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HomeMy WebLinkAboutCity of Tamarac Resolution R-2006-134Temp Reso #11004 - July 5, 2006 Page 1 Revision #1 July 7, 2006 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2006-j3L4 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA SUPPLEMENTING RESOLUTION NO. R-85-436, AS PREVIOUSLY SUPPLEMENTED AND AMENDED; AUTHORIZING THE ISSUANCE OF ITS NOT TO EXCEED $7,000,000 WATER AND SEWER UTILITY REVENUE NOTE, SERIES 2006 AS ADDITIONAL BONDS UNDER SUCH RESOLUTION ON A PARITY WITH THE BONDS OUTSTANDING THEREUNDER TO FINANCE THE COST OF CONSTRUCTING IMPROVEMENTS TO THE ISSUER'S WATER AND SEWER UTILITY; DESIGNATING THE SERIES 2006 NOTE FOR THE EXCEPTION FOR CERTAIN TAX-EXEMPT OBLIGATIONS CONTAINED IN SECTION 265 OF THE INTERNAL REVENUE CODE OF 1986; AUTHORIZING THE NEGOTIATED SALE OF THE SERIES 2006 NOTE TO BANK OF AMERICA, N.A.; ESTABLISHING ITS INTENT TO REIMBURSE CERTAIN CAPITAL EXPENDITURES INCURRED WITH PROCEEDS OF THE SERIES 2006 NOTE; PROVIDING FOR THE RIGHTS OF THE HOLDER OF SUCH SERIES 2006 NOTE; MAKING OTHER COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; PROVIDING FOR CONFLICTS; AND PROVIDING FOR SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the City Commission (the "City Commission") of the City of Tamarac, Florida (the "Issuer") previously adopted Resolution No. R-85-436 on December 10, 1985, as supplemented and amended (which, together with this Resolution, is collectively referred to as the "Bond Resolution"); and WHEREAS, capitalized undefined terms used herein shall have the meanings ascribed thereto in the Bond Resolution; and WHEREAS, the Issuer has previously issued and there are currently outstanding under the Bond Resolution the City of Tamarac, Florida Water and Sewer Utility Revenue Refunding Bonds, Series 1992 (the "Series 1992 Bonds") and the City of Tamarac, Florida Taxable Water and Sewer Utility Revenue Refunding Bonds, Series 1996 (the "Series 1996 Bonds"); and WHEREAS, the Bond Resolution authorizes the issuance of Additional Bonds thereunder on a parity with Bonds issued and secured thereunder and then outstanding for the purpose of financing Improvements; and WHEREAS, the Issuer desires to finance Improvements, including without limitation the facility more particularly described in Exhibit A attached hereto (the "2006 Project"); and t4415/03/00066689.DOCv3} Temp Reso #11004 - July 5, 2006 Page 2 Revision #1 July 7, 2006 WHEREAS, the Issuer desires to issue its Water and Sewer Utility Revenue Note, Series 2006 (the "Series 2006 Note") in an original principal amount not to exceed $7,000,000, as Additional Bonds under the Bond Resolution to finance the 2006 Project; and WHEREAS, the Issuer desires to establish its intent to reimburse certain capital expenditures with proceeds of the Series 2006 Note.; and WHEREAS, the City's Financial Advisor, D.A. Davidson & Co. (the "Financial Advisor") circulated a request for proposals with respect to the financing of the 2006 Project (the "RFP"); and WHEREAS, pursuant to such RFP, six proposals were received; and WHEREAS, the Financial Advisor recommends the selection of Bank of America, N.A. in accordance with its proposal; and WHEREAS, based on such advice, it is in the best interest of the Issuer and the Issuer desires to provide for the sale of the Series 2006A Note to Bank of America, N.A., on a negotiated basis; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA AS FOLLOWS: SECTION 1. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted pursuant to the provisions of the Constitution of the State of Florida, the City Charter of the Issuer, Chapter 166, Part II, Florida Statutes and other applicable provisions of law (collectively, the "Act"), and the Bond Resolution. SECTION 2. DEFINITIONS. Unless the context otherwise requires, terms used in this Resolution (the "2006 Supplemental Resolution") shall have the meanings specified in the Bond Resolution and in this Section. "Authorized Denominations" means, as to the Series 2006 Note, $100,000 and $5,000 increments thereof in excess of $100,000. "Business Day" means any day except any Saturday or Sunday or day on which the Original Purchaser is closed. "Code" means the Internal Revenue Code of 1986, as amended, and any Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable thereto. "Original Purchaser" means Bank of America, N.A. 14415/03/00066689.DOCv3) Temp Reso #11004 - July 5, 2006 Page 3 Revision #1 July 7, 2006 "2006 Project" means the Improvements authorized to be financed with the proceeds of the Series 2006 Note, including without limitation the building, as more particularly described in Exhibit A attached hereto. "Series 2006 Note" means the City of Tamarac, Florida Water and Sewer Utility Revenue Note, Series 2006 herein authorized to be issued in the original principal amount not to exceed $7,000,000. SECTION 3. FINDINGS. It is hereby ascertained, determined and declared that: (A) The findings and declarations of the Issuer contained in the Bond Resolution are hereby expressly approved, ratified and reaffirmed. (B) The Series 2006 Note will be issued as and shall constitute Additional Bonds under Section 207 of the Bond Resolution and the 2006 Project constitutes Improvements to the Water and Sewer Utility within the meaning and contemplation of the Bond Resolution. (C) It is necessary and in the best interests of the Issuer to construct the 2006 Project. (D) The Issuer is authorized under the Act and the Bond Resolution to issue the Series 2006 Note as Additional Bonds to finance the 2006 Project. (E) The 2006 Note will not be issued unless the requirements of Section 207 of the Bond Resolution are satisfied on or prior to the issuance of the Series 2006 Note and upon issuance in accordance with the terms hereof, the Series 2006 Note will constitute Additional Bonds under the Bond Resolution entitled to all the benefits and security thereof on a parity with any Outstanding Series 1992 Bonds and Series 1996 Bonds and any Additional Bonds hereafter issued in accordance with the terms of the Bond Resolution. (F) The Issuer desires to qualify the Series 2006 Note for the exception contained in Section 265(b)(3) of the Code to the provisions contained in Section 265(b) of the Code which deny financial institutions any deduction for interest expense allocable to tax-exempt obligations acquired after August 7, 1986, and to designate the Series 2006 Note for the purpose of qualifying for such exception. (G) Because of the characteristics of the Series 2006 Note, prevailing market conditions, and additional savings to be realized from an expeditious sale of the Series 2006 Note, it is in the best interest of the Issuer to sell the Series 2006 Note to the Original Purchaser at a private negotiated sale. Prior to the issuance of the Series 2006 Note, the Issuer shall receive from the Original Purchaser a Purchaser's Certificate, the form of which is attached hereto as Exhibit B and a Disclosure Letter containing the information required by Section 218.385, Florida Statutes, the form of which is attached hereto as Exhibit C. f 4415/03/00066689.DOCv3} Temp Reso #11004 - July 5, 2006 Page 4 Revision #1 July 7, 2006 SECTION 4. IN5TRLJMENT TO CONSTITUTE A CONTRACT; COVENANTS IN BOND RESOLUTION APPLICABLE. In consideration of the acceptance of the Series 2006 Note authorized to be issued hereunder by the registered owner thereof from time to time, the Bond Resolution, including this 2006 Supplemental Resolution, shall be deemed to be and shall constitute a contract between the Issuer and the registered owner of the Series 2006 Note. The covenants and agreements set forth herein and in the Bond Resolution to be performed by the Issuer shall be for the equal benefit, protection and security of the registered owners of the Series 2006 Note and the Series 2006 Note shall be of equal rank with all other Bonds issued and outstanding under the Bond Resolution, without preference or priority of any over any other thereof. All covenants contained in the Bond Resolution shall be fully applicable to the Series 2006 Note as if originally issued thereunder. SECTION 5. AUTHORIZATION OF CONSTRUCTION OF THE 2006 PROJECT. The construction of the 2006 Project in accordance with the plans and specifications therefor on file with the Issuer is hereby authorized and approved. SECTION 6. AUTHORIZATION OF SERIES 2006 NOTE. Subject and pursuant to the provisions hereof, an obligation of the Issuer to be known as the "City of Tamarac, Florida Water and Sewer Utility Revenue Note, Series 2006" is authorized to be issued in the original aggregate principal amount of not to exceed $7,000,000. The Series 2006 Note shall constitute Additional Bonds under the Bond Resolution and all covenants contained in the Bond Resolution shall be applicable to such Series 2006 Note. SECTION 7. _DESCRIPTION OF SERIES 2006 NQTE. The. Series 2006 Note shall be originally issued in a single denomination equal to the original principal amount thereof, shall be dated the date its original execution and delivery, shall have a fixed rate of interest equal to 79.7% of the seven-year Treasury rate, determined two Business Days prior to the issuance thereof, calculated on a 30/360-day basis (subject to adjustment as described below), shall be issued in a principal amount not to exceed $7,000,000 and shall have a final maturity date of October 1, 2013. Interest on the Series 2006 Note shall be payable semiannually in arrears on April 1 and October 1 of each year, commencing April 1, 2007. The interest rate on the Series 2006 Note shall be adjusted as provided in the form of the Series 2006 Note attached hereto as Exhibit D; provided, however, that in no event shall such interest rate exceed the maximum interest rate permitted by applicable law. The principal of the Series 2006 Note shall be amortized, in order to achieve substantially equal annual debt service, payable on October 1 of each year, commencing October 1, 2008. The Series 2006 Note shall be subject to prepayment prior to maturity as provided in the form of the Series 2006 Note. The Series 2006 Note shall be in substantially the form attached hereto as Exhibit D, subject to such changes as shall be approved by the Mayor and as shall not be inconsistent with the terms provided herein, such approval to be conclusively evidenced by the execution thereof by the Mayor. {4415/03/00066689.DOCO) Temp Reso #11004 - July 5, 2006 Page 5 Revision #1 July 7, 2006 The Series 2006 Note shall be executed on behalf of the Issuer with the manual signature of the Mayor and the City Manager and the Series 2006 Note shall be attested with the manual signature of the City Clerk and shall be approved as to form by the manual signature of the City Attorney. The official seal of the Issuer shall be impressed on the Series 2006 Note. In case any one or more of the officers who shall have signed or sealed the Series 2006 Note shall cease to be such officer of the Issuer before the Series 2006 Note so signed and sealed have been actually sold and delivered, such Series 2006 Note may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such Series 2006 Note had not ceased to hold such office. The Series 2006 Note may be signed and sealed on behalf of the Issuer by such person who at the actual time of the execution of the Series 2006 Note shall hold the proper office of the Issuer, although, at the date of the Series 2006 Note, such person may not have held such office or may not have been so authorized. SECTION 8. REGISTRATION AND EXCHANGE OF„5ERIES,..,2006 NOTE; PERSONS TREATED AS OWNERS. The Series 2006 Note will initially be registered to the Original Purchaser. So long as the Series 2006 Note shall remain unpaid, the Issuer will keep books for the registration and transfer of the Series 2006 Note. The Series 2006 Note shall be transferable only upon such registration books and in Authorized Denominations. The Director of Financial Services shall be the Bond Registrar and Paying Agent for the Series 2006 Note. The person in whose name a Series 2006 Note shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of principal and interest on such Series 2006 Note shall be made only to or upon the written order of the registered owner. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Series 2006 Note to the extent of the sum or sums so paid. SECTION 9. PAYMENT OF PRINCIPAL AND INTEREST: LIMITED OBLIGATION. The Issuer promises that it will promptly pay the principal of and interest on the Series 2006 Note at the place, on the dates and in the manner provided therein according to the true intent and meaning hereof and thereof. The Series 2006 Note shall not be or constitute a general obligation or indebtedness of the Issuer as 'bonds" within the meaning of Article VIL Section 12 of the Constitution of Florida, but shall be payable solely from the Revenues in accordance with the terms of the Bond Resolution, on parity with any Outstanding Series 1992 Bonds and Series 1996 Bonds and any Additional Bonds hereafter issued in accordance with the terms of the Bond Resolution. No holder of any Series 2006 Note issued hereunder shall ever have the right to compel the exercise of any ad valorem taxing power to pay such Series 2006 Note, or be entitled to payment of such Series 2006 Note from any funds of the Issuer except from the Revenues as described in the Bond Resolution. SECTION 10. DECLARATION OF INTENT. The Issuer hereby expresses its intention to be reimbursed from proceeds of the Series 2006 Note for capital expenditures to be (4415/03/00066689.DOCv3) Temp Reso #11004 - July 5, 2006 Page 6 Revision #1 July 7, 2006 paid by the Issuer in connection with the incurrence of debt for the purpose of constructing the 2006 Project. Pending reimbursement, the Issuer expects to use funds on deposit in the water and sewer enterprise fund to pay such costs including but not limited to capital expenditures, costs of design and engineering, and other costs associated with the incurrence of debt. It is reasonably expected that the total amount of debt to be incurred by the Issuer with respect to the 2006 Project will not exceed $7,000,000. This 2006 Supplemental Resolution is intended to constitute a "declaration of official intent" within the meaning of Section 1.150-2 of the Income Tax Regulations which were promulgated pursuant to the Code, with respect to the debt incurred, in one or more financings, to finance the 2006 Project. SECTION 11. APPLICATION OF SERIES 2006 NOTE PROCEEDS. The proceeds received from the sale of the Series 2006 Note shall be applied by the Issuer simultaneously with the delivery of such Series 2006 Note to the Original Purchaser, as follows: (A) An amount which, together with other funds of the Issuer provided for such purpose and amounts then on deposit in the Reserve Account created pursuant to the Bond Resolution, is equal to the Reserve Account Requirement following the issuance of the Series 2006 Note shall be deposited in the Reserve Account to be held by a Depository. Such amount shall be invested in accordance with the requirements of the Bond Resolution. (B) A sufficient amount of the Series 2006 Note proceeds to pay the costs and expenses, including legal and financial advisory fees and expenses, relating to the issuance of the Series 2006 Note shall be deposited in the 2006 Construction Account hereafter established, shall be invested in accordance with the requirements of the Bond Resolution, and shall be applied by the Issuer to pay such costs of issuance. (C) The remaining proceeds of the Series 2006 Note shall be deposited into the "2006 Construction Account" which is hereby created and established as a special account in the Construction Fund established pursuant to the Bond Resolution and shall be used for the purpose of paying Costs of the 2006 Project and shall be disbursed from the Construction Fund as provided in the Bond Resolution. The 2006 Construction Account shall be held by a Depository and shall be invested in accordance with the requirements of the Bond Resolution. SECTION 12. DESIGNATION OF SERIES 2006 NOTE. The Issuer hereby designates the Series 2006 Note as a "qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Code. The Issuer and any issuer of "tax-exempt" debt that issues "on behalf of" the Issuer do not reasonably expect during the calendar year 2006 to issue more than $10,000,000 of "tax-exempt" obligations including the Series 2006 Note, 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). {4415/03/00066689.DOCv3} 1 Temp Reso #11004 - July 5, 2006 Page 7 Revision #1 July 7, 2006 SECTION 13. COVENANTS OF THE ISSUER. (A) For all purposes of the Bond Resolution (including, but not limited to, all covenants thereof concerning rates, the issuance of Additional Bonds and the application Available Impact Fees), the Issuer covenants that it will use, apply and take into account Available Impact Fees only to the extent and in a manner that is then legally permissible and as is consistent with the legally permissible uses and application of Available Impact Fees. (B) The Issuer covenants that the Issuer will not make any use of the proceeds of the Series 2006 Note at any time during the term of the Series 2006 Note which, if such use had been reasonably expected on the date the Series 2006 Note was issued, would have caused the Series 2006 Note to be an "arbitrage bond" within the meaning of the Code. The Issuer will comply with all requirements of the Code and any valid and applicable rules and regulations promulgated thereunder necessary to ensure the exclusion of interest on the Series 2006 Note from the gross income of the owners thereof for federal income tax purposes. (C) The Issuer hereby agrees to provide the Owner with its audited financial statements within 270 days of the end of each Fiscal Year. SECTION 14. GENERAL AUTHORITY; BUDGET ADJUSTMENTS. (A) The members of the City Commission of the Issuer, the City Manager, the City Attorney, the Director of Financial Services and all others of the Issuer's officers, attorneys and other agents and employees are hereby authorized to perform all acts and things required of them by this 2006 Supplemental Resolution or desirable or consistent with the requirements hereof for the full, punctual and complete performance of all of the terms, covenants and agreements contained in the Series 2006 Note and this 2006 Supplemental Resolution, and they are hereby authorized to execute and deliver all documents which shall be required by Bond Counsel or the initial purchasers of the Series 2006 Note to effectuate the sale of the Series 2006 Note to said initial purchasers. (B) The Director of Financial Services or his designee is hereby authorized and empowered to make all budget adjustments to effectuate the intent of this 2006 Supplemental Resolution. SECTION 15. NO THIRD PARTY BENEFICIARIES. Except such other persons as may be expressly described herein or in the Series 2006 Note, nothing in this 2006 Supplemental Resolution, or in the Series 2006 Note, expressed or implied, is intended or shall be construed to confer upon any person, other than the Issuer and the registered owners of the Series 2006 Note (including, but not limited to the Original Purchaser), any right, remedy or claim, legal or equitable, under and by reason of this 2006 Supplemental Resolution or any provision hereof, or of the Series 2006 Note, all provisions hereof and thereof being intended to be and being for the {4415/03/00066689.DOCv3} Temp Reso #11004 - July 5, 2006 Page 8 Revision #1 July 7, 2006 sole and exclusive benefit of the Issuer and the persons who shall from time to time be the registered owners of the Series 2006 Note. SECTION 16. NO PERS NAL LIABILITY. Neither the members of the City Commission of the Issuer, the City Manager nor any person executing the Series 2006 Note shall be personally liable therefor or be subject to any personal liability or accountability by reason of the issuance thereof. SECTION 17. SEVERABILITY. If any one or more of the covenants, agreements or provisions of this 2006 Supplemental Resolution should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid or shall in any manner be held to adversely affect the validity of the Series 2006 Note, then such covenants, agreements or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions of this 2006 Supplemental Resolution or of the Series 2006 Note issued hereunder. SECTION 18. REPEAL OF INCONSISTENT INSTRUMENTS. All resolutions or parts thereof, in conflict herewith are hereby repealed to the extent of such conflict. [Remainder of page intentionally left blank] {4415/03/00066689.DOCv3J C 1 Temp Reso #11004 - July 5, 2006 1 1 1 Page 9 Revision #1 July 7, 2006 SECTION 19. EFFECTIVE DATE. The provisions of this 2006 Supplemental Resolution shall take effect immediately upon its passage. PASSED AND ADOPTED this 121h day of July, 2006. (SEAL) ATTEST: MARION SW NSON, CMC - CITY CLERK I HEREBY CERTIFY that I have approved this RESOLUTION as to form. - 40 SAMUEL S. GORVfi CITY ATTORN CITY OF TAMARAC, FLORIDA Beth Flansbaum-Talabisco Mayor RECORD OF COMMISSION VOTE: MAYOR FLANSBAUM-TALABISCO Atp DIST 1: V/M PORTNER DIST 2: COMM ATKINS-GRAD rTUP DIST 3: COMM. SULTANOF ZJA DIST 4: COMM. DRESSLER {4415/03/00066689.DOCv3} Temp Reso #11004 - July 5, 2006 Page 10 Revision #1 July 7, 2006 EXHIBIT A DESCRIPTION OF 2006 PROJECT Improvements, including without limitation, a utility administration building to be constructed on land owned by the Issuer, including furniture, fixtures, equipment and site improvement. (4415/03/00066689.DOCv3} Ternp Reso #11004 - July 5, 2006 Page 11 Revision #1 July 7, 2006 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 Water and Sewer Utility Revenue Note, Series 2006 (the "Series 2006 Note"), and no inference should be drawn that the Purchaser, in the acceptance of said Series 2006 Note, is relying on Bryant Miller Olive ("Note Counsel") or, Goren, Cherof, Doody & Ezrol, P.A., ("Issuer's Counsel") as to any such matters other than the legal opinions rendered by Note Counsel and Issuer Counsel. Any capitalized undefined terms used herein not otherwise defined shall have the meaning set forth in Resolution No. R-85-436, adopted by the Issuer on December 10, 1985, as amended and supplemented and particularly as supplemented by Resolution No. R-2006- adopted by the Issuer on July -, 2006 (collectively, the "Resolution"). We acknowledge and understand that the Bond 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, Note Counsel nor Issuer's Counsel shall have any obligation to effect any such registration or qualification. We are not acting as a broker or other intermediary, and are purchasing the Series 2006 Note 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 Series 2006 Note may not be transferred unless in accordance with the restrictions set forth in the Series 2006 Note, or in a denomination less than $100,000 under any circumstance. We are a national bank. We are not purchasing the Series 2006 Note 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. (4415/03/00066689.DOCv3} Temp Reso #11004 - July 5, 2006 Page 12 Revision #1 July 7, 2006 DATED this _ day of , 2006. BANK OF AMERICA, N.A. Bv: Name: Holly Kuhlman Its: Senior Vice President {4415/03/00066689.DDCv3) Temp Reso #11004 - July 5, 2006 Page 13 Revision #1 July 7, 2006 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 Water and Sewer Utility Revenue Note, Series 2006 (the "Series 2006 Note") in the principal amount of $ Prior to the award of the Series 2006 Note, 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 "Bank") in connection with the issuance of the Series 2006 Note (such fees and expenses to be paid by the Issuer): Moyle, Flannigan, Katz, Raymond & Sheehan, P.A., Bank Counsel $3,500 2. (a) No other fee, bonus or other compensation is estimated to be paid by the Bank in connection with the issuance of the Series 2006 Note to any person not regularly employed or retained by the Bank (including any "finder" as defined in Section 218.386(1)(a), Florida Statutes), except as specifically enumerated as expenses to be incurred by the Bank, as set forth in paragraph (1) above. (b) No person has entered into an understanding with the Bank, or to the knowledge of the Bank, 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 Bank or to exercise or attempt to exercise any influence to effect any transaction in the purchase of the Series 2006 Note. 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 Series 2006 Note is being issued primarily to finance the construction of improvements to the Issuer's Water and Sewer Utility (as such term is defined in the hereinafter described Bond Resolution). Unless earlier redeemed, the Series 2006 Note is expected to be repaid at the end of approximately — years. Total interest paid over the life of the Series 2006 Note is estimated to be $ 14415/03/00066689.DOCv3} Temp Reso #11004 - July 5, 2006 Page 14 Revision #1 July 7, 2006 The Series 2006 Note will be payable solely from Revenues in the manner and to the extent as described in Resolution No. R-85-436, adopted by the Issuer on December 10, 1985, as amended and supplemented and particularly as supplemented by Resolution No. R-2006-_ adopted by the Issuer on July --, 2006 (collectively, the "Resolution"). See the Bond Resolution for a definition of Revenues. Based on the above assumptions, issuance of the Series 2006 Note is estimated to result in maximum of approximately $ of Revenues of the Issuer not being available to finance other services of the Issuer during the life of the Series 2006 Note. 6. The name and address of the Bank is as follows: Bank of America, N.A. 4501 Tamiami Trail North, Suite 400 Naples, Florida 34103 IN WITNESS WHEREOF, the undersigned has executed this Disclosure Statement on behalf of the Bank this — day of 2006. BANK OF AMERICA, N.A. By: Name: Holly Kuhlman Its: Senior Vice President 14415/03/00066689.DOCv3} Temp Reso #11004 - July 5, 2006 Page 15 Revision #1 July 7, 2006 EXHIBIT D [FORM OF SERIES 2006 NOTE] ANY OWNER SHALL, PRIOR TO BECOMING A REGISTERED OWNER, EXECUTE A PURCHASER'S CERTIFICATE IN THE FORM ATTACHED TO THE BOND RESOLUTION (HEREIN DEFINED) CERTIFYING, AMONG OTHER THINGS, THAT SUCH REGISTERED OWNER IS AN "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN THE SECURITIES ACT OF 1933, AS AMENDED, AND REGULATION D THEREUNDER. No. R-1 UNITED STATES OF AMERICA STATE OF FLORIDA COUNTY OF BROWARD CITY OF TAMARAC WATER AND SEWER UTILITY REVENUE NOTE, SERIES 2006 92 Dated: ___r 2006 Maturity Date: October 1, 2013 KNOW ALL MEN BY THESE PRESENTS that the City of Tamarac, Florida (hereinafter called the "Issuer") for value received, hereby promises to pay to the order of Bank of America, N.A., or registered assigns (hereinafter, the "Owner"), on or before the Maturity Date identified above, the Principal Amount identified above, together with interest on the principal balance at the rate per annum of % (as the same may be adjusted as described herein). Interest shall be paid semi-annually in arrears, on April 1 and October 1 of each year, commencing April 1, 2007, until the final maturity or earlier prepayment. Interest shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. All capitalized undefined terms used herein shall have the meanings ascribed thereto in the hereinafter defined Bond Resolution. Principal of and interest on this Series 2006 Note will be paid to the Owner hereof in lawful money of the United States of America at such place as the Owner may designate to the Issuer in writing, and shall be paid by wire transfer or in such other manner as the Issuer and the Owner may agree. Principal on this Series 2006 Note is payable in annual installments pursuant to the following schedule: 14415/03/00066689.DOCv3► Temp Reso #11004 -July 5, 2006 Page 16 Revision #1 July 7, 2006 Year Principal (October 1) Payment Amount The principal of and interest on this Series 2006 Note may be prepaid at the option of the Issuer in whole or in part at any time. In the event the Issuer shall make any optional prepayment, then the Issuer shall pay to the Owner, if a positive number, a prepayment premium equal to the amount determined by the Owner to be the amount equal to (x) the present value as of the prepayment date of the payments of principal and interest that would have been received with respect to the portion of this Series 2006 Note being prepaid using a discount rate of the interest rate on this Series 2006 Note being prepaid using a discount rate as of the prepayment date with such discount rate being 79.7% of the "ask -yield" on the non - callable United States Treasury obligation with a maturity closest to but not before the Maturity Date (if more than one is quoted, then the average), as quoted in The Wall Street Journal (or if not quoted or if misquoted there, then such other comparable source as selected by the Owner) on the day that is two Business Days prior to the prepayment date minus (y) the present value as of the prepayment date of the payments of principal and interest that would have been received with respect to the portion of this Series 2006 Note being prepaid using a discount rate of [fixed rate on note]. No notice of such prepayment shall be required. The registration of this Series 2006 Note may be transferred upon the registration books upon delivery to the principal office of the Bond Registrar designated by the Issuer, accompanied by a written instrument or instruments of transfer in form and with guaranty of signature satisfactory to the Bond Registrar, duly executed by the owner of this Series 2006 Note or by his attorney -in -fact or legal representative, containing written instructions as to the details of transfer of this Series 2006 Note, along with the social security number or federal employer identification number of such transferee. In all cases of a transfer of this Series 2006 Note, the Bond Registrar shall at the earliest practical time in accordance with the provisions of the Bond Resolution enter the transfer of ownership in the registration books and (unless uncertificated registration shall be requested and the Issuer has a registration system that will accommodate uncertificated registration) shall deliver in the name of the new transferee or transferees a new fully registered Series 2006 Note or Notes of the same maturity and of authorized denomination or denominations, for the same aggregate principal amount and payable from the same source of same aggregate principal amount and payable from the same source of funds. Neither the Issuer nor the Bond Registrar shall be required to register the transfer of any Series 2006 Note during the period commencing on the fifteenth (15th) day (whether or not a Business Day) of the month next preceding an interest payment date on this Series 2006 Note and ending on such [4415/03/00066689.DOCv3} Temp Reso #11004 - July 5, 2006 Page 17 Revision #1 July 7, 2006 interest payment date or, in the case of any proposed prepayment of this Series 2006 Note, after such Series 2006 Note or any portion thereof has been selected for prepayment. The Issuer and the Bond Registrar may charge the owner of such Series 2006 Note for the registration of every such transfer of a Series 2006 Note an amount sufficient to reimburse them for any tax, fee or any other governmental charge required (other than by the Issuer) to be paid with respect to the registration of such transfer, and may require that such amounts be paid before any such new Series 2006 Note shall be delivered. If the date for payment of the principal of, premium, if any, or interest on this Series 2006 Note shall be a day which is not a Business Day, but interest shall accrue until the principal is received by the Owner. 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 Series 2006 Note 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 hereto, and that the issuance of this Series 2006 Note does not violate any constitutional, statutory or charter limitation or provision. This Series 2006 Note is and has all the qualities and incidents of an investment security under the Uniform Commercial Code -Investment Securities Law of the State of Florida. All payments by the Issuer pursuant to this Series 2006 Note shall apply first to accrued interest and the balance thereof shall apply to principal. This Series 2006 Note and the interest hereon are payable exclusively from the special fund provided therefor from revenues of the water and sewer utility of the Issuer known as Tamarac Utility West (the "Utility") and other moneys pledged under Resolution No. R-85-436 adopted by the Issuer on December 10, 1985, as supplemented and amended (the "Bond Resolution"), such revenues and moneys being referred to herein as the "Pledged Revenues," all in the manner and to the extent provided in the Bond Resolution. This Series 2006 Note is payable under the Bond Resolution on a parity with the [City of Tamarac, Florida Water and Sewer Utility Revenue Refunding Bonds, Series 1992 (the "Series 1992 Bonds") and the City of Tamarac, Florida Taxable Water and Sewer Utility Revenue Refunding Bonds, Series 1996 (the "Series 1996 Bonds")]. This Series 2006 Note is issued as Additional Bonds under the Bond Resolution. Additional Bonds may be issued under the Bond Resolution on a parity with the Series 2005 Note, the Series 1992 Bonds and the Series 1996 Bonds upon compliance with certain provision of the Bond Resolution. Reference is made to the Bond Resolution for provisions, among others, relating to the terms, lien and security for this Series 2006 Note and the other Additional Bonds issued thereunder, the custody and application of proceeds of this Series 2006 Note, the rights and remedies of the owners of the Bonds, including this Series 2006 Note, the extent of and limitations on the Issuer's rights, duties and obligations, and the terms and 14415/03/00066689,DOCv3] Temp Reso #11004 - July 5, 2006 Page 18 Revision #1 July 7, 2006 conditions under which Additional Bonds may be issued on a parity herewith, to all of which provisions the Owner hereof assents by acceptance hereof. THIS SERIES 2006 NOTE SHALL NOT BE DEEMED TO CONSTITUTE A DEBT OR A PLEDGE OF THE FAITH AND CREDIT OF THE ISSUER, THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING OF ANY CONSTITUTIONAL, LEGISLATIVE OR CHARTER PROVISION OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE OWNER OF THIS SERIES 2006 NOTE THAT SUCH OWNER SHALL NEVER HAVE THE RIGHT, DIRECTLY OR INDIRECTLY, TO REQUIRE OR COMPEL THE EXERCISE OF THE AD VALOREM TAXING POWER OF THE ISSUER OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF FLORIDA OR TAXATION IN ANY FORM ON ANY REAL OR PERSONAL PROPERTY FOR THE PAYMENT OF THE PRINCIPLE OF, PREMIUM, IF ANY, AND INTEREST ON THIS SERIES 2006 NOTE OR FOR THE PAYMENT OF ANY OTHER AMOUNTS PROVIDED FOR IN THE BOND RESOLUTION. IT IS FURTHER AGREED BETWEEN THE ISSUER AND THE HOLDER OF THIS SERIES 2006 NOTE THAT THIS SERIES 2006 NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY SHALL NOT CONSTITUTE A LIEN UPON ANY REAL OR PERSONAL PROPERTY OF OR THE ISSUER, OR ANY PART THEREOF, OR ANY OTHER TANGIBLE PERSONAL PROPERTY OF OR IN THE ISSUER, BUT SHALL CONSTITUTE A LIEN ONLY ON THE PLEDGED REVENUES, ALL IN THE MANNER AND TO THE EXTENT PROVIDED IN THE BOND RESOLUTION. NEITHER THE MEMBERS OF THE GOVERNING BODY OF THE ISSUER NOR ANY PERSON EXECUTING THE BONDS SHALL BE LIABLE PERSONALLY ON THIS SERIES 2006 NOTE BY REASON OF ITS ISSUANCE. This Series 2006 Note is issued to finance the construction of certain improvements to the Utility, all in full compliance with the Constitution and Statutes of the State of Florida, including particularly the Constitution of the State of Florida, the Charter of the City of Tamarac, Florida, Chapter 166, Part I1, Florida Statutes and other applicable provisions of law (collectively, the "Act"), and is subject to all the terms and conditions of the Bond Resolution. If this Series 2006 Note shall not be "a qualified tax exempt obligation" as defined in Section 265(b)(3) of the Code then the Owner shall have the right to adjust the interest rate in order to maintain the same after-tax yield as if this Series 2006 Note were such "qualified tax exempt obligation'; provided, however, that in no event shall the interest payable hereon exceed the maximum rate of interest permitted under application law. As used herein "Determination of Taxability" shall mean that interest on the Series 2006 Note is determined or declared, by the Internal Revenue Service or a court of competent jurisdiction to be included in the gross income of the registered owner hereof for federal income tax purposes under the Code. Upon the occurrence of a Determination of Taxability, the interest rate on this Note shall be adjusted to a rate equal to 154% of the interest rate otherwise (4415/03/00066689.DOCv3} Temp Reso #11004 - July 5, 2006 Page 19 Revision #1 July 7, 2006 borne hereby (the "Adjusted Interest Rate") calculated on the basis of a 360-day year consisting of twelve months of thirty days each, as of and from the date such Determination of Taxability would be applicable with respect to this Series 2006 Note (the "Accrual Date"); and (i) the Issuer shall on the next interest payment date (or if this Series 2006 Note shall have matured, within 30 days after demand by the Owner) 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 Series 2006 Note at the Adjusted Interest Rate from the Accrual Date to such interest payment date (or payment date following such demand), and (B) the actual interest paid by the Issuer on this Series 2006 Note from the Accrual Date to such interest payment date (or payment date following such demand), 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 such Owner and/or former registered owner arising as a result of such Determination of Taxability; and (ii) from and after the date of the Determination of Taxability, this Series 2006 Note shall continue to bear interest at the Adjusted Interest Rate for the period such determination continues to be applicable with respect to this Series 2006 Note. This adjustment shall survive payment of this Series 2006 Note until such time as the federal statute of limitations under which the interest on this Series 2006 Note could be declared taxable under the Code shall have expired. In no event, however, shall interest be payable on this Series 2006 Note at a rate in excess of the maximum rate permitted by applicable law. This Series 2006 Note may be exchanged or transferred by the registered owner hereof but only upon the registration books maintained by the Issuer and in the manner provided in the Bond Resolution. It is certified that this Series 2006 Note is authorized by and is issued in conformity with the requirements of the Act and the Bond Resolution. [Remainder of page intentionally left blank] {4415/03/00066689.DOCv3) Temp Reso #11004 - July 5, 2006 Page 20 Revision #1 July 7, 2006 IN WITNESS WHEREOF, the City of Tamarac, Florida, has issued this Series 2006 Note and has caused the same to be signed by the Mayor and City Manager and countersigned and attested to by the City Clerk and its seal to be affixed, impressed, imprinted, lithographed or reproduced hereon, all as of the day of 2006. (SEAL) CITY OF TAMARAC, FLORIDA By: Mayor By: City Manager ATTESTED AND COUNTERSIGNED: APPROVED AS TO FORM: City Clerk City Attorney ASSIGNMENT FOR VALUE RECEIVED, the undersigned (the "Transferor"), hereby sells, assigns and transfers unto (the "Transferee") {4415/03/00066689.DOCv3} Temp Reso #11004 - July 5, 2006 Page 21 Revision #1 July 7, 2006 PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF TRANSFEREE THE WITHIN Bond and all rights there under, and hereby irrevocably constitutes and appoints _ as attorney to register the transfer of the within Bond on the books kept for registration and registration of transfer thereof, with full power of substitution in the premises. Date: Signature Guaranteed: NOTICE: Signature(s) must be guaranteed by a member firm of the New York Stock Exchange or a member firm of any other recognized national securities exchange or a commercial bank or a trust company. TRANSFEROR NOTICE: No transfer will be registered and no new Bond will be issued in the name of the Transferee, unless the signature(s) to this assignment correspond(s) with the name as it appears upon the face of the within Bond in ever particular, without alteration or enlargement or any change whatever and the Social Security or Federal Employer Identification Number of the Transferee is supplied. [End of Form of Series 2006 Note] (4415/03/00066689.DOCv3} CERTIFICATE AS TO PUBLIC MEETINGS AND NO CONFLICT 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 purchasers of the not to exceed $7,000,000 City of Tamarac, Florida Water and Sewer Utility Revenue Note, Series 2006 will have purchased said Bonds 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 Bonds, 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 any business entity which is purchasing the Bonds from the Issuer. IN WITNESS WHEREOF, we have hereunto affixed our of July, 2006. 1 signatures this 121" day 4(24 {4415/03/00067206.DOCv2)