HomeMy Public PortalAbout2016-18 Authorizing the issuance of Sewer Improvements Revenue Bonds, Series 2016RESOLUTION NO. 2016-18
A RESOLUTION OF THE VILLAGE OF KEY BISCAYNE,
FLORIDA, AUTHORIZING THE ISSUANCE OF SEWER
IMPROVEMENT REVENUE BONDS, SERIES 2016, OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, IN THE
AGGREGATE PRINCIPAL AMOUNT OF NOT EXCEEDING
$3,490,000 FOR THE PURPOSE OF PREPAYING AND
REFINANCING A STATE REVOLVING FUND LOAN, AND
PAYING COSTS OF ISSUANCE OF THE BONDS;
AWARDING THE SALE OF THE BONDS TO FLORIDA
COMMUNITY BANK, N.A.; PROVIDING FOR SECURITY
FOR THE BONDS; PROVIDING OTHER PROVISIONS
RELATING TO THE BONDS; MAKING CERTAIN
COVENANTS AND AGREEMENTS IN CONNECTION
THEREWITH; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, on June 23, 2009, the Village of Key Biscayne, Florida (the "Village") entered
into a Clean Water State Revolving Fund Loan Agreement (WW850050), as amended by
Amendment 1 to Loan Agreement WW850050, with the Florida Water Pollution Control Financing
Corporation in a total amount of $5,215,500 (the "Loan") for the financing of a sanitary sewer
construction project (the "Project"); and
WHEREAS, in order to take advantage of the current prevailing low interest rates and
thereby achieve debt service savings, on May 24, 2016, the Village Council (the "Council") adopted
Ordinance No. 2016-6 (the "Ordinance") authorizing the issuance of not exceeding $3,500,000 of
bonds, to be issued in one or more series, for the purpose of prepaying and refinancing the Loan and
paying costs of issuance of the bonds; and
WHEREAS, the Council hereby determines to accept a commitment from Florida
Community Bank, N.A. (the "Bank") to purchase the bonds; and
WHEREAS, the Council desires to set forth the details of the bonds in this Resolution;
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA:
SECTION 1. AUTHORIZATION OF BONDS. Pursuant to the provisions of this
Resolution and the Ordinance, Sewer Improvement Revenue Bonds of the Village to be designated
"Village of Key Biscayne, Florida Sewer Improvement Revenue Bonds, Series 2016" (the "Bonds"),
are hereby authorized to be issued in an aggregate principal amount of not exceeding $3,490,000 for
the purpose prepaying and refinancing the Loan and paying costs of issuance of the Bonds.
SECTION 2. TERMS OF THE BONDS.
(a) General Provisions. The Bonds shall be issued in fully registered form
without coupons. The principal of and interest on the Bonds shall be payable when due 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 the registered Owners of the Bonds ("Owners") or their legal representatives at the
addresses of the Owners as they appear on the registration books of the Village. Payments shall be
made in immediately available funds by no later than 2:00 p.m., Eastern time, on the date due, free
and clear of any defenses, set -offs, counterclaims, or withholdings or deductions for taxes.
The Bonds shall be dated the date of their issuance and delivery and shall be initially issued
as one Bond in the denomination of $3,490,000. The Bonds shall mature on February 15, 2030.
THE BONDS SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL OBLIGATION
OR INDEBTEDNESS OF THE VILLAGE OR A PLEDGE OF THE FAITH AND CREDIT OF
THE VILLAGE WITHIN THE MEANING OF ANY PROVISION OF THE CONSTITUTION OF
THE STATE OF FLORIDA, BUT SHALL, INSTEAD, BE PAYABLE EXCLUSIVELY FROM
LEGALLY AVAILABLE NON -AD VALOREM REVENUES OF THE VILLAGE, AS DEFINED
IN THIS RESOLUTION. THE ISSUANCE OF THE BONDS SHALL NOT DIRECTLY OR
INDIRECTLY OR CONTINGENTLY OBLIGATE THE VILLAGE TO LEVY OR TO PLEDGE
ANY FORM OF AD VALOREM TAXATION WHATEVER THEREFOR NOR SHALL THE
BONDS CONSTITUTE A CHARGE, LIEN, OR ENCUMBRANCE, LEGAL OR EQUITABLE,
UPON ANY PROPERTY OF THE VILLAGE, AND THE HOLDERS OF THE BONDS SHALL
HAVE NO RECOURSE TO THE POWER OF AD VALOREM TAXATION.
(b) Interest Rate. Subject to adjustment as provided below, the Bonds shall bear
interest on the outstanding principal balance from their date of issuance payable semiannually on
each February 15 and August 15 (the "Interest Payment Dates"), commencing August 15, 2016, at
an interest rate equal to 1.97% per annum.
Interest on the Bonds shall be computed on the basis of a 360 -day year consisting of twelve
(12) thirty -day months for the actual number of days elapsed.
Adjustment of Interest Rate for Full Taxability. Upon a Determination of Taxability (as
defined below), the rate of interest on the Bonds shall be adjusted upward to 3.03% per annum (the
"Taxable Rate"), retroactive as of the date of the Determination of Taxability event. In addition to
the payments of principal and interest on the Bonds required to be paid pursuant to the terms of this
Resolution and the Bonds, the Village hereby agrees to pay to the Owners an amount equal to any
interest, penalties on overdue interest and additions to tax (as referred to in Subchapter A of Chapter
68 of the of the Internal Revenue Code of 1986, as amended (the "Code")) owed by the Owners as
a result of the occurrence of a Determination of Taxability. All such interest, penalties on overdue
interest, and additions to tax shall be paid by the Village on the next succeeding Interest Payment
Date following the Determination of Taxability. A "Determination of Taxability" shall mean a final
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decree or judgment of any Federal court or a final action of the Internal Revenue Service determining
that interest paid or payable on any Bond is or was includable in the gross income of an Owner of
the Bonds for Federal income tax purposes; provided, that no such decree, judgment, or action will
be considered final for this purpose, however, unless the Village has been given written notice and,
if it is so desired and is legally allowed, has been afforded the opportunity to contest the same, either
directly or in the name of any Owner of a Bond, and until the conclusion of any appellate review,
if sought.
Adjustment of Interest Rate for Loss of Bank Qualified Status. So long as no Determination
of Taxability shall have occurred, upon the occurrence of a Loss of BQ Status (as defined below),
and for as long as the Bonds remain outstanding, the interest rate on the Bonds shall be converted
to the Adjusted BQ Rate (as defined below). In addition, upon a Loss of BQ Status, the Village shall
pay to the Owners (i) an additional amount equal to the difference between (A) the amount of interest
actually paid on the Bonds during the period of time from the date of issuance of the Bonds to the
next succeeding Interest Payment Date, and (B) the amount of interest that would have been paid
during the period in clause (A) had the Bonds borne interest at the Adjusted BQ Rate, and (ii) an
amount equal to any penalties and interest paid or payable by the Owners to the Internal Revenue
Service by reason of such as a result of the Loss of BQ Status.
As used in the preceding paragraph:
"Adjusted BQ Rate" shall mean, upon a Loss of BQ Status, the interest rate per annum that
shall provide the Owners with the same after tax yield that the Owners would have otherwise
received had the Loss of BQ Status not occurred, taking into account the increased taxable income
of the Owners as a result of such Loss of BQ Status. The Owners shall provide the Village with a
written statement explaining the calculation of the Adjusted BQ Rate, which statement shall, in the
absence of manifest error, be conclusive and binding on the Village; and
"Loss of BQ Status" shall mean a determination by the Owners that the Bonds are not a
"qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Code (or any
successor provision).
A certificate of the Owners as to any such additional amount or amounts, in the absence of
manifest error, shall be final and conclusive. In determining such amount, the Owners may use any
reasonable averaging and attribution methods.
Adjustment of Interest Rate for Change in Maximum Corporate Tax Rate. In the event that
the maximum effective federal corporate tax rate (the "Maximum Corporate Tax Rate") during any
period with respect to which interest shall be accruing on the Bonds on a tax-exempt basis, shall be
other than thirty-five percent (35%), the interest rate on the Bonds that are bearing interest on a tax-
exempt basis shall be adjusted to the product obtained by multiplying the interest rate then in effect
on the Bonds by a fraction equal to (1-A divided by 1-B), where A equals the Maximum Corporate
Tax Rate in effect as of the date of adjustment and B equals the Maximum Corporate Tax Rate in
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effect immediately prior to the date of adjustment. The interest rate otherwise borne by the Bonds
shall be adjusted automatically as of the effective date of each change in the Maximum Federal
Corporate Tax Rate.
(c) Prepayment Provisions.
(i) Mandatory Prepayment. The principal of the Bonds shall be subject to
mandatory prepayment in semiannual installments on each February 15 and August 15,
commencing August 15, 2016, in the amounts set forth in the Amortization Schedule
attached to the Bonds.
In the event that there is more than one Owner of the Bonds, (A) each Bond shall be
redeemed on a pro rata basis, and (B) the Village shall give notice to each Owner of the
Bonds at least three (3) days prior to the date of mandatory redemption of the amount of each
Bond to be redeemed.
(ii) Optional Prepayment. The Bonds are subject to optional prepayment in whole
or in part at any time, upon ten (10) days written notice to the Owners specifying the
principal amount to be prepaid and the date of such prepayment, at a price of par plus
accrued interest to the date of prepayment, without penalty or premium. Any partial
prepayments shall be applied to installments of principal in inverse order of maturity and
shall not postpone any due dates of, or relieve the amounts of, any scheduled installment
payments due hereunder.
SECTION 3. EXECUTION OF BONDS. The Bonds shall be signed in the name of the
Village by the Mayor or Vice Mayor (or, in their absence, any other member of the Village Council)
and the Village Clerk, and its seal shall be affixed thereto or imprinted or reproduced thereon. The
signatures of the Mayor or Vice Mayor (or, in their absence, any other member of the Village
Council) and Village Clerk on the Bonds may be manual or facsimile signatures, provided that the
signature of one of such officers shall be a manual signature. In case any one or more of the officers
who shall have signed or sealed any of the Bonds shall cease to be such officer of the Village before
the Bonds so signed and sealed shall have been actually sold and delivered, such Bonds may
nevertheless be sold and delivered as herein provided and may be issued as if the person who signed
and sealed such Bonds had not ceased to hold such office. Any Bonds may be signed and sealed on
behalf of the Village by such person as at the actual time of the execution of such Bonds shall hold
the proper office, although at the date of such Bonds such person may not have held such office or
may not have been so authorized.
SECTION 4. NEGOTIABILITY, REGISTRATION AND CANCELLATION. The Village
shall serve as Registrar and as such shall keep books for the registration of Bonds and for the
registration of transfers of Bonds. Bonds may be transferred or exchanged upon the registration
books kept by the Village, upon delivery to the Village, together with written instructions as to the
details of the transfer or exchange, of such Bonds in form satisfactory to the Village and with
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guaranty of signatures satisfactory to the Village, along with the social security number or federal
employer identification number of any transferee and, if the transferee is a trust, the name and social
security or federal tax identification numbers of the settlor and beneficiaries of the trust, the date of
the trust and the name of the trustee. Bonds may be exchanged for one or more Bonds of the same
aggregate principal amount and maturity and in denominations in integral multiples of $100,000
(except that an odd lot is permitted to complete the outstanding principal balance). No transfer or
exchange of any Bond shall be effective until entered on the registration books maintained by the
Village.
The Village may deem and treat the person in whose name any Bond shall be registered upon
the books kept by the Village as the absolute Owner of such Bond, whether such Bond shall be
overdue or not, for the purpose of receiving payment of, or on account of, the principal of and
interest on such Bond as they become due and for all other purposes. All such payments so made to
any such Owner or upon his order shall be valid and effectual to satisfy and discharge the liability
upon such Bond to the extent of the sum or sums so paid.
In all cases in which Bonds are transferred or exchanged in accordance with this Section, the
Village shall execute and deliver Bonds in accordance with the provisions of this Resolution. All
Bonds surrendered in any such exchanges or transfers shall forthwith be cancelled by the Village.
There shall be no charge for any such exchange or transfer of Bonds, but the Village may require the
payment of a sum sufficient to pay any third party tax, fee or other governmental charge required to
be paid with respect to such exchange or transfer. The Village shall not be required to transfer or
exchange Bonds for a period of 15 days next preceding an Interest Payment Date on such Bonds.
All Bonds, the principal of and interest on which have been fully paid, either at or prior to
maturity, shall be delivered to the Village when such payment is made, and shall thereupon be
cancelled.
In case a portion but not all of an outstanding Bond shall be prepaid pursuant to mandatory
prepayment provisions, such Bond shall not be surrendered in exchange for a new Bond, but the
Village shall make a notation indicating the remaining outstanding principal of the Bonds upon the
registration books. The Bond so redesignated shall have the remaining principal as provided on such
registration books and shall be deemed to have been issued in the denomination of the outstanding
principal balance, which shall be an authorized denomination.
SECTION 5. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In case any
Bond shall become mutilated or be destroyed, stolen or lost, the Village may in its discretion issue
and deliver a new Bond of like tenor as the Bond so mutilated, destroyed, stolen or lost, in the case
of a mutilated Bond, in exchange and substitution for such mutilated Bond upon surrender of such
mutilated Bond or in the case of a destroyed, stolen or lost Bond in lieu of and substitution for the
Bond destroyed, stolen or lost, upon the Owner furnishing the Village proof of his ownership thereof,
satisfactory proof of loss or destruction thereof and satisfactory indemnity, complying with such
other reasonable regulations and conditions as the Village may prescribe and paying such expenses
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as the Village may incur. The Village shall cancel all mutilated Bonds that are surrendered. If any
mutilated, destroyed, lost or stolen Bond shall have matured or be about to mature, instead of issuing
a substitute Bond, the Village may pay the principal of and interest on such Bond upon the Owner
complying with the requirements of this paragraph.
Any such duplicate Bonds issued pursuant to this section shall constitute original, additional
contractual obligations of the Village whether or not the lost, stolen or destroyed Bonds be at any
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 hereinafter pledged,
to the extent as all other Bonds issued hereunder.
SECTION 6. FORM OF BONDS. The text of the Bonds shall be of substantially the tenor
set forth in Exhibit "A" hereto, with such omissions, insertions and variations as may be necessary
and desirable and authorized or permitted by this Resolution.
SECTION 7. COVENANT TO BUDGET AND APPROPRIATE. The Village hereby
covenants and agrees to appropriate in its annual budget, by amendment, if necessary, from Non -Ad
Valorem Revenues (as defined in this Section) lawfully available in each fiscal year of the Village,
amounts sufficient to pay the principal and interest due on the Bonds in accordance with their terms
and to pay all required deposits to the Rebate Fund (as defined in Section 13) pursuant to Section
13. "Non -Ad Valorem Revenues" means all revenues of the Village derived from any source other
than ad valorem taxation on real or personal property and which are legally available to make the
payments required under this Resolution, but only after provision has been made by the Village for
the payment, to the extent are not otherwise provided for by ad valorem taxes, of (a) all services
necessary for conducting of the public safety and general governmental obligations of the Village,
as shown in the Village's audited Statement of Revenues, Expenditures and Changes in Fund
Balances (Governmental Funds) as "Current" Expenditures (i.e., the Expenditure subheadings
"General government," "Fire," "Police" and "Public works") and (b) all legally mandated services.
Such covenant and agreement on the part of the Village to budget and appropriate such amounts of
Non -Ad Valorem Revenues shall be cumulative to the extent not paid, and shall continue until such
Non -Ad Valorem Revenues or other legally available funds in amounts sufficient to make all such
required payments shall have been budgeted, appropriated and actually paid. Notwithstanding the
foregoing covenant of the Village, the Village does not covenant to maintain any services or
programs, now provided or maintained by the Village, which generate non -ad valorem revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge of such
Non -Ad Valorem Revenues, nor, except to the extent provided in Section 14 hereof, does it preclude
the Village from pledging in the future its Non -Ad Valorem Revenues, nor does it require the Village
to levy and collect any particular Non -Ad Valorem Revenues, nor does it give the Bondholders a
prior claim on the Non -Ad Valorem Revenues as opposed to claims of owners of other bonds of the
Village secured in the same manner as the Bonds. Such covenant to budget and appropriate Non -Ad
Valorem Revenues is subject in all respects to the payment of obligations secured by a pledge of
such Non -Ad Valorem Revenues heretofore or hereinafter entered into (including the payment of
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debt service on bonds and other debt instruments). However, the covenant to budget and
appropriate in its general annual budget for the purposes and in the manner stated herein shall have
the effect of making available in the manner described herein Non -Ad Valorem Revenues and
placing on the Village a positive duty to appropriate and budget, by amendment, if necessary,
amounts sufficient to meet its obligations under this Resolution, subject, however, in all respects to
the terms of this Resolution and the restrictions of Section 166.241(3), Florida Statutes, which
provides, in part, that the governing body of each municipality make appropriations for each fiscal
year which, in any one year, shall not exceed the amount to be received from taxation or other
revenue sources; and subject, further, to the payment, to the extent not otherwise provided for by ad
valorem taxes, of (a) all services necessary for conducting of the public safety and general
governmental obligations of the Village, as shown in the Village's audited Statement of Revenues,
Expenditures and Changes in Fund Balances (Governmental Funds) as "Current" Expenditures (i.e.,
the Expenditure subheadings "General government," "Fire," "Police" and "Public works") and (b)
all legally mandated services.
SECTION S. BOND FUND. There is hereby created a fund entitled "Village of Key
Biscayne, Florida Sewer Improvement Revenue Bonds, Series 2016 Bond Fund" (the "Bond Fund").
There shall be deposited into the Bond Fund no later than each date on which principal or interest
is due sufficient amounts of Non -Ad Valorem Revenues as specified in Section 7 hereof which,
together with the amounts already on deposit therein, will enable the Village to pay the principal of
and interest on the Bonds on each such date or other date when principal may be due. Moneys in the
Bond Fund shall be applied on each such date to the payment of principal of and interest on the
Bonds coming due on each such date.
Subject to Section 11 hereof, funds in the Bond Fund may be invested in the following
investments, maturing at or before the time such funds may be needed to pay principal of or interest
on the Bonds, to the extent such investments are legal for investment of municipal funds
("Authorized Investments"):
(a) The Local Government Surplus Funds Trust Fund;
(b) Negotiable direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States Government at the then
prevailing market price for such securities;
(c) Interest -bearing time deposits or savings accounts in banks organized under
the laws of the State of Florida (the "State"), in national banks organized under the laws of
the United States and doing business and situated in the State, in savings and loan
associations which are under State supervision, or in federal savings and loan associations
located in the State and organized under federal law and federal supervision, provided that
any such deposits are secured by collateral as may be prescribed by law;
(d) Obligations of the federal farm credit banks; the Federal Home Loan
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Mortgage Corporation, including Federal Home Loan Mortgage Corporation participation
certificates; or the Federal Home Loan Bank or its district banks or obligations guaranteed
by the Government National Mortgage Association;
(e) Obligations of the Federal National Mortgage Association, including Federal
National Mortgage Association participation certificates and mortgage pass -through
certificates guaranteed by the Federal National Mortgage Association;
(f) Securities of, or other interests in, any open-end or closed -end management
type investment company or investment trust registered under the Investment Company Act
of 1940, 15 U.S.C. ss. 80a-1 et seq., as amended from time to time, provided the portfolio
of such investment company or investment trust is limited to United States Government
obligations and to repurchase agreements fully collateralized by such United States
Government obligations and provided such investment company or investment trust takes
delivery of such collateral either directly or through an authorized custodian; or
(g) Any other investments that at the time are legal investments for municipal
funds and are permitted by the duly approved investment policy of the Village.
SECTION 9. APPLICATION OF BOND PROCEEDS AND OTHER FUNDS.
The Village will apply the proceeds received upon the sale of the Bonds, together with other
available funds of the Village, as follows:
1. Simultaneously with the issuance of the Bonds, the Village shall apply sufficient
Bond proceeds and other available funds of the Village to pay the Loan in full, as set
forth in a closing memorandum dated the date of issuance of the Bonds.
2. The balance of the proceeds of the Bonds shall be disbursed by the Village for
payment of the costs of issuance of the Bonds, as set forth in a closing memorandum
dated the date of issuance of the Bonds. Any proceeds remaining after payment of
all costs of issuance shall be deposited into the Bond Fund and used to pay debt
service on the Bonds on the next Interest Payment Date.
SECTION 10. FUNDS. Each of the funds and accounts herein established and created shall
constitute trust funds for the purposes provided herein for such funds and accounts respectively. The
money in such funds and accounts shall be continuously secured in the same manner as deposits of
Village funds are authorized to be secured by the laws of the State of Florida. Except as otherwise
provided herein, earnings on any investments in any amounts on any of the funds and accounts
herein established and created shall be credited to such respective fund or account.
The designation and establishment of the funds and accounts in and by this Resolution shall
not be construed to require the establishment of any completely independent, self -balancing funds,
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as such term is commonly defined and used in governmental accounting, but rather is intended solely
to constitute an earmarking of certain revenues and assets of the Village for the purposes herein
provided and to establish certain priorities for application of such revenues and assets.
SECTION 11. INVESTMENTS AND USE OF PROCEEDS TO COMPLY WITH
INTERNAL REVENUE CODE OF 1986. The Village covenants to the Owners of the Bonds that
it will take all actions and do all things necessary and desirable in order to maintain the exclusion
from gross income for federal income tax purposes of interest on the Bonds, and shall refrain from
taking any actions that would cause interest on the Bonds to be included in gross income for federal
income tax purposes. In particular, the Village will not make or direct the making of any investment
or other use of the proceeds of the Bonds which would cause such Bonds to be "private activity
bonds" as that term is defined in Section 141 (or any successor provision thereto) of the Code or
"arbitrage bonds" as that term is defined in Section 148 (or any successor provision thereto) of the
Code, and all applicable regulations promulgated under the Code, and that it will comply with the
applicable requirements of Sections 141 and 148 of the Code and the aforementioned regulations
throughout the term of the Bonds.
SECTION 12. DESIGNATION UNDER SECTION 265(b)(3) OF THE CODE. The Village
hereby designates the Bonds as qualified tax-exempt obligations under Section 265(b)(3)(B) of the
Code, and shall make all necessary filings in order to effectuate such election. The Village represents
that the reasonably anticipated amount of tax-exempt obligations which have been or will be issued
by the Village and any subordinate entities or entities issuing tax-exempt obligations on behalf of
the Village within the meaning of Section 265(b)(3) of the Code during calendar year 2016 does not
exceed $10,000,000.
SECTION 13. ARBITRAGE REBATE COVENANTS. There is hereby created and
established a fund to be held by the Village, designated the "Village of Key Biscayne Sewer
Improvement Revenue Bonds, Series 2016 Rebate Fund" (the "Rebate Fund"). The Rebate Fund
shall be held by the Village separate and apart from all other funds and accounts held by the Village
under this Resolution and from all other moneys of the Village.
Notwithstanding anything in this Resolution to the contrary, the Village shall transfer to the
Rebate Fund the amounts required to be transferred in order to comply with the Rebate Covenants,
if any, attached as an Exhibit to the Arbitrage Certificate to be delivered by the Village on the date
of delivery of the Bonds (the "Rebate Covenants"), when such amounts are so required to be
transferred. The Village Manager shall make or cause to be made payments from the Rebate Fund
of amounts required to be deposited therein to the United States of America in the amounts and at
the times required by the Rebate Covenants. The Village covenants for the benefit of the Owners of
the Bonds that it will comply with the Rebate Covenants. The Rebate Fund, together with all moneys
and securities from time to time held therein and all investment earnings derived therefrom, shall be
excluded from the pledge and lien of this Resolution. The Village shall not be required to comply
with the requirements of this Section 13 in the event that the Village obtains an opinion of nationally
recognized bond counsel that (i) such compliance is not required in order to maintain the federal
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income tax exemption of interest on the Bonds and/or (ii) compliance with some other requirement
is necessary to maintain the federal income tax exemption of interest on the Bonds.
SECTION 14. SPECIAL COVENANTS.
(a) The Village shall, while the Bonds are outstanding, within two hundred ten
(210) days of the end of each fiscal year of the Village, deliver to the Owners a copy of the
annual audited financial statements of the Village for such fiscal year, certified by an
independent certified public accountant to the effect that such audit has been conducted in
accordance with generally accepted auditing standards and stating whether such financial
statements present fairly in all material respects the financial position of the Village and the
results of its operations and cash flows for the periods covered by the audit report, all in
conformity with generally accepted accounting principles applied on a consistent basis. Such
financial statements shall include a balance sheet and statement of revenues, expenditures
and changes in fund balances, with comparative figures to the prior year and including a
comparison of actual results to budgeted projections. Within forty-five (45) days after the
commencement of each fiscal year, the Village shall deliver to the Owners a copy of the
operating budget for each upcoming fiscal year of the Village. The Village shall provide the
Owners with any other information they may reasonably request.
(b) The Village hereby covenants that, so long as the Bonds are outstanding, it
shall maintain a Debt Service Coverage Ratio (hereinafter defined) equal to 1.20 to 1. "Debt
Service Coverage Ratio" shall mean the ratio of (a) all Non -Ad Valorem Revenues (as
defined in Section 7 hereof) of the Village in the most recently ended fiscal year of the
Village for which audited financial statements are available plus any available cash balance
in the General Fund, to (b) the maximum annual Debt Service coming due on the Bonds and
all other Debt of the Village secured in the same manner as the Bonds (as specified in
Section 7 hereof), in the then current or any future fiscal year.
(c) During each fiscal year that the Bonds are outstanding, the total Debt of the
Village, including amounts authorized but still not drawn down under existing loan
agreements and other contractual arrangements with banks and other financial institutions,
underwriters, brokers and/or intermediaries, shall not exceed the greater of:
(i) one percent (1%) of the total assessed value of all property within the
Village, as certified by the Miami -Dade County Property Appraiser for the current
fiscal year; or
(ii) that amount which would cause annual Debt Service to equal fifteen
percent (15%) of General Fund expenditures for the previous fiscal year;
provided, however, that if in the future the Village Charter is amended to permit
total Debt to exceed the amounts set forth above, then the total Debt of the Village
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permitted hereunder shall be deemed to be such greater amount consistent with the
Charter.
As used in this Section 14, the following terms shall have the meaning
ascribed to them in this subsection:
(1) "Debt" shall mean any obligation of the Village to repay borrowed
money however evidenced since the date of its incorporation regardless of tenor or
term for which it was originally contracted or subsequently converted through
refinancing or novation, except (A) any obligation required to be repaid in less than
a year and which was incurred solely for emergency relief of natural disasters, or (B)
that portion of any obligations for operations which are financed and operated in an
independent, self-liquidating manner and recovered entirely through currently
collected user fees and charges.
(2) "Debt Service" shall include, without limitation thereto, scheduled
interest payments, repayments of principal and all financial fees arising from Debt
or from the underlying contractual obligations, whether as originally incurred or
subsequently deferred or otherwise renegotiated.
(3) "General Fund" shall mean any and all revenues of the Village, from
whatever source derived, except those revenues derived from special assessments,
user fees and charges and designated as a separate fund to finance goods and services
to the public.
(d) The Village shall within ten (10) days after it acquires knowledge thereof,
notify the Bank in writing upon the happening, occurrence, or existence of any event of
default, and any event or condition which with the passage of time or giving of notice, or
both, would constitute an event of default, and shall provide the Bank with such written
notice, a detailed statement by a responsible officer of the Village of all relevant facts and
the action being taken or proposed to be taken by the Village with respect thereto.
(c) The Village agrees that any and all records of the Village shall be open to
inspection by the Bank or its representatives at all reasonable times at the offices of the
Village.
(f) The Village shall promptly inform the Bank in writing of any actual or
potential contingent liabilities or pending or threatened litigation of any amount that could
reasonably be expected to have a material and adverse effect upon the financial condition of
the Village or upon the ability of the Village to perform its obligations under the Resolution
and the Bonds.
(g) The Village shall maintain such liability, casualty and other insurance as is
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reasonable and prudent for similarly situated municipalities of the State and shall upon
request of the Bank, provide evidence of such coverage to the Bank.
(h) In the event the Bonds should be subject to an excise tax or any similar tax,
the Village shall pay such taxes or reimburse the Bank for any such taxes paid by it.
SECTION 15. COVENANTS BINDING ON VILLAGE AND SUCCESSOR. All covenants,
stipulations, obligations and agreements of the Village contained in this Resolution constitute a
contract between the Village and the Owners of the Bonds and shall be deemed to be covenants,
stipulations, obligations and agreements of the Village to the full extent authorized or permitted by
law, and all such covenants, stipulations, obligations and agreements shall be binding upon the
successor or successors thereof from time to time and upon the officer, board, body or commission
to whom or to which any power or duty affecting such covenants, stipulations, obligations and
agreements shall be transferred by or in accordance with law. No covenant, stipulation, obligation
or agreement herein contained shall be deemed to be a covenant, stipulation, obligation or agreement
of any present or future member of the Village Council or officer, agent or employee of the Village
in his or her individual capacity, and neither the members of the Village Council nor any officer,
agent or employee of the Village executing the Bonds shall be liable personally on the Bonds or be
subject to any personal liability or accountability by reason of the issuance thereof.
SECTION 16. EVENTS OF DEFAULT. Each of the following events is hereby declared
an "event of default":
(a) payment of the principal of or amortization installments of any of the Bonds shall not
be made when the same shall become due and payable, whether by maturity or otherwise; or
(b) payment of any installment of interest on any of the Bonds shall not be made when
the same shall become due and payable, whether by maturity or otherwise; or
(c) the Village shall default in the due and punctual performance of any covenant,
condition, agreement or provision contained in the Bonds or in this Resolution (except for a default
described in subsection (a) or (b) of this Section) on the part of the Village to be performed, and such
default shall continue for thirty (30) days after the earlier of (i) written notice specifying such default
and requiring same to be remedied shall have been given to the Village by any Owner of any Bond
or (ii) the Village notifies or should have notified the Owners of such default; provided that it shall
not constitute an event of default if the default is not one that can be cured within such thirty (30)
days, as agreed by the Owners and the Village, and the Village commences within such thirty (30)
days and is proceeding diligently with action to correct such default; or
(d) any representation or warranty made in writing by or on behalf of the Village herein
or in any other closing document related to the Bonds shall prove to have been false or incorrect in
any material respect on the date made or reaffirmed; or
12
(e) the Village admits in writing its inability to pay its debts as they become due or files
a petition in bankruptcy or makes an assignment for the benefit of creditors or consents to the
appointment of a receiver or trustee on its behalf; or
(f) the Village is adjudged insolvent by a court of competent jurisdiction, or is adjudged
bankrupt on a petition in bankruptcy filed by or against the Village, or an order, judgment or decree
is entered by any court of competent jurisdiction appointing, without the consent of the Village, a
receiver or trustee of the Village or of the whole or any part of its property, and if the aforesaid
adjudications, orders, judgements or decrees shall not be vacated or set aside or stayed within 90
days from the date of entry thereof; or
(g) the Village shall file a petition or answer seeking reorganization or any arrangement
under the federal bankruptcy laws or any other applicable law or statute of the United States of
America of the State of Florida; or
(h) the Village fails to promptly remove any execution, garnishment, or attachment of
such consequence as will materially impair its ability to carry out its obligations under this
Resolution; or
(i) a payment default occurs under any other debt obligation of the Village secured by
a covenant to budget and appropriate Non -Ad Valorem Revenues which results in an acceleration
of such debt.
SECTION 17. REMEDIES; RIGHTS OF OWNERS.
(a) Upon the occurrence and continuance of any event of default specified in Section 16
(i) hereof, the Owners of the Bonds may declare all payments of principal and accrued interest to be
immediately due and payable, whereupon the same shall become immediately due and payable.
(b) Upon the occurrence and continuance of any event of default specified in Section 16
(a), (b), (c), (d), (e), (f), (g) or (h) hereof, the Owners of the Bonds may pursue any available remedy
by suit, at law or in equity, to enforce the payment of the principal of and interest on the Bonds then
outstanding.
No delay or omission to exercise any right or power accruing upon any default or event of
default shall impair any such right or power or shall be construed to be waiver of any such default
or event of default or acquiescence therein; and every such right and power may be exercised from
time to time and as often as may be deemed expedient. No waiver of any event of default hereunder
shall extend to or shall affect any subsequent event of default or shall impair any rights or remedies
consequent thereon.
The Village agrees, to the extent permitted by law, to indemnify the Owners and their
directors, officers, employees and agents from and against any losses, claims, damages, liabilities
13
and expenses (including, without limitation, counsel fees and expenses) which may be incurred in
connection with enforcement of the provisions of this Resolution and the Bonds.
SECTION 18. SALE OF BONDS. Based upon the uncertainty of the interest rate
environment if sale of the Bonds is delayed, the Village hereby determines the necessity for a
negotiated sale of the Bonds. The Village has been provided all applicable disclosure information
required by Section 218.385, Florida Statutes. The negotiated sale of the Bonds is hereby approved
to the Bank at a purchase price of par.
SECTION 19. AUTHORITY OF OFFICERS. The Mayor, the Vice Mayor, any member of
the Council, the Village Manager, the Village Clerk, the Finance Director and any other proper
official of the Village, are and each of them is hereby authorized and directed to execute and deliver
any and all documents and instruments and to do and cause to be done any and all acts and things
necessary or proper for carrying out the transaction contemplated by this Resolution and the other
documents identified herein.
SECTION 20. SEVERABILITY. In case any one or more of the provisions of this
Resolution or of any Bonds issued hereunder shall for any reason be held to be illegal or invalid,
such illegality or invalidity shall not affect any other provision of this Resolution or of the Bonds,
but this Resolution and the Bonds shall be construed and enforced as if such illegal or invalid
provision had not been contained therein. The Bonds are issued and this Resolution is adopted with
the intent that the laws of the State shall govern their construction.
SECTION 21. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. In
any case where the date of maturity of interest on or principal of the Bonds shall not be a Business
Day, then payment of such interest or principal need not be made by the Village on such date but
may be made on the next succeeding Business Day, and payment on such day shall have the same
force and effect as if paid on the nominal date for payment.
SECTION 22. OPEN MEETING FINDINGS. It is hereby found and determined that all
official acts of the Village Council concerning and relating to the adoption of this Resolution and
all prior resolutions and ordinances affecting the Village Council's ability to issue the Bonds were
taken in an open meeting of the Village Council and that all deliberations of the Village Council or
any of its committees that resulted in such official acts were in meetings open to the public, in
compliance with all legal requirements, including Section 286.011, Florida Statutes.
SECTION 23. REPEALING CLAUSE. All resolutions or orders and parts thereof in conflict
herewith, to the extent of such conflicts, are hereby superseded and repealed.
SECTION 24. MODIFICATION. AMENDMENT OR SUPPLEMENT. This Resolution
may be modified, amended or supplemented by the Village from time to time prior to the issuance
of the Bonds hereunder. Thereafter, no modification, amendment or supplement of this Resolution,
or of any resolution amendatory hereof or supplemental hereto, may be made without the consent
14
in writing of the Owners.
SECTION 25. NO THIRD -PARTY BENEFICIARIES. Except as herein otherwise
expressly provided, nothing in this Resolution expressed or implied is intended or shall be construed
to confer upon any person, firm or corporation other than the Village, the Bank and a subsequent
Owner of the Bonds issued hereunder, any right, remedy or claim, legal or equitable, under or by
reason of this Resolution or any provision hereof, this Resolution and all its provisions being
intended to be and being for the sole and exclusive benefit of the Village, the Bank and the Owners
from time to time of the Bonds issued hereunder.
SECTION 26. WAIVER OF JURY TRIAL. The Village and the Bank intentionally and
voluntarily waive any right they may have to a trial by jury in connection with any matter directly
or indirectly relating to this Resolution, the Ordinance, the Bonds or any other document executed
in connection with the Bonds. The Village acknowledges that this provision is a material
inducement to the Bank to purchase the Bonds.
SECTION 27. EFFECTIVE DATE. This Resolution shall take effect immediately upon its
adoption.
PASSED AND ADOPTED this 28th day of June, 2016.
ATTE
c/aame
CONCHITA H. ALVAREZ, MMC, VILLAGE CLER
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
VILLAGE ATTO ' N
MA K MA
YRA PENH LINDS
. /kg rAft
15
EXHIBIT "A"
No. R- $3,490,000
UNITED STATES OF AMERICA
STATE OF FLORIDA
VILLAGE OF KEY BISCAYNE
SEWER IMPROVEMENT REVENUE BONDS
SERIES 2016
Registered Owner: Florida Community Bank, N.A.
Principal Amount: Three Million Four Hundred Ninety Thousand Dollars ($3,490,000)
KNOW ALL MEN BY THESE PRESENTS, that the Village of Key Biscayne,
Florida (the "Village"), for value received, hereby promises to pay to the Registered Owner shown
above, or registered assigns (the "Owner"), from the sources hereinafter mentioned, the Principal
Amount specified above, together with interest on the Principal Amount outstanding at the rate of
interest hereinafter provided. Subject to the rights of prior prepayment and redemption described
in this Bond, the Bonds shall mature on February 15, 2030. Payments due hereunder shall be made
no later than 2:00 p.m., Eastern time, on the date due, free and clear of any defenses, set -offs,
counterclaims, or withholding or deductions for taxes.
This Bond is issued under authority of and in full compliance with the Constitution and laws
of the State of Florida, including particularly Part II of Chapter 166, Florida Statutes, as amended,
the Charter of the Village, Ordinance No. 2016-6 duly adopted by the Village Council (the
"Council") of the Village on May 24, 2016 (the "Ordinance"), and Resolution No. 2016-18 adopted
on June 28, 2016 (the "Resolution," and collectively with the Ordinance, the "Bond Ordinance"),
and is subject to the terms of said Bond Ordinance. This Bond is issued for the purpose of prepaying
and refinancing a loan made to the Village on June 23, 2009 by the Florida Water Pollution Control
Financing Corporation in order to finance a sanitary sewer construction project, pursuant to the Clean
Water State Revolving Fund Loan Agreement (WW850050), as amended by Amendment 1 to Loan
Agreement WW850050, and paying costs of issuance of the Bonds. This Bond shall be payable only
from the sources identified herein. All terms used herein in capitalized form and not otherwise
defined herein shall have the meanings ascribed thereto in the Resolution.
Subject to adjustment as provided below, this Bond shall bear interest on the outstanding
principal balance from its date of issuance payable semiannually on each February 15 and August
15 (the "Interest Payment Dates"), commencing August 15, 2016, at an interest rate equal to 1.97%
per annum.
Interest on this Bond shall be computed on the basis of a 360 -day year consisting of twelve
(12) thirty -day months for the actual number of days elapsed.
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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 the
registered Owner or his legal representative at the address of the Owner as it appears on the
registration books of the Village.
Adjustment of Interest Rate for Full Taxability. Upon a Determination of Taxability (as
defined below), the rate of interest on this Bond shall be adjusted upward to 3.03% per annum (the
"Taxable Rate"), retroactive as of the date of the Determination of Taxability event. In addition to
the payments of principal and interest on this Bond required to be paid pursuant to the terms of the
Resolution and this Bond, the Village hereby agrees to pay to the Owner an amount equal to any
interest, penalties on overdue interest and additions to tax (as referred to in Subchapter A of Chapter
68 of the of the Internal Revenue Code of 1986, as amended (the "Code")) owed by the Owner as
a result of the occurrence of a Determination of Taxability. All such interest, penalties on overdue
interest, and additions to tax shall be paid by the Village on the next succeeding Interest Payment
Date following the Determination of Taxability. A "Determination of Taxability" shall mean a final
decree or judgment of any Federal court or a final action of the Internal Revenue Service determining
that interest paid or payable on any Bond is or was includable in the gross income of an Owner of
this Bond for Federal income tax purposes; provided, that no such decree, judgment, or action will
be considered final for this purpose, however, unless the Village has been given written notice and,
if it is so desired and is legally allowed, has been afforded the opportunity to contest the same, either
directly or in the name of any Owner of this Bond, and until the conclusion of any appellate review,
if sought.
Adjustment of Interest Rate for Loss of Bank Qualified Status. So long as no Determination
of Taxability shall have occurred, upon the occurrence of a Loss of BQ Status (as defined below),
and for as long as this Bond remains outstanding, the interest rate on this Bond shall be converted
to the Adjusted BQ Rate (as defined below). In addition, upon a Loss of BQ Status, the Village shall
pay to the Owner (i) an additional amount equal to the difference between (A) the amount of interest
actually paid on this Bond during the period of time from the date of issuance of this Bond to the
next succeeding Interest Payment Date, and (B) the amount of interest that would have been paid
during the period in clause (A) had this Bond borne interest at the Adjusted BQ Rate, and (ii) an
amount equal to any penalties and interest paid or payable by the Owner to the Internal Revenue
Service by reason of such as a result of the Loss of BQ Status.
As used in the preceding paragraph:
"Adjusted BQ Rate" shall mean, upon a Loss of BQ Status, the interest rate per annum that
shall provide the Owner with the same after tax yield that the Owner would have otherwise received
had the Loss of BQ Status not occurred, taking into account the increased taxable income of the
Owner as a result of such Loss of BQ Status. The Owner shall provide the Village with a written
statement explaining the calculation of the Adjusted BQ Rate, which statement shall, in the absence
of manifest error, be conclusive and binding on the Village; and
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"Loss of BQ Status" shall mean a determination by the Owner that this Bond is not a
"qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Code (or any
successor provision).
A certificate of the Owner as to any such additional amount or amounts, in the absence of
manifest error, shall be final and conclusive. In determining such amount, the Owner may use any
reasonable averaging and attribution methods.
Adjustment of Interest Rate for Change in Maximum Corporate Tax Rate. In the event that
the maximum effective federal corporate tax rate (the "Maximum Corporate Tax Rate") during any
period with respect to which interest shall be accruing on this Bond on a tax-exempt basis, shall be
other than thirty-five percent (35%), the interest rate on this Bond that is bearing interest on a tax-
exempt basis shall be adjusted to the product obtained by multiplying the interest rate then in effect
on this Bond by a fraction equal to (1-A divided by 1-B), where A equals the Maximum Corporate
Tax Rate in effect as of the date of adjustment and B equals the Maximum Corporate Tax Rate in
effect immediately prior to the date of adjustment. The interest rate otherwise borne by this Bond
shall be adjusted automatically as of the effective date of each change in the Maximum Federal
Corporate Tax Rate.
Mandatory Prepayment. The principal of this Bond shall be subject to mandatory prepayment
in semiannual installments on each February 15 and August 15, commencing August 15, 2016, in
the amounts set forth in the Amortization Schedule attached to this Bond.
In the event that there is more than one Owner of the Bonds, (i) each Bond shall be redeemed
on a pro rata basis, and (ii) the Village shall give notice to each Owner of the Bonds at least three
(3) days prior to the date of mandatory redemption of the amount of each Bond to be redeemed.
Optional Prepayment. This Bond is subject to optional prepayment in whole or in part at any
time, upon ten (10) days written notice to the Owner specifying the principal amount to be prepaid
and the date of such prepayment, at a price of par plus accrued interest to the date of prepayment,
without penalty or premium. Any partial prepayments shall be applied to installments of principal
in inverse order of maturity and shall not postpone any due dates of, or relieve the amounts of, any
scheduled installment payments due hereunder.
The Village has covenanted and agreed in the Bond Ordinance to appropriate in its annual
budget, by amendment, if necessary, from Non -Ad Valorem Revenues (as defined below) lawfully
available in each fiscal year, amounts sufficient to pay the principal and interest due on the Bonds
in accordance with their terms and to pay all required deposits to the Rebate Fund pursuant to the
Resolution. "Non -Ad Valorem Revenues" means all revenues of the Village derived from any
source other than ad valorem taxation on real or personal property and which are legally available
to make the payments required under the Resolution, but only after provision has been made by the
Village for the payment, to the extent are not otherwise provided for by ad valorem taxes, of (a) all
services necessary for conducting of the public safety and general governmental obligations of the
Village, as shown in the Village's audited Statement of Revenues, Expenditures and Changes in
Fund Balances (Governmental Funds) as "Current" Expenditures (i.e., the Expenditure subheadings
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"General government," "Fire," "Police" and "Public works) and (b) all legally mandated services.
Such covenant and agreement on the part of the Village to budget and appropriate such amounts of
Non -Ad Valorem Revenues shall be cumulative to the extent not paid, and shall continue until such
Non -Ad Valorem Revenues or other legally available funds in amounts sufficient to make all such
required payments shall have been budgeted, appropriated and actually paid. Notwithstanding the
foregoing covenant of the Village, the Village does not covenant to maintain any services or
programs, now provided or maintained by the Village, which generate non -ad valorem revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge of such
Non -Ad Valorem Revenues, nor, except to the extent provided in Section 14 of the Resolution, does
it preclude the Village from pledging in the future its Non -Ad Valorem Revenues, nor does it require
the Village to levy and collect any particular Non -Ad Valorem Revenues, nor does it give the
Bondholders a prior claim on the Non -Ad Valorem Revenues as opposed to claims of owners of
other bonds of the Village secured in the same manner as the Bonds. Such covenant to budget and
appropriate Non -Ad Valorem Revenues is subject in all respects to the payment of obligations
secured by a pledge of such Non -Ad Valorem Revenues heretofore or hereinafter entered into
(including the payment of debt service on bonds and other debt instruments). However, the covenant
to budget and appropriate in its general annual budget for the purposes and in the manner stated
herein shall have the effect of making available in the manner described herein Non -Ad Valorem
Revenues and placing on the Village a positive duty to appropriate and budget, by amendment, if
necessary, amounts sufficient to meet its obligations under the Bond Ordinance, subject, however,
in all respects to the terms of the Bond Ordinance and the restrictions of Section 166.241(3), Florida
Statutes, which provides, in part, that the governing body of each municipality make appropriations
for each fiscal year which, in any one year, shall not exceed the amount to be received from taxation
or other revenue sources; and subject, further, to the payment, to the extent are not otherwise
provided for by ad valorem taxes, of (a) all services necessary for conducting of the public safety and
general governmental obligations of the Village, as shown in the Village's audited Statement of
Revenues, Expenditures and Changes in Fund Balances (Governmental Funds) as "Current"
Expenditures (i.e., the Expenditure subheadings "General government," "Fire," "Police" and "Public
works) and (b) all legally mandated services.
THIS BOND SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL OBLIGATION
OR INDEBTEDNESS OF THE VILLAGE OR A PLEDGE OF THE FAITH AND CREDIT OF
THE VILLAGE WITHIN THE MEANING OF ANY PROVISION OF THE CONSTITUTION OF
THE STATE OF FLORIDA, BUT SHALL, INSTEAD, BE PAYABLE EXCLUSIVELY FROM
LEGALLY AVAILABLE NON -AD VALOREM REVENUES OF THE VILLAGE, AS DEFINED
IN THE RESOLUTION. THE ISSUANCE OF THIS BOND SHALL NOT DIRECTLY OR
INDIRECTLY OR CONTINGENTLY OBLIGATE THE VILLAGE TO LEVY OR TO PLEDGE
ANY FORM OF AD VALOREM TAXATION WHATEVER THEREFOR NOR SHALL THIS
BOND CONSTITUTE A CHARGE, LIEN, OR ENCUMBRANCE, LEGAL OR EQUITABLE,
UPON ANY PROPERTY OF THE VILLAGE, AND THE HOLDERS OF THIS BOND SHALL
HAVE NO RECOURSE TO THE POWER OF AD VALOREM TAXATION.
Each of the following events is hereby declared an "event of default" hereunder:
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(a) payment of the principal of or amortization installments of any of the Bonds shall not
be made when the same shall become due and payable, whether by maturity or otherwise; or
(b) payment of any installment of interest on any of the Bonds shall not be made when
the same shall become due and payable, whether by maturity or otherwise ; or
(c) the Village shall default in the due and punctual performance of any covenant,
condition, agreement or provision contained in the Bonds or in the Resolution (except for a default
described in (a) or (b) above) on the part of the Village to be performed, and such default shall
continue for thirty (30) days after the earlier of (i) written notice specifying such default and
requiring same to be remedied shall have been given to the Village by any Owner of this Bond or
(ii) the Village notifies or should have notified the Owner of such default; provided that it shall not
constitute an event of default if the default is not one that can be cured within such thirty (30) days,
as agreed by the Owner and the Village, and the Village commences within such thirty (30) days and
is proceeding diligently with action to correct such default; or
(d) any representation or warranty made in writing by or on behalf of the Village in the
Resolution or in any other closing document related to the Bonds shall prove to have been false or
incorrect in any material respect on the date made or reaffirmed; or
(e) the Village admits in writing its inability to pay its debts as they become due or files
a petition in bankruptcy or makes an assignment for the benefit of creditors or consents to the
appointment of a receiver or trustee on its behalf; or
(f) the Village is adjudged insolvent by a court of competent jurisdiction, or is adjudged
bankrupt on a petition in bankruptcy filed by or against the Village, or an order, judgment or decree
is entered by any court of competent jurisdiction appointing, without the consent of the Village, a
receiver or trustee of the Village or of the whole or any part of its property, and if the aforesaid
adjudications, orders, judgements or decrees shall not be vacated or set aside or stayed within 90
days from the date of entry thereof; or
(g) the Village shall file a petition or answer seeking reorganization or any arrangement
under the federal bankruptcy laws or any other applicable law or statute of the United States of
America of the State of Florida; or
(h) the Village fails to promptly remove any execution, garnishment, or attachment of
such consequence as will materially impair its ability to carry out its obligations under this
Resolution; or
(i) a payment default occurs under any other debt obligation of the Village secured by
a covenant to budget and appropriate Non -Ad Valorem Revenues which results in an acceleration
of such debt.
During the period in which an Event of Default shall have occurred or be continuing
hereunder, this Bond shall bear interest at a rate equal to the lesser of five percent (5%) in excess of
the Owner's Prime Rate of interest or the maximum rate allowed by law.
A-5
Upon the occurrence and continuance of any event of default specified in paragraph (i) above,
the Owner of this Bond may declare all payments of principal and accrued interest to be immediately
due and payable, whereupon the same shall become immediately due and payable.
Upon the occurrence and continuance of any event of default specified in paragraphs (a), (b),
(c), (d), (e), (f), (g) or (h) above, the Owner of this Bond may pursue any available remedy by suit,
at law or in equity, to enforce the payment of the principal of and interest on the Bonds then
outstanding.
No delay or omission to exercise any right or power accruing upon any default or event of
default shall impair any such right or power or shall be construed to be waiver of any such default
or event of default or acquiescence therein; and every such right and power may be exercised from
time to time and as often as may be deemed expedient. No waiver of any event of default hereunder
shall extend to or shall affect any subsequent event of default or shall impair any rights or remedies
consequent thereon.
The Village agrees, to the extent permitted by law, to indemnify the Owner and its directors,
officers, employees and agents from and against any losses, claims, damages, liabilities and expenses
(including, without limitation, counsel fees and expenses) which may be incurred in connection with
enforcement of the provisions of the Resolution and this Bond.
The Village and the Owner intentionally and voluntarily waive any right they may have to
a trial by jury in connection with any matter directly or indirectly relating to the Resolution, the
Ordinance, this Bond or any other document executed in connection with this Bond. The Village
acknowledges that this provision is a material inducement to the Owner to purchase this Bond.
The original registered Owner, and each successive registered Owner of this Bond shall be
conclusively deemed to have agreed and consented to the following terms and conditions:
1. The Village shall keep books for the registration of Bonds and for the registration of
transfers of Bonds as provided in the Resolution. Bonds may be transferred or exchanged upon the
registration books kept by the Village, upon delivery to the Village, together with written instructions
as to the details of the transfer or exchange, of such Bonds in form satisfactory to the Village and
with guaranty of signatures satisfactory to the Village, along with the social security number or
federal employer identification number of any transferee and, if the transferee is a trust, the name and
social security or federal tax identification 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 maturity and denominations in integral multiples of $100,000 (except that an
odd lot is permitted to complete the outstanding principal balance). No transfer or exchange of any
Bond shall be effective until entered on the registration books maintained by the Village.
2. The Village may deem and treat the person in whose name any Bond shall be
registered upon the books of the Village as the absolute Owner of such Bond, whether such Bond
shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of
and interest on such Bond as they become due, and for all other purposes. All such payments so
A-6
made to any such Owner or upon his order shall be valid and effectual to satisfy and discharge the
liability upon such Bond to the extent of the sum or sums so paid.
3. In all cases in which the privilege of exchanging Bonds or transferring Bonds is
exercised, the Village shall execute and deliver Bonds in accordance with the provisions of the
Resolution. There shall be no charge for any such exchange or transfer of Bonds, but the Village may
require payment of a sum sufficient to pay any tax, fee or other governmental charge required to be
paid with respect to such exchange or transfer. The Village shall not be required to transfer or
exchange Bonds for a period of fifteen (15) days next preceding an interest payment date on such
Bonds.
4. All Bonds, the principal of and interest on which have been paid, either at or prior to
maturity, shall be delivered to the Village when such full payment is made, and shall thereupon be
cancelled. In case a portion but not all of an outstanding Bond shall be prepaid pursuant to
mandatory prepayment provisions, such Bond shall not be surrendered in exchange for a new Bond,
but the Village shall make a notation indicating the remaining outstanding principal of the Bonds
upon the registration books. The Bond so redesignated shall have the remaining principal as provided
on such registration books and shall be deemed to have been issued in the denomination of the
outstanding principal balance, which shall be an authorized denomination.
It is hereby certified and recited that all acts, conditions and things required to happen, to
exist and to be performed precedent to and for the issuance of this Bond have happened, do exist and
have been performed in due time, form and manner as required by the Constitution and the laws of
the State of Florida applicable thereto.
IN WITNESS WHEREOF, the Village of Key Biscayne, Florida has caused this Bond to
be executed by the manual or facsimile signature of its Mayor and of its Village Clerk, and the Seal
of the Village of Key Biscayne, Florida or a facsimile thereof to be affixed hereto or imprinted or
reproduced hereon, all as of the day of June, 2016.
VILLAGE OF KEY BISCAYNE, FLORIDA
Mayor
(SEAL)
Village Clerk
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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
Social Security Number of Assignee
Signature Guaranteed:
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 Identification 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 UNIF GIF MIN ACT -
(Cust.)
Custodian for
(Minor)
TEN ENT -
as tenants by
the entirety
JT TEN - as joint tenants with
right of survivorship and
not as tenants in common
under Uniform Gifts to Minors
Act of
(State)
Additional abbreviations may also be used though not in the list above.
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AMORTIZATION SCHEDULE*
Period Annual
Ending Principal Coupon Interest Debt Service Debt Service
08/15/2016 100,605.13 1.970% 8,785.11 109,390.24
10/01/2016 109,390.24
02/15/2017 110,193.05 1.970% 33,385.54 143,578.59
08/15/2017 111,278.45 1.970% 32,300.14 143,578.59
10/01/2017 287,157.18
02/15/2018 112,374.54 1.970% 31,204.05 143,578.59
08/15/2018 113,481.43 1.970% 30,097.16 143,578.59
10/01/2018 287,157.17
02/15/2019 114,599.22 1.970% 28,979.36 143,578.58
08/15/2019 115,728.02 1.970% 27,850.56 143,578.58
10/01/2019 287,157.17
02/15/2020 116,867.94 1.970% 26,710.64 143,578.58
08/15/2020 118,019.10 1.970% 25,559.49 143,578.59
10/01/2020 287,157.17
02/15/2021 119,181.59 1.970% 24,397.00 143,578.59
08/15/2021 120,355.52 1.970% 23,223.06 143,578.58
10/01/2021 287,157.18
02/15/2022 121,541.02 1.970% 22,037.56 143,578.58
08/15/2022 122,738.19 1.970% 20,840.38 143,578.57
10/01/2022 287,157.16
02/15/2023 123,947,17 1.970% 19,631.41 143,578.58
08/15/2023 125,168.06 1.970% 18,410.53 143,578.59
10/01/2023 287,157.18
02/15/2024 126,400.96 1.970% 17,177.63 143,578.59
08/15/2024 127,646.00 1.970% 15,932.58 143,578.58
10/01/2024 287,157.17
02/15/2025 128,903.32 1.970% 14,675.26 143,578.58
08/15/2025 130,173.01 1.970% 13,405.57 143,578.58
10/01/2025 287,157.16
02/15/2026 131,455.21 1.970% 12,123.36 143,578.57
08/15/2026 132,750.06 1.970% 10,828.53 143,578.59
10/01/2026 287,157.16
02/15/2027 134,057.63 1.970% 9,520.94 143,578.57
08/15/2027 135,378.11 1.970% 8,200.47 143,578.58
10/01/2027 287,157.15
02/15/2028 136,711.58 1.970% 6,867.00 143,578.58
08/15/2028 138,058.18 1.970% 5,520.39 143,578.57
10/01/2028 287,157.15
02/15/2029 139,418.07 1.970% 4,160.52 143,578.59
08/15/2029 140,791.34 1.970% 2,787.25 143,578.59
10/01/2029 287,157.18
02/15/2030 142,178.10 1.970% 1,400.45 143,578.55
10/01/2030 143,578.55
3,490,000.00 496,011.95 3,986,011.95 3,986,011.95
*Payments may change slightly to reflect the final issuance date of the Bonds. A revised Amortization Schedule will be
attached to the final executed Bond.
A-9