and void, they shall in no way affect the
validity of the remaining provisions of this Agreement.
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SECTION 15. Amendments to this Agreement. This Agreement is made for the benefit
of the Issuer and the holders from time to time of the Refunded Bonds and the Bond and it shall
not be repealed, revoked, altered or amended in whole or in part without the written consent of
all holders of Refunded Bonds, the Escrow Agent and the Issuer; provided, however, that the
Issuer and the Escrow Agent may, without the consent of, or notice to, such holders, enter into
such agreements supplemental to this Agreement as shall not adversely affect the rights of such
holders and as shall not be inconsistent with the terms and provisions of this Agreement, for
any one or more of the following purposes:
(a) to cure any ambiguity or formal defect or omission in this Agreement;
(b) to grant to, or confer upon, the Escrow Agent, for the benefit of the holders of the
Bond and the Refunded Bonds any additional rights, remedies, powers or authority that may
lawfully be granted to, or conferred upon, such holders or the Escrow Agent; and
(c) to subject to this Agreement additional funds, securities or properties.
The Escrow Agent shall, at its option, be entitled to request, at the Issuer's expense, and
rely exclusively upon an opinion of nationally recognized attorneys on the subject of municipal
bonds acceptable to the Issuer with respect to compliance with this Section, including the
extent, if any, to which any change, modification, addition or elimination affects the rights of
the holders of the Refunded Bonds, or that any instrument executed hereunder complies with
the conditions and provisions of this Section. Prior written notice of such amendments,
together with proposed copies of such amendments, shall be provided to Moody's Investors
Service, Inc., Fitch Ratings, and Standard & Poor's Ratings Services (but only to the extent such
agencies have a rating outstanding on any of the Refunded Bonds).
SECTION 16. Counterparts. This Agreement may be executed in several counterparts,
all or any of which shall be regarded for all purposes as one original and shall constitute and be
but one and the same instrument.
SECTION 17. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Florida.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers and their corporate seals to be hereunto affixed and attested as
of the date first above written.
(SEAL)
ATTESTED:
By:
Name: Peter M. J. Richardson, CRM, CMC
Title: City Clerk
CITY OF TAMARAC, FLORIDA
Bv:
Name: Beth Talabisco
Title: Mayor
By:
Name: Jeffrey L. Miller
Title: City Manager
APPROVED AS TO FORM:
By:
Na . Samuel S. Gor
Title: City Attorney
[Signature page to Escrow Deposit Agreement between
City of Tamarac, Florida and
Regions Bank]
1
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1
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REGIONS BANK, as Escrow Agent
By:
Name: Vladimir Munoz
Title: Vice President and Trust Officer
[Signature page to Escrow Deposit Agreement between
City of Tamarac, Florida and
Regions Bank]
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Date Principal
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SCHEDULE A
TOTAL DEBT SERVICE
FOR THE REFUNDED BONDS
Redemption Total Debt Service
Premium Interest Service
1
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SCHEDULE B
EXPENSES TO BE PAID TO ESCROW AGENT
Upfront fee in the amount of
$400 payable on the date hereof
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SCHEDULE C
SCHEDULE OF FEDERAL SECURITIES
TO BE PURCHASED ON 2010
Principal Amount Interest Rate
Type
J
1
1
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