HomeMy Public PortalAbout2011-16 Authorizing the issuance of Capital Improvement and Land Acquisition Revenue Refunding Bonds, Series 2011RESOLUTION NO. 2011-16
A RESOLUTION OF THE VILLAGE OF KEY BISCAYNE,
FLORIDA, AUTHORIZING THE ISSUANCE OF CAPITAL
IMPROVEMENT AND LAND ACQUISITION REVENUE
REFUNDING BONDS, SERIES 2011, OF THE VILLAGE OF
KEY BISCAYNE, FLORIDA, IN THE AGGREGATE
PRINCIPAL AMOUNT OF $1,865,000 FOR THE PURPOSE OF
REFUNDING THE VILLAGE'S $2,800,000 CAPITAL
IMPROVEMENT AND LAND ACQUISITION REVENUE
BONDS, SERIES 2004; AWARDING THE SALE OF THE
BONDS TO SUNTRUST BANK; 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 October 18, 2004, the Village of Key Biscayne, Florida (the "Village")
issued its $2,800,000 Capital Improvement and Land Acquisition Revenue Bonds, Series 2004 (the
"Prior Bonds"), currently outstanding in the principal amount of $1,862,428, for the purpose of
reimbursing the project fund for costs of acquiring land located at 530 Crandon Boulevard for
Village purposes and financing a portion of the costs of site improvements for the Village's civic
center (the "Project"); and
WHEREAS, on June 28, 2011, the Council adopted Ordinance No. 2011-7 (the
"Ordinance") authorizing the issuance of not exceeding $2,200,000 of bonds for the purpose of
refunding the Prior Bonds and paying costs of issuance of the bonds; and
WHEREAS, the Council hereby determines to accept a commitment from SunTrust Bank
(the "Bank") to purchase the bonds; and
WHEREAS, the Council desires to set forth the details of the bonds in this Bond 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 Bond
Resolution and the Ordinance, Capital Improvement and Land Acquisition Revenue Refunding
Bonds of the Village to be designated "Village of Key Biscayne, Florida Capital Improvement and
Land Acquisition Revenue Refunding Bonds, Series 2011" (the `Bonds"), are hereby authorized to
be issued in an aggregate principal amount of $1,865,000 for the purpose of refunding the Prior
Bonds and paying certain costs of issuance of the Bonds.
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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. Except as
provided in Section 14(e) hereof, if any payment required to be made hereunder is not paid within
ten (10) days of when due, the Village shall pay to the Owners a late charge equal to two percent
(2%) of the late payment. Except as provided in Section 14(e) hereof, if any payment required to be
made hereunder is not paid within thirty (30) days of when due, the interest rate on the Bonds shall
be increased to a Default Rate equal to the then applicable interest rate on the Bonds plus four
percent (4%) per annum until paid.
The Bonds shall be dated the date of their issuance and delivery and shall be initially issued
as one Bond in the denomination of $1,865,000. The Bonds shall mature on November 1, 2022.
THE BONDS SHALL NOT BE DEEMED TO CONSTITUTE AN INDEBTEDNESS OF
THE VILLAGE OR A PLEDGE OF THE FAITH AND CREDIT OF THE VILLAGE, BUT SHALL
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 quarterly on the first
day of each February, May, August and November (the "Interest Payment Dates"), commencing
November 1, 2011, at an interest rate equal to 2.41% per annum.
Interest on the Bonds shall be computed on the basis of a 360 -day year for the actual number
of days elapsed.
(i) Adjustment of Interest Rate For Full Taxability. Upon a Determination
of Taxability, the rate of interest on the Bonds shall be adjusted upward to 3.597%
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
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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 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.
(ii) 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 decreased below
thirty-five percent (35%), the interest rate on the Bonds that are bearing interest on a
tax-exempt basis shall be adjusted upward 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 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 decrease in the Maximum
Federal Corporate Tax Rate.
(iii) Adjustment of Interest Rate for Other Changes Affecting After -Tax
Yield.
(A) If any Change in Law shall, in the Bank's reasonable determination,
either (a) change the basis of taxation of payments to the Bank of any amounts
payable by the Village hereunder (other than taxes imposed on the overall net income
of the Bank), (b) impose, modify or deem applicable any reserve, special deposit or
similar requirement against the Bonds owned by the Bank or (c) impose on the Bank
any other condition relating, directly or indirectly, to this Resolution or the Bonds,
and the result of any event referred to in the preceding clause (a), (b) or (c) shall be to
increase the cost to the Bank of owning the Bonds, then, upon written demand by the
Bank, the Village hereby agrees to pay promptly to the Bank, from time to time as
specified by the Bank, such additional amounts as shall be sufficient to compensate
the Bank for such increased cost. A certificate of the Bank claiming compensation
under this subsection and setting forth the additional amount or amounts to be paid to
it hereunder shall be conclusive absent manifest error. In determining any such
amount, the Bank may use any reasonable averaging and attribution methods.
(B) If, after the date of this Resolution, the Bank shall have reasonably
determined that Change in Law regarding capital adequacy, has or would have the
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effect of reducing the rate of return on the Bank's capital, on the Bonds or otherwise,
as a consequence of its ownership of the Bonds to a level below that which the Bank
could have achieved but for such adoption, change or compliance (taking into
consideration the Bank's policies with respect to capital adequacy) by an amount
deemed by the Bank to be material, then from time to time, promptly upon demand
by the Bank, the Borrower hereby agrees to pay the Bank such additional amount or
amounts as will compensate the Bank for such reduction. A certificate of the Bank
claiming compensation under this subsection and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive absent manifest error. In
determining any such amount, the Bank may use any reasonable averaging and
attribution methods.
(C) A "Change in Law" shall means the occurrence, after the date of this
Resolution, of any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation, implementation or application thereof by any
governmental authority charged with the interpretation or administration thereof
("Governmental Authority") or (c) the making or issuance of any rule, guideline or
directive (whether or not having the force of law) by any Governmental Authority.
For purposes of this Section 2(b), the term "Bank" shall mean SunTrust Bank and its
successors and assigns.
(c) Prepayment Provisions.
(i) Mandatory Prepayment. The principal of the Bonds shall be subject
to mandatory prepayment in quarterly installments on each Interest Payment Date,
commencing November 1, 2011 in the amounts set forth below:
Interest Payment Date
November 1, 2011
February 1, 2012
May 1, 2012
August 1, 2012
November 1, 2012
February 1, 2013
May 1, 2013
August 1, 2013
November 1, 2013
February 1, 2014
May 1, 2014
August 1, 2014
November 1, 2014
February 1, 2015
May 1, 2015
August 1, 2015
November 1, 2015
Principal
Installment Due
$35,000
35,000
35,000
35,000
40,000
35,000
35,000
35,000
45,000
40,000
35,000
35,000
45,000
40,000
35,000
35,000
50,000
Interest Payment Date
August 1, 2017
November 1, 2017
February 1, 2018
May 1, 2018
August 1, 2018
November 1, 2018
February 1, 2019
May 1, 2019
August 1, 2019
November 1, 2019
February 1, 2020
May 1, 2020
August 1, 2020
November 1, 2020
February 1, 2021
May 1, 2021
August 1, 2021
Principal
Installment Due
$40,000
45,000
45,000
40,000
40,000
45,000
45,000
40,000
40,000
50,000
45,000
40,000
40,000
55,000
50,000
45,000
45,000
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February 1, 2016
May 1, 2016
August 1, 2016
November 1, 2016
February 1, 2017
May 1, 2017
40,000
40,000
40,000
40,000
40,000
40,000
November 1, 2021
February 1, 2022
May 1, 2022
August 1, 2022
November 1, 2022
45,000
45,000
45,000
45,000
50,000
In the event that there is more than one Owner of the Bonds, (A) the Village
shall determine the amount of each Bond to be redeemed, 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,
upon sixty (60) days written notice to the Bank, in whole or in part at any time, at a
price of par plus accrued interest to the date of prepayment. 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 maybe 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
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 $250,000
(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.
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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
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.
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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
during such fiscal year. "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 of all essential or legally mandated services not otherwise
provided for by ad valorem taxes. 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
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 of services and programs which are for
essential public purposes affecting the health, welfare and safety of the inhabitants of the Village or
which are legally mandated by applicable law.
SECTION 8. BOND FUND. There is hereby created a fund entitled "Village of Key
Biscayne, Florida Capital Improvement and Land Acquisition Revenue Refunding Bonds, Series
2011 Bond Fund" (the "Bond Fund"), to be established with the Bank. There shall be deposited into
the Bond Fund on each Interest Payment Date sufficient amounts of Non -Ad Valorem Revenues as
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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 Interest Payment Date or
other date when principal may be due. Moneys in the Bond Fund shall be applied on each Interest
Payment Date to the payment of principal of and interest on the Bonds coming due on each such date
in the manner specified in Section 14(e) hereof.
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 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
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;
(0 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.
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SECTION 9. APPLICATION OF BOND PROCEEDS.
The proceeds received upon the sale of the Bonds shall be applied simultaneously with the
delivery of the Bonds to pay the Prior Bonds in full and to pay certain costs of issuance of the Bonds.
The registered Owners shall have no responsibility for the use of the proceeds of the Bonds,
and the use of such Bond proceeds by the Village shall in no way affect the rights of such registered
Owners. The Village shall be obligated to apply the proceeds of the Bonds solely as provided herein.
However, the Village shall be irrevocably obligated to continue to pay the principal of and interest on
the Bonds notwithstanding any failure of the Village to use and apply such Bond proceeds in the
manner provided herein.
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, 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. In the
resolution of the Village approving the issuance of the Prior Bonds, the Village designated the Prior
Bonds as qualified tax-exempt obligations under Section 265(b)(3)(B) of the Code. The outstanding
principal amount of the Prior Bonds is $1,862,428 (the "Prior Principal Outstanding"). The average
maturity date of the Bonds is not later than the average maturity date of the Prior Bonds, and the
Bonds have a maturity date that is not later than 30 years after the issue date of the Prior Bonds.
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Accordingly, pursuant to the provisions of Section 265(b)(3)(D)(ii) of the Code, the portion of the
Bonds equal to the Prior Principal Outstanding are treated as a qualified tax-exempt obligations.
The Village hereby designates the portion of the Bonds that exceeds the Prior Principal
Outstanding ($2,572) 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 2011 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 Capital
Improvement and Land Acquisition Revenue Refunding Bonds, Series 2011 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 14 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
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 one hundred eighty
(180) 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. Within thirty (30) days of its final
adoption, 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) (i) The Village hereby covenants that, so long as the Bonds are
outstanding, it shall maintain a Debt Service Coverage Ratio (hereinafter defined)
equal to 1.25 to 1.
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(ii) The Village shall be permitted to issue additional Debt secured in the
same manner as the Bonds (as specified in Section 7 hereof), so long as on the date of
issuance of such additional Debt the Debt Service Coverage Ratio for the most
recently ended fiscal year of the Village for which audited financial statements are
available is at least 1.25 to 1.
(iii) "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 for 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 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), plus, for purposes of the
calculation in (ii) above only, the additional Debt.
(c) 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
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
11
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 agrees that for five (5) years from the date of issuance of the
Bonds, but only if during such period the Bank continues to maintain a branch office within
the Village, it will maintain its primary depository relationship with the Bank as currently in
place.
(e) The Bank has agreed to provide the Village with an invoice at least 15 days
prior to each Interest Payment Date setting forth the amount of principal and interest due on
the Bonds on such Interest Payment Date. The Village shall, on or prior to such Interest
Payment Date, deposit into the Bond Fund the invoiced amount, and the Village agrees that
the Bank may collect such amount by ACH direct debit from the Bond Fund. Failure by the
Bank to provide such invoice shall not relieve the Village of its obligation to make the
payments required by this Resolution and the Bonds when due; however, any payment by the
Village which is late as a result of such failure by the Bank to provide such invoice shall not
result in any late payment charges or any increase in the interest rate on the Bonds.
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; or
(b)
payment of any installment of interest on any of the Bonds shall not be made when
12
the same shall become due and payable; 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 sixty (60) days after written notice specifying such default and requiring
same to be remedied shall have been given to the Village by any Owner of any Bond; provided that it
shall not constitute an event of default if the default is not one that can be cured within such sixty
(60) days, as agreed by the Owners and the Village, and the Village commences within such sixty
(60) days and is proceeding diligently with action to correct such default; or
(d) any proceeding shall be instituted with or without the consent of the Village under
federal bankruptcy laws or other federal or state laws affecting creditors' rights or any proceeding
shall otherwise be instituted for the purpose of effecting a composition between the Village and its
creditors or for the purpose of adjusting the claims of such creditors pursuant to any federal or state
statute now or hereafter enacted and any such proceeding shall not have been dismissed with
prejudice within thirty (30) days after the institution of the same;
(e) 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; or
(f) a default (other than a payment default) occurs under any other debt obligation of the
Village secured by a covenant to budget and appropriate Non -Ad Valorem Revenues.
SECTION 17. REMEDIES; RIGHTS OF OWNERS.
(a) Upon the occurrence and continuance of any event of default specified in Section
16(e) 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) or (f) 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 maybe exercised from time
to time and as often as maybe 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 Bank and its directors,
officers, employees and agents from and against any losses, claims, damages, liabilities and expenses
13
(including, without limitation, counsel fees and expenses) which maybe 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 be a Saturday,
Sunday or a day on which the banks in the State are required, or authorized or not prohibited, by law
(including executive orders) to close and are closed, 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 on
which the banks in the State are open for business.
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 in
writing of the Owners.
14
VILLAGE ATTORNEY
SECTION 25. WAIVER OF JURY TRIAL. SUNTRUST AND THE VILLAGE
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
RESOLUTION, THE BONDS OR ANY AGREEMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF
EITHER PARTY.
SECTION 26. 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 parties hereto 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 parties hereto
and the Owners from time to time of the Bonds issued hereunder.
SECTION 27. EFFECTIVE DATE. This Resolution shall take effect immediately on
July 28, 2011.
PASSED AND ADOPTED this 28th day of June, 2011.
M ORFRAN IN H. •' •N
c//a4v,
HITA H. ALVAREZ, MMC, VILLAGE CLERK
APPROVED AS TO FORM AND LEGAL SUFFICIENCY
15
EXHIBIT "A"
No. R- $1,865,000
UNITED STATES OF AMERICA
STATE OF FLORIDA
VILLAGE OF KEY BISCAYNE
CAPITAL IMPROVEMENT AND LAND ACQUISITION REVENUE REFUNDING BONDS
SERIES 2011
Registered Owner: SunTrust Bank
Principal Amount: One Million Eight Hundred Sixty -Five Thousand Dollars ($1,865,000)
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 "Bank"), from the sources hereinafter mentioned, the Principal Amount
specified above. Subject to the rights of prior prepayment and redemption described in this Bond,
the Bonds shall mature on November 1, 2022. 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. Except as provided in Section 14(e) of the Resolution (defined
below), if any payment required to be made hereunder is not paid within ten (10) days of when due,
the Village shall pay to the Owners a late charge equal to two percent (2%) of the late payment.
Except as provided in Section 14(e) of the Resolution (defined below), if any payment required to be
made hereunder is not paid within thirty (30) days of when due, the interest rate on this Bond shall be
increased to a Default Rate equal to the then applicable interest rate on this Bond plus four percent
(4%) per annum until paid.
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. 2011-7 duly adopted by the Village Council (the "Council") of
the Village on June 28, 2011 (the "Ordinance"), and Resolution No. 2011-_ adopted on June 28,
2011 (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 refunding the Village's
$2,800,000 Capital Improvement and Land Acquisition Revenue Bonds, Series 2004, and paying
certain costs of issuance of the Bonds. This Bond shall be payable only from the sources identified
herein.
Subject to adjustment as provided below, this Bond shall bear interest on the outstanding
principal balance from its date of issuance payable quarterly on the first day of each February, May,
August and November (the "Interest Payment Dates"), commencing November 1, 2011, at an
interest rate equal to 2.41% per annum.
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Interest on this Bond shall be computed on the basis of a 360 -day year a 360 -day year for the
actual number of days elapsed.
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, the rate
of interest on the Bonds shall be adjusted upward to 3.597% 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 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 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
decreased below thirty-five percent (35%), the interest rate on the Bonds that are bearing interest on
a tax-exempt basis shall be adjusted upward 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 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 decrease in the
Maximum Federal Corporate Tax Rate.
Adjustment of Interest Rate for Other Changes Affecting After -Tax Yield.
(A) If any Change in Law shall, in the Bank's reasonable determination, either (a) change the
basis of taxation of payments to the Bank of any amounts payable by the Village hereunder (other
than taxes imposed on the overall net income of the Bank), (b) impose, modify or deem applicable
any reserve, special deposit or similar requirement against the Bonds owned by the Bank or (c)
impose on the Bank any other condition relating, directly or indirectly, to this Resolution or the
Bonds, and the result of any event referred to in the preceding clause (a), (b) or (c) shall be to
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increase the cost to the Bank of owning the Bonds, then, upon written demand by the Banc, the
Village hereby agrees to pay promptly to the Bank, from time to time as specified by the Bank, such
additional amounts as shall be sufficient to compensate the Bank for such increased cost. A
certificate of the Bank claiming compensation under this subsection and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive absent manifest error. In
determining any such amount, the Bank may use any reasonable averaging and attribution methods.
(B) If, after the date of this Resolution, the Bank shall have reasonably determined that
Change in Law regarding capital adequacy, has or would have the effect of reducing the rate of return
on the Bank's capital, on the Bonds or otherwise, as a consequence of its ownership of the Bonds to
a level below that which the Bank could have achieved but for such adoption, change or compliance
(taking into consideration the Bank's policies with respect to capital adequacy) by an amount deemed
by the Bank to be material, then from time to time, promptly upon demand by the Bank, the
Borrower hereby agrees to pay the Bank such additional amount or amounts as will compensate the
Bank for such reduction. A certificate of the Bank claiming compensation under this subsection and
setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive absent
manifest error. In determining any such amount, the Bank may use any reasonable averaging and
attribution methods.
(C) A "Change in Law" shall means the occurrence, after the date of this Resolution, of any
of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation, implementation
or application thereof by any governmental authority charged with the interpretation or
administration thereof ("Governmental Authority") or (c) the making or issuance of any rule,
guideline or directive (whether or not having the force of law) by any Governmental Authority.
For purposes of this subheading, the term "Bank" shall mean SunTrust Bank and its
successors and assigns.
Mandatory Prepayment. The principal of this Bond shall be subject to mandatory prepayment
in quarterly installments on each Interest Payment Date, commencing November 1, 2011 in the
amounts set forth below:
Interest Payment Date
November 1, 2011
February 1, 2012
May 1, 2012
August 1, 2012
November 1, 2012
February 1, 2013
May 1, 2013
August 1, 2013
November 1, 2013
February 1, 2014
May 1, 2014
August 1, 2014
November 1, 2014
Principal
Installment Due
$35,000
35,000
35,000
35,000
40,000
35,000
35,000
35,000
45,000
40,000
35,000
35,000
45,000
Interest Payment Date
August 1, 2017
November 1, 2017
February 1, 2018
May 1,2018
August 1, 2018
November 1, 2018
February 1, 2019
May 1,2019
August 1, 2019
November 1, 2019
February 1, 2020
May 1, 2020
August 1, 2020
Principal
Installment Due
$40,000
45,000
45,000
40,000
40,000
45,000
45,000
40,000
40,000
50,000
45,000
40,000
40,000
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February 1, 2015
May 1,2015
August 1, 2015
November 1, 2015
February 1, 2016
May 1,2016
August 1, 2016
November 1, 2016
February 1, 2017
May 1,2017
40,000
35,000
35,000
50,000
40,000
40,000
40,000
40,000
40,000
40,000
November 1, 2020
February 1, 2021
May 1,2021
August 1, 2021
November 1, 2021
February 1, 2022
May 1, 2022
August 1, 2022
November 1, 2022
55,000
50,000
45,000
45,000
45,000
45,000
45,000
45,000
50,000
In the event that there is more than one Owner of the Bonds, (i) the Village shall determine
the amount of each Bond to be redeemed, 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.
This Bond is subject to optional prepayment, upon sixty (60) days written notice to the Bank,
in whole or in part at any time, at a price of par plus accrued interest to the date of prepayment. 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 during such fiscal year. "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 Bond Ordinance,
but only after provision has been made by the Village for the payment of all essential or legally
mandated services not otherwise provided for by ad valorem taxes. 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
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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 of services and programs which are for
essential public purposes affecting the health, welfare and safety of the inhabitants of the Village or
which are legally mandated by applicable law.
THIS BOND SHALL NOT BE DEEMED TO CONSTITUTE AN INDEBTEDNESS OF
THE VILLAGE OR A PLEDGE OF THE FAITH AND CREDIT OF THE VILLAGE, BUT SHALL
BE PAYABLE EXCLUSIVELY FROM LEGALLY AVAILABLE NON -AD VALOREM
REVENUES OF THE VILLAGE. 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 HOLDER OF THIS
BOND SHALL HAVE NO RECOURSE TO THE POWER OF AD VALOREM TAXATION.
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 maybe 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 $250,000 (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 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.
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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 August, 2011.
VILL OF KEY BISCAYNE, FLORIDA
(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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