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BCRUA_R-09-05-20-8I RESOLUTION NO. R-09- C6�2 0- WHEREAS, the Brushy Creek Regional Utility Authority (BCRUA) desires to enter into an Escrow Agreement with The Bank of New York Mellon Trust Company, N.A. , Now Therefore BE IT RESOLVED BY THE BRUSHY CREEK REGIONAL UTILITY AUTHORITY, That the Board President is hereby authorized and directed to execute on behalf of the BCRUA an Escrow Agreement with The Bank of New York Mellon Trust Company, N.A. , a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes . The Board hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551 , Texas Government Code, as amended. RESOLVED this & ay of May, 2009 . MITCHULLE President Brushy Creekegional Utility Authority TT ST: oard Secretary 00160870/jkg ESCROW AGREEMENT THIS ESCROW AGREEMENT(this "Agreement"), is between The Bank of New York Mellon Trust Company, N.A., a national banking corporation (the "Escrow Agent") and Brushy Creek Regional Utility Authority, Inc. (the "Issuer"), a non-profit corporation created by and acting on behalf of the Cities of Cedar Park, Leander and Round Rock, Texas, and is dated as of July 1, 2009. WITNESSETH: WHEREAS,the Texas Water Development Board(the"TWDB")has adopted a Resolution Approving an Application for Financial Assistance Through the Purchase of Brushy Creek Regional Utility Authority,Inc.City of Cedar Park, Texas Contract Revenue Bonds, (Brushy Creek Regional Water Treatment and Distribution Project)Series 2009," 'Brushy Creek Regional Utility Authority, Inc.City of Leander,Texas Contract Revenue Bonds,(Brushy Creek Regional Water Treatment and Distribution Project)Series 2009"and 'Brushy Creek Regional Utility Authority,Inc.City of Round Rock, Texas Contract Revenue Bonds, (Brushy Creek Regional Water Treatment and Distribution Project) Series 2009" (collectively, the "Obligations") from the Issuer, which Resolution, pursuant to the pre-design funding option, requires that the Issuer place a total of $ of the proceeds from the sale of the Obligations, less amounts for a reserve fund and capitalized interest on the Leander series and to pay costs of issuance on all series, (the"Funds")be deposited in three separate escrow accounts or subaccounts to be released only upon written authorization from the TWDB provided,however,the Funds can be transferred in accordance with this Agreement; and WHEREAS,the Issuer desires to escrow the Funds with the Escrow Agent pursuant thereto and to enter into this Agreement with the Escrow Agent; and NOW, THEREFORE, in consideration of the premises and of the covenants herein contained, it is hereby agreed as follows: I. The Issuer shall instruct its Paying Agent/Registrar to deliver the Funds to the Escrow Agent, The Escrow Agent agrees to hold the Funds as bailee, to keep the Funds separate from and not commingled with the general funds ofthe Escrow Agent in three subaccounts or accounts entitled "BCRUA City of Cedar Park, Texas Contract Revenue Bonds, Series 2009 Escrow Account," "BCRUA City of Leander, Texas Contract Revenue Bonds, Series 2009 Escrow Account" and "BCRUA City of Round Rock, Texas Contract Revenue Bonds, Series 2009 Escrow Account" (collectively,the"Escrow Accounts"), and to release the Funds to the Issuer in accordance with the terms hereof and the respective resolutions authorizing the Obligations. Upon receipt of copy of written authorization from an authorized representative of the TWDB staff, and upon written direction of the General Manager of the Issuer, the Escrow Agent shall release from escrow the Funds, or any lesser part thereof designated by the TWDB and the Issuer. 2. If less than all of the Funds are released from the Escrow Accounts,the Escrow Agent shall continue to maintain the Escrow Accounts until all of the Funds in the Escrow Accounts have been released in accordance with Section 1 hereof. Any sums remaining unexpended in the Escrow Accounts after completion of the project and after the final accounting has been submitted to and approved by the TWDB shall be disposed of pursuant to the provisions of the respective resolutions authorizing the Obligations. 3. The Escrow Agent will invest the Funds in the TexSTAR Short Term Asset Reserve government interest pool unless otherwise directed in writing by the Issuer to the Escrow Agent,any subsequent investments and directions shall be compliant with Chapters 2256 and 2257,as amended, Texas Government Code and the Issuer's written investment policy.Interest earned on the Funds shall be subject to the escrow and shall remain in the Escrow Accounts until disbursed in accordance with Section 1 hereof. The Escrow Agent shall secure the Funds and any earnings thereon which may be in the Escrow Accounts in the manner and to the fullest extent required by law for the security of the Funds of the Issuer. 4. The Issuer agrees to pay the Escrow Agent a reasonable fee for its services under the Agreement, which fee shall be fixed by a separate agreement and attached hereto as Exhibit"A",but the agreement herein to pay such reasonable fee is deemed and confessed to be full and valid consideration to the Escrow Agent for its services hereunder and for reimbursement of its out-of- pocket expenses, including but not limited to the fees and costs of attorneys or agents which it may find necessary to engage in performance of its duties hereunder pursuant to the terms of paragraphs 9 and 10 hereof. The Escrow Agent agrees that the fee for the first year of this Agreement shall be $600 per series of Obligations. 5. Except as provided in paragraph 21 hereof,this Agreement shall not be assignable by the parties hereto,in whole or in part,and any attempted assignment shall be void and of no force and effect. 6. The Escrow Agent shall act only in the capacity of an escrow agent and shall be responsible and liable solely for a faithful account of the Funds and any earnings thereon.The Escrow Agent assumes no liability except as expressed in this Agreement and in the observance of due diligence in accordance with ordinary business practices. 7. The General Manager of the Issuer is hereby designated as the duly appointed agent and financial officer of the Issuer under this Agreement. Such designation may be changed by written direction of the Issuer delivered to the Escrow Agent, 8. The Escrow Agent will keep and maintain complete and accurate records relating to the receipt, disbursement, allocation and application of funds as well as relating to any investments. These records shall be available for inspection by the Issuer and the TWDB during normal business hours. The Escrow Agent shall provide the TWDB and the Issuer monthly statements. 9. The Issuer may terminate this Agreement with the Escrow Agent (i) by giving the Escrow Agent and the TWDB (a) thirty(30) days written notice of termination and(b)an executed copy of an agreement with a successor escrow agent of the Issuer's choosing which provides that the Funds shall be transferred and held by the successor escrow agent on terms and conditions substantially the same as herein provided and(ii)upon receipt of the written consent of the TWDB to the termination and agreement with the successor escrow agent. The Escrow Agent may resign and be replaced following the giving of thirty(30) days prior written notice to the Issuer. In either event,the duties of the Escrow Agent shall terminate thirty(30)days after receipt of such notice(or as of such earlier date as may be mutually agreeable.) If the Issuer fails to appoint a successor prior to the expiration of thirty(30) days following receipt of the notice of resignation or removal, the Escrow Agent may appoint a successor or petition any court of competent jurisdiction for the appointment of a successor escrow agent or for other appropriate relief, and any such resulting appointment shall be binding upon all of the parties hereto. In addition,upon disbursement of all of the Funds this Agreement shall terminate and the Escrow Agent shall provide the City with a final accounting of all of the Funds disbursed from the Escrow Accounts. This Agreement shall expire automatically upon the final transfer of funds. 10. The Escrow Agent may consult with legal counsel in the event of a dispute or question as to the Escrow Agent's duties hereunder, and the Escrow Agent, in acting in good faith in accordance with the opinions and instructions oflegal counsel,shall incur no liability and shall be fully protected in acting in accordance with the good faith, opinion and instruction of such counsel. It. Should the Escrow Agent become involved in litigation in any manner whatsoever on account of this Agreement or the Funds, in the absence of negligence or bad faith on the part of the Escrow Agent, the Issuer hereby binds and obligates itself to pay,to the extent permitted by law,the Escrow Agent in addition to any charge made hereunder for acting as the Escrow Agent,reasonable attorney's fees incurred by the Escrow Agent, and any other disbursements,expenses,losses,costs, and damages in connection with and resulting from such litigation or controversy. Such indemnification shall survive the resignation or removal of the Escrow Agent and the tennination of this Agreement until extinguished by any applicable statute of limitations. 12. The Escrow Agent shall, in the event any dispute shall arise between the parties with respect to the disposition or disbursement of any of the assets held hereunder, be permitted to interplead all of the assets held hereunder into a court of competent jurisdiction, and thereafter be fully relieved from any and all liability or obligation with respect to such interpleaded assets. The parties further agree to pursue any redress or recourse in connection with such a dispute, without making the Escrow Agent a party to the same. 13. This Escrow Agent shall be protected in acting upon any written notice, request, waiver, consent, certificate, receipt, authorization, power of attorney or other paper or document which the Escrow Agent in good faith believes to be genuine and what it purports to be. 14. This Agreement evidences the entire Escrow Agreement between the Escrow Agent and the Issuer and supersedes any other agreements, whether oral or written, between the parties regarding the Funds or this escrow. 15. It is agreed that this document shall serve as the Escrow Agreement between the Issuer and the Escrow Agent and that,by approval and acceptance in the space provided for hereafter for execution by the Escrow Agent,this document shall become fully effective as between the Issuer and the Escrow Agent. 16. Any request, direction, notice, or other communication required or permitted to be made or given by any party hereto shall be in writing, and shall be deemed sufficiently given for all purposes if delivered in person to the parties hereto at the addresses set forth below,or at such other address as any party shall specify, from time to time,by written notice to all other parties hereto: (a) the Issuer: Brushy Creek Regional Utility Authority, Inc. 221 E. Main Street Round Rock, Texas 78664 (b) the Escrow Agent: The Bank ofNew York Mellon Trust Company,N.A. 2001 Bryan Street, 8th Floor Dallas, Texas 75201 Attn: Issuer Administrative Services Further,any such request,direction,notice or other communication required or permitted to be made or given by any party hereto,may be mailed to any party hereto by first class mail, registered mail or certified mail, return receipt requested, overnight commercial courier service, or acknowledged facsimile transmission, to the addresses noted above. However, such written communications shall only be deemed sufficiently given, for all purposes, upon the actual receipt by the addressee(s). 17. No modification or amendment of this Agreement shall be valid unless the same is in writing and is signed by the Issuer and consented to by the Escrow Agent and the TWDB. 18. This Agreement shall be construed in accordance with and governed by the laws of the State of Texas without regard to the conflicts of law and principles of said State. 19. This Agreement may be executed in one or more counterparts,each of which shall be deemed an original,but all ofwhich together shall constitute one and of the same instrument. 20. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 21. This Agreement shall be binding upon, and inure to the benefit of, the heirs, administrators, executors, successors, and assigns of the parties hereto. 22. In the event Escrow Agent merges or consolidates with another bank or sells or transfers substantially all of its assets or corporate trust business, then the successor resulting bank shall be the successor Escrow Agent without the necessity of further action or the execution of any document, so long as such successor or resulting bank satisfies the requirements of, and assumes the obligations of, Escrow Agent hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed,and their respective seals to be hereunto affixed and attested,all as of the day and year first above written. ATTEST: Brushy Creek Regional Utility Authority,Inc. Nam . • Title. Address: 221 E. Main Street Round Rock, Texas 78664 (DISTRICT SEAL) ATTEST: The Bank of New York Mellon Trust Company, N.A., a national banking corporation Name: Deborah Bennett Title: Vice President Address: 2001 Bryan Street, 8th Floor Dallas, Texas 75201 Attn: Issuer Administrative Services (BANK SEAL) >0- THE BAND OF NEW YORK MELLON FACSIMILE-MAIL INSTRUCTIONS: AUTHORIZATION Re: FACSIMILE-MAIL AUTHORIZATION , TEXAS Date: May 12, 2009 Customer Authorization, Limitation of Liability and Indemnity: ,Texas("Customer")hereby authorizes The Bank ofNew York Mellon Trust Company,N.A.(the"Trust Company")to rely upon and comply with instructions and directions sent by e-mail, facsimile and other similar unsecured electronic methods (but excluding on-line communications systems covered by a separate agreement(such as The Bank of New York Mellon's Inform or CASH-Register Plus system) ("On-Line Communications Systems)) ("Electronic Methods") by persons believed by the Trust Company to be authorized to give instructions and directions on behalf of Customer.Except as set forth below with respect to funds transfers,the Trust Company shall have no duty or obligation to verify or confirm that the person who sent such instructions or directions is, in fact, a person authorized to give instructions or directions on behalf of Customer (other than to verify that the signature on a facsimile is the signature of a person authorized to give instructions and directions on behalf of Customer); and the Trust Company shall have no liability for any losses, liabilities, costs or expenses incurred or sustained by Customer as a result of such reliance upon or compliance with such instructions or directions. Customer agrees to assume all risks arising out of the use of Electronic Methods to submit instructions and directions to the Trust Company, including without limitation the risk of the Trust Company acting on unauthorized instructions, and the risk of interception and misuse by third parties. Funds Transfers. With respect to any "funds transfer," as defined in Article 4-A of the Uniform Commercial Code,the following security procedure will apply: Customer's payment instruction is to include the name and(in the case of a facsimile) signature of the person initiating the funds transfer request.If the name is listed as an authorized signer on the relevant account,the Trust Company will confirm the instructions by telephone call to any person listed as an authorized signer on the account, who may be the same person who initiated the instruction. When calling back, the Trust Company will request from Customer's staff member his or her name. If the name is listed in the Trust Company's records as an authorized signer, the Trust Company will confirm the instructions with respect to amount, names and numbers of accounts to be charged or credited and other relevant reference information. Customer acknowledges that the Trust Company has offered to Customer other security procedures that are more secure and are commercially reasonable for Customer, and that Customer has nonetheless chosen the procedures described in this paragraph. Customer agrees to be bound by any payment order issued in its name, whether or not authorized, that is accepted by the Trust Company in accordance with the above procedures. When instructed to credit or pay a party by both name and a unique numeric or alpha-numeric identifier(e.g. ABA number or account number),the Trust Company, and any other bank participating in the funds transfer, may rely solely on the unique identifier, even if it identifies a party different than the party named. This applies to beneficiaries as well as any intermediary bank.Customer agrees to be bound by the rules of any funds transfer network used in connection with any payment order accepted by the Trust Company hereunder. This authorization shall remain in full force and effect until canceled,revoked or amended by written notice received by the Trust Company;and replaces and supersedes any previous authorization from Customer to the Trust Company relating to the giving of instructions by facsimile, e-mail or other similar Electronic Methods (but excluding On-Line Communications Systems) and is in addition to all other authorizations. Notwithstanding any revocation, cancellation or amendment of this authorization,any action taken by the Trust Company pursuant to this authorization prior to the Trust Company's actual receipt and acknowledgment of a notice of revocation,cancellation or amendment shall not be affected by such notice. Customer agrees to indemnify and hold harmless the Trust Company and The Bank of New York Mellon against any and all claims,losses,damages liabilities,judgments,costs and expenses(including reasonable attorneys'fees)(collectively,"Losses")incurred or sustained by the Trust Company and/or The Bank of New York Mellon as a result of or in connection with the Trust Company's and/or The Bank ofNew York Mellon's reliance upon and compliance with instructions or directions given by Electronic Methods, provided, however, that such Losses have not arisen from the negligence or willful misconduct of the Trust Company and/or The Bank ofNew York Mellon,it being understood that the failure of the Trust Company and/or The Bank ofNew York Mellon to verify or confirm that the person giving the instructions or directions, is, in fact, an authorized person does not constitute negligence or willful misconduct. This document shall be governed by,and shall be construed in accordance with,the substantive laws (and not the choice of law rules) of the jurisdiction governing the Agreement. Customer hereby represents and warrants to the Trust Company that this authorization is properly given and has been duly approved by a resolution of its Board of Directors. Nothing contained herein shall,or be deemed to,alter or modify the rights and remedies of the Trust Company as set forth in the Agreement. The execution of this document by Customer constitutes acceptance of the foregoing. Yours faithfully, THE BANK OF NEW YORK MELLON TRUST COMPANY,N.A. By: Name: Title: Customer hereby ace is and agrees to the terms and conditions set forth herein. uS t Cv C By: Name: f 1 I t Title: �'�-e_ i GE P n+ EXHIBIT "A" THE BANK OF NEW YORK MELLON Fee Schedule Brushy Creek Regional Utility Authority (TWDB Leander Portion, Round Rock Portion, Cedar Creek Portion) Contract Revenue Bonds, Series 2009 Escrows Acceptance Fee None A one-time charge covering the Bank Officer's review of governing documents,communication with members of the closing party,including representatives of the issuer,investment banker(s)and attorney(s),establishment of procedures and controls, set-up of trust accounts and tickler suspense items and the receipt and disbursement/investment of bond proceeds. This fee is payable on the closing date. Escrow Agent Fee: Per Escrow/Per Year $600 The Escrow Agent Fee covers the consideration of documents and the normal administrative duties of the escrow agent according to the governing documents. This fee is payable on the closing date. Pricing for Call or Redemptions of Bonds Per Call $300 Call Pricing includes distribution of the call notice to holders of record,redemption processing,andnotification to NRMSIRs.Any publication expenses(i.e.Bond Buyer,regional periodical,financial periodicals, etc.)for the call notice will be billed to the Issuer at cost. Extraordinary Services/Misc Fees: At Appraisal The charges for performing extraordinary or other services not contemplated at the time of the execution of the transaction or not specifically covered elsewhere in this schedule will be commensurate with the service to be provided and may be charged in BNYMTC's sole discretion.If it is contemplated that the Trustee hold and/or value collateral or enter into any investment contract, forward purchase or similar or other agreement, additional acceptance, administration and counsel review fees will be applicable to the agreement governing such services. If the bonds are converted to certificated form,additional annual fees will be charged for any applicable tender agent and/or registrar/paying agent services.Additional information will be provided at such time. Should this transaction terminate prior to closing, all out-of-pocket expenses incurred, including legal fees, will be billed at cost. If all outstanding bonds of a series are defeased or called in full prior to their maturity, a termination fee may be assessed at that time. These extraordinary services may include,but are not limited to,supplemental agreements,consent operations, unusual releases,tender processing,sinking fund redemptions,failed remarketing processing,the preparation of special or interim reports, custody of collateral, a one-time fee to be charged upon termination of an engagement. Counsel,accountants, special agents and others will be charged at the actual amount of fees and expenses billed, C filing fees, money market sweep fees, auditor confirmation fees, wire transfer fees, transaction fees to settle third-party trades and reconcilement fees to balance trust account balances to third party investment provider statements. Annual fees include one standard audit confirmation per year without charge. Standard audit confirmations include the final maturity date, principal paid, principal outstanding, interest cycle, interest paid,cash and asset information,interest rate,and asset statement information.Non-standard audit confirmation requests may be assessed an additional fee. Periodic tenders, sinking fund, optional or extraordinary call redemptions will be assessed at $300 per event. The fee for non-interest bearing balances left uninvested with the Bank will be 10 basis points for the quarter,based on quarter-end spot balance levels, in excess of$250,000 (held in the U.S. offices of the Bank). Terms and Disclosures Terms of Proposal Final acceptance of the appointment under the Indenture is subject to approval of authorized officers of BNYM and full review and execution of all documentation related hereto.Please note that if this transaction does not close,you will be responsible for paying any expenses incurred,including Counsel Fees.We reserve the right to terminate this offer if we do not enter into final written documents within three months from the date this document is first transmitted to you. Fees may be subject to adjustment during the life of the engagement. Customer Notice Required by the USA Patriot Act To help the US government fight the funding of terrorism and money laundering activities, US Federal law requires all financial institutions to obtain,verify,and record information that identifies each person(whether an individual or organization)for which a relationship is established. What this means to you: When you establish a relationship with BNY, we will ask you to provide certain information (and documents) that will help us to identify you. We will ask for your organization's name, physical address,tax identification or other government registration number and other information that will help us to identify you. We may also ask for a Certificate of Incorporation or similar document or other pertinent identifying documentation for your type of organization. We thank you for your assistance. DATE: May 15, 2009 SUBJECT: BCRUA Board Meeting—May 20, 2009 ITEM: 81. Consider a resolution authorizing the President to execute an Escrow Agreement. PRESENTER: BCRUA Financial Advisors—Garry Kimball,Specialized Public Finance& Richard Ramirez, First Southwest Justification/Background: An escrow account is required for the delivery of bond proceeds from the Texas Water Development Board. **A hard copy of this agreement will be distributed at the meeting.