HomeMy Public PortalAbout1995-11 Bond Anticipation Notes (Stormwater Utility System), Series 1995 issuances; Key Biscayne Bank & Trust, First Union National BankRESOLUTION NO. 95-11
A RESOLUTION OF THE VILLAGE OF KEY BISCAYNE,
FLORIDA, AUTHORIZING THE ISSUANCE OF
STORMWATER UTILITY REVENUE BOND ANTICIPATION
NOTES, SERIES 1995, OF THE VILLAGE OF KEY
BISCAYNE, FLORIDA, IN THE AGGREGATE
PRINCIPAL AMOUNT OF $7,200,000 FOR THE
PURPOSE OF EXPANDING AND IMPROVING THE
STORMWATER UTILITY SYSTEM WITHIN THE
VILLAGE, AND PAYING COSTS OF ISSUANCE OF THE
NOTES; AWARDING THE SALE OF THE NOTES TO KEY
BISCAYNE BANK AND TRUST COMPANY AND FIRST
UNION NATIONAL BANK OF FLORIDA; PROVIDING
FOR SECURITY FOR THE NOTES; PROVIDING OTHER
PROVISIONS RELATING TO THE NOTES; 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 stormwater utility revenue bond anticipation
notes in an aggregate principal amount of $7,200,000 for the
purpose of expanding and improving the Stormwater Utility
System within the Village (the "Project"), and paying costs of
issuance of the notes; and
WHEREAS, pursuant to an Ordinance passed and adopted on
second reading on March 28, 1995, Council has authorized notes
to be issued to finance the Project in an amount not to exceed
$7,200,000 (the "Ordinance"), with the terms of the notes to be
determined by supplemental resolution; and
WHEREAS, because of its developmental timetable, the
Village must proceed immediately to obtain interim financing
that will enable it to begin construction of the Project; and
WHEREAS, the Village has solicited proposals for the
interim financing of the Project; and
WHEREAS, the Council hereby determines to accept a
commitment (the "Commitment") from Key Biscayne Bank and Trust
Company and First Union National Bank of Florida (collectively,
the "Bank") to purchase such notes;
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF
THE VILLAGE OF KEY BISCAYNE, FLORIDA:
SECTION 1. AUTHORJZATIQN OF NOTES. Pursuant to the
provisions of this Note Resolution and the Ordinance,
stormwater utility revenue bond anticipation notes of the
Village to be designated "Village of Key Biscayne, Florida,
Stormwater Utility Revenue Bond Anticipation Notes, Series
1995" (the "Notes"), are hereby authorized to be issued in an
aggregate principal amount of $7,200,000 for the purpose of
financing costs of the Project and paying costs of issuance of
the Notes. The Notes shall be payable only from the sources
identified in this Resolution and from proceeds of revenue
bonds in anticipation of which the Notes are being issued
(when, as and if such bonds are issued). The Village intends
to issue stormwater utility revenue bonds at or prior to the
date of maturity of the Notes. The issuance of such bonds in a
principal amount not to exceed the principal amount of the
Notes for the purpose of paying the principal of the Notes is
hereby authorized; however, such authorization shall not
obligate the Village to issue such bonds or to issue bonds in
any specific amount.
SECTION 2. TERMS OF THE NOTES. The Notes shall be issued
in fully registered form without coupons. The principal of and
interest on the Notes 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 Notes ("Owners") or their legal
representatives at the addresses of the Owners as they appear
on the registration books of the Village.
The Notes shall be dated the date of their issuance and
delivery and shall be initially issued as one Note in the
denomination of $7,200,000. The Notes shall mature on April 1,
1997.
Subject to adjustment as provided below, the Notes shall
bear interest on the outstanding principal balance from their
date of issuance payable semi-annually on the first day of each
April and October (the "Interest Payment Dates"), commencing
October 1, 1995, at an interest rate equal to 4.89% per annum.
Interest on the Notes shall be computed on the basis of a
360 -day year consisting of twelve (12) thirty -day months.
Adjustment of Interest Rate for Full Taxability. In the
event a Determination of Taxability shall have occurred, the
rate of interest on the Notes shall be increased to a rate (the
"Taxable Rate") equal to the product obtained by multiplying
the then current rate of interest on the Notes by 1.5,
effective retroactively to the date on which the interest
payable on the Notes is includable for federal income tax
purposes in the gross income of the Owners thereof. A
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"Determination of Taxability" shall mean (i) the issuance by
the Internal Revenue Service of a statutory notice of
deficiency or other written notification which holds in effect
that the interest payable on the Notes is includable for
federal income tax purposes in the gross income of the Owners
thereof, which notice or notification is not disputed by either
the Village or any Owners of the Notes, or (ii) a determination
by a court of competent jurisdiction that the interest payable
on the Notes is includable for federal income tax purposes in
the gross income of the Owners thereof, which determination
either is final and non -appealable or is not appealed within
the requisite time period for appeal, or (iii) the admission in
writing by the Village to the effect that interest on Notes is
includable for federal income tax purposes in the gross income
of the Owners thereof.
Adjustment of Interest Rate for Partial Taxability. In the
event that interest on the Notes during any period becomes
partially taxable because of any change in the tax laws or
regulations, then the interest rate on the Notes shall be
increased during such period by an amount equal to: (A - B) x
C where:
(a) A equals the Taxable Rate (expressed as a
percentage);
(b) B equals the interst rate on the Notes (expressed
as a percentage); and
(c) C equals the fraction of the interest rate on the
Notes which has become taxable as the result of such tax
change (expressed as a decimal).
Adjustment of Interest Rate for Change in Maximum Corporate
Tax Rate. In the event that maximum effective federal
corporate tax rate (the "the Maximum Corporate Tax Rate")
during any period with respect to which interest shall be
accruing on the Notes, shall be other than thirty-five percent
(35%), the interest rate on the Notes shall be adjusted to the
product obtained by multiplying the interest rate then in
effect on the Notes 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.
Adjustment of Interest Rate for Other Changes Affecting
After -Tax Yield. So long as any portion of the principal
amount of the Notes or interest thereon remains unpaid (a) if
any law, rule, regulation or executive order is enacted or
promulgated by any public body or governmental agency which
changes the basis of taxation of interest on the Notes or
causes a reduction in yield on the Notes (other than by reason
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of a change described above) to the Owners or any former
Owners of the Notes, including without limitation the
imposition of any excise tax or surcharge thereon, or (b) if,
as a result of action by any public body or governmental
agency, any payment is required to be made by, or any federal,
state or local income tax deduction is denied to, the Owners or
any former Owners of the Notes (other than by reason of a
change described above or by reason of any action or failure to
act on the part of any Owner or any former Owner of the Notes)
by reason of the ownership of the Notes, the Village shall
reimburse any such Owner within five (5) days after receipt by
the Village of written demand for such payment, and the Village
agrees to indemnify each such Owner against any loss, cost,
charge or expense with respect to any such change.
The principal of the Notes shall be payable in full upon
their maturity date of April 1, 1997.
The Notes are subject to optional prepayment in whole or in
part at any time, at a prepayment price equal to par, plus
accrued interest thereon to the date of prepayment, upon
written notice to the Owners of the Notes given by the Village
at least three (3) days prior to the date fixed for prepayment.
THE NOTES 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, AND FROM THE PROCEEDS OF REVENUE BONDS IN
ANTICIPATION OF WHICH THE NOTES ARE BEING ISSUED (WHEN, AS AND
IF SUCH BONDS ARE ISSUED). THE ISSUANCE OF THE NOTES SHALL NOT
DIRECTLY OR INDIRECTLY OR CONTINGENTLY OBLIGATE THE VILLAGE TO
LEVY OR TO PLEDGE ANY FORM OF TAXATION WHATEVER THEREFOR NOR
SHALL THE NOTES CONSTITUTE A CHARGE, LIEN, OR ENCUMBRANCE,
LEGAL OR EQUITABLE, UPON ANY PROPERTY OF THE VILLAGE, AND THE
HOLDERS OF THE NOTES SHALL HAVE NO RECOURSE TO THE POWER OF
TAXATION.
SECTION 3. EXECUTION OF NOTES. The Notes 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 Notes 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 Notes shall cease to be
such officer of the Village before the Notes so signed and
sealed shall have been actually sold and delivered, such Notes
may nevertheless be sold and delivered as herein provided and
may be issued as if the person who signed and sealed such Notes
had not ceased to hold such office. Any Notes may be signed
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and sealed on behalf of the Village by such person as at the
actual time of the execution of such Notes shall hold the
proper office, although at the date of such Notes 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 Notes and for the registration of
transfers of Notes. Notes 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 Notes 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. Notes may be exchanged for one or
more Notes 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.
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 Notes are transferred or exchanged in
accordance with this Section, the Village shall execute and
deliver Notes in accordance with the provisions of this
Resolution. All Notes 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 Notes,
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 Notes for a
period of 15 days next preceding an Interest Payment Date on
such Notes.
All Notes, the principal and interest of which has been
fully paid, either at or prior to maturity, shall be delivered
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to the Village when such payment is made, and shall thereupon
be cancelled.
In case a portion but not all of an outstanding Note shall
be prepaid, such Note shall not be surrendered in exchange for
a new Note, but the Village shall make a notation indicating
the remaining outstanding principal of the Notes upon the
registration books. The Note 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. NOTES MUTILATED, DESTROYED. STOLEN OR LOST. In
case any Note shall become mutilated or be destroyed, stolen or
lost, the Village may in its discretion issue and deliver a new
Note of like tenor as the Note so mutilated, destroyed, stolen
or lost, in the case of a mutilated Note, in exchange and
substitution for such mutilated Note upon surrender of.such
mutilated Note or in the case of a destroyed, stolen or lost
Note in lieu of and substitution for the Note 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 Notes that are
surrendered. If any mutilated, destroyed, lost or stolen Note
shall have matured or be about to mature, instead of issuing a
substitute Note, the Village may pay the principal of and
interest on such Note upon the Owner complying with the
requirements of this paragraph.
Any such duplicate Notes issued pursuant to this section
shall constitute original, additional contractual obligations
of the Village whether or not the lost, stolen or destroyed
Notes be at any time found by anyone, and such duplicate Notes
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
Notes issued hereunder.
SECTION 6. FORM OF NOTES. The text of the Notes 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.
6
.
No. R -
UNITED STATES OF AMERICA
STATE OF FLORIDA
VILLAGE OF KEY BISCAYNE
STORMWATER UTILITY REVENUE BOND ANTICIPATION NOTE
SERIES 1995
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 to the Registered Owner shown above, or
registered assigns, on April 1, 1997, from the sources
hereinafter mentioned, the Principal Amount specified above.
Subject to the rights of prior prepayment described in this
Note, this Note shall mature on April 1, 1997.
This Note 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 1995 (the "Ordinance") and
Resolution No. duly adopted by the Village Council of the
Village on , 1995 (the "Resolution", and
collectively with the Ordinance, the "Note Ordinance"), and is
subject to the terms of said Note Ordinance. This Note is
issued for the purpose of expanding and improving the
Stormwater Utility System within the Village and paying costs
of issuance of the Notes. This Note shall be payable only from
the sources identified herein and from proceeds of revenue
bonds in anticipation of which this Note is being issued (when,
as and if such bonds are issued). The Village intends to issue
stormwater utility revenue bonds at or prior to the date of
maturity of this Note, and the issuance of such bonds has been
authorized by the Village; such authorization, however, does
not obligate the Village to issue such bonds or to issue bonds
in any specific amount.
Subject to adjustment as provided below, this Note shall
bear interest on the outstanding principal balance from its
date of issuance payable semi-annually on the first day of each
April and October (the "Interest Payment Dates"), commencing
October 1, 1995, at an interest rate equal to 4.89% per annum.
7
Interest on this Note shall be computed on the basis of a
360 -day year consisting of twelve (12) thirty -day months.
Adjustment of Interest Mate for Full Taxability. In the
event a Determination of Taxability shall have occurred, the
rate of interest on the Notes shall be increased to a rate (the
"Taxable Rate") equal to the product obtained by multiplying
the then current rate of interest on the Notes by 1.5,
effective retroactively to the date on which the interest
payable on the Notes is includable for federal income tax
purposes in the gross income of the Owners thereof. A
"Determination of Taxability" shall mean (i) the issuance by
the Internal Revenue Service of a statutory notice of
deficiency or other written notification which holds in effect
that the interest payable on the Notes is includable for
federal income tax purposes in the gross income of the Owners
thereof, which notice or notification is not disputed by either
the Village or any Owners of the Notes, or (ii) a determination
by a court of competent jurisdiction that the interest payable
on the Notes is includable for federal income tax purposes in
the gross income of the Owners thereof, which determination
either is final and non -appealable or is not appealed within
the requisite time period for appeal, or (iii) the admission in
writing by the Village to the effect that interest on the Notes
is includable for federal income tax purposes in the gross
income of the Owners thereof.
Adjustment of Interest Rate for Partial Taxability. In the
event that interest on the Notes during any period becomes
partially taxable because of any change in the tax laws or
regulations, then the interest rate on the Notes shall be
increased during such period by an amount equal to: (A - B) x
C where:
(a) A equals the Taxable Rate (expressed as a
percentage);
(b) B equals the interest rate on the Notes
(expressed as a percentage); and
(c) C equals the fraction of the interest rate on the
Notes which has become taxable as the result of such
tax change (expressed as a decimal).
Adjustment of Interest Rate for Change in Maximum Corporate
Tax Rate. In the event that the maximum effective federal
corpoate tax rate (the "Maximum Corporate Tax Rate") during any
period with respect to which interest shall be accruing on the
Notes, shall be other than thirty-five percent (35%), the
interest rate on the Notes shall be adjusted to the product
obtained by multiplying the interest rate then in effect on the
8
Notes 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.
Adjustment of Interest Rate for Other Changes Affecting
After -Tax Yield. So long as any portion of the principal
amount of the Notes or interest thereon remains unpaid (a) if
any law, rule, regulation or executive order is enacted or
promulgated by any public body or governmental agency which
changes the basis of taxation of interest on the Notes or
causes a reduction in yield on the Notes (other than by reason
of a change described above) to the Owners or any former Owners
of the Notes, including without limitation the imposition of
any excise tax or surcharge thereon, or (b) if, as a result of
action by any public body or governmental agency, any payment
is required to be made by, or any federal, state or local
income tax deduction is denied to, the Owners or any former
Owners of the Notes (other than by reason of a change described
above or by reason of any action or failure to act on the part
of any Owner or any former Owner of the Notes) by reason of the
ownership of the Notes, the Village shall reimburse any such
Owner within five (5) days after receipt by the Village of
written demand for such payment, and the Village agrees to
indemnify each such Owner against any loss, cost, charge or
expense with respect to any such change.
The principal of and interest on this Note 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.
The Village has covenanted and agreed in the Note Ordinance
to appropriate in its annual budget, by amendment, if
necessary, from Non -Ad Valorem Revenues lawfully available in
each fiscal year, amounts sufficient to pay the principal and
interest due on the Notes 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 which are legally
available to make the payments required under the Note
Ordinance, other than Public Service Taxes authorized by Part
III, Chapter 166, Florida Statutes, and received by the Village
pursuant to Section 804 of the Charter of the Village; but only
after provision has been made by the Village for the payment of
all essential or legally mandated services. Such covenant and
agreement on the part of the Village to budget and appropriate
such amounts of Non -Ad Valorem Revenues shall be cumulative to
the extent not paid, and shall continue until such Non -Ad
Valorem Revenues or other legally available funds in amounts
9
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 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 Noteholders a prior claim on the Non -Ad Valorem
Revenues as opposed to claims of general creditors of the
Village. Such covenant to 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 in the Note Ordinance
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 Note Ordinance, subject, however, in all
respects to the terms of the Note 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 NOTE 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, AND FROM THE
PROCEEDS OF REVENUE BONDS IN ANTICIPATION OF WHICH THIS NOTE IS
BEING ISSUED (WHEN, AS AND IF SUCH BONDS ARE ISSUED). THE
ISSUANCE OF THIS NOTE SHALL NOT DIRECTLY OR INDIRECTLY OR
CONTINGENTLY OBLIGATE THE VILLAGE TO LEVY OR TO PLEDGE ANY FORM
OF TAXATION WHATEVER THEREFOR NOR SHALL THIS NOTE CONSTITUTE A
CHARGE, LIEN, OR ENCUMBRANCE, LEGAL OR EQUITABLE, UPON ANY
PROPERTY OF THE VILLAGE, AND THE HOLDER OF THIS NOTE SHALL HAVE
NO RECOURSE TO THE POWER OF TAXATION.
The Notes are subject to optional prepayment in whole or in
part at any time, at a prepayment price equal to par, plus
accrued interest thereon to the date of prepayment, upon
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written notice to the Owners of the Notes given by the Village
at least three (3) days prior to the date fixed for prepayment.
The original registered Owner, and each successive
registered Owner of this Note 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
Notes and for the registration of transfers of Notes as
provided in the Resolution. Notes 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 Notes 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 Notes may be exchanged for
Notes 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 Note 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 Note shall be registered upon the books of the Village
as the absolute Owner of such Note, whether such Note shall be
overdue or not, for the purpose of receiving payment of, or on
account of, the principal of and interest on such Note 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 Note
to the extent of the sum or sums so paid.
3. In all cases in which the privilege of exchanging
Notes or transferring Notes is exercised, the Village shall
execute and deliver Notes in accordance with the provisions of
the Resolution. There shall be no charge for any such exchange
or transfer of Notes, 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 Notes
for a period of 15 days next preceding an interest payment date
on such Notes.
4. All Notes, 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
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be cancelled. In case part, but not all of an outstanding Note
shall be prepaid, such Note shall not be surrendered in
exchange for a new Note.
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 Note 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 Note 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 , 1995.
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
Note and all rights thereunder, and hereby irrevocably
constitutes and appoints
(the "Transferee") as attorney to register
the transfer of the within Note 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 Note 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 Note 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 Note, 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 Act of
JT TEN - as joint tenants
with right of
survivorship and
not as tenants
in common
under Uniform Gifts to Minors
(State)
•
Additional abbreviations may also be used though not in the
list above.
13
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 lawfully available in each fiscal year,
amounts sufficient to pay the principal and interest due on the
Notes 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, other than Public
Service Taxes authorized by Part III, Chapter 166, Florida
Statutes, and received by the Village pursuant to Section 804
of the Charter of the Village; but only after provision has
been made by the Village for the payment of all essential or
legally mandated services. Such covenant and agreement on the
part of the Village to budget and appropriate such amounts of
Non -Ad Valorem Revenues shall be cumulative to the extent not
paid, and shall continue until such Non -Ad Valorem Revenues or
other legally available funds in amounts sufficient to make all
such required payments shall have been budgeted, appropriated
and actually paid. Notwithstanding the foregoing covenant of
the Village, the Village does not covenant to maintain any
services or programs, now provided or maintained by the
Village, which generate Non -Ad Valorem Revenues.
Such covenant to budget and appropriate does not create any
lien upon or pledge of such Non -Ad Valorem Revenues, nor 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 Noteholders a prior claim on the Non -Ad Valorem
Revenues as opposed to claims of general creditors of the
Village. Such covenant to 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
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safety of the inhabitants of the Village or which are legally
mandated by applicable law.
SECTION 8. NOTE FUND. There is hereby created a fund
entitled "Village of Key Biscayne, Florida Stormwater Utility
Revenue Bond Anticipation Notes, Series 1995 Note Fund" (the
"Note Fund").- There shall be deposited into the Note Fund on
each Interest Payment Date sufficient amounts of Non -Ad Valorem
Revenues as specified in Section 7 hereof which, together with
the amounts already on deposit therein, will enable the Village
to pay the principal of and interest on the Notes on each
Interest Payment Date. Moneys in the Note Fund shall be
applied on each Interest Payment Date to the payment of
principal of and interest on the Notes coming due on each such
date.
SECTION 9. INVESTMENT OF NOTE FUND. Subject to Section 12
hereof, funds in the Note 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 Notes, 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
Association, including Federal National
Association participation certificates and
pass -through certificates guaranteed by the
National Mortgage Association;
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Mortgage
Mortgage
mortgage
Federal
(f) Securities of, or other interests in, any
open-end or closed -end management type investment company
or investment trust registered under the Investment Company
Act of 1940, 15 U.S.C. ss. 80a-1 et seq., as amended from
time to time, provided the portfolio of such investment
company or investment trust is limited to United States
Government obligations and to repurchase agreements fully
collateralized by such United States Government obligations
and provided such investment company or investment trust
takes delivery of such collateral either directly or
through an authorized custodian; or
(g) Any other investments that at the time are legal
investments for municipal funds.
SECTION 10. APPLICATION OF NOTE PROCEEDS. The proceeds
received upon the sale of the Notes shall be applied
simultaneously with the delivery of the Notes, as follows:
1. The Village shall first use the moneys to pay costs of
issuance of the Notes.
2. The remainder of the proceeds of the sale of the Notes
shall be deposited in the "Village of Key Biscayne, Stormwater
Utility Revenue Bond Anticipation Notes, Series 1995 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 Note 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 Note
Fund and used to pay interest on the Notes until completion of
the Project. Subject to Section 12 hereof, after the
completion of the Project, any remaining balance of proceeds of
the Notes shall be deposited into the Note Fund and used solely
to pay principal of the Notes.
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. Pending such application, the
Project Fund shall be subject to the lien of the Owners of the
Notes for the payment of the principal of and interest on the
Notes.
The registered Owners shall have no responsibility for the
use of the proceeds of the Notes, and the use of such Note
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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 Notes 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 Notes notwithstanding any failure of the Village to use and
apply such Note 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
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 Section 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 Note 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 Notes 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 Notes, and shall refrain from taking any
actions that would cause interest on the Notes 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 Notes which
would cause such Notes 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 Notes.
SECTION 13. DESIGNATION UNDER SECTION 265(b)(3) OF THE
CODE. The Village hereby designates the Notes 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
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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 1995 and neither the Village
nor any such entities expect to issue tax-exempt obligations
during calendar year 1995, other than the Notes.
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 Stormwater Utility
Revenue Bond Anticipation Notes, Series 1995, 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 Notes (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 Notes 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
Notes and/or (ii) compliance with some other requirement is
necessary to maintain the federal income tax exemption of
interest on the Notes.
SECTION 15. SPECIAL COVENANTS. The Village shall, within
one hundred eighty (180) days of the end of each fiscal year of
the Village, deliver to the Noteholders a copy of the annual
audited financial statements 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
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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
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 Notes shall be liable personally on the
Notes 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 Notes
shall not be made when the same shall become due and
payable; or
(b) payment of any installment of interest on any of
the Notes 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 Notes 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 Note; 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
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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 NOTEHOLDERS. Upon the
occurrence and continuance of any event of default specified in
Section 17 hereof, the Owners of the Notes may pursue any
available remedy by suit, at law or in equity to enforce the
payment of the principal of and interest on the Notes 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
Notes.
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 Notes
in any one or more of the following ways:
(a) by paying the principal of, redemption premium,
if any, and interest on the Notes 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 Notes, 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
Notes 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 Notes, which
together with other moneys lawfully available therefor,
when invested by the escrow agent in direct obligations of
20
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
Notes 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
Notes 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 Notes 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 Notes 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 Notes 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 Notes 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 Notes 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 Notes.
(d) Notwithstanding the foregoing all references to
the discharge and satisfaction of Notes shall include the
discharge and satisfaction of any portion of the Notes.
(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 Notes 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 Notes or otherwise
existing under this Resolution.
(f) Notwithstanding any of the foregoing, the
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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 Notes or any portion thereof.
SECTION 20. REIMBURSEMENT OF EXPENSES. Pursuant to
Section 1.150-2 of the Federal Income Tax Regulations, the
Village hereby declares its intent to use proceeds of the Notes
to reimburse expenditures paid prior to the issuance of the
Notes. The purpose of the Notes is stated in Section 1 of this
Resolution. The maximum principal amount of the Notes to be
issued is $7,200,000. This declaration pursuant to Section
1.150-2 is supplemental to the declaration made by the Village
pursuant to Resolution No. 93-6 adopted by the Village Council
on February 23, 1993.
SECTION 21. SALE OF NOTES. Based upon the need for
immediate financing in order to begin construction of the
Project within the period specified in the construction bid
documents for the Project and the uncertainty of the interest
rate environment if sale of the Notes is delayed, the Village
hereby determines the necessity for a negotiated sale of the
Notes. The Village has been provided all applicable disclosure
information required by Section 218.385, Florida Statutes. The
negotiated sale of the Notes 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 Notes 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 Notes, but this Resolution and the
Notes shall be construed and enforced as if such illegal or
invalid provision had not been contained therein. The Notes
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 Notes 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
22
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 Notes 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.
SECTION 26. EFFECTIVE DATE. This Resolution shall take
effect immediately upon its passage and adoption.
PASSED AND ADOPTED this llth day of April, 1995.
ATTEST:
GUIDO H. INGTJANZO, JR.,
VILLAGE CLERK
APPROVED AS TO LEGAL FORM AND SUFFICIENCY.
RICHARD J. WEISS,
VILLAGE ATTORNEY
M/1007JDD/041395
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