HomeMy Public PortalAbout1999-71 Authorizng the issuance of land acquisition and capital improvement revenue bonds, series 1999 Nations BankRESOLUTION NO. 99-71
A RESOLUTION OF THE VILLAGE OF KEY BISCAYNE,
FLORIDA, AUTHORIZING THE ISSUANCE OF LAND
ACQUISITION AND CAPITAL IMPROVEMENT REVENUE
BONDS, SERIES 1999, OF THE VILLAGE OF KEY
BISCAYNE, FLORIDA, IN THE AGGREGATE PRINCIPAL
AMOUNT OF $10,000,000 FOR THE PURPOSE OF
PURCHASING LAND TO BE USED FOR VILLAGE
PURPOSES, FINANCING COSTS INCIDENT TO THE
PURCHASE OF SUCH LAND, SUCH AS SURVEY AND
LEGAL FEES, FINANCING OR REIMBURSING A PORTION
OF THE COSTS OF CONSTRUCTION OF A FIRE STATION,
POLICE STATION, COMMUNITY CENTER AND VILLAGE
ADMINISTRATIVE OFFICES, FINANCING OR
REIIVIBU ING ARCHITECTURAL, ENGINEERING,
ENVIRONMENTAL AND OTHER PLANNING COSTS
RELATED THERETO, AND PAYING COSTS OF ISSUANCE
OF THE BONDS; AWARDING THE SALE OF THE BONDS
TO BANK OF AMERICA, N.A., DB/A NATIONSBANK, N.A.;
PROVIDING FOR SECURITY FOR THE BONDS;
PROVIDING OTHER PROVISIONS RELATING TO THE
BONDS; MAKING CERTAIN COVENANTS AND
AGREEMENTS IN CONNECTION THEREWITH; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, on June 22, 1999, the Village Council (the "Council") of the Village of Key
Biscayne, Florida (the "Village") adopted Ordinance No. 99-6 (the "Ordinance") authorizing the
issuance of not exceeding $10,000,000 Village of Key Biscayne, Florida Land Acquisition and
Capital Improvement Revenue Bonds, Series 1999 (the "Bonds"), for the purpose of purchasing land
to be used for Village purposes, financing costs incident to the purchase of such land, such as survey
and legal fees, financing or reimbursing a portion of the costs of construction of a fire station, police
station, community center and Village administrative offices, financing architectural, engineering,
environmental and other planning costs related thereto, and paying costs of issuance of the Bonds
(the "Project"); and
WHEREAS, pursuant to the Ordinance, the Village has solicited proposals for the financing
of the Project; and
WHEREAS, the Council hereby determines to accept a commitment (the"Commitment")
from Bank of America, N.A., d/b/a NationsBank, N.A. (the "Bank") to purchase the Bonds; and
WHEREAS, the Council desires to set forth the details of the Bonds in this Bond Resolution;
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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 the Bond Resolution and
the Ordinance, land acquisition and capital improvement revenue bonds of the Village to be
designated "Village of Key Biscayne, Florida, Land Acquisition and Capital Improvement Revenue
Bonds, Series 1999" (the "Bonds"), are hereby authorized to be issued in an aggregate principal
amount of $10,000,000 for the purpose of purchasing land to be used for Village purposes, financing
costs incident to the purchase of such land, such as survey and legal fees, financing or reimbursing
a portion of the costs of construction of a fire station, police station, community center and Village
administrative offices, financing or reimbursing architectural, engineering, environmental and other
planning costs related thereto, 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 $10,000,000. The Bonds shall mature on December 1, 2019.
Subject to adjustment as provided below, the Bonds shall bear interest on the outstanding
principal balance from their date of issuance payable semiannually on the first day of each June and
December (the "Interest Payment Dates"), commencing December 1, 1999, at an interest rate equal
to 4.715% per annum.
Interest on the Bonds shall be computed on the basis of a 360 -day year based on twelve 30 -
day months.
Adjustment of Interest Rate Upon Determination of Taxability. In the event a Determination
of Taxability shall have occurred, the rate of interest on the Bonds shall be adjusted to a rate equal
to a fraction, (i) the numerator of which is equal to the interest rate otherwise borne by the Bonds,
and (ii) the denominator of which is equal to one (1) minus the Maximum Corporate Tax Rate in
effect as of the date of such Determination of Taxability (the "Adjusted Interest Rate"), as of and
from the date such determination would be applicable with respect to the Bonds (the "Accrual
Date"). The Village shall on the next interest payment date pay to the Owners of the Bonds or any
former Owners of the Bonds as may be appropriately allocated, an amount equal to the sum of (1)
the difference between (A) the total interest that would have accrued on the Bonds at the Adjusted
Interest Rate from the Accrual Date to the date of the Determination of Taxability, and (B) the actual
interest paid by the Village on the Bonds from the Accrual Date to the date of the Determination of
Taxability, and (2) any interest and penalties required to be paid as a result of any additional State
of Florida and federal income taxes imposed upon such Owner arising as a result of such
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Determination of Taxability. From and after the Determination of Taxability, the Bonds shall
continue to bear interest at the Adjusted Interest Rate for the period such determination continues
to be applicable with respect to the Bonds. This adjustment shall survive payment of the Bonds until
such time as the federal statute of limitations under which the interest on the Bonds could be
declared taxable under the Code shall have expired. 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 Bonds 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 Bonds, or (ii) a determination by a court of
competent jurisdiction that the interest payable on the.Bonds 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 Bonds is includable for federal income tax
purposes in the gross income of the Owners thereof.
Adjustment of Interest Rate for Change in Maximum Corporate Tax Rate. In the event that
the Maximum Corporate Tax Rate decreases or increases from thirty-five percent (35%), the interest
rate otherwise borne by the Bonds shall be adjusted to the product obtained by multiplying the
interest rate otherwise borne by the Bonds by a fraction, (i) the numerator of which is equal to one
(1) minus the Maximum Corporate Tax Rate in effect as of the date of adjustment, and (ii) the
denominator of which is equal to 0.65. The interest rate otherwise borne by the Bonds shall be
adjusted automatically as of the effective date of each change in the Maximum Corporate Tax Rate.
As used herein:
(1) "Code" means the Internal Revenue Code of 1986, as amended, and any
Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable
thereto; and
(2) "Maximum Corporate Tax Rate" means, as of any date of determination, the
highest marginal tax rate (expressed as a decimal) applicable to the taxable income of corporations
(as currently set forth in Section 11 of the Code) without regard to any increase in tax designated to
normalize the rate for all income at the highest marginal tax rate or to phase out the benefit of
graduated tax rates and impose a flat -tax at a specified rate (for example, the tax imposed by the last
two sentences of Section 11(b)(1) of the Code as in effect on the original issue date of the Bonds),
which rate on the original issue date of the Bonds is 35.
The principal of the Bonds shall be payable in eighteen (18) annual installments on each
December 1, commencing December 1, 2002 (each a "Scheduled Due Date"). The amount of each
such installment shall be as follows:
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Principal
Year Installment Due
2002 $355,000
2003 375,000
2004 390,000
2005 410,000
2006 430,000
2007 455,000
2008 475,000
2009 500,000
2010 525,000
2011 550,000
2012 580,000
2013 610,000
2014 640,000
2015 670,000
2016 705,000
2017 740,000
2018 775,000
2019 815,000
The Bonds are subject to prepayment in whole or in part at any time on at a price of par plus
accrued interest to the date of prepayment, plus a premium equal to the "Prepayment Fee" described
in Exhibit "A" attached hereto, upon written notice to the Owners thereof given by the Village at
least three (3) days prior to the date fixed for prepayment. Partial prepayments shall be applied to
the maturities of principal installments in any order determined by the Village. The final prepayment
provisions are subject to such changes to J3xhibit "A" as the Village Manager, upon consultation with
the Village Attorney, the Village's Financial Advisor and the Village's Bond Counsel, shall approve,
with the execution of the Bonds by the appropriate officers of the Village with such final prepayment
provision set forth therein being conclusive evidence of the approval by the Village Manger.
THE BONDS SHALL NOT BE DEEMED TO CONSTITUTE AN INDEBTEDNESS OF
THE VILLAGE OR A PLEDGE OF THE FAITH AND CREDIT OF THE VILLAGE, BUT SHALL
BE PAYABLE EXCLUSIVELY FROM LEGALLY AVAILABLE NON -AD VALOREM
REVENUES OF THE VILLAGE, BOTH AS DEFINED IN THIS RESOLUTION. THE ISSUANCE
OF THE BONDS SHALL NOT DIRECTLY OR INDIRECTLY OR CONTINGENTLY
OBLIGATE THE VILLAGE TO LEVY OR TO PLEDGE ANY FORM OF 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.
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Section 3. Execution of bonds. The Bonds shall be signed in the name of the Village by
the Mayor or Vice Mayor (or, in their absence, any other member of the Village Council) and the
Village Clerk, and its seal shall be affixed thereto or imprinted or reproduced thereon. The signatures
of the Mayor or Vice Mayor (or, in their absence, any other member of the Village Council) and
Village Clerk on the Bonds may be manual or facsimile signatures, provided that the signature of
one of such officers shall be a manual signature. In case any one or more of the officers who shall
have signed or sealed any of the Bonds shall cease to be such officer of the Village before the Bonds
so signed and sealed shall have been actually sold and delivered, such Bonds may nevertheless be
sold and delivered as herein provided and may be issued as if the person who signed and sealed such
Bonds had not ceased to hold such office. Any Bonds may be signed and sealed on behalf of the
Village by such person as at the actual time of the execution of such Bonds shall hold the proper
office, although at the date of such Bonds such person may not have held such office or may not have
been so authorized.
Section 4. Negotiability, registration and cancellation. The Village shall serve as
Registrar and as such shall keep books for the registration of Bonds and for the registration of
transfers of Bonds. Bonds may be transferred or exchanged upon the registration books kept by the
Village, upon delivery to the Village, together with written instructions as to the details of the
transfer or exchange, of such Bonds in form satisfactory to the Village and with guaranty of
signatures satisfactory to the Village, along with the social security number or federal employer
identification number of any transferee and, if the transferee is a trust, the name and social security
or federal tax identification numbers of the settlor and beneficiaries of the trust, the date of the trust
and the name of the trustee. Bonds may be exchanged for one or more Bonds of the same aggregate
principal amount and maturity and in denominations in integral multiples of $250,000 (except that
an odd lot is permitted to complete the outstanding principal balance). No transfer or exchange of
any Bond shall be effective until entered on the registration books maintained by the Village.
The Village may deem and treat the person in whose name any Bond shall be registered upon
the books kept by the Village as the absolute Owner of such Bond, whether such Bond shall be
overdue or not, for the purpose of receiving payment of, or on account of, the principal of and
interest on such Bond as they become due and for all other purposes. All such payments so made to
any such Owner or upon his order shall be valid and effectual to satisfy and discharge the liability
upon such Bond to the extent of the sum or sums so paid.
In all cases in which Bonds are transferred or exchanged in accordance with this Section, the
Village shall execute and deliver Bonds in accordance with the provisions of this Resolution. All
Bonds surrendered in any such exchanges or transfers shall forthwith be cancelled by the Village.
There shall be no charge for any such exchange or transfer of Bonds, but the Village may require the
payment of a sum sufficient to pay any 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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All Bonds, the principal and interest of which has been fully paid, either at or prior to
maturity, shall be delivered to the Village when such payment is made, and shall thereupon be
cancelled.
In case a portion but not all of an outstanding Bond shall be prepaid, such Bond shall not be
surrendered in exchange for a new Bond, but the Village shall make a notation indicating the
remaining outstanding principal of the Bonds upon the registration books. The Bond so redesignated
shall have the remaining principal as provided on such registration books and shall be deemed to
have been issued in the denomination of the outstanding principal balance, which shall be an
authorized denomination.
Section 5. Bonds mutilated, destroyed, stolen or lost. In case any Bond shall become
mutilated or be destroyed, stolen or lost, the Village may in its discretion issue and deliver a new
Bond of like tenor as the Bond so mutilated, destroyed, stolen or lost, in the case of a mutilated
Bond, in exchange and substitution for such mutilated Bond upon surrender of such mutilated Bond
or in the case of a destroyed, stolen or lost Bond in lieu of and substitution for the Bond destroyed,
stolen or lost, upon the Owner furnishing the Village proof of his ownership thereof, satisfactory
proof of loss or destruction thereof and satisfactory indemnity, complying with such other reasonable
regulations and conditions as the Village may prescribe and paying such expenses as the Village may
incur. The Village shall cancel all mutilated Bonds that are surrendered. If any mutilated, destroyed,
lost or stolen Bond shall have matured or be about to mature, instead of issuing a substitute Bond,
the Village may pay the principal of and interest on such Bond upon the Owner complying with the
requirements of this paragraph.
Any such duplicate Bonds issued pursuant to this section shall constitute original, additional
contractual obligations of the Village whether or not the lost, stolen or destroyed Bonds be at any
time found by anyone, and such duplicate Bonds shall be entitled to equal and proportionate benefits
and rights as to lien on and source and security for payment from the funds, as hereinafter pledged,
to the extent as all other Bonds issued hereunder.
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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No. R- $
UNITED STATES OF AMERICA
STATE OF FLORIDA
VILLAGE OF KEY BISCAYNE
LAND ACQUISITION AND CAPITAL IMPROVEMENT REVENUE BONDS
SERIES 1999
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 (the "Bank"), from the sources hereinafter mentioned, the Principal Amount
specified above. Subject to the rights of prior prepayment described in the Bond, the Bond shall
mature on December 1, 2019.
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. 99-6 duly adopted by the Village Council of the Village
on June 22, 1999 (the "Ordinance") and Resolution No. 99- adopted on July 23, 1999 (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 purchasing land to be used for
Village purposes, financing costs incident to the purchase of such land, such as survey and legal fees,
financing or reimbursing a portion of the costs of construction of a fire station, police station,
community center and Village administrative offices, financing or reimbursing architectural,
engineering, environmental and other planning costs related thereto, and paying costs of issuance of
the Bonds. This Bond shall be payable only from the sources identified herein.
Subject to adjustment as provided below, this Bond shall bear interest on the outstanding
principal balance from its date of issuance payable semiannually on the first day of each June and
December (the "Interest Payment Dates"), commencing December 1, 1999, at an interest rate equal
to 4.715% per annum.
Interest on this Bond shall be computed on the basis of a 360 -day year based on twelve 30 -
day months.
Adjustment of Interest Rate Upon Determination of Taxability. In the event a Determination
of Taxability shall have occurred, the rate of interest on the Bonds shall be adjusted to a rate equal
JDC/B.MISC/233859-2/13524.003
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to a fraction, (i) the numerator of which is equal to the interest rate otherwise borne by the Bonds,
and (ii) the denominator of which is equal to one (1) minus the Maximum Corporate Tax Rate in
effect as of the date of such Determination of Taxability (the "Adjusted Interest Rate"), as of and
from the date such determination would be applicable with respect to the Bonds (the "Accrual
Date"). The Village shall on the next interest payment date pay to the Owners of the Bonds or any
former Owners of the Bonds as may be appropriately allocated, an amount equal to the sum of (1)
the difference between (A) the total interest that would have accrued on the Bonds at the Adjusted
Interest Rate from the Accrual Date to the date of the Determination of Taxability, and (B) the actual
interest paid by the Village on the Bonds from the Accrual Date to the date of the Determination of
Taxability, and (2) any interest and penalties required to be paid as a result of any additional State
of Florida and federal income taxes imposed upon such Owner arising as a result of such
Determination of Taxability. From and after the Determination of Taxability, the Bonds shall
continue to bear interest at the Adjusted Interest Rate for the period such determination continues
to be applicable with respect to the Bonds. This adjustment shall survive payment of the Bonds until
such time as the federal statute of limitations under which the interest on the Bonds could be
declared taxable under the Code shall have expired. 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 Bonds 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 Bonds, or (ii) a determination by a court of
competent jurisdiction that the interest payable on the Bonds 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 Bonds is includable for federal income tax
purposes in the gross income of the Owners thereof.
Adjustment of Interest Rate for Change in Maximum Corporate Tax Rate. In the event that
the Maximum Corporate Tax Rate decreases or increases from thirty-five percent (35%), the interest
rate otherwise borne by the Bonds shall be adjusted to the product obtained by multiplying the
interest rate otherwise borne by the Bonds by a fraction, (i) the numerator of which is equal to one
(1) minus the Maximum Corporate Tax Rate in effect as of the date of adjustment, and (ii) the
denominator of which is equal to 0.65. The interest rate otherwise borne by the Bonds shall be
adjusted automatically as of the effective date of each change in the Maximum Corporate Tax Rate.
As used herein:
(1) "Code" means the Internal Revenue Code of 1986, as amended, and any
Treasury Regulations, whether temporary, proposed or final, promulgated thereunder or applicable
thereto; and
(2) "Maximum Corporate Tax Rate" means, as of any date of determination, the
highest marginal tax rate (expressed as a decimal) applicable to the taxable income of corporations
(as currently set forth in Section 11 of the Code) without regard to any increase in tax designated to
JDC/B.MISC/233859-2/13524.003
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normalize the rate for all income at the highest marginal tax rate or to phase out the benefit of
graduated tax rates and impose a flat -tax at a specified rate (for example, the tax imposed by the last
two sentences of Section 11(b)(1) of the Code as in effect on the original issue date of the Bonds),
which rate on the original issue date of the Bonds is 35.
The principal of this Bond shall be payable in eighteen (18) annual installments on each
December 1, commencing December 1, 2002 (each a "Scheduled Due Date"). The amount of each
such installment shall be as follows:
Principal
Year Installment Due
2002 $355,000
2003 375,000
2004 390,000
2005 410,000
2006 430,000
2007 455,000
2008 475,000
2009 500,000
2010 525,000
2011 550,000
2012 580,000
2013 610,000
2014 640,000
2015 670,000
2016 705,000
2017 740,000
2018 775,000
2019 815,000
Attached hereto as Schedule I is a debt service schedule for the Bonds based upon the above
interest rate and principal payment schedule.
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 subject to prepayment in whole or in part at any time at a price of par plus
accrued interest to the date of prepayment, plus a premium equal to the "Prepayment Fee" described
below, upon written notice to the Owners thereof given by the Village at least three (3) days prior
to the date fixed for prepayment. Partial prepayments shall be applied to the maturities of principal
installments in any order determined by the Village.
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[Insert Final Prepayment Provisions]
The Village has covenanted and agreed in the Bond Ordinance to appropriate in its annual
budget, by amendment, if necessary, from Non -Ad Valorem Revenues lawfully available in each
fiscal year, amounts sufficient to pay the principal and interest due on the Bonds in accordance with
their terms during such fiscal year. "Non -Ad Valorem Revenues" means all revenues of the Village
derived from any source other than ad valorem taxation on real or personal property which are
legally available to make the payments required under the Bond Ordinance, other than (i) Public
Service Taxes authorized by Part III, Chapter 166, Florida Statutes, and received by the Village
pursuant to Section 25-50 et seq. of the Village Code and (ii) Stormwater Utility Fees as defined by
Section 403.0893(3), Florida Statutes, and imposed pursuant to Ordinance No. 93-11 adopted by the
Village Council on June 22, 1993 (as amended by Ordinance No. 93-11-A); 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 Bondholders 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 Bond
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 Bond Ordinance, subject, however,
in all respects to the terms of the Bond Ordinance and the restrictions of Section 166.241(3), Florida
Statutes, which provides, in part, that the governing body of each municipality make appropriations
for each fiscal year which, in any one year, shall not exceed the amount to be received from taxation
or other revenue sources; and subject, further, to the payment of services and programs which are
for essential public purposes affecting the health, welfare and safety of the inhabitants of the Village
or which are legally mandated by applicable law.
THIS BOND SHALL NOT BE DEEMED TO CONSTITUTE AN INDEBTEDNESS OF
THE VILLAGE OR A PLEDGE OF THE FAITH AND CREDIT OF THE VILLAGE, BUT SHALL
BE PAYABLE EXCLUSIVELY FROM LEGALLY AVAILABLE NON -AD VALOREM
REVENUES OF THE VILLAGE. THE ISSUANCE OF THIS BOND SHALL NOT DIRECTLY
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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 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 (except that an
odd lot is permitted to complete the outstanding principal balance). No transfer or exchange of any
Bond shall be effective until entered on the registration books maintained by the Village.
2. The Village may deem and treat the person in whose name any Bond shall be
registered upon the books of the Village as the absolute Owner of such Bond, whether such Bond
shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of
and interest on such Bond as they become due, and for all other purposes. All such payments so
made to any such Owner or upon his order shall be valid and effectual to satisfy and discharge the
liability upon such Bond to the extent of the sum or sums so paid.
3. In all cases in which the privilege of exchanging Bonds or transferring Bonds is
exercised, the Village shall execute and deliver Bonds in accordance with the provisions of the
Resolution. There shall be no charge for any such exchange or transfer of Bonds, but the Village may
require payment of a sum sufficient to pay any tax, fee or other governmental charge required to be
paid with respect to such exchange or transfer. The Village shall not be required to transfer or
exchange Bonds for a period of fifteen (15) days next preceding an interest payment date on such
Bonds.
4. All Bonds, the principal 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
JDC/B.MISC/233859-2/13524.003
11
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 , 1999.
VILLAGE OF KEY BISCAYNE, FLORIDA
Mayor
Village Clerk
(SEAL)
JDC/B.MISC/233859-2/13524.003
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned (the
"Transferor"), hereby sells, assigns and transfers unto (Please
insert name and Social Security or Federal Employer identification number of assignee) the within
Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
(the "Transferee") as attorney to register the transfer of the within
Bond on the books kept for registration thereof, with full power of substitution in the premises.
Date
Social Security Number of Assignee
Signature Guaranteed:
NOTICE: Signature(s) must be
guaranteed by a member firm of
the New York Stock Exchange or
a commercial bank or a trust company
NOTICE: No transfer will be registered and no new Bond will be issued in the name of the
Transferee, unless the signature(s) to this assignment corresponds with the name as it appears upon
the face of the within Bond in every particular, without alteration or enlargement or any change
whatever and the Social Security or Federal Employer Identification Number of the Transferee is
supplied.
The following abbreviations, when used in the inscription on the face of the within Bond,
shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIF MIN ACT -
(Cust.)
Custodian for
(Minor)
TEN ENT - as tenants by under Uniform Gifts to Minors
the entirety Act of
(State)
IT TEN - as joint tenants with
right of survivorship and
not as tenants in common
Additional abbreviations may also be used though not in the list above.
[Attach Schedule I - Debt Service Schedule]
JDC/B.MISC/233859-2/13524.003 • 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
Bonds in accordance with their terms during such fiscal year. "Non -Ad Valorem Revenues" means
all revenues of the Village derived from any source other than ad valorem taxation on real or
personal property and which are legally available to make the payments required under this
Resolution, other than (i) Public Service Taxes authorized by Part III, Chapter 166, Florida Statutes,
and received by the Village pursuant to Section 25-50 et seq. of the Village Code and (ii) Stormwater
Utility Fees as defined by Section 403.0893(3), Florida Statutes, and imposed pursuant to Ordinance
No. 93-11 adopted by the Village Council on June 22, 1993 (as amended by Ordinance No. 93-11-
A); 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 Bondholders 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 safety of the inhabitants of the Village or
which are legally mandated by applicable law.
Section 8. fond fund. There is hereby created a fund entitled "Village of Key Biscayne,
Florida Land Acquisition and Capital Improvement Revenue Bonds, Series 1999 Bond Fund" (the
"Bond Fund"). There shall be deposited into the Bond 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
JDC/B.MISC/233859-2/13524.003
14
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 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
funds.
(g) Any other investments that at the time are legal investments for municipal
JDC/B.MISC/233859-2/13524.003
15
Section 10. Application of bond proceeds. The proceeds received upon the sale of the
Bonds shall be applied simultaneously with the delivery of the Bond 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 and Capital Improvement
Revenue Bonds, Series 1999 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. Pending such application, the Project Fund shall be subject to the lien of
the Owners of the Bonds for the payment of the principal of and interest on the Bonds.
The registered Owners shall have no responsibility for the use of the proceeds of the Bonds,
and the use of such Bond proceeds by the Village shall in no way affect the rights of such registered
Owners. The Village shall be obligated to apply the proceeds of the Bonds solely 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 purposes provided herein for such funds and accounts respectively. The
money in such funds and accounts shall be continuously secured in the same manner as deposits of
Village funds are authorized to be secured by the laws of the State of Florida. Except as otherwise
provided herein, earnings on any investments in any amounts on any of the funds and accounts
herein established and created shall be credited to such respective fund or account.
The designation and establishment of the funds and accounts in and by this 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.
JDC/B.MISC/233859-2/13524.003
16
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 Sections 141 and 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)(B) 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 1999 and neither the Village nor any such entities expect to issue
tax-exempt obligations during calendar year 1999, other than the Bonds and the Village's $7,200,000
Stormwater Utility Revenue Bonds, Series 1999, which were treated as qualified tax-exempt
obligations under Section 265(b)(3)(D)(ii) of the Code.
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 and Capital
Improvement Revenue Bonds, Series 1999 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 15 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.
JDC/B.MISC/233859-2/13521.003
17
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 Bondholders 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 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
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
JDC/B.MISC/233859-2/13524.003
18
(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 bond holders. Upon the occurrence and continuance of
any event of default specified in 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, Prepayment Fee, 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 Bonds on or prior to the redemption date or maturity date
thereof.
JDC/B.MISC/233859-2/13521.003
19
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 covenants of the Village hereunder 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 with 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 of 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 Section 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.
Section 20. Sale of bonds. Based upon the uncertainty of the interest rate environment if
sale of the Bonds is delayed, the Village hereby determines the necessity for a negotiated sale of the
Bonds. The Village has been provided all applicable disclosure information required by Section
218.385, Florida Statutes. The negotiated sale of the Bonds is hereby approved to the Bank at a
purchase price of par.
Section 21. Authority of Officers. The Mayor, the Vice Mayor, any member of the
Council, the Village Manager, the Village Clerk, the Finance Director and any other proper official
of the Village, are and each of them is hereby authorized and directed to execute and deliver any and
all documents and instruments and to do and cause to be done any and all acts and things necessary
or proper for carrying out the transaction contemplated by this Resolution and the other documents
identified herein.
JDC/B.MISC/233859-2/13524.003
20
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. Ratification of Village Manager's actions. The Village Council hereby ratifies
the actions of the Village Manager in locking in the interest rate on the Bonds on July 21, 1999, as
evidenced by the Village Manager's letter attached hereto as Exhibit "B".
Section 25. 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 26. Repealing clause. All resolutions or orders and parts thereof in conflict
herewith, to the extent of such conflicts, are hereby superseded and repealed.
Section 27. Effective Date. This Resolution shall take effect immediately upon its passage
and adoption.
JDC/B.MISC/233859-2/13524.003
21
PASSED AND ADOPTED this 23rd day of July, 1999.
JOE I. RASCO, MAYOR
CONCHITA H. ALVAREZ, VILLAGE CLERK
APPROVED AS TO LEGAL FORM AND SUFFICIENCY:
22
EXHIBIT "A"
The Bonds are subject to prepayment in whole or in part at any time on at a price of par plus
accrued interest to the date of prepayment, plus a premium equal to the "Prepayment Fee" described
below, upon written notice to the Owners thereof given by the Village at least three (3) days prior
to the date fixed for prepayment. Partial prepayments shall be applied to the maturities of principal
installments in any order determined by the Village.
For each date on which a prepayment occurs ("Prepayment Date"), a Prepayment Fee shall
be due only if the rate under "A" below exceeds the rate under "B" below and shall be determined
as follows:
Prepayment Fee = the Present Value of ((A -B) x C) + LIBOR Breakage, where:
A = A rate per annum equal to the sum of (1) the bond equivalent yield (bid side)
of the U.S. Treasury security with a maturity closest to the Scheduled Due
Date(s) to be prepaid as reported by the Wall Street Journal (or other
published source) on July 22, 1999 ("Lock In Date"), plus (ii) the
corresponding swap spread of the Bank on the Lock In Date for a fixed rate
payor to pay the Bank the fixed rate side of an interest rate swap of that
maturity, plus (iii) .25%.
B = A rate per annum equal to the sum of (i) the bond equivalent yield (bid side)
of the U.S. Treasury security with a maturity closest to the Scheduled Due
Date(s) to be prepaid as reported by the Wall Street Journal (or other
published source) on the Prepayment Date, plus (ii) the corresponding swap
spread that the Bank determines another swap dealer would quote to the Bank
on the Prepayment Date for paying to the Bank the fixed rate side of an
interest rate swap of that maturity.
C = The sum of the products of (i) each Affected Principal Amount for each
Affected Principal Period, times (ii) the number of days in that Affected
Principal Period divided by 360.
"Affected Principal Amount" for an Affected Principal Period is the principal amount
of the Bonds so prepaid.
"Affected Principal Period" is each period from and including a Scheduled Due Date
to but excluding the next Scheduled Due Date, provided that the first such period
shall begin on and includes the Prepayment Date.
"LIBOR Breakage" is any additional loss, cost or expense that the Bank may incur
with respect to any hedge for the fixed rate of the Bond based on the difference
A-1
between the London interbank offered rate (for U.S. dollar deposits of the relevant
maturity) available in the London interbank market at the beginning of the interest
period in which the Prepayment Date occurs and that which is available in that
market on the Prepayment Date.
"Present Value" is determined as of the Prepayment Date using "B" above as the
discount rate.
Prepayment Fees are payable as liquidated damages, are a reasonable pre -estimate of the
losses, costs and expenses the Bank would incur for any prepayment, are not a penalty, will not
require claim for, or proof of, actual damages, and the Bank's determination thereof shall be
conclusive and binding in the absence of manifest error.
, A-2
EXHIBIT ((t.3"
July 21, 1999
Ms. Jean Bell
Bank of America, NA., d/b/a NationsBa k, N.A.
100 S.L. 2nd Street, 15th Floor
Miami, Florida 33131
Re; 510,000,000 Village of Key Biscayne, Florida Land Acquisition
and Capital Improvement Revenue Bonds, Series 1999
Dear Jean:
This will confirm that as of today you have agreed to lock in the interest rate on the above -
captioned bonds (the"Bonds"). The Village hereby agrees that if the Bond issue does not close on
or prior to August 16, 1999, the Village will pay the Bank a Prepayment Foo determined in
accordance with attached Exhibit "A,".
Village of Key Biscayne, Florida
By:
Date: July 21, 1999
lnc/a.►t=ac/3u612e/33524.DO)
C. Samuel Kissinger, V go Manager
•
•
EXHIBIT "A"
The principal of the Bonds shall be payable in eighteen (18) annual installments on each
December 1, commencing December 1, 2002 (each a "Scheduled Due Date"). The amount of each
such installment shall be as follows:
Principal
Year Installment Due
2002 $355,000
2003 375,000
2004 390,000
2005 410,000
2006 430,000
2007 455,000
2008 475,000
2009 500,000
2010 525,000
2011 550,000
2012 580,000
2013 610,000
2014 640,000
2015 670,000
2016 705,000
2017 740,000
2018 775,000
2019 815,000
The Bonds are subject to prepayment in whole or in part at any time on at a price of par plus
accrued interest to the date of prepayment, plus a premium equal to the "Prepayment Fee" described
below, upon written notice to the Owners thereof given by the Village at least three (3) days prior
to the date fixed for prepayment. Partial prepayments shall be applied in inverse order of the maturity
of principal installments.
For each date on which a prepayment occurs ("Prepayment Date"), a Prepayment Fee shall
be due only if the rate under "A" below exceeds the rate under "B" below and shall be determined
as follows:
Prepayment Fee = the Present Value of ((A -B) x C) + LIBOR Breakage, where:
A=
JDC/B.MISC/235423/13524.003
A rate per annum equal to the sum of (1) the bond equivalent yield (bid side)
of the U.S. Treasury security with a maturity closest to the Scheduled Due
Date(s) to be prepaid as reported by the Wall Street Journal (or other
published source) on July 22, 1999 ("Lock In Date"), plus (ii) the
corresponding swap spread of the Bank on the Lock In Date for a fixed rate
A-1
payor to pay the Bank the fixed rate side of an interest rate swap of that
maturity, plus (iii) .25%.
B = A rate per annum equal to the sum of (i) the bond equivalent yield (bid side)
of the U.S. Treasury security with a maturity closest to the Scheduled Due
Date(s) to be prepaid as reported by the Wall Street Journal (or other
published source) on the Prepayment Date, plus (ii) the corresponding swap
spread that the Bank determines another swap dealer would quote to the Bank
on the Prepayment Date for paying to the Bank the fixed rate side of an
interest rate swap of that maturity.
C The sum of the products of (i) each Affected Principal Amount for each
Affected Principal Period, times (ii) the number of days in that Affected
Principal Period divided by 360.
"Affected Principal Amount" for an Affected Principal Period is the principal amount
of the Bonds so prepaid.
"Affected Principal Period" is each period from and including a Scheduled Due Date
to but excluding the next Scheduled Due Date, provided that the first such period
shall begin on and includes the Prepayment Date.
"LIBOR Breakage" is any additional loss, cost or expense that the Bank may incur
with respect to any hedge for the fixed rate of the Bond based on the difference
between the London interbank offered rate (for U.S. dollar deposits of the relevant
maturity) available in the London interbank market at the beginning of the interest
period in which the Prepayment Date occurs and that which is available in that
market on the Prepayment Date.
"Present Value" is determined as of the Prepayment Date using "B" above as the
discount rate.
Prepayment Fees are payable as liquidated damages, are a reasonable pre -estimate of the
losses, costs and expenses the Bank would incur for any prepayment, are not a penalty, will not
require claim for, or proof of, actual damages, and the Bank's determination thereof shall be
conclusive and binding in the absence of manifest error.
JDC/B.MISC/235423/13524.003
A-2