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HomeMy WebLinkAboutCRA-R-14-0051 Exhibit EFISCAL AGENT AGREEMENT This Fiscal Agent Agreement is made and entered into as of 2014, by and between the SOUTHEAST OVERTOWNIPARK WEST COMMUNITY REDEVELOPMENT AGENCY (the "Agency") and (the "Bank"). WITNESSETH: WHEREAS, the Agency has, by Resolution No. CRA-R-12-0061 adopted by the Agency on September 17, 2012, as amended and supplemented, particularly as supplemented by Resolution No. CRA-R-14- adopted by the Agency on , 2014 (collectively, the "Resolution"), authorized, sold and issued its Tax Increment Revenue Bonds, Series 2014A (the "Series 2014A Bonds"); WHEREAS, the Agency desires to appoint the Bank as Registrar, Authenticating Agent, Paying Agent and Funds Trustee for the Series 2014A Bonds; and WHEREAS, the Bank desires to accept appointment as Registrar, Authenticating Agent, Paying Agent and Funds Trustee for the Series 2014A Bonds. NOW, THEREFORE, the Agency and the Bank agree as follows: SECTION 1. Definitions. The Resolution, along with the Series 2014A Bonds, and this Fiscal Agent Agreement, each relating to the Series 2014A Bonds, are herein called the "Bond Documents." All other capitalized terms used herein shall have the meanings ascribed to them in the Resolution unless the context clearly indicates a different meaning is intended. SECTION 2. Role of Bank; Funds, Accounts and Subaccounts Held by Funds Trustee. The Bank shall serve as Registrar, Paying Agent, Authentication Agent (as defined in Section 4(C) below) and Funds Trustee (as defined below) for the Series 2014A Bonds.. As "Funds Trustee," the Bank shall be custodian and trustee of the SEOPW CRA Revenue Bond Trust Fund Account, the Construction Fund, the Tax Increment Revenue Bond Fund, the Debt Service Account in the Tax Increment Revenue Bond Fund, the Reserve Account in the Tax Increment Revenue Bond Fund (including the Composite Reserve Subaccount therein), the Rebate Account in the Tax Increment Revenue Bond Fund, and any other accounts or subaccounts established within the foregoing funds and accounts in accordance with terms of the Resolution. The Agency has or shall, upon authentication and delivery of the Series 2014A Bonds, deliver or cause to be delivered to the Bank, counterparts of true and correct copies of the Bond Documents. SECTION 3. Terms and Form. The text of the Series 2014A Bonds and the Resolution establish the terms, form and authorized denominations of the Series 2014A Bonds, any limit upon the aggregate principal amount of the Series 2014A Bonds which may be authenticated and delivered (except for the Series 2014A Bonds authenticated and delivered upon transfer, exchange or substitution), the date or dates on which the principal of and premium, if any, on the Series 2014A Bonds are payable, the rate or rates, if any, at which the Series 2014A Bonds shall bear interest, the date or dates from which such interest shall accrue, the dates on which such interest shall be payable and the record dates for the determination of the Holders of the Series 2014A Bonds to whom interest is payable, the place or places where the principal of and premium, if any, are payable, the price or prices at which, the period or periods within which and the terms and conditions upon which the Series 2014A Bonds may be redeemed, in whole or in part, at the option of the Agency or by mandatoryredemption, and the price at which the Series 2014A Bonds shall initially be issued. SECTION 4. Bank's Duties. (A) Registrar's Duties. The Bank will maintain, or cause to be maintained, a register for the registration, transfer and exchange of the Series 2014A Bonds. Transfers and exchanges thereof shall be subject to the provisions of the Bond Documents. No service charge shall be made against the Holder for any such transfer or exchange of any Series 20I4A Bond unless otherwise provided by the provisions of the text of such Series 2014A Bond or the Resolution. The replacement of any Series 2014A Bond which has been mutilated, destroyed, lost or wrongfully taken shall be as set forth in the Resolution. The Bank agrees to perform all other duties assigned to the Registrar in the Resolution. (B) Paying Agent's Duties. The Bank shall serve as Paying Agent for the Series 2014A Bonds as provided in the Bond Documents. The Bank, from the funds so paid to it as Paying Agent, shall pay the interest, principal and premium, if any, on the Series 2014A Bonds, in accordance with the Bond Documents. In the event that any Series 2014A Bond shall not be presented to the Bank for payment after the principal and premium, if any, becomes due, either at maturity or otherwise, or the Bank shall not have been able to pay the interest on any Series 2014A Bond after the interest was due because of a failure of the Holder (or other payee designated by the order of the Holder) to cash any check or draft, the Bank shall hold such moneys for the benefit of the payee until payment can be made or until the Paying Agent is required to remit the unpaid sums to the Agency in accordance with the Resolution and the Series 2014A Bonds. Prior to said remission, the Bank shall hold the unpaid funds uninvested without liability to the payee or to the Agency for interest thereon. In the case of Series 2014A Bonds which provide for early redemption, the provisions set forth in the Resolution and the Series 2014A Bonds shall apply. The Bank agrees to perform all other duties assigned to the Paying Agent in the Resolution and the Series 2014A Bonds with respect to the redemption of Series 2014A Bonds and, on behalf of the Agency, to give notice with respect thereto as provided in the Resolution and the Series 2014A Bonds. (C) Authenticating Agent's Duties. The Bank is hereby appointed as the authenticating agent for the Agency (the "Authenticating Agent") and, upon delivery to it by the Agency of the Series 2014A Bonds, duly executed on behalf of the Agency as provided in the Resolution and upon receipt of written authorization by the Agency, shall authenticate and, as required by the Resolution, register such Series 2014A Bonds in an aggregate principal amount specified in the text of the Series 2014A Bonds and. Resolution and deliver them in accordance with instructions received from the Agency. 2 In connection with any exchange, transfer or substitution of the Series 2014A Bonds, the Bank shall authenticate and register the Series 2014A Bonds and deliver them in accordance with the provisions of the Resolution and the Series 2014A Bonds. The Bank agrees to perform all other duties assigned to the Authenticating Agent in the Resolution and the Series 2014A Bonds. (D) Funds Trustee's Duties. 1. SEOPW CRA Revenue Bond Trust Fund; Tax Increment Bond Fund; Debt Service Account. As provided in the Resolution, the Agency will transfer, or cause to be transferred, upon receipt, the Pledged Tax Increment Revenues from the Redevelopment Trust Fund to the SEOPW CRA Revenue Bond Trust Fund Account and then transferred by the Fiscal Agent to the Tax Increment Revenue Bond Fund and then deposited by the Fiscal Agent into the Debt Service Account, (i) such sums which, together with other amounts deposited in the Debt Service Account, will be equal to the Debt Service Requirement coming due during the then - current Bond Year with respect to the Series 2014A Bonds and any Additional Bonds until there are sufficient funds then on deposit in the Debt Service Account equal to the interest, principal and redemption payments due on the Series 2014A Bonds and any Additional Bonds on the interest and principal payment- dates arld redemption dates in such Bond Year, and (ii) the fees and charges of the Bank hereunder. Such sums shall be used by the Paying Agent to pay the interest, principal and premium, if any, on the Series 2014A Bonds and any Additional Bonds, in accordance with the Resolution and the terms of the Bonds. 2. Series 2014A Construction Account. There is hereby established a separate subaccount within the Construction Fund designated the "Series 2014A Construction Account" (the "Series 2014A Construction Account"). As provided in the Resolution and the Bond Documents, the net proceeds of the Series 2014A Bonds shall be deposited in the Series 2014A Construction Account. The Funds Trustee shall make disbursements or payments from the Series 2014A Construction Account to pay certain grants to be used to pay the Costs of the 2012 Redevelopment Projects (the "Redevelopment Projects") and to pay other Costs of the Redevelopment Projects, including costs of issuance of the Series 2014A Bonds, as more particularly described in the Resolution, upon the filing with the Funds Trustee of documents and/or certificates ("Requisitions") signed by any one of the Chairman or the Executive Director of the Agency, or any other officer or member of the Agency or officer of the City designated to the Bank in writing by the Chairman (each, an "Authorized Officer"), stating, with respect to each payment to be made: (1) the item number of the payment; (2) the name and address of the person to whom payment is due; (3) the amount to be paid; (4) the purpose, by general classification, for which payment is to be 3 made; and (5) that such payment is a proper charge against the Series 2014A Construction Account, and has not been the basis of any previous disbursement or payment. The Funds Trustee shall retain all such documents and certificates relating to such disbursements and payments from the Series 2014A Construction Account so long as the Funds Trustee is administering Series 2014A Construction Account, and thereafter shall deliver such documents and certificates to the Agency. The Funds Trustee shall make available such documents and certificates at all reasonable times for inspection by the Agency, any Holder of the Series 2014A Bonds or the agent or representative of any such Holder. 3, Reserve Account. The Agency will transfer, or cause to be transferred, upon receipt, the Pledged Tax Increment Revenues from the Redevelopment Trust Fund to the SEOPW CRA Revenue Bond Trust Fund Account and then transferred by the Fiscal Agent to the Tax Increment Revenue Bond Fund and then deposited by the Fiscal Agent into the Reserve Account in accordance with the Resolution and the terms of the Bond Documents. 4. Rebate Account. The Agency will transfer, or cause to be transferred, upon receipt, the Pledged Tax Increment Revenues from the Redevelopment Trust Fund to the SEOPW CRA Revenue Bond Trust Fund Account and then transferred by the Fiscal Agent to the Tax Increment Revenue Bond Fund and then deposited by the Fiscal Agent into the Rebate Account in accordance with the Resolution and the terms of the Bond Documents. 5. Investments. The Bank shall invest amounts on deposit in the funds, accounts and subaccounts held by it as Funds Trustee as directed in writing by an Authorized Officer. The Bank shall keep records of the amounts and investments in the funds, accounts and subaccounts held by it as Funds Trustee and of the income earned thereon and shall, at the request of the Agency, provide the Agency with information with respect thereto which is needed by the Agency to make calculations required by Section 148(f) of the Code. The Bank shall have no responsibility hereunder for making any such calculations. Investment income earned on amounts on deposit in each Account shall be credited to such Account. The Bank shall not have any responsibility or liability for any losses incurred with respect to any investments purchased or sold in accordance with written directions of an Authorized Officer of the Agency. Investment income earned on amounts in the Debt Service Account shall be maintained in the Debt Service Account and the Agency shall receive credit therefor as described in the Resolution. Amounts on deposit in the Debt Service Account in excess of the principal of, premium, if any, and interest on the Series 2014A Bonds and any Additional Bonds due on the next succeeding payment dates for the Series 2014A Bonds and any Additional Bonds shall be transferred to the Agency on the latest such payment date. Investment income earned on amounts on deposit in the Series 2014A Construction Account shall be credited to the Series 2014A Construction Account until substantial completion or abandonment of the Redevelopment Projects, at which time said income and any amounts remaining in the Series 2014A Construction Account shall be deposited at the direction of an Authorized Officer of the Agency, as provided in the Resolution. (E) Other Duties. If, in the performance of its duties hereunder, the Bank obtains actual knowledge that an "event of default," as defined in the Resolution (an "Event of Default"), has occurred it shall immediately so notify the Agency. The Funds Trustee shall have no obligation to give any other notices of default and shall have no power or duty to exercise any remedies under the Resolution. SECTION 5. Resignation. The Bank may at any time resign as Registrar, Authenticating Agent, Paying Agent and Funds Trustee by giving written notice of its resignation to the Agency at least 60 days before the resignation is stated to take effect. The resignation shall take effect on the date stated therein, provided that if a successor Registrar, Authenticating Agent, Paying Agent and Funds Trustee accepts an appointment prior to such resignation date, the resignation may take effect on the date of such appointment. Notice of the resignation shall be delivered by the Agency to the Registered Owners of the Series 2014A Bonds in the same manner as redemption notices are provided. SECTION 6. Removal. The Bank may be removed as Registrar, Authenticating Agent, Paying Agent and Funds Trustee by the Agency by an instrument or document signed by an Authorized Officer of the Agency in writing,. and the removal shall be effective as of the date of removal stated in the notice. Notice of removal shall be delivered by the Agency to the Registered Owners of the Series 2014A Bonds in the same manner as redemption notices are provided. SECTION 7. Appointment of Successor.. In the case of any such resignation or removal of the Bank, or if the Bank shall become unable to act as such or shall cease to be qualified to serve in any capacity specified herein, a successor Registrar, Authenticating Agent, Paying Agent and Funds Trustee shall be appointed by the Agency. However, if a successor Registrar, Authenticating Agent, Paying Agent and Funds Trustee is not so appointed within (i) ten days after the resignation date or removal date stated in the applicable notice or (ii) the date the Agency has actual notice that the Registrar, Authenticating Agent, Paying Agent and Funds Trustee is unable to act or ceases to be qualified to serve in its capacity, then the Agency shall serve as temporary Registrar; Authenticating Agent, Paying Agent and Funds Trustee until a successor is appointed. Every successor Registrar, Authenticating Agent, Paying Agent and Funds Trustee shall execute and acknowledge, and shall deliver to the Agency, an instrument or document in writing accepting the appointment. 5 SECTION 8. Liability. The Bank shall not be liable for any act done or omitted by it in connection with this Fiscal Agent Agreement, except for liability arising out of the willful misconduct or negligence of the Bank. SECTION 9. Conflict of Interest. The Bank may become a creditor, directly or indirectly, of the Agency, make loans thereto, hold debt obligations thereof (including any of the Series 2014A Bonds), own, accept or negotiate any drafts, bills of exchange, acceptances or other obligations thereof, make disbursements thereof and enter into any commercial or business arrangement therewith without limitation, all without any liability of such dealing. SECTION 10. Signatures. Unless herein otherwise specifically provided, any order, notice, request or other instrument of the Agency made or given by it under any provision of the Bond Documents, including this Fiscal Agent Agreement, shall be sufficient if signed in accordance with any list of authorized signatures of the Agency which shall be furnished by it to the Bank and as to which the Bank shall not have received written notice of the rescission thereof, or by any other member or official of the Agency who shall have been designated in writing in accordance with such list. The Bank shall be fully justified and protected in relying and acting upon any instructions received by it and signed in the manner provided in the preceding sentence, or upon the advice of counsel, who may be counsel for the Agency and shall be satisfactory to the Bank, and shall be fully justified and protected in relying and acting upon and dealing with any Series 2014A Bond, assignment, power of attorney, certificate, order, instruction, notice or other instrument or paper reasonably believed by the Bank to be genuine and duly authorized and properly executed. SECTION 11. Indemnification. The Agency hereby agrees, to the extent permitted by law, to indemnify the Bank and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other reasonable expenses, fees or charges (including reasonable counsel fees and expenses) of any character or nature, which the Bank may incur or with which it may be threatened by reason of its acting as Registrar, Authenticating Agent, Paying Agent and Funds Trustee hereunder and under the other Bond Documents except for liability arising out of the willful misconduct or negligence of the Bank. The obligations of the Agency and the Bank under this paragraph shall survive termination of this Fiscal Agent Agreement, payment of all Series 2014A Bonds and the resignation or removal of the Bank. Notwithstanding any provision in this Agreement to the contrary, nothing in this Agreement shall be construed in any manner as either altering or waiving the Authority's sovereign immunity beyond the legislative waiver found in Section 768.28, Florida Statutes, nor shall it be construed to expand any non -contractual liability of the Authority or to impose any indirect liability on the Authority for tort damages to third parties for which it would not otherwise, by law, be responsible. SECTION 12. Fees and Expenses. The fees and expenses of the Bank to be paid by the Agency for services rendered hereunder shall be as set forth in Exhibit A hereto. If Exhibit A provides for the Bank fees to be modified from time to time, the failure of the Agency and the Bank to agree to any such modification shall be deemed to be "cause" for the removal or 6 resignation of the Bank. The fees and expenses provided for herein are payable from amounts lawfully available for such purposes under the Resolution. SECTION 13. Cancellation. All Series 2014A Bonds paid, redeemed, prepaid or otherwise retired, all mutilated Series 2014A Bonds surrendered in exchange for other Series 2014A Bonds, all Series 2014A Bonds surrendered in exchange for other Series 2014A Bonds pursuant to any of the provisions of the Bond Documents, shall be canceled and destroyed by shredding or cremation. The Bank shall keep records of such cancellation and destruction and not more often than annually shall, upon request of the Agency, provide the Agency with an appropriate certificate of cancellation and destruction. SECTION 14. Forwarding of Notices. If the Bank shall receive any notice or demand addressed to the Agency, the Bank shall promptly notify the Agency's Executive Director, by telephone and mail such notice or demand to such official of the Agency. SECTION 15. Amendments. This Fiscal Agent Agreement may be amended by the parties hereto without the consent of the Registered Owners of any of the Series 2014A Bonds. No amendment shall conflict with or permit any act which conflicts with the Bond Documents. No amendment of this Fiscal Agent Agreement shall be valid and effective unless made by a written agreement executed and approved by the parties hereto. SECTION 16. Assignment. This Fiscal Agent Agreement shall not be assigned by either party, except that any successor by operation or law of the Agency or the Bank shall become a party hereto. The Bank may perform some or all of its duties through its affiliates, agents or subcontractors, and in such case the acts of such affiliates, agents or subcontractors shall be deemed to be acts of the Bank. SECTION 17. Severability. Should any section or part of any section of this Fiscal Agent Agreement be declared void, invalid or unenforceable by any court of law for any reason, such determination shall not render void, invalid or unenforceable any other section or other part of any section of this Fiscal Agent Agreement. SECTION 18. Addresses. Any communications from the Agency to the Bank with respect to this Fiscal Agent Agreement shall be addressed to: C 1 C 1 C 1 Attn: C 1 and any communications from the Bank to the Agency with respect to this Fiscal Agent Agreement shall be addressed to: Southeast Overtown/Park West Community Redevelopment Agency 1490 Northwest 3rd Avenue, Suite 105 Miami, Florida 33136 7 Attn: Executive Director SECTION 19. Governing Law. This Fiscal Agent Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida. SECTION 20. Counterparts. This Fiscal Agent Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. SECTION 21. Other Agreements. This Fiscal Agent Agreement supersedes all prior agreements between the parties relating to the provision of and payment for the fiduciary services to be performed by the Bank hereunder with respect to the Series 2014A Bonds. SECTION 22. Term of Agreement. This Fiscal Agent Agreement shall become effective on its date and shall remain in effect until the earlier of the following dates: (A) The first date following the date on which payment of all principal of, premium, if any, and interest on the Series 2014A Bonds have been paid and all duties of the Bank hereunder and under the Resolution have been fully performed; (B) The date the Bank's resignation becomes effective, as provided herein; (C) The date the Bank's removal by the Agency becomes effective, as provided herein; or (D) March 31, 2030. [Remainder of Page Intentionally Left Blank; Signature Page Follows] 8 IN WITNESS WHEREOF, the parties have executed this Fiscal Agent Agreement as of the first date above written. SOUTHEAST OVERTOWNIPARK WEST COMMUNITY REDEVELOPMENT AGENCY [SEAL] By: [ ] ATTEST: Approved as to Form and Correctness: By: Agency's Attorney [Signature Page to Fiscal Agent Agreement] [BANK], as Registrar, Paying Agent, Authenticating Agent and Funds Trustee By: [ 1 [Signature Page to Fiscal Agent Agreement] 10 EXHIBIT A FEE SCHEDULE