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Home My WebLink About2000-311lh D a Suite 720 201 South Orange Avenue Odando.FL 32801.3470 I� N NL =_ Public Financial. Management Financial and Investment Advisors September 27, 2000 Edwin M. Fry, Jr. Finance Director Clerk of Circuit Court 1840 25th Street Vero Beach, FL 32960-3394 Re: Arbitrate Rebate Compliance Services Dear Mr. Fry: 407 6482208 407 6481323 tax w .pfm corn / ,0G%s 3 // This letter is to confirm the engagement of Public Financial Management ("PFM") by Indian River County, Florida (the "Issuer") for the purpose of performing calculations relating to the rebate requirements contained in Section 148(f) of the Internal Revenue Code of 1986 (the "Code"). The calculations are to be performed with respect to the tax-exempt obligation issues (each a "Bond Issue", and collectively, the 'Bonds") listed in our Arbitrage Rebate and Opinion Services proposal dated September 15, 2000 (tile "Rebate Proposal"), applying applicable federal tax rules. The Issuer, by accepting this Letter, consents to the engagement by PFM of the law firm of Orrick Herrington & Sutcliffe ("OH&S") to calculate the amount of rebate liability with respect to tite Bonds as of the end of each bond year (or other appropriate period) and as of the final maturity or redemption of the Bonds (each such date herein referred to as a "Calculation Date") applying regulations of the United States Department of the Treasury in effect on such Calculation Date. OH&S will provide the following legal services (the "Legal Services"): (i) upon engagement for a particular Bond Issue, or as soon thereafter as practicable, OH&S will undertake its initial rebate -related liability analysis with respect to such Bond Issue, (ii) OH&S will calculate the amount of rebate liability with respect to such Bond Issue as of the end of an appropriate period of time as determined by the Issuer and communicated by PFM to OH&S and as of the final maturity or redemption of the obligations of the Bond Issue as communicated by PFM or the Issuer to OH&S (the "Calculation"), applying the Treasury Regulations applicable to each Bond Issue, and (iii) OH&S will prepare a schedule reflecting the Calculation and the assumptions involved and deliver a rebate liability report and opinion, addressed to PFM and to the Issuer, as to the amount of the rebate liability as determined in Stich Calculation. Indian River Cow>ty Agi c(ntt f u Page 1 40 40 The Issuer undertakes to provide or cause to be provided to PFM or OH&S, as appropriate, all relevant data, as requested from time to time, with respect to each Calculation Date within 15 days after such date and the Issuer agrees to cooperate with all reasonable requests in connection therewith. This information will be necessary to identify the amount of "gross proceeds" (as that term is used in the Code) of the Bonds subject to the rebate requirement, investment income thereon and applicable yields on the Bonds and on such investments in order to calculate the rebate liability of the Issuer with respect to the Bonds as of the Calculation Date. PFM is not being engaged and will not engage OH&S to duplicate work performed by prior counsel, independently determine whether there were "prohibited payments" or "imputed receipts" within the meaning of Treasury Regulations or to perform an audit or review of the investments acquired with gross proceeds or the payment of debt service on the Bonds, and PFM and OH&S will be entitled to rely entirely on information provided by the Issuer without independent verification. PFM and OH&S are also not being engaged to audit or review the tax exempt status of interest on the Bonds or any other aspect of the Bond program except for rebate liability to the extent set forth in this engagement letter, and shall be under no obligation to consider any information obtained by them pursuant to this engagement for any purpose other than determining such rebate liability. Neither OH&S nor PFM shall have any obligation to update any report or opinion delivered hereunder because of events occurring, changes in regulations, or data or information received, subsequent to the date of delivery of such report or opinion. PFM and OH&S shall each have a non-exclusive right to any and all data and information obtained or developed pursuant to this engagement and shall be entitled to disclose or otherwise use such data or information for any purpose as PFM or OH&S shall from time to time deem appropriate whether for the benefit of the Issuer, any borrower of proceeds of the Bonds, the bondholders, PFM or OH&S. The fee with respect to each Bond Issue is as set forth in the Rebate Proposal. For each Bond Issue, the fee(s) is due upon delivery of each report and opinion. For legal services rendered by OH&S in connection herewith, PFM will pay OH&S a portion of each fee. For collecting, transmitting and formatting data to be used by OH&S and for other non -legal, administrative services to be performed by PFM in connection with the rebate calculation services to be provided hereunder (the "Administrative Services") PFM will retain the remainder of such fees. This engagement is terminable by either party by written notice to the other, such termination to be effective immediately; provided that, if PFM terminates this engagement prior to delivering any rebate calculations or opinion with respect to a particular Bond Issue, the initial set-up fee (if applicable) shall be refunded, and if the Issuer terminates this engagement other than as of the date of delivery of the rebate calculation and opinion with respect to a Bond Issue for a particular Calculation Date, the Issuer shall pay a termination fee as determined by both parties, but not in excess of the fee(s) that would be payable with respect to the next Calculation Date for that Bond Issue. PFM is being retained hereunder only to perform the Administrative Services and to engage OH&S to perform the Legal Services specified above. However, the Issuer may request PFM or OH&S to advise the Issuer with respect to matters not covered by such services; for example, matters relating to other arbitrage restrictions, segregation of funds, transferred proceeds, imputed receipts, permitted investments, and compliance with non -tax provisions of the bond documents. Should PFM or OH&S undertake to provide such advice they will do so only if specifically requested by the Issuer for a separate fee based on a separate agreement. Notwithstanding the foregoing, under no circumstances may the Issuer request PFM to provide nor will PFM provide advice or services, which constitute legal services. While Issuer may rely on the Legal Services performed by OH&S as contemplated in this letter, OH&S shall have no attorney-client relationship with the Issuer by virtue of this letter or such Legal Services. Further, Issuer acknowledges and consents that OH&S may have had, have or in the future have attorney - Indian River County Agreement Page 2 40 • 40 client relationships with parties (for example, underwriters, trustees, rating agencies, insurers, credit providers, lenders, contractors, developers, financial and other consultants/advisors (including PFM), accountants, investment advisors/providers/brokers, public entities and others) who may have some role or interest in the Bond Issue or that may be involved with or adverse to the Issuer with respect to the Bond Issue or some other matter. The Issuer consents to the engagement of OH&S by PFM to provide the Legal Services described above. Furthermore, the Issuer agrees that PFM shall be responsible only for the Administrative Services to be provided by it pursuant hereto and not for the Legal Services to be performed by OH&S. Except as prohibited by law, the issuer agrees to indemnify, defend, and hold harmless PFM and its officers, directors, employees, agents, successors and assigns from any and all losses, liabilities, damages and claims, and all related costs and expenses, including attorneys` fees and costs of investigation, litigation, settlement, judgment, interest and penalties arising from or in connection with any claim made against PFM in connection with (i) its performance of the Administrative Services to be provided by it pursuant hereto, unless arising primarily from PFM's negligence or willful misconduct, and (ii) OH&S's performance or non-performance of the Legal Services to be performed by it pursuant hereto. The Issuer and PFM may add additional Bonds, from time to time, provided that the prior consent of OH&S is obtained. If this engagement letter is satisfactory, please have an authorized official execute one copy and return to the undersigned. Very truly yours, PUBLIC F ANCIAL MANA NT, INC. By: Title: Accepted: Indian River County, Flori a. By U.n ams Title: Chairman Date: October 17, 2000 Indian River County Agreement Page 3