HomeMy WebLinkAboutL-1 Resolution: Equipment Acuisition Revenu BondsCity of ~Vliami Gard~ens
1515-200 NW 167th Street
Miami Gardens, Florida 33169
Date: December 12, 2007
Fiscal Impact: No ^ Yes oX
(If yes, explain in Staff Summary)
Funding Source: Operating Budgets
ContracUP.O. Requirement: Yes ^ NoX
Sponsor Name/Department:
Danny Crew. City Manager
Agenda Cover Paqe
Mayor Shirley Gibson
Vice Mayor Oscar Braynon II
ouncilman Melvin L. Bratton
uncilman Aaron Campbell Jr.
~uncilwoman Sharon Pritchett
~uncilwoman Barbara Watson
Councilman Andre Williams
Public hearing ^
Ordinance
1st Reading
Advertising requirement:
RFP/RFQ/Bid #
Title
Quasi-Judicial ^
Resolution x
2nd Reading ^
Yes ^ No X^
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS,
FLORIDA, AUTHORIZING THE ISSUANCE OF EQUIPMENT ACQUISITION REVENUE
BONDS IN THE AGGREGATE PRINCIPAL AMOUNT OF FOUR MILLION SEVEN
HUNDRED THOUSAND DOLLARS ($4,700,000) FOR THE PURPOSE OF FINANCING OR
REIMBURSING A PORTION OF THE COSTS OF PURCHASING VEHICLES,
EQUIPMENT AND MACHINERY FOR VARIOUS CITY DEPARTMENTS, AND PAYING
COSTS OF ISSUANCE OF THE BONDS; AWARDING THE SALE OF THE BONDS TO
WACHOVIA BANK, NATIONAL ASSOCIATION; PROVIDING FOR SECURITY FOR
THE BONDS; CONTAINING OTHER PROVISIONS RELATING TO THE BONDS;
MAHING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION
THEREWITH; PROVIDING FOR ADOPTION OF REPRESENTATIONS; REPEALING
ALL RESOLUTIONS IN CONFLICT; PROVIDING A SEVERABILITY CLAUSE;
PROVIDING AN EFFECTIVE DATE.
Staff Summarv
As part of the bonding process, in addition to the Bond Ordinance authorizing the borrowing,
there is a required bond resolution awarding the sale and providing other required assurances.
Recommendation
I recommend that the Council approve the bond resolution.
L-1) REGULAR AGENDA
Issuance of 4.7 Million Dollar
Equipment Acquisition Bond
i RESOLUTION NO. 2007-
2
3
4 A RESOLUTION OF THE CITY COUNCIL OF THE CITY
5 OF MIAMI GARDENS, FLORIDA, AUTHORIZING THE
6 ISSUANCE OF EQUIPMENT ACQUISITION REVENUE
~ BONDS IN THE AGGREGATE PRINCIPAL AMOUNT OF
8 FOUR MILLION SEVEN HUNDRED THOUSAND
9 DOLLARS ($4,700,000) FOR THE PURPOSE OF
1 o FINANCING OR REIMBURSING A PORTION OF THE
11 COSTS OF PURCHASING VEHICLES, EQUIPMENT AND
12 MACHINERY FOR VARIOUS CITY DEPARTMENTS, AND
13 PAYING COSTS OF ISSUANCE OF THE BONDS;
14 AWARDING THE SALE OF THE BONDS TO WACHOVIA
1 s BANK, NATIONAL ASSOCIATION; PROVIDING FOR
16 SECURITY FOR THE BONDS; CONTAINING OTHER
l~ PROVISIONS RELATING TO THE BONDS; MAKING
18 CERTAIN COVENANTS AND AGREEMENTS IN
19 CONNECTION THEREWITH; PROVIDING FOR
2 o ADOPTION OF REPRESENTATIONS; REPEALING ALL
21 RESOLUTIONS IN CONFLICT; PROVIDING A
22 SEVERABILITY CLAUSE; PROVIDING AN EFFECTIVE
2 3 DATE.
24
2 5 WHEREAS, on December 12, 2007, the City Council (the "Gouncil") of the City of
2 6 Miami Gardens, Florida (the "City") adopted Ordinance No. 2007- (the "Ordinance"),
2 ~ authorizing the issuance of equipment acquisition revenue bonds in an aggregate principal
2 8 amount of Four Million Seven Hundred Thousand Dollars ($4,700,000) for the purpose of
2 9 financing ar reimbursing a portion of the costs of purchasing vehicles, equipment and machinery
3o far various City departments (the "Project") and paying costs of issuance of the Bonds, and
31
32 WHEREAS, the Council has determined that it is in the best interest of the City and its
33 citizens to accept a commitment (the "Commitment") from Wachovia Bank, National
34 Association (the "Bank") to purchase the Bonds, and
35
3 6 WHEREAS, the Council desires to set forth the details of the Bonds in this Bond
3 ~ Resolution,
38
3 9 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
4 o CITY OF MIAMI GARDENS, FLORIDA, AS FOLLOWS:
41
4 2 SECTION 1. ADOPTION OF REPRESENTATIONS: The foregoing Whereas
4 3 Clauses are hereby ratified and confirmed as being true, and the same are hereby made a specific
4 4 part of this Resolution.
{M1664192 3}
1
2 SECTION 2. AUTHORIZATION OF BONDS: Pursuant to the provisions of this
3 Resolution, revenue bonds of the City to be designated "City of Miami Gardens, Florida,
4 Equipment Acquisition Revenue Bonds, Series 2008" (the "Bonds"), are hereby authorized to be
s issued in an aggregate principal amount of Four Million Seven Hundred Thousand Dollars
6 ($4,700,000) for the purpose of financing or reimbursing the City for costs of the Project and
~ paying costs of issuance of the Bonds.
8
9 SECTION 3. TERMS OF THE BONDS:
lo
11 (a) General Provisions. The Bonds shall be issued in fully registered form without
12 coupons. The principal of and interest on the Bonds shall be payable when due in lawful money
13 of the United States of America by wire transfer or by certified check delivered on or prior to the
14 date due to the registered Owners of the Bonds ("Owners") or their legal representatives at the
1 s addresses of the Owners as they appear on the registration books of the City.
16
i ~ The Bonds shall be dated the date of their issuance and delivery and shall be initially
le issued as one Bond in the denomination of $4,700,000. The Bonds shall mature on January 1,
19 2013.
20
21 THE BONDS SHALL NOT BE DEEMED TO CONSTITUTE AN 1NDEBTEDNESS
22 OF THE CITY OR A PLEDGE OF THE FAITH AND CREDIT OF THE CITY, BUT SHALL
2 3 BE PAYABLE EXCLUSIVELY FROM THE PLEDGED REVENUES, AS DEFINED IN THIS
24 RESOLUTION. THE ISSUANCE OF THE BONDS SHALL NOT DIRECTLY OR
25 INDIRECTLY OR CONTINGENTLY OBLIGATE THE CITY TO LEVY OR TO PLEDGE
2 6 ANY FORM OF AD VALOREM TAXATION WHATEVER THEREFOR, NOR SHALL THE
2 ~ BONDS CONSTITUTE A CHARGE, LIEN, OR ENCUMBRANCE, LEGAL OR
2 s EQUITABLE, UPON ANY PROPERTY OF THE CITY, AND THE HOLDERS OF THE
2 9 BONDS SHALL HAVE NO RECOURSE TO THE POWER OF AD VALOREM TAXATION.
30
31 (b) Interest Rate. Subject to adjustment as provided below, the Bonds shall bear
32 interest on the outstanding principal balance from their date of issuance payable annually on each
33 January 1(the "Interest Payment Dates"), commencing January 1, 2009, as follows:
34
35 (i) from the date of delivery of the Bonds until the Conversion Date (as
36 defined below) (the "Variable Rate Period") at an interest rate equal to the one-month
3~ LIBOR as shown on the Telerate System, page 3750 (the "LIBOR Rate"), adjusted
38 monthly on the first day of each month (the "Reset Date"), minus 150 basis points
39 (1.50%). The initial LIBOR Rate shall be based on the LIBOR Rate determined two (2)
4 o business days prior to the delivery date of the Bonds and each reset LIBOR Rate shall be
41 based on the LIBOR Rate determined two (2) business days prior to each Reset Date; and
42
4 3 (ii) from the date following the Conversion Date until the maturity date of the
4 4 Bonds (the "Fixed Rate Period"), at an interest rate equal to the 5-year U.S. Dollar Swap
4 5 Offering Rate as published by the Federal Reserve Board in the Federal Reserve Statistical
2
[M] 664192_3;
1 Release H.15 and reported on Reuters page ISDAFIXI three (3) business days prior to the
2 Conversion Date, minus 128.5 basis points (1.285%) (the "Fixed Rate").
3 As used herein, "Conversion Date" shall mean the date specified by the City in a written
4 notice to the Bank requesting that the interest rate on the Bonds be converted to a fixed rate
5 pursuant to paragraph (b)(ii), which may be any date not later than one year from the date of
6 issuance of the Bonds (the "Anniversary Date"). Such notice shall be delivered to the Bank not
~ later than 5 business days prior to the requested Conversion Date. If the City has not made such
8 request by the Anniversary Date, then the Anniversary Date shall be the Conversion Date.
9
1 o Interest on the Bonds shall be computed on the basis of a 360-day year consisting of
11 twelve (12) thirty-day months.
12
13 Adjustment of Interest Rate For Full Taxabilitv. In the event a Determination of
14 Taxability shall have occurred during the Variable Rate Period, the rate of interest on the Bonds
15 shall be increased to a rate per annum equal to 1.5625 times (the LIBOR Rate minus 1.50%) (the
16 "Variable Rate Taxable Rate"), and in the event a Determination of Taxability shall have
1 ~ occurred during the Fixed Rate Period, the rate of interest on the Bonds shall be increased to
18 1.5625 times the Fixed Rate (the "Fixed Rate Taxable Rate"), effective retroactively to the date
19 on which the interest payable on the Bonds is includable for federal income tax purposes in the
2 o gross income of the Owners thereof. In addition, the Owners of the Bonds or any former Owners
21 of the Bonds, as appropriate, shall be paid an amount equal to any additions to tax, interest and
22 penalties, and any arrears in interest that are required to be paid to the United States by the
2 3 Owners or former Owners of the Bonds as a result of such Determination of Taxability. All such
2 4 additional interest, additions to t~, penalties and interest shall be paid by the City on the first day
2 5 of the succeeding calendar quarter following the Determination of Taxability. A"Determination
2 6 of Taxability" shall mean (i) the issuance by the Internal Revenue Service of a statutory notice of
2 ~ deficiency or other written notification which holds in effect that the interest payable on the
2 8 Bonds is includable for federal income tax purposes in the gross income of the Owners thereof,
2 9 which notice or notification is not contested by either the City or any Owners of the Bonds, or (ii)
3o a determination by a court of competent jurisdiction that the interest payable on the Bonds is
31 includable for federal income tax purposes in the gross income of the Owners thereof, which
32 determination either is final and non-appealable or is not appealed within the requisite time
33 period for appeal, or (iii) the admission in writing by the City to the effect that interest on Bonds
34 is includable for federal income ta~c purposes in the gross income of the Owners thereof.
35
3 6 Adiustment of Interest Rate for Partial Taxabilitv. In the event that interest on the Bonds
3~ during any period becomes partially taxable as a result of a Determination of Taxability
38 applicable to less than all of the Bonds, then the interest rate on the Bonds shall be increased
3 9 during such period by an amount equal to: (A-B) x C where:
40
41 (a) A equals the Variable Rate Taxable Rate or the Fixed Rate Taxable Rate,
4 2 as applicable (expressed as a percentage);
43 ,
4 4 (b) B equals the interest rate on the Bonds (expressed as a percentage); and
45
3
( M 1664192_3;
i (c) C equals the portion of the Bonds the interest on which has become
2 taxable as the result of such tax change (expressed as a decimal).
3
4 In addition, the Owners of the Bonds or any former Owners of the Bonds, as appropriate,
5 shall be paid an amount equal to any additions to tax, interest and penalties, and any arrears in
6 interest that are required to be paid to the United States by the Owners ar former Owners of the
~ Bonds as a result of such Determination of Taxability. All such additional interest, additions to
s tax, penalties and interest shall be paid by the City on the first day of the succeeding calendar
9 quarter following the Determination of Taxability.
lo
11 Adjustment of Interest Rate for Change in Maximum Corporate Tax Rate. In the event
12 that the maximum effective federal corporate t~ rate (the "M~imum Corporate Tax Rate")
13 during any period with respect to which interest shall be accruing on the Bonds on a tax-exempt
14 basis, shall be other than thirty-five percent (35%), the interest rate on the Bonds that are bearing
15 interest on a tax-exempt basis shall be adjusted to the product obtained by multiplying the
16 interest rate then in effect on the Bonds by a fraction equal to (1-A divided by 1-B), where A
1 ~ equals the Maximum Corporate Tax Rate in effect as of the date of adjustment and (B) equals
18 Maximum Corporate Tax Rate in effect immediately prior to the date of adjustment.
19
2 o Adjustment of Interest Rate for Other Chan~es Affectin~ After-Tax Yield. So long as any
21 portion of the principal amount of the Bonds or interest thereon remains unpaid (a) if any law,
22 rule, regulation or executive order is enacted or promulgated by any public body or governmental
23 agency which changes the basis of taYation of interest on the Bonds or causes a reduction in yield
2 4 on the Bonds (other than by reason of a change described above) to the Owners or any former
2 5 Owners of the Bonds, including without limitation the imposition of any excise tax or surcharge
2 6 thereon, or (b) if, as result of action by any pubic body or governmental agency, any payment is
2 ~ required to be made by, or any federal, state or local income tax deduction is denied to, the
2 8 Owners or any former Owners of the Bonds (other than by reasons of change described above or
2 9 by reason of any action or failure to act on the part of any Owner or any former Owner of the
3 o Bonds) by reason of the ownership of the Bonds, the City shall reimburse any such Owner within
31 five (5) days after receipt by the City of written demand for such payment, and the City agrees to
32 indemnify each such Owner against any loss, cost, charge or expense with respect to any such
3 3 change.
34
35 Adjustment of Interest Rate Upon an Event of Default. If an"event of default" occurs
35 under Section 19 of this Resolution, the interest rate on the Bonds shall immediately be adjusted
3~ to a rate equal to the per annum interest rate announced by Wachovia Bank, National
38 Association, from time to time, as its "Prime Rate," plus two percent (2%).
39
4 0 (c) Prepavment Provisions
41
4 2 (i) Mandator~pa~. The principal of the Bonds shall be
43 subject to mandatory prepayment in annual installments on each January 1, commencing
4 4 January 1, 2010 (each a"Scheduled Due Date"). The schedule of principal and interest
4 5 payments due on each Scheduled Due Date shall be determined on the first day of the
4
; M 1664192_3;
1 Fixed Rate Period (as determined in Section 3(b)(ii) hereo~. The schedule shall be
2 determined by the Owners and provided to the City based upon the Fixed Rate and an
3 amortization schedule of substantially level payments of principal and interest, with
4 payments of principal and interest sufficient to fully amortize so much of the principal
5 amount of the Bonds as is outstanding on the first day of the Fixed Rate Period, with the
6 final payment due and payable on January 1, 2013.
~
8 (ii) Optional Prepavment. The Bonds are subject to optional
9 prepayment as follows:
lo (A) during the Variable Rate Period, the Bonds are subject to
Z 1 prepayment in whole or in part at any time at a price of par plus accrued interest to
12 the date of prepayment, upon written notice to the registered Owners thereof given
13 by the City at least five (5) days prior to the date fixed for prepayment; and
14
15 (B) during the Fixed Rate Period, the Bonds are subject to prepayment
i 6 in whole or in part at any time at a price of par, plus accrued interest to the date of
1 ~ prepayment, plus a premium equal to the "Prepayment Penalty" described in
1 s Exhibit "A" attached hereto, upon written notice to the Owners thereof given by
19 the City at least five (5) days prior to the date fixed for prepayment.
20
21 Partial prepayments shall be applied in inverse order of the maturity of principal
2 2 installments.
23
2 4 In the event that there is more than one Owner of the Bonds, (A) the City shall determine
2 5 the amount of each Bond to be redeemed, and (B) the City shall give notice to each Owner of the
2 6 Bonds at least three (3) days prior to the date of redemption of the amount of each Bond to be
2 ~ redeemed.
28
2 9 SECTION 4. EXECUTION OF BONDS: The Bonds shall be signed in the name of the
3 o City by the Mayor and attested to by the City Clerk, and its seal shall be affixed thereto or
31 imprinted or reproduced thereon. The signatures of the Mayor and the City Clerk on the Bonds
32 may be manual or facsimile signatures, provided that the signature of one of such officers shall
33 be a manual signature. In case any one or more of the officers who shall have signed or sealed
34 any of the Bonds shall cease to be such officer of the City before the Bonds so signed and sealed
35 shall have been actually sold and delivered, such Bonds may nevertheless be sold and delivered
3 6 as herein provided and may be issued as if the person who signed and sealed such Bonds had not
3 ~ ceased to hold such office. Any Bonds may be signed and sealed on behalf of the City by such
3 8 person as at the actual time of the execution of such Bonds shall hold the proper office, although
3 9 at the date of issuance of such Bonds such person may not have held such office or may not have
4 o been so authorized.
41
4 2 SECTION 5. NEGOTIABILITY, REGISTRATION AND CANCELLATION: The
4 3 City shall serve as Registrar and as such shall keep books far the registration of Bonds and for
4 4 the registration of transfers of Bonds. Bonds may be transferred or exchanged upon the
4 5 registration books kept by the City, upon delivery to the City, together with written instructions
5
{M 1664192_3;
1 as to the details of the transfer or exchange, of such Bonds in form satisfactory to the City and
2 with guaranty of signatures satisfactory to the City, along with the social security number or
3 federal employer identification number of any transferee and, if the transferee is a trust, the name
4 and social security or federal tax identification numbers of the settlor and beneficiaries of the
s trust, the date of the trust and the name of the trustee. Bonds may be exchanged for one or more
6 Bonds of the same aggregate principal amount and maturity and in denominations in integral
~ multiples of $250,000 (except that an odd lot is permitted to complete the outstanding principal
s balance). No transfer or exchange of any Bond shall be effective until entered on the registration
9 books maintained by the City.
io
1 i The City may deem and treat the person in whose name any Bond shall be registered upon
12 the books kept by the City as the absolute Owner of such Bond, whether such Bond shall be
13 overdue or not, for the purpose of receiving payment of, or on account of, the principal of and
14 interest on such Bond as they become due and for all other purposes. All such payments so made
15 to any such Owner or upon his order shall be valid and effectual to satisfy and discharge the
16 liability upon such Bond to the extent of the sum or sums so paid.
i~
18 In all cases in which Bonds are transferred or exchanged in accordance with this Section,
19 the City shall execute and deliver Bonds in accordance with the provisions of this Resolution. All
2 o Bonds surrendered in any such exchanges or transfers shall forthwith be canceled by the City.
21 There shall be no charge for any such exchange or transfer of Bonds, but the City may require the
22 payment of a sum sufficient to pay any tax, fee or other governmental charge required to be paid
2 3 with respect to such exchange or transfer. The City shall not be required to transfer or exchange
24 Bonds for a period of fifteen (15) days next preceding an interest payment date on such Bonds.
25
2 6 All Bonds, the principal and interest of which has been paid, either at or prior to maturity,
2 ~ shall be delivered to the City when such payment is made, and shall thereupon be canceled.
28
2 9 In case part but not all of an outstanding Bond shall be prepaid, such Bond shall not be
3 o surrendered in exchange for a new Bond, but the City shall make a notation indicating the
31 remaining outstanding principal of the Bonds upon the registration books. The Bond so
32 redesignated shall have the remaining principal as provided on such registration books and shall
33 be deemed to have been issued in the denomination of the outstanding principal balance, which
34 shall be an authorized denomination.
35
3 6 SECTION 6. BONDS MUTILATED, DESTROYED, STOLEN OR LOST: In case
3~ any Bond shall become mutilated or be destroyed, stolen or lost, the City may in its discretion
38 issue and deliver a new Bond of like tenor as the Bond so mutilated, destroyed, stolen or lost, in
3 9 the case of a mutilated Bond, in exchange and substitution for such mutilated Bond upon
4 o surrender of such mutilated Bond or in the case of a destroyed, stolen or lost Bond in lieu of and
4 i substitution for the Bond destroyed, stolen or lost, upon the Owner furnishing the City proof of
4 2 his ownership thereof, satisfactory proof of loss or destruction thereof and satisfactory indemnity,
4 3 complying with such other reasonable regulations and conditions as the City may prescribe and
4 4 paying such expenses as the City may incur. The City shall cancel all mutilated Bonds that are
4 5 ~surrendered. If any mutilated, destroyed, lost or stolen Bond shall have matured or be about to
6
(M1664192_3)
1 mature, instead of issuing a substitute Bond, the City may pay the principal of and interest on
2 such Bond upon the Owner complying with the requirements of this paragraph.
3
4 Any such duplicate Bonds issued pursuant to this section shall constitute original
5 contractual obligations of the City whether or not the lost, stolen or destroyed Bonds be at any
6 time found by anyone, and such duplicate Bonds shall be entitled to equal and proportionate
~ benefits and rights as to lien on and source and security for payment from the funds, as
e hereinafter pledged, to the extent as all other Bonds issued hereunder.
9
i o SECTION 7. FORM OF BONDS: The text of the Bonds shall be of substantially the
i 1 following tenor, with such omissions, insertions and variations as may be necessary and desirable
12 and authorized or permitted by this Resolution.
13
14 No. R-
i5 UNITED STATES OF AMERICA
16 STATE OF FLORIDA
1 ~ CITY OF MIAMI GARDENS
1 a EQUIPMENT ACQUISITION REVENUE BOND
19 SERIES 2008
20
21 Registered Owner:
22
23 Principal Amount: The lesser of (i) $4,700,000 or (ii) the Advances made under the Resolution
2 4 (as hereinafter defined)
25
26 KNOW ALL MEN BY THESE PRESENTS, that the City of Miami Gardens, Florida
2 ~ (the "Ciry"), for value received, hereby promises to pay in installments to the Registered Owner
2 8 shown above, or registered assigns, on the dates set forth below, the Principal Amount specified
29 above or so much thereof as has been advanced and is outstanding. Subject to the rights of prior
3o prepayment and amortization described in this Bond, this Bond shall mature on January 1, 2013.
31
32 This Bond is issued under authority of and is full compliance with the Constitution and
33 laws of the State of Florida, including particularly Part II of Chapter 166, Florida Statutes, as
34 amended, the Charter of the City, Ordinance No. 2007- duly adopted by the City Council
3 5 of the City on December 12, 2007, and Resolution No. 2007-_ duly adopted by the City
36 Council of the City on December 12, 2007 (the `Bond Resolution"), and is subject to the terms
3~ of the Bond Resolution. This Bond is issued for the purpose of financing or reimbursing a
38 portion of the costs of purchasing vehicles, equipment and machinery for various City
3 9 departments, and paying costs of issuance of the Bonds.
40
41 Subject to adjustment as provided below, this Bond shall bear interest on the outstanding
4 2 principal balance from its date of issuance payable annually on each January 1(the "Interest
43 Payment Dates"), commencing January 1, 2009, as follows:
44
4 5 (a) from the date of delivery of the Bonds until the Conversion Date (as
7
{M 1664192_3;
1 defined below) (the "Variable Rate Period") at an interest rate equal to the one-month
2 LIBOR as shown on the Telerate System, page 3750 (the "LIBOR Rate"), adjusted
3 monthly on the first day of each month (the "Reset Date"), minus 150 basis points
4 (1.50%). The initial LIBOR Rate shall be based on the LIBOR Rate determined two (2)
5 business days prior to the delivery date of the Bonds and each reset LIBOR Rate shall be
6 based on the LIBOR Rate determined two (2) business days prior to each Reset Date; and
~
s (b) from the date following the Conversion Date until the maturity date of the
9 Bonds (the "Fixed Rate Period"), at an interest rate equal to the 5-year U.S. Dollar Swap
1 o Offering Rate as of the Conversion Date, as published by the Federal Reserve Board in
11 the Federal Reserve Statistical Release H.15 and reported on Reuters page ISDAFIXI
12 three (3) business days prior to the Conversion Date, minus 128.5 basis points (1.285%)
13 (the "Fixed Rate").
14
15 As used herein, "Conversion Date" shall mean the date specified by the City in a written
16 notice to the Bank requesting that the interest rate on the Bonds be converted to a fixed rate
1 ~ pursuant to paragraph (b), which may be any date not later than one year from the date of
18 issuance of the Bonds (the "Anniversary Date"). Such notice shall be delivered to the Bank not
19 later than 5 business days prior to the requested Conversion Date. If the City has not made such
2 o request by the Anniversary Date, then the Anniversary Date shall be the Conversion Date.
21
22 Interest on this Bond shall be computed on the basis of a 360-day year consisting of
2 3 twelve (12) thirty-day months.
24
25 Adjustment of Interest Rate For Full T~abilitv. In the event a Determination of
2 6 T~ability shall have occurred during the Variable Rate Period, the rate of interest on the Bonds
2 ~ shall be increased to a rate per annum equal to 1.5625 times (the LIBOR Rate minus 1.50%) (the
28 "Variable Rate Taxable Rate"), and in the event a Determination of T~ability shall have
2 9 occurred during the Fixed Rate Period, the rate of interest on the Bonds shall be increased to
3 0 1.5625 times the Fixed Rate (the "Fixed Rate Taxable Rate"), effective retroactively to the date
31 on which the interest payable on the Bonds is includable for federal income t~ purposes in the
32 gross income of the Owners thereof. In addition, the Owners of the Bonds or any former Owners
33 of the Bonds, as appropriate, shall be paid an amount equal to any additions to t~, interest and
34 penalties, and any arrears in interest that are required to be paid to the United States by the
35 Owners or former Owners of the Bonds as a result of such Determination of TaYability. All such
3 6 additional interest, additions to t~, penalties and interest shall be paid by the City on the first day
3 ~ of the succeeding calendar quarter following the Determination of Taxability. A"Determination
38 of Taxability" shall mean (i) the issuance by the Internal Revenue Service of a statutory notice of
3 9 deficiency or other written notification which holds in effect that the interest payable on the
4 o Bonds is includable for federal income tax purposes in the gross income of the Owners thereof,
41 which notice or notification is not contested by either the City or any Owners of the Bonds, or (ii)
42 a determination by a court of competent jurisdiction that the interest payable on the Bonds is
4 3 includable for federal income tax purposes in the gross income of the Owners thereof, which
4 4 determination either is final and non-appealable or is not appealed within the requisite time
4 5 period for appeal, or (iii) the admission in writing by the City to the effect that interest on Bonds
g
; M 1664192_3 }
1 is includable for federal income tax purposes in the gross income of the Owners thereof.
2
3 Adjustment of Interest Rate for Partial Taxability. In the event that interest on the Bonds
4 during any period becames partially taxable as a result of a Determination of T~ability
5 applicable to less than all of the Bonds, then the interest rate on the Bonds shall be increased
6 during such period by an amount equal to: (A-B) x C where:
~ (a) A equals the Variable Rate Taxable Rate or the Fixed Rate Taxable
8 Rate, as applicable (expressed as a percentage);
9
10 (b) B equals the interest rate on the Bonds (expressed as a percentage);
i i and
12
13 (c) C equals the portion of the Bonds the interest on which has become
14 taxable as the result of such tax change (expressed as a decimal).
15
16 In addition, the Owners of the Bonds or any former Owners of the Bonds, as appropriate,
1 ~ shall be paid an amount equal to any additions to tax, interest and penalties, and any arrears in
1 e interest that are required to be paid to the United States by the Owners or former Owners of the
19 Bonds as a result of such Determination of Taxability. All such additional interest, additions to
2 o tax, penalties and interest shall be paid by the City on the first day of the succeeding calendar
21 quarter following the Determination of Taxability.
22
23 Adjustment of Interest Rate for Change in Maximum Corporate Tax Rate. In the event
2 4 that the maximum effective federal corporate tax rate (the "M~imum Corporate Tax Rate")
2 5 during any period with respect to which interest shall be accruing on the Bonds on a ta~c-exempt
26 basis, shall be other than thirty-five percent (35%), the interest rate on the Bonds that are bearing
2~ interest on a tax-exempt basis shall be adjusted to the product obtained by multiplying the
2 s interest rate then in effect on the Bonds by a fraction equal to (1-A divided by 1-B), where A
2 9 equals the Maximum Corporate Tax Rate in effect as of the date of adjustment and (B) equals
3o M~imum Corporate Tax Rate in effect immediately prior to the date of adjustment.
31
32 Adjustment of Interest Rate for Other Changes Affecting After-Tax Yield. So long as any
33 portion of the principal amount of the Bonds or interest thereon remains unpaid (a) if any law,
3 4 rule, regulation or executive order is enacted or promulgated by any public body or governmental
35 agency which changes the basis of t~ation of interest on the Bonds or causes a reduction in yield
3 6 on the Bonds (other than by reason of a change described above) to the Owners or any former
3~ Owners of the Bonds, including without limitation the imposition of any excise tax or surcharge
3 8 thereon, or (b) if, as result of action by any pubic body or governmental agency, any payment is
3 9 required to be made by, or any federal, state or local income t~ deduction is denied to, the
4 o Owners or any former Owners of the Bonds (other than by reasons of change described above or
41 by reason of any action or failure to act on the part of any Owner or any former Owner of the
4 2 Bonds) by reason of the ownership of the Bonds, the City shall reimburse any such Owner within
4 3 five (5) days after receipt by the City of written demand for such payment, and the City agrees to
4 4 indemnify each such Owner against any loss, cost, charge or expense with respect to any such
4 5 change.
9
; M 1664 ] 92_3 )
1
2 Adjustment of Interest Rate Upon an Event of Default. If an "event of default" occurs
3 under Section 19 of the Bond Resolution, the interest rate on the Bonds shall immediately be
4 adjusted to a rate equal to the per annum interest rate announced by Wachovia Bank, National
5 Association, from time to time, as its "Prime Rate," plus two percent (2%).
6
7
8 Prepayment Provisions
9
1 o Mandatorv Prepayment
11
12 The principal of this Bond shall be subject to mandatory prepayment in
13 annual installments on each January 1, commencing January 1, 2010 (each a
i 4 "Scheduled Due Date"). The schedule of principal and interest payments due on
1 s each Scheduled Due Date shall be determined by the Owners and provided to the
16 City on the first day of the Fixed Rate Period (as determined in Section 3(b)(ii) of
i ~ the Bond Resolution). The schedule shall be determined based upon the Fixed
1 e Rate and an amortization schedule of substantially level payments of principal and
19 interest, with payments of principal and interest sufficient to fully amortize so
2 o much of the principal amount of the Bonds as is outstanding on the first day of the
21 Fixed Rate Period, with the final payment due and payable on January 1, 2013.
22
23 Optional Prepavment. This Bond is subject to optional prepayment as follows:
24
25 (a) during the Variable Rate Period, this Bond is subject to
2 6 prepayment in whole or in part at any time at a price of par plus accrued interest to
2 ~ the date of prepayment, upon written notice to the registered Owner hereof given
2 8 by the City at least five (5) days prior to the date fixed for prepayment; and
29
30 (b) during the Fixed Rate Period, this Bond is subject to prepayment in
3 i whole or in part at any time at a price of par, plus accrued interest to the date of
32 prepayment, plus a premium equal to the "Prepayment Penalty" described in
3 3 Exhibit "A" attached hereto, upon written notice to the Owners thereof given by
34 the City at least five (5) days prior to the date fixed for prepayment.
35
3 6 Partial prepayments shall be applied in inverse order of the maturity of principal
3 ~ installments.
38
3 9 In the event that there is more than one Owner of the Bonds, (i) the City shall determine
4 o the amount of each Bond to be redeemed, and (ii) the City shall give notice to each Owner of the
41 Bonds at least three (3) days prior to the date of redemption of the amount of each Bond to be
4 2 redeemed.
43
4 4 In case part but not all of an outstanding Bond shall be prepaid, such Bond shall not be
4 5 surrendered in exchange for a new Bond, but the City shall make a notation indicating the
10
; M 1664 ] 92_3 }
i remaining outstanding principal of the Bonds upon the registration books. The Bond so
2 redesignated shall have the remaining principal as provided on such registration books and shall
3 be deemed to have been issued in the denomination of the outstanding principal balance, which
4 shall be an authorized denomination.
5
6 The principal of and interest on this Bond are payable in lawful money of the United
~ States of America by wire transfer or by certified check delivered on .or prior to the date due to
8 the registered Owner or his legal representative at the address of the Owner as it appears on the
9 registration books of the City.
10
11 Except as otherwise provided in Section 8(b) of the Bond Resolution with respect
12 to the release of certain security, this Bond and the interest hereon are secured by (i) the portion
13 of the proceeds of the Local Government Half-Cent Sales Tax as defined in and received by the
14 City under Part VI, Chapter 218, Florida Statutes (the "Local Government Half-Cent Sales Tax
i 5 Revenues") and by (ii) proceeds of the Communication Services Tax as defined in and received
16 by the City under Chapter 202, Florida Statutes (the "Communication Services Tax Revenues").
1 ~ The Bonds are on a parity, with respect to the lien on the Local Government Half-Cent Sales Tax
i 8 Revenues and the Communication Services Tax Revenues, with the City's outstanding
19 $14,400,000 Land Acquisition and Improvement Revenue Bonds, Series 2007, $2,500,000
2 o Capital Improvement Revenue Bonds, Series 2005, and $7,500,000 Land Acquisition Revenue
21 Bonds, Series 2005. Reference is hereby made to the Resolution for the provisions, among
22 others, relating to the terms, lien and security of the Bonds, the custody and application of the
23 proceeds of the Bonds, the rights and remedies of the Registered Owners of the Bonds, and the
2 4 extent of and limitations on the City's rights, duties and obligations, to all of which provisions
2 s the Registered Owner hereof for himself and his successors in interest assents by acceptance of
2 6 this Bond.
27
28 THIS BOND SHALL NOT BE DEEMED TO CONSTITUTE AN INDEBTEDNESS OF
2 9 THE CITY OR A PLEDGE OF THE FAITH AND CREDIT OF THE CITY, BUT SHALL BE
3 o PAYABLE EXCLUSIVELY, EXCEPT AS OTHERWISE PROVIDED IN SECTION 8(B) OF
31 THE RESOLUTION WITH RESPECT TO THE RELEASE OF CERTAIN SECURITY, BY
32 THE COMMUNICATION SERVICES TAX REVENUES AND THE LOCAL GOVERNMENT
33 HALF-CENT SALES TAX REVENUES OF THE CITY, AS DEFINED HEREIN. THE
34 ISSUANCE OF THIS BOND SHALL NOT DIRECTLY OR 1NDIRECTLY OR
35 CONTINGENTLY OBLIGATE THE CITY TO LEVY OR TO PLEDGE ANY FORM OF AD
3 6 VALOREM TAXATION WHATEVER THEREFOR NOR SHALL THIS BOND
3~ CONSTITUTE A CHARGE, LIEN, OR ENCUMBRANCE, LEGAL OR EQUITABLE, UPON
38 ANY PROPERTY OF THE CITY, AND THE HOLDER OF THIS BOND SHALL HAVE NO
3 9 RECOURSE TO THE POWER OF AD VALOREM TAXATION.
40
41 The original registered Owner, and each successive registered Owner of this Bond shall
4 2 be conclusively deemed to have agreed and consented to the following terms and conditions:
43
4 4 1. The City shall keep books for the registration of Bonds and for the registration of
4 5 transfers of Bonds as provided in the Resolution. Bonds may be transferred or exchanged
11
; M 1664192_3 ;
1 upon the registration books kept by the City, upon delivery to the City, together with
2 written instructions as to the details of the transfer or exchange, of such Bonds in form
3 satisfactory to the City and with guaranty of signatures satisfactory to the City, along with
4 the social security number or federal employer identification number of any transferee
5 and, if the transferee is a trust, the name and social security or federal tax identification
6 numbers of the settlor and beneficiaries of the trust, the date of the trust and the name of
~ the trustee. The Bonds may be exchanged for Bonds of the same principal amount and
8 maturity and denominations in integral multiples of $250,000 (except that an odd lot is
9 permitted to complete the outstanding principal balance). No transfer or exchange of any
1 o Bond shall be effective until entered on the registration books maintained by the City.
11
12 2. The City may deem and treat the person in whose name any Bond shall be
13 registered upon the books of the City as the absolute Owner of such Bond, whether such
14 Bond shall be overdue or not, for the purpose of receiving payment of, or on account of,
i 5 the principal of and interest on such Bond as they become due, and for all other purposes.
i 6 All such payments so made to any such Owner or upon his order shall be valid and
1 ~ effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or
18 sums so paid.
19
2 0 3. In all cases in which the privilege of exchanging Bonds or transferring Bonds is
21 exercised, the City shall execute and deliver bonds in accordance with the provisions of
2 2 the Resolution. There shall be no charge for any such exchange or transfer of Bonds, but
23 the City may require payment of a sum sufficient to pay any tax, fee or other
2 4 governmental charge required to be paid with respect to such exchange or transfer. The
25 City shall not be required to transfer or exchange Bonds for a period of fifteen (15) days
2 6 next preceding an interest payment date on such Bonds.
27
2 8 4. All Bonds, the principal of which has been paid, either at or prior to maturity,
2 9 shall be delivered to the City when such payment is made, and shall thereupon be
3 o canceled. In case part, but not all of an outstanding Bond shall be prepaid, such Bond
31 shall not be surrendered in exchange for a new Bond.
32
33 It is hereby certified and recited that all acts, conditions and things required to happen, to
34 exist and to be performed precedent to and for the issuance of this Bond have happened, do exist
3 5 and have been performed in due time, form and manner as required by the Constitution and the
3 6 laws of the State of Florida applicable thereto.
37
3 e IN WITNESS WHEREOF, the City of Miami Gardens, Florida has caused this Bond to
3 9 be executed by the manual or facsimile signature of its Mayor and of its City Clerk, and the Seal
4 0 of the City of Miami Gardens, Florida or a facsimile thereof to be affixed hereto or imprinted or
41 reproduced hereon, all as of the day of , 2008.
42
4 3 CITY OF MIAMI GARDENS, FLORIDA
44
45
12
; M 1664192_3 )
1 Mayor
4 City Clerk
s (SEAL)
13
(M 1664 ] 92_3 }
1
2
3
4
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6
~
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9
10
11
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13
14
15
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40
41
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (the "Transferor"), hereby sells,
assigns and transfers unto (Please insert name and Social Security or Federal Employer
identification number of assignee) the within Bond and all rights thereunder, and hereby
irrevocably constitutes and appoints (the "Transferee") as attorney to register the transfer
of the within Bond on the books kept for registration thereof, with full power of substitution in
the premises.
Date
Signature Guaranteed: Social Security Number of Assignee
NOTICE: Signature(s) must be guaranteed by a member firm of the New York Stock Exchange
or a commercial bank or a trust company
NOTICE: No transfer will be registered and no new Bond will be issued in the name of the
Transferee, unless the signature(s) to this assignment corresponds with the name as it appears
upon the face of the within Bond in every particular, without alteration or enlargement or any
change whatever and the Social Security or Federal Employer ldentification Number of the
Transferee is supplied.
The following abbreviations, when used in the inscription on the face of the within Bond,
shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
(Cust.~
Custodian for ,
(Minor)
TEN ENT - as tenants by under Uniform Gifts to Minors
the entirety Act of
(State)
JT TEN -as joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though not in the list above.
14
; M 1664192_3 }
1 SECTION 8. PLEDGE OF REVENUES:
2
3 (a) The City hereby pledges, assigns and grants a security interest to the
4 Bondholders in the Local Government Half-Cent Sales Tax Revenues and in the Communication
5 Services Tax Revenues in order to secure the principal of and interest on the Bonds. The City
6 covenants that for so long as the Bonds are secured by the Local Government Half-Cent Sales
~ Tax Revenues it shall take all necessary steps to qualify to continue to receive the Local
8 Government Half-Cent Sales Tax Revenues as provided for in Part VI, Chapter 218, Florida
9 Statutes. The City covenants that for so long as the Bonds are secured by the Communication
1 o Services Tax Revenues it shall take all necessary steps to qualify to continue to receive the
11 Communication Services T~ Revenues as provided for in Chapter 202, Florida Statutes. The
12 City represents and warrants to the Bondholders that there are no other obligations of the City
13 currently outstanding secured by the Local Government Half-Cent Sales Tax Revenues or the
14 Communication Services Tax Revenues, other than the City's outstanding $14,400,000 Land
15 Acquisition and Improvement Revenue Bonds, Series 2007, $2,500,000 Capital Improvement
15 Revenue Bonds, Series 2005, and $7,500,000 Land Acquisition Revenue Bonds, Series 2005
1 ~ (collectively, the "Parity Bonds"), the lien of which is and shall be on a parity with the lien on
1 e such revenues for the benefit of the Bonds.
19
2 0 (b) As used in this Resolution, (i) the term "Local Government Half-Cent
21 Sales Tax Revenues" means the portion of the proceeds of the Local Government Half-Cent
22 Sales Tax as defined in and received by the City under Part VI, Chapter 218, Florida Statutes, (ii)
23 the term "Communication Services T~ Revenues" means proceeds of the Communication
24 Services Tax as defined in and received by the City under Chapter 202, Florida Statutes, and (iii)
2 5 the term "Pledged Revenues" means the Communication Services Tax Revenues, and the Local
2 6 Government Half-Cent Sales Tax Revenues.
27
2 8 (c) Calculations of Pledged Revenues will be based on information
2 9 derived from the most recently audited fiscal year end financial statements. For purposes of
3 o calculating Maximum Annual Debt Service, the interest rate to be assumed for indebtedness
31 bearing interest at a variable rate shall be equal the higher of seven percent (7%) per annum or
32 the actual rate of interest paid by the City with respect to such indebtedness during the month
3 3 preceding the date of calculation, and such indebtedness shall be assumed to be fully funded. In
34 addition, for purposes of calculating Maximum Annual Debt Service, the $2,500,000 Capital
35 Improvement Revenue Bonds, Series 2005, shall be assumed to amortize over a six (6) year
3 6 period and the Bonds shall be assumed to amortize over a four (4) year period.
37
38 SECTION 9. BOND FUND: There is hereby created a fund, entitled "City of Miami
3 9 Gardens, Florida Equipment Acquisition Revenue Bonds, Series 2008 Bond Fund" (the `Bond
4 o Fund"). There shall be deposited into the Bond Fund on each Interest Payment Date sufficient
41 amounts of Pledged Revenues as specified in Section 8 hereof which, together with the amounts
4 2 already on deposit therein, will enable the City to pay the principal of and interest on the Bonds
4 3 on each Interest Payment Date. Moneys in the Bond Fund shall be applied on each Interest
4 4 Payment Date to the payment of principal of and interest on the Bonds coming due on each such
4 5 date.
15
; M l 664192_S;
1
2 SECTION 10. SWAP AGREEMENTS: The City is authorized to enter into a swap
3 agreement with the Bondholders or with another party with the consent of the Bondholders for
4 the purpose of effectively lowering or fixing the interest rate on the Bonds for any period of time.
s For purposes of depositing sufficient moneys into the Bond Fund to pay principal and interest on
6 the Bonds pursuant to Section 9 hereof, and for purpose of the calculations specified in Section
~ 17(b) hereof, (i) any payments due under such swap agreement shall be considered to be the
e equivalent of debt service payments on the Bonds, and Pledged Revenues shall be set aside in
9 each fiscal year in an amount at least equal to the greater of (x) the payments due under the swap
1 o agreement in such fiscal year or (y) the debt service payments due on the Bonds in such fiscal
1 i year, in order to make all such payments, and (ii) any payments actually received by the City
12 under the swap agreement may be taken into account and, upon receipt, shall be deposited into
13 the Bond Fund.
14
15 SECTION 1L INVESTMENT OF BOND FUND: Subject to Section 14 hereof, funds
i 5 in the Bond Fund may be invested in the following investments, maturing at or before the time
1 ~ such funds may be needed to pay principal of or interest on Bonds, to the extent such investments
18 are legal for investment of municipal funds ("Authorized Investments"):
19
2 0 (a) The Local Government Surplus Funds Trust Fund;
21
22 (b) Negotiable direct obligations of, or obligations the principal of and
2 3 interest on which are unconditionally guaranteed by, the United States Government at the
2 4 then prevailing market price for such securities;
25
2 6 (c) Interest-bearing time deposits or savings accounts in banks organized
2 ~ under the laws of the State of Florida (the "State"), in national banks organized under the
2 8 laws of the United States and doing business and situated in the State, in savings and loan
2 9 associations which are under State supervision, or in federal savings and loan associations
3 0 located in the State and organized under federal law and federal supervision, provided
3 i that any such deposits are secured by collateral as may be prescribed by law;
32
33 (d) Obligations of the federal farm credit banks; the Federal Home Loan
34 Mortgage Corporation, including Federal Home Loan Mortgage Corporation participation
35 certificates; or the Federal Home Loan Bank or its district banks or obligations
3 6 guaranteed by the Government National Mortgage Association;
37
3 s (e) Obligations of the Federal National Mortgage Association, including
3 9 Federal National Mortgage Association participation certificates and mortgage pass-
4 o through certificates guaranteed by the Federal National Mortgage Association;
41
4 2 (~ Securities of, or other interests in, any open-end or closed-end
4 3 management type investment company or investment trust registered under the
44 Investment Company Act of 1940, 15 U.S.C. ss. 80a-1 et seq., as amended from time to
4 5 time, provided the portfolio of such investment company or investment trust is limited to
16
(M 1664 ] 92_3 }
1 United States Government obligations and to repurchase agreements fully collateralized
2 by such United States Government obligations and provided such investment company or
3 investment trust takes delivery of such collateral either directly or through an authorized
4 custodian; or
5
6 (g) Any other investments that at the time are legal investments for
~ municipal funds.
8
9 SECTION 12. ADVANCES AND APPLICATION OF BOND PROCEEDS:
io
11 (a) The proceeds of the Bonds shall be disbursed by the Bank by making
12 Advances (as defined below) from time to time in an aggregate principal amount not exceeding
13 $4,700,000, provided that no Advance shall be made after the Anniversary Date. Each draw
14 shall be for a minimum amount of $50,000 and only one draw may be made during any calendar
15 month.
16
1 ~ (b) The City may request an Advance by delivering to the Bank at least three
18 Business Days (as defined below) prior to the date on which the Advance is requested to be
19 funded a written request signed by either the Mayor, the City Manager or the Finance Director of
2 o the City (each such request, a"Notice of Advance") (i) specifying the Business Day on which the
2 i funding of the Advance is requested; (ii) specifying the amount of the Advance requested; (iii)
22 stating that to the best of the signer's knowledge, no event of default under the Resolution has
2 3 occurred and is continuing (which has not been cured or waived) and no event which, with the
2 4 giving of notice or the passage of time or both would constitute an event of default, has occurred
2 5 and is continuing.
26
2 ~ (c) Upon receipt of a Notice of Advance, the Bank shall fund the Advance
2 8 requested prior to 11:00 a.m. on the later of the third succeeding Business Day or the date such
2 9 Advance is requested to be funded. On the date the Advance is to be funded, the Bank shall
3 o make available the amount of the Advance requested in immediately available funds.
31
32 (d) A Notice of Advance may be revoked by the City upon delivery of a
33 written notice delivered to the Bank not later than 9:00 a.m. on the date the proposed Advance is
3 4 to be funded.
35
3 6 (e) For purposes of this Section 12, "Advance" shall mean an advance of the
3~ Bond proceeds by the Bank to the City, and `Business Day" shall mean any date other than a
38 Saturday, Sunday or other day on which the Bank is lawfully closed.
39
4 0 (~ Sufficient proceeds received from the first Advance on the date of issuance
41 of the Bonds shall be applied to pay costs of issuance of the Bonds. All other proceeds received
4 2 from the first Advance, as well as proceeds received from all subsequent Advances, shall be
4 3 deposited in the "City of Miami Gardens Equipment Acquisition Revenue Bonds, Series 2008
44 Project Fund" (the "Project Fund"), hereby created, and used only for the costs of the Project,
4 s with no further approval of the City Council necessary for any such Advance.
17
(M1664192_3~
1
2 (g) Pending their use, the proceeds in the Project Fund may be invested in
3 Authorized Investments, maturing not later than the date or dates on which such proceeds will be
4 needed for the purposes of this Bond Resolution. Subject to Section 14 hereof, any income
s received upon such investment shall be deposited in the Project Fund and applied to costs of the
6 Project or, at the option of the City, deposited in the Bond Fund and used to pay interest on the
~ Bonds until completion of the Project. Subject to Section 14 hereof, after the completion of the
e Project, any remaining balance of proceeds of the Bonds shall be deposited into the Bond Fund
a and used solely to pay interest on the Bonds.
io
i i (h) The Proj ect Fund shall be kept separate and apart from all other funds of
12 the City and the moneys on deposit therein shall be withdrawn, used and applied by the City
13 solely for the purposes set forth herein. Pending such application, the Project Fund shall be
i 4 subject to the lien of the Owners of the Bonds for the payment of the principal of and interest on
1 s the Bonds.
16
1. ~ (i) The registered Owners shall have no responsibility for the use of the
i s proceeds of the Bonds, and the use of such Bond proceeds by the City shall in no way affect the
i 9 rights of such registered Owners. The City shall be obligated to apply the proceeds of the Bonds
2 o solely for financing costs of the Project. However, the City shall be irrevocably obligated to
21 continue to pay the principal of and interest on the Bonds notwithstanding any failure of the City
22 to use and apply such Bond proceeds in the manner provided herein.
23
24 SECTION 13. FUNDS: Each of the funds and accounts herein established and created
2 5 shall constitute trust funds for the purposes provided herein for such funds and accounts
2 6 respectively. The money in such funds and accounts shall be continuously secured in the same
2 ~ manner as deposits of City funds are authorized to be secured by the laws of the State of Florida.
2 s Except as otherwise provided in Section 12 hereof, earnings on any investments in any amounts
2 9 on any of the funds and accounts herein established and created shall be credited to such
3 o respective fund or account.
31
32 The designation and establishment of the funds and accounts in and by this Bond
33 Resolution shall not be construed to require the establishment of any completely independent,
34 self-balancing funds, as such term is commonly defined and used in governmental accounting,
35 but rather is intended solely to constitute an earmarking of certain revenues and assets of the City
36 for the purposes herein provided and to establish certain priorities for application of such
3 ~ revenues and assets.
38
3 9 SECTION 14. INVESTMENTS AND USE OF PROCEEDS TO COMPLY WITH
4 o INTERNAL REVENUE CODE OF 1986: The City covenants to the Owners of the Bonds that
41 it will take all actions and do all things necessary and desirable in order to maintain the exclusion
4 2 from gross income for federal income taa~ purposes of interest on the Bonds, and shall refrain
4 3 from taking any actions that would cause interest on the Bonds to be included in gross income for
4 4 federal income tax purposes. In particular, the City will not make or direct the making of any
4 5 investment or other use of the proceeds of the Bonds which would cause such Bonds to be
18
{ M I 664192_3 }
1 "private activity bonds" as that term is defined in Section 141 (or any successor provision
2 thereto) of the Code or "arbitrage bonds" as that term is defined in Section 148 (or any successor
3 provision thereto) of the Code, and all applicable regulations promulgated under the Code, and
4 that it will comply with the applicable requirements of Sections 141 and 148 of the Code and the
s aforementioned regulations throughout the term of the Bonds.
6
~ SECTION 15. DESIGNATION UNDER SECTION 265(b)(3) OF THE CODE: The
8 City hereby designates the Bonds as qualified tax-exempt obligations under Section 265(b)(3) of
9 the Code, and shall make all necessary filings in order to effectuate such election. The City
i o represents that neither the City nor any subordinate entities or entities issuing tax-exempt
11 obligations on behalf of the City within the meaning of Section 265(b)(3) of the Code have
12 issued tax-exempt obligations during calendar year 2008 and neither the City nor any such
13 entities expect to issue t~-exempt obligations during calendar year 2008, other than the Bonds.
14
15 SECTION 16. ARBITRAGE REBATE COVENANTS: There is hereby created and
i 6 established a fund to be held by the City, designated the "City of Miami Gardens Equipment
1 ~ Acquisition Revenue Bonds, Series 2008 Rebate Fund" (the "Rebate Fund"). The Rebate Fund
18 shall be held by the City separate and apart from all other funds and accounts held by the City
19 under this Resolution and from all other moneys of the City.
20
21 Notwithstanding anything in this Resolution to the contrary, the City shall transfer to the
2 2 Rebate Fund the amounts required to be transferred in order to comply with the Tax Certificate
2 3 or the Rebate Covenants, if any, attached as an Exhibit to the Tax Certificate to be delivered by
2 4 the City on the date of delivery of the Bonds (the "Rebate Covenants"), when such amounts are
2 5 so required to be transferred. The City Manager shall make ar cause to be made payments from
2 6 the Rebate Fund of amounts required to be deposited therein to the United States of America in
2 ~ the amounts and at the times required by the Rebate Covenants. The City covenants for the
2 e benefit of the Owners of the Bonds that it will comply with the Rebate Covenants. The Rebate
2 9 Fund, together with all moneys and securities from time to time held therein and all investment
3 o earnings derived therefrom, shall be excluded from the pledge and lien of this Resolution. The
3 i City shall not be required to comply with the requirements of this Section 16 in the event that the
32 City obtains an opinion of nationally recognized bond counsel that (i) such compliance is not
33 required in order to maintain the federal income tax exemption of interest on the Bonds and/or
34 (ii) compliance with some other requirement is necessary to maintain the federal income tax
35 exemption of interest on the Bonds.
36
3 ~ SECTION 17. SPECIAL COVENANTS OF THE CITY; ADDITIONAL BONDS
38 TEST:
39
4 0 (a) The City shall, upon receipt by the City or within one hundred eighty (180)
41 days of each fiscal year end, whichever is sooner, provide the Owners of the Bonds with a printed
4 2 copy of its Comprehensive Annual Financial Report, its current year operating budget and its
4 3 capital improvement plan. The City shall also provide to the Owners of the Bonds any other
4 4 financial information reasonably requested by such Owners.
45
19
{ M 1664192_3 )
1 (b) The City will not issue any additional obligations secured by the Pledged
2 Revenues, unless (i) the ratio of the amount of Pledged Revenues collected during each of the
3 preceding two fiscal years of the City divided by the Maximum Annual Debt Service on all Debt
4 Obligations secured by the Pledged Revenues and on the Debt Obligations proposed to be
5 issued, is at least equal to 1.50, (ii) no Event of Default exists hereunder and (iii) the other
6 covenants of the City contained herein will continue to be met. Far purposes of determining
~ compliance with (i) above, the assumptions set forth in Section 8(d) and the definitions set forth
s in Section 8(c) of this Resolution shall apply.
9
i o SECTION 18. COVENANTS BINDING ON CITY AND SUCCESSOR: All
11 covenants, stipulations, obligations and agreements of the City contained in this Resolution shall
12 be deemed to be covenants, stipulations, obligations and agreements of the City to the full extent
13 authorized or permitted by law, and all such covenants, stipulations, obligations and agreements
14 shall be binding upon the successor or successors thereof from time to time and upon the officer,
i s board, body or commission to whom or to which any power or duty affecting such covenants,
16 stipulations, obligations and agreements shall be transferred by or in accordance with law.
1~
18 Except as otherwise provided in this Resolution, all rights, powers and privileges
19 conferred and duties and liabilities imposed upon the City or upon the City Council by the
2 o provisions of this Resolution shall be exercised or performed by the City Council or by such
2 i officers, board, body or commission as may be required by law to exercise such powers or to
2 2 perform such duties.
23
2 4 No covenant, stipulation, obligation or agreement herein contained shall be deemed to be
2 5 a covenant, stipulation, obligation or agreement of any present or future member of the City
2 6 Council or officer, agent or employee of the City in his or her individual capacity, and neither the
2 ~ members of the City Council nor any officer, agent or employee of the City executing the Bonds
28 shall be liable personally on the Bonds or be subject to any personal liability or accountability by
2 9 reason of the issuance thereof.
30
31 SECTION 19. EVENTS OF DEFAULT: Each of the following events is hereby
32 declared an "event of default":
33
34 (a) payment of the principal of any of the Bonds shall not be made when the
3 5 same shall become due and payable; or
36
3 ~ (b) payment of any installment of interest on any of the Bonds shall not be
3 8 made when the same shall become due and payable; or
39
4 0 (c) the City shall default in the due and punctual performance of any
4 i covenant, condition, agreement or provision contained in the Bonds or in this
4 2 Resolution (except for a default described in subsection (a) or (b) of this Section)
4 3 on the part of the City to be performed, and such default shall continue for sixty
4 4 (60) days after written notice specifying such default and requiring same to be
4 5 remedied shall have been given to the City by any Owner of any bond; provided
20
(M1664192_3;
1 that it shall not constitute an event of default if the default is not one that can be
2 cured within such sixty (60) days, as agreed by the Bondholders and the City, and
3 the City commences within such sixty (60) days and is proceeding diligently with
4 action to correct such default;
5
6 (d) any proceeding shall be instituted with the consent of the City for the
~ purpose of effecting a composition between the City and its creditors or for the
s purpose of adjusting the claims of such creditors pursuant to any federal or state
9 statute now or hereafter enacted and such proceedings shall not have been
1 o dismissed within thirty (30) days after the institution of the same; or
ii
12 (e) a payment default occurs under any other debt or obligation of the City
13 which is secured by the Pledged Revenues.
14
15 SECTION 20. REMEDIES; RIGHTS OF BONDHOLDERS:
16
1 ~ (a) Upon the occurrence and continuance of any event of default specified in
1 e Section 19(a), (b) or (e) hereof, the Owners of the Bonds may declare all payments of principal
19 and accrued interest to be immediately due and payable, whereupon the same shall become
2 o immediately due and payable.
21
22 (b) Upon the occurrence and continuance of any event of default specified in
2 3 Section 19(c) or (d) hereof, the Owners of the Bonds may pursue any available remedy by suit, at
2 4 law or in equity, to enforce the payment of the principal of and interest on the Bonds then
2 5 outstanding.
26
2 ~ No delay or omission to exercise any right or power accruing upon any default or event of
2 8 default shall impair any such right or power or shall be construed to be a waiver of any such
2 9 default or event of default or acquiescence therein; and every such right and power may be
3 o exercised from time to time and as often as may be deemed expedient. No waiver of any event of
31 default hereunder shall extend to or shall affect any subsequent event of default or shall impair
32 any rights or remedies consequent thereon.
33
34 The City agrees, to the extent permitted by law, to indemnify the Bank and its directors,
35 officers, employees and agents from any against any losses, claims, damages, liabilities and
3 6 expenses (including, without limitation, counsel fees and expenses) which may be incurred in
3~ connection with enforcement of the provisions of this Resolution and the Bonds.
38
3 9 SECTION 21. DEFEASANCE:
40
41 (a) The covenants, liens and pledges entered into, created or imposed pursuant
4 2 to this Resolution may be fully discharged and satisfied with respect to the
4 3 Bonds in any one or more of the following ways.
44
4 5 (i) by paying the principal of, prepayment premium, if any, and
21
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1 interest on the Bonds when the same shall become due and
2 payable; or
3
4 (ii) by depositing with an escrow agent certain moneys irrevocably
s pledged to the payment of the Bonds, which together with other
6 moneys lawfully available therefor, if any, shall be sufficient at the
~ time of such deposit with the escrow agent to pay when due the
e principal, prepayment premium, if any, and interest due and to
9 become due on said Bonds on or prior to the prepayment date or
1 o maturity date thereof; or
11
12 (iii) by depositing with an escrow agent moneys irrevocably pledged to
13 the payment of the Bonds, which together with other moneys
14 lawfully available therefor, when invested by the escrow agent in
1 s direct obligations of the United States of America which shall not
16 be subject to redemption prior to their maturity other than at the
1 ~ option of the holder thereof, will provide moneys which shall be
18 sufficient (as evidenced by a verification report of an independent
19 certified public accountant or firm of accountants) to pay when due
2 o the principal, prepayment premium, if any, and interest due and to
21 become due on said Bonds on or prior to the prepayment date or
22 maturity date thereof.
23
2 4 Upon such payment or deposit with an escrow agent in the amount and manner provided
25 in this Section 21, the Bonds shall be deemed to be paid and shall no longer be deemed to be
2 6 Outstanding for the purposes of this Resolution and the covenants of the City hereunder and all
2 ~ liability of the City with respect to said Bonds shall cease, terminate and be completely
2 8 discharged and extinguished and the holders thereof shall be entitled to payment solely out of the
2 9 moneys or securities so deposited with the escrow agent; provided, however, that (i) if any Bonds
3 o are to be redeemed prior to the maturity thereof, notice of the redemption thereof shall have been
31 duly given in accordance with the provisions of Section 3 hereof and (ii) in the event that any
32 Bonds are not by their terms subject to redemption with the next succeeding sixty (60) days
33 following a deposit of moneys with the escrow agent in accordance with this Section, the City
34 shall have given the escrow agent in form satisfactory to it irrevocable instructions to mail to the
35 Owners of such Bonds at their addresses as they appear on the registration books of the City, a
3 6 notice stating that a deposit in accordance with this Section has been made with the escrow agent
3 ~ and that the Bonds are deemed to have been paid in accordance with this Section and stating such
38 maturity or redemption date upon which moneys are to be available for the payment of the
3 9 principal of, premium, if any, and interest on said Bonds.
40
41 (b) Notwithstanding the foregoing, all references to the discharge and
4 2 satisfaction of Bonds shall include the discharge and satisfaction of any
4 3 portion of the Bonds.
44
4 5 (c) If any portion of the moneys deposited with an escrow agent for the
22
(M 1664192_3 }
1 payment of the principal of, redemption premium, if any, and interest on
2 any portion of the Bonds is not required for such purpose, the escrow
3 agent shall transfer to the City the amount of such excess and the City may
4 use the amount of such excess free and clear of any trust, lien, security
5 interest, pledge or assignment securing said Bonds or otherwise existing
6 under this Resolution.
~
e (d) Notwithstanding any of the foregoing, the requirements of Sections 14 and
9 16 hereof relating to use and investment of proceeds and rebate amounts
1 o due to the United States pursuant to the Rebate Covenants shall survive
11 the payment of principal and interest with respect to the Bonds or any
12 portion thereof.
13
14 SECTION 22. SALE OF BONDS: Based upon the uncertainty of the interest rate
15 environment if sale of the Bonds is delayed, the City hereby determines and finds the necessity
16 for a negotiated sale of the Bonds. The City has been provided all applicable disclosure
l~ information required by Section 218.385, Florida Statutes. The negotiated sale of the Bonds is
18 hereby approved to the Bank at a purchase price of par.
19
2 o SECTION 23. AUTHORITY OF OFFICERS: The Mayor, the City Manager and the
21 City Clerk are and each of them is hereby authorized and directed to execute and deliver any and
2 2 all documents and instruments and to do and cause to be done any and all acts and things
2 3 necessary or proper for carrying out the transaction contemplated by this Resolution and the other
2 4 documents identified herein.
25
2 6 SECTION 24. SEVERABILITY: In case any one or more of the provisions of this
2 ~ Resolution or of any Bonds issued hereunder shall for any reason be held to be illegal or invalid,
2 8 such illegality or invalidity shall not affect any other provision of this Resolution or of the Bonds,
2 9 but this Resolution and the Bonds shall be construed and enforced as if such illegal or invalid
3 o provision had not been contained therein. The Bonds are issued and this Resolution is adopted
31 with the intent that the laws of the State shall govern their construction.
32
33 SECTION 25. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS:
34 In any case where the date of maturity of interest on or principal of the Bonds shall be a Saturday,
35 Sunday or a day on which the banks in the State are required, or authorized or not prohibited, by
3 6 law (including executive orders) to close and are closed, then payment of such interest or
3 ~ principal need not be made by the City on such date but may be made on the next succeeding
38 business day on which the banks in the State are open for business, but such interest shall
3 9 continue to accrue until payment is received by the Owners of the Bonds.
40
41 SECTION 26. OPEN MEETING FINDINGS: It is hereby found and determined that
4 2 all official acts of the City Council concerning and relating to the adoption of this Resolution and
4 3 all prior resolutions affecting the City Council's ability to issue the Bonds were taken in an open
4 4 meeting of the City Council and that all deliberations of the City Council or any of its
4 5 committees that resulted in such official acts were in meetings open to the public, in compliance
23
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with all legal requirements, including Section 286.011, Florida Statutes.
SECTION 27. REPEALING CLAUSE: All resolutions and parts thereof in conflict
herewith, to the extent of such conflicts, axe hereby superseded and repealed.
SECTION 28. WAIVER OF JURY TRIAL: To the extent permitted by applicable
law, the City, knowingly, voluntarily and intentionally waives any right it may have to a trial by
jury in respect of any litigation based on, or arising out of, under or in connection with this
Resolution, the Bonds or any agreement contemplated to be executed in connection with this
Resolution, or any course of conduct, course of dealing, statements (whether verbal or written) or
actions of the City or the Bank with respect hereto. The City acknowledges that this provision is
a material inducement to the Bank to purchase the Bonds.
SECTION 29. EFFECTIVE DATE: This Resolution shall take effect immediately
upon its final passage and adoption.
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF MIAMI
GARDENS AT ITS REGULAR MEETING HELD ON DECEMBER 12, 2007.
SHIRLEY GIBSON, MAYOR
ATTEST:
RONETTA TAYLOR, CMC, CITY CLERK
Prepared by ADORNO & YOSS, LLP, Bond Counsel
SPONSORED BY: DANNY O. CREW, CITY MANAGER
MOVED BY:
SECONDED BY:
VOTE:
Mayor Shirley Gibson _(Yes) _(No)
Vice Mayor Barbara Watson _(Yes) _(No)
Councilman Melvin L. Bratton _(Yes) _(No)
Councilman Oscar Braynon, II _(Yes) _(No)
Councilman Aaron Campbell, Jr. _(Yes) _(No)
Councilwoman Sharon Pritchett _(Yes) _(No)
Councilman Andre L. Williams _(Yes) _(No)
24
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