Loading...
HomeMy WebLinkAboutCity of Tamarac Resolution R-2006-149Temp Reso #11012-July 28, 2006 Page 1 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2006-14q A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA AMENDING AND RESTATING RESOLUTION NO. R-2006-134 IN ITS ENTIRETY; AUTHORIZING THE ISSUANCE OF A CAPITAL IMPROVEMENT REVENUE NOTE, SERIES 2006 OF THE CITY IN THE PRINCIPAL AMOUNT OF NOT TO EXCEED $6,000,000 TO FINANCE THE COST OF CONSTRUCTING IMPROVEMENTS TO THE ISSUER'S WATER AND SEWER UTILITY; PROVIDING THAT THE NOTE SHALL BE A LIMITED OBLIGATION OF THE CITY PAYABLE FROM NON -AD VALOREM REVENUES BUDGETED AND APPROPRIATED AS PROVIDED HEREIN; PROVIDING FOR THE RIGHTS, SECURITIES AND REMEDIES FOR THE OWNER OF THE NOTE; MAKING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; 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-2006-134 on July 12, 2006 (the "Original Resolution"); and WHEREAS, based on further analysis of capital structure, existing reserves, outstanding indebtedness and existing bond covenants, it is in the best interest of the Issuer to revise its plan of finance; and WHEREAS, the City Commission of the Issuer desires to amend and restate the Original Resolution in its entirety; and WHEREAS, the Issuer desires to finance capital improvements to its Water and Sewer Utility, including without limitation, a utility administration building to be constructed on land owned by the Issuer, including furniture, fixtures, equipment and site improvement (the "2006 Project"); and WHEREAS, the Issuer desires to issue its Capital Improvement Revenue Note, Series 2006 (the "Series 2006 Note") in an original principal amount not to exceed $6,000,000 to finance the 2006 Project; and WHEREAS, as of July 12, 2006, the Issuer desires to establish its intent to reimburse certain capital expenditures with proceeds of the Note; and (4415/03/ 00067895 D 0 CIA) 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 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 City of Tamarac, Florida, Chapter 166, Part II, Florida Statutes, and other applicable provisions of law (collectively, the "Act"). Section 2: Definitions. The following words and phrases shall have the following meanings when used herein: "Act" shall have the meaning ascribed thereto in Section 1 hereof. "Business Day" means any day except any Saturday or Sunday or day on which the Principal Office of the Original Purchaser is lawfully closed. "City Attorney" means the City Attorney of the Issuer, or any assistant or deputy City Attorney. "City Manager" means the City Manager or assistant, deputy, interim or acting City Manager of the Issuer. "Clerk" means the City Clerk or assistant or deputy City Clerk of the Issuer. "Code" means the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder. "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. {4415/03/00067895.DOCv4} 2 "Director of Financial Services" means the Director of Financial Services or any assistant or deputy Director of Financial Services of the Issuer. "Fiscal Year" shall mean the period commencing on October 1 of each year and continuing through the next succeeding September 30, or such other period as may be prescribed by law. Florida. "Issuer" means the City of Tamarac, Florida, a municipal corporation of the State of "Maturity Date" means October 1, 2013. "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. "Mayor" means the Mayor or Vice Mayor of the Issuer. "Non -Ad Valorem Revenues" means all revenues of the Issuer not derived from ad valorem taxation, and which are lawfully available to be used to pay debt service on the Note. "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. "Note" means the Capital Improvement Revenue Note, Series 2006 of the Issuer authorized by Section 4 hereof. "Original Purchaser" means Bank of America, N.A. "Owner" or "Owners" means the Person or Persons in whose name or names a Note shall be registered on the books of the Issuer kept for that purpose in accordance with provisions of this Resolution. "Person" means natural persons, firms, trusts, estates, associations, corporations, partnerships and public bodies. "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 this Resolution. {4415/03/00067895.DOCv4} 3 "Pledged Revenues" means the Non -Ad Valorem Revenues budgeted and appropriated as provided herein and the proceeds of any indebtedness incurred for the purpose of refinancing the Note. "Principal Office" means, with respect to the Original Purchaser, the office located at 4501 Tamiami Trail North, Suite 400, Naples, Florida 34103, or such other office as the Original Purchaser may designate to the Issuer in writing. "2006 Project" has the meaning ascribed thereto above. "Project Fund" means the Project Fund established with respect to the Note pursuant to Section 9 hereof. "Resolution" means Resolution No. R-2006-134 adopted by the City Commission of the Issuer on July 12, 2006, as amended and restated in its entirety by this Resolution, pursuant to which the Note is authorized to be issued, including any supplemental resolution(s). "State" means the State of Florida. Section 3: Findin s. (A) For the benefit of its inhabitants, the Issuer finds, determines and declares that it is necessary for the continued preservation of the welfare and convenience of the Issuer and its inhabitants to construct the 2006 Project. Issuance of the Note to finance the 2006 Project satisfies a public purpose. (B) Debt service on the Note will be secured by a covenant to budget and appropriate Non -Ad Valorem Revenues as provided herein. The Pledged Revenues will be sufficient to pay the principal and interest on the Note herein authorized, as the same become due, and to make all deposits required by this Resolution. (C) The Issuer has received an offer from the Original Purchaser to purchase the Note. (D) In consideration of the purchase and acceptance of the Note authorized to be issued hereunder by those who shall be the Owner thereof from time to time, this Resolution shall constitute a contract between the Issuer and the Owner. (E) As of July 12, 2006, the Issuer desires to qualify the 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 Note for the purpose of qualifying for such exception. 14415/03/00067895.DOCv4} 4 Section 4: Authorization of Note and 2006 Project. Subject and pursuant to the provisions of this Resolution, an obligation of the Issuer to be known as City of Tamarac, Florida, Capital Improvement Revenue Note, Series 2006 (the 'Note") is hereby authorized to be issued under and secured by this Resolution, in the principal amount of not to exceed $6,000,000 for the purpose of providing funds to finance and pay the costs of the 2006 Project and paying the costs of issuing the Note. The 2006 Project is hereby authorized. Because of the characteristics of the Note, prevailing market conditions, and additional savings to be realized from an expeditious sale of the Note, it is in the best interest of the Issuer to accept the offer of the Original Purchaser to purchase the Note at a private negotiated sale, which was based upon a competitive selection process. Prior to the issuance of the Note, the Issuer shall receive from the Original Purchaser a Purchaser's Certificate, the form of which is attached hereto as Exhibit B and the Disclosure Letter containing the information required by Section 218.385, Florida Statutes, a form of which is attached hereto as Exhibit C. Section 5: Description of Note. The Note shall be dated the date of its execution and delivery, which shall be a date agreed upon by the Issuer and the Original Purchaser, subject to the following terms: (A) Interest Rate. The Note 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 in the Note), and shall have a final maturity date of October 1, 2013 as set forth in Exhibit A• provided, however, that such interest rate shall in no event exceed the maximum interest rate permitted by the Act. (B) Principal and Interest Payment Dates. Interest on the Note shall be paid semi- annually in arrears on each April 1 and October 1, commencing April 1, 2007. The principal of the Note shall be amortized, in order to achieve substantially equal annual debt service, payable on October 1 of each year, commencing October 1, 2008. (C) Prepayment of the Note. The Note shall be subject to prepayment prior to maturity as provided in the Note. (D) Form of the Note. The Note is to be in substantially the form set forth in Exhibit A attached hereto, together with such non -material changes as shall be approved by the Mayor, such approval to be conclusively evidenced by the execution thereof by the Mayor. The Note shall be executed on behalf of the Issuer with the manual signature of the Mayor and the City Manager and the official seal of the Issuer, 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. In case any one or more of the officers who shall have signed or sealed the Note or whose facsimile signature shall appear thereon shall cease to be such officer of the Issuer before the Note so signed and sealed has been actually sold and delivered, such Note may nevertheless be 14415/03/00067895.DQCv4} 5 sold and delivered as herein provided and may be issued as if the person who signed or sealed such Note had not ceased to hold such office. The Note may be signed and sealed on behalf of the Issuer by such person who at the actual time of the execution of such Note shall hold the proper office of the Issuer, although, at the date of such Note, 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 Note shall be actually sold and delivered. (E) Original Denomination. The Note shall originally be issued in a single denomination equal to the original principal amount authorized hereunder. Section 6: Registration and Exchange of Note,• Persons Treated as Owner. The Note is initially registered to the Original Purchaser. So long as the Note shall remain unpaid, the Issuer will keep books for the registration and transfer of the Note. The Note shall be transferable only upon such registration books. Notwithstanding anything herein to the contrary, the Original Purchaser may in the future make transfers or enter into participation agreements or securitization transactions with respect to the Note; provided, however, the Note must be in minimum denominations of $100,000 upon any such transaction. The Person in whose name the 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 Note shall be made only to or upon the written order of the Owner. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Note to the extent of the sum or sums so paid. Section 7: Payment of Principal and Interest, Limited Obligation. The Issuer promises that it will promptly pay the principal of and interest on the Note at the place, on the dates and in the manner provided therein according to the true intent and meaning hereof and thereof. To the extent any portion of the Note remains unpaid as of the Maturity Date, the Issuer covenants to use its best efforts to incur indebtedness to refinance the Note. The Note is secured by a pledge of and lien upon the Pledged Revenues in the manner and to the extent described herein. The Note shall not be or constitute a general obligation or indebtedness of the Issuer as a "bond" within the meaning of Article VII, Section 12 of the Constitution of Florida, but shall be payable solely from the Pledged Revenues in accordance with the terms hereof. No holder of any Note issued hereunder shall ever have the right to compel the exercise of any ad valorem taxing power to pay such Note, or be entitled to payment of such Note from any funds of the Issuer except from the Pledged Revenues as described herein. Section S: Covenant to Budget and Appro.priate. Subject to the next paragraph, the Issuer covenants and agrees to appropriate in its annual budget, by amendment, if necessary, from Non -Ad Valorem Revenues, amounts sufficient to pay principal of and interest on the Note not being paid from other amounts as the same shall become due. Such covenant and agreement on {4415/03/00067895.DOCv4} 6 the part of the Issuer to budget and appropriate such amounts of Non -Ad Valorem Revenues shall be cumulative to the extent not paid, and shall continue until such Non -Ad Valorem Revenues or other legally available funds in amounts sufficient to make all such required payments shall have been budgeted, appropriated and actually paid. No lien upon or pledge of such budgeted Non -Ad Valorem Revenues shall be in effect until such monies are budgeted and appropriated. The Issuer further acknowledges and agrees that the obligations of the Issuer to include the amount of any deficiency in payments in each of its annual budgets and to pay such deficiencies from Non -Ad Valorem Revenues may be enforced in a court of competent jurisdiction in accordance with the remedies set forth herein. Until such monies are budgeted and appropriated, such covenant to budget and appropriate does not create any lien upon or pledge of such Non -Ad Valorem Revenues, nor does it preclude the Issuer from pledging in the future its Non -Ad Valorem Revenues, nor does it require the Issuer to levy and collect any particular Non -Ad Valorem Revenues, nor does it give the holder of the Note a prior claim on the Non -Ad Valorem Revenues as opposed to claims of general creditors of the Issuer. Such covenant to budget and appropriate Non -Ad Valorem Revenues is subject in all respects to the prior payment of obligations secured by a pledge of such Non -Ad Valorem Revenues heretofore or hereafter entered into (including the payment of debt service on bonds and other debt instruments). Anything in this Resolution to the contrary notwithstanding, it is understood and agreed that all obligations of the Issuer hereunder shall be payable from the portion of Non -Ad Valorem Revenues budgeted and appropriated as provided for hereunder and nothing herein shall be deemed to pledge ad valorem tax revenues or to permit or constitute a mortgage or lien upon any assets owned by the Issuer and no holder of the Note nor any other person, may compel the levy of ad valorem taxes on real or personal property within the boundaries of the Issuer. Notwithstanding any provisions of this Resolution or the Note to the contrary, the Issuer shall never be obligated to maintain or continue any of the activities of the Issuer which generate user service charges, regulatory fees or any Non -Ad Valorem Revenues. Until such monies are budgeted and appropriated, neither this Resolution nor the obligations of the Issuer hereunder shall be construed as a pledge of or a lien on all or any legally available Non -Ad Valorem Revenues of the Issuer, but shall be payable solely as provided herein and is subject in all respects to the provisions of Section 166.241, Florida Statutes, and is subject, further, to the payment of services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of the Issuer. Section 9. Ai2nlicationot Proceeds of Note, Project Fund. At the time of delivery of the Note herein authorized, proceeds from the sale of the Note shall be used to finance and fund the 2006 Project and associated costs of issuance (including but not limited to legal and financial advisory fees and expenses) in accordance with the provisions in the next paragraph. The Issuer hereby covenants that it will establish with a depository in the State of Florida, which is a member of the Federal Deposit Insurance Corporation and which is eligible under the laws of the State of Florida to receive municipal funds, one fund to be known as the {4415/03/00067895.DOCv4} 7 "City of Tamarac, Florida, Capital Improvement Revenue Note, Series 2006, Project Fund" (the "Project Fund"). Proceeds from the sale of the Note herein authorized shall be deposited into the Project Fund and shall be used as described above. When the construction of the 2006 Project has been completed and all construction costs have been paid in full, all funds remaining in the Project Fund shall be used to prepay all or a portion of the Note pursuant to Section 5(c) hereof. All moneys deposited in said Project Fund shall be and constitute a trust fund created for the purposes stated, and there is hereby created a lien upon such fund in favor of the holders of the Note until the moneys thereof shall have been applied in accordance with this Resolution. The funds and accounts created and established by this Resolution shall constitute trust funds for the purpose provided herein for such funds. All of such funds, except as hereinafter provided, shall be continuously secured in the same manner as municipal deposits of funds are required to be secured by the laws of the State of Florida. Moneys on deposit to the credit of all funds and account created hereunder may be invested pursuant to applicable law and the Issuer's investment policy and shall mature not later than the dates on which such moneys shall be needed to make payments in the manner herein provided. The securities so purchased as an investment of funds shall be deemed at all times to be a part of the account from which the said investment was withdrawn, and the interest accruing thereon and any profit realized therefrom shall be credited to such fund or account, except as expressly provided in this Resolution, and any loss resulting from such investment shall likewise be charged to said fund or account. Notwithstanding the foregoing, to the extent proceeds from the sale of the Note are so invested and no cash is remaining, the Project Fund shall then constitute all such investments and the above -described depository account shall not be established. Section 10: Amendment. This Resolution shall not be modified or amended in any respect subsequent to the issuance of the Note except with the written consent of all of the Owners of the Note. Section 11: Limitation of Rights. With the exception of any rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Resolution or the Note is intended or shall be construed to give to any Person other than the Issuer and the Owner any legal or equitable right, remedy or claim under or with respect to this Resolution or any covenants, conditions and provisions herein contained; this Resolution and all of the covenants, conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the Issuer and the Owner. Section 12: Note Mutilated Destroyed, Stolen or Lost. In case the Note shall become mutilated, or be destroyed, stolen or lost, the Issuer shall issue and deliver a new Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in exchange and in substitution for such mutilated Note, or in lieu of and in substitution for the Note destroyed, stolen or lost and upon the Owner furnishing the Issuer proof of ownership thereof and indemnity reasonably 4415/03/00067895.DOCv4 f 8 satisfactory to the Issuer and complying with such other reasonable regulations and conditions as the Issuer may prescribe and paying such expenses as the Issuer may incur. The Note so surrendered shall be canceled. Section 13: Impairment of Contract. The Issuer covenants with the Owner of the Note that it will not, without the written consent of the Owner of the Note, enact any ordinance or adopt any resolution which repeals, impairs or amends in any manner adverse to the Owner the rights granted to the Owner of the Note hereunder. Section 14: Budget and Financial Information. The Issuer shall provide the Owner of the Note with such financial information regarding the Issuer as the Owner of the Note may reasonably request. The Issuer hereby covenants that it shall promptly give written notice to the Owner of the Note of any litigation or proceeding which if determined adversely to the Issuer would adversely affect the security for the payment of the Note. Not later than 270 days after the close of each Fiscal Year, the Issuer shall provide the Owner of the Note with its Comprehensive Annual Financial Report including annual financial statements for each fiscal year of the Issuer, prepared in accordance with applicable law and generally accepted accounting principles and audited by an independent certified public accountant. All accounting terms not specifically defined or specified herein shall have the meanings attributed to such terms under generally accepted accounting principles as in effect from time to time, consistently applied. Section 15: Events of Default, Remedies of Noteholder. The following shall constitute "Events of Default": (i) if the Issuer fails to pay any payment of principal of or interest on any Note as the same becomes due and payable; (ii) if the Issuer defaults in the performance or observance of any covenant or agreement contained in this Resolution or the Note (other than set forth in (i) above) and fails to cure the same within thirty (30) days following notice thereof; or (iii) filing of a petition by or against the Issuer relating to bankruptcy, reorganization, arrangement or readjustment of debt of the Issuer or for any other relief relating to the Issuer under the United States Bankruptcy Code, as amended, or any other insolvency act or law now or hereafter existing, or the involuntary appointment of a receiver or trustee for the Issuer, and the continuance of any such event for 90 days undismissed or undischarged. Upon the occurrence and during the continuation of any Event of Default, the Owner of the Note may, in addition to any other remedies set forth in this Resolution or the Note, either at law or in equity, by suit, action, mandamus or other proceeding in any court of competent jurisdiction, protect and enforce any and all rights under the laws of the State, or granted or contained in this Resolution, and may enforce and compel the performance of all duties required by this Resolution, or by any applicable statutes to be performed by the Issuer or by any officer thereof. In case of an Event of Default, upon written declaration of the Owner the entire debt then remaining unpaid under the Note shall be immediately due and payable. From and after 14415/03/00067895.DOCv4 J 9 the occurrence of an Event of Default, at the demand of the Bank, the Note shall bear interest at the default rate provided therein. A late payment charge of 4% of any payment required on the Note shall be due with respect to any such payment not made within fourteen (14) days of its due date. Section 16: Anti -Dilution Test. 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 Owner of the Note 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 (B) the product of (I) 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 16, "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 16 may be amended, supplemented, or waived from time to time only with the prior written consent of the Owner of the Note. {4415/03/00067895.DOCv4} 10 Section 17: Declaration of Intent. As of July 12, 2006, the Issuer hereby expresses its intention to be reimbursed from proceeds of the Note for capital expenditures to be 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 $6,000,000. This 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 18: Designation of Note. The Issuer hereby designates the 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 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). Section 19: Severability. If any provision of this Resolution shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not affect any other provision herein or render any other provision (or such provision in any other context) invalid, inoperative or unenforceable to any extent whatever. Section 20: Business Days. In any case where the due date of interest on or principal of a Note is not a Business Day, then payment of such principal or interest need not be made on such date but may be made on the next succeeding Business Day, provided that credit for payments made shall not be given until the payment is actually received by the Owner. Section 21: Applicable Provisions of Law. This Resolution shall be governed by and construed in accordance with the laws of the State. Section 22: Rules of Interpretation. Unless expressly indicated otherwise, references to sections or articles are to be construed as references to sections or articles of this instrument as originally executed. Use of the words "herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter" and other equivalent words refer to this Resolution and not solely to the particular portion in which any such word is used. Section 23: Captions. The captions and headings in this Resolution are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Resolution. {4415/03/00067895.DOCv4) 11 Section 24: City Commission Members of the Issuer Exempt from Personal Liability. No recourse under or upon any obligation, covenant or agreement of this Resolution or the Note or for any claim based thereon or otherwise in respect thereof, shall be had against any City Commission member of the Issuer, as such, of the Issuer, past, present or future, either directly or through the Issuer it being expressly understood (a) that no personal liability whatsoever shall attach to, or is or shall be incurred by, the City Commission member of the Issuer, as such, under or by reason of the obligations, covenants or agreements contained in this Resolution or implied therefrom, and (b) that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such City Commission member of the Issuer, as such, are waived and released as a condition of, and as a consideration for, the execution of this Resolution and the issuance of the Note, on the part of the Issuer. Section 25: Authorizations; Budget Adjustments. (A) The Mayor and any member of the City Commission, the City Manager, the City Attorney, the City Clerk, Director of Financial Services and such other officials and employees of the Issuer as may be designated by the Issuer are each designated as agents of the Issuer in connection with the issuance and delivery of the Note and are authorized and empowered, collectively or individually, to take all action and steps and to execute all instruments, documents, and contracts on behalf of the Issuer that are necessary or desirable in connection with the execution and delivery of the Note, and which are specifically authorized or are not inconsistent with the terms and provisions of this Resolution. (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 Resolution. Section 26: Repealer. Resolution No. R-2006-134 previously adopted by the City Commission of the Issuer is hereby amended and restated in its entirety. All resolutions or parts thereof in conflict herewith are hereby repealed. Section 27: No Third Party Beneficiaries. Except such other persons as may be expressly described in this Resolution or in the Note, nothing in this Resolution or in the Note, expressed or implied, is intended or shall be construed to confer upon any person, other than the Issuer and the Owner, any right, remedy or claim, legal or equitable, under and by reason of this Resolution, or any provision thereof, or of the Note, all provisions thereof being intended to be and being for the sole and exclusive benefit of the Issuer and the Persons who shall from time to time be Owners. Section 28: Effective Date. The provisions of this Resolution shall take effect immediately upon its passage. [Remainder of page intentionally left blank] 14415/03/00067895.DOCv4j 12 1 1 PASSED AND ADOPTED this 23=d day of August, 2006. (SEAL) ATTEST: MARION SWENSON, CMC CITY CLERK I HEREBY CERTIFY that I have approved this RESOLUTION as to form. CITY OF TAM'AdYAC, FLORIDA X - W 6 Beth Flansbaum-Talabisco Mayor RECORD OF COMMISSION VOTE: MAYOR FLANSBAUM-TALABISCO DIST 1: V/M PORTNER DIST 2: COMM ATKINS-GRAD DIST 3: COMM. SULTANOF DIST 4: COMM. DRESSLER 14415/03/00067895.DOCv4l 13 EXHIBIT A [FORM OF NOTE] ANY OWNER SHALL, PRIOR TO BECOMING A REGISTERED OWNER, EXECUTE A _ PURCHASER'S CERTIFICATE IN THE FORM ATTACHED TO THE 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. UNITED STATES OF AMERICA STATE OF FLORIDA COUNTY OF BROWARD CITY OF TAMARAC CAPITAL IMPROVEMENT REVENUE NOTE, SERIES 2006 Dated: J 2006 Maturity Date: October 1, 2013 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 $ on the dates as hereinafter described, together with interest on the principal balance at the "Interest Rate" (hereinafter defined) calculated on a 30/360-day basis (subject to adjustment as described below); provided, however, that such interest rate shall in no event exceed the maximum interest rate permitted by applicable law. This Note shall have a final Maturity Date of October 1, 2013. The Interest Rate is % (as the same may be adjusted as described herein). Principal of and interest on this Note is payable in lawful money of the United States of America at such place as the Owner may designate to the Issuer in writing. Interest shall be payable to the Owner on each April 1 and October 1, commencing on April 1, 2007. Principal on this Note is payable in annual installments pursuant to the following schedule: 14415/03/00067895.DOCv4} Exhibit A-1 Year Principal October 1 Payment Amount The principal of and interest on this 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 Note being prepaid using a discount rate of the interest rate on this 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 loymal (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 Note being prepaid using a discount rate of [fixed rate on note]. No notice of such prepayment shall be required. If any date for the payment of principal and interest hereon shall fall on a day which is not a Business Day (as defined in the Resolution hereinafter defined) the payment due on such date shall be due on the next succeeding day which is a Business Day, but the Issuer shall not receive credit for the payment until it is actually received by the Owner. All payments by the Issuer pursuant to this Note shall apply first to accrued interest, then to other charges due the Owner, and the balance thereof shall apply to principal. THIS NOTE 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 HOLDER OF THIS NOTE THAT SUCH NOTEHOLDER 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 NOTE OR THE MAKING OF ANY OTHER PAYMENTS PROVIDED FOR IN THE RESOLUTION. This Note is issued pursuant to the Constitution and Statutes of the State of Florida, the Charter of the City of Tamarac, Florida, Chapter 166, Part II, Florida Statutes and Resolution No. R-2006-134 duly adopted by the Issuer on July 12, 2006, as amended and restated in its {4415/03/00067895.DOCv4) Exhibit A-2 entirety by Resolution No. R-2006- duly adopted by the Issuer on ; 2006 (herein referred to as the "Resolution"), and is subject to all the terms and conditions of the Resolution. All terms, conditions and provisions of the Resolution including, without limitation, remedies in the Event of Default are by this reference thereto incorporated herein as a part of this Note. Payment of the Note is secured by a covenant to budget and appropriate Non -Ad Valorem Revenues of the Issuer and a pledge of lien upon the Pledged Revenues, in the manner and to the extent described in the Resolution. Terms used herein in capitalized form and not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. If this 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 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 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 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 Note (the "Accrual Date"); and (i) the Issuer shall on the next interest payment date (or if this 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 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 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 Note shall continue to bear interest at the Adjusted Interest Rate for the period such determination continues to be applicable with respect to this Note. This adjustment shall survive payment of this Note until such time as the federal statute of limitations under which the interest on this Note could be declared taxable under the Code shall have expired. In no event, however, shall interest be payable on this Note at a rate in excess of the maximum rate permitted by applicable law. This Note may be exchanged or transferred by the Owner hereof but only upon the registration books maintained by the Issuer and in the manner provided in the Resolution. 14415/03/00067895. DOCv41 Exhibit A-3 Upon the occurrence of an Event of Default (as defined in the Resolution). the Owner may declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such default and acceleration, the Issuer shall also be obligated to pay as part of the indebtedness evidenced by this Note, 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. If any payment hereunder is not made within fourteen (14) days after it is due, then the Issuer shall also be obligated to pay as a part of the indebtedness evidenced by this Note a late payment fee in the amount of 4% of the amount of the late payment, which late payment shall be due and payable immediately. Interest at the lesser of the Interest Rate plus 4% 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. The Issuer to the extent permitted by law hereby waives presentment, demand, protest and notice of dishonor. This paragraph concerns the resolution of any controversies or claims between the Issuer and the Owner, whether arising in contract, tort, or by statute, that arise out of or relate to this Note (including any renewals, extensions or modifications) (collectively a "Claim"). The Issuer and the Owner by its acceptance of this Note and the benefits hereof, irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. It is hereby certified, recited and declared that all acts, conditions and prerequisites required to exist, happen and be performed precedent to and in the execution, delivery and the issuance of this Note do exist, have happened and have been performed in due time, form and manner as required by law, and that the issuance of this Note is in full compliance with and does not exceed or violate any constitutional or statutory limitation. (4415/03/00067895.DOCv4) Exhibit A-4 IN WITNESS WHEREOF, the City of Tamarac, Florida, has issued this Note and has caused the same to be signed by the Mayor and City Manager and countersigned and attested to by the City Clerk, approved as to form by the City Attorney and its seal to be affixed, impressed, imprinted, lithographed or reproduced hereon, all as of the day of , 2006. (SEAL) CITY OF TAMARAC, FLORIDA ::� I By: —394 Beth Flansbaum-Talabisco Mayor e J f y I Miller City Manager ATTESTED AND COUNTERSIGNED: APPROVED AS TO FORM: G Marion Swenson, 64C Sf uel S. Go1 City Clerk C Attorney t4415/03/00067895.DOCv4] Exhibit A-5 ASSIGNMENT FOR VALUE RECEIVED, the undersigned (the "Transferor"), hereby sells, assigns and transfers unto (the "Transferee") 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. 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. 14415/03/00067895.DC Cv4) Exhibit A-6 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, Capital Improvement Revenue Note, Series 2006 (the "Note"), and no inference should be drawn that the Purchaser, in the acceptance of said 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's Counsel. Any capitalized undefined terms used herein not otherwise defined shall have the meaning set forth in Resolution No. R-2006-134, adopted by the City Commission of the Issuer on July 12, 2006, as amended and restated in its entirety by Resolution No. R-2006-- adopted by the Issuer on August 23, 2006 (collectively, the "Resolution"). We are aware that investment in the Note involves various risks, that the Note is not a general obligation of the Issuer or payable from ad valorem tax revenues, and that the payment of the Note is secured solely from the sources described in the Resolution (the "Note Security"). We have made such independent investigation of the Note 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 Note and can bear the economic risk of our investment in the Note. 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. We are not acting as a broker or other intermediary, and are purchasing the 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 Note may not be transferred in a denomination less than $100,000 in any circumstances. 14415/03/00067895.DOCv4) Exhibit B-1 We are a bank, trust company, savings institution, insurance company, dealer, investment company, pension or profit-sharing trust, or qualified institutional buyer as contemplated by Section 517.061(7), Florida Statutes. We are not purchasing the 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. We are a national bank under the laws of the United States of America. DATED this __.. of 2006. BANK OF AMERICA, N.A. By: Name: Holly Kuhlman Its: Senior Vice President {4415/03/00067895.DOCv4} Exhibit B-2 EXHIBIT C FORM OF DISCLOSURE LETTER Following a competitive selection process, 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, Capital Improvement Revenue Note, Series 2006 (the "Note") in the principal amount of $ . Prior to the award of the 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 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 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: ►f�STr (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 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 Note is being issued primarily to finance the construction of improvements to the Issuer's Water and Sewer Utility. Unless earlier redeemed, the Note is expected to be repaid at the end of approximately years. Total interest paid over the life of the Note is estimated to be $ 14415/03/00067895.DOCv4) Exhibit C-1 The Note will be payable solely from a covenant to budget and appropriate from Non - Ad Valorem Revenues sufficient to make such payments, appropriated and deposited as described in Resolution No. R-2006-134 adopted by the Issuer on July 12, 2006, as amended and restated in its entirety by Resolution No. R-2006-_ adopted by the Issuer on August 23, 2006 (collectively, the 'Resolution"). See the Resolution for a definition of Non -Ad Valorem Revenues. Issuance of the Note 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 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 Letter on behalf of the Bank this day of r 2006. BANK OF AMERICA, N.A. By: Name: Holly Kuhlman Its: Senior Vice President {4415/03/00067895.DOCv4] Exhibit C-2 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 purchaser of the not to exceed $6,000,000 City of Tamarac, Florida Capital Improvement 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 Bank of America, N.A. which is the business entity purchasing the Bonds from the Issuer. IN WITNESS WHEREOF, we have hereunto affixed our offici signatures this 23rd day of August, 2006. YtY-Kvu S' V14 cam' 14415/03/00067206.DOCv3)