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HomeMy WebLinkAboutR-97-0130F J-97-557 2/27/97 RESOLUTION N0, 9 7 - 130 A RESOLUTION, WITH ATTACHMENT, APPROVING AN ESCROW AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, AMONG THE CITY OF MIAMI, THE FIRST UNION NATIONAL BANK OF FLORIDA, AND THE OVERSIGHT BOARD, ACTING THROUGH THE FISCAL SUFFICIENCY ADVISORY BOARD, AS REQUIRED BY THE INTERGOVERNMENTAL COOPERATION AGREEMENT, DATED DECEMBER 23, 1996, AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAME; SAID APPROVAL AND EXECUTION CONTINGENT UPON SUBSEQUENT CONVERSATIONS WITH THE STATE EMERGENCY FINANCIAL OVERSIGHT BOARD AND APPROVAL BY THE CITY ATTORNEY, WHEREAS, Under the Intergovernmental Cooperation Agreement with the State of Florida, dated December 23, 1996, the City is required to establish an escrow account with an escrow agent; and WHEREAS, such escrow agent will hold the city's debt service monies in escrow in anticipation of making debt service payment, which is a normal course of action for entities recovering from a financial emergency ; and WHEREAS, The State Oversight Board, acting within their purview, has selected the First Union National Bank of Florida to be the escrow agent; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. An Escrow Agreement, in substantially the attached form, among the City of Miami, the First Union National Bank of Florida, and the Oversight Board, acting through the Fiscal Sufficiency Advisory Board, as required by the Intergovernmental Cooperation Agreement, dated ATTACHMENT (S) MY COM MS101? MMETING OF FEB 2 7 t997 Resolution No. 97- 130 -j F December 23, 1996, is hereby approved, contingent upon conversations with the State Emergency Financial Oversight Board and approval by the City Attorney. Section 3. The City Manager is hereby authorized to execute said Escrow Agreement, in substantially the attached form, contingent upon subsequent conversations with the State Emergency Financial Oversight Board and approval by the City Attorney. Section 4. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 27th day of February, 1997. JOE C OLLO, MAYOR A ST• ' WALTER J. N CITY CLERK APPROVED AS TO TRM AND CORRECTNESS: �.QrNJO CITY ATTORI W1796:CSK 2- 97- 130 F EWFAMP THIS ESCROW AGREEMENT (this "Agreement") is dated as of February 1997 and is entered into by and among First Union National Bank of Florida, a national banking association ("Escrow Agent"), the Oversight Board, as described and defined below, acting through its committee the Fiscal Sufficiency Advisory Board (the "FSAB'), and the City of Miami, Dade County, Florida (the "City"). WHEREAS, on December 2, 1996, the City Manager of the City informed the Governor of the State of Florida (the "Govemor') of the financial distress of City accounts, and requested the Governor to conclude, pursuant to section 218.503, Florida Statutes (1996), that a state of financial emergency exists within the City; WHEREAS, on December 3, 1996, pursuant to the City's request, the Governor acknowledged that the City is currently in a state of financial emergency according to the provisions of section 218.503, Florida Statutes (1996); WHEREAS, the Governor has the responsibility to ensure that the health, safety and welfare of the residents of and visitors to the City are maintained during this financial emergency; WHEREAS, negative economic ramifications, such as lower credit ratings and higher interest costs to the City, as well as possible spillover effects to other local governments and the state, could result without state assistance and intervention in this local government financial emergency; WHEREAS, the Governor created by Executive Order 96-391 the Oversight Board (the "Oversight Board') to oversee the fiscal affairs of the City for a period until three years after the City has produced two successive years of balanced operations, and none of the conditions listed in sections 218.503, Florida Statutes (1996). for determining a local government financial emergency, exist; WHEREAS, the Oversight Board and the City intend to cooperate with each other so that the City is no longer in a state of financial emergency; WHEREAS, in order to implement such cooperative intergovernmental actions and carry out the actions set forth in Executive Order 96-391, the Governor, the Oversight Board and the City further defined and detailed their respective undertakings in that certain Intergovernmental Cooperation Agreement, dated as of December 23,1996 (the "Cooperation Agreement'); k1011231I49.2 L 97- 130 F WHEREAS, pursuant to paragraph 8 of the Cooperation Agreement, the City will be depositing certain revenues and other lawfully available funds, as more Fully described herein (the "Revenues'), in segregated escrow accounts to be held by an independent third party trustee for the purpose of the timely payment of debt service on the City's outstanding bonds and other debt obligations (the "Bond and Debt Obligations'); WHEREAS, the Oversight Board has established the FSAB to take such action on behalf of the Oversight Board that is reasonable and necessary for the Oversight Board and the FSAB to comply with paragraph 8 of the Cooperation Agreement; WHEREAS, pursuant to paragraph 8 of the Cooperation Agreement, the FSAB has appointed Escrow Agent as such independent third party W stee and Escrow Agent has agreed to accept, hold and disburse the Revenues deposited with it and the earnings thereon in accordance with this Agreement; M EREAS, the FSAB has authorized the execution and delivery of this Agreement by the Oversight Board; WHEREAS, by majority decision of the City Commission, the City has authorized the execution and delivery of this Agreement by the City; and NOW, THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties agree as follows: 1. ge Ms- Roressen tag tiou. The recitals set forth above are true and correct and are hereby made a party of this Agreement. 2. peini io a. The following terms shall have the following meanings when used herein: "Authorized Representative" shall mean, for each party, the person(s) designated on Schedule 1.1 hereof to act as such party's representative under this Agreement. The name, title and signature of each Authorized Representative are set forth on Schedule 1.1, attached hereto and incorporated herein by this reference. "Bond and Debt Obligation Agreements" shall mean those certain bond and debt obligation agreements governing the Bond and Debt Obligations and set forth on Schedule 1.2, attached hereto and incorporated herein by this reference. "Business Tray" shall mean any day other than a Saturday, a Sunday or a day on which banks in the City are authorized or obligated by law or executive order to close. MI01/231249,2 -2- 97-- 130 F "Debt Service Fund" shall mean the segregated escrow account that Escrow Agent shall establish, maintain and hold in trust which shall be disbursed in accordance with the respective Bond and Debt Obligation Agreements. The name of each Debt Service Fund is set forth on Schedule 1.3, attached hereto and incorporated herein by this reference. "Excess Moneys" shall mean the moneys, if any, including interest earnings, in each Debt Service Fund equal to the difference between (i) the balance in a Debt Service Fund'after disbursements to the Registrar and Transfer Agent(s) on a Payment Date pursuant to Section 5(c) hereof and (ii) the Required Balance. "Joint Written Direction" shall mean a written, direction executed by the City and the FSAB directing Escrow Agent to take or refrain from taking an action pursuant to this Agreerx =L "Payment Dates" shall mean such interest and principal payment dates specified in the respective Bond and Debt Obligation Agreements and set forth, for each Debt Service Fund, on Schedule 1.4, attached hereto and incorporated herein by this reference. "Registrar and Transfer Agents" shall me= the registrar and transfer agent of each Bond and Debt Obligation as specified in the respective Bond and Debt Obligation Agreement. The name, address and wire transfer instructions of each Registrar and Transfer Agent are set forth on Schedule 1.5, attached hereto and incorporated herein by this reference. "Required Balance" shall mean the amount of moneys, including interest earnings, in each Debt Service Fund equal to the sum of (i) the full amount of debt services payments required to be disbursed to Registrar and Transfer Agents on the next Payment Date pursuant to Section 5(c) hereof; (ii) the full amount of debt service payments necessary for the next succeeding Payment Date and (iii) the Required Reserves. "Required Reserves" shall mean the full amount of moneys required to maintain reserves of each Debt Service Fund at their appropriate levels. The Required Reserves of each Debt Service Fund are set forth on Schedule 1.6, attached hereto and incorporated herein by this reference. "Revenues" shall mean revenues, ad valorem taxes and such other funds and monies either pledged to or required for the timely payment of the City's bonds and debt obligations pursuant to the respective Bond and Debt Obligation Agreements. "Written Direction" shall mean a written direction executed by the City addressed. to Escrow Agent regarding the Debt Service Funds. 3. ®anointment of gnd AcrW ace by Escrow Agcnt. The FSAB and the City hereby appoint Escrow Agent to serve as Escrow Agent hereunder. Escrow Agent hereby accepts such appointment and, upon receipt of the Revenues, agrees to hold, invest and disburse the Revenues, together with all interest, profits and earnings thereon in accordance with this Agreement. H101/2312491 -3- 97- 130 F 4. Dgnosit_Qf Revenues. In accordance with the wire transfer instructions set forth on Schedule 4.1, attached hereto and incorporated herein by this reference, the City shall deposit, by wire transfer of immediately available funds, with Escrow Agent: (a) on February ____, 1997, the sum of ($ ); and Dollars (b) thereafter, at such tinges as required by Schedule 4.2, attached hereto and incorporated herein by this reference. With each wine transfer, the City shall specify in a Written Direction what amount of the Revenues is to be deposited in each Debt Service Fund. Within two Business Days after receipt by Escrow Agent of any Revenues, Escrow agent shall acknowledge receipt thereof by completing, signing and sending by facsimile transmission to the FSAB and the City a receipt in the form attached hereto as Schedule 4.3. 5. Application of Revenues. (a) Escrow Agent shall deposit all Revenues, promptly upon receipt thereof, into the appropriate Debt Service Fund in accordance with the Written Direction and shall thereafter hold the Revenues in the Debt Service Funds until the Debt Service Funds are disbursed in accordance with the respective Bond and Debt Obligation Agreements and this Agreement. (b) Ten Business Days before each Payment Date, the City shall deliver to Escrow Agent a Written Direction specifying the amounts to be disbursed from each Debt Service Fund to the appropriate Registrar and Transfer Agent. Upon receipt of such Written Direction, if there are insufficient funds in a Debt Service Fund to make a disbursement, Escrow Agent shall send by facsimile transmission to the FSAB and the City a notice in the form attached hereto as Schedule 5.1. (c) In accordance with the Written Direction described in paragraph (b) above, on each Payment Date, Escrow Agent shall, out of moneys in the appropriate Debt Service Fund, withdraw an amount equal, to the unpaid or principal due on the respective bond or debt obligation on such Payment Debt, but only to the extent moneys in the respective Debt Service Fund are then available, and wire such funds to the appropriate Registrar and Transfer Agents. All disbursements of funds from the Debt Service Funds shall be subject to the claims of Escrow Agent and the Indemnified Parties (as defined below) pursuant to Section 10 below. (d) If, after making the disbursements to the Registrar and Transfer Agents in accordance with paragraph (c) above, there are any Excess Moneys, Escrow Agent may transfer such Excess Moneys to the City pursuant to a Joint Written Direction. M101/231249.2 -4- 97- 130 (e) If, at any time, the funds in a Debt Service Fund are less than the Required Reserves, Escrow Agent shall send by facsimile transmission to the FSAB and the City a notice in the form attached hereto as Schedule 5.2. 6. Investment of Funds. Escrow Agent shall invest and reinvest the funds held in the Debt Service Funds as the City and the FSA13 jointly shall direct (subject W applicable minimum investment requirements) by the furnishing of a Joint Written Direction; provided, however, that no investment or reinvestment may be made except in the following: (a) direct obligations of the United States of America or obligations the principal of and the interest on which are unconditionally guaranteed by the United States of America; (b) certificates of deposit issued by any bank, bank and trust company, or national banking association (including Escrow Agent and its affiliates), which certificates of deposit are insured by the Federal Deposit Insurance Corporation or a similar governmental agency; (e) repurchase agreements with any bank, trust company, or national banking association (including Escrow Agent and its affiliates); or (d) any money market fund substantially all of which is invested in the foregoing investment categories, including any money market fund managed by Escrow Agent and any of its affiliates. If Escrow Agent has not received a Joint Written Direction at any time that an investment decision must be made, Escrow Agent shall invest the Debt Service Funds, or such portion thereof as to which no Joint Written Direction has been received, in investments described in clause (d) above. Each of the foregoing investments shall be made in the name of Escrow Agent, No investment shall be made in any instrument or security that has a mawrity of greater than days. Notwithstanding anything to the contrary contained herein, Escrow Agent may, without notice to the City or the FSAB, sell or liquidate any of the foregoing investments at any time if the proceeds thereof are required for any release of funds permitted or required hereunder, and Escrow Agent shall not be liable or responsible for any loss, cost or penalty resulting from any such sale or liquidation. With respect to any funds received by Escrow Agent for deposit into the Debt Service Funds or any Joint Written Direction received by Escrow Agent with respect to investment of any hands in the Debt Service Funds after ten o'clock, a.m., Mami, Florida time, Escrow Agent shall not be required to invest such funds or to effect such investment instruction until the next Business Day. 7. Em. Escrow Agent hereby waives all set-up and administration fees with respect to this Agreement. The City shall compensate Escrow Agent for its investment management services provided pursuant to Section 6 hereunder [at the rate of 10 basis points]. The obligation of the City under this Section 7 shall survive any termination of this Agreement and the resignation or removal of Escrow Agent. N101/231214.2 -5- 97- 130 (a) Escrow Agent shall be entitled to rely upon, and shall be fully protected from, all liability, loss, cost, damage, or expense in acting or omitting to act pursuant to, any notice, instrument or other written document delivered to it hereunder without being required to determine the authenticity of such document, the correctness of any fact stated therein, the propriety of the service thereof or the capacity, identity or authority of any person purporting to sign or deliver such document on behalf of a party entitled to give or deliver such document in accordance with this Agreement. (b) The duties of Escrow Agent are only as herein specifically provided, and are purely ministerial in nature. Escrow Agent shall neither be responsible for, or under, nor chargeable with knowledge of, the terms and conditions of any other agreement, instrument or document in connection herewith, including, without limitation, the Cooperation Agreement and the Bond and Debt Obligation Agreements, except to the extent any such document is actually delivered to Escrow Agent and is necessary to enable Escrow Agent to carry out its specified responsibilities under this Agreement. This Agreement sets forth all the obligations of Escrow Agent with respect to any and all matters pertinent to the escrow contemplated hereunder and no additional obligations of Escrow Agent shall be implied from the terms of this Agreement or any other agreement. Escrow Agent shall incur no liability in connection with the discharge of its obligations under this Agreement, except such liability as may arise from the willful misconduct or negligence of Escrow Agent. In no event shall Escrow Agent be liable for incidental, indirect, special, consequential or punitive damages. Escrow Agent shall not be obligated to take any legal action or commence any proceeding in connection with the Debt Service Funds, any account in which Debt Service Funds are deposited or this Agreement, or to appear in, prosecute or defend any such legal action or proceeding. Escrow Agent may consult legal counsel selected by it in the event of any dispute or question as to the constriction of any of the provisions hereof or of any other agreement or of its duties hereunder, and shall 'incur no liability and shall be fully protected from any liability whatsoever in acting in accordance with the opinion or instruction of such counsel. The City shall promptly pay, upon demand, the reasonable fees and expenses of any such counsel. (c) If, at any time, there shall exist any dispute between the City, the Oversight Board or the FSAB with respect to the holding or disposition of any portion of the Debt Service Funds or any other obligations of Escrow Agent hereunder, or if at any time Escrow Agent is unable to determine, to Escrow Agent's sole satisfaction, the proper disposition of any portion of the Debt Service Funds or Escrow Agent's proper actions with respect to its obligations hereunder, after days prior written notice of such inability to the City and the FSAB, or if the FSAB has not within days of the famishing by Escrow Agent of a notice of resignation pursuant to Section 9 hereof, appointed a successor Escrow Agent to ant hereunder, then Escrow Agent may, in its sole discretion, take either or both or the following actions, after days prior written notice of its intention to the City and the FSAB: N101/291249.2 10 97- 130 F i. suspend the performance of any of its obligations under this Escrow Agreement until such dispute or uncertainty shall be resolved to the sole satisfaction of Escrow Agent or until a successor Escrow Agent shall have been appointed (as the ease may be); provfdec4 however, that Escrow Agent shall continue to invest the Debt Service Funds in accordance with Section 6 hereof; and/or ii. petition (by means of an interpleaded action or any other appropriate method) any court of competent jurisdiction in made County, Florida, for instructions with respect to such dispute or uncertainty, and pay into such court all funds held by it in the Debt Service Funds for holding and disposition in accordance with the instructions of such court. Escrow Agent shall have no liability to the City, the (Oversight Board, the FSAB or any other person with respect to any such suspension of performance or disbursement into court, specifically including any liability or claimed liability that may arise, or be alleged to have arisen, out of or as a result of any delay in the disbursement of funds held in the Debt Service Funds or any delay in or with respect to any other action required or requested of Escrow Agent. (d) Escrow Agent shall not be liable in any way for the performance or non-performance of the Cooperation Agreement or of the Bond and Debt Obligation Agreements. The only responsibility of Escrow Agent is to hold the Debt Service Funds and to disburse them according to this Agreement. 9. ResigniWon and Removal of Escrow Agent. Escrow Agent may resign from the performance of its duties hereunder at any time by giving ten days' prior written notice to the City and the FSAB or may be removed, with or without cause, by the City and the FSAB, acting jointly by furnishing a Joint Written Direction to Escrow Agent, at any time by the giving of ten days' prior written notice to Escrow Agent. Such resignation or removal shall take effect upon the appointment of a successor Escrow Agent as provided herein below. Upon any such notice of resignation or removal, the FSAB shall, in its sole discretion, appoint another independent third party Escrow Agent as successor Escrow Agent hereunder. Upon the acceptance in writing of any appointment as Escrow Agent hereunder by a successor Escrow Agent, such successor Escrow Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from its duties and obligations under this Agreement, but shall not be discharged from any liability for actions taken as Escrow Agent hereunder prior to such succession. After any retiring Escrow Agent's resignation or removal, the provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Escrow Agent under this Agreement. 10. Indemnification of Escrow Agent. From and at all tunes after the date of this Agreement, the City shall, to the fullest extent permitted by law and to the extent provided herein, indemnify and hold harmless Escrow Agent and each director, officer, employee, attorney, agent and mIO1/231249.2 97- 130 affiliate of Escrow Agent (collectively, the "Indemnified Parties') against any and all actions, claims (whether or not valid), losses, damages, liabilities, costs and expenses of any kind or nature whatsoever (including without limitation reasonable attorneys' fees, costs and expenses) incurred by or asserted against any of the Indemnified Parties from and after the date hereof, whether direct, indirect or consequential, as a result of or arising from or in any way relating to any claim, demand, suit, action or proceeding (including any inquiry or investigation) by any person, whether threatened or initiated, asserting a claim for any legal or equitable remedy against any person under any statute or regulation, including, but not Bruited to, any federal or state securities laws, or under any common law or equitable cause or otherwise, arising from or in connection with the negotiation, preparation, execution performance or failure of performance of this Agreement or any transactions contemplated herein, whether or not any such Indemnified Party is a party to any such action, proceeding, suit or the target of any such inquiry or investigation; provided, however, that no Indemnified Party shall have the right to be indemnified hereunder for any liability finally determined by a court of competent jurisdiction, subject to no further appeal, to have resulted solely from the negligence or willful misconduct of such Indemnified Party. If any such action or claim shall be brought or asserted against any Indemnified Party, such Indemnified Parry shall promptly notify the City and the FSAB in writing, and the City shall assume the defense thereof, including the employment of counsel and the payment of all expenses. Such Indemnified Party shall, in its sole discretion, have the right to employ separate counsel in any such action and to participate in the defense thereof, and the fees and expenses of such counsel shall be paid by such Indemnified Party unless (a) the City agrees to pay such fees and expenses, or (b) the City shall fail to assume the defense of such action or proceeding or shall fail, in the reasonable discretion of such Indemnified Party, to employ counsel satisfactory to the Indemnified Party in any such action or proceeding, or (c) the named parties to any such action or proceeding (including any impleaded parties) include both Indemnified Party and the City and/or the FSAB, and Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the City and/or the FSAB. All such fees and expenses payable by the City pursuant to the foregoing sentence shall be paid from time to time as incurred, both in advance of and after the final disposition of such action or claim. All of the foregoing losses, damages, costs and expenses of the Indemnified Parties shall be payable by the City upon ten days prior written notice by such Indemnified Party. The obligations of the City under this Section 10 shall survive any termination of this Agreement and the resignation or removal of Escrow Agent. MI01/201249.2 L (a) The City represents and warrants to Escrow Agent: i. The City is a municipality, duly organized and existing under the constitution and laws of the State of Florida and has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder; ii. This Agreement has been duly approved by all necessary corporate action of the City, has been executed by duly authorized officers of the City, and 18- 97- 130 constitutes a valid and binding agreement of the City, enforceable in accordance with its terns. iii. The execution, delivery and performance by the City of this Agreement will not violate, conflict with, or cause a default under the organizational documents of the City, any applicable law or regulation, any court order or administrative ruling or decree to which the City is a party. or any of its property is subject, or any agreement, contract, indenture, or other binding arrangement to which the City is a party or any of its property is subject. iv. The City's Authorized Representative has been duly appointed to act as the representative of the City hereunder and has hill power and authority to execute, deliver and perform this Agreement and to execute and deliver any Joint Written Direction. V. All of the representations and warranties of the City contained herein are true and complete as of the date hereof and will be true and complete at the time of any disbursement .from the Debt Service Funds. (b) The Oversight Board, acting through its committee the FSAB, represents and warrants to Escrow Agent: KI01/231249.2 L i. The Oversight Board was duly created by the Governor by Executive Order 96-391 to oversee the fiscal affairs of the City for a specified period, and has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder; ii. The FSAB was duly established by the Oversight Board, by unanimous written resolution, to take such action on behalf of the Oversight Board that is reasonable and necessary for the Oversight Board and the FSAB to comply with paragraph 8 of the Cooperation Agreement, and has full power and authority, on behalf of the Oversight Board, to execute and deliver this Agreement and to perform its obligations hereunder; iii. 'This Agreement has been duly approved by all necessary board action of the Oversight Board and the FSAB, has been executed by duly authorized officers of the FSAB, and constitutes a valid and binding agreement of the Oversight Board, acting through the FSAB, enforceable in accordance with its terms. iv. The execution, delivery and performance by the Oversight Board of this Agreement will not violate or conflict with Executive Order 95-391, any applicable law or regulation, any court order or administrative ruling or M 97- 130► decree to which the Oversight Board is a party, or any agreement, contract or other binding arrangement to which the Oversight Board is a party. V. The Oversight BoardTSAB's Authorized Representative has been duly appointed to act as the representative of the Oversight Board, acting through the FSAB, hereunder and has full power and authority to execute, deliver and perform this Agreement, and to execute and deliver any Joint Written Direction. vi. All of the representations and warranties of the Oversight Board, acting through its committee the FSAB, contained herein are true and complete as of the date hereof and will be true and complete at the time of any disbursement from the Debt Service Funds. 12. Term of this Agr mcnt. This Agreement shall terminate upon the earlier of (i) the period of three years after the City has produced two successive years of balanced operations and none of the conditions exist that are set forth in section 218.503(1), Florida Statutes (1996) or (H) the termination of this Agreements by the parties hereto. Upon termination of this Agreement, Escrow Agent shall disburse the Debt Service Funds pursuant to the directions in a Joint Written Direction and thereafter, Escrow Agent shall have no further obligation or liability whatsoever with respect to this Agreement or the Debt Service Funds. 13. Consent to huWicci= _an Vem e. 'In the event that any party hereto commences a lawsuit or other proceeding relating to or arising from this Agreement, the parties hereto agree that a court of competent jurisdiction located in Dade County, Florida shall have sole and exclusive jurisdiction. Any such court shall be proper venue for any such lawsuit or judicial proceeding and the parties hereto waive any objection to such venue. The parties hereto consent to and agree to submit to the jurisdiction of any of the courts specified herein and agree to accept service or process to vest personal jurisdiction over them in any of these courts. 14. 'ce . Except as otherwise provided in this Agreement, all notices, demands, requests, consents, approvals or other communications required or permitted to be given hereunder or which are given with respect to this Agreement shall be effective only if in writing and served by (i) facsimile transmission and (ii) personal delivery or overnight courier, as follows: MI011231249,2 -10- 97- 130 MI To the City: City Manager Att: Edward Marquez City Manager's Office Miami Riverside Center 444 S.W. 2nd Ave. Miami, FL 33131 Telephone: (305) 416.1025 Facsimile: (305) 400-5042 To the Oversight Board/ FSAB: Chief of Staff Att: Charles Wolfe Financial Emergency Oversight Board Miami Riverside Center 444 S.W. 2nd Ave. Miami, FL 33131 Telephone: (305) 416-1025 Facsimile: (305) 400-5042 To Escrow Agent: First Union National Bank of Florida First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Attention: Telephone: (305) Facsimile: (305) or to such other address as such party shall have specified most recently by like Notice. 15. Miscellaneous. (a) in the event of a conflict between the terms of a Bond and Debt Obligation Agreement and the terms of this Agreement, the terms of the respective Bond and Debt Obligation Agreement shallcontrol as between the City and the creditors thereunder, but Escrow Agent shall have no responsibility for complying with such Bond and Debt Obligation Agreement. (b) In connection with any action arising from or in connection with the enforcement of this Agreement, the prevailing party shall be entitled to an award of its expenses, including reasonable attorneys' fees and disbursements, incurred or paid before and at trial or any other proceeding which may be instituted, at any tribunal level. H101/231249.2 L -11- 9'7- 130 (c) No amendment, modification, waiver or discharge oftWs Agreement, or any provision hereof (including, without limitation, this paragraph (c)) shall be valid or effective unless in writing and signed by Escrow Agent, by the FSAB and by the City. (d) The captions used in this Agreement are for convenience of reference only and shall not be construed to extend, limit or modify the scope or meaning of the respective sections to which they relate. This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that this Agreement may have been physically prepared by one of the parties, or such party's counsel; it being agreed that all parties and their respective counsel have mutually participated in the negotiation, and preparation of this Agreement. (e) This Agreement may be changed, waived, discharged or terminated only by a writing signed by the Authorized Representatives of each party hereto. No delay or omission by any party in exercising any right with respect hereto shall operate as a waiver. A waiver on any one occasion shall not be construed as a bar to, or waiver of, any right or remedy on any future occasion. (f) To the extent any provision of this Agreement is prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. (g) This Agreement constitutes the entire agreement between the parties relating to the holding, investment and disbursement of the Debt Service Funds and sets forth in their entirety the obligations and duties of Escrow Agent with respect to the Debt Service Funds. (h) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida, without respect to its conflicts of law. (i) This Agreement may be executed in two or more counterparts. Facsimile copies of this Agreement, executed in counterparts, shall be deemed to be originals for all purposes. XI01/231249.2 [END OF PAGE; SIGNATURES ON FOLLOWING PAGES] -12- 97- 130 IN WITNESS WHEREOF, Escrow Agent, the Oversight Board, acting through its committee, the FSAB, and the City have executed this Agreement on the respective dates set forth below. Escrow Agent: FIRST UNION NATIONAL BANK OF FLORA By: Print Name: Title: February .1997 Oversight Board: OVERSIGHT BOARD FISCAL SUFFICIZNCY ADVISORY BOARD By: Print Name: Adolfo Henriques Title: Chair, Fiscal Sufficiency Advisory Board February .1997 City: CITY OF MIAIVII By: Print Name: Edward Marquez Title: City Manager February 1997 M101/231249.2 _ 1 3- 97- 130 "T . , _ __ .... .._. SCHEDULE 1.1 AjMW)UMEPRFSENTA=S Of the City: NAME TITLE SIGNATURE. Of the Oversight Board/FSAB: SAM IIILE SIGNATURE Of Escrow Agent: NAME TITLE SIGNATURE MIOl/2312/9,2 9'7 - 130 F* MI0I/231249,2 SCREDULE1.2 �f niair231249.2 SCIEIDM 1.3 F At0I/231249.2 a 9'7- 1.30 ntouanxev.t 97- 130 SCHEDULE 1.6 M101/231249.2 J0'.1 - L 97- 130 M1011291249.2 L SCHEDULE 4.1 0 '- 71 HIGI/23I249.2 Go' rl L SCHEDULE 4.2 97- 130 f I IN L I I_C I M-1-1. k lwn--""- MI01/23I249,2 PIT * A L SCHEDULE 4.3 97- 130 MI01/231249.2 L SCHEDULE 5.1 97- t30 ♦,"', III !` T M71 L L. ILJnunl 1 mi-•MT IPrT T-� i a MIDI/231244,2 - 130 'i:-,z ,d -iuioi M101/251249.2 L SCHEDULE M SCHEDULE OF -FEES 97- 130 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO Honorable Mayor and Members DATE . of the City Commission SUBJECT i G� FROM Edward Mar ue REFERENCES City Manager - ENCLOSURES: February 27, 1997 Pocket Item - 2/27/97 Re: Escrow Agreement FILE : It is respectfully recommended that you approve the attached agreement that is a requirement of the Intergovernmental Cooperation Agreement executed between the City of Miami and the State of Florida. Pursuant to this agreement, the City will deposit funds into an escrow account pursuant to a schedule adopted by the City. The intent of establishing the escrow agreement is to start the slow recovery of our financial rating with the credit market. The attached document is in substantial form. Your approval will be contingent upon subsequent conversations with the State Emergency Financial Oversight Board to minimize the impact on cashflow and final approval by the Law Department. i 9'7- 130 THIS ESCROW AGREEMENT (this "Agreement') is dated as of February 1997 and is entered into by and among First Union National Bank of Florida, a national banking association (" Lscrow Agent'), the Oversight Board, as described and defined below, acting through its committee the Fiscal Sufficiency Advisory Board (the "FSAB'), and the City of Miami, Dade County, Florida (the "City"). WHEREAS, on December 2, 1996, the City Manager of the City informed the Governor of the State of Florida (the "Governor") of the financial distress of City accounts, and requested the Governor to conclude, pursuant to section 218.503, Florida Statutes (1996), that a state of financial emergency exists within the City; WHEREAS, on December 3, 1996, pursuant to the City's request, the Governor acknowledged that the City is currently in a state of %uncial emergency according to the provisions of section 218.503, Florida Statutes (1996); WHEREAS, the Governor has the responsibility to ensure that the health, safety and welfare of the residents of and visitors to the City are maintained during this financial emergency; WHEREAS, negative economic ramifications, such as lower credit ratings and higher interest costs to the City, as well as possible spillover effects to other local governments and the state, could result without state assistance and intervention in this local government financial emergency; WHEREAS, the Governor created by Executive Order 96-391 the Oversight Board (the "Oversight Board') to oversee the fiscal affairs of the City for a period until three years after the City has produced two successive years of balanced operations, and none of the conditions listed in sections 218.503, Florida Statutes (1996). for determining a local government financial emergency, exist; WHEREAS, the Oversight Board and the City intend to cooperate with each other so that the City is no longer in a state of financial emergency; WHEREAS, in order to implement such cooperative intergovernmental actions and carry out the actions set forth in Executive Order 96-391, the Governor, the Oversight Board and the City further defined and detailed their respective undertakings in that certain Intergovernmental Cooperation Agreement, dated as of December 23,1996 (the "Cooperation Agreement'); MIDI/231249.2 Is 97- 130 WHEREAS, pursuant to paragraph 8 of the Cooperation Agreement, the City will be depositing certain revenues and other lawfully available funds, as more fully described herein (the "Revenues'), in segregated escrow accounts to be held by an independent third party trustee for the purpose of the timely payment of debt service on the City's outstanding bonds and other debt obligations (the "Bond and Debt Obligations'); WHEREAS, the Oversight Board has established the FSAB to take such action on behalf of the Oversight Board that is reasonable and necessary for the Oversight Board and the FSAB to comply with paragraph 8 of the Cooperation Agreement; WHEREAS, pursuant to paragraph 8 of the Cooperation Agreement, the FSAB has appointed Escrow Agent as such independent third parry trustee and Escrow Agent has agreed to accept, hold and disburse the Revenues deposited with it and the earnings thereon in accordance with this Agreement; WkIEREAS, the FSAB has authorized the execution and delivery of this Agreement by the Oversight Board; WBEREAS, by majority decision of the City Commission, the City has authorized the execution and delivery of this Agreement by the City; and NOW, THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties agree as follows: 1. Recitals: Representations, The recitals set forth above are true and correct and are hereby trade a party of this Agreement. 2. Definitions. The following terms shall have the following meanings when used herein: "Authorized Representative" shall mean, for each party, the person(s) designated on Schedule 1.1 hereof to act as such party's representative under this Agreement. The name, title and signature of each Authorized Representative are set forth on Schedule 1.1, attached hereto and incorporated herein by this reference. "Bond and Debt Obligation Agreements" shall mean those certain bond and debt obligation agreements governing the Bond and Debt Obligations and set forth on Schedule 1.2, attached hereto and incorporated herein by this reference. "Business Day" shall mean any day other than a Saturday, a Sunday or a day on which banks in the City are authorized or obligated by law or executive order to close. n101i231249. x _2_ L 97- 130 "Debt Service Fund" shall mean the segregated escrow account that Escrow Agent shall establish, maintain and hold in trust which shall be disbursed in accordance with the respective Bond and Debt Obligation Agreements. The name of each Debt Service Fund is set forth on Schedule 1.3, attached hereto and incorporated herein by this reference. "Excess Moneys" shall mean the moneys, if any, including interest earnings, in each Debt Service Fund equal to the difference between (i) the balance in a Debt Service Fund :after disbursements to the Registrar and Transfer Agent(s) on a Payment Date pursuant to Section 5(c) hereof and (ii) the Required Balance. "Joint Written Direction" shall mean a written direction executed by the City and the FSAB directing Escrow Agent to take or refrain from taking an action pursuant to this Agmment. "Payment Dates" shall mean such interest and principal payment dates specified in the respective Bond and Debt Obligation Agreements and set forth, for each Debt Service Fund, on Schedule 1.4, attached hereto and incorporated herein by this reference. 'Registrar and Transfer Agents" shall mean the registrar and transfer agent of each Bond and Debt Obligation as specified in the respective Bond and Debt Obligation Agreement. The name, address and wire transfer instructions of each Registrar and Transfer Agent are set forth on Schedule 1.5, attached hereto and incorporated herein by this reference. "Required Balance" shall mean the amount of moneys, including interest earnings, in each Debt Service Fund equal to the sum of (i) the full amount of debt services payments required to be disbursed to Registrar and Transfer Agents on the next Payment Date pursuant to Section 5(c) hereofy (ii) the full amount of debt service payments necessary for the next succeeding Payment Date and (Hi) the Required Reserves. "Required Reserves" shall mean the full amount of moneys required to maintain preserves of each Debt Service Fund at their appropriate levels. The Required Reserves of each Debt Service Fund are set forth on Schedule 1.6, attached hereto and incorporated herein by this reference. "Revenues" shall mean revenues, ad valorem taxes and such other holds and monies either pledged to or required for the timely payment of the City's bonds and debt obligations pursuant to the respective Bond and Debt Obligation Agreements. "Written Direction" shall mean a written direction executed by the City addressed to Escrow Agent regarding the Debt Service Funds. 3. Amintment of and Acceptance by Escrow Agent. The FSAB and the City hereby appoint Escrow Agent to serve as Escrow Agent hereunder. Escrow Agent hereby accepts such appointment and, upon receipt of the Revenues, agrees to hold, invest and disburse the Revenues, together with all interest, profits and earnings thereon in accordance with this Agreement M101/27u49.2 97- 130 4• Doositef Kaeam. In accordance with the wire transfer instructions set forth on Schedule 4.1, attached hereto and incorporated herein by this reference, the City shall deposit, by wire transfer of immediately available funds, with Escrow Agent; (a) on February 1997, the sum of Dollars ($ ;; and (b) thereafter, at such times as required by Schedule 4.2, attached hereto and incorporated herein by this reference. With each wire transfer, the City shall specify in a Written Direction what amount of the Revenues is to be deposited in each Debt Service Fund. Within two Business Days after receipt by Escrow Agent of any Revenues, Escrow Agent shall acknowledge receipt thereof by completing, signing and sending by facsimile transmission to the FSAB and the City a receipt in the form attached hereto as Schedule 4.3. 5. Application of Revenues. (a) Escrow Agent shall deposit all Revenues, promptly upon receipt thereof, into the appropriate Debt Service Fund in accordance with the Written Direction and shall thereafter hold the Revenues in the Debt Service Funds until the Debt Service Funds are disbursed in accordance with the respective Bond and Debt Obligation Agreements and this Agreement. (b) Ten Business Days before each Payment Date, the City shall deliver to Escrow Agent a Written Direction specifying the amounts to be disbursed from each Debt Service Fund to the appropriate Registrar and Transfer Agent. Upon receipt of such Written Direction, if there are insufficient funds in a Debt Service Fund to make a disbursement, Escrow Agent shall send by facsimile transmission to the FSAB and the City a notice in the form attached hereto as Schedule 5.1. (c) In accordance with the Written Direction described in paragraph (b) above, on each Payment Date, Escrow Agent shall, out of moneys in the appropriate Debt Service Fund, withdraw an amount equal to the unpaid or principal due on the respective bond or debt obligation on such Payment Debt, but only to the extent moneys in the respective Debt Service Fund are then available, and wire such funds to the appropriate Registrar and Transfer Agents. All disbursements of funds from the Debt Service Funds shall be subject to the claims of Escrow Agent and the Indemnified Parties (as defused below) pursuant to Section 10 below. (d) If, after malting the disbursements to the Registrar and Transfer Agents in accordance with paragraph (c) above, there are any Excess Moneys, Escrow Agent may transfer such Excess Moneys to the City pursuant to a Joint Written Direction. MI01/231249.2 -4" 97- 130 (e) If, at any time, the funds in a Debt Service Fund are less than the Required Reserves, Escrow Agent shall send by facsimile transmission to the FSAB and the City a notice in the form attached hereto as Schedule 5.2, 6. Investment of Funds. Escrow Agent shall invest and reinvest the funds held in the Debt Service Funds as the City and the FSAB jointly shall direct (subject to applicable minimum investment requirements) by the furnishing of a Joint Written Direction; provided, however, that no investment or reinvestment may be made except in the following: (a) direct obligations of the United States of America or obligations the principal of and the interest on which are unconditionally guaranteed by the United States of America; (b) certificates of deposit issued by any bank, bank and trust company, or national banking association (including Escrow Agent and its affiliates), which certificates of deposit are insured by the Federal Deposit Insurance Corporation or a similar governmental agency; (c) repurchase agreements with any bank, trust company, or rational banking association (including Escrow Agent and its affiliates); or (d) any money market fiord substantially all of which is invested in the foregoing investment categories, including any money market fund managed by Escrow Agent and any of its affiliates. If Escrow Agent has not received a Joint Written Direction at any time that an investment decision must be made, Escrow Agent shall invest the Debt Service Funds, or such portion thereof as to which no Joint Written Direction has been received, in investments described in clause (d) above. Each of the foregoing investments shall be made in the name of Escrow Agent. No investment shall be made in any instrument or security that has a maturity of greater than days. Notwithstanding anything to the contrary contained herein, Escrow Agent may, without notice to the City or the FSAB, sell or liquidate any of the foregoing investments at any time if the proceeds thereof are required for any release of funds permitted or required hereunder, and Escrow Agent shall not be liable or responsible for any loss, cost or penalty resulting from any such We or liquidation. With respect to any funds received by Escrow Agent for deposit into the Debt Service Funds or any Joint Written Direction received by Escrow Agent with respect to investment of any funds in the Debt Service Funds after ten o'clock, a.m., Mami, Florida time, Escrow Agent shall not be required to invest such funds or to effect such investment instruction until the next Business Day. 7. Em. Escrow Agent hereby waives all set-up and administration fees with respect to this Agreement. The City shall compensate Escrow Agent for its investment management services provided pursuant to Section 6 hereunder [at the rate of 10 basis points]. The obligation of the City under this Section 7 shall survive any termination of this Agreement and the resignation or removal of Escrow Agent. N101/271249.2 -5- 97- 130 (a) Escrow Agent shall be entitled to rely upon, and shall be fully protected from, all liability, loss, cost, damage, or expense in acting or omitting to act pursuant to, any notice, instrument or other written document delivered to it hereunder without being required to determine the authenticity of such document, the correctness of any fact stated therein, the propriety of the service thereof or the capacity, identity or authority of any person purporting to sign or deliver such document on behalf of a party entitled to give or deliver such document in accordance with this ,A,greement. (b) The duties of Escrow Agent are only as herein specifically provided, and are purely ministerial in nature. Escrow Agent shall neither be responsible for, or under, nor chargeable with knowledge of, the terms and conditions of any other agreement, instrument or document in connection herewith, including, without limitation, the Cooperation Agreement and the Bond and Debt Obligation Agreements, except to the extent any such document is actually delivered to Escrow Agent and is necessary to enable Escrow Agent to carry out its specified responsibilities under this Agreement. This Agreement sets forth all the obligations of Escrow Agent with respect to any and all matters pertinent to the escrow contemplated hereunder and no additional obligations of Escrow Agent shall be implied from the terms of this Agreement or any other agreement. Escrow Agent shall incur no liability in connection with the discharge of its obligations under this Agreement, except such liability as may arise from the willful misconduct or negligence of Escrow Agent. In no event shall Escrow Agent be liable for incidental, indirect, special, consequential or punitive damages. Escrow Agent shall not be obligated to take any legal action or commence any proceeding in connection with the Debt Service Funds, any account in which Debt Service Funds are deposited or this Agreement, or to appear in, prosecute or defend any such legal action or proceeding. Escrow Agent may consult legal counsel selected by it in the event of any dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, and shall incur no liability and shall be fully protected from any liability whatsoever in acting in accordance with the opinion or instruction of such counsel. The City shall promptly pay, upon demand, the reasonable fees and expenses of any such counsel. (c) If, at any time, there shall exist any dispute between the City, the Oversight Board or the FSAB with respect to the holding or disposition of any portion of the Debt Service Funds or any other obligations of Escrow Agent hereunder, or if at any time Escrow Agent is unable to determine, to Escrow Agent's sole satisfaction, the proper disposition of any portion of the Debt Service Funds or Escrow Agent's proper actions with respect to its obligations hereunder, after days prior written notice of such inability to the City and the FSAB, or if the FSAB has not within days of the furnishing by Escrow Agent of a notice of resignation pursuant to Section 9 hereof, appointed a successor Escrow Agent to act hereunder, then Escrow Agent may, in its sole discretion, take either or both or the following actions, after days prior written notice of its intention to the City and the FSAB: N101/231269.2 L 97- 139 i. suspend the performance of any of its obligations under this Escrow Agreement until such dispute or uncertainty shall be resolved to the sole satisfaction of Escrow Agent or until a successor Escrow Agent shall have been appointed (as the case may be);,provIdec4 however, that Escrow Agent shall continue to invest the Debt Service Funds in accordance with Section 6 hereof; and/or ii. petition (by means of an interpleaded action or any other appropriate method) any court of competent judsdiction in Dade County, Florida, for instructions with respect to such dispute or uncertainty, -and pay into such court all funds held by it in the Debt Service Funds for holding and disposition in accordance with the instructions of such court. Escrow Agent shall have no liability to the City, the Oversight Board, the FSAB or any other person with respect to any such suspension of performance or disbursement into court, specifically including any liability or claimed liability that may arise, or be alleged to have arisen, out of or as a result of any delay in the disbursement of funds held in the Debt Service Funds or any delay in or with respect to any other action required or requested of Escrow Agent. (d) Escrow Agent shall not be liable in any way for the performance or non-performance of the Cooperation Agreement or of the Bond and Debt Obligation Agreements. The only responsibility of Escrow Agent is to hold the Debt Service Funds and to disburse them according to this Agreement. 9. Resianation and Removal of EccwxAgent. Escrow Agent may resign from the performance of its duties hereunder at any time by giving ten days' prior written notice to the City and the FSAB or may be removed, with or without cause, by the City and the FSAB, acting jointly by furnishing a Joint Written Direction to Escrow Agent, at any time by the giving of ten days' prior written notice to Escrow Agent. Such resignation or removal shall take effect upon the appointment of a successor Escrow Agent as provided herein below. Upon any such notice of resignation or removal, the FSAB shall, in its sole discretion, appoint another independent third party Escrow Agent as successor Escrow Agent hereunder. Upon the acceptance in writing of any appointment as Escrow Agent hereunder by a successor Escrow Agent, such successor Escrow Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be discharged from its duties and obligations under this Agreement, but shall not be discharged from any liability for actions taken as Escrow Agent hereunder prior to such succession. After any retiring Escrow Agent's resignation or removal, the provisions of this Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Escrow Agent under this Agreement. 10. Indemnification of Es -mom Agent. From and at all times after the date of this Agreement, the City shall, to the fullest extent permitted by law and to the extent provided herein, indemnify and hold harmless Escrow Agent and each director, officer, employee, attorney, agent and MI OLML249.2 50 97- 130 affiliate of Escrow Agent (collectively, the "Indemnified Parties') against any and all actions, claims (whether or not valid), losses, damages, liabilities, costs and expenses of any kind or nature whatsoever (including without limitation reasonable attorneys' fees, costs and expenses) incurred by or asserted against any of the Indemnified Parties from and after the date hereof, whether direct, indirect or consequential, as a result of or arising from or in any way relating to any claim, demand, suit, action or proceeding (including any inquiry or investigation) by any person, whether threatened or initiated, asserting a claim for any legal or equitable remedy against any person under any statute or regulation, including, but not limited to, any federal or state securities laws, or under any common law or equitable cause or otherwise, arising from or in connection with the negotiation, preparation, execution performance or failure ofperformance ofthis Agreement or any transactions contemplated herein, whether or not any such indemnified Party is a party to any such action, proceeding, suit or the target of any such inquiry or investigation; provided, however, that no Indemnified Party shall have the right to be indemnified hereunder for any liability finally determined by a court of competent jurisdiction, subject to no further appeal, to have resulted solely from the negligence or willful misconduct of such Indemnified Party. If any such action or claim shall be brought or asserted against any Indemnified Party, such Indemnified Party shall promptly notify the City and the.FSAB in writing, and the City shall assume the defense thereof, including the employment of counsel and the payment of all expenses. Such Indemnified Party shall, in its sole discretion, have the right to employ separate counsel in any such action and to participate in the defense thereof, and the fees and expenses of such counsel shall be paid by such Indemnified Party unless (a) the City agrees to pay such fees and expenses, or (b) the City shall fail to assume the defense of such action or proceeding or shall fail, in the reasonable discretion of such Indemnified Party, to employ counsel satisfactory to the Indemnified Party in any such action or proceeding, or (e) the named parties to any such action or proceeding (including any impleaded parties) include both Indemnified Party and the City and/or the FSAB, and Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the City and/or the FSAB. All such fees and expenses payable by the City pursuant to the foregoing sentence shall be paid from time to time as incurred, both in advance of and after the final disposition of such action or claim. All of the foregoing losses, damages, costs and expenses of the Indemnified Parties shall be payable by the City upon ten days prior written notice by such Indemnified Party. The obligations of the City under this Section 10 shall survive any termination of this Agreement and the resignation or removal of Escrow Agent. MI01/231249.2 :7 - : • .am•o• :•. . •r:•e�. (a) The City represents and warrants to Escrow Agent: i. The City is a municipality, duly organized and existing under the constitution and laws of the State of Florida and has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder; ii. This Agreement has been duly approved by all necessary corporate action of the City, has been executed by duly authorized officers of the City, and -g_ y7- 130 constitutes a valid and binding agreement of the City, enforceable in accordance with its terms. iii. The execution, delivery and performance by the City of this Agreement will not violate, conflict with, or cause a default under the organizational documents of the City, any applicable law or regulation, any court order or administrative ruling or decree to which the City is a party or any of its property is subject, or any agreement, contract, indenture, or other binding arrangement to which the City is a party or any of its property is subject. iv. The City's Authorized Representative has been duly appointed to act as the representative of the City hereunder and has full power and authority to execute, deliver and perform this Agreement and to execute and deliver any Joint Written Direction. V. All of the representations and warranties of the City contained herein are true and complete as of the date hereof and will be true and complete at the time of any disbursement from the Debt Service Funds. (b) The Oversight Board, acting through its committee the FSAB, represents and warrants to Escrow Agent: M1011231249.2 L i. The Oversight Board was duly created by the Governor by Executive Order 96-391 to oversee the fiscal affairs of the City for a specified period, and has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder; I The FSAB was duly established by the Oversight Board, by unanimous written resolution, to take such action on behalf of the Oversight Board that is reasonable and necessary for the Oversight Board and the FSAB to comply with paragraph 8 of the Cooperation Agreement, and has full power and authority, on behalf of the Oversight Board, to execute and deliver this Agreement and to perform its obligations hereundcr, iii. This Agreement has been duly approved by all necessary board action of the Oversight Board and the FSAB, has been executed by duly authorized officers of the FSAB, and constitutes a valid and binding agreement of the Oversight Board, acting through the FSAB, enforceable in accordance with its terms. iv. The execution, delivery and performance by the Oversight Board of this Agreement will not violate or conflict with Executive Order 96-391, any applicable law or regulation, any court order or administrative ruling or 97- 130 F decree to which the Oversight Board is a party, or any agreement, contract or other binding arrangement to which the Oversight Board is a party. V. The Oversight Board/FSAB's Authorized Representative has been duly appointed to act as the representative of the Oversight Board, acting through the FSAB, hereunder and has full power and authority to execute, deliver and performs this Agreement, and to execute and deliver any Joint Written Direction. vi. All of the representations and warranties of the Oversight Board, acting through its committee the FSAB, contained herein are true and complete as of the date hereof and will be true and complete at the time of any disbursement from the Debt Service Funds. 12. Term of this Agreement. This Agreement shall terminate upon the earlier of (i) the period of three years after the City has produced two successive years of balanced operations and none of the conditions exist that are set forth in section 218.503(I), Florida Statutes (1996) or (ii) the termination of this Agreements by the parties hereto, Upon termination of this Agreement, Escrow Agent shall disburse the Debt Service Funds pursuant to the directions in a Joint Written Direction and thereafter, Escrow Agent shall have no Ai rther obligation or liability whatsoever with respect to this Agreement or the Debt Service Funds. 13. Consent to rurisd'ctian and Venue. In the event that any party hereto commences a lawsuit or other proceeding relating to or arising from this Agreement, the parties hereto agree that a court of competent jurisdiction located in Dade County, Florida shall have sole and exclusive jurisdiction. Any such court shall be proper venue for any such lawsuit or judicial proceeding and the parties hereto waive any objection to such venue. The parties hereto consent to and agree to submit to the jurisdiction of any of the courts specified herein and agree to accept service or process to vest personal jurisdiction over them in any of these courts. 14. Nalicos. Except as otherwise provided in this Agreement, all notices, demands, requests, consents, approvals or other communications required or permitted to be given hereunder or which are given with respect to this Agreement shall be effective only if in writing and served by (1) facsimile transmission and (ii) personal delivery or overnight courier, as follows: M101/271249.2 -10- 9:a- 1300 To the City: City Manager Att: Edward Marquez City Manager's Office Miami Riverside Center 444 S.W. 2nd Ave. Miami, FL 33131 Telephone: (305) 416-1025 Facsimile: (305) 400-5042 To the Oversight Board/ FSAB: Chief of Staff Att: Charles Wolfe Financial Emergency Oversight Board Miami Riverside Center 444 S.W. 2nd Ave. Miami, FL 33131 Telephone: (305) 416-1025 Facsimile: (305) 400-5042 To Escrow Agent: First Union National Bank of Florida First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Attention: Telephone: (305) Facsimile: (305) or to such other address as such party shall have specified most recently by like Notice. (a) In the event of a conflict between the terms of a Bond and Debt Obligation Agreement and the terms of this Agreement, the terms of the respective Bond and Debt Obligation Agreement shall control as between the City and the creditors thereunder, but Escrow Agent shall have no responsibility for complying with such Bond and Debt Obligation Agreement. (b) In connection with any action arising from or in connection with the enforcement of this Agreement, the prevailing party shall be entitled to an award of its expenses, including reasonable attorneys' fees and disbursements, incurred or paid before and at trial or any other proceeding which may be instituted, at any tribunal level. 141011231249.2 L 97- 130 (c) No amendment, modification, waiver or discharge o£this Agreement, or any provision hereof (including, without limitation, this paragraph (c)) shall be valid or effective unless in writing and signed by Escrow Agent, by the FSAB and by the City. (d) The captions used in this Agreement are for convenience of reference only and shall not be construed to extend, limit or modify the scope or meaning of the respective sections to which they relate. This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that this Agreement may have been physically prepared by one of the parties, or such parry's counsel; it being agreed that all parties and their respective counsel have mutually participated in the negotiation and preparation of this Agreement. (0) This Agreement may be changed, waived, discharged or terminated only by a writing signed by the Authorized Representatives of each party hereto. No delay or omission by any party in exercising any right with respect hereto shall operate as a waiver. A waiver on any one occasion shall not be construed as a bar to, or waiver of any right or remedy on any ftiture occasion. (f) To the extent any provision of this Agreement is prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. (g) This Agreement constitutes the entire agreement between the parties relating to the holding, investment and disbursement of the Debt Service Funds and sets forth in their entirety the obligations and duties of Escrow Agent with respect to the Debt Service Funds. (h) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida, without respect to its conflicts of law. (i) This Agreement may be executed in two or more counterparts. Facsimile copies of this Agreement, executed in counterparts, shall be deemed to be originals for all purposes. N1011271249.2 L (END OF PAGE; SIGNATURES ON FOLLOWING PAGES] -12- 97- 130, . 7 S ' d I'diol IN WITNESS WHEREOF, Escrow Agent, the Oversight Board, acting through its committee, the FSAB, and the City have executed this Agreement on the respective dates set forth below. Escrow Agent: FIRST UNION NATIONAL. BANK OF FLORIDA By: Print Name: Title: February. , 1997 Oversight Board: OVERSIGHT BOARD FISCAL SUFFICIENCY ADVISORY BOARD By: Print Name: Adolfo Henriques Title: Chair, Fiscal Sufficiency Advisory Board February .1997 City: CITY OF ML"H RV - Print Name: Edward Marquez Title: City Manager February .1997 M101/291249.2 - 1 3- FT • 1 .. _ ._ .. .. L 97- 00 F ww� Ij Slot 97- 130 F SCHEDULE LI AU'TkTQRTZED REPREsxi mI`ATIV s Of the City: NAME TITLE Of the Oversight Board/FSAB: 13„—hM Of Escrow Agent: NAME M1011231249.2 9'7- 130 SCHEDULE 1.2 hiOl/231249.2 97- 130 M1011231249.2 L SCHEDULE 1..3 .nr,1 97- 130 M101/231244.2 in SCHEDULE 1.4 97- 130 MIOIl291249.2 L SCHEDULE 1.5 97- 130 MOV231249.1 L SCHEDULE 1.6 97 - 130 M(Ol/271249.2 In SCHEDULE 4.1 9'7- 130 SCHEDULE 4.2 Mtotr231249,2 97- 130 ESA * rl 1 i iN t i i - c t M-1-1 4 k 1unvn� M101/231249,2 MT 'A L SCHEDULE 4.3 97 190 M101/231249.2 L SCgEEDULE 5.1 97- 130 III f"TMM-1 dA lwn%jP111 rAt-- MT Ir-T T7 YT'1 1 F i N1011231244.2 SCBEDULU 5.2 9% 130 .zlId -luloi n161123120.2 L SCHEDULE 7.1 J_ .