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HomeMy WebLinkAboutExhibit DEXHIBIT "D" DRAFT FORM OF ESCROW DEPOSIT AGREEMENT ESCROW DEPOSIT AGREEMENT THIS ESCROW DEPOSIT AGREEMENT, dated December J 2019, by and between the CITY OF MIAMI, FLORIDA (the "City"), a municipal corporation validly organized and existing under and by virtue of the laws of the State of Florida, and TD BANK, NATIONAL ASSOCIATION, a national banking association organized under the laws of the United States of America, as Escrow Agent, and its successors and assigns (the "Escrow Agent"); WITNESSETH: WHEREAS, the City has previously authorized and issued its Refunded Bonds as hereinafter described, and the City has determined to defease and current refund the presently outstanding principal amount of the originally issued $60,110,000.00 Parking System Revenue and Revenue Refunding Bonds, Tax -Exempt Series 2009, as to which the Debt Service for the Refunded Bonds is set forth on Schedule A; and WHEREAS, the City has determined to provide for payment of the Total Debt Service for the Refunded Bonds by depositing with the Escrow Agent an amount which is at least equal to such Debt Service for the Refunded Bonds; and WHEREAS, in order to obtain certain of the funds needed for such purpose, the City has authorized and is, concurrently with the delivery of this Escrow Deposit Agreement, issuing its Million Dollars ($ ) City of Miami, Florida Parking System Revenue Refunding Bonds, Tax -Exempt Series 2019 (the "Series 2019 Bonds"); and WHEREAS, the execution of this Escrow Deposit Agreement and full performance of the provisions hereof shall defease and discharge the City's obligations relating to the Refunded Bonds; NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the City and the Escrow Agent agree as follows: SECTION 1. Definitions. As used herein, the following terms mean: "City" means the City of Miami, Florida. "Escrow Account" means the account hereby created and entitled Escrow Account established and held by the Escrow Agent pursuant to this Escrow Deposit Agreement in which cash and investments will be held for payment of the principal and interest on the Refunded Bonds as they come due. "Escrow Agent" means TD Bank, National Association and its successors and assigns organized and existing under the laws of the United States of America, having its designated corporate trust office in Cherry Hill, New Jersey, as escrow agent hereunder. "Escrow Deposit Agreement" means this Escrow Deposit Agreement. "Escrow Requirements" means, as of any date of calculation, the sum of an amount in cash and principal amount of Government Obligations in the Escrow Account which together with the interest to become due on the Government Obligations will be sufficient to pay the Total Debt Service on the Refunded Bonds in accordance with Schedule A. ["Government Obligations" has the meaning as defined in Ordinance No. 11693 enacted by the City Commission of the City of Miami, Florida on August 14, 1998, as supplemented and amended by Ordinance No 11719, enacted by the City Commission on October 27, 1998.] "Refunded Bonds" means the City's currently outstanding City of Miami, Florida Parking System Revenue and Revenue Refunding Bonds, Tax -Exempt Series 2009 in the amount of Thousand Dollars ($ ) maturing on October "Total Debt Service for the Refunded Bonds" means, as of any date, the sum of the principal and interest, remaining unpaid with respect to the Refunded Bonds in accordance with Schedule A attached hereto. SECTION 2. Deposit of Funds. The City hereby deposits $ with the Escrow Agent for deposit into the Escrow Account, in immediately available funds, which funds the Escrow Agent acknowledges receipt of, to be held in irrevocable escrow by the Escrow Agent separate and apart from other funds of the Escrow Agent and applied solely as provided in this Escrow Deposit Agreement. $ of such funds are being derived from the Debt Service Fund of the Refunded Bonds, and $ of such funds are being derived from proceeds of the Series 2019 Bonds. The City represents that the amount deposited, without taking into account all of the reinvestment instructions herein, (i) is at least equal to the Total Debt Service for the Refunded Bonds as of the date of such deposit, and (ii) is sufficient to pay principal maturity, redemption premium, if any, and interest on the Refunded Bonds as they become due and payable in accordance with Schedule A attached hereto. SECTION 3. Use and Investment of Funds. The Escrow Agent acknowledges receipt of the sums described in Section 2 and agrees: (a) to hold the funds pursuant to this Escrow Deposit Agreement in irrevocable escrow during the term of this Escrow Deposit Agreement for the sole benefit of the Holders of the Refunded Bonds; 2 [(b) to pay $ of such funds upon delivery of the Government Obligations set forth in Schedule B attached hereto and hold $ in cash;] [(c) to hold such Government Obligations and cash in the Escrow Account in accordance with the terms of this Escrow Deposit Agreement;] [(d) to timely invest funds in the Escrow Account in the Government Obligations set forth on Schedule B attached hereto and to hold such securities in accordance with the terms of this Escrow Deposit Agreement;] [(e) in the event the securities described on Schedule B cannot be purchased, substitute securities may be purchased with the consent of the City but only upon receipt of verification from an independent certified public accountant that the Government Obligations, the interest thereon, and the cash deposited in the Escrow Account will not be less than the Total Debt Service for the Refunded Bonds, and only upon receipt of an opinion of Bryant Miller Olive P.A. that such securities constitute Government Obligations for purposes of this Escrow Deposit Agreement.] [(f) there will be no investment of funds except as set forth in this Section 3 and in Section 5 hereof.] SECTION 4. Pavment of Refunded Bonds. (a) Refunded Bonds. On the date and in the amount set forth on Schedule A, the Escrow Agent shall transfer to TD Bank, National Association, or its successors or assigns, the paying agent for the Refunded Bonds (the 'Paying Agent"), in immediately available funds solely from amounts available in the Escrow Account, a sum sufficient to pay that portion of the Total Debt Service for the Refunded Bonds coming due on such date, as shown on Schedule A. (b) )Reservedl (c) Surplus. After making the payments from the Escrow Account described in Subsection 4(a) above, the Escrow Agent shall retain in the Escrow Account any remaining cash in the Escrow Account in excess of the Total Debt Service for the Refunded Bonds until the termination of this Escrow Deposit Agreement, and shall then pay any remaining funds to the City. (d) Prioritv of Pavments. The Holders of the Refunded Bonds shall have an express first priority security interest in the funds [and Government Obligations] in the Escrow Account until such funds [and Government Obligations] are used and applied as provided in this Escrow Deposit Agreement. 3 SECTION 5. Reinvestment. (a) Except as provided in Section 3 and in this Section, the Escrow Agent shall have no power or duty to invest any funds held under this Escrow Deposit Agreement [or to sell, transfer or otherwise dispose of or make substitutions of the Government Obligations held hereunder.] [(b) At the written request of the City and upon compliance with the conditions hereinafter stated, the Escrow Agent shall sell, transfer or otherwise dispose of any of the Government Obligations acquired hereunder and shall substitute other Government Obligations and reinvest any excess receipts in Government Obligations. Except as provided in Section 3 hereof, the transactions may be effected only if an independent certified public accountant selected by the City shall certify or opine in writing to the City and the Escrow Agent that Government Obligations, interest thereon, and cash remaining on hand after the transactions are completed will, assuming no reinvestment earnings, be not less than the Total Debt Service for the Refunded Bonds, and that reinvestment in such Government Obligations will not postpone the anticipated transfer of moneys from the Escrow Account to the Paying Agent pursuant to Section 4(a) hereof. Subsection 4(c) above notwithstanding, cash in excess of the Total Debt Service for the Refunded Bonds caused by substitution of Government Obligations shall, as soon as practical, be paid to the City. Notwithstanding any provision of this Escrow Deposit Agreement to the contrary, no forward purchase agreement relating to the future reinvestment of cash held hereunder shall be executed unless the following condition is met: to the extent either Moody's Investors Service, Inc., Fitch Ratings, Inc. and/or S&P Global Ratings have an outstanding rating on the Refunded Bonds, at least one of such rating agencies must give written confirmation that it will not lower or withdraw the rating as a result of the City's execution of such forward purchase agreement. In the event of any inconsistency between the terms and conditions of such forward purchase agreement and this Escrow Deposit Agreement, the terms and conditions of this Escrow Deposit Agreement shall control.] SECTION 6. Redemption or Acceleration of Maturity. The City shall not accelerate or defer the maturity or redemption of the Refunded Bonds so as to modify the debt service set forth on Schedule A attached hereto. SECTION 7. Indemnity.. To the extent permitted by law, subject to the provisions of Section 768.28, Florida Statutes and without waiving sovereign immunity, the City hereby assumes liability for, and hereby agrees to indemnify, protect, save and keep harmless, the Escrow Agent and its respective successors, assigns, agents and servants, from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses and disbursements of whatsoever kind and nature which may be imposed on, incurred by, or asserted against at any time, the Escrow Agent (whether or not also indemnified against the same by the City or any other person under any other agreement or instrument) which relates to or arises out of the execution and delivery of this Escrow Deposit Agreement, the establishment of the Escrow Account established hereunder, the acceptance of the funds [and securities] deposited therein, [the purchase of the Government Obligations, the retention of the 4 Government Obligations or the proceeds thereof] and any payment, transfer or other application of funds [or securities] by the Escrow Agent in accordance with the provisions of this Escrow Deposit Agreement; provided, however, that the City shall not be required to indemnify the Escrow Agent against its own negligence or willful misconduct or that of a third party nor to pay any of the attorneys' fees and costs for the Escrow Agent or such third party. In no event shall the City be liable to any person by reason of the transactions contemplated hereby other than to the Escrow Agent as set forth in this Section. The indemnities contained in this Section shall survive the termination of this Escrow Deposit Agreement. The Escrow Agent shall not be liable for any deficiencies in the amounts necessary to pay the Total Debt Service for the Refunded Bonds. [Furthermore, the Escrow Agent shall not be liable for the accuracy of the calculation as to the sufficiency of moneys and the principal amount of Government Obligations and the earnings thereon to pay the Total Debt Service for the Refunded Bonds.] Notwithstanding the foregoing, each party shall bear its own attorney's fees and expenses in any suit by and between the City and the Escrow Agent for the negligence or willful misconduct of either of them. SECTION 8. Responsibilities of Escrow Agent. The Escrow Agent and its respective successors, assigns, agents and servants shall not be held to any personal liability whatsoever, in tort, contract, or otherwise, in connection with the execution and delivery of this Escrow Deposit Agreement, the establishment of the Escrow Account, the acceptance of the funds deposited therein, [the purchase of the Government Obligations] or for any payment, transfer or other application of moneys [or securities] by the Escrow Agent in accordance with the provisions of this Escrow Deposit Agreement or by reason of any non -negligent or non -willful act, omission or error of the Escrow Agent made in good faith in the conduct of its duties. The Escrow Agent shall, however, be responsible for its negligent or willful failure to comply with its duties required hereunder, and its negligent or willful acts, omissions or errors hereunder (including full reimbursement to the City of any rebate liability of the City, including interest and penalties thereon). The duties and obligations of the Escrow Agent may be determined by the express provisions of this Escrow Deposit Agreement. The Escrow Agent may consult with counsel, who may or may not be counsel to the City, at the City's expense, and in reliance upon the opinion of such counsel, shall have full and complete authorization and protection in respect of any action taken, suffered or omitted by it in good faith in accordance therewith. Whenever the Escrow Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action under this Escrow Deposit Agreement, such matter may be deemed to be conclusively established by a certificate signed by an authorized officer of the City. SECTION 9. Resignation of Escrow Agent. The Escrow Agent may resign and thereby become discharged from the duties and obligations hereby created, by notice in writing given to the City, any rating agency then providing a rating on the Refunded Bonds, and the Paying Agent for the Refunded Bonds not less than sixty (60) days before such resignation shall take effect. Such resignation shall not take effect until the appointment of a new Escrow Agent hereunder. SECTION 10. Removal of Escrow Agent. (a) The Escrow Agent may be removed at any time by an instrument or concurrent instruments in writing, executed by the holders of not less than fifty-one percent (51%) in aggregate principal amount of the Refunded Bonds then outstanding, such instruments to be filed with the City, and notice in writing given by such holders to the original purchaser or purchasers of the Series 2019 Bonds and published by the City once in a newspaper of general circulation in the territorial limits of the City, and in a daily newspaper or financial journal of general circulation in the City of New York, New York, not less than sixty (60) days before such removal is to take effect as stated in said instrument or instruments. A photographic copy of any instrument filed with the City under the provisions of this paragraph shall be delivered by the City to the Escrow Agent. (b) The Escrow Agent may also be removed at any time for any breach of trust or for acting or proceeding in violation of, or for failing to act or proceed in accordance with, any provisions of this Escrow Deposit Agreement with respect to the duties and obligations of the Escrow Agent by any court of competent jurisdiction upon the application of the City or the holders of not less than five percent (5%) in aggregate principal amount of the Series 2019 Bonds then outstanding, or the holders of not less than five percent (5%) in aggregate principal amount of the Refunded Bonds then outstanding. (c) The Escrow Agent may not be removed until a successor Escrow Agent has been appointed in the manner set forth herein. SECTION 11. Successor Escrow Agent. (a) If, at any time hereafter, the Escrow Agent shall resign, be removed, be dissolved or otherwise become incapable of acting, or shall be taken over by any governmental official, agency, department or board, the position of Escrow Agent shall thereupon become vacant. If the position of Escrow Agent shall become vacant for any of the foregoing reasons or for any other reason, the City shall immediately appoint an Escrow Agent to fill such vacancy and, upon such appointment, all assets held hereunder shall be transferred to such successor. The City shall either (i) publish notice of any such appointment made by it once in each week for four (4) successive weeks in a newspaper of general circulation published in the territorial limits of the City and in a daily newspaper or financial journal of general circulation in the City of New York, New York, or (ii) mail a notice of any such appointment made by it to the Holders of the Refunded Bonds and the Holders of the Series 2019 Bonds within thirty (30) days after such appointment. 0 (b) If no appointment of a successor Escrow Agent shall be made pursuant to the foregoing provisions of this Section, the holder of any Refunded Bonds then outstanding, or any retiring Escrow Agent, may apply to any court of competent jurisdiction to appoint a successor Escrow Agent. Such court may thereupon, after such notice, if any, as such court may deem proper and prescribe, appoint a successor Escrow Agent. (c) Any corporation or association into which the Escrow Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, ipso facto, shall be and become successor Escrow Agent hereunder and vested with all the trust, powers, discretions, immunities, privileges and all other matters as was its predecessor, without the execution or filing of any instrument or any further act, deed or conveyance on the part of any parties hereto, anything herein to the contrary notwithstanding, provided such successor shall have reported total capital and surplus in excess of $500,000,000, provided that such successor Escrow Agent assumes in writing all the trust, duties and responsibilities of the Escrow Agent hereunder. SECTION 12. Payment to Escrow Agent. The Escrow Agent hereby acknowledges that it has agreed to accept compensation under the Escrow Deposit Agreement in the sum of $ payable at closing, for services to be performed by the Escrow Agent pursuant to this Escrow Deposit Agreement, plus out-of-pocket expenses (including attorney's fees) to be reimbursed at cost from legally available funds of the City. The Escrow Agent shall have no lien or claim against funds in the Escrow Account for payment of obligations due under this Section. SECTION 13. Term. This Escrow Deposit Agreement shall commence upon its exe- cution and delivery and shall terminate when the Refunded Bonds have been paid and discharged in accordance with the proceedings authorizing the Refunded Bonds. SECTION 14. Severability. If any one or more of the covenants or agreements provided in this Escrow Deposit Agreement on the part of the City or the Escrow Agent to be performed should be determined by a court of competent jurisdiction to be contrary to law, notice of such event shall be sent to [Moody's Investors Service, Fitch Ratings Inc. and S&P Global Ratings], but such covenant or agreements herein contained shall be null and void and shall in no way affect the validity of the remaining provisions of this Escrow Deposit Agreement. SECTION 15. Amendments to this Escrow Deposit Agreement. This Escrow Deposit Agreement is made for the benefit of the City and the Holders from time to time of the Refunded Bonds and it shall not be repealed, revoked, altered or amended in whole or in part without the written consent of all affected Holders, the Escrow Agent and the City; provided, however, that the City and the Escrow Agent may, without the consent of, or notice to, such Holders, enter into such agreements supplemental to this Escrow Deposit Agreement as shall 7 not adversely affect the rights of such Holders and as shall not be inconsistent with the terms and provisions of this Escrow Deposit Agreement, for any one or more of the following purposes: (a) to cure any ambiguity or formal defect or omission in this Escrow Deposit Agreement; (b) to grant to, or confer upon, the Escrow Agent, for the benefit of the Holders of the Refunded Bonds any additional rights, remedies, powers or authority that may lawfully be granted to, or conferred upon, such Holders or the Escrow Agent; and (c) to subject to this Escrow Deposit Agreement additional funds, securities or properties. The Escrow Agent shall, at its option, be entitled to request at the City's expense and rely exclusively upon an opinion of nationally recognized attorneys on the subject of municipal bonds acceptable to the City with respect to compliance with this Section, including the extent, if any, to which any change, modification, addition or elimination affects the rights of the Holders of the Refunded Bonds or that any instrument executed hereunder complies with the conditions and provisions of this Section. Prior written notice of such amendments, together with proposed copies of such amendments, shall be provided to [Moody's Investors Service, Fitch Ratings, Inc., and S&P Global Ratings] (but only to the extent such agencies have a rating outstanding on any of the Refunded Bonds). SECTION 16. Counterparts. This Escrow Deposit Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. SECTION 17. Governing Law. This Escrow Deposit Agreement shall be construed under the laws of the State of Florida. SECTION 18. Public Records Laws. The City and the Escrow Agent acknowledge and agree that this Escrow Deposit Agreement is a public record within the meaning of Florida Public Records laws. Should the City receive a request to copy or inspect a public record that the City does not possess, but the City believes the Escrow Agent may possess, the City shall forward such public records request to the Escrow Agent in writing and the City and the Escrow Agent shall work together expeditiously to determine whether the Escrow Agent possesses such public record and if so to comply with the request. Provided, that should the Escrow Agent believe (1) that any public records request is subject to an exemption for the Escrow Agent under the Florida Public Records laws, or (2) that the Florida Public Records laws do not apply to the Escrow Agent with respect to the public records request, the Escrow Agent shall so notify the City in writing. If the City disagrees with the position of the Escrow Agent then the City may take such further action as it deems necessary to enforce production of the document or other record in question. In addition, if the Escrow Agent receives a request to copy or inspect a public record from any party other than the City or another governmental agency, the Escrow Agent shall not honor the request. Rather, the Escrow Agent shall forward the request to the City and the provisions and procedures in the preceding paragraph shall be applied to the forwarded request. IF THE ESCROW AGENT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE ESCROW AGENT'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS ESCROW DEPOSIT AGREEMENT, ALL EXHIBITS HERETO, PLEASE CONTACT THE DIVISION OF PUBLIC RECORDS AT (305) 416-1800, VIA EMAIL AT PUBLICRECORDS@MIAMIGOV.COM, OR REGULAR MAIL AT CITY OF MIAMI OFFICE OF THE CITY ATTORNEY, 444 SW 2ND AVENUE, 9TH FL, MIAMI, FL 33130. THE ESCROW AGENT MAY ALSO CONTACT THE RECORDS CUSTODIAN AT THE CITY OF MIAMI FINANCE DEPARTMENT WHO IS ADMINISTERING THIS ESCROW DEPOSIT AGREEMENT. SECTION 19. Audit and Inspection Rights and Records Retention. The Escrow Agent agrees to provide access to the City or to any of its duly authorized representatives, to any books, documents, papers, and records of the Escrow Agent which are directly pertinent to this Escrow Deposit Agreement, for the purpose of audit, examination, excerpts, and transcripts. The City may, at reasonable times, and for a period of up to three (3) years following the date of final payment by the City to the Escrow Agent under this Escrow Deposit Agreement, audit and inspect, or cause to be audited and inspected, those books, documents, papers, and records of the Escrow Agent which are related to Escrow Agent's performance under this Escrow Deposit Agreement. The Escrow Agent agrees to maintain any and all such books, documents, papers, and records at its principal place of business for a period of three (3) years after final payment is made under this Escrow Deposit Agreement and all other pending matters are closed. [Remainder of page intentionally left blank] I IN WITNESS WHEREOF, the parties hereto have caused this Escrow Deposit Agreement to be executed by their duly authorized officers and their corporate seals to be hereunto affixed and attested as of the date first above written. (OFFICIAL SEAL) ATTESTED AND COUNTERSIGNED: in Todd B. Hannon, City Clerk S-1 CITY OF MIAMI, FLORIDA, a municipal corporation In Emilio T. Gonzalez, City Manager Approved as to Form and Correctness: is Victoria Mendez, City Attorney Approved as to Insurance Requirements of the City: 51 In Anne -Marie Sharpe, Risk Management Director Arthur Noriega, Executive Director ATTEST: In [SIGNATURE PAGE OF ESCROW DEPOSIT AGREEMENT] TD BANK, NATIONAL ASSOCIATION, as Escrow Agent S-2 [Name] [Title] SCHEDULE A TOTAL DEBT SERVICE FOR REFUNDED BONDS Period Ending Interest Principal Redeemed Total Total A-1 SCHEDULE B GOVERNMENT OBLIGATIONS Type of Maturity Par Accrued Total Security Date Amount Rate Yield Price Cost Interest Cost (Remainder of page intentionally left blank)