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Home My WebLink AboutCity of Tamarac Resolution R-2009-097Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 — July 15, 2009 Revision #5 — July 16, 2009 Page 1 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2009-V A RESOLUTION SUPPLEMENTING A RESOLUTION ADOPTED ON EVEN DATE HEREWITH AUTHORIZING THE ISSUANCE OF A NOT TO EXCEED $6,000,000 STORMWATER SYSTEM REFUNDING REVENUE BOND, SERIES 2009 FOR THE PURPOSE OF ADVANCE REFUNDING A PORTION OF THE OUTSTANDING CITY OF TAMARAC, FLORIDA CAPITAL IMPROVEMENT REVENUE BONDS, SERIES 2004 AND PAYING COSTS RELATED THERETO, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS CONTAINED HEREIN AND SUBJECT TO THE TERMS AND CONDITIONS OF A PURCHASE CONTRACT; FIXING CERTAIN TERMS AND DETAILS OF SUCH BOND; AUTHORIZING THE PRIVATE NEGOTIATED SALE OF SUCH BOND TO BANK OF AMERICA, N.A., 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; AND PROVIDING FOR SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the City Commission (the "City Commission") of the City of Tamarac, Florida (the "Issuer") has, by resolution adopted on the date hereof (the "Master Resolution" and, as supplemented hereby, the 'Resolution"), authorized the issuance of a not to exceed $6,000,000 City of Tamarac, Florida Stormwater System Refunding Revenue Bond, Series 2009 (the "Series 2009 Bond"); and WHEREAS, the Series 2009 Bond is being issued to (i) advance refund the Refunded 2004 Bonds; and (ii) pay the allocable costs of issuance of the Series 2009 Bond; and WHEREAS, the Issuer has received an offer from the Original Purchaser to purchase the Series 2009 Bond to achieve this objective; and 125233/002/00364791. DOCv6l Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 — July 15, 2009 Revision #5 — July 16, 2009 Page 2 WHEREAS, the Original Purchaser does not require the establishment of a debt service reserve fund as a condition of purchase; and WHEREAS, due to the present volatility of the market for tax-exempt public obligations such as the Series 2009 Bond, the need to access such market very quickly, the willingness of the Original Purchaser to purchase the Series 2009 Bond at interest rates favorable to the Issuer, and the critical importance of timing of the sale of the Series 2009 Bond, the Issuer has determined to sell the Series 2009 Bond through a negotiated sale to the Original Purchaser, and it is hereby determined that it is in the best interest of the public and the Issuer to delegate to the Mayor and the City Manager the authority to fix the final details of the Series 2009 Bond, based on the advice of the Financial Advisor, and accept the offer of the Original Purchaser to purchase the Series 2009 Bond at a negotiated sale pursuant to the terms of the Series 2009 Bond, if certain conditions set forth in this resolution are satisfied; and WHEREAS, prior to acceptance by the Issuer of the offer of the Original Purchaser to purchase the Series 2009 Bond, the Original Purchaser will provide the Issuer with all applicable disclosure information required by Section 218.385, Florida Statutes; and WHEREAS, the Issuer desires to make such determinations as are required to afford the Series 2009 Bond "bank qualified" status for purposes of Section 265(b)(3) of the Code; and WHEREAS, the Issuer has determined it to be in its best interests and to serve a paramount public purpose to provide in this resolution for the issuance of the Series 2009 Bond for the purposes heretofore described, and this resolution shall constitute a Supplemental Resolution for purposes of the Master Resolution; and WHEREAS, the Series 2009 Bond will be secured by a lien on the Pledged Revenues and, as of the date hereof, the Pledged Revenues are not pledged or encumbered in any manner, and upon issuance of the Series 2009 Bond, the lien of the holders of the Series 2009 Bond will be the senior lien on the Pledged Revenues; and WHEREAS, the Series 2009 Bond is additionally secured by a backup covenant to budget and appropriate Non -Ad Valorem Revenues; and WHEREAS, the Issuer desires to appoint a Paying Agent and Registrar with respect to the Series 2009 Bond; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA: {25233/002/00364791.DOCv6] 1 Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 — July 15, 2009 Revision #5 — July 16, 2009 Page 3 SECTION 1. Authority for this Resolution. This resolution is adopted pursuant to the provisions of the Act. SECTION 2. Definitions. All capitalized undefined terms shall have the meaning ascribed thereto in the Master Resolution. In addition, the following terms, unless the context otherwise requires, shall have the meanings specified in this Section. Words importing singular number shall include plural number in each case and vice versa, and words importing persons shall include firms and corporations. "Costs of Essential Services" shall mean the cost of services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of the Issuer or which are legally mandated by applicable law. "Escrow Agent" means TD Bank National Association as the bank or trust company which shall execute the Escrow Deposit Agreement with the Issuer simultaneous with the issuance of the Series 2009 Bond. "Escrow Deposit Agreement" means that certain Escrow Deposit Agreement by and between the Issuer and the Escrow Agent, for the purpose of providing for the payment of the Refunded 2004 Bonds, which agreement shall be in substantially the form attached hereto as Exhibit E. "Maturity Date" means October 1, 2024, unless earlier redeemed. "Maximum Annual Covenant Debt Service" shall mean the maximum annual debt service on debt and obligations secured by a covenant to budget and appropriate Pledgeable Non -Ad Valorem Revenues for the payment thereof, or that are unsecured and expected by the Issuer to be paid from Pledgeable Non -Ad Valorem Revenues. "Non -Enterprise Fund Revenues" shall mean all available revenues and receipts of the Issuer (excluding revenues of any enterprise fund of the Issuer), which are legally available for the payment of Costs of Essential Services. "Original Purchaser" means Bank of America, N.A., Naples, Florida, the original purchaser of the Series 2009 Bond. 125233/002/00364791. UOCv6 J Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 4 "Pledgeable Non -Ad Valorem Revenues" shall mean all legally available non -ad valorem revenues of the Issuer (excluding revenues of any enterprise fund of the Issuer), which are legally available to make the payments required by the Resolution. SECTION 3. Authorization of Series 2009 Bond There is hereby authorized to be issued a Bond designated as "City of Tamarac, Florida Stormwater System Refunding Revenue Bond, Series 2009" for the purpose of advance refunding the Refunded 2004 Bonds and paying costs of issuing the Series 2009 Bond, in the aggregate principal amount of not to exceed $6,000,000. Because of the characteristics of the Series 2009 Bond, prevailing market conditions, and additional savings to be realized from an expeditious sale of the Series 2009 Bond, it is in the best interest of the Issuer to accept the offer of the Original Purchaser to purchase the Series 2009 Bond at a private negotiated sale. Prior to the issuance of the Series 2009 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 4. Description of the Series 2009 Bond; Al2Rroval of Rate Lock A regiment. (A) The Series 2009 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 Issuer and the Original Purchaser, and, based upon the advice of the Financial Advisor, shall have such other terms and provisions, including an interest rate 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 the Series 2009 Bond attached hereto as Exhibit A. The Mayor and City Manager shall determine whether the Series 2009 Bond shall be issued either as a Variable Rate Bond, or alternatively with a fixed rate of interest, based on the advice of the Financial Advisor. Interest on the Series 2009 Bond shall be calculated on the basis of a 360 day year consisting of twelve 30-day months. The Series 2009 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 2009 Bond shall be executed on behalf of the Issuer with the manual or facsimile signature of the Mayor and the City Manager and a facsimile of the official seal of the Issuer, 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 2009 Bond or whose facsimile signature shall appear thereon shall cease to be such officer of the Issuer before the Series 2009 Bond so signed and sealed has been actually sold and delivered, the Series 2009 Bond may nevertheless be sold 125233/002/00364791. DQC v6 } I F I Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 — July 15, 2009 Revision #5 — July 16, 2009 Page 5 and delivered as herein provided and may be issued as if the person who signed or sealed the Series 2009 Bond had not ceased to hold such office. The Series 2009 Bond may be signed and sealed on behalf of the Issuer by such person who at the actual time of the execution of such Series 2009 Bond shall hold the proper office of the Issuer, although, at the date of such Series 2009 Bond, such person may not have held such office or may not have been so authorized. The Issuer 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 2009 Bond shall be actually sold and delivered. (B) Prior to the issuance of the Series 2009 Bond, based on the advice of the Financial Advisor, the Mayor and the City Manager are hereby authorized to enter into a Rate Lock Agreement on behalf of the Issuer, if applicable, in the form attached hereto as Exhibit D, with the Original Purchaser, in order to eliminate the risk that the fixed rate applicable to the Series 2009 Bond will thereafter increase. SECTION 5. Application of Series 2009 Bond Proceeds. The proceeds, including any accrued interest received from the sale of the Series 2009 Bond, shall be applied by the Issuer as follows: 1. Accrued interest, if any, shall be deposited in the Interest Account in the Bond Service Fund and shall be used only for the purpose of paying interest becoming due on the Series 2009 Bond. 2. To the extent not reimbursed therefor by the Original Purchaser of the Series 2009 Bond, the Issuer shall pay all costs and expenses in connection with the preparation, issuance and sale of the Series 2009 Bond. 3. Subject to the execution and delivery of the Series 2009 Bond to advance refund the Refunded 2004 Bonds, a sum which, together with other legally available funds of the Issuer and investment earnings thereon, is equal to the principal of and interest and redemption premiums, if any, on the Refunded 2004 Bonds when due in accordance with the schedules to be attached to the Escrow Deposit Agreement to pay principal and interest on the Refunded 2004 Bonds and to pay applicable can premiums and any costs with respect thereto. {25233/002/00364791.DOCv6} Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 6 SECTION 6. Appointment of Escrow Agent; Execution of Escrow Del2osit A reement• Redemption of Refunded 2004 Bonds; Transfer of Funds. TD Bank National Association is hereby appointed to serve as Escrow Agent in connection with the refunding of the Refunded 2004 Bonds. The Issuer hereby approves the Escrow Deposit Agreement as set forth in the form attached hereto as Exhibit E. The Escrow Deposit Agreement shall be executed in the name of the Issuer by the Mayor and the City Manager, such signatures to be attested to by the City Clerk, the official seal of the Issuer 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 Issuer hereby approves Causey Derngen & Moore Inc. to serve as verification agent in connection with the refunding of the Refunded 2004 Bonds. Subject to the execution and delivery of the Series 2009 Bond to advance refund the Refunded 2004 Bonds, there is hereby authorized a deposit of proceeds of the Series 2009 Bond which, together with other legally available funds of the Issuer and investment earnings thereon, is equal to the principal of and interest and redemption premiums, if any, on the Refunded 2004 Bonds when due in accordance with the schedules to be attached to the Escrow Deposit Agreement to pay principal and interest on the Refunded 2004 Bonds and to pay applicable call premiums and any costs with respect thereto. Subject to the execution and delivery of the Series 2009 Bond for the purpose of refunding the Refunded 2004 Bonds, the Issuer hereby irrevocably calls the callable Refunded 2004 Bonds for early redemption on October 1, 2014, 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 2004 Bonds to be redeemed, plus accrued interest thereon to the redemption date. At least thirty (30) days and not more than sixty (60) days prior to the date fixed for redemption, the Issuer hereby directs The Bank of New York Mellon Trust Company, N.A., as successor to J.P. Morgan Trust Company, N.A., in its capacity as Paying Agent and Registrar for the Refunded 2004 Bonds (the "2004 Paying Agent"), to mail by registered or certified mail a notice of the redemption of the callable Refunded 2004 Bonds to each holder of Refunded 2004 Bonds to be redeemed at the address of such holder shown on the registration books maintained by the 2004 Paying Agent or at such other address as shall be furnished in writing by such holder to the 2004 Paying Agent in accordance with the requirements of Section 3.03 of Resolution No. R-2004-63 adopted by the City Commission on March 24, 2004 (as amended and supplemented, the "Refunded 2004 Bond Resolution") in the form to be prepared by Bond Counsel. Furthermore, upon issuance of the Series 2009 Bond for 125233/002/00364791.DOCv6) Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 — July 15, 2009 Revision #5 — July 16, 2009 Page 7 the purposes of advance refunding the Refunded 2004 Bonds, the Issuer hereby directs the 2004 Paying Agent to mail a notice of defeasance to each holder of the Refunded 2004 Bonds in the form to be prepared by Bond Counsel. On the date of issuance of the Series 2009 Bond, the Issuer may transfer moneys on deposit in the Principal Account and Interest Account created pursuant to the Refunded 2004 Bond Resolution which were being held for the benefit of the Refunded 2004 Bonds to the Escrow Agent to be held on behalf of the Issuer and to be used pursuant to the terms of the Escrow Deposit Agreement. SECTION 7. Reserve Fund. The Issuer hereby determines that the Reserve Fund (including any account established therein) shall not secure the Series 2009 Bond. SECTION 8. Appointment of Registrar and Paving Agent. The City Clerk is hereby designated as the Registrar and Paying Agent for the Series 2009 Bond. SECTION 9. Bank Qualified. The Issuer hereby designates the Series 2009 Bond as a "qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Code. The Issuer and any subordinate entities of the Issuer and any issuer of "tax-exempt" debt that issues "on behalf of the Issuer do not reasonably expect during the calendar year 2009 to issue more than $30,000,000 of "tax-exempt" obligations including the Series 2009 Bonds, 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 10. S ecial Covenants and Financial Ratios. As a condition precedent to the issuance of any debt or the incurrence of any other obligations which are secured by and/or payable solely from Pledgeable Non -Ad Valorem Revenues, the Issuer agrees to deliver to the Original Purchaser a certificate setting forth the calculations of the financial ratios provided below and certifying that it is in compliance with the following: (i) the average of the Pledgeable Non -Ad Valorem Revenues for the two most recent Fiscal Years for which audited financial statements of the Issuer are available is equal to or greater than 2.Ox the projected maximum annual debt service on the proposed debt or obligations and the other debt and obligations secured by and/or payable solely from all or a portion of such Pledgeable Non -Ad Valorem Revenue to be outstanding following the issuance of the proposed debt or obligations; and (ii) the remainder of (A) the Pledgeable Non -Ad Valorem Revenues for the most recent Fiscal Year for which audited financial statements of the Issuer are available, less {25233/002/00364791.DOCv6) Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 8 (B) the product of (1) the quotient of such Pledgeable Non -Ad Valorem Revenues divided by the Non -Enterprise Fund Revenues for such Fiscal Year, multiplied by (II) the Costs of Essential Services for such Fiscal Year, and less (C) the maximum annual debt service on debt and obligations secured by an express lien on all or a portion of the Pledgeable Non -Ad Valorem Revenues to be outstanding following the issuance of the proposed debt or obligations is equal to or greater than 1.1x the Maximum Annual Covenant Debt Service with respect to debt and obligations to be outstanding following the issuance of the proposed debt or obligations. [Pledgeable Non -Ad Valorem Revenues - ((Pledgeable Non -Ad Valorem Revenues = Non - Enterprise Fund Revenues) x (Costs of Essential Services)) -- maximum annual debt service secured by lien on Pledgeable Non -Ad Valorem Revenues ? 1.1x Maximum Annual Covenant Debt Service]. For purposes of the covenants provided in this Section, "maximum annual debt service" (including, without limitation, as used in the definition of "Maximum Annual Covenant Debt Service") shall mean the lesser of the actual maximum annual debt service on such debt and obligations, or 15% of the original par amount thereof. For the purpose of calculating maximum annual non -ad valorem debt service on any indebtedness which bears interest at a variable rate, such indebtedness shall be deemed to bear interest at the greater of (i) 1.25 times the most recently published Bond Buyer Revenue Bond 30 Year Index or (ii) 1.25 times actual average interest rate during the prior Fiscal Year of such Issuer. Notwithstanding anything herein to the contrary, the provisions of this Section may be amended, supplemented, or waived from time to time only with the prior written consent of the Original Purchaser. SECTION 11. Annual Audit. The Issuer shall, immediately after the close of each Fiscal Year, cause the financial statements of the Issuer to be properly audited by a recognized independent certified public accountant or recognized independent firm of certified public accountants, and shall require such accountants to complete their report on the annual financial statements in accordance with applicable law. The annual financial statements shall be prepared in conformity with generally accepted accounting principles. The Issuer shall annually provide to the Original Purchaser a copy of its audited financial statements within 270 days of the Fiscal Year end. SECTION 12. Prior Resolutions. All prior resolutions of the Issuer inconsistent with the provisions of the Master Resolution are hereby amended and supplemented to conform with the provisions herein contained and, except as may otherwise amended and supplemented hereby, the Master Resolution shall remain in full force and effect. f 25233/002/00364791.DOCv6) 1 Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 — July 15, 2009 Revision #5 — July 16, 2009 Page 9 SECTION 13. No Personal Liability. Neither the members of the City Commission nor any person executing the Series 2009 Bond shall be personally liable therefor or be subject to any personal liability or accountability by reason of the issuance thereof. SECTION 14. General Authority. The Mayor, the City Manager, the Director of Financial Services, the City Attorney and any other proper officials of the Issuer are hereby authorized to do all acts and things required of them by this resolution, the Master Resolution, the Escrow Deposit Agreement, the Series 2009 Bond, or any other agreement or contract relating to the Series 2009 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 Issuer 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 15. 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 2009 Bond. SECTION 16. Master Resolution to Continue in Force. The Master Resolution and all the terms and provisions thereof, are and shall remain in full force and effect. [Remainder of page intentionally left blank] {25233/002/00364791.DQCv6} Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 — July 15, 2009 Revision #5 — July 16, 2009 Page 10 SECTION 17. Effective Date. This resolution shall be effective immediately upon its adoption. PASSED AND ADOPTED the 22nd day of July, 2009. CITY OF TAMARAC, FLORIDA Beth Flansbaum-Talabisco, Mayor ATTEST: Marion Swenson, 6MC City Clerk I HEREBY CERTIFY that I have approved this Resolution as to form Sam el S. Goren sity Attorney 1 125233/002/00364791.DOCv6} Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 11 EXHIBIT A FORM OF SERIES 2009 BOND Dated: , 2009 $ Maturity Date: October 1, 2024 CITY OF TAMARAC, FLORIDA STORMWATER SYSTEM REFUNDING REVENUE BOND, SERIES 2009 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 Bank of America, N.A. or registered assigns (hereinafter, the "Owner"), the principal sum of $ in the manner described below, together with interest on the principal balance outstanding at [a fixed rate of per annutn of %] [if a fixed interest rate] -[a fluctuating rate of interest equal to the sum of (i) the greater of 0.478% and 63.7% of the LIBOR Rate plus (ii) 1.65% per annuml (subject to adjustment as described below, the "Interest Rate") calculated on the basis of a 360 day year consisting of twelve 30-day months. ["LIBOR Rate" shall mean, for each Interest Period, a fluctuating rate of interest per annum (rounded upwards to the next higher 1/100 of 1%) equal to the British Bankers' Association Libor Rate ("BBA Libor") as published by Reuters (or other commercially available source providing quotations of BBA Libor as selected by the Owner from time to time) as determined at approximately 11:00 a.m. (London time) two London Banking Days prior to the first day of such Interest Period, for U.S. Dollar deposits (for delivery on the first day of such Interest Period) with a one month term, as adjusted from time to time in the Owner's sole discretion for then applicable reserve requirements, deposit insurance assessment rates and other regulatory costs. "Interest Period" means a one month period beginning on and including the first Business Day of a month and continuing to but not including the first Business Day of the next succeeding month, provided that the first Interest Period begins on 2009 and ends on but does not include J 2009. "Business Day" for purposes of this Bond means a day on which the Owner is open for the conduct of substantially all of its banking business (excluding Saturdays and Sundays) and a day on which commercial banks are open for international business (including dealings in U.S. Dollar deposits in London, England). {25233/002/00364791.DOCv6) Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 12 A "London Banking Day" is a day on which banks in London are open for business and dealing in offshore dollars. Notwithstanding any provision of this Bond, the Owner does not intend to charge and the Issuer shall not be required to pay any amount of interest or other charges in excess of the maximum permitted by the applicable law. Any payment in excess of such maximum shall be credited against the principal balance of this Bond and any remaining excess shall be refunded to the Issuer]. 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 11 Principal on this Bond shall be payable on October 1 of the following years: Year Principal Payment g 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. If the interest on this Bond becomes includable in the gross income of the Owner for federal income tax purposes (a "Determination of Taxability"), then the interest rate hereon shall be adjusted to % (the "Adjusted Interest Rate"), as of and from the date such Determination of Taxability would be applicable with respect to this Bond (the "Accrual Date"); and (i) the Issuer shall on the next interest payment date (or if this Bond shall have matured, within 30 days after demand by the Issuer) hereon pay to the Owner an amount equal to the sum of (1) the difference between (A) the total interest that would have accrued on this Bond at the Adjusted Interest Rate from the Accrual Date to such next interest payment date, and (B) the actual interest paid by the Issuer on this Bond from the Accrual Date to such next interest payment date, and (2) any interest and penalties required to be paid as a result of any additional State of Florida and federal income taxes imposed upon the Owner arising as a result of such 125233/002/00364791. DOCv6 } Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 13 Determination of Taxability; and (ii) from and after the date of the Determination of Taxability, this Bond shall continue to bear interest at the Adjusted Interest Rate for the period such Determination of Taxability continues to be applicable with respect to this Bond. 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. [This Bond may be redeemed in whole or in part, but only on the first day of any Interest Period, with three (3) days prior written notice to the Owner by payment of an amount equal to the principal amount to be redeemed, plus accrued interest thereon to the date of redemption plus the Redemption Fee. For purposes hereof, the Redemption Fee will be the sum of fees calculated separately for each Redeemed Installment, as follows: (i) The Owner will first determine the amount of interest which would have accrued each month at the Taxable Equivalent Rate for the Redeemed Installment had it remained outstanding until the applicable Original Payment Date, using the interest rate applicable to the Redeemed Installment under this Bond. (ii) The Owner will then subtract from each monthly interest amount determined in (i) above, the amount of interest which would accrue for that Redeemed Installment if it were reinvested from the date of redemption through the Original Payment Date, using the Treasury Rate. (iii) If (i) minus (ii) for the Redeemed Installment is greater than zero, the Owner will discount the monthly differences to the date of redemption by the Treasury Rate. The Owner will then add together all of the discounted monthly differences for the Redeemed Installment. The following definitions will apply to the calculation of the Redemption Fee: (i) "Original Payment Dates" means the dates on which the redeemed principal would have been paid if there had been no early redemption. If any of the principal would have been paid later, than the end of the fixed rate interest period in effect at the time of redemption, then the Original Payment Date for that amount will be the last day of the interest period. (ii) "Redeemed Installment" means the amount of the redeemed principal which would have been paid on a single Original Payment Date. {25233/002/00364791.DOCv6l Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 14 (iii) "Taxable Equivalent Rate" means the interest rate per annum derived from the following formula: % [interest rate on this Bond] divided by the difference of (1 minus the Maximum Corporate Income Tax Rate). The "Maximum Corporate Income Tax Rate" is the highest marginal federal income tax rate charged to U.S. corporations in effect at the time of the redemption calculation. The "Maximum Corporate Income Tax Rate" is currently 35% (or 0.35 in numerical terms). (iv) "Treasury Rate" means the yield on the Treasury Constant Maturity Series with maturity equal to the Original Payment Date of the Redeemed Installment which are principal payments (calculated as of the date of redemption in accordance with accepted financial practice and rounded to the nearest quarter -year), as reported in Federal Reserve Statistical Release H.15, Selected Interest Rates of the Board of Governors of the Federal Reserve System, or any successor publication. If no maturity exactly corresponding to such Original Payment Date appears in Release H.15, the Treasury Rate will be determined by linear interpolation between the yields reported in Release H.15. If for any reason Release H.15 is no longer published, the Owner shall select a comparable publication to determine the Treasury Rate.] [if a fixed interest rate] [This Bond may be redeemed in whole or in part, on any date, with three (3) days prior written notice to the Owner by payment of an amount equal to the principal amount to be redeemed, plus accrued interest thereon to the date of redemption, with no penalty.] [if a variable interest rate] Notwithstanding anything in this Bond or the Resolution (hereinafter defined) to the contrary and only during such time a payment default exists pursuant to the Resolution, interest at the lesser of 15% per annum or the maximum lawful rate per annum shall be payable on the entire principal balance owing hereunder from and after the occurrence of and during the continuation of a default described in the preceding paragraph, irrespective of a declaration of maturity. Upon the occurrence of a default pursuant to the Resolution, the Owner may declare the principal of this Bond (if not then due and payable) to be immediately due and payable, and upon such declaration, the same shall be immediately due and payable; and in any such default and acceleration, the Issuer shall also be obligated to pay (but only from the sources described herein) as part of the indebtedness evidenced by this Bond, all costs of collection and enforcement hereof, including such fees as may be incurred on appeal or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically but without limitation, claims, disputes and proceedings seeking adequate protection or relief from the automatic stay. )25233/002/00364791.DOCv6) Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 15 In addition to the remedies described in Resolution, the Owner may charge a late payment fee of four percent of any amount not paid within 15 days of the due date, which is in addition to interest due on this Bond. THE ISSUER, AND THE OWNER, BY ACCEPTANCE OF THIS BOND, AGREE TO WAIVE TRIAL BY JURY, IN ANY CONTROVERSY OR CLAIM BETWEEN THE PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THE RESOLUTION OR ANY RELATED INSTRUMENTS, AGREEMENTS OR DOCUMENTS. Notice of such redemption shall be given in the manner required by the Resolution (as defined below). This Bond is one of an authorized issue of Bonds in the aggregate principal amount of $ of like date, tenor and effect, except as to number, principal amount, maturity, redemption provisions and interest rate, issued to all in full compliance with Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 159, Part I, Florida Statutes, Chapter 166, Part II, Florida Statutes, the municipal charter of the City of Tamarac, Florida, and other applicable provisions of law and Resolution No. R-2009-_ duly adopted by the Issuer on , 2009, as amended and supplemented (hereinafter collectively called the "Resolution") and is subject to all the terms and conditions of such Resolution. All capitalized undefined terms used herein shall have the meaning set forth in the Resolution. This Bond is payable solely from and secured by a pledge of the Gross Revenues of the System levied and collected by the Issuer, and the moneys in certain funds and accounts created pursuant to the Resolution (collectively, the "Pledged Revenues") in the manner and to the extent provided in the Resolution. This Bond is further secured by a covenant to budget, appropriate and deposit Non -Ad Valorem Revenues of the Issuer, as provided for in the Resolution. Reference is made to the Resolution for more complete definition and description of the System and the Pledged Revenues. This Bond does not constitute a general indebtedness of the Issuer within the meaning of any constitutional, statutory or charter provision or limitation, and it is expressly agreed by the Owner of this Bond that such Owner shall never have the right to require or compel the exercise of the ad valorem taxing power of the Issuer or taxation of any real or personal property therein for the payment of the principal of and interest on this Bond or the making of any debt service fund, reserve or other payments provided for in the Resolution. 125233/002/00364791.DOCv61 Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 1.6, 2009 Page 16 It is further agreed between the Issuer and the Owner of this Bond that this Bond and the indebtedness evidenced thereby shall not constitute a lien upon the System, or any part thereof, or on any other property of or in the Issuer, but shall constitute a lien only on the Pledged Revenues all in the manner provided in the Resolution. The Issuer has covenanted, in the Resolution, to fix, establish, revise from time to time whenever necessary, maintain and collect always such fees, rates, rentals and other charges for the use of the products, services and facilities of the System which will always provide, Net Revenues in each Fiscal Year sufficient to pay one hundred twenty-five percent (125%) of the Bond Service Requirement on all Outstanding Bonds in the applicable Bond Year, plus one hundred percent (100%) of any amounts required by the terms hereof to be deposited into the Reserve Fund (including any subaccount therein) or with any Credit Facility Issuer as a result of a withdrawal from the Reserve Fund (including any subaccount therein), the Renewal, Replacement and Improvement Fund and debt service on other obligations payable from the Net Revenues of the System, and other payments, and all allocations and applications of revenues herein required in such Fiscal Year. Net Revenues will not be reduced so as to render them insufficient to provide revenues for the purposes provided therefor by the Resolution. The Issuer has entered into certain further covenants with the Owner for the terms of which reference is made to the Resolution. It is certified that this Bond is authorized by and is issued in conformity with the requirements of the Constitution and Statutes of the State of Florida. This Bond is and has all the qualities and incidents of a negotiable instrument under Article 3 of the Uniform Commercial Code, the State of Florida, Chapter 673, Florida Statutes, as amended. The transfer of this Bond is registrable by the Owner hereof in person or by his attorney or legal representative at the designated corporate trust office of the Registrar but only in the manner and subject to the conditions provided in the Resolution and upon surrender and cancellation of this Bond. This Bond shall not be valid or become obligatory for any purpose or be entitled to any benefit or security under the Resolution until it shall have been authenticated by the execution by the Registrar of the certificate of authentication endorsed hereon. 125233/002/00364791.DOCv61 1 Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 — July 15, 2009 Revision #5 — July 16, 2009 Page 17 IN WITNESS WHEREOF, said City of Tamarac, Florida, by resolution duly adopted by its City Commission, has caused this Bond to bear the signatures of its Mayor and City Manager, to be attested by the signature of its City Clerk, to be approved as to form by the City Attorney, and a facsimile of the official seal of the City to be affixed, impressed, imprinted, lithographed or reproduced hereon, all as of the day of (SEAL) ATTESTED: By: City Clerk APPROVED AS TO FORM AND CORRECTNESS: By: City Attorney CITY OF TAMARAC, FLORIDA By: Mayor By: City Manager CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds issued under the provisions of the within mentioned Resolution. Date of Authentication: CITY CLERK, Registrar, as Authenticating Agent By: Authorized Officer )25233/002/00364791.DOCv6) Temp. Reso. #11662 Revision #2 - July 1.0, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 18 ASSIGNMENT AND TRANSFER For value received the undersigned hereby sells, assigns and transfers unto (Please insert Social Security or other identifying number of transferee) the attached bond of the City of Tamarac, Florida, and does hereby constitute and appoint, attorney, to transfer the said Bond on the books kept for registration thereof, with full power of substitution in the premises. Date: Signature Guaranteed by [member firm of the New York Stock Exchange or a commercial bank or a trust company.] By: (manual or facsimile) Authorized Officer NOTICE: No transfer will be registered and no new Bonds will be issued in the name of the transferee, unless the signature to this assignment corresponds with the name as it appears upon the face of the within Bond in every particular, without alteration or enlargement or any change whatever and the Social Security or Federal Employer Identification Number of the transferee is supplied. 1 1 125233/002/00364791.DOCv6l Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 19 EXHIBIT B FORM OF PURCHASER'S CERTIFICATE This is to certify that Bank of America, N.A. (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 Stormwater System Refunding Revenue Bond, Series 2009, dated , 2009 (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. R- 2009- adopted by the City Commission on _ 2009, as amended and supplemented from time to time, and as particularly supplemented by Resolution No. R-2009- adopted by the City Commission on _ 2009 (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. 125233/002/00364791. DOCv6 } Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 20 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 $100,000 in any circumstances. We are a "national bank" under the laws of the United States of America. 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 '2009. BANK OF AMERICA, N.A. By: Name: Holly L. Kuhlman Title: Senior Vice President 1 {25233/002/00364791.DOCv6} Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 21 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 Stormwater System Refunding Revenue Bond, Series 2009 (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): Holland & Knight LLP Purchaser Counsel Fees -- $4,500 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 advance refund the Refunded 2004 Bonds, as described in the Resolution hereafter defined, and to pay costs related thereto. 125233/002/00364791.DOCv6} Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 22 Unless earlier redeemed, the Bond is expected to be repaid by October 1, . At an interest rate of %, total interest paid over the life of the Bond is estimated to be The Bond will be payable from Pledged Revenues sufficient to make such payments, appropriated and deposited as described in Resolution No. R-2009- adopted by the City Commission on , 2009, as amended and supplemented from time to time, and as particularly supplemented by Resolution No. R-2009- adopted by the City Commission on - 2009 (collectively, the "Resolution"). In addition, the Bond will be additionally 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 and Non - Ad Valorem Revenues. 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: Bank of America, N.A. 4501 North Tamiami Trail, Suite 400 Naples, Florida 34103 IN WITNESS WHEREOF, the undersigned has executed this Disclosure Statement on behalf of the Purchaser this day of , 2009. BANK OF AMERICA, N.A. By: Name: Holly L. Kuhlman Title: Senior Vice President 1 125233/002/00364791.DOCv6) Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 23 EXHIBIT D FORM OF RATE LOCK AGREEMENT This Rate Lock Agreement is dated , 2009, and is between Bank of America, N.A. (the "Bank") and the City of Tamarac, Florida (the "City"). Terms used herein and not otherwise defined herein have the meanings ascribed thereto in a resolution of the City (the "Resolution"), a copy of which is attached hereto as Schedule I. The Series 2009 Bond, if issued, is to be issued on or after July 22, 2009 and on or prior to September 11, 2009 (the "Closing Period"). The City understands that, if the Series 2009 Bond does not close during the Closing Period, the Bank may suffer breakage costs andother losses, expenses and liabilities, including lost revenue and lost profits, as a result of having locked in the interest rate in advance. Accordingly, in consideration of the Bank's agreement to lock in the interest rate on the Series 2009 Bond, the City agrees to pay to the Bank a prepayment fee as provided herein in the event the Series 2009 Bond does not close during the Closing Period for any reason other than the Bank's refusal to purchase the Series 2009 Bond having the terms and conditions as set forth herein and in the Resolution. The Bank and the City agree that in the event the Series 2009 Bond is issued by the City and purchased by the Bank, the interest rate to be borne by the Series 2009 Bond will be per cent per annum (the "Series 2009 Bond Rate"). The principal amount of the Series 2009 Bond shall, for purposes of this Rate Lock Agreement, be deemed due on the dates and in the amounts set forth on Schedule II attached hereto. In the event that the City does not issue the Series 2009 Bond during the Closing Period, having the terms and conditions as set forth herein and in the Resolution and Series 2009 Bond attached thereto and offer to sell the same to the Bank for a price equal to the initial draw under the Series 2009 Bond at the time of delivery, then, unless after said offer the Bank fails to purchase the Series 2009 Bond on the date tendered by the City, said circumstance shall be deemed to be the issuance and simultaneous prepayment of the entire principal amount of the Series 2009 Bond, which shall be subject to the prepayment provisions set forth in the Bond. If under the terms of the Bond the prepayment would result in a Prepayment Fee, then the City will pay the Bank, on demand, the amount of the Prepayment Fee, provided that the City shall only be obligated to make such payment from the same sources and in the same manner as principal and interest on the Series 2009 Bond would have been payable had the Series 2009 Bond actually been issued. The parties acknowledge that in the event the City offers to sell the 125233/002/0036479 ] . DOC v6 ) Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 24 Series 2009 Bond and the Bank fails to purchase the Series 2009 Bond on the date tendered, on the terms described above, the City shall have no liability to pay a Prepayment Fee to the Bank. The City agrees that the fee represents a reasonable estimate of the breakage costs and other losses, expenses and liabilities, including lost revenue and lost profits, that the Bank may suffer if the Series 2009 Bond is not delivered during the Closing Period. The City agrees that the Bank's willingness to lock in the Series 2009 Bond Rate in advance of the Closing Period is sufficient consideration for the City's agreement to pay the fee. This Agreement shall be governed by Florida law. Any amount due under this Agreement which is not paid upon demand by the Bank shall bear interest until paid at the Series 2009 Bond Rate plus five percentage points. Any disputes between the parties concerning this Agreement, at the election of any party, will be resolved by binding arbitration according to the applicable rules and procedures for the arbitration of disputes of the American Arbitration Association or any successor thereof. The prevailing party in any arbitration or litigation will be entitled to its reasonable attorneys' fees, including the allocated cost of in- house counsel. In the event of a dispute hereunder, any judicial proceeding shall be conducted without a jury trial, and the prevailing party shall be entitled to attorney's fees and costs including on appeal. [Remainder of page intentionally left blank] (25233/002/0036479L DOCv6) 1 1 Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 --- July 15, 2009 Revision #5 — July 16, 2009 Page 25 Once the Series 2009 Bond is issued by the City and purchased by the Bank, this Agreement will terminate. (25233/002/00364791. DQCv6) BANK OF AMERICA, N.A. Bv: Name: Holly L. Kuhlman Title: Senior Vice President CITY OF TAMARAC, FLORIDA By: Name: Beth Flansbaum-Talabisco Title: Mayor Bv: Name: Jeffrey L. Miller Title: City Manager By: Name: Michael C. Cernech Title: Deputy City Manager and Interim Director of Financial Services SCHEDULE I COPY OF AUTHORIZING RESOLUTION (25233/002/00364791.DOCv6) Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 26 1 1 I 1 1 125233/002/00364791. DOCv6} SCHEDULE II PRINCIPAL PAYMENTS Date Principal Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 27 Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 — July 15, 2009 Revision #5 — July 16, 2009 Page 28 EXHIBIT E FORM OF ESCROW DEPOSIT AGREEMENT THIS ESCROW DEPOSIT AGREEMENT, dated as of _ , 2009, by and between the CITY OF TAMARAC, FLORIDA (the "Issuer"), and TD BANK NATIONAL. ASSOCIATION, a national banking association organized under the laws of the United States of America, as Escrow Agent, and its successors and assigns (the "Escrow Agent"); WITNESSETH: WHEREAS, the Issuer previously issued its Capital Improvement Revenue Bonds, Series 2004 (the "2004 Bonds"); and WHEREAS, the Issuer now desires to advance refund all of the 2004 Bonds (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 Counsel" means Bryant Miller Olive P.A., or any other law firm nationally -recognized in the area of public finance. (c) "Bonds " means, collectively, the Stormwater Bond and the Utility Bonds. (d) "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. 1 {25233/002/00364797 .DOCv6l Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 — July 15, 2009 Revision #5 — July 16, 2009 Page 29 (e) "Federal Securities" shall have the meaning ascribed thereto in the Refunded Bond Resolution. (f) "Issuer" means the City of Tamarac, Florida, and its successors and assigns. (g) 'Refunded Bonds" has the meaning ascribed above. (h) 'Refunded Bond Resolution" shall mean Resolution No. R-2004-63 adopted by the City Commission on March 24, 2004, as amended and supplemented from time to time, and as particularly supplemented by Resolution No. R-2004-63 adopted by the City Commission on March 24, 2004. (i) "Stormwater Bond" means the $ City of Tamarac, Florida Stormwater System Revenue Bond, Series 2009, issued under the Stormwater Bond Resolution. 0) "Stormwater Bond Resolution" shall mean Resolution No. R-2009- adopted by the City Commission on , 2009, as amended and supplemented from time to time, and as particularly supplemented by Resolution No. R-2009- adopted by the City Commission on , 2009. (k) "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 October 1., 2014. (1) "Utility Bond Resolution" shall mean Resolution No. R-2009- adopted by the City Commission on 2009, as amended and supplemented from time to time, and as particularly supplemented by Resolution No. R-2009- adopted by the City Commission on 2009. (m) "Utility Bonds" means the $ City of Tamarac, Florida Utility System Revenue Bonds, Series 2009A, issued under the Utility Bond Resolution. 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 Stormwater Bond. An amount equal to $ of such funds are being derived ( 25233/002/00364791. DOCv6 Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 30 from proceeds of the Utility Bonds. An amount equal to $ of such funds are being derived from the Principal Account and Interest Account (as such terms are defined in the Refunded 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 Stormwater Bond and the Utility Bonds, and other legally available funds of the Issuer, in the Federal Securities set forth on Schedule C-1 attached hereto and to hold such securities and. $ of such funds in cash in accordance with the terms of this Agreement; [(c) to invest $ of uninvested cash then on deposit in the Escrow Account in the Federal Security set forth on Schedule C-2 attached hereto and to hold such security in accordance with the terms of this Agreement;] (d) in the event the securities described on Schedule C-1 [or Schedule C-21 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 (e) 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 The Bank of New York Mellon Trust Company, N.A., as (25233/002/00364791.DOCv6) Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 -- July 16, 2009 Page 31 successor to J.P. Morgan Trust Company, N.A., 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. (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 Bonds 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 ( 25233/002/00364791. DOCv6 Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 32 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. Indernnity. 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 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. (25233/002/00364791.DQCv6} Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 33 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. Resignation of .Escrow Agent. 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 Bonds, 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 percentum (51%) in 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 Bonds 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. ( 25233/002/00364 791. DOC v6 f Temp. Reso. #11.662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 34 (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 percentum (5%) in aggregate principal amount of the Bonds then outstanding, or the holders of not less than five percentum (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 Bonds 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 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 (25233/002/00364791. DOCv6) Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 -- July 15, 2009 Revision #5 - July 16, 2009 Page 35 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. Seyerability. 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., Pitch 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. 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 Bonds 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, (25233/002/00364791.DOCv6l Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 36 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 Bonds 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. [Remainder of page intentionally left blank] {25233/002/00364791.DOCv6) 1 1 I I Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 — July 15, 2009 Revision #5 -- July 16, 2009 Page 37 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: CITY OF TAMARAC, FLORIDA By: Name: Seth Flansbaum-Talabisco Title: Mayor By: Name: Jeffrey L. Miller Title: City Manager APPROVED AS TO FORM: By: By. Name: Marion Swenson, CMC Name: Samuel S. Goren Title: City Clerk Title: City Attorney [Signature page to Escrow Deposit Agreement between City of Tamarac, Florida and TD Bank National Association] {25233/002/00364791.DOCv6l Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 -- July 15, 2009 Revision #5 -- July 16, 2009 Page 38 TD BANK NATIONAL ASSOCIATION, as Escrow Agent By:_ Name: Title: [Signature page to Escrow Deposit Agreement between City of Tamarac, Florida and TD Bank National Association] 1 1 {25233/002/00364791.DOCv6) 1 Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 — July 15, 2009 Revision #5 — July 16, 2009 Page 39 TD BANK NATIONAL ASSOCIATION, as Escrow Agent By:____ Name: [Signature page to Escrow Deposit Agreement between City of Tamarac, Florida and TD Bank National Association] 125233/002/00364791.DOCv61 SCHEDULE A TOTAL DEBT SERVICE FOR THE REFUNDED BONDS Redemption Date Principal Premium {25233/002/00364791.DCCv6} Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 40 Total Debt Service Interest Service 1 1-1 1 1 1 (25233/002/00364791.DOCv6} Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 41 SCHEDULE B EXPENSES TO BE PAID TO ESCROW AGENT $750 paid annually, in advance SCHEDULE C-1 SCHEDULE OF FEDERAL SECURITIES TO BE PURCHASED ON Maturity Date {25233/002/00364791.DOCv6} Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 — July 15, 2009 Revision #5 — July 16, 2009 Page 42 2009 Principal Amount Interest Rate Type 1 1 1 1-1 �l [SCHEDULE C-2 SCHEDULE OF FEDERAL SECURITIES TO BE PURCHASED ON Maturity_Date {25233/002/00364791.DOCv6} Temp. Reso. #11662 Revision #2 - July 10, 2009 Revision #3 - July 14, 2009 Revision #4 - July 15, 2009 Revision #5 - July 16, 2009 Page 43 Principal Amount Interest Rate Type CERTIFICATE AS TO PUBLIC MEETINGS AND NO CQNFLICT OF INTEREST STATE OF FLORIDA: COUNTY OF BROWARD: Each of the undersigned members of the Commission of the City of Tamarac, Florida (the "Issuer"), recognizing that the purchaser of the not to exceed $6,000,000 City of Tamarac, Florida Stormwater System Refunding Revenue Bond, Series 2009 (the 'Bond") will have purchased said Bond in reliance upon this Certificate, DOES HEREBY CERTIFY: (1) that he or she has no personal knowledge that any two or more members of the Commission meeting together, reached any prior conclusion as to whether the actions taken by the Commission with respect to said Bond, the security therefor and the application of the proceeds thereof, should or should not be taken by the Commission or should or should not be recommended as an action to be taken or not to be taken by the Commission, except at public meetings of the Commission held after due notice to the public was given in the ordinary manner required by law and custom of the Commission; and (2) that he or she does not have or hold any employment or contractual relationship with Bank of America, N.A. which is the business entity purchasing the Bond from the Issuer. IN WITNESS WHEREOF, we have hereunto affixed our official signatures this 22nd day of July, 2009. 4 e, � Ca {25233/002/00366142,DQCv2}