HomeMy Public PortalAboutSeries 1995.tifRU DEN, BARNETT, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A.
ATTORNEYS AT LAW
FORT LAUDERDALE
NAPLES
701 BRICKELL AVENUE
SUITE 1900 SARASOTA
MIAMI, FLORIDA 33131 TALLAHASSEE
(305) 789-2700
FORT LAUDERDALE (305) 764-6660
FAX (305) 789-2793
May 5, 1995
To the Parties on the Attached Distribution List
WRITER'S DIRECT DIAL NUMBER
(305)789-2762
Re: Village of Key Biscayne, Florida Stormwater Utility Revenue Bond Anticipation
Notes, Series 1995
Gentlemen:
Enclosed is a bound transcript for the above -captioned bond issue. It was a pleasure working
with each of you and I hope to have the opportunity to do so again.
Very truly yours,
RUDEN, BARNETT, McCLOSKY, SMITH,
SCHUSTER & RUSSELL, P.A.
CC
Jeffrey D. DeCarlo
JDD:sy
Enclosure
VILLAGE OF KEY BISCAYNE, FLORIDA
STORMWATER UTILITY REVENUE BOND ANTICIPATION NOTES, SERIES 1995
Distribution List
C. Samuel Kissinger
Village Manager
Village of Key Biscayne
85 West McIntyre Street
Key Biscayne, FL 33149
/Richard Jay Weiss, Esq.
Weiss Serota & Helfman, P.A.
2665 South Bayshore Drive
Suite 204
Miami, FL 33133
Telecopier: (305) 365-5556
Phone: (305) 365-5514
Telecopier: (305) 854-2323
Phone: (305) 854-0800
Percy R. Aquila, Jr. Telecopier: (305) 577-4838
Rauscher Pierce Refsnes, Inc. Phone: (305) 577-4400
201 South Biscayne Boulevard
Suite 830
Miami, FL 33131
Jeffrey D. DeCarlo, Esq. Telecopier: (305) 789-2793
Ruden, Barnett, McClosky, Smith, Phone: (305) 789-2762
Schuster & Russell, P.A.
701 Brickell Avenue
Suite 1900
Miami, FL 33131
'Jess S. Lawhorn Telecopier: (305) 361-9025
Key Biscayne Bank and Trust Company Phone: (305) 361-9100
85 West McIntyre Street
/Key Biscayne, FL 33149
"Deborah A. Buchanan Telecopier: (305) 789-5060
First Union National Bank Phone: (305) 789-5074
of Florida
200 S. Biscayne Boulevard
13th Floor
Miami, FL 33131
'/(David J. Menkhaus, Esq. Telecopier: (407) 393-6541
Moore & Menkhaus, P.A. Phone: (407) 394-7910
4800 N. Federal Highway
Suite 210-A
Boca Raton, FL 33431
Sandra Mayor
First Union National Bank of Florida
Government Banking Department
77 East Camino Real
Boca Raton, FL 33432
Telecopier: (407) 338-3959
M/26SECFORM/032295
$7,200,000
VILLAGE OF KEY BISCAYNE, FLORIDA
STORMWATER UTILITY REVENUE BOND ANTICIPATION NOTES, SERIES 1995
APRIL 17, 1995
April 17, 1995
$7,200,000
VILLAGE OF KEY BISCAYNE, FLORIDA
Stormwater Utility Revenue Bond Anticipation Notes, Series 1995
CLOSING INDEX
1. Certified copy of Ordinance No. 95-3 authorizing
issuance of the Notes.
2. Certified copy of Resolution No. 95-11 setting forth
the details of the Notes.
3. Certified copy of Resolution No. 93-6 regarding
reimbursement under federal income tax regulations.
4. Certified copy of Ordinance No. 93-11 creating a
stormwater utility in the Village.
5. Certified copy of Ordinance No. 93-11-A amending
Ordinance No. 93-11.
6. Certified copy of Resolution No. 92-23 required under
Article IV, Chapter 24, Dade County Code, regarding
the stormwater utility.
7. Certified copy of Village Charter.
8. Copy of signed Commitment Letter from Key Biscayne
Bank and Trust Company and First Union National Bank
of Florida.
9. Copy of letter from Key Biscayne Bank and Trust
Company (the "Bank"), dated April 11, 1995, disclosing
the information required by the provisions of Section
218.385, Florida Statutes, as amended.
10. Copy of notice to the Division of Bond Finance of the
impending sale of the Notes required by Section
218.38, Florida Statutes, as amended.
11. Incumbency Certificate.
12. Signature and No -Litigation Certificate.
13. Private Placement Certificate of the Bank.
14. Arbitrage Certificate.
15. Certificate of Village as to Qualified Tax Exempt
Obligations.
16. Certificate of Village as to Computation of Interest
Rate in Compliance with Section 215.84(3), Florida
Statutes.
17. I.R.S. Form 8038-G.
18. Bank's Receipt for the Notes.
19. Specimen Note.
20. Opinion of Ruden, Barnett, McClosky, Smith, Schuster &
Russell, P.A., approving the Notes.
21. Opinion of Weiss Serota & Helfman, P.A., Village
Attorney.
22. Division of Bond Finance Forms 2003 and 2004.
M/1015JDD/041395
2
Village Council
John F Festa. Mayor
Betty Sime, Vice Mayor
Raul Llorente
Hugh I- 0 Reilly
Michele Padovan
Raymond P Sullivan
John ' aid
Village Clerk
Guido H Inguanzo, Jr
VILLAGE OF KEY BISCAYNE
Office of the Village Clerk
CERTIFICATION
I, Guido H Inguanzo, Jr., Village Clerk of the Village of Key Biscayne, Florida, do hereby certify that
the attached is a true and correct copy of:
Ordinance 95-3 (Adopted by the Village Council on March 28, 1995)
IN WITNESS WHEREOF, I hereunto set my hand and affix the Seal of the Village of Key Biscayne,
Florida. this 31st day of March, 1995
Guido H Inguanzo, Jr.
Village Clerk
Village of Key Biscayne, Florida
85 West McIntyre Street • Key Biscayne Florida 33149 • (305) 365-5506 • Fax (305) 365-8936
ORDINANCE NO. 95-3
AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE,
FLORIDA AUTHORIZING THE ISSUANCE OF NOT
EXCEEDING $7,200,000.00 OF STORMWATER UTILITY
REVENUE BOND ANTICIPATION NOTES OF THE VILLAGE
OF KEY BISCAYNE, FLORIDA; PROVIDING FOR A
SUPPLEMENTAL RESOLUTION SETTING FORTH THE
DETAILS OF SAID NOTES; 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 not exceeding $7,200,000.00 Stormwater Utility Revenue
Bond Anticipation Notes (the "Notes") for the purpose of expanding
and improving the Stormwater Utility System within the Village, and
paying costs of issuance of the Notes; and
WHEREAS, the Council desires that the Notes be secured by a
covenant to budget and appropriate from legally available Non -Ad
Valorem revenues of the Village, as further specified by subsequent
resolution of the Council, and by Bonds of the Village to be issued
upon the maturity of the Notes; and
WHEREAS, it is the expressed commitment of the Council to
finance the entire financing cost of the Basins 1 - 8 project from
the proceeds of stormwater utility fees;
NOW, THEREFORE, BE IT ORDAINED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Section 1. In accordance with the provisions of the Charter
of the Village of Key Biscayne, Florida and Chapter 166, Florida
Statutes, there are hereby authorized to be issued Stormwater
Utility Revenue Bond Anticipation Notes of the Village, in an
aggregate principal amount not to exceed $7,200,000.00 for the
purpose of expanding and improving the Stormwater Utility System
within the Village, and paying costs of issuance of the Notes. The
Notes shall be designated "Village of Key Biscayne, Florida
Stormwater Utility Revenue Bond Anticipation Notes", or such other
designation as may be approved by supplemental resolution, shall be
dated such date, shall be in such denominations, shall be stated to
mature in such year or years not later than three (3) years from
their date of issuance, shall bear interest from their dated date
at a rate or rates not exceeding the maximum rate permitted by law
at the time of issuance of the Notes, shall be subject to redemption
at the option of the Village at such times and prices, and shall
have such other details, all as shall hereafter be determined by the
Council by supplemental resolution.
Section 2. The Village Manager is hereby authorized to
negotiate with banks or other financial institutions for the
purchase of the Notes and with respect to the terms of the Notes.
The Village Attorney, Bond Counsel and the Financial Advisor to the
Village are hereby authorized to draft documents and to do all other
things necessary to accomplish the issuance and sale of the Notes.
Section 3. This Ordinance will become effective immediately
upon adoption on second reading.
PASSED AND ADOPTED on first reading this 27th day of March,
1995.
PASSED AND ADOPTED on second reading this 28th day of March,
1995.
ATTEST:
3
OR JOHN F. FESTA
GUIDO H. INGUANZO, JR., VILLAGE CLERK
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
RI J. W SS , VILLAGE ATTORNEY
-2-
Village Council
John F Festa, Mayor
Betty Sime, Vice Mayor
Raul Llorente
Hugh T O'Reilly
Michele Padovan
Raymond P Sullivan
John Waid
Village Clerk
Guido H Inguanzo, Jr
VILLAGE OF KEY BISCAYNE
Office of the Village Clerk
CERTIFICATION
I, Guido H Inguanzo, Jr., Village Clerk of the Village of Key Biscayne, Florida, do hereby certify that
the attached is a true and correct copy of:
Resolution 95-11 (Adopted by the Village Council on April 11, 1995)
IN WITNESS WHEREOF, I hereunto set my hand and affix the Seal of the Village of Key Biscayne,
Florida, this 17th day of April, 1995.
Village Clerk
Village of Key Biscayne, Florida
85 West McIntyre Street • Key Biscayne, Florida 33149 • (305) 365-5506 • Fax (305) 365-8936
MISSION STATEN(' NT 10 PROVIDE A SAFE QL'ALIT'i (OMMI NIT\ I NVIRONMLNT FOR ALL ISLANDERS THROUGH RESPONSIBLE (,OVFRNMEN I
RESOLUTION 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. AUTHORIZATION 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
2
"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
3
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
4
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
5
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 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
"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
10
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
11
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)
12
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 under Uniform Gifts to Minors
the entirety Act of
JT TEN - as joint tenants
with right of
survivorship and
not as tenants
in common
(State)
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
14
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;
Mortgage
Mortgage
mortgage
Federal
15
(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
16
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
17
any subordinate entities or entities issuing
obligations on behalf of the Village within the
Section 265(b)(3) of the Code have issued
obligations during calendar year 1995 and neither
nor any such entities expect to issue tax-exempt
during calendar year 1995, other than the Notes.
tax-exempt
meaning of
tax-exempt
the Village
obligations
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
18
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
19
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
21
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 11th day of April, 1995.
e -r
R JOHN F. FESTA
ATTEST:
,
GUIDO H. ING NZO, JR.,
VILLAGE CLERK
APPROVED AS TO LEGAL FORM AND SUFFICIENCY.
RICHARD J. WEISS,
VILLAGE ATTORNEY
M/1007JDD/041395
23
D4 6t'i"p
•%;
:
Village Council
John F Festa, .Mayor
Betty Dime, Vice Mayor
Raul Llorente
Hugh T O'Reilly
Michele Padovan
Raymond P Sullivan
John Wald
l rllage Clerk
Guido H Inguanzo. Jr
VILLAGE OF KEY BISCAYNE
Office of the Village Clerk
CERTIFICATION
I, Guido H Inguanzo, Jr., Village Clerk of the Village of Key Biscayne, Florida, do hereby certify that
the attached is a true and correct copy of
Resolution 93-6 (Adopted by the Village Council on February 23, 1993)
IN WITNESS WHEREOF, I hereunto set my hand and affix the Seal of the Village of Key Biscayne,
Florida this 22th day of March, 1995
do H
Village Clerk
Village of Key Biscayne, Florida
85 West McIntyre Street • Key Biscayne, Florida 33149 • (305) 365-5506 • Fax (305) 365-8936
RESOLUTION NO. 93-6
A RESOLUTION OF THE VILLAGE OF KEY
BISCAYNE, FLORIDA; INDICATING THE
OFFICIAL INTENT OF THE VILLAGE COUNCIL TO
ISSUE TAX-EXEMPT BONDS TO FINANCE THE
COST OF ACQUISITION, CONSTRUCTION, AND
INSTALLATION OF STORMWATER DRAINAGE
FACILITIES AND TO USE A PORTION OF THE
PROCEEDS OF SUCH BONDS TO REIMBURSE
EXPENDITURES PAID OR INCURRED PRIOR TO
THE DATE OF ISSUANCE THEREOF.
BE IT RESOLVED BY THE VILLAGE COUNCIL OF KEY BISCAYNE,
FLORIDA, AS FOLLOWS:
WHEREAS, the Village Council of the Village of Key Biscayne,
Florida (the "Village") intends to issue tax-exempt bonds (the
"Bonds") for the purpose of financing the acquisition, construction
and installation of stormwater drainage facilities to located
within the Village (the "Project"); and
WHEREAS, a portion of the costs of the Project may be paid
before the Bonds are issued in anticipation of the reimbursement of
such expenditures from proceeds of the Bonds; and
WHEREAS, section 1.103-18 of the Federal income tax
regulations require the Village to officially declare its intent to
use proceeds of such Bonds to reimburse expenditures paid prior to
issuance thereof as a prerequisite to the proceeds being treated as
used for reimbursement purposes;
NOW THEREFORE BE IT RESOLVED BY THE VILLAGE COUNCIL OF KEY
BISCAYNE AS FOLLOWS:
Section 1. The Village Council intends to issue the Bonds in
the amount necessary to finance the costs of the project.
Section 2. The maximum principal amount of the Bonds expected
to be issued for reimbursement purposes is $3,000,000.
Section 3. This Resolution is adopted for purposes of
complying with the requirements of section 1.103-18 of the Federal
income tax regulations.
Page 1 of 2
RESOLUTION NO. 93-6
PASSED AND ADOPTED BY A 6-0 VOTE OF THE VILLAGE COUNCIL
THIS 23rd DAY OF February , 1993.
MAYOR AEL CONTE
ATTEST:
VILL &E CLERK
APPROVED AS TO FORM AND LEGAL SUFFICIENCY
VI GE ATTORNEY
Page 2 of 2
Village Council
John F Festa. Mayor
Betty Sime, Vice Mayor
Raul Llorente
Hugh T O'Reilly
Michele Padovan
Raymond P Sullivan
John %aid
Village Clerk
Guido H Inguanzo, Jr
VILLAGE OF KEY BISCAYNE
Office of the Village Clerk
CERTIFICATION
I, Guido H Inuanzo, Jr., Village Clerk of the Village of Key Biscayne, Florida, do hereby certify that
the attached is a true and correct copy of
Ordinance 93-11 (Adopted by the Village Council on June 22, 1993)
IN WITNESS WHEREOF, I hereunto set my hand and affix the Seal of the Village of Key Biscayne,
Florida this 22th day of March, 1995
doHIn•-. .,
Village Clerk
Village of Key Biscayne, Florida
85 West McIntyre Street • Key Biscayne. Florida 33149 • (305) 365-5506 • Fax (305) 365-8936
ORDINANCE NO. 93-11
AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE,
FLORIDA, ESTABLISHING A STORMWATER UTILITY
SYSTEM FOR THE VILLAGE; PROVIDING FOR
DEFINITIONS; MAKING CERTAIN FINDINGS AND
DETERMINATIONS; ESTABLISHING A STORMWATER
UTILITY FEE; ESTABLISHING A METHOD AND
PROCEDURE FOR THE COLLECTION OF STORMWATER
UTILITY FEES; DIRECTING THE VILLAGE MANAGER TO
MAINTAIN CERTAIN RECORDS; PROVIDING FOR REPEAL
OF CONFLICTING ORDINANCES; PROVIDING FOR
SEVERABILITY, INCLUSION IN THE CODE AND AN
EFFECTIVE DATE.
WHEREAS, the Village is responsible for the ownership,
maintenance and expansion of an existing stormwater management
system that has been developed over a number of years for the
purpose of collecting and disposing of storm and other surface
water; and
WHEREAS, the points of discharge for numerous stormwater
drainage systems serving the Village of Key Biscayne are Biscayne
Bay and its tributaries; and
WHEREAS, the waters of Biscayne Bay and its tributaries are
protected under the provisions of the Biscayne Bay Aquatic Preserve
Act (the "Act") as adopted by the Florida State Legislature; and
WHEREAS, pollution abatement requirements of the Act are among
the most stringent in the State, resulting in higher capital and
maintenance costs for storm drainage facilities; and
WHEREAS, the South Florida Water Management District has
recently adopted rules and regulations with respect to groundwater
protection that result in higher capital costs for the construction
of ground water protection devices in conjunction with storm
drainage improvement; and
WHEREAS, the Village desires to address such various
environmental issues which will further burden its infrastructure
requirements; and
WHEREAS, the Village finds that although each developed
property on Key Biscayne has varying degrees of water retention,
all properties contribute to some extent to the Village's
stormwater problems and that all citizens will benefit from the
establishment of a Stormwater Utility; and
WHEREAS, the Village finds that from both a financial and
administrative perspective, it would be impractical to measure each
property's impervious area and to calculate with mathematical
precision each Stormwater Utility fee; and
WHEREAS, the fee structure set forth herein represents a
reasonable and rational basis for allocating the need for a
Stormwater Utility to the developed property owners of the Village;
and
WHEREAS, therefore the Village finds that it is necessary and
essential to establish a Stormwater Utility to ensure that the
collection and disposal of stormwater within the Village of Key
Biscayne adequately protects the health, safety and welfare of the
citizens of the Village;
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE VILLAGE
OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
2
Section 1. That the Code of the Village of Key Biscayne is
hereby amended by adding a new Chapter which shall read as follows:
STORMWATER UTILITY SYSTEM
Sec. 1. Purpose; Authority.
The purpose of this article is to implement the
provisions of Section 403.0893(1), Florida Statutes, by
creating a Village -wide Stormwater Utility and adopting
stormwater utility fees sufficient to plan, construct,
operate and maintain the stormwater management system
required by Section 403.0891(3), Florida Statutes.
Sec. 2. Definitions.
The following, when used in this article, shall have the
meanings ascribed in this section, except where the
context clearly indicates a different meaning:
(a) "Developed Property" shall mean any parcel of land
that contains an impervious area.
(b) "Dwelling" shall mean any building that is wholly or
partly used or intended to be used for living, sleeping,
cooking and eating.
(c) "Dwelling Unit" shall mean any room or group of
rooms located within a dwelling and forming a single
habitable unit with facilities used or intended to be
used for living, sleeping, cooking and eating.
(d) "ERU" shall mean "Equivalent Residential Unit."
(e) "Impervious Area" shall mean the horizontal ground
surface that is incapable of being penetrated by
rainwater. This shall include, but not be limited to,
all structures, roof extensions, slabs, patios, porches,
driveways, sidewalks, parking areas, swimming pools,
athletic courts and decks.
(f) "Nonresidential Developed Property" shall mean any
parcel of land that contains an impervious area and that
is classified by the Dade County Property Appraiser as
land use types 10 through and including 99, as set forth
in Florida Administrative Code Rule 12D -8.008(2)(c), as
amended from time to time.
(g) "Residential Developed Property" shall mean any
parcel of land that contains an impervious area and is
3
classified by the Dade County Property Appraiser as land
use types 00 through and including 09 as set forth in
Florida Administrative Code Rule 12D -8.008(2)(c), as
amended from time to time.
(h) "Stormwater Infrastructure" shall mean the
structural, non-structural or natural features of a
parcel of land or Watershed which collect, convey, store,
absorb, inhibit, treat, use, reuse, or otherwise affect
the quantity or quality of stormwater.
(i) "Stormwater" shall mean the water that results from
rainfall.
(j) "Stormwater Management System" (or the "System")
shall have the meaning specified by Section 403.031(16),
Florida Statutes, as amended from time to time.
(k) "Stormwater Utility" shall have the meaning
specified by Section 403.031(17), Florida Statutes, as
amended from time to time.
(1) "Stormwater Utility Trust Fund" shall mean that
separate bank account established by the Village for the
deposit and use of all Stormwater Utility Fees collected.
(m) "Stormwater Utility Fee" shall have the meaning
specified by Section 403.0893(3), Florida Statutes, as
amended from time to time.
(n) "Watershed" shall have the meaning specified by
Section 403.031(18), Florida Statutes, as amended from
time to time.
Sec. 3. Findings and Determinations.
It is hereby determined and declared as follows:
(a) The Village desires to create a Stormwater
Management System to maintain and improve water quality,
to control flooding that results from rainfall events, to
deter unmanaged rainwater from eroding sandy soils, to
deter the disruption of the habitat of aquatic plants and
animals and to provide for the collection of Stormwater
Utility Fees for those expenses connected with the
planning, constructing, operating and maintaining of a
Stormwater Management System.
(b) The collection of and disposal of stormwater and
regulation of groundwater are of benefit to all property
within the Village including property not currently
served by the System.
(c) The cost of operating and maintaining the System
should, to the extent practicable, be allocated in
relationship to benefits enjoyed and services received.
Sec. 4. Stormwater Utility Fee.
(a) A Stormwater Utility Fee is hereby assessed against
each Developed Property within the Village for services
and facilities provided by the Stormwater Management
System. The rate per ERU to be used in calculating
Stormwater Utility Fees shall be set by an administrative
order of the Village Manager after approval by the
Village Council.
The Village Manager or his/her designee is directed to
prepare a list of lots and parcels within the Village and
to assign a classification of Single-family Dwelling
Unit, Multi -family Dwelling Unit, "Place of Worship" or
Nonresidential Developed Property to each lot or parcel.
(b) ERUs shall be assigned as follows:
(1) Single Family Dwelling Units: 1.5 ERU.
(2) Multi -family Dwelling Units: 1.0 ERU per
Dwelling Unit.
(3) Place of Worship: 0 ERU.
(4) Non -Residential Developed Properties,
excluding Places of Worship, shall be assigned
ERUs on the basis of one ERU per 1083 square
feet of Impervious Area.
(c) The following procedures and criteria are to be used
to calculate Stormwater Utility Fees:
(1) Each Single -Family Dwelling Unit, Multi -family
Dwelling Unit and Nonresidential Developed Property
shall be assessed a Stormwater Utility Fee
calculated by multiplying the rate for one ERU by
the number of ERUs provided in Sections 4(b)(1),
(2) and (4), respectively.
(2) The Stormwater Utility Fees payable to the
Village pursuant to this article shall be deposited
in a separate Village Stormwater Utility Trust Fund
account and shall be used exclusively by the
Village, together with accrued interest thereon, to
pay for the costs of planning, financing,
constructing, operating and maintaining the
5
Stormwater Management System required pursuant to
Section 403.0891(3), Florida Statutes.
Sec. 5. Collection of Stormwater Utility Fee; Liens.
(a) The Stormwater Utility Fee shall be billed to the
owner of each Developed Property. If the Stormwater
Utility Fee is not fully paid by the owner on or before
the past due date set forth on the owner's bill, a ten
percent late charge may be added to the bill. Any unpaid
balance of the owner for a Stormwater Utility Fee shall
be subject to an interest charge at a rate of eight
percent per annum. Imposition of this interest charge
shall commence 60 days after the past due date of the
fees set forth on the bill of the owner of the Developed
Property.
(b) Fees and late charges, together with any interest
charges, shall be debts due and owing the Village's
Stormwater Utility and all of same shall be recoverable
by the Village in a court of competent jurisdiction.
(c) The Village Manager shall establish procedures to
notify owners or managers of Developed Property of
delinquent Stormwater Utility Fee accounts.
(d) All Stormwater Utility Fees, late charges and
interest accruing thereupon, due and owing to the
Village's Stormwater Utility which remain unpaid 60 days
after the past due date shall become a lien against and
upon the Developed Property for which the Stormwater
Utility Fees are due and owing to the same extent and
character as a lien for a special assessment. Until
fully paid and discharged, such fees, late charges, and
interest accrued shall constitute a special assessment
lien equal in rank and dignity with the liens of Village
ad valorem taxes and superior in rank and dignity to all
other liens, encumbrances, titles, and claims in, to or
against the Developed Property involved for the period of
five years from the date such Stormwater Utility Fees,
late charges, and interest accrued thereupon became a
lien as set forth in this ordinance. This lien may be
enforced and satisfied by the Village pursuant to Chapter
173, Florida Statutes, as amended from time to time, or
by any other method permitted by law. The lien provided
for in this sub -section shall not be deemed to be in lieu
of any other legal remedies for recovery of such fee,
late charges, and accrued interest available to the
Village.
(e) For Stormwater Utility Fees which become more than
60 days past due and unpaid, the Village shall cause to
6
be filed in the office of the Clerk of the Circuit Court
of Dade County, Florida, a notice of lien or statement
showing a legal description of the Developed Property
against which the lien is claimed, its location by street
and number, the name of the owner, and an accurate
statement of the fees and late charges then unpaid. A
copy of such notice of lien shall be mailed within a
reasonable time to the owner of the Developed Property
involved as shown by the records of the tax collector of
Metropolitan Dade County. No such lien shall be
enforceable by the Village unless this notice is filed
within six months from the date the fees and late charges
become a lien as established in this section.
(f) Liens may be discharged and satisfied by payment to
the Village of the aggregate amounts specified in the
notice of lien, together with interest accrued, and all
filing and recording fees. When any such lien has been
fully paid or discharged, the Village shall cause
evidence of the satisfaction and discharge of such lien
to be filed with the office of the Clerk of the Circuit
Court of Dade County, Florida.
(g) Notwithstanding other provisions to the contrary,
the Village shall have the discretion not to file notices
of lien for fees, late charges, and interest accrued in
an amount less than fifty dollars ($50.00). If the
Village elects not to file a notice of lien, such fees,
late charges, and accrued interest shall remain as debts
due and owing in accordance with Section (b) above.
(h) The Village Manager or his designee is authorized
and directed to certify upon request the amount of fees,
late charges and interest accrued, which are due and
owing to the Village for any Developed Property which is
subject to payment of said fees, or the Village Manager
may certify that no fees, late charges or accrued
interest are due and owing.
Section 2. Repeal of Conflicting Ordinances. Article IV of
Chapter 24 of the Dade County Code made applicable to the Village
by Article VIII, Sections 8.03 of the Village Charter is hereby
repealed.
Section 3. Severability. The provisions of this Ordinance
are declared to be severable and if any section, sentence, clause
or phrase of this Ordinance shall for any reason be held to be
7
invalid or unconstitutional, such decision shall not affect the
validity of the remaining sections, sentences, clauses, and phrases
of this Ordinance but they shall remain in effect, it being the
legislative intent that this Ordinance shall stand notwithstanding
the invalidity of any part.
Section 4. Inclusion in the Code. It is the intention of the
Board of Trustees, and it is hereby ordained that the provisions of
this Ordinance shall become and made a part of the Code of the
Village of Key Biscayne; that the sections of this Ordinance may be
renumbered or relettered to accomplish such intentions; and that
the word "Ordinance" shall be changed to "Section" or other
appropriate word.
Section 5. Effective Date. This Ordinance shall be effective
upon adoption on second reading.
PASSED AND ADOPTED on first reading this 8th day of
June , 1993.
PASSED AND ADOPTED on second reading this 22nd day of
June , 1993.
ATTEST:
RAFAEL H.
Village rk
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
ONTE, MAYOR
RICHARD JAY?WEICSS, VILLAGE ATTORNEY
rwt\koybisca\ord\stcrmwat.1
8
Village Council
John F Festa, Mayor
Betty Sime ice Mayor
Raul llorente
Hugh T 0 Reilly
Michele Padovan
Raymond P Sullivan
John '\t aid
I, Wage Clerk
Guido H lnguanzo. Jr
VILLAGE OF KEY BISCAYNE
Office of the Village Clerk
CERTIFICATION
I, Guido H Inguanzo, Jr., Village Clerk of the Village of Key Biscayne, Florida, do hereby certify that
the attached is a true and correct copy of
Ordinance 93-11-A (Adopted by the Village Council on October 12, 1993)
IN \VTTNESS WHEREOF, I hereunto set my hand and affix the Seal of the Village of Key Biscayne.
Florida this 22th day of March. 1995
do H
Village Clerk
Village of Key Biscayne. Florida
Qrs \Y'ecr Mrint-ure ctrPer . k v Rice'rnP Florida AA14Q . ( NISI ;hS-SSnh • Fax (OS) A6S-RAih
ORDINANCE NO. 93-11-A
AN ORDINANCE CF THE VILLAGE OF KEY SCAYNE,
FLORIDA, AMENDING ORDINANCE NO. 93-11,
RELATING TO THE "TILLAGE STORMWATER UTILITY
SYSTEM; PROVIDING FOR BILLING OF STORMWATER
UTILITY FEES; AUTHORIZING MIAMI-DADE WATER AND
SEWER AUTHORITY DEPARTMENT TO ACT AS BILLING
AND COLLECTING AGENT FOR THE VILLAGE;
PROVIDING FOR SEVERABILITY, INCLUSION IN THE
CODE AND AN EFFECTIVE DATE.
WHEREAS, the Village has determined that the most practical
and economic method for billing and collecting the Stormwater
Utility Fees is to include the fee as part of the water and sewer
bills; and
WHEREAS, Miami Dade Water and Sewer Authority Department
("WASAD") is responsible fcr billing and collecting water and sewer
charges from the residents of the Village; and
WHEREAS, WASAD is willing to bill and collect the Stormwater
Utility fees on behalf of the Village.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE VILLAGE
OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Section 1. That Sec. 2 of Ordinance No. 93-11 of the
Village of Key Biscayne is nereby amended to read as follows:`
Sec. 2. Oefin,t_ons
* x *
(o) WASAD shall mean Miami Dade Water and
Sewer Authority Department.
-Highlighted items are additions to the text; items k
through are deletions to text.
Section 2. That Sec. 5 of Ordinance No. 93-11 of the
Village of Key Biscayne is hereby amended to read as follows:
Sec. 5. Collection of Stormwater Utility
Fee; Liens.
(a) The Stormwater Uti...ity Fee shall be billed to the
owner, tenant or occupant of each Developed Property. If
the Stormwater Utility Fee is not fully paid by the
owner, tenant or occupant on or before the past due date
set forth on the owner's, tenant's or occupant's bill, a
ten percent late charge may be added to the bill. Any
unpaid balance of the owner, tenant or occupant for a
Stormwater Utility Fee shall be subject to an interest
charge at a rate of eight percent per annum. Imposition
of this interest charge shall commence 60 days after the
past due date of the fees set forth on the bill of the
owner of the Developed Property. WASAD is hereby
authorized to act as the Village's agent for the purpose
of billing and collecting Stormwater Utility Fees.
Stormwater Utility Fees shall be billed by WASAD in the
same manner and subject to the same rules and regulations
governing WASAD's water and sewer bills, including, but
not limited to, the right to discontinue service.
(b) Fees and late charges, together with any interest
charges, shall be debts due and owing the Village's
Stormwater Utility and all of same shall be recoverable
by the Village in a court of competent jurisdiction.
(c) The Village Manager shall establish procedures to
notify owners, tenants, occupants or managers of
Developed Property of delinquent Stormwater Utility Fee
accounts.
Section 3. Severabilitv. The provisions of this Ordinance
are declared to be severable and if any section, sentence, clause
or phrase of this Ordinance shall for any reason be held to be
invalid or unconstitutional, such decision shall not affect the
validity of the remaining sections, sentences, clauses, and phrases
of this Ordinance but they shall remain in effect, it being the
legislative intent that this Ordinance shall stand notwithstanding
the invalidity of any part.
2
Section 4. Inclusion :n the Code. It is the intention of the
Board of Trustees, and it is hereby ordained that the provisions of
this Ordinance shall become and made a part of the Code of the
Village of Key Biscayne; that the ..actions of this Ordinance may be
renumbered or relettered to accomplish such intentions; and that
the word "Ordinance" shall be changed to "Section" or other
appropriate word.
Section 5. Effective Date. This Ordinance shall be effective
upon adoption on second reading.
PASSED AND ADOPTED on first reading this 28th day of
September , 1993.
PASSED AND ADOPTED on second reading this 12th day of
October
, 1993.
RAFAEL H. CONTE, MAYOR
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
RICHARD JAY WEISS, VILLAGE ATTORNEY
g11\keyDisca\stor=wat.3rd
3
Village Cuunal
John 1~ Festa. Mayor
Betty Sime, Vice Mayor
Raul Llorente
Hugh T 0 Reilly
Michele Padovan
Raymond P Sullivan
John Maid
L Wage Clerk
Guido H Inguanzo, Jr
VILLAGE OF KEY BISCAYNE
Office of the Village Clerk
CERTIFICATION
I, Guido H Inguanzo, Jr., Village Clerk of the Village of Key Biscayne, Florida do hereby certify that
the attached is a true and correct copy of
Resolution 92-23 (Adopted by the Village Council on June 9, 1993)
IN WITNESS WHEREOF. I hereunto set my hand and affix the Seal of the village of Key Biscayne,
Florida this 22th day of March- 1995
Guido H In, ,
Village Clerk
Village of Key Biscayne_ Florida
85 West McIntyre Street • Key Biscayne. Florida 331-}9 • ( 305) 365-5506 • Fax (305) 365-8936
RESOLUTION NO.
A RESOLUTION CF THE VILLAGE OF KEY BISCAYNE,
FLORIDA; NOTIFYING THE BOARD OF COUNTY
COMMISSIONERS OF METROPOLITAN DADE COUNTY AND
THE DIRECTOR OF THE METROPOLITAN DADE COUNTY
DEPARTMENT OF ENVIRONMENTAL RESOURCES
MANAGEMENT THAT IT WISHES TO EXERCISE ITS
OPTION TO EXEMPT THE VILLAGE OF KEY BISCAYNE
FROM THE PROVISIONS OF ORDINANCE 91-66;
PROVIDING FOR TRANSMISSION AND EFFECTIVE DATE.
WHEREAS, Ordinance 91-66 adopted by Metropolitan Dade County
establishes a countywide stormwater utility; and
WHEREAS, such Ordinance allows municipalities the option of
providing dedicated funds for stormwater management in accordance
with Section 403.0893(1)(2) or (3), Florida Statutes; and
WHEREAS, the Village of Key Biscayne wishes to exercise its
option to exempt the Village from the provisions of Ordinance 91-
66;
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND THE BOARD OF
TRUSTEES OF THE VILLAGE OF KEY BISCAYNE, Dade County, Florida, as
follows:
Section 1. The Village of Key Biscayne hereby notifies the
Board of County Commissioners of Metropolitan Dade County and the
Director of the Metropolitan Dade County Department of
Environmental Resources Management that it wishes to exercise its
option to exempt the Village of Key Biscayne from the provisions of
Ordinance 91-66.
Section 2. The Village of Key Biscayne hereby commits to
implement applicable provisions of Section 403.0893(1)(2) or (3),
as amended from time to time on cr before June 30, 1993. The
Village of Key Biscayne reserves the right, pursuant to Section 24-
61.2 of Ordinance 91-66 to void this exemption by request to the
Board of County Commissioners of Metropolitan Dade County.
Section 3. The Clerk of the Village of Key Biscayne is hereby
directed to file a certified copy of this Resolution with the Clerk
of the Board of County Commissioners and with the Director of the
Metropolitan Dade County Department of Environmental Resources
Management.
Section 4. This resolution shall become effective upon its
adoption.
PASSED AND ADOPTED this
Att st:
Ok-
VILLAGE CLERK
day of June, 1992.
f
II .�
RAFAEL J CONTE , MAYOR
Approved as to Legal Sufficiency:
IA.Ln.A^
ISS, VILLAGE ATTORNEY
Village Council
John F Festa, Mayor
Beth Sime. Vice Mayor
Raul llorente
Hugh T O'Reilly
Michele Padovan
Raymond P Sullivan
John Wald
Frlla'e Clerk
Guido H Inguanzo. Jr
VILLAGE OF KEY BISCAYNE
Office of the Village Clerk
CERTIFICATION
L Guido H Inguanzo, Jr , Village Clerk of the Village of Key Biscayne, Florida, do hereby certify that
the attached is a true and correct copy of:
Village Charter of the Village of Key Biscayne
IN ` iTNi ESS WHEREOF, I hereunto set my hand and affix the Seal of the Village of Key Biscayne,
Florida this 22th day of March, 1995
Guido H
Village Clerk
Village of Key Biscayne, Florida
TS
T'S ,
CHARTER
VILLAGE OF
KEY BISCAYNE, FLORIDA
This pamphlet is a reprint of the Charter of the Village of Key Biscayne,
Florida, published by order of the Village Council.
MUNICIPAL CODE CORPORATION
C
Tallahassee, Florida 1993
PART I
CHARTER*
Article I. Corporate Existence, Form of Government, Boundary and Powers
Sec. 1.01. Corporate existence.
Sec. 1.02. Form of government.
Sec. 1.03. Corporate boundary.
Sec. 1.04. Powers.
Sec. 1.05. Construction.
Article II. Village Council; Mayor
Sec. 2.01. Village council.
Sec. 2.02. Mayor and vice mayor.
Sec. 2.03. Election and term of office.
Sec. 2.04. Qualifications.
Sec. 2.05. Vacancies; forfeiture of office; filling of vacancies.
Sec. 2.06. Recall.
Sec. 2.07. No compensation: reimbursement for expenses.
Article III. Administrative
Sec. 3.01. Village manager.
Sec. 3.02. Appointment: removal: compensation.
Sec. 3.03. Powers and duties of the Village manager.
Sec. 3.04. Village clerk.
Sec. 3.05. Village attorney.
Sec. 3.06. Village code of administrative regulations.
Sec. 3.07. Expenditure of Village funds.
Sec. 3.08. Competitive bid requirement._
Sec. 3.09. Village boards and agencies.
Article IV. Legislative
Sec. 4.01. Council meeting procedure.
Sec. 4.02. Prohibitions.
Sec. 4.03. Action requiring an ordinance.
Sec. 4.04. Emergency ordinances.
Sec. 4.05. Annual budget adoption.
Sec. 4.06. Fiscal year.
Sec. 4.07. Appropriation amendments during the fiscal year.
*Editor's note —Printed herein is the Municipal Charter of the Village of Key Biscayne,
as adopted by the voters on June 18. 1991. Amendments to the Charter are indicated by
parenthetical history notes following amended provisions. The absence of a history note indi-
cates that the provision remains unchanged from the original Charter. Obvious misspellings
Have been corrected without notation. For stylistic purposes, a uniform system of headings,
catchlines and citations to state statutes has been used. Additions made for clarity are indi-
cated by brackets.
KEY BISCAYNE CODE
Sec. 4.08. Authentication, recording and disposition of ordinances; resolutions and charter
amendments.
Sec. 4.09. Tax levy.
Sec. 4.10. Borrowing.
Article V. Elections
Sec. 5.01. Elections.
Sec. 5.02. Initiative and referendum.
Sec. 5.03. Form of ballots.
Article VI. Charter Amendments
Sec. 6.01.
Sec. 6.02.
Sec. 6.03.
Charter amendments.
Procedure to amend.
Form of ballot.
Article VII. General Provisions
Sec. 7.01. No casino gambling.
Sec. 7.02. Severability.
Sec. 7.03. Conflicts of interest; ethical standards.
Sec. 7.04. Village personnel system; merit principle.
Sec. 7.05. Charitable contributions.
Sec. 7.06. Charter revision.
Sec. 7.07. Variation of pronouns.
Sec. 8.01.
Sec. 8.03.
Sec. 8.04.
Sec. 8.07.
Article VIII. Transition Provisions
Temporary nature of Article.
Interim adoption of codes and ordinances.
Taxes and fees.
Initial election of council and mayor.
CHARTER § 1.03
ARTICLE I. CORPORATE EXISTENCE, FORM OF GOVERNMENT, BOUNDARY
AND POWERS
Section 1.01. Corporate existence.
A municipal corporation known as Village of Key Biscayne (the "Village") is hereby
created pursuant to the Constitution of the State of Florida (the "State") and the Home Rule
Charter of Metropolitan Dade County (the "County The corporate existence of the Village
shall commence upon the adoption of this charter.
Section 1.02. Form of government.
The Village shall have a "council-manager" form of government.
Section 1.03. Corporate boundary.
The corporate boundary of the Village shall be as follows:
BEGIN at the point of intersection of the West line of Crandon Boulevard with the South
line of Crandon Park, said point of intersection also being the Northeast corner of Tract
1 of SUBDIVISION OF A PORTION OF MATHESON ESTATE, KEY BISCAYNE, DADE
COUNTY, FLORIDA, according to the plat thereof recorded in Plat Book 46 at Page 86 of
the Public Records of Dade County. Florida; thence run Westerly along said South line of
Crandon Park, also being the North line of said Tract 1 and its Westerly extension to a
point in the waters of Biscayne Bay, said point being 1,200 feet Westerly of the most
Northwesterly corner of Tract B of FOURTH ADDITION TO TROPICAL ISLE HOMES
SUBDIVISION, according to the plat thereof recorded in Plat Book 53 at Page 39 of the
Public Records of Dade County, Florida: thence run Southwesterly, to a point in the
waters of Biscayne Bay, said point being the point of intersection with the Southwesterly
extension of the Southeasterly line of Lot 7 in Block 1 of MASHTA POINT SUBDIVI-
SION, according to the plat thereof recorded in Plat Book 131 at Page 37 of the Public
Records of Dade County, Florida. said point of intersection being 1,000 feet Southwesterly
of the most Southeasterly corner of said Lot 7, as measured along the Southwesterly
extension of the Southeasterly line of said Lot 7; thence run Southeasterly to a point in the
waters of Biscayne Bay. said point being the point of intersection of the Southwesterly
extension of the Southeasterly line of Lot 17 of SMUGGLERS COVE, according to the plat
thereof recorded in Plat Book 78 at Page 83 of the Public Records of Dade County, Florida,
with the Westerly extension of the South line of the Waterway shown on the plat of
CANOGA PROPERTIES —KEY BISCAYNE, FLORIDA, according to the plat thereof
recorded in Plat Book 65 at Page 88 of the Public Records of Dade County, Florida; thence
run Easterly, along the South line of said Waterway and its Westerly and Easterly ex-
tensions to a point in the Atlantic Ocean, 500 feet Easterly of the Erosion Control Line,
as said Erosion Control Line is shown on the plat thereof recorded in Plat Book 74 at Page
26 of the Public Records of Dade County, Florida: thence run Northerly along a line 500
feet Easterly of and parallel to the said Erosion Control Line to the point of intersection
with the Easterly extension of the said South line of Crandon Park; thence run Westerly
§ 1.03 KEY BISCAYNE CODE
along the said South line of Crandon Park and its Easterly extension to the Point of
Beginning;
AND
BEGIN at the point of intersection of said South line of Crandon Park with the centerline
of Crandon Boulevard, said centerline of Crandon Boulevard being the centerline of Tract
10 of said plat of SUBDIVISION OF A PORTION OF MATHESON ESTATE, KEY BIS-
CAYNE, DADE COUNTY, FLORIDA, and its Northeasterly extension; thence run West-
erly along the South Line of Crandon Park for a distance of 400 feet; thence run Northerly
at right angles to the South line of Crandon Park for a distance of 700 feet; thence run
Easterly parallel with the South Line of Crandon Park for a distance of 750 feet more or
less to said centerline of Crandon Boulevard; thence run Southwesterly along said cen-
terline of Crandon Boulevard for a distance of 783 feet more or less to the South boundary
of Crandon Park and to the POINT OF BEGINNING.
Section 1.04. Powers.
The Village shall have all available governmental, corporate and proprietary powers.
Through the adoption of this charter, it is the intent of the electors of the Village that the
municipal government established herein have the broadest exercise of home rule powers
permitted under the Constitution and laws of the State.
Section 1.05. Construction.
The powers of the Village shall be construed liberally in favor of the Village.
ARTICLE IL VILLAGE COUNCIL; MAYOR*
Section 2.01. Village council.
There shall be a Village council (the "council") with all legislative powers of the Village
vested therein, consisting of six t6) members ("councilmembers") and the mayor. References in
this charter to councilmembers shall include the mayor unless the context otherwise requires.
(Ord. No. 92-18, § 1, 8-11-92.`11-3-92)
Section 2.02. Mayor and vice mayor.
(a) Mayor. The mayor shall preside at meetings of the council, be a voting member of the
council, name committees of the council and appoint members of the Village boards and
agencies with the approval of the council. The mayor shall be recognized as head of Village
government for all ceremonial purposes and for purposes of military law, for service of process,
*Editor's note —Pursuant to Ord. No. 92-18, § 1, adopted on August 11, 1992, and ap-
proved by the voters on November 3, 1992, the title of article II of the Charter has been
changed from "Village Board of Trustees; Mayor" to "Village Council; Mayor."
Code reference —Village Council, § 2-21 et seq.
rum. A
CHARTER § 2.05
execution of duly authorized contracts. deeds and other documents, and as the Village official
designated to represent the Village in all dealings with other governmental entities. The
mayor shall annually present a state of the Village message and an annual budget message.
)b) Vice -mayor. During the absence or incapacity of the mayor, the vice -mayor shall have
all the powers, authority, duties and responsibilities of the mayor. At the first council meeting
after each regular Village election, or in any calendar year in which there is no regular Village
election, at the first council meeting in the month of November of such year, the council shall
elect one (1) of its members as vice -mayor.
(Ord. No. 92-18, § 1, 8-11-92111-3-92)
Section 2.03. Election and term of office.
Each councilmember and the mayor shall be elected at -large by the electors of the Village
in the manner provided in Article V of this charter. The mayor shall be elected for a two (2)
year term. Each councilmember shall be elected for a four (4' year term. No person shall serve
as mayor for more than two (2) consecutive elected terms, and no person may serve on the
council, or as any combination of mayor and councilmember, for more than eight (8) consec-
utive years.
(Ord. No. 92-18, § 1, 8-11-92111-3-92)
Section 2.04. Qualifications.
Candidates for councilmember or mayor shall qualify for election by the filing of a written
notice of candidacy with the clerk of the Village at such time and in such manner as may be
prescribed by ordinance and payment to the Village clerk of the sum of one hundred dollars
($100.00) as a qualifying fee. A candidate for mayor may not be a candidate for councilmember
in the same election. Only electors of the Village who have resided continuously in the Village
for at least one (1) year preceding the date of such filing shall be eligible to hold the office of
councilmember or mayor.
(Ord. No. 92-18, § 1, 8-11-92,11-3-92
Section 2.05. Vacancies; forfeiture of office; filling of vacancies.
a) Vacancies. The office of a councilmember shall become vacant upon his death, resig-
nation, removal from office in any manner authorized by law or forfeiture of his office.
b) Forfeiture of office.
i) Forfeiture by disqualification. A councilmember shall forfeit his office if at any time
during his term he ceases to maintain his permanent residence in the Village or
otherwise ceases. without good cause, to be a qualified elector of the Village.
iii Forfeiture by absence. A councilmember shall be subject to forfeiture of his office, in
the discretion of the remaining councilmembers, if he is absent without good cause
from any six (6) regular meetings of the council during any calendar year, or if he is
§ 2.05 KEY BISCAYNE CODE
absent without good cause from any four (4), or three (3) as to the mayor, consecutive
regular meetings of the council, whether or not during the same calendar year.
(iii) Procedures. The council shall be the sole judge of the qualifications of its members and
shall hear all questions relating to forfeiture of a councilmember's office, including
whether or not good cause for absence has been or may be established. The burden of
establishing good cause shall be on the councilmember in question; provided, how-
ever, that any councilmember may at any time during any duly held meeting move
to establish good cause for the absence of himself or any other councilmember, from
any past, present or future meeting(s), which motion, if carried, shall be conclusive. A
councilmember whose qualifications are in question or who is otherwise subject to
forfeiture of his office shall not vote on any such matters. The councilmember in
question shall be entitled to a public hearing(s) on request. If a public hearing is
requested, notice thereof shall be published in one (1) or more newspapers of general
circulation in the Village at least one (1) week in advance of the hearing. Any final
determination by the council that a councilmember has forfeited his office shall be
made by resolution. All votes and other acts of the councilmember in question prior
to the effective date of such resolution shall be valid regardless of the grounds of
forfeiture.
(c) Filling of vacancies. A vacancy on the council shall be filled as follows:
(i) If less than six (6) months remain in the unexpired term, the vacancy shall be filled
by the council.
(ii) If one (1) year or more remains in the unexpired term, the vacancy shall be filled by
a special election to be held not sooner than thirty (30) days or more than ninety (90)
days following the occurrence of the vacancy.
(iii) If six (6) months or more but less than one ( 1) year remain, the vacancy shall be filled
by the council as provided for in paragraph (i) of this subsection (c) unless there is a
Village, County, State or a national election scheduled to take place on any date(s)
within such period, in which case the vacancy shall be filled by special election on the
first such election date.
(iv) If the vacancy is that of mayor, the vice -mayor shall complete the term of mayor, the
vacancy shall be considered to be a position on the council and shall be filled in
accordance with this subsection, and the council shall then appoint a new vice -mayor.
(v) If there is no qualified candidate for any vacancy in any election, the council shall
appoint a person qualified under this Article for the vacancy.
(vi) Notwithstanding any quorum requirements established herein, if at any time the full
membership of the council is reduced to less than a quorum, the remaining members
may, by majority vote, appoint additional members to the extent otherwise permitted
or required under this subsection lc).
(vii) In the event that all the members of the council are removed by death, disability,
recall, forfeiture of office and.'or resignation, the Governor shall appoint interim coun-
nrrm.n_
CHARTER § 3.03
cilmembers who shall call a special election within not less than thirty (30) days or
more than sixty i 60' days after such appointment and such election shall be held in
the same manner as the first elections under this charter: provided, however, that if
there are less than six i6! months remaining in the unexpired terms, the interim
council appointed by the Governor shall serve out the unexpired terms. Appointees
must meet all requirements for candidates provided for in the last sentence of Section
2.04.
(Ord. No. 92-18, § 1, 8-11-92 11-3-92
Section 2.06. Recall.
The electors of the Village shall have the power to recall and to remove from office any
elected official of the Village to the extent permitted by the Constitution and laws of the State.
The minimum number of electors of the Village which shall be required to initiate a recall
petition shall be ten percent (10%) of the total number of electors of the Village as of the
preceding Village election.
Section 2.07. No compensation: reimbursement for expenses.
Councilmembers (including the mayor) shall serve without compensation but shall receive
reimbursement in accordance with applicable law, or as may be otherwise provided by ordi-
nance, for authorized travel and per diem expenses incurred in the performance of their official
duties.
(Ord. No. 92-18, § 1, 8-11-92'11-3-92
ARTICLE III. ADMINISTRATIVE*
Section 3.01. Village manager.
There shall be a Village manager ithe "manager") who shall be the chief administrative
officer of the Village. The manager shall be responsible to the council for the administration
of all Village affairs.
(Ord. No. 92-18, § 1, 8-11-92,11-3-92,
Section 3.02. Appointment; removal; compensation.
The council shall appoint the manager for an indefinite term. The council may remove the
manager at any time. The compensation of the manager shall be fixed by the council.
(Ord. No. 92-18, § 1, 8-11-92'11-3-92
Section 3.03. Powers and duties of the Village manager.
The manager shall:
1) Be responsible for the appointment, supervision and removal of all Village employees;
*Code reference —Administration. ch. 2.
§ 3.03 KEY BISCAYNE CODE
(2) Direct and supervise the administration of all departments and offices but not Village
boards or agencies, unless so directed by the council from time to time;
(3) Attend all council meetings and have the right to take part in discussion but not the
right to vote;
(4) See that all laws, provisions of this charter and acts of the council, subject to enforce-
ment and/or administration by him or by officers subject to his direction and super-
vision, are faithfully executed;
(5) Prepare and submit to the council a proposed annual budget and capital program;
(6) Submit to the council and make available to the public an annual report on the
finances and administrative activities of the Village as of the end of each fiscal year;
(7) Prepare such other reports as the council may require concerning the operations of
Village departments, offices, boards and agencies;
(8) Keep the council fully advised as to the financial condition and future needs of the
Village and make such recommendations to the council concerning the affairs of the
Village as he deems to be in the best interests of the Village;
(9) Execute contracts, deeds and other documents on behalf of the Village to the extent
provided by ordinances; and
(10) Perform such other duties as are specified in this charter or as maybe required by the
council.
(Ord. No. 92-18, § 1, 8-11.92/11-3-92)
Section 3.04. Village clerk.
The council shall appoint a Village clerk (the "clerk"). The clerk shall give notice of
council meetings to its members and the public, shall keep a journal of its proceedings which
shall be a public record and shall perform such other duties as the council may prescribe from
time to time. The clerk shall report to the council.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
Section 3.05. Village attorney.
The council may from time to time appoint an individual attorney or a law firm to act as
the Village attorney under such terms and conditions as are consistent with this charter and
as may be established by the council from time to time. The Village attorney shall report to the
council.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
Section 3.06. Village code of administrative regulations.
The manager shall maintain a Village code of administrative regulations. The council
shall, by ordinance, establish appropriate procedures for reasonable notice and public com-
ment on proposed administrative regulations prior to taking final action on the same.
(Ord. No. 92-18, § 1, 8-11.92/11-3-92)
CHARTER § 4.01
Section 3.07. Expenditure of Village funds.
No funds of the Village shall be expended except pursuant to duly approved appropria-
tions.
Section 3.08. Competitive bid requirement.
Contracts for public improvements and purchases of supplies, materials or services shall
be awarded or made on the basis of specifications and competitive bids, except in cases where
the council specifically determines that it is impracticable to do so.
(Ord. No. 92-18, § 1, 8-11-9211-3-92)
Section 3.09. Village boards and agencies.
The council shall establish or terminate such boards and agencies as it may deem advis-
able from time to time. The boards and agencies shall report to the council.
(Ord. No. 92-18, § 1, 8-11-92M-3-92)
ARTICLE IV. LEGISLATIVE
Section 4.01. Council meeting procedure.
(a) Meetings. The council shall hold at least eleven (11) regular monthly meetings in each
calendar year, at such times and places as the council may prescribe by rule. Special meetings
may be held on the call of the mayor or by four (4) members of the council and upon no less than
twenty-four (24) hours' notice to each member and the public, or such shorter time as a
majority of the council shall deem necessary in case of an emergency affecting life, health,
property or the public peace.
b) Rules and journal. The council shall determine its own rules of procedure and order of
business and shall keep a journal open for public inspection.
c) Quorum and voting. Any four 4) members of the council shall constitute a quorum but
a smaller number may adjourn from time to time and may compel the attendance of absent
members in a manner and subject to the penalties prescribed by the rules of the council. Voting
on ordinances and resolutions shall be by roll call on final action and shall be recorded in the
journal. Except as otherwise specially provided in this charter. no action of the council shall
be valid or binding unless adopted by the affirmative votes of at least four (4) councilmembers.
In the event that four 4) or more members of the council are ineligible to vote on a particular
matter due to required abstention pursuant to Florida law, then the remaining members of the
council may vote and approve such matter by unanimous vote.
d) Meeting time limits. No meeting of the council shall extend later than midnight except
upon the affirmative vote of four ,-1, councilmembers present at the meeting.
(Ord. No. 92-17, § 1, 8-11-92'11-3-92: Ord. No. 92-18. § 1, 8-11-92,11-3-92)
§ 4.02 KEY BISCAYNE CODE
Section 4.02. Prohibitions.
(a) Appointment[s] and removals. Neither the council nor any of its members shall in any
manner dictate the appointment or removal of any Village administrative officers or em-
ployees whom the manager or any of his subordinates is empowered to appoint, but the council
may express its views and fully and freely discuss with the manager anything pertaining to
appointment and removal of such officers and employees.
(b) Interference with administration. Except for the purpose of inquiries and investiga-
tions made in good faith, the council or its members shall deal with Village officers and
employees who are subject to the direction and supervision of the manager solely through the
manager, and neither the council nor its members shall give orders to any such officer or
employee, either publicly or privately. It is the express intent of this charter that recommen-
dations for improvement in Village government operations by individual councilmembers be
made solely to and through the manager. No individual councilmember shall give orders to the
manager.
(c) Holding other office. No elected Village official shall hold any appointive Village office
or employment while in office. No former elected Village official shall hold any compensated
appointive Village office or employment until one (1) year after the expiration of his term.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
Section 4.03. Action requiring an ordinance.
In addition to other acts required by law or by specific provision of this charter to be
effected or authorized by ordinance, those acts of the Village council shall be by ordinance
which:
(1) Adopt or amend an administrative regulation or establish, alter or abolish any Vil-
lage office, department, board or agency;
(2) Establish a rule or regulation the violation of which carries a penalty;
(3) Levy taxes or appropriate funds;
(4) Grant, renew or extend a franchise;
(5) Set service or user charges for municipal services or grant administrative authority
to set such charges;
(6) Authorize the borrowing of money;
(7) Convey or lease or authorize by administrative action the conveyance or lease of any
lands of the Village; or
(8) Amend or repeal any ordinance previously adopted, except as otherwise provided in
this charter.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
CHARTER § 4.05
Section 4.04. Emergency ordinances.
a) Authorization; form. To meet a public emergency affecting life, health, property or the
public peace, the council may adopt, in the manner provided in this Section, one or more
emergency ordinances, but such ordinances may not: levy taxes; grant, renew or extend any
municipal franchise; set service or user charges for any municipal services; or authorize the
borrowing of money except as provided under the emergency appropriations provisions of this
charter if applicable. An emergency ordinance shall be introduced in the form and manner
prescribed for ordinances generally, except that it shall be plainly designated in a preamble as
an emergency ordinance and shall contain, after the enacting clause, a declaration stating that
an emergency exists and describing it in clear and specific terms.
(b) Procedure. An emergency ordinance may be adopted with or without amendment or
rejected at the meeting at which it is introduced. After its adoption, the ordinance shall be
published and printed as prescribed for other ordinances.
c) Effective date. Emergency ordinances shall become effective upon adoption or at such
other date as may be specified in the ordinance.
(d) Repeal. Every emergency ordinance except emergency appropriation ordinances shall
automatically be repealed as of the sixty-first (61st) day following its effective date, but this
shall not prevent re-enactment of the ordinance under regular procedures, or if the emergency
still exists, in the manner specified in this Section. An emergency ordinance may also be
repealed by adoption of a repealing ordinance in the same manner specified in this Section for
adoption of emergency ordinances.
e) Emergency appropriations. The council may make emergency appropriations in the
manner provided in this Section. To the extent that there are no available unappropriated
revenues to meet such appropriations. the council may by such emergency ordinance (without
regard to Section 4.10) authorize the issuance of emergency notes, which may be renewed from
time to time, but the emergency notes, including renewals thereof, shall be payable not later
than the last day of the fiscal year next succeeding the fiscal year in which the emergency
appropriation ordinance was originally adopted.
(Ord. No. 92-18, § 1, 8-11-92'11-3-92)
Section 4.05. Annual budget adoption.
a) Balanced budget. Each annual budget adopted by the council shall be a balanced
budget.
b) Budget adoption. The council shall by ordinance adopt the annual budget on or before
the last day of September of each year. If it fails to adopt the annual budget by this date. the
council may by resolution direct that the amounts appropriated for current operations for the
then ending fiscal year be deemed appropriate for the ensuing fiscal year for a period of fifteen
15, days and may be renewed by resolution each fifteen i 15 days, with all items in it prorated
accordingly, until such time as the council adopts an annual budget for the ensuing fiscal year.
§ 4.05 KEY BISCAYNE CODE
An ordinance adopting an annual budget shall constitute appropriations of the amounts spec-
ified therein.
(c) Specific appropriation. The budget shall be specific as to the nature of each category of
appropriations therein. Reasonable appropriations may be made for contingencies, but only
within defined spending categories.
(d) Deferred compensation; pensions. Contributions to pension and other deferred compen-
sation plans or arrangements for Village employees may be made under such terms and
conditions as the council may establish from time to time in accordance with sound actuarial
principles.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
Section 4.06. Fiscal year.
The fiscal year of the Village government shall begin on the first (1st) day of October and
shall end on the last day of September of the following calendar year. Such fiscal year shall
also constitute the annual budget and accounting year.
Section 4.07. Appropriation amendments during the fiscal year.
(a) Supplemental appropriations. If, during any fiscal year, revenues in excess of those
estimated in the annual budget are available for appropriation, the council may by ordinance
make supplemental appropriations for the fiscal year up to the amount of such excess.
(b) Reduction of appropriations. If, at any time during the fiscal year, it appears probable
to the manager that the revenues available will be insufficient to meet the amounts appro-
priated, he shall report to the council without delay, indicating the estimated amount of the
deficit, and his recommendations as to the remedial action to be taken. The council shall then
take such action as it deems appropriate to prevent any deficit spending not covered by
adequate reserves.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
Section 4.08. Authentication, recording and disposition of ordinances; resolutions
and charter amendments.
(a) Authentication. The mayor or the clerk shall authenticate by his signature all ordi-
nances and resolutions adopted by the council. In addition, when charter amendments have
been approved by the electors, the mayor and the clerk shall authenticate by their signatures
the charter amendment, such authentication to reflect the approval of the charter amendment
by the electorate.
(b) Recording. The clerk shall keep properly indexed books in which shall be recorded, in
full, all ordinances and resolutions passed by the council. Ordinances shall. at the direction of
the council, be periodically codified. The clerk shall also maintain the Village charter in
current form and shall enter all charter amendments.
CHARTER § 5.01
(c) Printing. The council shall, by ordinance, establish procedures for making all resolu-
tions, ordinances, technical codes adopted by reference, and this charter available to the people
of the Village for public inspection and available for purchase at a reasonable price.
(Ord. No. 92-18, § 1, 8-11-92'11-3-92)
Section 4.09. Tax levy.
The Village shall have the right to levy, assess and collect all such taxes as are permitted
by law, including without limitation ad valorem, excise, franchise or privilege taxes and taxes
on services and utilities.
Section 4.10. Borrowing.
The Village shall incur no debt unless the incurrence of such debt is approved by at least
five t5) councilmembers.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
ARTICLE V. ELECTIONS
Section 5.01. Elections.
a) Electors. Any person who is a resident of the Village, has qualified as an elector of the
State and registers to vote in the manner prescribed by law shall be an elector of the Village.
tb) Nonpartisan elections. All elections for the offices of councilmember and mayor shall
be conducted on a nonpartisan basis.
c) Election dates. A primary election shall be held in each even -numbered year, on the
day of the second State primary election, or if none is held in any such year, on the first
Tuesday following the first Monday of October. A regular election shall be held in November
of each even -numbered year, on the same day U.S. congressional elections are held, or if none
are held in any year, on the first Tuesday following the first Monday of said month and year.
(d) Primary election. The ballot for the primary election shall contain the names of all
qualified candidates for mayor and for the three (3) council positions which are to be filled as
a result of three (3) councilmembers' terms expiring, and shall instruct electors to cast one (1)
vote for mayor and no more than three +3) votes for council, with a maximum of one (1) vote per
candidate. If any candidate for mayor receives a number of votes greater than fifty percent
,50%) of the total number of ballots cast. such candidate shall be the duly elected mayor, and
no regular election for mayor shall be required. If any candidateis) for council receives) a
number of votes greater than fifty percent 50%) of the total number of ballots cast, such
candidate(s) shall be duly elected to the council, and the number of positions contested in the
regular election shall be decreased accordingly.
e) Regular election. The ballot for the regular election shall contain the names of the two
2; candidates for mayor who received the most votes in the primary election. The ballot for the
regular election shall also contain the names of the six (6) candidates for council who received
rum 1'1
§ 5.01 KEY BISCAYNE CODE
the most votes in the primary election, provided that if any council positions were filled in the
primary election, the number of council candidates on the ballot shall be a number equal to the
remaining number of council positions to be filled, times two (2). The ballot shall instruct
electors to cast one (1) vote for mayor and to cast a number of votes for the council not greater
than the number of contested council positions, with a maximum of one (1) vote per candidate.
The candidate for mayor receiving the most votes shall be the duly elected mayor. The can-
didates for council receiving the most votes, respectively, shall be duly elected to the re-
maining positions to be filled on the council.
(f) Special elections. Special elections, when required, shall be scheduled by the council at
such times and in such manner as shall be consistent with this charter.
(g) Single candidates. In the event that the number of persons who qualify as candidates
for the council positions to be filled at an election is equal to or less than the number of
positions to be filled at such election, those positions shall not be listed on the primary or
regular Village election ballot. No election for mayor shall be required in any election if there
is only one duly qualified candidate for mayor.
(h) Absentee votes. Absentee voting will be permitted as provided by the laws of the State
and under such conditions as may be prescribed by ordinance from time to time; provided,
however, that no ordinance shall limit the right to vote by absentee ballot available under
State law.
(i) Commencement of terms. The term of office of any elected official will commence seven
(7) days following the day of the regular or special election at which he is elected.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
Section 5.02. Initiative and referendum.
(a) Power to initiate and reconsider ordinances.
(i) Initiative. The electors of the Village shall have power to propose ordinances to the
council and, if the council fails to adopt an ordinance so proposed without any change
in substance, to adopt or reject it at a Village election, provided that such power shall
not extend to the annual budget or capital program or any ordinance appropriating
money, levying taxes or setting salaries of Village officers or employees.
(ii) Referendum.
(A) The electors of the Village shall have power to require reconsideration by the
council of any adopted ordinance and, if the council fails to repeal an ordinance
so reconsidered, to approve or reject it at a Village election, provided that such
power shall not extend to the annual budget or capital program or any ordinance
appropriating money, levying taxes or setting salaries of Village officers or em-
ployees.
(B) Notwithstanding anything in paragraph (ii)(A) of this subsection (a) to the con-
trary, the referendum power shall extend to any ordinance levying ad valorem
taxes, provided that (1) the ordinance increases the millage rate above five (5)
CHT• 14
CHARTER § 5.02
mills, (2) proceedings with respect to the referendum are commenced within
twenty (20) days after the date of adoption of the ordinance, and (3) all petitions
with respect to the referendum are filed within thirty ( 30) days after the date of
adoption of the ordinance.
b) Commencement of proceedings. Any ten (10) electors may commence initiative or ref-
erendum proceedings by filing with the clerk or other official designated by the council an
affidavit stating they will constitute the petitioners' committee and be responsible for circu-
lating the petition and filing it in proper form, stating their names and addresses and speci-
fying the address to which all notices to the committee are to be sent, and setting out in full
the proposed initiative ordinance or citing the ordinance sought to be reconsidered. Promptly
after the affidavit of the petitioners' committee is filed, the clerk or other official designated
by the council may, at the committees request. issue the appropriate petition blanks to the
petitioners' committee at the committee's expense.
(c) Petitions.
ti) Number of signatures. Initiative and referendum petitions must be signed by electors
of the Village equal in number to at least ten percent (10%) of the total number of
electors registered to vote at the last regular Village election.
(ii) Form and content. All papers of a petition shall be assembled as one instrument of
filing. Each signature shall be executed in ink and shall be followed by the printed
name and address of the person signing. Petitions shall contain or have attached
thereto throughout their circulation the full text of the ordinance proposed or sought
to be reconsidered.
iii) Affidavit of circulator. Each paper of a petition shall have attached to it when filed an
affidavit executed by the circulator thereof stating that he personally circulated the
paper. the number of signatures thereon. that all the signatures were affixed in his
presence, that he believes them to be the genuine signatures of the persons whose
names they purport to be and that each signer had an opportunity before signing to
read the full text of the ordinance proposed or sought to be reconsidered.
iv) Filing deadline. Except as otherwise provided in paragraph (ii)(B) of subsection (a) of
this Section, all initiative and referendum petitions must be filed within sixty (60)
days of the date on which proceedings with respect to such initiative or referendum
are commenced.
(d) Procedure for filing.
i) Certificate of clerk; amendment. Within twenty (20) days after initiative petition is
filed or within five 5) days after a referendum petition is filed, the clerk or other
official designated by the council shall complete a certificate as to its sufficiency,
specifying, if it is insufficient, the particulars wherein it is defective and shall promptly
send a copy of the certificate to the petitioners' committee by registered mail. Grounds
for insufficiency are only those specified in subsection (c) of this Section. A petition
CHT.15
§ 5.02 KEY BISCAYNE CODE
certified insufficient for lack of the required number of valid signatures may be
amended once if the petitioners' committee files a notice of intention to amend it with
the clerk or other official designated by the council within two (2) business days after
receiving the copy of the certificate and files a supplementary petition upon addi-
tional papers within ten )10) days after receiving the copy of such certificate. Such
supplementary petition shall comply with the requirements of paragraphs (i) and (ii)
of subsection (c) of this Section, and within five (5) days after it is filed the clerk or
other official designated by the council shall complete a certificate as to the suffi-
ciency of the petition as amended and promptly send a copy of such certificate to the
petitioners' committee by registered mail as in the case of an original petition. If a
petition or amended petition is certified sufficient, or if a petition or amended petition
is certified insufficient and the petitioners' committee does not elect to amend or
request council review under paragraph (ii) of this subsection (d) within the time
required, the clerk or other official designated by the council shall promptly present
his certificate to the council and such certificate shall then be a final determination
as to the sufficiency of the petition.
(ii) Council review. If a petition has been certified insufficient and the petitioners' com-
mittee does not file notice of intention to amend it or if an amended petition has been
certified insufficient, the committee may, within two (2) business days after receiving
the copy of such certificate, file a request that it be reviewed by the council. The
council shall review the certificate at its next meeting following the filing of such
request and approve or disapprove it, and the council's determination shall then be a
final determination as to the sufficiency of the petition.
(e) Action on petitions.
(i) Action by council. When an initiative or referendum petition has been finally deter-
mined sufficient, the council shall promptly consider the proposed initiative ordi-
nance or reconsider the referred ordinance by voting its repeal, all in the manner
provided in Article IV. The repeal of an ordinance relating to the levy of ad valorem
taxes shall be by resolution. If the council fails to adopt a proposed initiative ordi-
nance without any change in substance within forty-five (45) days or fails to repeal the
referred ordinance within thirty (30) days (or, in the case of a referendum authorized
pursuant to paragraph (ii)(B) of subsection ia) of this Section, within five (5) days after
the date on which the petition is determined to be sufficient), it shall submit the
proposed or referred ordinance to the electors of the Village. If the council fails to act
on a proposed initiative ordinance or a referred ordinance within the time period
contained in paragraph (i) of subsection (e) of this Section, the council shall be deemed
to have failed to adopt the proposed initiative ordinance or failed to repeal the re-
ferred ordinance on the last day that the council was authorized to act on such matter.
(ii) Submission to electors. The vote of the Village on a proposed or referred ordinance
shall be held not less than thirty 1 30) or more than sixty (60) days from the date the
council acted or was deemed to have acted pursuant to paragraph (i) of subsection (e)
CHT:16
CHARTER § 6.02
of this Section that the petition was determined sufficient. If no regular election is to
be held within the period described in this paragraph. the council shall provide for a
special election, except that the council may, in its discretion, provide for a special
election at an earlier date within the described period. Copies of the proposed or
referred ordinance shall be made available at the polls.
iii) Withdrawal of petitions. An initiative or referendum petition may be withdrawn at
any time prior to the fifteenth (15th) day preceding the day scheduled for a vote of the
Village by filing with the clerk or other official designated by the council a request for
withdrawal signed by at least eight (8) members of the petitioners' committee. Upon
the filing of such request, the petition shall have no further force or effect and all
proceedings thereon shall be terminated.
,0 Results of election.
;i) Initiative. If a majority of the qualified electors voting on a proposed initiative ordi-
nance vote in its favor, it shall be considered adopted upon certification of the election
results. If conflicting ordinances are approved at the same election, the one receiving
the greatest number of affirmative votes shall prevail to the extent of such conflict.
(ii) Referendum. If a majority of the qualified electors voting on a referred ordinance vote
against it, it shall be considered repealed upon certification of the election results.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92,
Section 5.03. Form of ballots.
A charter amendment. ordinance or other ballot issue to be voted on by the electors shall
be presented for voting by ballot title. The ballot title of a measure may differ from its legal
title and shall be a clear. concise statement describing the substance of the measure without
argument or prejudice. Below the ballot title shall appear the following question: "Shall the
above described [amendment!ordinance/proposal] be adopted?" Immediately below such ques-
tion shall appear, in the following order, the word "YES" and also the word "NO."
ARTICLE VI. CHARTER AMENDMENTS
Section 6.01. Charter amendments.
This charter may be amended in accordance with the provisions of this Article.
Section 6.02. Procedure to amend.
ai Initiation. This charter may be amended in two 2 \vays:
i By ordinance. The council may, by ordinance, propose amendments to this charter and
upon passage of the initiating ordinance shall submit the proposed amendment to a
vote of the electors at the next general election held within the Village or at a special
election called for such purpose.
('UT 1 "
§ 6.02 KEY BISCAYNE CODE
(ii) By petition. The electors of the Village may propose amendments to this charter by
petition. Each petition proposing amendments to this charter shall be commenced, in
the form, filed, certified as to its sufficiency and/or withdrawn in the same manner as
an ordinance proposed by initiative pursuant to Section 5.02.
(b) Submission to electors. Upon certification of the sufficiency of a petition, the council
shall submit the proposed amendment to a vote of the electors at the next general election if
such election is scheduled to be held not less than sixty (60) days or more than one hundred
twenty (120) days from the date on which the petition was certified or at a special election
called for such purpose. A special election, if necessary, shall be held not less than sixty (60)
days or more than one hundred twenty (120) days from the date on which the petition was
certified.
(c) Results of election. If a majority of the qualified electors voting on a proposed amend-
ment vote for its adoption, it shall be considered adopted upon certification of the election
results. If conflicting amendments are adopted at the same election, the one receiving the
greatest number of affirmative votes shall prevail to the extent of such conflict.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
Section 6.03. Form of ballot.
Any charter amendment ballot issue to be voted on by the electors shall be presented on
the ballot in the form required by Section 5.03.
ARTICLE VII. GENERAL PROVISIONS*
Section 7.01. No casino gambling.
There shall be no casino gambling within the Village; provided, however, that nothing
herein shall prevent religious, educational or charitable organizations from holding occasional
events which feature games of chance which are not otherwise prohibited by State or County
law.
Section 7.02. Severability.
If any section or part of section of this charter shall be held invalid by a court of competent
jurisdiction, such holding shall not affect the remainder of this charter or the context in which
such section or part of section so held invalid may appear, except to the extent that an entire
section or part of section may be inseparably connected in meaning and effect with the section
or part of section to which such holding shall directly apply.
Code reference—Severability of Code, § 1-13.
*Code reference —General provisions, ch. 1.
CHT:18
CHARTER § 7.06
Section 7.03. Conflicts of interest: ethical standards.
All trustees, officials and employees of the Village shall be subject to the standards of
conduct for public officers and employees set by law. In addition, the council may, by ordi-
nance, establish a code of ethics for councilmembers, officials and employees of the Village.
Without in any way limiting the generality of the foregoing, no member of the council
shall have a financial interest, direct or indirect, or by reason of ownership of stock or other
equity ownership in any corporation or entity, in any contract or in the sale to the Village or
to a contractor supplying the Village of any land or rights or interests in any land, material[,]
supplies, or services unless. after full disclosure to the council of the nature and extent of such
interest, the same is authorized by the council before the event or accepted and ratified by the
council after the event. No member of the council who possesses such a financial interest shall
vote on, or participate in the council deliberations concerning, any such contract or sale if such
interest is more than a de minimis interest. Any violation of this Section with the knowledge
of the person or entity contracting with the Village shall render the contract voidable by the
council.
(Ord. No. 92-18, § 1, 8-11.92/11-3-92)
Code reference —Village Council. § 2-21 et seq.
Section 7.04. Village personnel system; merit principle.
All new employments, appointments and promotions of Village officers and employees
shall be made pursuant to personnel procedures to be established by the manager from time
to time. Such personnel procedures shall be based on principles of merit and fitness.
Section 7.05. Charitable contributions.
The Village shall not make any charitable contribution to any person or entity, except
such contributions as have been approved by all seven (7) councilmembers.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
Section 7.06. Charter revision.
At its first regular meeting in December of every fifth 5th) year after the adoption of this
charter, commencing with December 1996, the council shall appoint a charter revision com-
mission consisting of five ,5) persons, one (1) of whom shall be a member of the council serving
a second consecutive term as councilmember and four ,4: of whom shall be electors of the
Village. If there are no trustees serving a second consecutive term, the council shall appoint
to the revision commission one (1) councilmember. The mayor shall not be eligible for appoint-
ment to the revision commission. The revision commission shall commence its proceedings
within forty-five (45) days after appointment by the council. If the revision commission deter-
mines that a revision is needed, it shall draft such amendments to this charter as it deems
appropriate and submit the same to the council not later than the ninetieth 90th) day after
their appointment by the council. The council shall, not less than thirty ,30 days or more than
sixty (60) days after submission of the proposed amendments to the council, submit them to the
r'vm i n
§ 7.06 KEY BISCAYNE CODE
electors of the Village in accordance with the provisions of Section 6.02, except that the
provisions of subsections ia) and (b) of such Section shall not apply.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
Section 7.07. Variation of pronouns.
All pronouns and any variation thereof used in this charter shall be deemed to refer to
masculine, feminine, neutral, singular or plural as the identity of the person or persons shall
require and are not intended to describe, interpret, define or limit the scope, extent or intent
of this charter.
ARTICLE VIII. TRANSITION PROVISIONS*
Section 8.01. Temporary nature of Article.
The following sections of this Article are inserted solely for the purpose of effecting the
incorporation of the Village and the transition to a new municipal government. Each section
of this Article shall automatically, and without further vote or act of the electors of the Village,
become ineffective and no longer a part of this charter at such time as the implementation of
such section has been accomplished.
*Editor's note —The former sections of the Charter printed in this note, with their his-
tory, have become ineffective and no longer a part of the Charter, pursuant to section 8.01 of
the Charter, since the implementation of each such section has been accomplished. Set out
herein are former sections 8.02, 8.05, 8.06, and subsections (c)(i)—(iii) and (g) of section 8.07:
Section 8.02. Interim governing body.
After adoption of this charter but prior to the election and acceptance of office of
the first elected Village council, the governing body for the Village shall be the Dade
County Board of County Commissioners. In acting as the governing body for the
Village during this interim period, the Dade County Board of County Commissioners
shall not make decisions which could reasonably be postponed until the election of the
Village board of trustees or which would materially alter or affect the status quo
within the Village boundaries.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
Section 8.05. Fiscal year and first budget.
The first fiscal year of the Village shall commence on the effective date of this
charter and shall end on September 30, 1992. The first budget shall be adopted on or
before October 30, 1991.
Section 8.06. Transitional ordinances and resolutions.
The council shall adopt ordinances and resolutions required to effect the transi-
tion. Ordinances adopted within sixty (60) days after the first council meeting may be
passed as emergency ordinances. These transitional ordinances shall be effective for
no longer than ninety (90) days after adoption, and thereafter may be readopted,
renewed or otherwise continued only in the manner normally prescribed for ordi-
nances.
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
CHT:20
CHARTER § 8.04
Section 8.03. Interim adoption of codes and ordinances.
Until otherwise modified or replaced by this charter or the Village council, all codes.
ordinances and resolutions in effect on the day of adoption of this charter shall, to the extent
applicable to the Village, remain in force and effect as municipal codes, ordinances and reso-
lutions of the Village.
(Ord. No. 92-18, § 1, 8-11-92/'11-3-92)
Section 8.04. Taxes and fees.
Until otherwise modified by the Village council, all municipal taxes and fees imposed
within the Village boundaries by the County as the municipal government for unincorporated
Dade County, which taxes and fees are in effect on the date of adoption of this charter, shall
continue at the same rate and on the same conditions as if those taxes and fees had been
adopted and assessed by the Village.
(Ord. No. 92-18, § 1, 8-11-92;11-3-92)
Section 8.07. Initial election of council and mayor.
* * *
(c) 1991 elections. The primary and regular elections in 1991 shall be held pur-
suant to the procedures set forth in Section 2.03 and Section 5.01(d) and (e), except as
follows:
(i) only those candidates will qualify for election who have filed written notice
of candidacy for councilmember or mayor (but not both) with the Dade County
Elections Department, which notice is received before 5:00 p.m., August 5,
1991[,] and which notice shall:
IA) indicate whether the candidate seeks the office of councilmember or
mayor;
(B) contain the candidate's certification that he is a qualified elector of the
State of Florida, is registered to vote in the Village and has resided
continuously within the Village since August 5, 1990;
C) contain or be accompanied by such other information or statement, if
any, as may be required by the Dade County Elections Department;
D) be signed by the candidate and duly notarized: and
E) be accompanied by a check payable to the Dade County Elections De-
partment in the amount of $100.00;
ii) there will be six 16), rather than three (3), council positions to be filled:
iiii) the number of candidates on the regular election ballot will be twelve .12),
rather than six ,6); or a lesser number equal to two 1 2) times the number of
council positions to be filled, if any candidates were duly elected to the
council in the primary:
,g' Induction Into office. Those candidates who are elected at the first regular
election shall take office at the initial council meeting, which shall be held at 7 p.m.
on September 23, 1991.; at the Key Biscayne Elementary School.
Ord. No. 92-18, § 1, 8-11-92/11-3-92)
§ 8.07 KEY BISCAYNE CODE
Section 8.07. Initial election of council and mayor.
(a) Transition. This Section shall apply to all primary and regular elections for council
and mayor held on or before December 31, 1996[,] and any conflicting provisions of Section 5.01
shall not apply to such elections.
(b) Election dates. The first Village primary election shall be held on September 3, 1991.
Primary elections shall also be held in 1993 and 1994 on the day of the second State primary
election, or if none are held in any such year, on the first Tuesday following the first Monday
of October. The first Village regular election shall be held on September 17, 1991. Regular
elections shall also be held in November of 1993 and 1994 on the same day U.S. congressional
elections are held, or if none are held in any year, on the first Tuesday following the first
Monday of said month and year.
(c) 1991 elections. The primary and regular elections in 1991 shall be held pursuant to the
procedures set forth in Section 2.03 and Section 5.01(d) and (e), except as follows:
* * *
(iv) the mayor will be elected to a two (2) year term expiring in 1993;
(v) the three (3) duly elected councilmembers receiving the most votes, respectively, will
be elected to three (3) year terms expiring in 1994; for purposes of this provision, any
councilmember duly elected in the primary will be considered to have received more
votes than any councilmember elected in the regular election; and
(vi) the three (3) remaining duly elected councilmembers will be elected to two (2) year
terms expiring in 1993.
(d) 1993 elections. The primary and regular elections in 1993 shall be held pursuant to the
procedures set forth in Section[s] 2.03, 2.04 and Section 5.01(d) and (e), except as follows:
i) the mayor will be elected to a three (3) year term expiring in 1996; and
'ii) the three (3) duly elected councilmembers will be elected to a three (3) year term
expiring in 1996.
e) 1994 elections. The primary and regular elections in 1994 shall be held pursuant to the
procedures set forth in Section 2.03 and Section 5.01(d) and (e).
'0 Maximum terms. Notwithstanding Section 2.03. any councilmember (including the
mayor) elected in the 1991 election may serve for a maximum of nine (9) consecutive years on
the council, and the mayor elected in 1991 or 1993 may serve for a maximum of five (5)
consecutive years as mayor.
* *
(Ord. No. 92-18, § 1, 8-11-92/11-3-92)
CHT:22
CHARTER COMPARATIVE TABLE
ORDINANCE S
This table shows the location of the sections of the Charter and any amend-
ments thereto.
Adoption/
Ordinance Referendum Section
Number Dates Section this Charter
92-17 8-11-9/1-3-92 1 4.01
92-18 5-11-9/1-3-92 1 2.01-2.05
2.07
3.01-3.06
3.08, 3.09
4.01-4.05
4.07, 4.08
4.10
5.01, 5.02
6.02
7.03
7.05, 7.06
Art. VIII
8.03, 8.04
8.07
CHTCT• 1
CHARTER INDEX
ABSENTEE VOTES
Election regulations....
A
AGENCIES OF VILLAGE. See: DEPARTMENTS AND
OTHER AGENCIES OF VILLAGE
AGREEMENTS. See: CONTRACTS AND AGREEMENTS
AMENDMENTS
Alter, abolish, amend, etc.
Action requiring an ordinance
ANNUAL BUDGET. See: BUDGET
Section
5.01(h)
4.03(8)
APPOINTMENTS
Council prohibitions re interference 4.02(a)
APPROPRIATIONS
Alter, abolish, amend, etc.
Action requiring an ordinance
Budget
Specific appropriations
Emergency appropriations 4.04(e)
ATTORNEY. See: VILLAGE ATTORNEY
AUTHENTICATION
Ordinances, resolutions and charter amendments 4.08(a)
4.03(3)
4.05(c)
B
BALLOTS. See also: ELECTIONS
Charter amendments
Form of ballot
6.03
Form of ballots 5.03
BOARDS, COMMITTEES AND COMMISSIONS
Alter, abolish, amend, etc.
Action requiring an ordinance 4.03(1)
Conflicts of interest; ethical standards 7.03
Village boards and agencies 3.09
Village managers powers and duties 3.03(7)
BORROWING
Alter, abolish, amend. etc.
Action requiring an ordinance 4.03(6)
Generally . .. 4.10
BOUNDARY
Corporate boundary 1.03
n -m;
KEY BISCAYNE CODE
BUDGET Section
Annual budget adoption
Adoption 4.05(b)
Balanced budget 4.05(a)
Deferred compensation: pensions 4.05(d)
Specific appropriation 4.05(c)
Village manager's powers and duties 3.03(5)
C
CAPITAL PROGRAM
Village manager's powers and duties 3.03(5)
CASINO GAMBLING
No casino gambling 7.01
CHARITABLE CONTRIBUTIONS
Officer and employee regulations 7.05
CHARTER
Amendments
Authentication, recording and disposition of 4.08
Form of ballot 6.03
Generally 6.01
Initiation 6.02(a)
Procedure to amend 6.02
Results of election 6.02(c)
Submission to electors 6.02(b)
Revision 7.06
Severability 7.02
Transition provisions
Code of ordinances, interim adoption of 8.03
Initial election of council and mayor
1991 elections 8.07(c)
1993 elections 8.07(d)
1994 elections 8.07(e)
Election dates 8.07(b)
Maximum terms 8.07(f)
Transition 8.07(a)
Taxes and fees 8.04
Temporary nature of provisions 8.01
Variation of pronouns 7.07
CLERK. See: VILLAGE CLERK
CODE OF ORDINANCES. See: VILLAGE CODE
CODES. See: VILLAGE CODE
COMMITTEES AND COMMISSIONS. See: BOARDS, COM-
MITTEES AND COMMISSIONS
COMPETITIVE BIDS
Requirements
3.08
CHTi:2
CHARTER INDEX
CONFLICTS OF INTEREST Se•.tion
Trustees, officials and employees of village 7.03
CONTRACTS AND AGREEMENTS
Competitive bid requirements 3.08
Conflicts of interest: ethical standards 7.03
Village manager's powers and duties 3.03(9)
CONVEYANCES
Alter, abolish, amend, etc.
Action requiring an ordinance
4.03(7)
COUNCIL
Council-manager form of government 1.02
Election and term of office 2.03
Forfeiture of office 2.05(b)
Generally 2.01
No compensation; reimbursement for expenses 2.07
Qualifications 2.04
Recall 2.06
Vacancies
Filling of vacancies 2.05(c)
Generally 2.05(a)
Village manager
Powers and duties 3.03
D
DATES
Election dates 5.01(c)
DEEDS
Village manager's powers and duties 3.03(9)
DEFERRED COMPENSATION
Budget regulations 4.05(d)
DEPARTMENTS AND OTHER AGENCIES OF VILLAGE
Alter, abolish, amend, etc.
Action requiring an ordinance 4.03(1)
Conflicts of interest; ethical standards 7.03
Village manager's powers and duties 3.03(7)
DISCLOSURES
Conflicts of interest; ethical standards 7.03
DOCUMENTS
Village manager's powers and duties 3.03(10)
ELECTIONS
Absentee votes..
Ballots, form of
E
5 01(h)
5.03
r` TIT;
KEY BISCAYNE CODE
ELECTIONS-Cont'd. Section
Charter amendments
Result of election 6.02(c)
Submission to electors 6.02(b)
Charter transition provisions, initial election of council and
mayor
1991 elections 8.07(c)
1993 elections 8.07(d)
1994 elections 8.07(e)
Election dates 8.07(b)
Maximum terms 8.07(f)
Commencement of terms 5.01(i)
Dates for election 5.01(c)
Electors 5.01(a)
Initiative and referendum 5.02
Mayor and councilmembers 2.03
Nonpartisan elections 5.01(b)
Primary elections 5.01(d)
Regular elections 5.01(e)
Single candidates 5.01(g)
Special elections 5.01(f)
EMERGENCIES
Ordinances 4.04
EMPLOYEES. See: OFFICERS AND EMPLOYEES
ETHICAL STANDARDS
Trustees, officials and employees of Village 7.03
F
FEES
Charter transition provisions 8.04
FINANCES
Borrowing 4.10
Budget
Annual budget adoption 4.05
Conflicts of interest; ethical standards 7.03
Emergency appropriations 4.04(e)
Expenditure of Village fund 3.07
Fiscal year
Appropriations amendments during
Reduction of appropriations 4.07(b)
Supplemental appropriations 4.07(a)
Generally 4.06
Mayor and Village council
No compensation; reimbursement for expenses 2.07
Tax
Levy 4.09
Village managers duties 3.03(6)
CHTi:4
CHARTER INDEX
FINES, FORFEITURES AND OTHER PENALTIES
Mayor and Village council
Forfeiture of office
FISCAL YEAR
Appropriation amendments during
Generally
FORFEITURES. See: FINES, FORFEITURES AND OTHER
PENALTIES
FRANCHISES
Alter, abolish, amend, etc.
Action requiring an ordinance
G
Section
2.05(b)
4.07
4.06
4.03(4)
GAMBLING
No casino gambling 7.01
GOVERNMENT
Council-manager form of government 1.02
I
IMPROVEMENTS. See: PUBLIC WORKS AND IMPROVE-
MENTS
INITIATIVE AND REFERENDUM
Action on petitions 5.02(e)
Commencement of proceedings 5.02(b)
Petitions 5.02(c)
Power to initiate and reconsider ordinances 5.02(a)
Procedure for filing 5.02(d)
Results of election 5.02(f)
J
JOURNALS
Village council 4.01(b)
KEY BISCAYNE. See: VILLAGE
K
L
LEASES
Alter, abolish, amend, etc.
Action requiring an ordinance
M
4.03(7)
MANAGER. See: VILLAGE MANAGER
C;HTi-S
KEY BISCAYNE CODE
MAYOR Section
Charter transition provisions
Initial election of mayor 8.07
Election and term of office 2.03
Generally 2.02(a)
Initiative and referendum petitions
Certificate of clerk 5.02(d)
No compensation; reimbursement for expenses 2.07
Qualifications 2.04
Recall 2.06
Vacancies; forfeiture office; filling of vacancies 2.05
Vice mayor 2.02(b)
MEETINGS
Council meetings 4.01
MERIT PRINCIPLE
Village personnel regulations 7.04
MONEYS OF VILLAGE. See: FINANCES
N
NONPARTISAN ELECTION. See also: ELECTIONS
Generally 5.01(b)
0
OFFICERS AND EMPLOYEES
Charitable contributions 7.05
Conflicts of interest; ethical standards 7.03
Council
Prohibitions
Appointments and removal 4.02(a)
Holing other office 4.02(c)
Interference with administration 4.02(b)
Personnel system; merit principle 7.04
Salaries
Deferred compensation; pensions re budget 4.05(d)
Mayor and Village council, no compensation 2.07
Village manager 3.02
Village attorney 3.05
Village clerk 3.04
Village manager
Generally 3.01 et seq.
See: VILLAGE MANAGER
ORDINANCES, RESOLUTIONS, ETC.
Action requiring an ordinance
Authentication of ordinances and resolutions
Charter amendments by ordinance
4.03
4.08(a)
6.02(a)
CT-1-Ti•A
CHARTER INDEX
ORDINANCES, RESOLUTIONS, ETC.—Cont'd. Section
Emergency ordinances
Authorization; form 4.04(a)
Effective date 4.04(c)
Emergency appropriations 4.04(e)
Procedure 4.04(b)
Repeal 4.04(d)
Initiative and referendum
Generally 5.02
Power to initiate and reconsider ordinances 5.02(a)
Printing 4.08(c)
Recording 4.08(b)
Village manager's powers and duties 3.03
P
PENALTIES. See: FINES, FORFEITURES AND OTHER PEN-
ALTIES
PENSIONS AND RETIREMENT
Budget
Deferred compensation; pension 4.05(d)
PERSONNEL. See also: OFFICERS AND EMPLOYEES
Village personnel system 7.04
PETITIONS
Initiative and referendum 5.02(c), (e)
PRIMARY ELECTIONS. See also: ELECTIONS
Generally 5.01(d)
PRINTING
Ordinances, resolutions and charter amendments 4.08(c) .
PRONOUNS
Variation of pronouns 7.07
PUBLIC WORKS AND IMPROVEMENTS
Competitive bid requirements re contracts for public improve-
ments
PURCHASES AND PURCHASING
Competitive bid requirements re purchases of supplies, ma-
terials, etc
Q
3.08
3.08
QUORUM
Council meetings quorum 4.01(c)
CHTi: 7
KEY BISCAYNE CODE
R Section
RECALL
Mayor and Village council 2.06
RECORDING
Ordinances, resolutions and charter amendments 4.08(b)
REFERENDUM. See: INITIATIVE AND REFERENDUM
REGULAR ELECTIONS. See also: ELECTIONS
Generally 5.01(e)
REMOVALS
Council prohibitions re interference in 4.02(a)
RESOLUTIONS. See: ORDINANCES, RESOLUTIONS, ETC
REVENUES. See: FINANCES
S
SERVICE OR USER CHARGES
Alter, abolish, amend, etc.
Action requiring an ordinance 4.03(5)
SPECIAL ELECTIONS. See also: ELECTIONS
Generally 5.01(f)
STATE
Village powers derived from 1.04
T
TAXATION
Alter, abolish, amend, etc.
Action requiring an ordinance 4.03(3)
Charter transition provisions , 8.04
Levy 4.09
V
VACANCIES
Mayor and Village council 2.05
VILLAGE
Boundary of corporation 1.03
Construction of powers 1.05
Corporate existence 1.01
Form of government 1.02
Powers 1.04
VILLAGE ATTORNEY
Generally 3.05
CHARTER INDEX
VILLAGE CLERK Section
Generally 3.04
VILLAGE CODE
Administrative provisions 3.06
Charter transition provisions
Interim adoption of Code or ordinances 8.03
VILLAGE COUNCIL
Annual budget adoption 4.05
Appropriation amendments during the fiscal year 4.07
Charitable contributions 7.05
Charter transition provisions
Initial election of council 8.07
Conflicts of interest; ethical standards 7.03
Emergency ordinances
Authorization; form 4.04(a)
Effective date 4.04(c)
Emergency appropriations 4.04(e)
Procedures 4.04(b)
Repeal 4.04(d)
Fiscal year 4.06
Initiative and referendum petitions
Action by council 5.02(e)(1)
Meetings
Generally 4.01(a)
Time limits 4.01(d)
Ordinances
Action requiring 4.03
Authentication, recording and disposition of 4.08
Emergency ordinances 4.04
Prohibitions
Appointments and removals 4.02(a)
Holding other office 4.02(c)
Interference with administration 4.02(b)
Quorum and voting 4.01(c)
Rules and journal 4.01(b)
VILLAGE COUNCIL. See: COUNCIL
VILLAGE MANAGER
Appointment; removal; compensation 3.02
Council-manager form of government 1.02
Generally 3.01
Powers and duties 3.03
CHTi:9
--
I ‘ -
.s:
�o1 CIC!?e �� ; arz
AND TRUST" COMPANY
KE" BISCAYNE, FLORIDA 33149
,305 36I-9100
March 13, 1995
Mr. Guido H. Inguanzo, Jr
Village Clerk
Village of Key Biscayne
85 West McIntyre Street
Key Biscayne, FL 33149
Dear Mr. Inguanzo:
The Key Biscayne Bank and Trust Company and the First Union National Bank of
Florida (the "Banks") are pleased to commit the credit facility described below to the
Village of Key Biscayne subject to the following terms and conditions:
Borrower: The Village of Key Biscayne (the "Village")
Amount: Up to $7,200,000
Facility: Bond Anticipation Note
Purpose: To finance a portion of the construction of a Stormwater
Utility facility.
Interest:
Security:
Maturity:
Interest semi-annually paid October 1 and April 1,
commencing October 1, 1995. Principal shall be due and
payable at the stated maturity.
The Village shall covenant to budget and appropriate to the
extent necessary that amount required to meet debt service
requirements from all legally available non ad valorem
revenues.
Option I: Principal shall be due and payable April 1,
1996.
Option II: Principal shall be due and payable April 1,
1997.
Pricing:
Prepayment:
Option I:
Option II:
4.74 % Fixed
4.89 % Fixed
The Village may prepay in whole at anytime with no
prepayment penalty upon three days prior written notice
being delivered to the Key Biscayne Bank and Trust
Company.
Compliance with Request for Proposals:
1. The following officers represent their respective institutions
accordingly:
Key Biscayne Bank and Trust Company
Jess S. Lawhorn
Executive Vice President
85 West McIntyre Street
Key Biscayne, FL 33149
(305) 361-9100
First Union National Bank of Florida
Deborah A. Buchanan
Vice President
200 S. Biscayne Blvd.
Miami, FL 33131
(305) 789-5074
2. This Commitment has been approved. No further credit
approval is required.
3. A. Option I: $341,280.00
Option II: $704,160.00
B. Bank legal counsel - Actual not to exceed $4,000.
C. See "Conditions"
D. The Banks are willing to provide up to two annual
renewals of principal only at a fixed rate to be determined
no earlier than two weeks (14 actual days) prior to such
renewal or renewals.
2
Conditions: 1.
In the event that the interest on any drawing under this
Commitment is ever determined to be taxable for purposes
of federal or state income taxation, or in the event that any
or all of the interest on any drawing under this
Commitment is deemed to be included in the gross income
of the Banks for federal or state income taxation, or in the
event the Banks are unable to deduct any other amounts as
a result of purchasing or carrying any borrowings resultant
from the Commitment, or in the event of any action which
would otherwise decrease the after tax or taxable
equivalent yield to the Banks, the interest on this
Commitment shall be subject to a full gross up
modification. A determination by the Banks, its counsel
and bond counsel shall be conclusive. In no event,
however, shall the interest rate on this Commitment exceed
the maximum rate permitted by law.
2. The unqualified, approving legal opinion of Bond Counsel to
the Village shall be delivered to the Banks at closing
without cost to the Banks and shall be in form and content
acceptable to the Banks.
All documents shall be reviewed by the Banks and their
counsel. Costs of Banks' counsel, as well as any other
Bank cost incurred on behalf of the Village, shall be borne
by the Village and shall be due and payable upon closing.
Should Bank Counsel review documents only, the cost of
Bank Counsel shall not exceed $4,000.
3. This Commitment shall remain in full force and effect
through 4:00 p.m., local time, May 8, 1995, at which time,
if not accepted by execution of the acceptance clause
below and delivered to the Key Biscayne Bank and Trust
Co. at its main office this Commitment shall expire and
shall not be enforceable by either the Banks or the Village
unless extended by the Banks in writing. At the time of
acceptance the Village must notify the Banks of the
interest rate option selected. Unless extended in writing by
the Banks, this facility must close no later than May 8,
1995.
3
6. If the Banks choose to waive any covenant, paragraph, or
provision of this Commitment, or if any covenant,
paragraph, or provision of this Commitment is construed by
a court of competent jurisdiction to be invalid, it shall not
affect the applicability, validity or enforceability of the
remaining covenants, paragraphs or provisions.
The Key Biscayne Bank and Trust Company and the First Union National Bank of
Florida appreciate the opportunity to submit this Commitment to you and look forward
to your favorable response. Should you have any questions, please do not hesitate
to contact us at the phone numbers previously listed
Very truly yours,
KEY aISCAYNE BANK AND TRUST COMPANY
/r,---�'G�-/,
Jess S. Lawhorn
/ Executive Vice President
,JEST UNION NATIONAL BANK OF FLORIDA
_ LL:-
-Deborah A. Buchanan
Vice President
ACCEPTANCE
The above Commitment is hereby accepted on the terms and conditions outlined
therein by authority of the Governing Board of the:
VILLAGE OF KEY BISCAYNE
By: L;
Its: V[ t [147e 14 i2
4
Date: (f J0195
41(C1
116
04114,1
AND TRUSTCOMPANY
KEY BISCAYNE, FLORIDA 33149
30S 361-9100
March 13, 1995
Mr. Guido H. lnguanzo, Jr
Village Clerk
Village of Key Biscayne
85 West McIntyre Street
Key Biscayne, FL 33149
Dear Mr. Inguanzo:
The Key Biscayne Bank and Trust Company and the First Union National Bank of
Florida (the "Banks") are pleased to commit the credit facility described below to the
Village of Key Biscayne subject to the following terms and conditions:
Borrower: The Village of Key Biscayne (the "Village")
Amount: Up to $7,200,000
Facility: Bond Anticipation Note
Purpose: To finance a portion of the construction of a Stormwater
Utility facility.
Interest:
Security:
Maturity:
Interest semi-annually paid October 1 and April 1,
commencing October 1, 1995. Principal shall be due and
payable at the stated maturity.
The Village shall covenant to budget and appropriate to the
extent necessary that amount required to meet debt service
requirements from all legally available non ad valorem
revenues.
Option I: Principal shall be due and payable April 1,
1996.
Option II: Principal shall be due and payable April 1,
1997.
Pricing:
Prepayment:
Option I:
Option II:
4.74 % Fixed
4.89 % Fixed
The Village may prepay in whole at anytime with no
prepayment penalty upon three days prior written notice
being delivered to the Key Biscayne Bank and Trust
Company.
Compliance with Request for Proposals:
1. The following officers represent their respective institutions
accordingly:
Key Biscayne Bank and Trust Company
Jess S. Lawhorn
Executive Vice President
85 West McIntyre Street
Key Biscayne, FL 33149
(305) 361-9100
First Union National Bank of Florida
Deborah A. Buchanan
Vice President
200 S. Biscayne Blvd.
Miami, FL 33131
(305) 789-5074
2. This Commitment has been approved. No further credit
approval is required.
3. A. Option I: $341,280.00
Option II: $704,160.00
B. Bank legal counsel - Actual not to exceed $4,000.
C. See "Conditions"
D. The Banks are willing to provide up to two annual
renewals of principal only at a fixed rate to be determined
no earlier than two weeks (14 actual days) prior to such
renewal or renewals.
2
Conditions: 1.
In the event that the interest on any drawing under this
Commitment is ever determined to be taxable for purposes
of federal or state income taxation, or in the event that any
or all of the interest on any drawing under this
Commitment is deemed to be included in the gross income
of the Banks for federal or state income taxation, or in the
event the Banks are unable to deduct any other amounts as
a result of purchasing or carrying any borrowings resultant
from the Commitment, or in the event of any action which
would otherwise decrease the after tax or taxable
equivalent yield to the Banks, the interest on this
Commitment shall be subject to a full gross up
modification. A determination by the Banks, its counsel
and bond counsel shall be conclusive. In no event,
however, shall the interest rate on this Commitment exceed
the maximum rate permitted by law.
2 The unqualified, approving legal opinion of Bond Counsel to
the Village shall be delivered to the Banks at closing
without cost to the Banks and shall be in form and content
acceptable to the Banks.
All documents shall be reviewed by the Banks and their
counsel. Costs of Banks' counsel, as well as any other
Bank cost incurred on behalf of the Village, shall be borne
by the Village and shall be due and payable upon closing.
Should Bank Counsel review documents only, the cost of
Bank Counsel shall not exceed $4,000.
3. This Commitment shall remain in full force and effect
through 4:00 p.m., local time, May 8, 1995, at which time,
if not accepted by execution of the acceptance clause
below and delivered to the Key Biscayne Bank and Trust
Co. at its main office this Commitment shall expire and
shall not be enforceable by either the Banks or the Village
unless extended by the Banks in writing. At the time of
acceptance the Village must notify the Banks of the
interest rate option selected. Unless extended in writing by
the Banks, this facility must close no later than May 8,
1995.
3
6. If the Banks choose to waive any covenant, paragraph, or
provision of this Commitment, or if any covenant,
paragraph, or provision of this Commitment is construed by
a court of competent jurisdiction to be invalid, it shall not
affect the applicability, validity or enforceability of the
remaining covenants, paragraphs or provisions.
The Key Biscayne Bank and Trust Company and the First Union National Bank of
Florida appreciate the opportunity to submit this Commitment to you and look forward
to your favorable response. Should you have any questions, please do not hesitate
to contact us at the phone numbers previously listed
Very truly yours,
KEY pISCAYNE BANK /ND TRUST COMPANY
.f
Jess S. Lawhorn
/ Executive Vice President
,-FAST UNION NATIONAL BANK OF FLORIDA
Deborah A. Buchanan
Vice President
ACCEPTANCE
The above Commitment is hereby accepted on the terms and conditions outlined
therein by authority of the Governing Board of the:
VILLAGE OF KEY BISCAYNE
•
By: ��„ 1��� L, cc Q -L
Its: V 11147
Date:
, 10195-
4
April 11, 1995
To: Village of Key Biscayne, Florida
Re: $7,200,000 Village of Key Biscayne, Florida Stormwater
Utility Revenue Bond Anticipation Notes, Series 1995
Ladies and Gentlemen:
The undersigned (the "Purchaser") has agreed to purchase
from the Village of Key Biscayne, Florida (the "Village"),
the Notes referenced above (the "Notes"). The Notes are
being sold directly to the Purchaser.
The purpose of this letter is to furnish, pursuant to the
provisions of Subsections (2), (3) and (6) of Section
218.385, Florida Statutes, as amended, certain information
with respect to the purchase and sale of Notes, as follows:
(a) There is no managing underwriter for the Notes.
(b) There are no "finders," as defined in Section 218.386,
Florida Statutes, as amended, with respect to the
Notes.
(c) There is no underwriting spread with respect to the
Notes.
(d) No management fee will be charged by the Purchaser.
No commitment fee will be charged by the Purchaser.
(e) No fee, bonus or other compensation will be paid by
the Purchaser in connection with the Notes to any
person not regularly employed or retained by it.
(f) The name and address of the Purchaser is Key Biscayne
Bank and Trust Company, 85 West McIntyre Street, Key
Biscayne, FL 33149.
(g) The Village is proposing to issue $7,200,000 of Notes
for the purpose of expanding and improving the
Stormwater Utility System within the Village and
paying costs of issuance of the Notes. The Notes are
expected to be repaid over 2 years. At an interest
rate of 4.89%, total interest paid over the life of
Notes will be $687,534. The source of repayment or
security for the Notes is expected to be the proceeds
of bonds in anticipation of which the Notes are being
issued and a covenant to budget and appropriate from
legally available Non -Ad Valorem Revenues of the
Village. Authorizing the Notes will result in
approximately $335,454 and $352,080, respectively, in
the next 2 fiscal years, of general fund moneys not
being available to finance the other services of the
Village.
(h) The Purchaser understands that you require no other
disclosures with respect to the Notes.
Very truly yours,
KEY BISCAYNE BANK AND
TRUST COMPANY
J
Bry:/ / i
Jess S. L'awhorn
Executive Vice
President
M/1016JDD/041495
2
RUDEN, BARNETT, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A.
ATTORNEYS AT LAW
701 BRICKELL AVENUE
FORT LAUDERDALE SUITE 1900 SARASOTA
NAPLES MIAMI, FLORIDA 33131 TALLAHASSEE
(305) 789-2700
BROWARD LINE (305) 763-2311
FAX (305) 789-2793
March 21, 1995
FEDERAL EXPRESS
State of Florida
Division of Bond Finance
State Board of Administration
502 North Adams Street
Tallahassee, FL 32301
Attention: Sharon W. Robinson
WRITER'S DIRECT DIAL NUMBER
(305) 789-2762
Re: $7,200,000 Village of Key Biscayne, Florida Stormwater
Utility Revenue Bond Anticipation Notes, Series 1995
Ladies and Gentlemen:
We are serving as Bond Counsel for the issuance by the
Village of Key Biscayne, Florida of its $7,200,000 Stormwater
Utility Revenue Bond Anticipation Notes, Series 1995 (the
"Notes"). The purpose of this letter is to inform you, as
required by Section 218.38, Florida Statutes, as amended, that
the Notes are expected to be sold pursuant to negotiated sale
(private placement) on March 28, 1995 and issued on March 31,
1995.
The Notes are being issued to provide funds for expanding
and improving a stormwater utility system within the Village
and paying costs of issuance of the Notes.
We will send to you Forms 2003 and 2004 when available. If
you have any questions, please call me at (305) 789-2762.
r)
raj
CO
Division of Bond Finance
March 21, 1995
Page 2
Please execute the acknowledgment on the enclosed copy of
this letter and return it to my attention.
Very truly yours,
JDD:sy
I ds
hereby acknowledge receipt of
this letter.
Title:
Date:
RUDEN, BARNETT, McCLOSKY, SMITH,
SCHU TER & RUSSELL, P.A.
Jeffrey D. DeCarlo
M/101TJDD
of ir,rwt n e nkirrr kA -C I r1CW CAAITI.J CCI-1I ICTI P R, P1 NSF! I P A
INCUMBENCY CERTIFICATE
Guido H. Inguanzo, Jr., Village Clerk of the Village of Key
Biscayne, Florida (the "Village"), DOES HEREBY CERTIFY as
follows:
The following are now, and have been continuously since the
dates of beginning of their respective terms shown below, the
duly elected, qualified and acting members of the Village
Council of the Village (the "Council"), and the dates of the
beginning and ending of their respective terms are hereunder
correctly designated opposite their names:
Member
John F. Festa
Betty Sime
Raul Llorente
Michele Padovan
Hugh T. O'Reilly
Raymond P. Sullivan
John Waid
Beginning Date
of Term
11/9/93
3/17/92
11/9/93
11/15/94
11/15/94
9/23/91
11/9/93
Ending Date
of Current Term
11/12/96
11/10/98
11/12/96
11/10/98
11/10/98
11/12/96
11/12/96
The following are now, and have been continuously since the
dates of beginning of their respective current terms of office
shown below, the duly elected or appointed, qualified and
acting officers of the Village and the dates of the beginning
and ending of their respective current terms of office are
hereunder correctly designated opposite their names:
Title
Mayor
Vice Mayor
Village
Manager
Beginning
Date of
Name Current Term
John F. Festa 11/9/93
Betty Sime 11/15/94
C. Samuel Kissinger 3/2/92
Ending
Date of
Current Term
11/12/96
11/1
I 41.75 5
Discretion of
Council
Village Guido H. Inguanzo, 10/1/92 Discretion of
Clerk Jr. Council
Village
Attorney
Weiss Serota &
Helfman, P.A.
10/29/91
Discretion of
Council
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the official seal of the Village this 17th day of April, 1995.
Vill
M/1018JDD/041395
Clerk
SIGNATURE AND NO LITIGATION CERTIFICATE
We, the undersigned, DO HEREBY CERTIFY as follows:
1. That we did heretofore cause to be officially
documented the $7,200,000 Stormwater Utility Revenue Bond
Anticipation Notes, Series 1995 of the Village of Key Biscayne,
Florida (the "Village") dated April 17, 1995, issued as one
Note in the principal amount of $7,200,000 (the "Notes").
2. That John F. Festa, Mayor of the Village, has executed
the Notes by his manual signature, and that the Mayor was on
the date his signature was placed on the Notes and is now the
duly elected, qualified and acting Mayor of the Village.
3. That we have caused the official seal of the Village
to be imprinted on the Notes, and that Guido H. Inguanzo, Jr.,
Village Clerk of the Village, caused such seal to be attested
by his signature, and that said Guido H. Inguanzo, Jr. was on
the date his signature was placed on the Notes and is now the
duly appointed, qualified and acting Village Clerk of the
Village.
4. That the seal which has been impressed on the Notes
and upon this certificate is the legally adopted, proper and
only seal of the Village.
5. That the Village Council, by Ordinance No. 95-3
adopted on March 28, 1995 and Resolution No. 95-11, adopted on
April 11, 1995, has authorized the issuance of the Notes and
said Ordinance and Resolution have not been modified or amended
since the date of such adoption.
6. That the Village has complied with all of the
agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to delivery of the Notes.
7. That no approval, authorization, consent or other
order of any public board or body which has not heretofore been
obtained is required for the issuance and delivery of the Notes.
8. That no litigation or other proceedings to which the
Village is a party are pending, or, to our knowledge,
threatened, in any court or other tribunal of competent
jurisdiction, state or federal, in any way (a) restraining or
enjoining the issuance, sale or delivery of the Notes,
(b) questioning or affecting the validity of the Notes or the
covenant of the Village to budget and appropriate from legally
available Non Ad -Valorem Revenues of the village amounts
sufficient to pay the principal of and interest on the Notes,
as provided under the aforesaid documents, (c) questioning or
affecting the validity of any proceedings for the
authorization, sale, execution, issuance or delivery of the
Notes, (d) questioning or affecting the organization or
existence of the Village or the title to office of the officers
thereof, or (e) questioning or affecting the power and
authority of the Village to issue the Notes or any revenue
bonds in anticipation of which the Notes are being issued, nor
do the undersigned have any knowledge that there is any basis
therefor.
9. That the execution, delivery, receipt and due
performance of the Notes under the circumstances contemplated
thereby and compliance with the provisions thereof do not
conflict with or constitute a breach of or a default under any
existing law, court or administrative regulation, decree or
order or any agreement, indenture, lease or other instrument to
which the Village is subject or by which the Village is or may
be bound.
IN WITNESS WHEREOF, we have hereunto set our hands and
affixed the official seal of the Village this 17th day of
April, 1995.
(SEAL)
.; {
fr rt
Signature
1441,
loth'
M/1019JDD/041395
Title of Office
Mayor
Village Clerk
2
Term of Office
Expires
11/12/96
Discretion of
Village Council
CERTIFICATE OF PURCHASER
The undersigned on behalf of the Purchaser, Key Biscayne
Bank and Trust Company (the "Purchaser"), hereby certifies and
acknowledges in connection with the purchase by it of
$7,200,000 Village of Key Biscayne, Florida Stormwater Utility
Revenue Bond Anticipation Notes, Series 1995 (the "Notes") that:
1. The Purchaser has received executed copies of
Ordinance No. 95-3 adopted by the Village Council of the
Village of Key Biscayne, Florida (the "Village") on March 28,
1995 and of Resolution No. 95-11 adopted by the Village Council
of the Village on April 11, 1995, and said Ordinance and
Resolution are in form and substance satisfactory to the
Purchaser.
2. The Purchaser has conducted its own investigations, to
the extent it deems satisfactory or sufficient, into matters
relating to the business, properties, management, and financial
position and results of operations of the Village in connection
with the issuance by the Village of the Notes; it has received
such information concerning the Village as it deems to be
necessary in connection with investment in the Notes; and
during the course of this transaction and prior to the purchase
of the Notes it has been provided with the opportunity to ask
questions of and receive answers from the Village concerning
the terms and conditions of the offering of the Notes, and to
obtain any additional information needed in order to verify the
accuracy of the information obtained.
3. The Purchaser has sufficient knowledge and experience
in financial and business matters, including purchase and
ownership of municipal and other tax-exempt obligations, to be
able to evaluate the risks and merits of the investment
represented by the purchase of the above -stated principal
amount of the Notes.
4. The Purchaser is aware that certain economic variables
could affect the security of its investment in the Notes and
the Purchaser is able to bear the economic risks of such
investment.
5. The Purchaser understands that no offering statement,
prospectus, offering circular or other comprehensive offering
statement containing material information with respect to the
Village and the Notes is being issued in connection with the
Notes and that it has made its own inquiry and analysis with
respect to the Notes and the security therefor, and other
material factors affecting the security for and payment of the
Notes.
6. The Purchaser acknowledges and represents that it has
not sought from Bond Counsel or received from Bond Counsel or
looked or relied upon Bond Counsel for any information with
respect to the Village or its financial condition, other than
reliance upon the Bond Counsel opinion.
7. The Purchaser is a bank as defined in Section 3(a)(2)
of the Securities Act of 1933, as amended.
8. The Purchaser hereby certifies that it is purchasing
the Notes for its own account for the purpose of investment and
not for resale at a profit, and it has no present intention of
reselling or otherwise redistributing the Notes; provided that
the foregoing shall not preclude the Purchaser from offering a
participation interest in the Notes to First Union National
Bank of Florida. The Purchaser will not sell the Notes except
to another institutional or accredited investor who will
execute a Certificate of Purchaser in form and substance
identical to this Certificate which certifies that it is
purchasing the Notes for its own account and not for resale,
and will not sell, convey, pledge or otherwise transfer the
Notes without prior compliance with applicable registration and
disclosure requirements of state and federal securities laws.
Dated this 17th day of April, 1995.
KEY BISCAYNE BANK AND TRUST
COMPANY
M/1020300/041395
2
//
By: / _e0,—)
( Jess S. L-awho r rv'
Executive Vice President
//
ARBITRAGE CERTIFICATE
The undersigned is the Village Manager of the Village of Key
Biscayne, Florida (the "Village"), and hereby certifies the
following with respect to the Village's $7,200,000 Stormwater
Utility Revenue Bond Anticipation Notes, Series 1995, being issued
on the date hereof (the "Series 1995 Notes"). The undersigned is
the official charged with others with responsibility for issuing
the Series 1995 Notes.
1. General
(a) The Series 1995 Notes are being issued pursuant to the
authority of Chapter 166, Part II, Florida Statutes, as amended,
the Charter of the Village and other applicable provisions of law,
and Ordinance No. 95-3 adopted by the Village Council of the
Village on March 28, 1995 and Resolution No. 95-11 adopted by the
Village Council of the Village on April 11, 1995 (collectively, the
"Ordinance"). Capitalized terms used herein but not otherwise
specifically defined have the same meanings as when used in the
Ordinance.
(b) This certification is made under 26 CFR § 1.148-2(b)(2)
relating to "arbitrage bonds" as defined in Section 148 of the
Internal Revenue Code of 1986, as amended (the "Code"). Terms used
herein which are not capitalized or specifically defined have the
same meanings as when used in 26 CFR SS 1.148-1 - 1.148-11. The
undersigned has investigated the facts, estimates, and
circumstances in existence on the date hereof. Such facts
estimates, and circumstances, together with the expectations of the
Village as to future events, are set forth in summary form in this
certificate. On the basis of such facts, estimates, and
circumstances, it is not expected that the proceeds of the Series
1995 Notes will be used in any manner that would cause the Series
1995 Notes to be "arbitrage bonds" within the meaning of the Code
and regulations. To the best of my knowledge and belief, such
expectations are reasonable and there are no facts, estimates, or
circumstances that would materially change them.
(c) The Series 1995 Notes are being issued for the purpose of
providing funds: (i) to pay the costs of expanding and improving
the Stormwater Utility System within the Village (the "Project");
and (ii) to pay costs of issuing of the Series 1995 Notes.
(a) The proceeds received from the sale of the Series 1995
Notes will be $7,200,000 (the "Sale Proceeds") representing
$7,200,000 principal amount plus accrued interest of $0.
(b) All of the Sale Proceeds will be deposited in the Project
Fund on the date hereof. The Sale Proceeds, together with all
earnings derived from the investment thereof, will be used to pay
costs of issuing the Series 1995 Notes and costs of the Project
within 3 years of the date hereof. The Village reasonably expects
to incur binding obligations to third parties in an amount in
excess of $360,000 to acquire and construct the Project within 6
months of the date hereof. Work on the Project and the expenditure
of Sale Proceeds will proceed with due diligence to the completion
thereof, which currently is anticipated by October, 1996.
(c) The Sale Proceeds, together will all amounts derived from
the investment thereof, will not exceed by any amount the amount
necessary to pay the costs of the Project and the costs of issuing
the Series 1995 Notes.
3. Flow of Funds
(a) The Village is required under the Ordinance on each
Interest Payment Date to deposit Non -Ad Valorem Revenues into the
Note Fund, which, together with other moneys therein, are
sufficient to pay the principal of and interest on the Series 1995
Notes on such Interest Payment Date.
(b) The Note Fund has been established to achieve a proper
matching of revenues and debt service within each bond year and
will be depleted at least once each year (except for a reasonable
carryover amount that will not exceed the greater of one year's
earnings on the Note Fund and 1/12 of annual debt service on the
Series 1995 Notes). All amounts in the Note Fund will be expended
to pay debt service on the Series 1995 Notes within 13 months of
the date of receipt thereof (12 months if the amounts are interest
or income from the investment of such amounts).
MIA:2790:1
2
(c) The Rebate Fund is not pledged to pay debt service on the
Series 1995 Notes and will not be available if needed to pay such
debt service.
4. Yield Restrictions
(a) The restrictions set forth in this Section 4 apply to
taxable investments. For this purpose, taxable investments include
all investments other than obligations the interest on which is (i)
excluded from gross income for federal income tax purposes; and
(ii) not an item of tax preference for federal alternative minimum
tax purposes.
(b) Sale Proceeds and interest or income derived from the
investment thereof will not be invested in taxable investments that
produce a yield over the term of the Series 1995 Notes that exceeds
the yield on the Series 1995 Notes by more than 1/8 percent except
as follows:
(i) All amounts may be invested without regard to
yield until the date that is 3 years after the date
hereof;
(ii) Amounts representing investment earnings may be
invested without regard to yield for a 1 -year period
beginning on the date of receipt thereof; and
(iii) An additional amount not in excess of $100,000
may be invested without regard to yield.
(c) Amounts in the Note Fund that are not to be used within 13
months of the date of receipt thereof (12 months if the amounts are
interest or income from the investment of such amounts) to pay debt
service on the Series 1995 Notes will not be invested in taxable
investments that produce a yield over the term of the Series 1995
Notes that exceeds the yield on the Series 1995 Notes except to the
extent that the aggregate amount so invested does not exceed the
difference between $100,000 and any amounts invested pursuant to
the $100,000 exception under Section 4(b)(iii) hereof.
MIA:2790:1
3
(d) There are no funds or accounts in existence or that are
expected to be established in addition to the funds referred to
herein that are reasonably expected to be used (directly or
indirectly) or that will be pledged (directly or indirectly) to pay
debt service on the Series 1995 Notes. If any such fund or account
is established after the date hereof, amounts in the fund or
account will not be invested at a yield higher than the yield on
the Series 1995 Notes to the extent necessary to preserve the
federal income tax exemption of interest on the Series 1995 Notes.
(e) The yield on the Series 1995 Notes for purposes of this
Section 4 is 4.89%, computed on the basis of a 30 day month and 360
day year and with interest compounded semiannually. For purposes
of computing the yield, the issue price of the Series 1995 Notes is
$7,200,000 (the principal amount plus accrued interest). See
Exhibit A attached hereto.
(f) If any taxable investments are subject to yield
restrictions under this Section 4, the yield produced by the
taxable investments shall be computed on the basis of a 30 day
month and 360 day year and with interest compounded semiannually.
For purposes of computing yield, the purchase price shall be
determined as provided in 26 CFR § 1.148-5, and brokerage and
selling commissions may be taken into account to the extent
permitted thereunder.
5. Miscellaneous
(a) No more than 50 percent of the proceeds of the Series 1995
Notes will be invested in nonpurpose investments having a
substantially guaranteed yield for four years or more (within the
meaning of section 149(g) (3) (A) (ii) of the Code) .
(b) Amounts that are subject to yield restriction under
section 4 hereof (determined without regard to the $100,000
exception) will not be invested (directly or indirectly) in
federally insured deposits or accounts (within the meaning of
section 149(b)(4)(B) of the Code) if such investment would exceed
the limit of 5 percent of the proceeds of the Series 1995 Notes
contained in section 149(b)(2)(B) of the Code.
MIA:2790:1
4
(c) No portion of the proceeds of the Series 1995 Notes will
be used as a substitute for other funds that were otherwise to be
used as a source of financing for any portion of the Project and
which have been or will be used (directly or indirectly) to acquire
investments producing a yield higher than the yield on the Series
1995 Notes.
(d) There are no other obligations of the Village (i) that are
or will be sold (issued, in the case of variable rate obligations)
at substantially the same time as the Series 1995 Notes; and (ii)
that are to be paid out of substantially the same source of funds
(or that will have substantially the same claim to be paid out of
substantially the same source of funds) as will be used to pay the
Series 1995 Notes.
(e) The Village has covenanted that neither the Village nor
any person under the control or direction of the Village will make
any investment or use of the proceeds of the Series 1995 Notes that
would cause the Series 1995 Notes to be "arbitrage bonds" within
the meaning of section 148 of the Code. No portion of the proceeds
of the Series 1995 Notes will be intentionally used in the manner
described in section 148(a)(1) or (a)(2) of the Code. The Village
has covenanted to comply with the Arbitrage Rebate Covenants
attached hereto as Exhibit B.
(f) The Village has covenanted that neither the Village nor
any person under the control or direction of the Village will make
any investment or use of the proceeds of the Series 1995 Notes that
would cause the Series 1995 Notes to be "private activity bonds"
within the meaning of section 141 of the Code. The Project will be
owned and operated by the Village, and no portion of the Project
will be used in the trade or business of any person other than a
governmental unit (within the meaning of section 141 of the Code).
(g) The Village reasonably expects as of the date hereof that
at least 75 percent of the available construction proceeds (within
the meaning of 26 CFR § 1.148-7(i)) of the Series 1995 Bonds will
be allocated to construction expenditures (within the meaning of 26
CFR § 1.148-7(g)) for property owned by the Village.
MIA:2790:1
5
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 17th day of April, 1995.
VILLAGE OF KEY BISCAYNE, FLORIDA
By:
MIA:2790:1
6
. Samuel `R"issi - er
Village Manag_r
EXHIBIT A
ISSUE PRICE CERTIFICATE
This certificate is delivered in connection with the issuance
of $7,200,000 Stormwater Utility Revenue Bond Anticipation Notes,
Series 1995, being issued on the date hereof (the "Series 1995
Notes").
Key Biscayne Bank and Trust Company (the "Bank") does hereby
certify as follows:
1. The Bank is purchasing the Series 1995 Notes for its own
account and without any intent to reoffer the bonds to the public.
2. The total amount paid as the purchase price of the Series
1995 Notes is $7,200,000, representing $7,200,000 principal amount
and $0 accrued interest.
IN WITNESS WHEREOF, the Bank has caused this certificate to be
executed in its name on this 17th day of April, 1995 by one of its
officers duly authorized as of such date.
KEY BISCAANE BANK ANP TRUST COMPANY
By: '__<>5? /,/
7. ''
'� Jess S. Lawhorn
Executive Vice President
EXHIBIT B
ARBITRAGE REBATE COVENANTS
The Village of Key Biscayne, Florida (the "Village") hereby
covenants to comply with the following provisions and procedures to
insure that the Village's $7,200,000 Stormwater Utility Revenue
Bond Anticipation Notes, Series 1995, being issued on the date
hereof (the "Series 1995 Notes") comply with the arbitrage
requirements of section 148 of the Code. The covenants and
procedures herein shall not apply to the extent, if any, that the
Series 1995 Notes are treated as meeting the requirements of
Section 148(f) of the Code by reason of any exception contained in
section 148(f)(4) of the Code or 26 CFR § 1.148-7.
1. Definitions
(a) Capitalized terms used herein but not otherwise
specifically defined have the same meanings as when used in the
Arbitrage Certificate to which this document is attached.
(b) Terms used herein and in 26 CFR SS 1.148-1 -.148-11 that
are not capitalized have the same meanings as when used in such
regulations.
(c) The following definitions apply for purposes of this
document:
"Calculation Date" means each 5 -Year Calculation Date, the
Final Calculation Date, and any other date as of which the Village
chooses to calculate the Rebate Amount.
"5 -Year Calculation Date" means, with respect to the first 5 -
Year Calculation Date, a date chosen by the Village that is not
more than 5 years after the date hereof, and with respect to each
subsequent 5 -Year Calculation Date, a date chosen by the Village
which is not more than 5 years after the preceding 5 -Year
Calculation Date.
"Final Calculation Date" means the date the last Series 1995
Bond is discharged.
"Gross Proceeds" means (i) all amounts actually or
constructively received from the sale of the Series 1995 Notes
(exclusive of accrued interest) and all amounts derived from the
investment thereof; and (ii) all amounts that are part of a sinking
fund or reserve or replacement fund to the extent allocable to the
Series 1995 Notes. Such term shall not include amounts that are
MIA:2790:1
1
part of a bona fide debt service fund for the Series 1995 Notes.
"Rebate Amount" means the rebate amount with respect to the
Series 1995 Notes calculated as of any Calculation Date in the
manner provided in 26 CFR §§ 1.148-1 -.148-11.
"Required Calculation Date" means each 5 -Year Calculation Date
and the Final Calculation Date.
1. In General
In order for interest on the Series 1995 Notes to be excluded
from gross income, arbitrage profits earned from investing all the
Gross Proceeds must be paid to the United States no later than 60
days after each Required Calculation Date.
2. Rebate Fund and Payment
(a) The Village shall calculate the Rebate Amount as of each
Required Calculation Date no later than 50 days after each Required
Calculation Date.
(b) If the amount in the Rebate Fund is less than the Rebate
Amount calculated as of a Required Calculation Date, the Village
shall deposit into the Rebate Fund the amount necessary to increase
the amount therein to the Rebate Amount no later than 60 days after
the Required Calculation Date.
(c) If the amount in the Rebate Fund is greater than the
Rebate Amount calculated as of any Calculation Date, the Village
shall withdraw the excess from such Fund.
(d) The Village shall pay the full amount, if any, required to
be paid to the United States out of amounts in the Series 1995
Rebate Fund no later than 60 days after each 5 -Year Calculation
Date and no later than 60 days after the Final Calculation Date.
3. Rebate Calculation
(a) The Rebate Amount as of any Calculation Date is computed
by future valuing certain investment receipts and payments at an
interest rate equal to the yield on the Series 1995 Notes computed
as of the Calculation Date.
(b) The yield on the Series 1995 Notes as of the date hereof
is 4.89%, computed on the basis of a 30 day month and 360 day year
and with interest compounded semiannually. For purposes of
computing the yield on the Series 1995 Notes, the issue price of
the Series 1995 Notes is $7,200,000. The Village shall recompute
the yield on the Series 1995 Notes if required by the regulations
under section 148(f) of the Code.
(c) The Village shall (i) if necessary, retain an experienced
professional to perform calculations relating to the Rebate Amount;
(ii) consult legal counsel experienced in matters relating to such
calculations to resolve issues that may arise and for which it is
necessary to consult legal counsel; and (iii) retain all records
with respect to the calculations and any payments to the United
States for at least 6 years after the last Series 1995 Bond is
discharged.
(d) Payments to the United States shall be filed with the
Internal Revenue Service Center, Philadelphia, Pennsylvania 19255
on or before the payment is required to be paid and shall be
accompanied by Form 8038-T or such other form as is prescribed for
such purpose.
4. Investment Restrictions
(a) No investment (other than a United States Treasury
security of the State and Local Government Series) of Gross
Proceeds shall be acquired for an amount in excess of its fair
market value or sold or disposed of for an amount less than its
fair market value.
(b) The Village shall not enter into any investment contract
to invest Gross Proceeds unless: (i) the Village makes a Dona fide
solicitation for an investment contract with specified material
terms and receives at least 3 Dona fide bids from different
reasonably competitive providers of investment contracts that have
no material financial interest in the Series 1995 Notes; (ii) the
Village purchases the highest -yielding investment contract (net of
broker fees) for which a qualifying bid is made; (iii) the
determination of the terms of the investment contract takes into
account as a significant factor the Village's reasonably expected
drawdown schedule for the funds to be invested, exclusive of
MIA:2790:1
3
amounts deposited in debt service funds and reasonably required
reserve or replacement funds; (iv) the terms of the investment
contract are reasonable, including collateral security
requirements; (v) the obligor on the investment contract certifies
the administrative costs (including any broker fees or commissions)
that it is paying (or expects to pay) to third parties in
connection with the investment contract; and (vi) the yield on the
investment contract is not less than the yield then available from
the obligor on reasonably comparable investment contracts offered
to other persons, if any, from a source of funds other than gross
proceeds of tax-exempt bonds.
(c) The Village shall not use Gross Proceeds to purchase a
certificate of deposit that is not actively traded in an active
secondary market if the certificate of deposit has a fixed interest
rate, a fixed principal payment schedule, a fixed maturity, and a
substantial penalty for early withdrawal ("CD") unless the yield on
the CD is not less than: (i) the yield on reasonably comparable
direct obligations of the United States; and (ii) the highest yield
that is published or posted by the provider to be currently
available from the provider on comparable CDs offered to the
public.
5. Compliance
The Village shall take all necessary and desirable steps to
comply with the requirements and provisions and procedures
hereunder to insure that interest on the Series 1995 Notes is
excluded from federal gross income; provided that compliance with
any such requirement shall not be required in the event the Village
obtains an opinion of nationally recognized bond counsel that (i)
compliance with such requirement is not necessary to maintain such
exclusion; or (ii) compliance with some other requirement in lieu
of such requirement will satisfy the requirements of section 148 of
the Code (and such other requirement is complied with).
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 17th day of April, 1995.
VILLAGE OF KEY B SCYNE, FLORIDA
By:
MIA:2790:1
4
. Samuel Kiss
Village Man
CERTIFICATE REGARDING QUALIFICATION
UNDER SECTION 265(b)(3) OF THE CODE
I certify the following with respect to the $7,200,000
Village of Key Biscayne, Florida, Stormwater Utility Revenue
Bond Anticipation Notes, Series 1995 (the "Notes"), dated
April 17, 1995, and being issued today by the Village of Key
Biscayne, Florida (the "Village").
1. The purpose of this certificate is to provide the
basis upon which counsel may render an opinion that the Notes
are qualified tax-exempt obligations as defined in section
265(b)(3)(B) of the Internal Revenue Code of 1986 (the "Code").
2. The Village has not and does not reasonably anticipate
that it will issue any tax-exempt obligations during calendar
year 1995 other than the Notes. There are no outstanding lines
of credit available to the Village.
3. For purposes of this certificate:
a. The Village and all entities that issue
obligations on behalf of the Village are treated as the
Village, and all obligations issued by any entity subordinate
to the Village are treated as issued by the Village;
b. The term "obligation" includes any bond or note
(whether or not recourse), any warrant, any lease purchase
agreement, and any other instrument that is treated as an
obligation for federal income tax purposes, except that such
term shall not include (i) any private activity Bond (as
defined in section 141 of the Code) that is not a qualified
501(c)(3) Bond (as defined in section 145 of the Code), and
(ii) any current refunding obligation.
c. An obligation is "tax-exempt" if (i) interest on
the obligation is excluded from gross income for federal income
tax purposes; (ii) at the time of issuance of the obligation,
it was represented to the purchaser that interest on the
obligation is or may be excluded from such gross income; or
(iii) the proceeds of the obligation were derived (directly or
indirectly) from proceeds of a tax-exempt obligation.
d. An obligation that is part of an issue is a
refunding obligation to the extent that (i) proceeds of the
issue are used to pay principal or accrued unpaid interest on
an obligation that is part of another issue; and (ii) the
amount of the refunding obligation does not exceed the
outstanding amount of the refunded obligation (determined at
the time of issuance of the refunding obligation). For this
purpose (i) the amount of the refunding obligation is the
stated principal amount (or, if the premium or discount exceeds
2%, the present value of the obligation); and (ii) the amount
of the refunded obligation is the stated principal amount plus
accrued unpaid interest (or, if the premium or discount exceeds
2%, the present value of the obligation).
e. A refunding obligation is a current refunding
obligation if no portion of the proceeds of the issue of which
the refunding obligation is a part is used (directly or
indirectly) to pay principal, interest, or call premium on any
obligation that is part of another issue more than 90 days
after the date of issue of the refunding obligation.
IN WITNESS WHEREOF, I have hereunto set my hand this 17th
day of April, 1995.
VILLAGE OF
By:
M/1021JDD/041395
Y BISCAYNE, FLORIDA
C. SAMUEL KISSINI'r R
Village Manager
2
CERTIFICATE OF VILLAGE AS TO COMPUTATION
OF INTEREST RATE IN COMPLIANCE WITH
SECTION 215.84(311 FLORIDA STATUTES
The undersigned, Village Manager of the Village of Key
Biscayne, Florida hereby certifies that (i) the Village's
Stormwater Utility Revenue Bond Anticipation Notes, Series 1995
(the "Notes") are being issued and sold as a single registered
Note maturing on April 1, 1997 in the aggregate principal
amount of $7,200,000 on this date, (ii) such single note bears
interest at the rate of 4.89% per annum, (iii) as evidenced by
the attached copy of a page of The Bond Buyer published on
March 30, 1995, the average net interest cost rate, computed in
accordance with Section 215.84(3), Florida Statutes, by adding
150 basis points to 6.07% ("The Bond Buyer 20 Bond Index"
published immediately preceding the day of the calendar month
in which the Notes are sold) is 7.57%, and (iv) the interest
rate on the Notes equal to 4.89% does not exceed the average
net interest cost rate equal to 7.57%.
Dated as of the 17th day of April, _995.
C. Samuel K. inger, Village
Manager
M/1022300/041395
THE BOND BUYER
Friday, March 31, 1995
Bond Buyer Indexes
Average Municipal Bond Yields - Compiled Weekly
20 -Bond
GO Indexl
11 -Bond
GO Indexl
25 -Bond
Revenue Index2
30 -Year
Treasury3
1995
MAR 30
6.07
5.96
6.29
7.42
23
6.09
5.97
6.34
7.45
16
.
6.06
5.96
6.25
7.31
9
6.18
6.00
6.40
7.50
2
6.08
5.98
•
6.31
7.48
FEB 23
6.11
6.00
6.34
7.55
16
6.18
6.08
6.40
7.57
9
6.18
6.07
6.44
7.68
2
6.40
6.29
6.63
7.74
JAN 26
6.49
6.38
6.78
7.84
19
6.44
6.33
6.78
7.81
12
6.53
6.42
6.87
7.87
5
6.66
6.56
6.94
7.89
1994
DEC 29
6.71
6.62
6.97
7.84
21
6.74
6.65
6.99
7.83
15
6.77
6.67
7.02
7.86
8
6.88
6.78
7.17
7.85
1
6.90
6.79
7.18
8.00
NOV 23
7.03
6.92
7.32
7.94
17
7.06
6.94
•
7.37
8.12
10
6.96
6.84
7.23
8.14
3
6.83
6.72
7.16
8.10
OCT 27
, .
6.64
6.54
.
6.95
8.04
20
6.49
6.40
6.81
7.99
13
6.44
6.35
6.73
7.83
6
6.50
6.41
6.82
7.94
SEPT 29
6.43
6.34
- • ,
6.70
' r
..
7.85
22
6.37
6.29
'
6.66
7.77
15
6.24
6.16
6.51
7.63
8
6.18
6.10
6.46
7.57
1
.
. 6.16
6.09
6.43
7.45
AUG 25
6.21
6.13
6.46
7.54
18
6.22
6.14
6.45
7.49
11
6.22
6.13
'
6.49
7.65
4
, .
6.16
6.08
8.37
•
'
7.40
JULY 28
6.22
6.14
6.47
7.54
21
6.22
6.13
6.46
7.54
14
6.22
6.14
6.47
7.52
7
6.27
6.19
6.52
7.57
JUNE 30 -
6.28
6.20
6.56
7.61
23
6.16
6.07
•
6.43
7.39
16
6.04
5.95
6.34
7.37
9
5.96
5.87
6.20
7.27
2
6.09
6.00
6.38
7.34
MAY 26
6.13
6.04
6.41
7.36
19
6.14
6.04
6.41
7.23
12
6.32
6.24
6.60
7.56
5
6.18
6.10
6.43
7.31
APR 28
6.16
6.07
6.42
7.26
21
6.19
6.11
6.45
7.21
14
/
6.22
6.14
6.50
7.29
7
6.34
6.25
6.55
7.19
MAR 30
6.07
5.99
6.39
7.09
Form 8038-G
(Rev. May 1993)
Department of the Treasury
Internal Revenue Sew'.
Information Return for Tax -Exempt Governmental Obligations
► Under Internal Revenue Code section 149(e)
► See separate Instructions.
(Use Form 8038 -GC if the issue price is under $100,000.)
OMB No. 1545-0720
rtin Author
If Amended Return, check here ►
Issuer's name
Village of Key Biscayne, Florida
2 Issuer's employer identification number
65 p291811
3 Number and street (or P.O. box if mail is not delivered to street address)
85 West McIntyre Street
Room/suite
4 Report number
G19 95 - 1
5 City, town, state, and ZIP code
Key Biscayne, FL 33149
6 Date of issue
Apr 17, 1995
7 Name of Issue
Stormwater Utility Revenue Bond Anticipation Notes, Series 1995
8 CUSIP Number
N/A
Part II
Type of Issue (check applicable boxes) and enter the issue price}
9 0 Education (attach schedule -see instructions)
10 0 Health and hospital (attach schedule -see instructions)
11 0 Transportation
12 0 Public safety
13 ® Environment (including sewage bonds)
14 0 Housing
15 0 Utilities
16 0 Other. Describe (see Instructions) 10-
17 If obligations are tax or other revenue anticipation bonds, check box ► 0
18 If obli ations are in the form of a lease or installment sale, check box ► 0
P. rt III
Description of Obligations
19
20
Final maturity. Apr
Entire issue
e
I t
Matunty date
Ist
Interest rate
o
I 1
Issue price
Stated redemption
price at maturity
e
Weghted
averar matun
(i
Yield
Net interest
cost
1, 1997
4.890 %
7,200,000.00
7,200,000.00
7,200,000.00
7,200,000.00
1.956 years
4.889
%
4.890 %
•
Uses of Oriainal Proceeds of Bond Issue (including underwriters' discount)
21 Proceeds used for accrued interest
22 Issue price of entire issue (enter amount from line 20, column (c))
23 Proceeds used for bond issuance costs (including underwriters' discount) 23 '45.000.00
24 Proceeds used for credit enhancement
25 Proceeds allocated to reasonably required reserve or replacement fund
26 Proceeds used to refund prior issues
27 Total (add lines 23 through 26)
28 Nonrefunding proceeds of the issue (subtract line 27 from line 22 and enter amount here) . ,
24
0.00
0.00
21
0.00
22
7,200,000.00
25
26
Part V
0.00
Description of Refunded Bonds (complete this part only for refunding bonds)
27
45,000.00
28
7,155,000.00
29 Enter the remaining weighted average maturity of the bonds to be refunded ► years
30 Enter the last date on which the refunded bonds will be called ►
31 Enter the date(s) the refunded bonds were issued ►
Part VI
Miscellaneous
32 Enter the amount of the state volume cap allocated to the issue ► _ 0.00
33 Enter the amount of the bonds designated by the issuer under section 265(b)(3)(B)(i)(Ill) (small issuer
exception) ► 7,200,000.00
34 Pooled financings:
a Enter the amount of the proceeds of this issue that are to be used to make loans to other governmental units ► 0.00
b If this issue is a loan made from the proceeds of another tax-exempt issue, check box ► 0 and enter the name of the
issuer ► and the date of the issue 10-
35 If the issuer has elected to pay a penalty in lieu of rebate, check box ► 0
Under penalties of penury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge
and belief, they are true, correct, and complete.
Please
Sign
Here
Signature of officer
Apr 17, 1995 C. Samuel Kissinger, Village Manager
Date
Type or print name and title
For Paperwork Reduction Act f4df1ce, see page 1 of the Instructions.
Cat. No. 63773S Form 8038-G (Rev. 5-93)
6/28/93 Published by Tax Management Inc., a Subsidiary of The Bureau of National Affairs, Inc.
8038-G.1
RECEIPT FOR NOTES
Key Biscayne Bank and Trust Company hereby acknowledges
receipt of $7,200,000 aggregate principal amount of Village of
Key Biscayne, Florida Stormwater Utility Revenue Bond
Anticipation Notes, Series 1995.
IN WITNESS WHEREOF, I hereunto set my hand this 17th day of
April, 1995.
KEY BISCAYNE BANK AND
TRUST COMPANY
M/1023300/041395
By: . .... .r' ,,
'Jess S. Liwhorn
Executive Vice President
No. R-1 $7,200,000
UNITED STATES OF AMERICA
STATE OF FLORIDA
VILLAGE OF KEY BISCAYNE
STORMWATER UTILITY REVENUE BOND ANTICIPrION NOTE
SERIES 1995
f
d •
Registered Owner: Key Biscayne Bank an ,T,rtist Compa.py
Principal Amount: Seven Million Tro'Hundred Thousand Dollars
KNOW ALL MEN BY THES /0 BENTS, tilt the Village of Key
Biscayne, Florida (the ", i•llage").•,•.'toy value received, hereby
promises to pay to 'fbe '•Regi te Owner shown above, or
registered assigns,__ on` p i• 1997, from the sources
hereinafter mentio the` P r�i ipal Amount specified above.
Subject to the ri h`ts, ot',prior prepayment described in this
Note, this Note shal iniatikWon April 1, 1997.
This Note is is d 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.
95-3 duly adopted by Village Council of the Village on
March 28, 1995 (the "Ordinance") and Resolution No. 95-11 duly
adopted by the Village Council of the Village on April 11, 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.
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 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
"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
2
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
3
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
4
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
5
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 thereo.'
to be affixed hereto or imprinted or reproduced hereon, all a?.
of the 17th day of April, 1995.
VILLAGE OF DEFY.- B AYNE,
FLORIDA
6
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 under Uniform Gifts to Minors
the entirety Act of
JT TEN - as joint tenants
with right of
survivorship and
not as tenants
in common
(State)
Additional abbreviations may also be used though not in the
list above.
M/ 10273DD/041395
RUDEN, BARNETT, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A.
ATTORNEYS AT LAW
701 BRICKELL AVENUE
FORT LAUDERDALE SUITE 1900 SARASOTA
NAPLES MIAMI, FLORIDA 33131 TALLAHASSEE
(305) 789-2700
FORT LAUDERDALE (305) 764-6660
BOCA RATON (407) 352-9771
FAX (305) 789-2793
April 17, 1995
The Village Council of the
Village of Key Biscayne, Florida
Key Biscayne Bank and Trust Company
Key Biscayne, Florida
First Union National Bank of Florida
Miami, Florida
WRITER S DIRECT DIAL NUMBER
Re: $7,200,000 Village of Key Biscayne, Florida Stormwater
Utility Revenue Bond Anticipation Notes, Series 1995
Ladies and Gentlemen:
We have acted as bond counsel in connection with the
issuance by the Village of Key Biscayne, Florida (the
"Village") of its $7,200,000 Stormwater Utility Revenue Bond
Anticipation Notes, Series 1995 initially issued and delivered
on this date (the "Notes") pursuant to 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 and other applicable provisions of law (collectively,
the "Act"), and Ordinance No. 95-3 duly adopted by the Village
Council of the Village on March 28, 1995 and Resolution No.
95-11 duly adopted by the Village Council of the Village on
April 11, 1995 (collectively, the "Ordinance").
We have examined the Act, the Ordinance and such certified
copies of the proceedings of the Village and of such other
documents as we have deemed necessary to render this opinion.
As to the questions of fact material to our opinion, we have
relied upon representations of the Village contained in the
Ordinance and in the certified proceedings and other
certifications of public officials furnished to us without
undertaking to verify such representations by independent
investigation.
Based on the foregoing, we are of the opinion that, under
existing law:
The Village Council of the
Village of Key Biscayne, Florida
Key Biscayne Bank and Trust Company
First Union National Bank of Florida
April 17, 1995
Page 2
1. The Village is duly created and validly existing as a
municipality under the Constitution and laws of the State of
Florida, with the power to adopt the Ordinance, to perform its
obligations thereunder and to issue the Notes.
2. The Ordinance has been duly adopted by the Village and
constitutes a valid and binding obligation of the Village,
enforceable in accordance with its terms.
3. The issuance and sale of the Notes has been duly
authorized by the Village. The Notes constitute valid and
binding limited obligations of the Village, enforceable in
accordance with their terms, payable in accordance with, and as
limited by, the terms of the Ordinance, solely from legally
available Non -Ad Valorem Revenues (as defined in the Ordinance)
of the Village budgeted and appropriated annually by the
Village for such purpose and from the proceeds from the
issuance of the revenue bonds in anticipation of which the
Notes are being issued. The Notes do not constitute a debt of
the Village within the meaning of any constitutional or
statutory provision, or a pledge of the faith and credit of the
Village. The issuance of the Notes shall not directly or
indirectly or contingently obligate the Village to levy or to
pledge any form of taxation whatsoever therefor nor shall the
Notes constitute a charge, lien or encumbrance, legal or
equitable, upon any property of the Village, and the owners of
the Notes shall have no recourse to the taxing power of the
Village.
4. Under existing statutes, regulations, rulings and
judicial decisions, interest on the Notes is excluded from
gross income for federal income tax purposes and is not an item
of tax preference for purposes of the federal alternative
minimum tax imposed on individuals and corporations; however,
such interest is taken into account in determining adjusted
current earnings for purposes of computing the alternative
minimum tax and environmental tax imposed on corporations under
the Internal Revenue Code of 1986, as amended (the "Code").
Ownership of the Notes may result in collateral federal tax
consequences to certain taxpayers. We express no opinion
regarding other federal tax consequences resulting from the
ownership, receipt or accrual of interest on, or disposition
of, the Notes.
RUDEN, BARNETT, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A.
The Village Council of the
Village of Key Biscayne, Florida
Key Biscayne Bank and Trust Company
First Union National Bank of Florida
April 17, 1995
Page 3
The opinion set forth in the preceding paragraph assumes
continuing compliance by the Village with certain requirements
of the Code that must be met after the date of the issuance of
the Notes in order for interest on the Notes to be excluded
from gross income for federal income tax purposes. The failure
to meet these requirements may cause interest on the Notes to
be included in gross income for federal income tax purposes
retroactively to the date of issuance of the Notes. The
Village has covenanted in the Ordinance to take the actions
necessary to comply with such requirements and to refrain from
taking any actions that would cause interest on the Notes to be
included in gross income for federal income tax purposes.
We are further of the opinion that the Notes are "qualified
tax-exempt obligations" within the meaning of Section 265(b)(3)
of the Code. Accordingly, a financial institution's interest
expense allocable to interest on the Notes will be reduced by
20% under Section 291(a)(3) of the Code (rather than disallowed
under Section 265(b) of the Code).
5. The Notes are exempt from the intangible personal
property tax imposed pursuant to Chapter 199, Florida Statutes.
This opinion is qualified to the extent that the rights of
the holders of the Notes and the enforceability of the Notes
and the Ordinance may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting
creditors' rights generally, now or hereafter in effect, and by
the exercise of judicial discretion in appropriate cases in
accordance with equitable principles.
Respectfully submitted,
RUDEN, BARNETT, McCLOSKY, SMITH,
SCHUSTER & RUSSELL, P.A.
Azion,,6Q,,,„A (McG644):: ,
Sd.4t.£ 44th/ /J,/4.
M/1024JDD
RUDEN, BARNETT, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A.
WEISS SEROTA & HELFMAN, P.A.
EDWARD G GUEDES
STEPHEN J HELFMAN
GILBERTO PASTORIZA
BARBARA J RIESBERG
DAVID J BUSS'
GAIL D SEROTA*
JOSEPH H SEROTA
RICHARD JAY WEISS
ANDRE L WILLIAMS
ATTORNEYS AT LAW
2665 SOUTH BAYSHORE DRIVE
SUITE 204
MIAMI, FLORIDA 33133
The Village Council of the
Village of Key Biscayne, Florida
Key Biscayne, Florida
TELEPHONE (305) 854-0800
TELECOPIER (305) 854-2323
April 17, 1995
Key Biscayne Bank and Trust Company
Key Biscayne, Florida
First Union National Bank of Florida
Miami, Florida
BROWARD OFFICE
888 EAST LAS OLAS BOULEVARD
SUITE 710
FORT LAUDERDALE, FLORIDA 33301
Re: $7,200,000 Village of Key Biscayne, Florida Stormwater
Utility Revenue Bond Anticipation Notes, Series 1995
Ladies and Gentlemen:
TELEPHONE (305) 763-1189
•OF COUNSEL
We have acted as Village Attorney for the Village of Key Biscayne, Florida (the
"Village") in connection with the issuance of the Village's $7,200,000 Stormwater Utility
Revenue Bond Anticipation Notes, Series 1995 (the "Notes"). In such capacity, we have
examined the following:
a. Ordinance No. 95-3 adopted by the Village Council on March 28, 1995 and
Resolution No. 95-11 adopted by the Village Council on April 11, 1995,
authorizing the issuance of the Notes (collectively the "Ordinance");
b. Ordinance No. 93-11 adopted by the Village Council on June 22, 1993,
creating the Village's Stormwater Utility, as amended by Ordinance No. 93-11-
A, adopted by the Village Council on October 12, 1993;
c. Resolution No. 92-23 adopted by the Village Council on June 9, 1992 required
under Article IV, Chapter 24, Dade County Code, regarding the Stormwater
Utility;
d. The Village Charter, as amended (the "Charter"), and Chapter 166, Florida
Statutes, as amended; and
e. Such other documents, certificates, records and proceedings as we have
considered necessary to enable us to render this opinion.
The Village Council of the
Village of Key Biscayne, Florida
Key Biscayne Bank and Trust Company
First Union National Bank of Florida
April 17, 1995
Page 2
Based on such examinations, we are of the opinion that:
1. The Village has taken all action necessary under law and the Dade County
Code to create its Stormwater Utility.
2. The Ordinance has been duly adopted and no further action of the Village is
required to authorize the issuance, sale and delivery of the Notes. The Ordinance constitutes
the legal, valid and binding obligation of the Village, enforceable in accordance with its
terms, except as enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting creditor's rights generally
or by general principles of equity.
3. The issuance, sale and delivery of the Notes and the adoption of the Ordinance
and compliance with the provisions thereof, under the circumstances contemplated thereby,
are permitted under the provisions of the Charter and, to the best of our knowledge without
undertaking any independent research, do not and will not in any way constitute a breach
or default under any agreement or other instrument to which the Village is a party or any
existing law, regulation, court order or consent decree to which the Village is subject.
4. To the best of our knowledge, after due inquiry, there is no action, suit,
proceeding or investigation at law or in equity before or by any court, public board or body,
pending or threatened against or affecting the Village, wherein an unfavorable decision,
ruling or finding would materially adversely affect the Village's obligations under the
Ordinance or adversely affect the validity of the Notes or the security therefor.
Respectfully submitted,
Weiss Serota & Helfman, P.A.
By, )1.F.td„)
STATE OF FLORIDA
DIVISION OF BOND FINANCE
LOCAL BOND MONITORING SECTION
BOND INFORMATION FORM
Part I. Issuer Information
1. Name of Governmental Unit Village of Key Biscayne
2. Mailing Address 85 West McIntyre Street
3. City Key Biscayne 4. County Dade
5. Zip Code 33149
6. Type of Issuer
County Dependent Special District
XCity Independent Special District
Authority Other
Part II. Bond Issue Information
1. Name of Issue Stormwater Utility Revenue Bond Anticipation
Notes, Series 1995
2. Amount Issued $7,200,000 3. Amount Authorized $7,200,000
4 Dated Date April 17, 1995 5. Sale Date April 11, 1995
6 Delivery Date April 17, 1995
7 Legal Authority for Issuance
Florida Statutes Chapter 166
Special Acts
Other
8. Type of Issue
General Obligation )( Revenue
Special Assessment Special Obligation
9. Specific Revenue(s) Pledged
(1) Primary covenant to budget and appropriate from
(2) Secondary legally available non -ad valorem revenues
(3) Tertiary
(4) Other
10. Purpose(s) of the Issue
(1) expanding and improving the Village's stormwater utility
(2) pay costs of issuance of the notes
(3)
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10a. If purpose is refunding, complete the following:
(1) For each issue refunded, list name of issue, dated date, original
par value of issue, and amount of par value refunded.
(a) Not Applicable
(2) Refunded debt has been: retired, or defeased
11. Type of Sale
Competitive Bid )(Private Placement
)(Negotiated
12. Basis of Interest Rate Calculation Rate
XNet Interest Cost Rate (NIC) 4.89%
True Interest Cost Rate (TIC)
Canadian Interest Cost Rate (TIC)
Other
13. Insurance
AMBAC (MG I C) MB IA )( NONE
14. Rating(s)
Moody's Standard & Poor's
Other None
15. Financial Advisor or Consultant
Rauscher Pierce Refsnes, Inc.
16. Bond Counsel
Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A.
17. Purchaser
Key Biscayne Bank and Trust Company
18. Paying Agent
Village of Key Biscayne
19. Registrar
Village of Key Biscayne
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20. Maturity Schedule (Fill in following schedule showing annual
amounts for bond years or attach completed maturity schedule.)
Maturity Date
(mo/day/yr)
Coupon
Annual
Interest
Principal Mandatory
(Par Value) Term Amortization
April 1, 1996 335,454 0 0
April 1, 1997 4.89%
352,080 7,200,000
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21. Optional Redemption Provisions
Prepayable at any time at par
22. Comments:
Part III. Respondent Information
1. Name C. Samuel Kissinger
Title Village Manager
Phone (305) 365-5514
Date Report Submitted
Part IV. Please return completed form along with Final Official
Statement, if any to:
Regular Mail Address Only:
State Board of Administration
Division of Bond Finance
P. O. Drawer 5318
Tallahassee, Florida 32314-5318
Federal Express or Certified mail, etc...to:
State Board of Administration
Division of Bond Finance
502 N. Adams Street
Tallahassee, FL 32301
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STATE OF FLORIDA
DIVISION OF BOND FINANCE
LOCAL BOND MONITORING SECTION
BOND DISCLOSURE FORM - NEGOTIATED SALE
Disclosure form for units of local government for bonds sold by
negotiated sale, as required by Section 218.38(a)(c)1, Florida
Statutes, as amended in 1982. This form must be completed and
returned to the Division within 120 days after the delivery of the
bonds.
1. Title of unit of local government: Village of Key Biscayne
2. Mailing Address: 85 West McIntyre Street
Key Biscayne, FL 33149
3. Name of bond issue: Stormwater Utility Revenue Bond
Anticipation Notes, Series 1995
4. Amount issued: $7,200,000
5. Dated date: April 17, 1995 6. Delivery dateApril 17, 1995
7. Name and address of the managing underwriter connected with
bond issue:Key Biscayne Bank and Trust Company
85 West McIntyre Street
Key Biscayne, FL 33149
8. Name and address of any attorney or financial consultant who
advised the unit of local government with respect to the bond
issue:
(1) Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A.
701 Brickell Avenue, Suite 1900
Miami, FL 33131
(2) Rauscher Pierce Refsnes, Inc.
201 South Biscayne Boulevard, Suite 830
Miami, FL 33131
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(3) Weiss Serota & Helfman, P.A.
2665 South Bayshore Drive, Suite 204
Miami, FL 33133
(If additional space is needed, continue on separate sheet.)
9. Management fee charged by underwriter: $None per thousand
par value.
10. Underwriter's expected gross spread: $None per thousand par
value.
11. Any fee, bonus or gratuity paid in connection with the bond
issue, by any underwriter or financial consultant to any
person not regularly employed or engaged by such underwriter
or consultant:
(1) Name None
(2) Name
(3) Name
Amount $
Amount $
Amount $
(If additional space is needed, continue on separate sheet.)
12. Any other fee paid by the unit of local government with
respect to the bond issue, including any fee paid to attorneys
or financial consultants:
(1) Name Ruden, Barnett et al P.A. Amount $21,000
(2) Name Rauscher Pierce Refsnes Amount $11,500
(3) Name Weiss Serota & Helfman Amount $ 1,000
(4) Name Amount $
(If additional space is needed, continue on separate sheet.)
13. The signature of either the chief executive officer of the
governing body of the Unit of Local Government or the
governmental officer primarily responsible for coordinating
the issuance o f, the bo,
Signature
must be affixed hereto.
Title Village Manager Date 4-17-95
14. For further information regarding this form, the Division
should contact:
Name Jeffrey D. DeCarlo Phone No. (305)789-2762
15. Completed form should be returned to:
Regular Mail Address Only: Federal Express or Certified Mail, etc...to:
State Board of Administration State Board of Administration
Division of Bond Finance Division of Bond Finance
P.O. Drawer 5318 502 N. Adams Street
Tallahassee, FL 32314-5318 Tallahassee, Florida 32301
MIA:2795:1