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HomeMy WebLinkAboutCity of Tamarac Resolution R-2006-150Temp Reso #11014-July 28, 2006 Page 1 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-2006-156 RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA PROVIDING FOR THE USE OF NOT TO EXCEED $1,400,000 OF LEGALLY AVAILABLE REVENUES AND NOT TO .EXCEED $5,500,000 OF LEGALLY AVAILABLE IMPACT FEES, EACH OF WHICH DERIVE FROM THE CITY OF TAMARAC, FLORIDA WATER AND SEWER UTILITY, TO PURCHASE CERTAIN FEDERAL SECURITIES TO BE DEPOSITED IN AN ESCROW ACCOUNT FOR THE PURPOSE OF LEGALLY DEFEASING AND PAYING THE DEBT SERVICE ON THE CITY'S WATER AND SEWER UTILITY REVENUE REFUNDING BONDS, SERIES 1992; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION OF AN ESCROW DEPOSIT AGREEMENT AND APPOINTING THE ESCROW HOLDER THEREUNDER; AUTHORIZING PUBLICATION OF A NOTICE OF DEFEASANCE; AUTHORIZING CERTAIN OTHER MATTERS IN CONNECTION THEREWITH; AND PROVIDING FOR SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, the City of Tamarac, Florida (the "City") has previously ,issued various series of its utility revenue bonds pursuant to Resolution No. R-85-436 adopted by the City Commission of the City on December 10, 1985, as amended and supplemented from time to time (the "Bond Resolution"); and WHEREAS, all capitalized undefined terms shall have the meanings ascribed thereto in the Bond Resolution; and WHEREAS, in particular, the City previously issued its Water and Sewer Utility Revenue Refunding Bonds, Series 1992 in the original principal amount of $13,125,000 (the "1992 Bonds") for the purpose of refunding certain outstanding obligations of the City; and WHEREAS, all of the 1992 Bonds are non -callable; and WHEREAS, all current payments, including any 'deficiencies for prior payments, required to be made pursuant to the Bond Resolution have been made in full and the City has complied with all the covenants and provisions of the Bond Resolution; and WHEREAS, based on the advice of its Financial Advisor, the City now desires to use certain legally available revenues which are on deposit in the Reserve Account and uncommitted water and sewer impact fees, all of which revenues and fees derive from the City's Water and Sewer Utility, to purchase a sufficient amount of Defeasance Obligations to be {4415/04/00068059.DOCv3) Temp Reso #11014-July 28, 2006 Page 2 deposited in an escrow account in order to legally defease and pay, as the same mature, the principal of and interest on the 1992 Bonds which are Outstanding (the "Defeased Bonds"); and WHEREAS, such funds to be set aside in such escrow account, when invested as contemplated in this Resolution, will be sufficient to pay the principal of and interest on the Defeased Bonds, as the same mature, and to make all other required deposits pursuant to the Bond Resolution; and WHEREAS, such legal defeasance is in the best interests of the City and its citizens and serves a paramount public purpose. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA AS FOLLOWS: SECTION 1: Authoritu. This Resolution is adopted pursuant to the Bond Resolution and 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: De 'nitions. Capitalized terms which are not otherwise defined herein shall have the meanings ascribed thereto in the Bond Resolution. SECTION 3: Covenants. The City hereby covenants and agrees to keep, perform and observe all of its agreements with respect to the Defeased Bonds expressed in the Bond Resolution which are to be kept, performed and observed by it on its part. SECTION 4: Escrow Deposit Agreement; Escrow Holder. The form of the Escrow Deposit Agreement by and between the City and the Escrow Holder, substantially in the form of Exhibit A attached hereto (the "Escrow Deposit Agreement"), is hereby approved, and the Mayor and the City Manager is hereby authorized to execute and deliver the Escrow Deposit Agreement on behalf of the City, and be attested with the signature of the City Clerk and shall be approved as to form by signature of the City Attorney with such changes, insertions, omissions and filling of blanks as may be approved by the Mayor and City Manager, such approval to be conclusively presumed by the delivery of such Escrow Deposit Agreement by the City. The Bank of New York Trust Company, N.A., Jacksonville, Florida, is hereby appointed Escrow Holder with respect to the legal defeasance of the Defeased Bonds. SECTION 5: Verification Agent. Causey Demgen & Moore Inc., a firm of independent certified public accountants, is hereby appointed verification agent (the "Verification Agent") with respect to the legal defeasance of the Defeased Bonds. SECTION 6•. urcaseo _ feased Obligations. On August 30, 2006 or on such other date ,e_. selected by the City Manager, subject to satisfaction of the conditions in Section 9 hereof, the {4415/04/00068059.DOCv3} Temp Reso #11014-July 28, 2006 Page 3 Director of Financial Services or his designee is hereby authorized to use not to exceed $1,400,000 of moneys on deposit in the Reserve Account and not to exceed $5,500,000 uncommitted water and sewer impact fees, each of which derive from the City's Water and Sewer Utility to (i) be deposited to the Escrow Holder for deposit in the escrow account established in the Escrow Deposit Agreement (the "Escrow Account") for the purpose of legally defeasing and paying the debt service of the 1992 Bonds, (ii) pay the related partial termination penalty in accordance with the Debt Service Forward Delivery Agreement dated April 30, 2004 between the City, Wachovia Bank, National Association and J.P. Morgan Trust Company, N.A., and (iii) pay transactional costs as described in Section 9 hereof. Conditioned upon such transfers being made and simultaneously therewith, the Director of Financial Services or his designee is authorized to arrange for the initial purchase of Defeasance Obligations, by the Escrow Holder with amounts on deposit in such Escrow Account, which are determined to be, based on the advice of the City's Financial Advisor, the most favorable economically to the City. Subject to any future directions to reinvest cash which is authorized in the Escrow Deposit Agreement, the Escrow Holder is hereby directed to initially hold any remaining amounts on deposit in such Escrow Account uninvested. SECTION 7: Conditions Precedent. Prior to the consummation of the legal defeasance of the Defeased Bonds, the City and the Escrow Holder shall receive an unqualified opinion from a nationally recognized bond counsel firm acceptable to the City to the effect that, in reliance upon the certification or opinion of the Verification Agent and covenants of the City, the right, title and interest of the Defeased Bondholders secured by the Bond Resolution in the revenues, funds and accounts therein mentioned shall thereupon cease, determine and become voice on that date without further action of the City. SECTION 8: Publication of Notice of DeLeasance. The City Clerk shall within thirty (30) days after such Defeasance Obligations shall have been deposited with the Escrow Holder cause a notice signed by the Director of Financial Services to be published in the City, and in a Daily Newspaper published in the Borough of Manhattan, City and State of New York, setting forth (a) a statement to the effect that the Defeased Bonds are to be paid at their respective maturities or mandatory redemption dates, as the case may be, (b) a description of the Defeasance Obligations so held by such Escrow Holder and (c) that the Bond Resolution has become voice in accordance with the provisions of Article X of the Bond Resolution. The form of such notice is attached hereto as Exhibit B. SECTION 9: Payment of Transactional Costs. From either or both of the sources described in Section 6 hereof, the Director of Financial Services or his designee is hereby authorized and directed to pay the costs associated with the legal defeasance of the Defeased Bonds, including but not limited to, bond counsel fees and expenses, financial advisor fees and expenses, the fees and expenses of the Escrow Holder and the Paying Agent for the Defeased Bonds, and the fees and expenses of the Verification Agent. Section 10: Severabilitu. If any provision of this Resolution shall be held or deemed to be 14415/04/00068059.DOCv3} Temp Reso #11014-July 28, 2006 Page 4 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 11: Applicable Provisions of Law. This Resolution shall be governed by and construed in accordance with the laws of the State. Section 12: 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 13: 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. Section 14: 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 Escrow Deposit Agreement, on the part of the Issuer. Section 15: Authorizations: Budget Adjustments. 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 Escrow Deposit Agreement, and which are specifically authorized or are not inconsistent with the terms and provisions of this Resolution. Section 16: Repealer. All resolutions or parts thereof in conflict herewith are hereby repealed. 14415/04/00068059.DOCv3) 1 Temp Reso #11014-July 28, 2006 Page 5 Section 17: No Third Party BPne 'ciaries. Except such other persons as may be expressly described in this Resolution or in the Escrow Deposit Agreement, nothing in this Resolution or in the Escrow Deposit Agreement, expressed or implied, is intended or shall be construed to confer upon any person, other than the Issuer, any right, remedy or claim, legal or equitable, under and by reason of this Resolution, or any provision thereof, or of the Escrow Deposit Agreement, all provisions thereof being intended to be and being for the sole and exclusive benefit of the Issuer. Section 18: Effective Date. The provisions of this Resolution shall take effect immediately upon its passage. [Remainder of page intentionally left blank] {4415/04/00068059.DOCv3) Temp Reso #11014-July 28, 2006 Page 6 PASSED AND ADOPTED this 23rd 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 TAMARAC, FLORIDA Avlo_a�"' % r - — A5�p 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 1 1 14415/04/00068059.DOCv3) Temp Reso #11014-July 28, 2006 Exhibit A Page 1 ESCROW DEPOSIT AGREEMENT THIS ESCROW DEPOSIT AGREEMENT, dated as of 2006, by and between the CITY OF TAMARAC, FLORIDA (the "City") and THE BANK OF NEW YORK TR JST COMPANY; N.A.,,a-national banking association, as Escrow Holder and its successors and assigns (the "Escrow Holder"); WITNESSETH: WHEREAS, the City, has previously issued various series of its utility revenue bonds pursuant to Resolution No. R-85-436 adopted by the City Commission of the City of Tamarac, Florida (the "Issuer") on December 10, 1985, as amended and supplemented from time to time (the 'Bond Resolution"); and WHEREAS, in particular, the City previously issued its Utility Revenue Refunding Bonds, Series 1992 in the original principal amount of $13,125,000 (the "Defeased Bonds") for the purpose of refunding certain outstanding obligations of the City; and WHEREAS, the City desires to legally defease and pay, as the same mature, the principal of and interest on the Defeased Bonds; and WHEREAS, the City has determined to provide for payment of the Total Debt Service of the Defeased Bonds by depositing with the Escrow Holder an amount which, together with investment earnings thereon, is at least equal to such Total Debt Service; and NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the City and the Escrow Holder agree as follows: SECTION 1. Definitions. As used herein, the following terms mean: (a) "Agreement" means this Escrow Deposit Agreement. (b) "Annual Debt Service" means the maturity value of the Defeased Bonds corning due in a particular year as shown on Schedule A attached hereto and made a part hereof, plus the fees and expenses of the Paying Agent (as herein defined) and the Escrow Holder coming due in a particular year as shown on Schedule B attached hereto and made a part hereof. (c) "Bond Resolution" has the meaning ascribed above. (d) "City" has the meaning ascribed above. {4415/04/00068061.DOCv3) Temp Reso #11014-July 28, 2006 Exhibit A Page 2 (e) "Defeasance Obligations" shall have the meaning ascribed to it in the Bond Resolution. (f) "Defeased Bonds" has the meaning ascribed above. (g) "Escrow Account" means the account hereby created and entitled Escrow Account established and held by the Escrow Holder pursuant to this Agreement in which cash and investments will be held for payment of Annual Debt Service as such becomes due and payable. (h) "Escrow Holder" means The Bank of New York Trust Company, N.A., having its designated corporate trust office in Jacksonville, Florida, and its successors and assigns. (i) "Total Debt Service" means, as of any date, the sum of the Annual Debt Service which remains unpaid. (j) "Verification Agent" means a firm of independent certified public accountants selected by the City. SECTION 2. Deposit of Funds. The City hereby deposits legally available moneys in the amount of $ of monies released from the Reserve Account established in the Bond Resolution and $ uncommitted water and sewer impact fees, each of which derive from the City's Water and Sewer Utility to be deposited with the Escrow Holder for deposit into the Escrow Account, in immediately available funds, which funds the Escrow Holder acknowledges receipt of, to be held in irrevocable escrow by the Escrow Holder separate and apart from other funds of the Escrow Holder and applied solely as provided in this Agreement. SECTION 3. Use and Investment of Funds. The Escrow Holder acknowledges receipt of the sum described in Section 2 and agrees: (a) to hold the funds and investments purchased pursuant to this Agreement in irrevocable escrow during the term of this Agreement for the sole benefit of the holders of the Defeased Bonds; (b) to immediately invest $ of such funds in the Defeasance Obligations to be placed in the Escrow Account set forth on Schedule B attached hereto and to hold such Defeasance Obligations plus $ of uninvested cash in accordance with the terms of this Agreement; (c) in the event the securities described on Schedule B cannot be purchased, substitute securities may be purchased with the consent of the City, but only upon receipt of verification from the Verification Agent that the Defeasance Obligations, the interest thereon, 14415/04/00068061. D O Cv 3} 2 Temp Reso #11014-July 28, 2006 Exhibit A Page 3 and the uninvested cash on deposit in the Escrow Account will not be less than the Total Debt Service, and only upon receipt of an opinion of Bryant Miller Olive that such securities constitute Defeasance Obligations for purposes of this Agreement, (d) there will be no investment of funds except as set forth in this Section. 3 and/or Section 5. The City represents that the Defeasance Obligations, the interest thereon, and the uninvested cash in the Escrow Account (i) are at least equal to the Total Debt Service as of the date of such deposit, and (ii) are sufficient to pay the Annual Debt Service as it becomes due. SECTION 4. Payment of Defeased Bonds and Expenses; Notices. (a) Defeased Bonds. On the dates and in the amounts set forth on Schedule A, the Escrow Holder shall transfer to , in its capacity as the Paying Agent for the Defeased Bonds (the "Paying Agent"), in immediately available funds solely from amounts available in the Escrow Account, a sum sufficient to pay that portion of the Annual Debt Service for the Defeased Bonds corning due on such dates, as shown on Schedule A. (b) Fees of Paying Agent and Escrow Holder. On the dates and in the amounts set forth in Section 12 hereof, the Escrow Holder shall transfer to the Paying Agent in immediately available funds, solely from amounts available in the Escrow Account, a sum sufficient to make the payments due on such dates as shown in Section 12 hereof. (c) Surplus. After making the payments from the Escrow Account described in Subsections 4(a) and 4(b) above, except as described in Section 3 and Section 5 hereof, the Escrow Holder shall retain in the Escrow Account any remaining cash in the Escrow Account in excess of the Total Debt Service until the termination of this Agreement pursuant to the terms of Section 13 hereof, and shall then immediately pay any remaining funds to the City. (d) Priority of Payments. The holders of the Defeased Bonds shall have an express first priority security interest in the funds and Defeasance Obligations in the Escrow Account until such funds and Defeasance Obligations are used and applied as provided in this Agreement as shown on Schedule_ A. SECTION 5. Future Substitution and Reinvestment. (a) Except as provided in Section 3 and/or this Section 5, the Escrow Holder shall have no power or duty to invest any funds held under this Agreement or to sell, transfer or otherwise dispose of or make substitutions of the Defeasance Obligations held hereunder. (b) At the written request of the City and upon compliance with the conditions hereinafter stated, the Escrow Holder shall sell, transfer or otherwise dispose of any of the {4415/04/00068061, DOCO) 3 Temp Reso #11014-July 28, 2006 Exhibit A Page 4 Defeasance Obligations acquired hereunder and shall substitute other Defeasance Obligations and reinvest any excess receipts in Defeasance Obligations. The City will not request the Escrow Holder to exercise any of the powers described in the preceding sentence in any manner which will cause interest on the Defeased Bonds to be included in the gross income of the holders thereof for purposes of federal income taxation. The transactions may be effected only if (i) the Verification Agent shall certify or opine in writing to the City and the Escrow Holder to the effect that the Defeasance Obligations, interest thereon, and cash remaining on hand in the Escrow Accounts after the transactions are completed will, assuming no reinvestment earnings, be not less than the Total Debt Service, to the effect that reinvestment in such Defeasance Obligations will not postpone the anticipated transfer of moneys pursuant to Section 4(a) and (b) hereof, and (ii) the City and the Escrow Holder shall receive an unqualified opinion from a nationally recognized bond counsel firm acceptable to the City to the effect that the transaction, in and by itself, will not cause interest on the Defeased Bonds to be included in the gross income of the holders thereof for purposes of federal income taxation and such substitution is in compliance with this Agreement. Subsection 4(c) above notwithstanding, uninvested cash which is certified or verified by the Verification Agent to not be necessary to pay the Total Debt Service when due which is caused by such substitution of Defeasance Obligations shall, as soon as practical, be paid to the City, and such funds shall thereafter be released from the liens created hereunder. (c) Notwithstanding any provision of this Agreement to the contrary, no forward purchase agreement relating to the future reinvestment of cash held hereunder shall be executed unless Moody's Investors Service, Inc. and Standard & Poor's Ratings Services, only to the extent that either has issued a rating with respect to the Defeased. Bonds, give written confirmation that they will not lower or withdraw its rating on the Defeased Bonds as a result of the City's execution of such forward purchase agreement. Such forward purchase agreement may only be entered in to if (i) the Verification Agent shall certify or opine in writing to the City and the Escrow Holder to the effect that the Defeasance Obligations to be delivered under such forward purchase agreement, the interest thereon, and the cash remaining on hand, assuming no reinvestment, will be not less . than the Total Debt Service, and that entering into such forward purchase agreement will not postpone the anticipated transfer of moneys pursuant to Section 4(a) and (b) hereof, (ii) the City shall receive an unqualified opinion from a nationally recognized bond counsel firm acceptable to the City to the effect that entering into such forward purchase agreement, in and by itself, will not cause interest on the Defeased Bonds to be included in the gross income of the holders thereof for purposes of federal income taxation and such forward purchase agreement is in compliance with this Agreement, (iii) the City receives an opinion from nationally recognized bankruptcy counsel that the Defeasance Obligations in the Escrow Account, and the payments to owners of the Defeased Bonds will not constitute assets of the supplier of the Defeasance Obligations and will not be subject to automatic stay in the event of bankruptcy and/or insolvency of such supplier, and (iv) such supplier must affirm in such forward supply agreement that it has no rights to or interests in the monies or Defeasance Obligations held in the Escrow Account. In the event of any inconsistency between (4415/04100068061. DOCv3) 4 Temp Reso #11014-July 28, 2006 Exhibit A Page 5 the terms and conditions of such forward purchase agreement and this Agreement, the terms and conditions of this Agreement shall control. SECTION 6. Redem lion or Acceleration of Maturi • Notice of Defeasance. The City will not accelerate the maturity of, or exercise any option to redeem before maturity, any Defeased Bonds. SECTION 7. Indemnity. To the extent permitted by law, the City hereby assumes liability for, and hereby agrees to indemnify, protect, save and keep harmless, the Escrow Holder and its respective successors, assigns, agents and servants, from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements (including reasonable legal fees and disbursements) of whatsoever kind and nature which may be imposed on, incurred by, or asserted against, at any time, the Escrow Holder (whether or not also indemnified against the same by the City or any other person under any other agreement or instrument) and in any way relating to or arising out of the execution and delivery of this Agreement, the establishment of the Escrow Account established hereunder, the acceptance of the funds and securities deposited therein, the purchase of the Defeasance Obligations, the retention of the Defeasance Obligations or the proceeds thereof and any payment, transfer or other application of funds or securities by the Escrow Holder in accordance with the provisions of this Agreement; provided, however, that the City shall not be required to indemnify the Escrow Holder against its own negligence or willful misconduct. In no event shall the City be liable to any person by reason of the transactions contemplated hereby other than to the Escrow Holder as set forth in this Section 7. The indemnities contained in this Section 7 shall survive the termination of this Agreement. Except with respect to its own gross negligence or willful misconduct, the Escrow Holder shall not be liable for any deficiencies in the amounts necessary to pay the Total Debt Service. Furthermore, the Escrow Holder shall not be liable for the accuracy of the calculation as to the sufficiency of moneys and the principal amount of Defeasance Obligations and the earnings thereon to pay the Total Debt Service. SECTION 8. Responsibilities of Escrow Holder. The Escrow Holder and its respective successors, assigns, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Agreement, the establishment of the Escrow Account, the acceptance of the funds deposited therein, the purchase of the Defeasance Obligations, the retention of the Defeasance Obligations or the proceeds thereof, or for any payment, transfer or other application of moneys or securities by the Escrow Holder in accordance with the provisions of this Agreement or by reason of any non -negligent or non -willful act, omission or error of the Escrow Holder made in good faith in the conduct of its duties. The Escrow Holder shall, however, be responsible for its negligent or willful failure to comply with its duties required hereunder, and its negligent or willful acts, omissions or errors hereunder. The duties and obligations of the Escrow Holder may be determined by the express provisions of this Agreement. The Escrow Holder may consult with counsel,, who may or may not be counsel to the City, at the City's expense, and in reliance upon (4 415/04/00068061. DQCv3) 5 Temp Reso #11014-July 28, 2006 Exhibit A Page 6 the opinion of such counsel, shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Holder shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action under this Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the City. SECTION 9. Resignation of Escrow Holder. The Escrow Holder may resign and thereby become discharged from the duties and obligations hereby created, by notice in writing given to the City, the municipal bond insurer of the Defeased Bonds, if any, any rating agency then providing a rating on the Defeased Bonds, and the Paying Agent for the Defeased Bonds not less than sixty (60) days before such resignation shall take effect. Such resignation shall not take effect until the appointment of a new Escrow Holder hereunder. SECTION 10. Removal of Escrow Holder. (a) The Escrow Holder may be removed, at any time, by an instrument or concurrent instruments in writing, executed by the holders of not less than fifty-one percentum (51%) in aggregate principal amount of the Defeased Bonds then outstanding, such instruments to be filed with the City, and notice in writing given by such holders to the original purchaser or purchasers of the Defeased Bonds and published by the City once in a newspaper of general circulation in the territorial limits of the City, and in a daily newspaper or financial journal of general circulation in the City of New York, New York, not less than sixty (60) days before such removal is to take effect as stated in said instrument or instruments. A photographic copy of any instrument filed with the City under the provisions of this paragraph shall be delivered by the City to the Escrow Holder. (b) The Escrow Holder may also be removed at any time for any breach of trust or for acting or proceeding in violation of, or for failing to act or proceed in accordance with, any provisions of this Agreement with respect to the duties and obligations of the Escrow Holder by any court of competent jurisdiction upon the application of the City or the holders of not less than five percentum (5%) in aggregate principal amount of the Defeased Bonds then outstanding, or the holders of not less than five percentum (5%) in aggregate principal amount of the Defeased Bonds then outstanding. (c) The Escrow Holder may not be removed until a successor Escrow Holder has been appointed in the manner set forth herein. SECTION 11. Successor Escrow Holder. (a) If, at any time hereafter, the Escrow Holder shall resign, be removed, be dissolved or otherwise become incapable of acting, or shall be taken over by any governmental official, agency, department or board, the position of Escrow Holder shall thereupon become {4415/04/0006806LDdCv ) 6 Temp Reso #11014-July 28, 2006 Exhibit A Page 7 vacant. If the position of Escrow Holder shall become vacant for any of the foregoing reasons or for any other reason, the City shall immediately appoint an Escrow Holder to fill such vacancy and, upon such appointment, all assets held hereunder shall be transferred to such successor. The City shall cause such Escrow Holder to mail a notice of any such appointment made by it to the holders of the Defeased Bonds within thirty (30) days after such appointment. (b) At any time within one year after such vacancy shall have occurred, the holders of a majority in the then accreted value of the Defeased Bonds then unpaid, by an instrument or concurrent instruments in writing, executed by either group of such bondholders and filed with the governing body of the City, may appoint a successor Escrow Holder, which shall supersede any Escrow Holder theretofore appointed by the City. Photographic copies of each such instrument shall be delivered promptly by the City, to the predecessor Escrow Holder and to the Escrow Holder so appointed by the Defeased Bondholders. In the case of conflicting appointments made by the Defeased Bondholders under this paragraph, the first effective appointment made during the one year period shall govern. (c) If no appointment of a successor Escrow Holder shall be made pursuant to the foregoing provisions of this Section, the holder of any Defeased Bonds then unpaid, or any retiring Escrow Holder, may apply to any court of competent jurisdiction to appoint a successor Escrow Holder. Such court may thereupon, after such notice, if any, as such court may deem proper and prescribe, appoint a successor Escrow Holder. (d) Any corporation or association into which the Escrow Holder may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, ipso facto, shall be and become successor Escrow Holder hereunder and vested with all the trust, powers, discretions, immunities, privileges and all other matters as was . its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any parties hereto, anything herein to the contrary notwithstanding, provided such successor shall have reported total capital and surplus in excess of $500,000,000, provided that such successor Escrow Holder assumes in writing all the trust, duties and responsibilities of the Escrow Holder hereunder. SECTION 12. Payment to Escrow Holder. For services to be provided as Escrow Holder and Paying Agent relating to the Defeased Bonds, the Escrow Holder hereby acknowledges that it has agreed to accept compensation in the amount of $__ _ , plus out of pocket expenses approved by the City, and acknowledges that it has no lien against funds and securities in the Escrow Account. SECTION 13. Term. This Agreement shall commence upon its execution and delivery and shall terminate when the Defeased Bonds have been paid and discharged in accordance with the proceedings authorizing the Defeased Bonds, except as provided in Section 7. 14415/04ro0068061.. D ocv3) 7 Temp Reso #11014-July 28, 2006 Exhibit A Page 8 SECTION 14. Severability. If any one or more of the covenants or agreements provided in this Agreement on the part of the City or the Escrow Holder to be performed should be determined by a court of competent jurisdiction to be contrary to law, notice of such event shall be sent to the municipal bond insurer for the Defeased Bonds, if any, as well as any rating agency then providing a rating on the Defeased Bonds, and while such covenant or agreements herein contained shall be null and void, they shall in no way affect the validity of the remaining provisions of this Agreement. SECTION 15. Amendments to thi A reement. This Agreement is made for the benefit of the City and the holders from time to time of the Defeased Bonds, and it shall not be repealed, revoked, altered or amended in whole or in part without the written consent of all affected Defeased Bondholders, the Escrow Holder and the City; provided, however, that the City and the Escrow Holder may, without the consent of, or notice to, such holders, enter into such agreements supplemental to this Agreement as shall not adversely affect the rights of such holders and as shall not be inconsistent with the terms and provisions of this Agreement, for any one or more of the following purposes: (a) to cure any ambiguity or formal defect or omission in this Agreement; (b) to grant to, or confer upon, the Escrow Holder, for the benefit of the holders of the Defeased Bonds, any additional rights, remedies, powers or authority that may lawfully be granted to, or conferred upon, such holders or the Escrow Holder; (c) to effect the transactions authorized by Section 5 hereof; and (d) to subject to this Agreement additional funds, securities or properties. The Escrow Holder shall, at its option, be entitled to request, at the City's expense, and rely exclusively upon an opinion of nationally recognized attorneys on the subject of municipal bonds acceptable to the City with respect to compliance with this Section, including the extent, if any, to which any change, modification, addition or elimination affects the rights of the holders of the Defeased Bonds, or that any instrument executed hereunder complies with the conditions and provisions of this Section. Prior written notice of such amendments, together with proposed copies of such amendments, shall be provided to any rating agency then providing a rating on the Defeased Bonds. [Remainder of page intentionally left blank] {4 415 /04/00068061. D o Gv 3} Temp Reso #1101 4-July 28, 2006 Exhibit A Page 9 SECTION 16. Counterparts. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. SECTION 17. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Florida. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers and their corporate seals to be hereunto affixed and attested as of the date first above written. (SEAL) ATTESTED AND COUNTERSIGNED: CITY OF TAMARAC, FLORIDA By: Beth Flansbaurn-Talabisco Mayor By: rn Je f y L. Miller City Manager APPROVED AS TO FORM: 1127ap4 Manion Swenson, CMC City Clerk Samuel S. Goi City Attorney [MORE SIGNATURES TO FOLLOW] f 4415/04/00068061. D O CO) 9 (SEAL) {4415/04/00068061. D O Cv 3) Temp Reso #11014-July 28, 2006 Exhibit A Page 10 THE BANK OF NEW YORK TRUST COMPANY, N.A., as Escrow Holder By: Name: Its: [END OF SIGNATURES] IK Temp Reso #11014-July 28, 2006 Exhibit A Page 11 SCHEDULE A SCHEDULE QF ANNUAL DEBT SERVICE Annual Date Principal Interest Debt Service 14415/04/00068061.DOCv3) Temp Reso #11014-July 28, 2006 Exhibit A Page 12 SCHEDULE B DEFEASANCE OBLIGATIONS ON DEPOSIT IN ESCROW ACCOUNT Maturi Type Interest Rate Par Amount Cost (4415/04/00068061. DOCv3) Temp Reso #11014- July 28, 2006 Page 1 EXH— IBIT B FORM OF NOTICE OF DEFEASANCE NOTICE OF DEFEASANCE CITY OF TAMARAC, FLORIDA UTILITY REVENUE REFUNDING BONDS, SERIES 1992 maturing on October 1, 2011 NOTICE IS HEREBY GIVEN for and on behalf of the City of Tamarac, Florida (the "City"), that the City of Tamarac, Florida, Utility Revenue Refunding Bonds, Series 1992, maturing on October 1, 2011 (the "Defeased Bonds"), have been legally defeased and are no longer outstanding for purposes of the resolution authorizing the issuance thereof, such resolution has become void in accordance with Article X thereof, and the right, title and interest of the Defeased Bondholders secured thereby in the revenues funds and accounts mentioned therein have ceased, determined and become void without further action of the City Commission of the City. The Defeased Bonds shall be paid at its maturity or mandatory redemption dates, as the case may be. The defeasance vvill be effected by the deposit in irrevocable escrow of securities which are the non - callable direct obligations of the United States of America, the principal of and interest on which will be sufficient to pay the principal of and interest on the Defeased Bonds when due. This notice does not constitute a notice of redemption and no Defeased Bonds should be delivered to the City as a result of the publication. Dated this 30th day of August, 2006. CITY OF/'AMARAC, FLORIDA Steven G. Chapman II Director of Financial Servi CERTIFICATE AS TO PUBLIC MEETINGS STATE OF FLORIDA: COUNTY OF BROWARD: Each of the undersigned members of the Commission of the City of Tamarac, Florida (the "Issuer") DOES HEREBY CERTIFY 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 the legal. defeasance of the City of Tamarac, Florida Utility Revenue Refunding Bonds, Series 1992, 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. IN WITNESS WHEREOF, we have hereunto affixed our official signatures this 23rd day of August, 2006. ( 4415/04/00070355. DOCv2 )