HomeMy Public PortalAbout1993-57 Authorizing Issuance of Land Acquisition Revenue BondsRESOLUTION NO. 93-57
A RESOLUTION OF THE VILLAGE OF KEY BISCAYNE,
FLORIDA, AUTHORIZING THE ISSUANCE OF LAND
ACQUISITION REVENUE BONDS, SERIES 1993, OF
THE VILLAGE OF KEY BISCAYNE, FLORIDA, IN THE
AGGREGATE PRINCIPAL AMOUNT OF $9,200,000 FOR
THE PURPOSE OF ACQUIRING AND IMPROVING THE
TREE FARM PROPERTY; AWARDING THE SALE OF THE
BONDS TO NORTHERN TRUST BANK OF FLORIDA;
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, the Village Council (the "Council") of the Village
of Key Biscayne, Florida (the "Village") desires to authorize
the issuance of land acquisition revenue bonds in an aggregate
principal amount of Nine Million Two Hundred Thousand Dollars
($9,200,000) for the purpose of acquiring and improving certain
undeveloped real property, commonly known as the "Tree Farm
Property", located in the Village for Village purposes (the
"Project"), and paying costs of issuance of the bonds; and
WHEREAS, pursuant to an Ordinance passed and adopted on
second reading on this day, Council has authorized bonds to be
issued to finance the Project in an amount not to exceed
$9,500,000 (the "Ordinance"), with the terms of the bonds to be
determined by supplemental resolution; and
WHEREAS, the Council hereby determines to accept a
commitment (the "Commitment") from Northern Trust Bank of
Florida, N.A. (the "Bank") to purchase such bonds;
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, land
acquisition revenue bonds of the Village to be designated
"Village of Key Biscayne, Florida, Land Acquisition Revenue
Bonds, Series 1993" (the "Bonds"), are hereby authorized to be
issued in an aggregate principal amount of Nine Million Two
Hundred Thousand Dollars ($9,200,000) for the purpose of
financing costs of the Project and paying costs of issuance of
the Bonds.
SECTION 2. TERMS OF THE BONDS. 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.
The Bonds shall be dated the date of their issuance and
delivery and shall be initially issued as one Bond in the
denomination of $9,200,000. The Bonds shall mature on
December 15, 2003.
Except as otherwise provided herein, the Bonds shall bear
interest on the outstanding principal balance from their date
of issuance payable semi-annually on the fifteenth day of each
June and December (the "Interest Payment Dates"), commencing
June 15, 1994, at an interest rate equal to 4.36% per annum.
Interest on the Bonds shall be computed on the basis of a
360 -day year consisting of twelve (12) thirty -day months.
In the event that (i) the maximum effective federal
corporate income tax rate (the "Maximum Corporate Tax Rate"),
during any period with respect to which interest shall be
accruing on the Bonds, shall be other than thirty-five percent
(35%), or (ii) the percentage reduction to be applied to the
amount of interest expense incurred or continued to purchase
obligations the interest on which is exempt from tax (within
the meaning of Section 291(e)(1)(B) of the Internal Revenue
Code of 1986, as amended (the "Code")) allowed as a deduction
to the Owners of the Bonds (the "Preference Reduction Rate")
during any period with respect to which interest shall be
accruing on the Bonds, shall be other than twenty percent
(20%), the interest rate on the Bonds shall be adjusted as
follows, effective as of the date of any such change:
The interest rate on the Bonds shall be adjusted to the
product obtained by multiplying the interest rate then in
effect on the Bonds by a fraction, the numerator of which is
equal to the sum of (i) the product of the "Fully Taxable
Equivalent" times one minus the Maximum Corporate Tax Rate in
effect as of the day of adjustment, plus (ii) the "TEFRA
Adjustment" calculated using the Maximum Corporate Tax Rate and
Preference Reduction Rate in effect as of the date of
adjustment, and the denominator of which is equal to the sum of
(i) the product of the "Fully Taxable Equivalent" times one
minus the Maximum Corporate Tax Rate in effect immediately
prior to the date of adjustment, plus (ii) the "TEFRA
Adjustment" calculated using the Maximum Corporate Tax Rate and
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Preference Reduction Rate in effect immediately prior to the
date of adjustment.
As used herein: (1) "TEFRA Adjustment" means an adjustment
equal to the product of the following: Cost of Funds
multiplied by the applicable Maximum Corporate Tax Rate
multiplied by the applicable Preference Reduction Rate;
(2) "Cost of Funds" means three percent (3%) per annum; and
(3) "Fully Taxable Equivalent" means six and thirty-nine one
hundredths percent (6.39%) per annum.
The principal of the Bonds shall be payable in ten (10)
annual installments on the following dates and in the following
amounts:
Payment Dates Amounts
12-15-94 $ 755,000
12-15-95 785,000
12-15-96 820,000
12-15-97 855,000
12-15-98 895,000
12-15-99 935,000
12-15-00 975,000
12-15-01 1,015,000
12-15-02 1,060,000
12-15-03 1,105,000
In the event that any payment of principal of or interest
on the Bonds is not made at the time due hereunder, then such
unpaid amount shall bear interest from its due date until paid
at a rate equal to seventy-five percent (75%) of the
then -applicable "Prime Rate" of the Bank, adjusted on each
Interest Payment Date for changes in such "Prime Rate".
The Bonds are subject to extraordinary mandatory prepayment
in whole (i) at any time prior to June 15, 1994, in the event
that the Village determines not to acquire the Project prior to
such date, (ii) on June 15, 1994 in the event that the Project
has not been acquired by the Village on or prior to such date,
and (iii) in the event and on the date that the Project (if
acquired by the Village) is sold by the Village while the Bonds
are outstanding, each at a price of par plus accrued interest
to the date of prepayment.
The Bonds are subject to optional prepayment in whole or in
part at any time, and if in part, in an aggregate principal
amount of at least $100,000 and in inverse order of the
maturity of principal installments or portions thereof, at a
redemption price equal to par plus the applicable "Prepayment
Loss Reimbursement", plus accrued interest thereon to the date
of prepayment.
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As used herein, "Prepayment Loss Reimbursement" means the
greater of (a) zero or (b) the sum of (i) the present value of
the remaining interest and principal payments due on the Bonds,
discounted at the Treasury Rate plus 1.0% multiplied by one
minus the Maximum Corporate Tax Rate in effect as of the day of
prepayment plus the "TEFRA Adjustment" calculated using the
Maximum Corporate Tax Rate and Preference Reduction Rate in
effect as of the date of prepayment, less (ii) the remaining
principal of such Bonds at par.
As used herein, the "Treasury Rate" shall be determined by
reference to the Federal Reserve Statistical Release H.15(519)
which becomes publicly available at least two business days
prior to the date as of which such determination is being made
(or, if the Statistical Release is no longer published, any
publicly available source of similar market data), and shall be
the most recent weekly average yield on actively traded U.S.
Treasury maturities adjusted to a constant maturity equal to
the then Remaining Weighted Average Life to Retirement of the
Bonds (the "Remaining Life"). If the Remaining Life is not
equal to the constant maturity of a U.S. Treasury security for
which a weekly average yield is given, the Treasury Rate shall
be obtained by linear interpolation (calculated to the nearest
one -twelfth of a percent) from the weekly average yields of the
actively traded U.S. Treasury security with the duration
closest to and greater than the Remaining Life of the Bonds,
except that if the Remaining Life is less than one year, the
weekly average yield of actively traded. U.S. Treasury
securities adjusted to a constant maturity of one year shall be
used. The Treasury Rate will be computed to one thousandth of
a percentage point and then rounded to one hundredth of a
percent point.
As used herein, the "Weighted Average Life to Retirement"
means as of the time of the determination thereof the number of
years obtained by dividing the then Remaining Dollar -years of
the Bonds by the then outstanding principal amount of the
Bonds. "Remaining Dollar years" of Bonds means the amount
obtained by (1) multiplying the amount of each then remaining
principal installment including the final installment due at
maturity, by the number of years (calculated to the nearest
one -twelfth) which will elapse between the date as of which the
calculation is made and the due date of that installment and
(2) totaling all the products obtained in (1).
Written notice of any such optional prepayment shall be
given by the Village to the Owners of the Bonds at least five
(5) days prior to the date fixed for prepayment.
THE BONDS SHALL NOT BE DEEMED TO CONSTITUTE AN INDEBTEDNESS
OF THE VILLAGE OR A PLEDGE OF THE FAITH AND CREDIT OF THE
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VILLAGE, BUT SHALL BE PAYABLE EXCLUSIVELY FROM THE PLEDGED
REVENUES, AS DEFINED HEREIN. THE ISSUANCE OF THE BONDS SHALL
NOT DIRECTLY OR INDIRECTLY OR CONTINGENTLY OBLIGATE THE VILLAGE
TO LEVY OR TO PLEDGE ANY FORM OF 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
TAXATION.
SECTION 3. EXECUTION OF BONDS. The Bonds shall be signed
in the name of the Village by the Mayor and the Village Clerk,
and its seal shall be affixed thereto or imprinted or
reproduced thereon. The signatures of the Mayor 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 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. 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
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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 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 and interest of which has been
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, 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.
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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 following tenor, with such omissions,
insertions and variations as may be necessary and desirable and
authorized or permitted by this Resolution.
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UNITED STATES OF AMERICA
STATE OF FLORIDA
VILLAGE OF KEY BISCAYNE
LAND ACQUISITION REVENUE BOND
SERIES 1993
Registered Owner:
Principal Amount: Dollars
KNOW ALL MEN BY THESE PRESENTS, that the Village of Key
Biscayne, Florida (the "Village"), for value received, hereby
promises to pay in installments to the Registered Owner shown
above, or registered assigns, on the dates set forth below,
from the sources hereinafter mentioned, the Principal Amount
specified above. Subject to the rights of prior prepayment and
amortization described in this Bond, this Bond shall mature on
December 15, 2003.
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. duly adopted by Village Council of the
Village on 1993 (the "Ordinance") and
Resolution No. duly adopted by the Village Council of the
Village on , 1993 (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 acquiring and improving certain
undeveloped real property in the Village for Village purposes
and paying costs of issuance of the Bonds.
Except as otherwise provided herein, this Bond shall bear
interest on the outstanding principal balance from its date of
issuance payable semi-annually on the fifteenth day of each
June and December (the "Interest Payment Dates"), commencing
June 15, 1994, at an interest rate equal to 4.36% per annum.
Interest on this Bond shall be computed on the basis of a
360 -day year consisting of twelve (12) thirty -day months.
In the event that (i) the maximum effective federal
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corporate income tax rate (the "Maximum Corporate Tax Rate"),
during any period with respect to which interest shall be
accruing on the Bonds, shall be other than thirty-five percent
(35%), or (ii) the percentage reduction to be applied to the
amount of interest expense incurred or continued to purchase
obligations the interest on which is exempt from tax (within
the meaning of Section 291(e) (1) (B) of the Internal Revenue
Code of 1986, as amended (the "Code")) allowed as a deduction
to the Owners of the Bonds (the "Preference Reduction Rate")
during any period with respect to which interest shall be
accruing on the Bonds, shall be other than twenty percent
(20%), the interest rate on the Bonds shall be adjusted as
follows, effective as of the date of any such change:
The interest rate on the Bonds shall be adjusted to the
product obtained by multiplying the interest rate then in
effect on the Bonds by a fraction, the numerator of which is
equal to the sum of (i) the product of the "Fully Taxable
Equivalent" times one minus the Maximum Corporate Tax Rate in
effect as of the day of adjustment, plus (ii) the "TEFRA
Adjustment" calculated using the Maximum Corporate Tax Rate and
Preference Reduction Rate in effect as of the date of
adjustment, and the denominator of which is equal to the sum of
(i) the product of the "Fully Taxable Equivalent" times one
minus the Maximum Corporate Tax Rate in effect immediately
prior to the date of adjustment, plus (ii) the "TEFRA
Adjustment" calculated using the Maximum Corporate Tax Rate and
Preference Reduction Rate in effect immediately prior to the
date of adjustment.
As used herein: (1) "TEFRA Adjustment" means an adjustment
equal to the product of the following: Cost of Funds
multiplied by the applicable Maximum Corporate Tax Rate
multiplied by the applicable Preference Reduction Rate;
(2) "Cost of Funds" means three percent (3%) per annum; and
(3) "Fully Taxable Equivalent" means six and thirty-nine one
hundredths percent (6.39%) per annum.
The principal of this Bond shall be payable in ten (10)
annual installments on the following dates and in the following
amounts:
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Payment Dates
12-15-94
12-15-95
12-15-96
12-15-97
12-15-98
12-15-99
12-15-00
12-15-01
12-15-02
12-15-03
Amounts
$ 755,000
785,000
820,000
855,000
895,000
935,000
975,000
1,015,000
1,060,000
1,105,000
In the event that any payment of principal of or interest
on the Bonds is not made at the time due hereunder, then such
unpaid amount shall bear interest from its due date until paid
at a rate equal to seventy-five percent (75%) of the
then -applicable "Prime Rate" of Northern Trust Bank of Florida,
N.A., adjusted on each Interest Payment Date for changes in
such "Prime Rate".
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.
This Bond is payable from and secured by a pledge and
assignment of proceeds of the public service tax authorized by
Part III, Chapter 166, Florida Statutes and received by the
Village pursuant to Section 8.04 of the Charter of the Village,
and any other revenues received by the Village which are
intended to replace all or any portion of such taxes, such as
emergency state or federal grants intended for such purpose
(the "Pledged Revenues").
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 THE PLEDGED
REVENUES. THE ISSUANCE OF THIS BOND SHALL NOT DIRECTLY OR
INDIRECTLY OR CONTINGENTLY OBLIGATE THE VILLAGE TO LEVY OR TO
PLEDGE ANY FORM OF 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 TAXATION.
The Bonds are subject to extraordinary mandatory prepayment
in whole (i) at any time prior to June 15, 1994, in the event
that the Village determines not to acquire the Project prior to
such date, (ii) on June 15, 1994 in the event that the Project
has not been acquired by the Village on or prior to such date,
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and (iii) in the event and on the date that the Project (if
acquired by the Village) is sold by the Village while the Bonds
are outstanding, each at a price of par plus accrued interest
to the date of prepayment.
The Bonds are subject to optional prepayment in whole or in
part at any time, and if in part, in an aggregate principal
amount of at least $100,000 and in inverse order of the
maturity of principal installments or portions thereof, at a
redemption price equal to par plus the applicable "Prepayment
Loss Reimbursement", plus accrued interest thereon to the date
of prepayment.
As used herein, "Prepayment Loss Reimbursement" means the
greater of (a) zero or (b) the sum of (i) the present value of
the remaining interest and principal payments due on the Bonds,
discounted at the Treasury Rate plus 1.0% multiplied by one
minus the Maximum Corporate Tax Rate in effect as of the day of
prepayment plus the "TEFRA Adjustment" calculated using the
Maximum Corporate Tax Rate and Preference Reduction Rate in
effect as of the date of prepayment, less (ii) the remaining
principal of such Bonds at par.
As used herein, the "Treasury Rate" shall be determined by
reference to the Federal Reserve Statistical Release H.15(519)
which becomes publicly available at least two business days
prior to the date as of which such determination is being made
(or, if the Statistical Release is no longer published, any
publicly available source of similar market data), and shall be
the most recent weekly average yield on actively traded U.S.
Treasury maturities adjusted to a constant maturity equal to
the then Remaining Weighted Average Life to Retirement of the
Bonds (the "Remaining Life"). If the Remaining Life is not
equal to the constant maturity of a U.S. Treasury security for
which a weekly average yield is given, the Treasury Rate shall
be obtained by linear interpolation (calculated to the nearest
one -twelfth of a percent) from the weekly average yields of the
actively traded U.S. Treasury security with the duration
closest to and greater than the Remaining Life of the Bonds,
except that if the Remaining Life is less than one year, the
weekly average yield of actively traded U.S. Treasury
securities adjusted to a constant maturity of one year shall be
used. The Treasury Rate will be computed to one thousandth of
a percentage point and then rounded to one hundredth of a
percent point.
As used herein, the "Weighted Average Life to Retirement"
means as of the time of the determination thereof the number of
years obtained by dividing the then Remaining Dollar -years of
the Bonds by the then outstanding principal amount of the
Bonds. "Remaining Dollar years" of Bonds means the amount
obtained by (1) multiplying the amount of each then remaining
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principal installment including the final installment due at
maturity, by the number of years (calculated to the nearest
one -twelfth) which will elapse between the date as of which the
calculation is made and the due date of that installment and
(2) totaling all the products obtained in (1).
Written notice of any such optional prepayment shall be
given by the Village to the Owners of the Bonds at least five
(5) days prior to the date fixed for prepayment.
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 $250,000. 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.
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 15 days next preceding an interest payment date
on such Bonds.
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4. All Bonds, the principal and interest of which has
been 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 part, but not all of an outstanding Bond
shall be prepaid, such Bond shall not be surrendered in
exchange for a new Bond.
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 , 1993.
VILLAGE OF KEY BISCAYNE,
FLORIDA
Mayor
Village Clerk
(SEAL)
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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
Signature Guaranteed: Social Security Number
of Assignee
NOTICE: Signature(s) must be
guaranteed by a member firm
of the New York Stock Exchange
or a commercial bank or a
trust company
NOTICE: No transfer will be registered and no new Bond will be
issued in the name of the Transferee, unless the signature(s)
to this assignment corresponds with the name as it appears upon
the face of the within Bond in every particular, without
alteration or enlargement or any change whatever and the Social
Security or Federal Employer Identification Number of the
Transferee is supplied.
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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 under Uniform Gifts to Minors
the entirety Act of
JT TEN - as joint tenants
with right of
survivorship and
not as tenants
in common
(State)
1
•
Additional abbreviations may also be used though not in the
list above.
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SECTION 7. PLEDGE OF REVENUES.
(a) The Village hereby pledges, and to the extent
permitted by law, assigns and grants a security interest to the
Owners of the Bonds, in order to secure the payment of the
principal of and interest on the Bonds, in the proceeds of the
public service tax authorized by Part III, Chapter 166, Florida
Statutes (the "Public Service Tax") and received by the Village
pursuant to Section 8.04 of the Charter of the Village, and any
other revenues received by the Village which are intended to
replace all or any portion of such taxes, such as emergency
state or federal grants intended for such purpose (the "Pledged
Revenues"). The Village represents and warrants that there are
no pledges or liens on the Pledged Revenues that are prior to
or on a parity with the pledge and lien granted hereby to the
Bondowners. The Village covenants that in any emergency
situation involving a disruption or permanent loss of any
portion of the Public Service Tax revenues, it will pursue all
available sources to replace such revenues, such as emergency
state or federal grants.
(b) The Village covenants that for so long as the
Bonds are outstanding it will not repeal or modify the
provisions of Section 8.04 of its Charter or take any other
action so as to reduce the rate at which the Public Service Tax
is levied, or otherwise modify the provisions of Section 8.04
of its Charter or take any other action in any manner so as to
impair or adversely affect the ability of the Village to levy
and collect the Public Service Tax.
(c) The Village covenants that it will not hereafter
issue any other obligations payable from the Pledged Revenues,
nor voluntarily create or cause to be created any debt, lien,
pledge, assignment, encumbrance or any other charge, on a
parity with or having priority to, the lien held by the Owners
of the Bonds upon the Pledged Revenues, or any part thereof.
(d) The Village may issue obligations with a lien on
the Pledged Revenues subordinate to the lien of the Bonds.
However, any such obligations issued by the Village and payable
from a subordinate lien on the Pledged Revenues shall contain
an express statement that such obligations are junior and
subordinate in all respects to the Bonds as to lien on and
source and security for payment from the Pledged Revenues;
provided that no such subordinated indebtedness may be issued
if there has occurred and is continuing an Event of Default
under this Resolution.
SECTION 8. BOND FUND. There is hereby created a fund
entitled "Village of Key Biscayne, Florida Land Acquisition
Revenue Bonds, Series 1993 Bond Fund" (the "Bond Fund"). There
shall be deposited into the Bond Fund on each Interest Payment
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Date sufficient amounts of Pledged Revenues or other available
revenues 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. 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.
SECTION 9. INVESTMENT OF BOND FUND. Subject to Section 12
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;
(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
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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.
SECTION 10. APPLICATION OF BOND PROCEEDS. The proceeds
received upon the sale of the Bonds shall be applied
simultaneously with the delivery of the Bonds, as follows:
1. The Village shall first use the moneys to pay costs of
issuance of the Bonds.
2. The remainder of the proceeds of the sale of the Bonds
shall be deposited in the "Village of Key Biscayne, Land
Acquisition Revenue Bonds, Series 1993 Project Fund" (the
"Project Fund"), hereby created, and used only in connection
with the Project.
Pending their use, the proceeds in the Project Fund may be
invested in Authorized Investments, maturing not later than the
date or dates on which such proceeds will be needed for the
purposes of this Bond Resolution. Subject to Section 12
hereof, any income received upon such investment shall be
deposited in the Project Fund and applied to costs of the
Project or, at the option of the Village, deposited in the Bond
Fund and used to pay interest on the Bonds until completion of
the Project. Subject to Section 12 hereof, after the
completion of the Project, any remaining balance of proceeds of
the Bonds shall be deposited into the Bond Fund and used solely
to pay principal of the Bonds.
Such funds shall be kept separate and apart from all other
funds of the Village and the moneys on deposit therein shall be
withdrawn, used and applied by the Village solely for the
purposes set forth herein.
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 for financing costs of
the Project. 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 11. FUNDS. Each of the funds and accounts herein
established and created shall constitute trust funds for the
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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 in Sections 9 and 10
hereof, 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 Bond 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 12. 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 Section 148 of the Code and the aforementioned regulations
throughout the term of the Bonds.
SECTION 13. 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) of the Code, and
shall make all necessary filings in order to effectuate such
election. The Village represents that neither the Village nor
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 have issued tax-exempt
obligations during calendar year 1993 and neither the Village
nor any such entities expect to issue tax-exempt obligations
during calendar year 1993, other than (i) the Bonds and (ii)
$350,000 drawn under a line of credit represented by a Term
Note, dated September 7, 1993, payable to Key Biscayne Bank and
Trust Company.
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SECTION 14. ARBITRAGE REBATE COVENANTS. There is hereby
created and established a fund to be held by the Village,
designated the "Village of Key Biscayne Land Acquisition
Revenue Bonds, Series 1993, 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 15. SPECIAL COVENANTS. The Village shall, within
thirty (30) days of the end of each fiscal quarter of the
Village, deliver to the Bondowners a report showing the amount
of Pledged Revenues received by the Village during the
preceding fiscal quarter of the Village.
SECTION 16. COVENANTS BINDING ON VILLAGE AND SUCCESSOR.
All covenants, stipulations, obligations and agreements of the
Village contained in this Resolution 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.
Except as otherwise provided in this Resolution, all
rights, powers and privileges conferred and duties and
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liabilities imposed upon the Village or upon the Village
Council by the provisions of this Resolution shall be exercised
or performed by the Village Council or by such officers, board,
body or commission as may be required by law to exercise such
powers or to perform such duties.
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 17. EVENTS OF DEFAULT. Each of the following
events is hereby declared an "event of default":
(a) payment of the principal 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 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
Bondholders 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 the
consent of the Village 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 such proceedings shall not have been dismissed
within thirty (30) days after the institution of the same.
SECTION 18. REMEDIES; RIGHTS OF BONDHOLDERS. Upon the
occurrence and continuance of any event of default specified in
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Section 17 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 Bank 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 this Resolution and the
Bonds.
SECTION 19. DEFEASANCE. The covenants, liens and pledges
entered into, created or imposed pursuant to this Resolution
may be fully discharged and satisfied with respect to the Bonds
in any one or more of the following ways:
(a) by paying the principal of, redemption premium,
if any, and interest on the Bonds when the same shall
become due and payable; or
(b) by depositing with an escrow agent certain moneys
irrevocably pledged to the payment of the Bonds, which
together with other moneys lawfully available therefor, if
any, shall be sufficient at the time of such deposit with
the escrow agent to pay when due the principal, redemption
premium, if any, and interest due and to become due on said
Bonds on or prior to the redemption date or maturity date
thereof; or
(c) by depositing with an escrow agent moneys
irrevocably pledged to the payment of the Bonds, which
together with other moneys lawfully available therefor,
when invested by the escrow agent in direct obligations of
the United States of America which shall not be subject to
redemption prior to their maturity other than at the option
of the holder thereof, will provide moneys which shall be
sufficient (as evidenced by a verification report of an
independent certified public accountant or firm of
accountants) to pay when due the principal, redemption
premium, if any, and interest due and to become due on said
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Bonds on or prior to the redemption date or maturity date
thereof.
Upon such payment or deposit with an escrow agent in
the amount and manner provided in this Section 19, the
Bonds shall be deemed to be paid and shall no longer be
deemed to be Outstanding for the purposes of this
Resolution and the lien on and pledge of the Pledged
Revenues and all liability of the Village with respect to
said Bonds shall cease, terminate and be completely
discharged and extinguished and the holders thereof shall
be entitled to payment solely out of the moneys or
securities so deposited with the escrow agent; provided,
however, that (i) if any Bonds are to be redeemed prior to
the maturity thereof, notice of the redemption thereof
shall have been duly given in accordance with the
provisions of Section 2 hereof and (ii) in the event that
any Bonds are not by their terms subject to redemption
within the next succeeding sixty (60) days following a
deposit of moneys with the escrow agent in accordance with
this Section, the Village shall have given the escrow agent
in form satisfactory to it irrevocable instructions to mail
to the Owners of such Bonds at their addresses as they
appear on the registration books of the Village, a notice
stating that a deposit in accordance with this Section has
been made with the escrow agent and that the Bonds are
deemed to have been paid in accordance with this Section
and stating such maturity or redemption date upon which
moneys are to be available for the payment of the principal
of, premium, if any, and interest on said Bonds.
(d) Notwithstanding the foregoing all references to
the discharge and satisfaction of Bonds shall include the
discharge and satisfaction :f any portion of the Bonds.
(e) If any portion of the moneys deposited with an
escrow agent for the payment of the principal of,
redemption premium, if any, and interest on any portion of
the Bonds is not required for such purpose, the escrow
agent shall transfer to the Village the amount of such
excess and the Village may use the amount of such excess
free and clear of any trust, lien, security interest,
pledge or assignment securing said Bonds or otherwise
existing under this Resolution.
(f) Notwithstanding any of the foregoing, the
requirements of Sections 12 and 14 hereof relating to use
and investment of proceeds and rebate amounts due to the
United States pursuant to the Rebate Covenants shall
survive the payment of principal and interest with respect
to the Bonds or any portion thereof.
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SECTION 20. SALE OF BONDS. Based upon the need for
immediate financing in order to acquire the Project within the
period specified in the purchase contract with the seller of
the land and 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 21. AUTHORITY OF OFFICERS. The Mayor, the Vice
Mayor, 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 22. 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 23. 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 24. 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 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 25. REPEALING CLAUSE. All resolutions or orders
and parts thereof in conflict herewith, to the extent of such
conflicts, are hereby superseded and repealed.
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SECTION 26. EFFECTIVE DATE. This Resolution shall take
effect immediately upon its passage and adoption.
PASSED AND ADOPTED this 14th day of December, 1993.
Attest:
Village Clerk
Mayo John F. Festa
APPROVED AS TO LEC'AL FORM AND SUFFICIENCY.
Village ttorney—1
M/540JDD/12-15-93
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