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HomeMy Public PortalAbout$5,000,000.tif$5,000,000 VILLAGE OF KEY BISCAYNE, FLORIDA WATER AND SEWER REVENUE NOTES, SERIES 2008 August 12, 2008 {M1730216_21 August 12, 2008 $5,000,000 VILLAGE OF KEY BISCAYNE, FLORIDA Water and Sewer Revenue Notes, Series 2008 CLOSING INDEX 1 Certified copy of Ordinance No. 2008-5 authorizing the issuance of the Notes. 2. Certified copy of Resolution No. 2008-31 authorizing the issuance of the Notes. 3. Certified copy of the Village Charter. 4. Specimen of Note. 5. Copy of letter from Wachovia Bank, National Association (the "Bank"), dated August 12, 2008, disclosing the information required by the provisions of Section 218.385, Florida Statutes, as amended. 6. 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. 7. Incumbency Certificate. 8. Signature and No -Litigation Certificate. 9. Certificate of Purchaser. 10. Arbitrage Certificate. 11. I.RS. Form 8038-G. 12. Certificate regarding Compliance with Debt Cap. 13. Coverage Certificate 14. Certificate of Village as to Computation of Interest Rate in Compliance with Section 215.84(3), Florida Statutes. 15. Bank's Receipt for the Notes. 16. Opinion of Adorno & Yoss LLP 17. Opinion of Weiss Serota Helfman Pastoriza Cole & Boniske, P.A., Village Attorney. 18. Division of Bond Finance Form 2003/2004. 19. Covenant Compliance Certificate (M1730216_2) VILLAGE OF KEY BISCAYNE Office of the Village Clerk Village Council Robert L. Vernon, Mayor Jorge E. Mendia, Vice Mayor Michael Davey Enrique Garcia Steve Liedman Thomas Thornton Patricia Weinman Village Clerk Conchita H. Alvarez, CMC CERTIFICATION STATE OF FLORIDA COUNTY OF MIAMI-DADE I, Conchita H. Alvarez, duly appointed Village Clerk of the Village of Key Biscayne, Florida, do hereby certify that the attached is a true and correct copy of: Ordinance No. 2008-5 adopted by the Village Council on July 8, 2008. IN WITNESS WHEREOF, I hereunto set my hand and affix the Seal of the Village of Key Biscayne, Florida, this 12th day of August, 2008. chita H. Alvarez, CMC age Clerk age of Key Biscayne, Florida 88 West McIntyre Street • Suite 220 • Key Biscayne, Florida 33149 • (305) 365-5506 • Fax (305) 365-8914 MISSION STATEMENT "TO PROVIDE A SAFE, QUALITY COMMUNITY ENVIRONMENT FOR ALL ISLANDERS THROUGH RESPONSIBLE GOVERNMENT" www. key biscaynefl.gov ORDINANCE NO. 2008-5 AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE, FLORIDA AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $5,000,000 OF WATER AND SEWER REVENUE 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 $5,000,000 of notes for the purpose of financing a portion of the costs of water and sewer system improvements within the Village, financing architectural, engineering, environmental, legal and other planning costs related thereto, and paying costs of issuance of the notes; and WHEREAS, the Council desires that the notes be secured by legally available non -ad valorem revenues of the Village, as further specified by subsequent resolution of the Council. 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 Water and Sewer Revenue Notes (the "Notes") of the Village, in an aggregate principal amount not to exceed $5,000,000, in one or more series, for the purpose of financing a portion of the costs of water and sewer system improvements within the Village, financing architectural, engineering, environmental, legal and other planning costs related thereto, and paying costs of issuance of the Notes. The Notes shall be designated "Village of Key Biscayne, Florida Water and Sewer Revenue Notes" (with appropriate series designation), 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 one (1) year 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. The supplemental resolution may be adopted, and the Notes may be issued, at any time after the effective date of this Ordinance. Section 2. The Village Manager, the Village Finance Director and the Financial Advisor for the Village are each 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 and Bond Counsel 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 10th day of June , 2008. PASSED AND ADOPTED on second reading this 8th day of July , 2008. CONCHITA H. ALVAREZ, CMC, VILLAGE CLERK APPROVED AS`I'O ORM AND LEGAL SUFFICIENCY: VILLAGE A N MAYOR ROBERT L. VERNON OFFICE OF THE VILLAGE CLERK MIAMI DAILY BUSINESS REVIEW Published Daily except Saturday, Sunday and Legal Holidays Miami, Miami -Dade County, Florida TE OF FLORIDA INTY OF MIAMI-DADE: Before the undersigned authority personally appeared ARIA MESA, who on oath says that he or she is the :GAL CLERK, Legal Notices of the Miami Daily Business )view f/k/a Miami Review, a daily (except Saturday, Sunday d Legal Holidays) newspaper, published at Miami in Miami -Dade aunty, Florida; that the attached copy of advertisement, ing a Legal Aovertisenient of Notice in the matter of LLAGE OF KEY BISCAYNE =ETING - JULY 8, 2008 the XXXX Court, is published in said newspaper in the issues of 3/25/2008 fiant further says that the said Miami Daily Business ?view is a newspaper published at Miami in said Miami -Dade )unty, Florida and that the said newspaper has retofore been continuously published in said Miami -Dade County, )rida, each day (except Saturday, Sunday and Legal Holidays) d has been entered as second class mail matter at the post ice in Miami in said Miami -Dade County, Florida, for a riod of one year next preceding the first publication of the ached copy of advertisement; and affiant further says that he or e has neither paid nor promised any person, firm or corporation y discount, rebate, commission or refund for the purpose s ring this a emen t lication in the said wspaper, vorn to and subscribed before me this day of JUNE EAL) , A.D. 2008 ARIA MESA personally known to me da* ►eaL Cheryl H Marmer • My Commission DD338555 -ayir: or Expires July 18, 2008 PUBLIC NOTICE Notice is hereby given that the following ordinances will be considered on Second Reading by the Village Council of the Village of Key Biscayne at a meeting to be held on Tuesday, July 8, 2008 at 7:00 p.m., in the Council Chamber, located at 560 Crandon Boulevard, Key Biscayne, Florida: AN ORDINANCE OF THE VILLAGE COUNCIL OF THE VILLAGE OF' KEY BISCAYNE, FLORIDA, PROVIDING FOR THE SUBMISSION TO THE ELECTORS' A PROPOSED AMENDMENT TO THE VILLAGE CHARTER IN -ACCORDANCE WITH SECTION 6.02(a)(i) OF THE VILLAGE CHARTER; SUBMITTING A PROPOSED CHARTER, AMENDMENT CONCERNING SECTION 4.15 "APPROVAL BY VOTE OF ELECTORS REQUIRED FOR AMENDMENTS' TO LAND DEVELOPMENT REGULATIONS"; PROVIDING FOR AN AMENDMENT OF SECTION 4.15 TO PROVIDE THAT VOTER APPROVAL IS REQUIRED FOR ANY VILLAGE COUNCIL AMENDMENT TO THE LAND DEVELOPMENT REGULATIONS (INCLUDING ZONING CODE) WHICH INCREASES THE DENSITY OR INTENSITY FOR THE DEVELOPMENT OF ANY PROPERTY IN THE VILLAGE; PROVIDING REQUISITE BALLOT LANGUAGE FOR SUBMISSION TO THE ELECTORATE; CALLING A SPECIAL ELECTION TO BE HELD ON TUESDAY, THE 4TH DAY OF NOVEMBER, 2008; PROVIDING NOTICE OF ELECTION; PROVIDING FOR BALLOTING AND ELECTION PROCEDURES; PROVIDING FOR INCLUSION IN THE CHARTER; AND PROVIDING FOR AN EFFECTIVE DATE. AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE, FLORIDA AMENDING THE VILLAGE CODE BY CREATING ARTICLE VI, "LIGHTING REGULATIONS FOR MARINE TURTLE PROTECTION" OF CHAPTER 8 "ENVIRONMENT'.- PROVIDINGFOR SEVERABILITY;, PROVIDING FOR INCLUSION IN THE CODE; PROVIDING FOR EFFECTIVE DATE. AN ORDINANCE OF THE VILLAGE OF KEY BISCAYNE, FLORIDA AUTHORIZING THE ISSUANCE OF NOT EXCEEDING $5,000,000 OF WATER AND SEWER REVENUE 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. The proposed Ordinances may be inspected by the public at the Office of the Village Clerk. Interested patties may appear at the Public Hearing and be heard with respect to the proposed Ordinances. Any person wishing to address the VillageaCouncil on any item'at this Public Hearing is asked to register With the Village Clerk prior to that item being heard. In accordance with the Americans With Disabilities Act of 1990, all persons who are disabled and who' need special 'accommodations to participate in.this-proceeding because of that disability should contact the Office of the Village Clerk, 88. West McIntyre Street, Suite 220, Key, Biscayne, Florida 33149, telephone number (305) 365-5506, not later than two business days prior to such proceeding. Should any person desire to appeal any decision of the Village Council with respect to any matter to be considered at this meeting, that person shall insure that a verbatim record of the proceedings is made including all testimony and evidence upon which any appeal may be based (F.S. 286.0105). Comments of any interested party relative to this matter may be submitted in writing and or presented in person at the public hearing. Conctita H. Alvarez, CMC Village Clerk 6/25 08-4-191/1038421M VILLAGE OF KEY BISCAYNE Office of the Village Clerk itORIVIN Village Council Robert L. Vernon, Mayor Jorge E. Mendia, Vice Mayor Michael Davey Enrique Garcia Steve Liedman Thomas Thornton Patricia Weinman Village Clerk Conchita H. Alvarez, CMC CERTIFICATION STATE OF FLORIDA COUNTY OF MIAMI-DADE I, Conchita H. Alvarez, duly appointed Village Clerk of the Village of Key Biscayne, Florida, do hereby certify that the attached is a true and correct copy of: Resolution No. 2008-31 adopted by the Village Council on July 8, 2008. IN WITNESS WHEREOF, I hereunto set my hand and affix the Seal of the Village of Key Biscayne, Florida, this 12th day of August, 2008. f.� H. Alvarez, CMC lerk f Key Biscayne, Florida 88 West McIntyre Street • Suite 220 • Key Biscayne, Florida 33149 • (305) 365-5506 • Fax (305) 365-8914 MISSION STATEMENT "TO PROVIDE A SAFE, QUALITY COMMUNITY ENVIRONMENT FOR ALL ISLANDERS THROUGH RESPONSIBLE GOVERNMENT " www. keybiscaynefl.gov RESOLUTION NO. 2008-31 A RESOLUTION OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, AUTHORIZING THE ISSUANCE OF WATER AND SEWER REVENUE NOTES, SERIES 2008 OF THE VILLAGE OF KEY BISCAYNE, FLORIDA, IN THE AGGREGATE PRINCIPAL AMOUNT OF $5,000,000 FOR THE PURPOSE OF FINANCING A PORTION OF THE COSTS OF WATER AND SEWER SYSTEM IMPROVEMENTS WITHIN THE VILLAGE, FINANCING ARCHITECTURAL, ENGINEERING, ENVIRONMENTAL, LEGAL AND OTHER PLANNING COSTS RELATED THERETO, AND PAYING COSTS OF ISSUANCE OF THE NOTES; AWARDING THE SALE OF THE NOTES TO WACHOVIA BANK, NATIONAL ASSOCIATION; PROVIDING FOR SECURITY FOR THE NOTES; CONTAINING OTHER PROVISIONS RELATING TO THE NOTES; MAKING CERTAIN COVENANTS AND AGREEMENTS IN CONNECTION THEREWITH; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, on July 8, 2008, the Village Council (the "Council") of the Village of Key Biscayne, Florida (the "Village") adopted Ordinance No. 2008-5 (the "Ordinance") authorizing the issuance of not exceeding $5,000,000 of notes for the purpose of financing a portion of the costs of water and sewer system improvements within the Village, financing architectural, engineering, environmental, legal and other planning costs related thereto, and paying costs of issuance of the notes (collectively, the "Project"); and WHEREAS, pursuant to the Ordinance, the Village has solicited proposals for the financing of the Project; and WHEREAS, the Council hereby determines to accept a commitment (the "Commitment") from Wachovia Bank, National Association (the "Bank") to purchase the Notes (as defined herein); and WHEREAS, the Council desires to set forth the details of the Notes in this Resolution; 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 Resolution and the Ordinance, revenue notes of the Village to be designated "Village of Key Biscayne, Florida, Water and Sewer Revenue Notes, Series 2008" (the "Notes"), are hereby authorized to be issued in an aggregate principal amount of Five Million Dollars ($5,000,000) for the purpose of financing the Project. The Notes shall be payable only from the sources identified in this Resolution and from proceeds of revenue bonds or notes issued to refund the Notes, or from any other loan entered into by the Village to finance the Project (when, as and if such bonds or notes are issued or such loan is closed). The Village intends to enter into a loan with the Florida Department of Environmental Protection to finance the Project, or to issue revenue bonds or notes at or prior to the date of maturity of the Notes in order to refund the Notes. The issuance of such bonds or notes 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 notes or to issue bonds or notes in any specific amount. SECTION 2. TERMS OF THE NOTES. (a) General Provisions. 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 $5,000,000. The Notes shall mature on August 12, 2009. Principal of the Notes is payable in full on their maturity date. THE NOTES SHALL NOT BE DEEMED TO CONSTITUTE A PLEDGE OF THE FAITH AND CREDIT OF THE VILLAGE WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION, BUT SHALL BE PAYABLE FROM AND SECURED SOLELY BY LEGALLY AVAILABLE NON -AD VALOREM REVENUES OF THE VILLAGE, AS DEFINED IN THIS RESOLUTION, AND AS OTHERWISE PROVIDED IN THIS RESOLUTION. THE ISSUANCE OF THE NOTES SHALL NOT DIRECTLY OR INDIRECTLY OR CONTINGENTLY OBLIGATE THE VILLAGE TO LEVY OR TO PLEDGE ANY FORM OF AD VALOREM TAXATION WHATEVER THEREFOR NOR SHALL THE 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 AD VALOREM TAXATION. (b) Interest Rate. Subject to adjustment as provided below, the Notes shall bear interest on the outstanding principal balance from their date of issuance payable on February 12, 2009 and upon maturity, at an interest rate equal to 2.69% per annum. Interest on the Notes shall be computed on the basis of a 360 -day year for the actual number of days elapsed. 2 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 4.02% per annum (the "Taxable Rate"), 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. In addition, the Owners of the Notes or any former Owners of the Notes, as appropriate, shall be paid an amount equal to any additions to tax, interest and penalties, and any arrears in interest that are required to be paid to the United States by the Owners or former Owners of the Notes as a result of such Determination of Taxability. All such additional interest, additions to tax, penalties and interest shall be paid by the Village on the next succeeding interest payment date following the Determination of Taxability. A "Determination of Taxability" shall mean means the circumstance of the interest on the Notes becoming includable for federal income tax purposes in the gross income of the Owners thereof, or the Notes not being "qualified tax-exempt obligations" as defined in Section 265(b)(3)(B) of the Internal Revenue Code, regardless of whether caused by or within the control of the Village. A Determination of Taxability will be deemed to have occurred upon (i) the issuance by the Internal Revenue Service of a technical advice memorandum or 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 memorandum, notice or notification is not contested 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, or (iv) receipt by the Village or any Owners of the Notes of an opinion of bond counsel to 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 or that the Notes are not "qualified tax-exempt obligations". 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, a change in the maximum effective corporate tax rate in effect on the date of issuance of the Notes (35%), the imposition of any excise tax or surcharge thereon, or (b) if, as result of action by any pubic 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 reasons of 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, (i) the interest rate on the Notes will be adjusted to cause the yield on the Notes, after payment of any increase in tax, to equal what the yield on the Notes would have been in the absence of such change in law, rule, regulation or executive order, or such action by any pubic body or governmental agency, and (ii) 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 3 indemnify each such Owner against any loss, cost, charge or expense with respect to any such change. Adjustment of Interest Rate Upon an Event of Default. If an "event of default" occurs under Section 18 of this Resolution, the interest rate on the Notes shall immediately be adjusted to a rate equal to the per annum interest rate announced by Wachovia Bank, National Association, from time to time, as its "Prime Rate," plus two percent (2%). (c) Optional Prepayment. The Notes are subject to optional prepayment as follows in whole or in part at any time at a price of par, plus accrued interest to the date of prepayment, plus a premium equal to the "Prepayment Penalty" described in Exhibit "B" attached hereto, upon written notice to the Owners thereof given by the Village at least five (5) days prior to the date fixed for prepayment. In the event that there is more than one Owner of the Notes, (A) the Village shall determine the amount of each Note to be redeemed, and (B) the Village shall give notice to each Owner of the Notes at least five (5) days prior to the date of redemption of the amount of each Note to be redeemed. SECTION 3. EXECUTION OF NOTES. The Notes shall be signed in the name of the Village by the Mayor or the Vice Mayor (or, in their absence, any other member of the Council) and the Village Clerk, and its seal shall be affixed thereto or imprinted or reproduced thereon. The signatures of the Mayor, Vice Mayor, any member of the Council and the 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 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 issuance 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 4 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. The Village may deem and treat the person in whose name any Note shall be registered upon the books kept by 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. 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 canceled 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 (other than a tax, fee or charge imposed by the Village) 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 fifteen (15) days next preceding an interest payment date on such Notes. All Notes, the principal and interest of which has been paid, either at or prior to maturity, shall be delivered to the Village within thirty (30) days of when such payment is made, and shall thereupon be canceled. 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, 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. 5 Any such duplicate Notes issued pursuant to this section shall constitute original 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 tenor set forth in Exhibit "A" hereto, with such omissions, insertions and variations as may be necessary and desirable and authorized or permitted by this Resolution. SECTION 7. COVENANT TO BUDGET AND APPROPRIATE. The Village hereby covenants and agrees to appropriate in its annual budget, by amendment, if necessary, from Legally Available 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. "Legally Available 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; but only after provision has been made by the Village for 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. Such covenant and agreement on the part of the Village to budget and appropriate such amounts of Legally Available Non -Ad Valorem Revenues shall be cumulative to the extent not paid, and shall continue until such Legally Available 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 Legally Available Non -Ad Valorem Revenues, and, subject to Section 15 hereof, does not preclude the Village from pledging in the future its Legally Available Non -Ad Valorem Revenues, nor does it require the Village to levy and collect any particular non -ad valorem revenues. Such covenant to budget and appropriate Legally Available Non -Ad Valorem Revenues is subject in all respects to the payment of obligations secured by a pledge of one or more sources of such Legally Available Non - Ad Valorem Revenues heretofore or hereinafter entered into (including the payment of debt service on notes 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 Legally Available 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 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. 6 SECTION 8. NOTE FUND. There is hereby created a fund, entitled "Village of Key Biscayne, Florida Water and Sewer Revenue Notes, Series 2008 Note Fund" (the "Note Fund"). There shall be deposited into the Note Fund on each Interest Payment Date sufficient amounts of Legally Available 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 Mortgage Association, including Federal National Mortgage Association participation certificates and mortgage pass -through certificates guaranteed by the Federal National Mortgage Association; or (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. 7 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 the issuance of the Notes. 2. The remainder of the proceeds of the sale of the Notes shall be deposited in a separate account (hereinafter referred to as the "Project Fund") maintained by the Village. 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 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. The Project Fund 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 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 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. 8 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)(B) of the Code, and shall make all necessary filings in order to effectuate such election. The Village represents that neither the Village nor any subordinate entities or entities issuing tax-exempt obligations on behalf of the Village within the meaning of Section 265(b)(3) of the Code have issued tax-exempt obligations during calendar year 2008 and neither the Village nor any such entities expect to issue tax-exempt obligations during calendar year 2008. 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 Water and Sewer Revenue Notes, Series 2008 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 Tax Certificate or the Rebate Covenants, if any, attached as an Exhibit to the Tax 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 Administrator 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 15 in the event that the Village obtains an opinion of nationally recognized note 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. 9 SECTION 15. SPECIAL COVENANTS OF THE VILLAGE. (a) The Village shall, while the Notes are outstanding, upon receipt by the Village or within one hundred eighty (180) days of each fiscal year end, whichever is sooner, provide the Owners of the Notes with a printed copy of its Comprehensive Annual Financial Report, its current year operating budget and its capital improvement plan. The Village shall also provide to the Owners of the Notes any other financial information reasonably requested by such Owners. (b) The Village covenants and agrees that it will at all times maintain a coverage ratio such that the average of Legally Available Non -Ad Valorem Revenues of the Village during the prior two fiscal years is equal to at least 150% of Maximum Annual Debt Service. For purposes of this paragraph (b), (i) "Maximum Annual Debt Service" shall mean the maximum amount of principal and interest required in the then current or any future fiscal year to pay all Debt Obligations; (ii) "Debt Obligations" shall mean debt service on debt obligations of the Village, including the Notes, which are secured by or payable from one or more sources of non -ad valorem revenues. Calculations of Legally Available Non -Ad Valorem Revenues will be based on information derived from the most recently audited fiscal year end financial statements. For purposes of calculating Maximum Annual Debt Service, (x) the interest rate to be assumed for indebtedness bearing interest at a variable rate shall be equal to the higher of 7% per annum or the average rate of interest paid by the Village with respect to such indebtedness during the month preceding the date of calculation and (y) the Notes shall be assumed to amortize over twenty (20) years. (c) The total Debt of the Village, including amounts authorized but still not drawn down under existing loan agreements and other contractual arrangements with banks and other financial institutions, underwriters, brokers and/or intermediaries, shall not exceed the greater of: (i) one percent (1%) of the total assessed value of all property within the Village, as certified by the Miami -Dade County Property Appraiser for the current fiscal year; or (ii) that amount which would cause annual Debt Service to equal fifteen percent (15%) of General Fund expenditures for the previous fiscal year; provided, however, that if in the future the Village Charter is amended to permit total Debt to exceed the amounts set forth above, then the total Debt of the Village permitted hereunder shall be deemed to be such greater amount consistent with the Charter. As used in this paragraph (c), 10 (iii) "Debt" shall mean any obligation of the Village to repay borrowed money however evidenced since the date of its incorporation regardless of tenor or term for which it was originally contracted or subsequently converted through refinancing or novation, except (A) any obligation required to be repaid in less than a year and which, was incurred solely for emergency relief of natural disasters, or (B) that portion of any obligations for operations which are financed and operated in an independent, self-liquidating manner and recovered entirely through currently collected user fees and charges. (iv) "Debt Service" shall include, without limitation thereto, scheduled interest payments, repayments of principal and all financial fees arising from Debt or from the underlying contractual obligations, whether as originally incurred or subsequently deferred or otherwise renegotiated. (v) "General Fund" shall mean any and all revenues of the Village, from whatever source derived, except those revenues derived from special assessments, user fees and charges and designated as a separate fund to finance goods and services to the public. SECTION 16. COVENANTS BINDING ON VILLAGE AND SUCCESSOR. All covenants, stipulations, obligations and agreements of the Village contained in this Resolution shall be deemed to be covenants, stipulations, obligations and agreements of the Village to the full extent authorized or permitted by law, and all such covenants, stipulations, obligations and agreements shall be binding upon the successor or successors thereof from time to time and upon the officer, board, body or commission to whom or to which any power or duty affecting such covenants, stipulations, obligations and agreements shall be transferred by or in accordance with law. Except as otherwise provided in this Resolution, all rights, powers and privileges conferred and duties and liabilities imposed upon the Village or upon the Council by the provisions of this Resolution shall be exercised or performed by the 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 Council or officer, agent or employee of the Village in his or her individual capacity, and neither the members of the 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 (including mandatory prepayment) of any of the Notes shall not be made when the same shall become due and payable; or 11 (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 Noteholders and the Village, and the Village commences within such sixty (60) days and is proceeding diligently with action to correct such default; (d) any proceeding shall be instituted with the consent of the Village for the purpose of effecting a composition between the Village and its creditors or for the purpose of adjusting the claims of such creditors pursuant to any federal or state statute now or hereafter enacted and such proceedings shall not have been dismissed within thirty (30) days after the institution of the same; or (e) a payment default under any other debt obligation of the Village which results in an acceleration of such debt. SECTION 18. REMEDIES; RIGHTS OF NOTEHOLDERS. (a) Upon the occurrence and continuance of any event of default specified in Section 17(e) hereof, the Owners of the Notes may declare all payments of principal and accrued interest to be immediately due and payable, whereupon the same shall become immediately due and payable. (b) Upon the occurrence and continuance of any event of default specified in Section 17(a), (b), (c) or (d) 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 a 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 any 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. 12 SECTION 19. DEFEASANCE. (a) 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: (i) by paying the principal of, prepayment premium, if any, and interest on the Notes when the same shall become due and payable; or (ii) 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, prepayment premium, if any, and interest due and to become due on said Notes on or prior to the prepayment date or maturity date thereof; or (iii) 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 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, prepayment premium, if any, and interest due and to become due on said Notes on or prior to the prepayment 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 covenants of the Village hereunder 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. (b) Notwithstanding the foregoing, all references to the discharge and satisfaction of Notes shall include the discharge and satisfaction of any portion of the Notes. 13 (c) 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. (d) Notwithstanding any of the foregoing, the requirements of Section 12 and 14 hereof relating to use and investment of proceeds and rebate amounts due to the United States pursuant to the Rebate Covenants shall survive the payment of principal and interest with respect to the Notes or any portion thereof. SECTION 20. SALE OF NOTES. Based upon the uncertainty of the interest rate environment if sale of the Notes is delayed, the Village hereby determines and finds 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, any member of the Council, the Village Manager, the Village Clerk, the Finance Director and any other proper official of the Village, are and each of them is hereby authorized and directed to execute and deliver any and all documents and instruments and to do and cause to be done any and all acts and things necessary or proper for carrying out the transaction contemplated by this Resolution and the other documents identified herein. SECTION 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, 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 Council concerning and relating to the adoption of this Resolution and all prior resolutions affecting the Council's ability to issue the Notes were taken in an open meeting of the Council and that all deliberations of the 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 14 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. WAIVER OF JURY TRIAL. To the extent permitted by applicable law, the Village, knowingly, voluntarily and intentionally waives any right it may have to a trial by jury in respect of any litigation based on, or arising out of, under or in connection with this Resolution, the Notes or any agreement contemplated to be executed in connection with this Resolution, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of the Village or the Bank with respect hereto. The Village acknowledges that this provision is a material inducement to the Bank to purchase the Notes. SECTION 27. ARBITRATION. Upon demand of either the Village or any Owner of the Notes, whether made before or after the institution of any judicial proceeding, any claim or controversy arising out of or relating to this Resolution or the Notes (a "Dispute") shall be resolved by binding arbitration conducted under and governed by the Commercial Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American Arbitration Association ("AAA") and the Federal Arbitration Act. Disputes may include, without limitation, tort claims, counterclaims, a dispute as to whether a matter is subject to arbitration, claims brought as class actions, or claims arising from documents executed in the future related to the Notes. A judgment upon the award may be entered in any court having jurisdiction. Notwithstanding the foregoing, this arbitration provision does not apply to disputes under or related to swap agreements. All arbitration hearings shall be conducted in Miami, Florida. A hearing shall begin within 90 days of demand for arbitration and all hearings shall conclude within 120 days of demand for arbitration. These time limitations may not be extended unless a party shows cause for extension and then for no more than a total of 60 days. The expedited procedures set forth in Rule 51 et seq., of the Arbitration Rules shall be applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed attorneys selected from the Commercial Financial Dispute Arbitration Panel of the AAA. Neither the Village nor any Owner of the Notes waives applicable Federal or state substantive law except as provided in this Resolution. Notwithstanding the preceding binding arbitration provisions, the Village and the Owners of the Notes agree to preserve, without diminution, certain remedies that any party may exercise before or after an arbitration proceeding is brought. The Village and the Owners of the Notes shall have the right to proceed in any court of proper jurisdiction to exercise or prosecute the following remedies, as applicable: (i) obtaining provisional or ancillary remedies including injunctive relief, appointment of receiver and filing an involuntary bankruptcy proceeding; and (ii) when applicable, a judgment by confession of judgment. Any claim or controversy with regard to either the Village's or the Owners' of the Notes entitlement to such remedies is a Dispute. SECTION 28. EFFECTIVE DATE. This Resolution shall take effect immediately on August 7, 2008. 15 AT PASSED AND ADOPTED this 8th day of July, 2008. ,d/e46/ HITA H. ALVAREZ, CMC, VILLAGE CLERK APPROVED AS TO EGAL FORM AND SUFFICIENCY: VILLAGE A ORNE 16 MAYOR ROBERT L. VERNON EXHIBIT "A" No. R- $ UNITED STATES OF AMERICA STATE OF FLORIDA VILLAGE OF KEY BISCAYNE WATER AND SEWER REVENUE NOTE SERIES 2008 Registered Owner: Principal Amount: Five Million Dollars ($5,000,000) KNOW ALL MEN BY THESE PRESENTS, that the Village of Key Biscayne, Florida (the "Village"), for value received, hereby promises to pay in installments to the Registered Owner shown above, or registered assigns, on the dates set forth below, the Principal Amount specified above. Subject to prior prepayment described in this Note, this Note shall mature on August 12, 2009. Principal of this Note is payable in full on its maturity date. This Note is issued under authority of and is 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. 2008 -_duly adopted by the Village Council (the "Council") of the Village on July 8, 2008 (the "Ordinance"), and Resolution No. R-2008- duly adopted by the Council of the Village on July 8, 2008 (the "Resolution," and collectively with the Ordinance, the "Note Ordinance"), and is subject to the terms of the Note Ordinance. This Note is issued for the purpose of financing a portion of the costs of water and sewer system improvements within the Village, financing architectural, engineering, environmental, legal and other planning costs related thereto, and paying costs of issuance of the Notes (collectively, the "Project"). This Note shall be payable only from the sources identified in the Note Ordinance and from proceeds of revenue bonds or notes issued to refund the Notes, or from any other loan entered into by the Village to finance the Project (when, as and if such bonds or notes are issued or such loan is closed). The Village intends to enter into a loan with the Florida Department of Environmental Protection to finance the Project, or to issue revenue bonds or notes at or prior to the date of maturity of this Note in order to extend or refund this Note, and the issuance of such bonds or notes has been authorized by the Village; however, such authorization does not obligate the Village to issue such bonds or notes or to issue bonds or notes in any specific amount. Al Subject to adjustment as provided below, this Note shall bear interest on the outstanding principal balance from its date of issuance payable on February 12, 2009 and upon maturity, at an interest rate equal to 2.69% per annum. Interest on this Note shall be computed on the basis of a 360 -day year for the actual number of days elapsed. 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 4.02% per annum (the "Taxable Rate"), 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. In addition, the Owners of the Notes or any former Owners of the Notes, as appropriate, shall be paid an amount equal to any additions to tax, interest and penalties, and any arrears in interest that are required to be paid to the United States by the Owners or former Owners of the Notes as a result of such Determination of Taxability. All such additional interest, additions to tax, penalties and interest shall be paid by the Village on the next succeeding Interest Payment Date following the Determination of Taxability. A "Determination of Taxability" shall mean means the circumstance of the interest on the Notes becoming includable for federal income tax purposes in the gross income of the Owners thereof, or the Notes not being "qualified tax-exempt obligations" as defined in Section 265(b)(3)(B) of the Internal Revenue Code, regardless of whether caused by or within the control of the Village. A Determination of Taxability will be deemed to have occurred upon (i) the issuance by the Internal Revenue Service of a technical advice memorandum or 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 memorandum, notice or notification is not contested 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, or (iv) receipt by the Village or. any Owners of the Notes of an opinion of bond counsel to 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 or that the Notes are not "qualified tax-exempt obligations". Adjustment of Interest Rate for 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, a change in the maximum effective corporate tax rate in effect on the date of issuance of the Notes (35%), the imposition of any excise tax or surcharge thereon, or (b) if, as result of action by any pubic 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 reasons of 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, (i) the interest rate on the Notes will be adjusted to cause the yield on the Notes, after payment of any increase in tax, to equal what the yield on the Notes would have been in the absence of such change in law, rule, regulation or executive order, or such action by any pubic body or governmental agency, and (ii) 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. Adjustment of Interest Rate Upon an Event of Default. If an "event of default" occurs under Section 18 of the Note Ordinance, the interest rate on the Notes shall immediately be adjusted to a rate equal to the per annum interest rate announced by Wachovia Bank, National Association, from time to time, as its "Prime Rate," plus two percent (2%). Optional Prepayment. This Note is subject to optional prepayment in whole or in part at any time at a price of par, plus accrued interest to the date of prepayment, plus a premium equal to the "Prepayment Penalty" described in Exhibit "A" attached hereto, upon written notice to the Owners thereof given by the Village at least five (5) days prior to the date fixed for prepayment. In the event that there is more than one Owner of the Notes, (i) the Village shall determine the amount of each Note to be redeemed, and (ii) the Village shall give notice to each Owner of the Notes at least five (5) days prior to the date of redemption of the amount of each Note to be redeemed. 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 Legally Available 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. "Legally Available 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; but only after provision has been made by the Village for 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. Such covenant and agreement on the part of the Village to budget and appropriate such amounts of Legally Available Non -Ad Valorem Revenues shall be cumulative to the extent not paid, and shall continue until such Legally Available 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 Legally Available Non -Ad Valorem Revenues, and, subject to the provisions of the Note Ordinance, does not preclude the Village from pledging in the future its Legally Available Non -Ad Valorem Revenues, nor does it require the Village to levy and collect any particular non -ad valorem revenues. Such covenant to budget and appropriate Legally Available Non -Ad Valorem Revenues is subject in all respects to the payment of obligations secured by a pledge of one or more sources of such Legally Available Non -Ad Valorem Revenues heretofore or hereinafter entered into (including the payment of debt service on notes 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 Legally Available 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 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 A PLEDGE OF THE FAITH AND CREDIT OF THE VILLAGE WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION, BUT SHALL BE PAYABLE FROM AND SECURED SOLELY BY LEGALLY AVAILABLE NON -AD VALOREM REVENUES OF THE VILLAGE, AND AS OTHERWISE PROVIDED IN THE NOTE ORDINANCE. THE ISSUANCE OF THIS NOTE SHALL NOT DIRECTLY OR INDIRECTLY OR CONTINGENTLY OBLIGATE THE VILLAGE TO LEVY OR TO PLEDGE ANY FORM OF AD VALOREM TAXATION WHATEVER THEREFOR NOR SHALL THIS 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 AD VALOREM TAXATION. 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 fifteen (15) days next preceding an interest payment date on such Notes. 4. All Notes, the principal of which has been paid, either at or prior to maturity, shall be delivered to the Village when such payment is made, and shall thereupon be canceled. 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 , 2008. VILLAGE OF KEY BISCAYNE, FLORIDA Mayor Village Clerk (SEAL) ASSIGNMENT FOR VALUE RECEIVED, the undersigned_ (the "Transferor"), hereby sells, assigns and transfers unto e (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 (State) JT TEN -as joint tenants with right of survivorship and not as tenants in common Additional abbreviations may also be used though not in the list above. [ATTACH EXHIBIT "A" —PREPAYMENT PENALTY] EXHIBIT "B" Any applicable prepayment penalty on the Notes shall be calculated in accordance with the following: "Break Event" means any voluntary or mandatory prepayment or acceleration, in whole or in part, of the principal of the Notes occurring prior to the date such principal would, but for that prepayment or acceleration, have become due (a "Scheduled Due Date"). For each date on which a Break Event occurs (a "Break Date"), a Breakage Fee shall be due to the owners of the Notes only if the rate under "A" below exceeds the rate under "B" below, such Breakage Fee to be determined as follows: Breakage Fee = the Present Value of [(A -B) x C], plus LIBOR Breakage, where: A = A rate per annum equal to the sum of [i] the note equivalent yield (bid side) of the U.S. Treasury security with a maturity closest to the Maturity Date as reported by the Wall Street Journal (or other published source) on the date the Fixed Rate on the Notes was set (the "Lock -in Date") plus [ii] the corresponding swap spread of the Bank on the Lock -in Date for fixed rate payor to pay the Bank the fixed rate side of an interest rate swap of that maturity, plus [iii] 0.25%.; B = A rate per annum equal to the sum [i] the note equivalent yield (bid side) of the U.S Treasury security with a maturity closest to the Maturity Date as reported by the Wall Street Journal (or other published source) on the Break Date, plus [ii] the corresponding swap spread that the Bank determines another swap dealer would quote to the Bank on the Break Date for paying to the Bank the fixed rate side of an interest rate swap of that maturity; C = The sum of the products of [i] each Affected Principal Amount for each Affected Principal Period, times [ii] the number of days in the Affected Principal Period divided by 360; "Affected Principal Amount" for an Affected Principal Period is the principal amount of the Notes scheduled to be outstanding during that Affected Principal Period determined as of the relevant Break Date before giving effect to the Break Event on that Break Date, and for any prepayment, multiplying each such principal amount times the Prepayment Fraction. "Affected Principal Period" is each period from and including a Scheduled Due Date to but excluding the next succeeding Scheduled Due Date, provided that the first such period shall begin on and includes the Break Date. "Libor Breakage" is any additional loss, cost or expense that the Bank may incur with respect to any hedge for the Fixed Rate on the Notes based on the difference between the London interbank offered rate (for U.S. dollar deposits of the relevant maturity) available in the London interbank market at the beginning of the interest period in which the Break Date occurs and that which is available in that market on the Break Date. "Maturity Date" is the date on which the final payment of principal of the Notes would, but for any Break Event, have become due. "Prepayment Fraction" is a fraction equal to the principal amount being prepaid over the principal amount of the Notes outstanding immediately prior to that prepayment on the Break Date. "Present Value" is determined as of the Break Date using "B" above as the discount rate. In addition, a Break Event shall be deemed to occur hereunder if, on any date ("Borrowing Date") after the date hereof but prior to any acceleration of the Notes, any advance of principal under the Notes is scheduled to be made and that advance fails to be made on that Borrowing Date (whether due to the Village's default, the Village's failure to borrow, the termination of any loan commitment, any unsatisfied condition precedent, or otherwise), in which case that Borrowing Date shall be a Break Date, the Affected Principal Amount for that Break Event shall be based on the amount of the failed advance, and the Village shall on demand pay to the Bank any Breakage Fee due hereunder for that Break Event. Breakage Fees are payable as liquidated damages, are a reasonable pre -estimate of the losses, costs and expenses Bank would incur in the event of any prepayment or acceleration of the Notes, are not a penalty, will not require claim for, or proof of, actual damages, and Bank's determination thereof shall be conclusive and binding in the absence of manifest error. For any Break Event hereunder, the foregoing Breakage Fee provisions supersede any breakage compensation agreement that Village and Bank may have executed with respect to the Notes. KO VILLAGE OF KEY BISCAYNE Office of the Village Clerk Village Council Robert L. Vernon, Mayor Jorge E. Mendia, Vice Mayor Michael Davey Enrique Garcia Steve Liedman Thomas Thornton Patricia Weinman Village Clerk Conchita H. Alvarez, CMC CERTIFICATION STATE OF FLORIDA COUNTY OF MIAMI-DADE I, Conchita H. Alvarez, duly appointed Village Clerk of the Village of Key Biscayne, Florida, do hereby certify that the attached is a true and correct copy of: The Charter of the Village of Key Biscayne as amended on June 12, 2007. IN WITNESS WHEREOF, I hereunto set my hand and affix the Seal of the Village of Key Biscayne, Florida, this 12th day of August, 2008. lez/(4, 'ta H. Alvarez, CMC lage Clerk llage of Key Biscayne, Florida 88 West McIntyre Street • Suite 220 • Key Biscayne, Florida 33149 • (305) 365-5506 • Fax (305) 365-8914 MISSION STATEMENT "TO PROVIDE A SAFE, QUALITY COMMUNITY ENVIRONMENT FOR ALL ISLANDERS THROUGH RESPONSIBLE GOVERNMENT." www.keybiscaynefl.gov PART I CHARTER* Article I. Corporate Existence, Form of Government, Boundary and Powers *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 indicates 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 indicated by brackets. Notes from 1997 Charter Revision Commission. The following are notes which are included in the Charter as directed by the 1997 Charter Revision Commission. 1. For historical purposes, the Comittee wishes to note the following. The members of the original Charter Committee were as follows: Luis Lauredo, Chair Betty Sime, Vice Chair Roberto Cambo, Member Michael Hill, Member Ed Sawyer, Member The Reporter was Hugh O'Reilly and the attorney was Stuart Ames. 2. The Charter Revision Commission of 1997 was appointed by the Village Council on December 10, 1996 and met during the early months of 1997 to review the Village Charter. The members of the Charter Revision Commission were as follows: Betty Sime, Chair Michael Kahn, Vice Chair Paul Auchter, Member Martha Broucek, Member Ron Drucker, Member The Clerk was Conchita H. Alvarez, the Manager was C. Samuel Kissinger and the attorneys were Richard Jay Weiss, Stephen J. Helfman and Nina L. Boniske. As a result of those meetings, 25 amendments were proposed to the electorate. Of the 25 amendments proposed, 23 were approved by the electorate on June 10, 1997. The Village Council proposed 3 additional amendments, only one of which was approved by the electors on June 10, 1997. Notes from 2002 Charter Revision Commission. The following are notes which are included in the Charter as directed by the 2002 Charter Revision Commission. 1. The Charter Revision Commission of 2002 was appointed by the Village Council on November 13, 2001 (as ratified on January 15, 2002) and met during the early months of 2002 to review the Village Charter. The members of the Charter Revision Commission were as follows: Martha F. Broucek, Chair Michael A. Kahn, Vice Chair Stuart D. Ames, Member Dr. Michael E. Kelly, Member Luis Lauredo, Member The Clerk was Conchita H. Alvarez, the Manager was C. Samuel Kissinger and the attorneys were Richard Jay Weiss and Tony L. Recio. As a result of those meetings, 23 amendments were proposed to the electorate. Of the 23 amendments proposed, 5 were approved by the electorate on July 9, 2002. The Village Council proposed 1 additional amendment which was not approved by the electors on July 9, 2002. 2. The Charter below also reflects amendments to Sections 4.10 and 5.02 approved at a general election on December 4, 2001. Notes from 2007 Charter Revision Commission. The following are notes which are included in the Charter as directed by the 2007 Charter Revision Commission. 1. The Charter Revision Commission of 2007 was appointed by the Village Council on December 5, 2006 and met during the early months of 2007 to review the Village Charter. The members of the Charter Revision Commission were as follows: Steve Liedman, Chair Supp. No. 25 CHT:1 " KEY BISCAYNE CODE Sec. 1.01. Corporate existence. Sec. 1.02. Form of government. Sec. 1.03. Corporate boundary/MAP. Sec. 1.04. Powers. Sec. 1.05. Construction. Sec. 1.06. Capitalization. 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. Sec. 3.02. Sec. 3.03. Sec. 3.04. Sec. 3.05. Sec. 3.06. Sec. 3.07. Sec. 3.08. Sec. 3.09. Village Manager. Appointment; removal; compensation. Powers and duties of the Village Manager. Village Clerk. Village Attorney. Village code of administrative regulations. Expenditure of Village funds. Competitive bid requirement. Removal of Council Appointees. 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. Sec. 4.08. Authentication, recording and disposition of ordinances; resolutions and charter amendments. Sec. 4.09. Tax levy. Sec. 4.10. Borrowing. Betty Sime Conroy, Vice Chair Stuart D. Ames, Member Robert Fernandez, Member Mark Fried, Member The Clerk was Conchita H. Alvarez, the Manager was Jacqueline R. Menendez and the attorneys were Stephen P. Helfman and Chad Friedman. As a result of those meetings, 2 amendments were proposed to the electorate. The 2 amendments were approved by the electorate on June 12, 2007. As a result of a petition of electors 1 additional amendment was proposed to the electorate and approved on June 12, 2007. Supp. No. 25 CHT:2 CHARTER Sec. 4.11. Sec. 4.12. Sec. 4.13. Sec. 4.14. Sec. 4.15. Revenue Sharing. Village boards and agencies. Village Code, Ordinances and Resolutions. Special Assessments. Approval by Vote to Electors Required for Amendments to Land Development Regulations. Article V. Elections Sec. 5.01. Elections. Sec. 5.02. Initiative and referendum. Sec. 5.03. Form of ballots. Sec. 6.01. Sec. 6.02. Sec. 6.03. Article VI. Charter Amendments 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. Grants and Charitable contributions. Sec. 7.06. Charter revision. Sec. 7.07. Variation of pronouns. Sec. 8.01. Sec. 8.04. Sec. 8.08. Article VIII. Transition Provisions Temporary nature of Article. Taxes and fees. Transition provisions to facilitate change to two-year terms. Supp. No. 25 CHT:3 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 Miami -Dade County (the "County"). The corporate existence of the Village shall commence upon the adoption of this Charter. (Res. No. 97-15, 4-1-97/6-10-97; Res. No. 2002-21, 4-30-02/7-9-02) Section 1.02. Form of government. The Village shall have a "Council -Manager" form of government. (Res. No. 97-15, 4-1-97/6-10-97) Section 1.03. Corporate boundary/MAP. 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 Northwest- erly corner of Tract B of FOURTH ADDITION TO TROPICAL ISLE HOMES SUBDIVI- SION, 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 SUBDIVISION, 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 extensions 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 Supp. No. 16 CHT:5 § 1.03 KEY BISCAYNE CODE to the point of intersection with the Easterly extension of the said South line of Crandon Park; thence run Westerly 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 BISCAYNE, DADE COUNTY, FLORIDA, and its Northeasterly extension; thence run Westerly 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 centerline of Crandon Boule- vard for a distance of 783 feet more or less to the South boundary of Crandon Park and to the POINT OF BEGINNING. 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A « is* 404... itttttttt� riti� rM �R w • N W+L Atlantic Ocean nay Rift Raw State Recreation Arta (Res. No. 97-15, 4-1-97/6-10-97) Supp. No. 16 CHT:7 § 1.04 KEY BISCAYNE CODE 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. (Res. No. 97-15, 4-1-97/6-10-97) Section 1.05. Construction. The powers of the Village shall be construed liberally in favor of the Village. (Res. No. 97-15, 4-1-97/6-10-97) Section 1.06. Capitalization. When a defined word is enclosed in quotes and in parentheses after the definition, that word shall be treated as a defined term in the remainder of this Charter, when capitalized. (Res. No. 97-15, 4-1-97/6-10-97) ARTICLE II. 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 (6) members ("Council Members") and the Mayor. References in this Charter to Council Members shall include the Mayor unless the context otherwise requires. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97) 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, 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. *Editor's note —Pursuant to Ord. No. 92-18, § 1, adopted on August 11, 1992, and approved 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." (Res. No. 97-15, 4-1-97/6-10-97) Code reference —Village Council, § 2-21 et seq. Supp. No. 16 CHT:8 CHARTER § 2.05 (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, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97) Section 2.03. Election and term of office. (a) Each Council Member and the Mayor shall be elected at -large for a two (2) year term by the electors of the Village in the manner provided in Article V of this Charter. However, beginning with the 2006 elections, a transition shall commence in the length of the term of office by providing for Council Members to be elected at -large for a four (4) year term by the electors of the Village in the manner provided in Article V of this Charter. In order to create and maintain staggered terms which provides continuity in the legislative branch of govern- ment, there shall be a transition made from two (2) year terms to four (4) year terms. This transition from a two (2) year term to a four (4) year term of office shall be accomplished by providing that the three (3) Council Members receiving the most votes at the 2006 election shall receive four (4) year terms of office and the remaining three (3) Council Members who are elected at the 2006 election shall receive two (2) year terms of office. The Mayor shall continue to be elected for a two (2) year term. (b) 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 Council Member, for more than eight (8) consecutive years. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97; Res. No. 2002-21, 4-30-02/7-9-02; Ord. No. 2005-4, § 2, 5-10-05/4-11-06) Section 2.04. Qualifications. Candidates for Council Member 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 Council Member in the same election. Only electors of the Village who have resided continuously and have been a registered voter in the Village for at least one (1) year preceding the date of such filing shall be eligible to hold the office of Council Member or Mayor. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97; Res. No. 2002-21, 4-30-02/7-9-02) Section 2.05. Vacancies; forfeiture of office; filling of vacancies. (a) Vacancies. The office of a Council Member or Mayor shall become vacant upon his/her death, resignation, removal from office in any manner authorized by law or forfeiture of his/her office. Supp. No. 23 CHT:9 § 2.05 KEY BISCAYNE CODE (b) Forfeiture of office. (i) Forfeiture by disqualification. A Council Member shall forfeit his/her office if at any time during his/her term s/he ceases to maintain his/her permanent residence in the Village or otherwise ceases, without good cause, to be a qualified elector of the Village. (ii) Forfeiture by absence. A Council Member shall be subject to forfeiture of his/her office, in the discretion of the remaining Council Members, if s/he is absent without good cause from any three (3) regular meetings of the Council during any calendar year, or if s/he is absent without good cause from any three (3), 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 Council Member'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 Council Member in question; provided, however, that any Council Member may at any time during any duly held meeting move to establish good cause for the absence of him/herself or any other Council Member, from any past, present or future meeting(s), which motion, if carried, shall be conclusive. A Council Member whose qualifications are in question or who is otherwise subject to forfeiture of his/her office shall not vote on any such matters. The Council Member 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 Council Member has forfeited his/her office shall be made by resolution. All votes and other acts of the Council Member 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 or in the office of Mayor shall be filled as follows: (i) If the vacancy occurs on the Council and less than six (6) months remain in the unexpired term, the vacancy shall be filled by the Council. If the vacancy occurs in the office of Mayor and less than six (6) months remain in the unexpired term, the vacancy shall be filled by vote of the Council from among its members. (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. Supp. No. 23 CHT:10 CHARTER § 2.05 (iv) 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. (v) 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 (c). (vi) 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 Council Members who shall call a special election within not less than thirty (30) days or more than sixty (60) days after such appointment and such election shall be held in Supp. No. 23 CHT:10.1 CHARTER § 3.03 the same manner as the first elections under this Charter; provided, however, that if there are less than six (6) 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; Res. No. 97-15, 4-1-97/6-10-97) 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. (Res. No. 97-15, 4-1-97/6-10-97) Section 2.07. No compensation; reimbursement for expenses. Council Members (including the Mayor) shall serve without compensation but shall receive reimbursement in accordance with applicable law, or as may be otherwise provided by ordinance, 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; Res. No. 97-15, 4-1-97/6-10-97) ARTICLE III. ADMINISTRATIVE* Section 3.01. Village Manager. There shall be a Village Manager (the "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; Res. No. 97-15, 4-1-97/6-10-97) Section 3.02. Appointment; removal; compensation. The Council shall appoint the Manager for an indefinite term. The Council may remove the Manager as provided in Section 3.09. The compensation of the Manager shall be fixed by the Council. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97) 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. Supp. No. 16 CHT:11 § 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 except when excused by the Council and shall participate in discussion but not have the right to vote; (4) See that all laws, provisions of this Charter and acts of the Council, subject to enforcement and/or administration by him/her or by officers subject to his/her direction and supervision, 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 s/he deems to be in the best interests of the Village; (9) Execute contracts, deeds and other documents on behalf of the Village as authorized by the Council; and (10) Perform such other duties as are specified in this Charter or as may be required by the Council. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97) Section 3.04. Village Clerk. The Council shall appoint a Village Clerk (the "Clerk" or "Village Clerk") for an indefinite term. The compensation of the Clerk shall be fixed by the Council. The Clerk shall give notice of Council meetings to its members and the public, shall keep minutes 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 and may be removed by the Council as provided in Section 3.09. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97) 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 (the "Village Attorney") under such terms and conditions as are consistent with this Charter and as may be established by the Council. The Village Attorney shall report to the Council and may be removed by the Council at any time. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97) Supp. No. 16 CHT:12 CHARTER § 4.01 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 comment on proposed administrative regulations prior to taking final action on the same. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97; Res. No. 2002-21, 4-30-02/7-9-02) Section 3.07. Expenditure of Village funds. (a) Generally. No funds of the Village shall be expended except pursuant to duly approved appropriations. (b) Capital Projects. The Council may authorize expenditures for: (i) the acquisition, construction, renovation, or improvement of public buildings or facilities; (ii) purchase of land; or (iii) the purchase of equipment. Each of the categories i, ii and iii, irrespective of cost, is a "Capital Project". A resolution or ordinance, as required, approving a Capital Project shall contain at a minimum a description and the projected cost of the Capital Project and be specifically labeled "Capital Project Authorizing Resolution or Ordinance" ("Capital Project Legislation"). (Res. No. 97-15, 4-1-97/6-10-97; Res. No. 2002-21, 4-30-02/7-9-02) Section 3.08. Competitive bid requirement. Except as otherwise provided by law or ordinance, 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 determines that it is impracticable to do so. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97) Section 3.09. Removal of Council Appointees. The Village Manager and the Village Clerk (each is a "Council Appointee") may be suspended with pay pending removal by a resolution which shall set forth the reasons for suspension and proposed removal. A copy of such resolution shall be served immediately upon the affected Council Appointee. The affected Council Appointee shall have fifteen (15) days in which to reply thereto in writing, and upon request, shall be afforded a public hearing, which shall occur not earlier than ten (10) days nor later than 15 days after such hearing is requested, and after full consideration, the Village Council may adopt a final resolution of removal. The affected Council Appointee shall continue to receive full compensation until the effective date of a final resolution of removal. (Res. No. 97-15, 4-1-97/6-10-97) 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 ("Regular Meetings"). Special meetings may be held on the call of the Mayor or by four (4) members of Supp. No. 16 CHT:13 § 4.01 KEY BISCAYNE CODE 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 minutes. The Council shall determine its own rules of procedure and order of business and shall keep minutes 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 minutes. 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) Council Members. 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 11:00 p.m. except upon the affirmative vote of five (5) Council Members, or if less than five (5) Council Members are present, upon the unanimous vote of all Council Members 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; Res. No. 97-15, 4-1-97/6-10-97) Section 4.02. Prohibitions. (a) Appointments] 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 employees whom the Manager or any of his/her 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 investigations 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 recommendations for improvement in Village government operations by individual Council Members be made solely to and through the Manager. No individual Council Member 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/her term. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97) Supp. No. 16 CHT:14 CHARTER § 4.04 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 Village 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; (8) Amend or repeal any ordinance previously adopted, except as otherwise provided in this Charter; or (9) Approve a Capital Project in excess of $500,000. When an ordinance authorizing a Capital Project in excess of $500,000 has been approved upon first reading, notice of the date and time of the second reading shall be provided ("Second Reading Notice"). The Second Reading Notice shall include a brief description of the Capital Project and its cost and shall be published in addition to and contemporaneously with notices regularly published for second readings. Each Village elector shall be sent a Second Reading Notice by postcard. Action taken by the Council on a Capital Project shall not be voided by the failure of an individual Village elector to receive a Second Reading Notice postcard. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97; Res. No. 2002-21, 4-30-02/7-9-02) 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. Supp. No. 16 CHT:15 § 4.04 KEY BISCAYNE CODE (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; Res. No. 97-15, 4-1-97/6-10-97) 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 (15) days, with all items in it prorated accordingly, until such time as the Council adopts an annual budget for the ensuing fiscal year. An ordinance adopting an annual budget shall constitute appropriations of the amounts specified 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. The Village Manager may at any time, transfer any unencumbered appropriation balance or portion thereof between classifications of expendi- tures within an office or department. (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; Res. No. 97-15, 4-1-97/6-10-97) Supp. No. 16 CHT:16 CHARTER § 4.09 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. (Res. No. 97-15, 4-1-97/6-10-97) 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 appropriated, s/he shall report to the Council without delay, indicating the estimated amount of the deficit, and his/her 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; Res. No. 97-15, 4-1-97/6-10-97) Section 4.08. Authentication, recording and disposition of ordinances; resolutions and charter amendments. (a) Authentication. The Mayor or the Clerk shall authenticate by his/her signature all ordinances 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. (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; Res. No. 97-15, 4-1-97/6-10-97) 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. (Res. No. 97-15, 4-1-97/6-10-97) Supp. No. 16 CHT:17 § 4.10 KEY BISCAYNE CODE Section 4.10. Borrowing. (a) Debt Approval. The Village shall incur no Debt unless the incurrence of such Debt is approved by at least five (5) Council Members. (b) Limits. The total Debt of the Village, including amounts authorized but still not drawn down under existing loan agreements and other contractual arrangements with banks and other financial institutions, underwriters, brokers and/or intermediaries, shall not exceed the greater of: i. one percent (1%) of the total assessed value of all property within the Village, as certified by the Miami -Dade County Property Appraiser for the current fiscal year; or ii. that amount which would cause annual Debt Service to equal fifteen percent (15%) of General Fund expenditures for the previous fiscal year. (c) Definitions. As used in this Section 4.10 the following terms shall have the meanings ascribed to them in this subsection. i. "Debt" means any obligation of the Village to repay borrowed money however evidenced since the date of its incorporation regardless of tenor or term for which it was originally contracted or subsequently converted through refinancing or novation, except (A) any obligation required to be repaid in less than a year and which was incurred solely for emergency relief of natural disasters, or (B) that portion of any obligation for operations which are financed and operated in an independent, self- liquidating manner and recovered entirely through currently collected user fees and charges. ii. "Debt Service" shall include, without limitation thereto, scheduled interest payments, repayments of principal and all financial fees arising from Debt or from the underlying contractual obligations, whether as originally incurred or subsequently deferred or otherwise renegotiated. iii. "General Fund" shall mean any and all revenues of the Village, from whatever source derived, except those revenues derived from special assessments, user fees and charges and designated as a separate fund to finance goods and services to the public. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97; Res. No. 2001-8, 9-19-01/12-4-01) Section 4.11. Revenue Sharing. No funds of the Village shall be paid to the County or other governmental entity pursuant to a revenue distribution or "revenue sharing" program. (Res. No. 97-15, 4-1-97/6-10-97) Section 4.12. Village boards and agencies. The Council shall establish or terminate such boards and agencies as it may deem advisable from time to time. The boards and agencies shall report to the Council. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97) Supp. No. 16 CHT:18 CHARTER § 5.01 Section 4.13. Village Code, Ordinances and Resolutions. Except as otherwise modified or replaced by this Charter or by the Village Council, all codes, ordinances and resolutions of the Village and of Miami -Dade County, as applicable to the Village, which County awl Village Codes, ordinances and resolutions are in effect as of April 1, 1997, shall remain in force and effect as municipal codes, ordinances and resolutions of the Village. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97; Res. No. 2002-21, 4-30-02/7-9-02) Section 4.14. Special Assessments. Properties may be specially assessed according to law; however, no properties shall be specially assessed by the Village, unless: (a) A majority of the owners of the properties to be specially assessed petition the Village for a special assessment, or (b) An election of the property owners to be specially assessed is held to approve the special assessment and a majority of the property owners voting, one (1) vote per property, on a proposed special assessment vote in its favor. (Res. No. 2000-11, § 4, 3-14-00/5-16-00) Sec. 4.15. Approval by Vote of Electors Required for Amendments to Land Develop- ment Regulations. No text amendment to the zoning code or other land development regulations that would create a new zoning district, or that would amend any definition of a term used in the land development regulations, or that would have the effect of allowing a use not currently permitted, increased residential density, additional hotel or other accommodation units per acre, or increased lot coverage, height, or floor area ratio, shall be effective until approved by a majority vote of the electors voting on the amendment. (Res. No. 2007-12, § 2, 4-10-07/6-12-07) 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. (b) Nonpartisan elections. All elections for the offices of Councilmember and Mayor shall be conducted on a nonpartisan basis. (c) Election date. A primary election for the office of Mayor shall be held in each even -numbered year on the first Tuesday following the first Monday of October. A regular election for Mayor and Council positions 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 Supp. No. 25 CHT:19 § 5.01 KEY BISCAYNE CODE the first Tuesday following the first Monday of November of that year. Notwithstanding any contrary provisions of this section, the Village Council may, by ordinance enacted pursuant to Section 100.3605(2), Florida Statutes, or independent of such statutory basis by virtue of the enabling authority provided in this subsection (c), from time to time, change the dates for conducting mayoral primary, and all regular and special elections for the election of the Mayor and/or Village Council and provide for the orderly transition of office resulting from such date changes. (d) Primary elections. There shall be no primary election for Mayor if no more than two (2) candidates qualify to run for the office of Mayor. In the event that a primary election is not necessary, as described above, the qualified candidates' names for the office of Mayor shall be placed on the regular election ballot, unless otherwise specified by paragraph (h) below. The ballot for the primary election shall contain the names of all qualified candidates for Mayor and shall instruct electors to cast one (1) vote for Mayor. (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 qualified candidates for Council. 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 the contested Council positions, with a maximum of one vote per candidate. The candidate for Mayor receiving the most votes shall be the duly elected Mayor. The candidates for Council receiving the most votes shall be duly elected to the positions on the Council which are up for election. (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) Tie Votes. If the mayoral primary election results in two or more candidates receiving a tie vote such that the number of candidates to be placed on the mayoral ballot for the regular election would exceed the limitations in subsection (e), all candidates receiving a tie vote shall be listed on the mayoral ballot for the general election and the limitations in subsection (e) shall not apply. If a tie vote occurs in the regular election between two (2) or more candidates for either the office of Mayor or Councilmember, the tie vote shall be decided by lot under the direction of the Village Clerk. (h) Single candidates. In the event that the number of persons who qualify as candidates for the Council Member 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 election ballot. No election for Mayor shall be required in any election if there is only one duly qualified candidate for Mayor. The duly qualified candidates shall be deemed elected. (i) 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. Supp. No. 25 CHT:20 CHARTER § 5.02 (j) Commencement of terms. The term of office of any elected official will commence seven (7) days following the day of the regular election or special election at which s/he is elected. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97; . Res. No. 2002-21, 4-30-02/7-9-02; Ord. No. 2004-10, § 2, 8-31-04; Ord. No. 2005-11, § 2, 7-5-05/4-11-06) Cross reference —Section 2-104, Mayoral primary election date revised. 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 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 any ordinance appropriating money, levying taxes or setting salaries of Village officers or employees. The referendum power described in paragraph (ii)(A) of this subsection (a) shall not be available to require reconsideration of an ordinance authorizing the issuance of debt or a Capital Project in excess of $500,000.00 unless proceedings with respect to the referendum are commenced within thirty (30) days after the date of adoption of the ordinance. (B) Notwithstanding anything in paragraph (ii)(A) of this subsection (a) to the contrary, the referendum power shall extend to any ordinance levying ad valorem taxes, provided that (1) the ordinance increases the millage rate above five (5) 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. A minimum of ten (10) electors may commence initiative or referendum 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 circulating the petition and filing it in proper form, stating their names and addresses and specifying 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 committee's request, submit the petitioner's proposed ordinance for review as to legal sufficiency by the Village Attorney and/or issue the appropriate petition blanks to the petitioners' committee, both at the committee's expense. Supp. No. 27 CHT:21 § 5.02 KEY BISCAYNE CODE (c) Petitions. (i) 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 for 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, as well as a brief description summarizing such ordinance in plain language. The petition shall be legally sufficient. (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 s/he personally circulated the paper, the number of signatures thereon, that all the signatures were affixed in his/her presence, that s/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 legal 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 certified mail, return receipt requested (the "Certificate"). Grounds for insufficiency are only those specified in subsection (c) of this Section. A petition 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 additional 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 legal sufficiency of the petition as amended and promptly send a copy of such Certificate to the petitioners' committee by certified mail, return receipt requested, 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 Supp. No. 27 CHT:22 CHARTER § 5.02 or other official designated by the Council shall promptly present his/her 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' committee 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 determined sufficient, the Council shall promptly consider the proposed initiative ordinance 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 ordinance 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 (a) 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 referred 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 (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) of this Section that the petition was determined sufficient. If no 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 -tenths (8/10) of the 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. Supp. No. 25 CHT:23 § 5.02 KEY BISCAYNE CODE (0 Results of election. (i) Initiative. If a majority of the qualified electors voting on a proposed initiative ordinance 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; Ord. No. 97-11, § 1, 4-8-97/6-10-97; Res. No. 97-15, 4-1-97/6-10-97; Res. No. 2001-60, 9-12-01/12-4-01; Res. No. 2002-21, 4-30-02/7-9-02; Res. No. 2007-13, § A, 4-10-07/6-12-07) 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." (Res. No. 97-15, 4-1-97/6-10-97) ARTICLE VI. CHARTER AMENDMENTS Section 6.01. Charter Amendments. This Charter may be amended in accordance with the provisions of this Article. (Res. No. 97-15, 4-1-97/6-10-97) Section 6.02. Procedure to amend. (a) Initiation. This Charter may be amended in two (2) ways: (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. (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 election if such election is scheduled to be held not less than sixty (60) days or more than one hundred twenty Supp. No. 25 CHT:24 CHARTER § 7.03 (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 amendment 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; Res. No. 97-15, 4-1-97/6-10-97; Res. No. 2002-21, 4-30-02/7-9-02) 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. (Res. No. 97-15, 4-1-97/6-10-97) 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. (Res. No. 97-15, 4-1-97/6-10-97) 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. (Res. No. 97-15, 4-1-97/6-10-97) Code reference—Severability of Code, § 1-13. Section 7.03. Conflicts of interest; ethical standards. All Council Members, 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 ordinance, establish a code of ethics for Council Members, officials and employees of the Village. *Code reference —General provisions, ch. 1. Supp. No. 25 CHT:25 § 7.03 KEY BISCAYNE CODE 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; Res. No. 97-15, 4-1-97/6-10-97) 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. (Res. No. 97-15, 4-1-97/6-10-97) Section 7.05. Grants and charitable contributions. The Village shall not make any grants or charitable contribution to any person or entity, except such grants or contributions as have been approved by all seven (7) Council Members. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97) 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 commission (the "Charter Revision Commission") consisting of five (5) persons, one (1) of whom shall be a member of the Council serving a second consecutive term as Council Member and four (4) of whom shall be electors of the Village. If there are no Council Members serving a second consecutive term, the Council shall appoint to the revision commission one (1) Council Member. The Mayor shall not be eligible for appointment to the Charter Revision Commission. The Charter Revision Commission shall commence its proceedings within forty-five (45) days after appointment by the Council. If the Charter Revision Commission determines 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 April 1 of the year following appointment. The report of the Charter Revision Commission may grant to the Council the option of placing the proposed amendments on the ballot for the next scheduled Village Mayoral or Council, countywide, statewide, or federal election. Otherwise, the Council shall, not less than thirty Supp. No. 25 CHT:26 CHARTER § 7.07 (30) days or more than sixty (60) days after submission of the proposed amendments to the Council, submit them to the electors of the Village in accordance with the provisions of Section 6.02, except that the provisions of subsections (a) and (b) of such Section shall not apply. (Ord. No. 92-18, § 1, 8-11-92/11-3-92; Res. No. 97-15, 4-1-97/6-10-97; Res. No. 2007-13, § B, 4-10-07/6-12-07) 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. (Res. No. 97-15, 4-1-97/6-10-97) Supp. No. 25 CHT:26.1 CHARTER § 8.04 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, the transition to a new municipal government, and the transition to two-year terms for Council Members. 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. (Res. No. 97-15, 4-1-97/6-10-97; Res. No. 2002-21, 4-30-02/7-9-02) 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 *Editor's note —The former sections of the Charter printed in this note, with their history, 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 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 transition. 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 ordinances. (Ord. No. 92-18, § 1, 8-11-92/11-3-92) 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. Supp. No. 16 CHT:27 § 8.04 KEY BISCAYNE CODE 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; Res. No. 97-15, 4-1-97/6-10-97) (c) pursuant as follow (i) (ii) (iii) (vi) (d) pursuant except as (i) (ii) (e) pursuant 1991 elections. The primary and regular elections in 1991 shall be held to the procedures set forth in Section 2.03 and Section 5.01(d) and (e), except s: only those candidates will qualify for election who have filed written notice of candidacy for Council Member 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: (A) indicate whether the candidate seeks the office of Council Member 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 Department in the amount of $100.00; there will be six (6), rather than three (3), Council positions to be filled; the number of candidates on the regular election ballot will be twelve (12), rather than six (6); or a lesser number equal to two (2) times the number of Council positions to be filled, if any candidates were duly elected to the Council in the primary; the Mayor will be elected to a two (2) year term expiring in 1993; the three (3) duly elected Council Members receiving the most votes, respectively, will be elected to three (3) year terms expiring in 1994; for purposes of this provision, any Council Member duly elected in the primary will be considered to have received more votes than any Council Member elected in the regular election; and the three (3) remaining duly elected Council Members will be elected to two (2) year terms expiring in 1993. 1993 elections. The primary and regular elections in 1993 shall be held to the procedures set forth in Section[s] 2.03, 2.04 and Section 5.01(d) and (e), follows: the Mayor will be elected to a three (3) year term expiring in 1996; and the three (3) duly elected Council Members will be elected to a three (3) year term expiring in 1996. 1994 elections. The primary and regular elections in 1994 shall be held to the procedures set forth in Section 2.03 and Section 5.01(d) and (e). Supp. No. 16 CHT:28 CHARTER § 8.08 Section 8.08. Transition provisions to facilitate change to two-year terms. 2002 Elections. This Section shall apply to the 2002 elections for Mayor and Council Members. Any conflicting provisions of Sections 2.04 and 5.01 shall not apply to such elections. Elections shall be held in 2002 in the manner described in Section 5.01, except that only the Mayor's office and Council positions held by Council Members' Scott Bass, Alan Fein, and Robert Oldakowski shall be filled. The Council Members elected shall serve two (2) year terms. Thereafter all elections shall be held pursuant to the procedures set forth in Section 2.04 and Section 5.01. * * * (f) Maximum terms. Notwithstanding Section 2.03, any Council Member (includ- ing 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. * * * (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; Res. No. 97-15, 4-1-97/6-10-97; Res. No. 2002-21, 4-30-02/7-9-02) Supp. No. 16 CHT:29 No. R-1 $5,000,000 UNITED STATES OF AMERICA STATE OF FLORIDA VILLAGE OF KEY BISCAYNE WATER AND SEWER REVENUE NOTE SERIES 2008 Registered Owner: Wachovia Bank, National Association Principal Amount: Five Million Dollars ($5,000,000) KNOW ALL MEN BY THESE PRESENTS, that the Village of Key Biscayne, Florida (the "Village"), for value received, hereby promises to pay in installments to the Registered Owner shown above, or registered assigns, on the dates set forth below, the Principal Amount specified above. Subject to prior prepayment described in this Note, this Note shall mature on August 12, 2009. Principal of this Note is payable in full on its maturity date. This Note is issued under authority of and is 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. 2008-5 duly adopted by the Village Council (the "Council") of the Village on July 8, 2008 (the "Ordinance"), and Resolution No. R-2008-31 duly adopted by the Council of the Village on July 8, 2008 (the "Resolution," and collectively with the Ordinance, the "Note Ordinance"), and is subject to the terms of the Note Ordinance. This Note is issued for the purpose of financing a portion of the costs of water and sewer system improvements within the Village, financing architectural, engineering, environmental, legal and other planning costs related thereto, and paying costs of issuance of the Notes (collectively, the "Project"). This Note shall be payable only from the sources identified in the Note Ordinance and from proceeds of revenue bonds or notes issued to refund the Notes, or from any other loan entered into by the Village to finance the Project (when, as and if such bonds or notes are issued or such loan is closed). The Village intends to enter into a loan with the Florida Department of Environmental Protection to finance the Project, or to issue revenue bonds or notes at or prior to the date of maturity of this Note in order to extend or refund this Note, and the issuance of such bonds or notes has been authorized by the Village; however, such authorization does not obligate the Village to issue such bonds or notes or to issue bonds or notes 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 on February 12, 2009 and upon maturity, at an interest rate equal to 2.69% per annum. {M1732451_1} Interest on this Note shall be computed on the basis of a 360 -day year for the actual number of days elapsed. 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 4.02% per annum (the "Taxable Rate"), 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. In addition, the Owners of the Notes or any former Owners of the Notes, as appropriate, shall be paid an amount equal to any additions to tax, interest and penalties, and any arrears in interest that are required to be paid to the United States by the Owners or former Owners of the Notes as a result of such Determination of Taxability. All such additional interest, additions to tax, penalties and interest shall be paid by the Village on the next succeeding Interest Payment Date following the Determination of Taxability. A "Determination of Taxability" shall mean means the circumstance of the interest on the Notes becoming includable for federal income tax purposes in the gross income of the Owners thereof, or the Notes not being "qualified tax-exempt obligations" as defined in Section 265(b)(3)(B) of the Internal Revenue Code, regardless of whether caused by or within the control of the Village. A Determination of Taxability will be deemed to have occurred upon (i) the issuance by the Internal Revenue Service of a technical advice memorandum or 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 memorandum, notice or notification is not contested 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, or (iv) receipt by the Village or any Owners of the Notes of an opinion of bond counsel to 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 or that the Notes are not "qualified tax-exempt obligations". Adjustment of Interest Rate for 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, a change in the maximum effective corporate tax rate in effect on the date of issuance of the Notes (35%), the imposition of any excise tax or surcharge thereon, or (b) if, as result of action by any pubic 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 reasons of 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, (i) the interest rate on the Notes will be adjusted to cause the yield on the Notes, after payment of any increase in tax, to equal what the yield on the Notes would have been in the absence of such change in law, rule, regulation or executive order, or such action by any pubic body or governmental agency, and (ii) the Village shall reimburse any such Owner within five (5) days 2 1M1732451_1} 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. Adjustment of Interest Rate Upon an Event of Default. If an "event of default" occurs under Section 18 of the Note Ordinance, the interest rate on the Notes shall immediately be adjusted to a rate equal to the per annum interest rate announced by Wachovia Bank, National Association, from time to time, as its "Prime Rate," plus two percent (2%). Optional Prepayment. This Note is subject to optional prepayment in whole or in part at any time at a price of par, plus accrued interest to the date of prepayment, plus a premium equal to the "Prepayment Penalty" described in Exhibit "A" attached hereto, upon written notice to the Owners thereof given by the Village at least five (5) days prior to the date fixed for prepayment. In the event that there is more than one Owner of the Notes, (i) the Village shall determine the amount of each Note to be redeemed, and (ii) the Village shall give notice to each Owner of the Notes at least five (5) days prior to the date of redemption of the amount of each Note to be redeemed. 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 Legally Available 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. "Legally Available 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; but only after provision has been made by the Village for 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. Such covenant and agreement on the part of the Village to budget and appropriate such amounts of Legally Available Non -Ad Valorem Revenues shall be cumulative to the extent not paid, and shall continue until such Legally Available 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 Legally Available Non -Ad Valorem Revenues, and, subject to the provisions of the Note Ordinance, does not preclude the Village from pledging in the future its Legally Available Non - Ad Valorem Revenues, nor does it require the Village to levy and collect any particular non -ad valorem revenues. Such covenant to budget and appropriate Legally Available Non -Ad Valorem Revenues is subject in all respects to the payment of obligations secured by a pledge of one or 3 {M1732451_1} more sources of such Legally Available Non -Ad Valorem Revenues heretofore or hereinafter entered into (including the payment of debt service on notes 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 Legally Available 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 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 A PLEDGE OF THE FAITH AND CREDIT OF THE VILLAGE WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION, BUT SHALL BE PAYABLE FROM AND SECURED SOLELY BY LEGALLY AVAILABLE NON -AD VALOREM REVENUES OF THE VILLAGE, AND AS OTHERWISE PROVIDED IN THE NOTE ORDINANCE. THE ISSUANCE OF THIS NOTE SHALL NOT DIRECTLY OR INDIRECTLY OR CONTINGENTLY OBLIGATE THE VILLAGE TO LEVY OR TO PLEDGE ANY FORM OF AD VALOREM TAXATION WHATEVER THEREFOR NOR SHALL THIS 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 AD VALOREM TAXATION. 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. 4 {M1732451_1) 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 fifteen (15) days next preceding an interest payment date on such Notes. 4. All Notes, the principal of which has been paid, either at or prior to maturity, shall be delivered to the Village when such payment is made, and shall thereupon be canceled. 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 12th day of August, 2008. VILL ISCAYNE, FLORIDA Village Clerk al./eV 5 {M1732451_1} 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 (Cust.) Custodian for (Minor) TEN ENT - as tenants by the entirety under Uniform Gifts to Minors Act of JT TEN -as joint tenants with right of survivorship and not as tenants in common Additional abbreviations may also be used though not in the list above. (State) 6 1M1732451_1} EXHIBIT "A" Any applicable prepayment penalty on the Notes shall be calculated in accordance with the following: "Break Event" means any voluntary or mandatory prepayment or acceleration, in whole or in part, of the principal of the Notes occurring prior to the date such principal would, but for that prepayment or acceleration, have become due (a "Scheduled Due Date"). For each date on which a Break Event occurs (a "Break Date"), a Breakage Fee shall be due to the owners of the Notes only if the rate under "A" below exceeds the rate under "B" below, such Breakage Fee to be determined as follows: Breakage Fee = the Present Value of [(A -B) x C], plus LIBOR Breakage, where: A = A rate per annum equal to the sum of [i] the note equivalent yield (bid side) of the U.S. Treasury security with a maturity closest to the Maturity Date as reported by the Wall Street Journal (or other published source) on the date the Fixed Rate on the Notes was set (the "Lock -in Date") plus [ii] the corresponding swap spread of the Bank on the Lock -in Date for fixed rate payor to pay the Bank the fixed rate side of an interest rate swap of that maturity, plus [iii] 0.25%.; B = A rate per annum equal to the sum [i] the note equivalent yield (bid side) of the U.S Treasury security with a maturity closest to the Maturity Date as reported by the Wall Street Journal (or other published source) on the Break Date, plus [ii] the corresponding swap spread that the Bank determines another swap dealer would quote to the Bank on the Break Date for paying to the Bank the fixed rate side of an interest rate swap of that maturity; C = The sum of the products of [i] each Affected Principal Amount for each Affected Principal Period, times [ii] the number of days in the Affected Principal Period divided by 360; "Affected Principal Amount" for an Affected Principal Period is the principal amount of the Notes scheduled to be outstanding during that Affected Principal Period determined as of the relevant Break Date before giving effect to the Break Event on that Break Date, and for any prepayment, multiplying each such principal amount times the Prepayment Fraction. "Affected Principal Period" is each period from and including a Scheduled Due Date to but excluding the next succeeding Scheduled Due Date, provided that the first such period shall begin on and includes the Break Date. "Libor Breakage" is any additional loss, cost or expense that the Bank may incur with respect to any hedge for the Fixed Rate on the Notes based on the difference between the London interbank offered rate (for U.S. dollar deposits of the relevant maturity) available in the London interbank market at the beginning of the interest period 7 (M1732451_1} in which the Break Date occurs and that which is available in that market on the Break Date. "Maturity Date" is the date on which the final payment of principal of the Notes would, but for any Break Event, have become due. "Prepayment Fraction" is a fraction equal to the principal amount being prepaid over the principal amount of the Notes outstanding immediately prior to that prepayment on the Break Date. "Present Value" is determined as of the Break Date using "B" above as the discount rate. In addition, a Break Event shall be deemed to occur hereunder if, on any date ("Borrowing Date") after the date hereof but prior to any acceleration of the Notes, any advance of principal under the Notes is scheduled to be made and that advance fails to be made on that Borrowing Date (whether due to the Village's default, the Village's failure to borrow, the termination of any loan commitment, any unsatisfied condition precedent, or otherwise), in which case that Borrowing Date shall be a Break Date, the Affected Principal Amount for that Break Event shall be based on the amount of the failed advance, and the Village shall on demand pay to the Bank any Breakage Fee due hereunder for that Break Event. Breakage Fees are payable as liquidated damages, are a reasonable pre -estimate of the losses, costs and expenses Bank would incur in the event of any prepayment or acceleration of the Notes, are not a penalty, will not require claim for, or proof of, actual damages, and Bank's determination thereof shall be conclusive and binding in the absence of manifest error. For any Break Event hereunder, the foregoing Breakage Fee provisions supersede any breakage compensation agreement that Village and Bank may have executed with respect to the Notes. 8 {M1732451_1) August 12, 2008 To: Village of Key Biscayne, Florida Re: $5,000,000 Village of Key Biscayne, Florida Water and Sewer Revenue Notes, Series 2008 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, other than a fee of $3,000 to Akerman Senterfitt as counsel to the Purchaser. (f) The name and address of the Purchaser is Wachovia Bank, National Association, 200 S. Biscayne Blvd, 15th Floor, Miami, FL 33131-2310. (g) The Village is proposing to issue $5,000,000 of Notes for the purpose of financing a portion of the costs of water and sewer system improvements within the Village, financing architectural, engineering, environmental, legal and other planning costs related thereto, and paying costs of issuance of the Notes. The Notes are expected to be repaid over 1 year. At an interest rate of 2.69%, total interest paid over the life of Notes will be $136,368.05. The source of repayment or security for the Notes is expected to be a covenant to budget and appropriate from legally available non -ad valorem revenues, or from proceeds of a loan with the Florida Department of Environmental Protection to finance the Project, or from the issuance of revenue bonds or notes at or prior to the date of maturity of {M1730216_21 the Notes in order to refund the Notes. Authorizing the Notes will result in approximately $136,368.05 of non -ad valorem revenues not being available to finance the other services of the Village for one year. (h) The Purchaser understands that you require no other disclosures with respect to the Notes. Very truly yours, WACHOVIA BANK, NATIONAL ASSOCIATION By: Lance Aylsworth Vice President {M1730216_2} 2 Bond Finance - Local Bond Monitoring: Notice of Sale Confirmation Page 1 of 1 STATE OF FLORIDA - DIVISION OF BOND FINANCE LOCAL BOND MONITORING MEM" NOTICE OF SALE STATUS Notice of Sale sL,hmission successful. SUBMIT DATE: 07/29/2008 BOND ISSUE NAME: SALE DATE: CLOSING DATE: $5,000,000 Village of Key Biscayne, Florida Water and Sewer Revenue Notes, Series 2008 8/12/2008 8/12/2008 Print this page https://www.sbafla.com/issue/nosprocess.aspx?redirectPage=nosprocess.aspx 7/29/2008 INCUMBENCY CERTIFICATE CONCHITA H. ALVAREZ, 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, and in particular on July 8, 2008, the date on which both the Ordinance No. 2008-5 (the "Ordinance") and Resolution No. 2008-31 (the "Resolution," and collectively with the Ordinance, the "Note Ordinance") authorizing the issuance of not exceeding $5,000,000 Village of Key Biscayne, Florida, Water and Sewer Revenue Notes, Series 2008 (the "Notes"), were adopted, the duly elected, qualified and acting members of the Council, and the dates of the beginning and ending of their respective terms are hereunder correctly designated opposite their names. Member Michael Davey Enrique Garcia Stephen Liedman Jorge Mendia Thomas Thornton Robert L. Vernon Patricia Weinman Beginning Date of Term November 14, 2006 November 14, 2006 November 14, 2006 November 14, 2006 November 14, 2006 November 14, 2006 November 14, 2006 Ending Date of Current Term November 9, 2010 November 11, 2008 November 11, 2008 November 9, 2010 November 9, 2010 November 11, 2008 November 11, 2008 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 Village Clerk Village Manager Village Attorney Name Robert L. Vernon Conchita H. Alvarez Genaro "Chip" Iglesias Weiss Scrota Helfrrian Pastoriza Cole & Boniske, P.L. Beginning Date of Current Term November 14, 2006 November 14, 1996 September 4, 2007 November 29, 1991 Ending Date of Current Term November 11, 2008 Discretion of Council Discretion of Council Discretion of Council IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the Village this 12th day of August, 2008. Village Clerk {M1730216_2} SIGNATURE AND NO LITIGATION CERTIFICATE We, the undersigned, DO HEREBY CERTIFY that: 1. We did heretofore cause to be officially documented the $5,000,000 Water and Sewer Revenue Notes, Series 2008 of the Village of Key Biscayne, Florida (the "Village") dated August 12, 2008, issued as one Note in the principal amount of $5,000,000 (the "Notes"). 2. Robert L. Vernon, Mayor of the Village, has executed the Notes by his manual signature, and the Mayor was on the date his signature was placed on the Notes and is now the duly elected, qualified and acting Vice Mayor of the Village. 3. We have caused the official seal of the Village to be imprinted on the Notes, and Conchita H. Alvarez, Village Clerk of the Village, caused such seal to be attested by her signature, and said Conchita H. Alvarez was on the date her signature was placed on the Notes and is now the duly appointed, qualified and acting Village Clerk of the Village. 4. 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. The Village Council, by Ordinance No. 2008-5 adopted on July 8, 2008 (the "Ordinance") and Resolution No. 2008-31 adopted on July 8, 2008 (the "Resolution", and collectively with the Ordinance, the "Note Ordinance"), has authorized the issuance of the Notes, and said Note Ordinance has not been modified or amended since the date of such adoption, and is in full force and effect. 6. 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. 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. 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 pledge by the Village of the Non -Ad Valorem Revenues, as specified in the Note Ordinance, 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 elected officials or officers thereof, or (e) questioning or affecting the power and authority of the Village to issue the Notes or adopt the Note Ordinance, nor do the undersigned have any knowledge that there is any basis therefor. {M1730216_2} 9. The adoption of the Note Ordinance and 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. 10. There has been no material adverse change in the financial condition or operations of the Village since September 30, 2007 (the date of its last annual audited financial statements). IN WITNESS WHEREOF, we have hereunto set our hands and affixed the official seal lage this 12th day of August, 2008. TITLE OF OFFICE TERM OF OFFICE EXPIRES ,,��,� Mayor November 14, 2006 6[W/Village e Clerk Discretion of Village Council g { M 1730216_2 } 2 CERTIFICATE OF PURCHASER The undersigned, on behalf of the Purchaser, WACHOVIA BANK, NATIONAL ASSOCIATION (the "Purchaser"), hereby certifies and acknowledges in connection with the purchase by it of $5,000,000 Village of Key Biscayne, Florida, Water and Sewer Revenue Notes, Series 2008 (the "Notes") that: 1. The Purchaser has received executed copies of Ordinance No. 2008-5 adopted by the Village Council of the Village of Key Biscayne, Florida (the "Village") on July 8, 2008 and Resolution No. 2008-31 adopted on July 8, 2008, 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 Note Counsel or received from Note Counsel or looked or relied upon Note Counsel for any information with respect to the Village or its financial condition, other than reliance upon the Note Counsel opinion. 7. The Purchaser is a national bank. 8. The Purchaser hereby certifies that it is purchasing the Notes for its own {M1730216_2} 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. 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 12th day of August, 2008. WACHOVIA BANK, NATIONAL ASSOCIATION By: Lance Aylsworth Vice President {M1730216_2) 2 ARBITRAGE CERTIFICATE The undersigned is the Vice Mayor of the Village of Key Biscayne, Florida (the "Village"), and hereby certifies the following with respect to the Village's $5,000,000 Water and Sewer Revenue Notes, Series 2008 (the "Notes"). The undersigned is the official charged with others with responsibility for issuing the Notes. 1. General. (a) The Notes are being issued on the date hereof pursuant to Ordinance No. 2008-5 adopted by the Village Council on July 8, 2008 and Resolution No. 2008-31 adopted by the Village Council on July 8, 2008 (collectively, the "Note Ordinance") to provide funds to pay a portion of the costs of water and sewer system improvements within the Village, finance architectural, engineering, environmental, legal and other planning costs related thereto, and pay costs of issuance of the Notes (the "Project"). Capitalized terms used herein but not otherwise specifically defined have the same meanings as when used in the Note 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 §§ 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 Notes will be used in any manner that would cause the 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. 2. Source and Use of Proceeds. (a) The proceeds received from the sale of the Notes will be $5,000,000 (the "Sale Proceeds"), representing $5,000,000 principal amount plus accrued interest of $0. (b) $28,000 of the Sale Proceeds will first be used to pay costs of issuing the Notes. (c) The remainder of the Sale Proceeds will be deposited in the Project Fund on the date hereof and used, together with all amounts derived from the investment thereof to pay for costs of the Project. {M1730299_1} Arbitrage Certificate (d) The Sale Proceeds, together with all amounts derived from the investment thereof, will not exceed by any amount the amount necessary for the governmental purposes of the Notes. (e) The Village reasonably expects to incur within six months of the date hereof substantial binding obligations to third parties in an aggregate amount in excess of 5% of the Sale Proceeds to acquire and construct the Project. Work on the Project and the expenditure of the Sale Proceeds will proceed with due diligence to the completion thereof. The Village reasonably expects that at least 85 percent of the Sale Proceeds deposited in the Project Fund will be applied to pay costs of the Project within three years of the date hereof (f) No portion of the Sale Proceeds or amounts derived from the investment thereof will be used to pay debt service on any other debt obligation of the Village. (g) The Village will not treat any amount in excess of $100,000 as being used to reimburse an expenditure paid before the date hereof unless the requirements of 26 CFR § 1.1 50- 2(d) relating to reimbursement allocations are met with respect to such expenditure. The preceding sentence shall not apply to preliminary expenditures with respect to a project to the extent that the amount of such expenditures does not exceed 20% of the aggregate issue price of the portion of an issue or issues that finance or are reasonably expected to finance the project for which the preliminary expenditures were incurred. Preliminary expenditures with respect to a project means architectural, engineering, surveying, soil testing, costs of issuance, and similar costs incurred prior to commencement of acquisition, construction, or rehabilitation of the project, other than land acquisition, site preparation, and similar costs incident to commencement of construction. (h) The Village reasonably expects that the Project will continue throughout the term of the Notes to be owned and operated by the Village. 3. Flow of Funds. (a) The Village is required under the Note 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 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 Notes). All amounts in the Note Fund will be expended to pay debt service on the 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). (c) The Rebate Fund is not pledged to pay debt service on the Notes and will not be available if needed to pay such debt service. Arbitrage Certificate {M1730299_1) 2 4. Arbitrage Rebate. The aggregate face amount of all tax-exempt bonds (other than private activity bonds) issued by the Village during calendar year 2008 is not expected to exceed $5,000,000. Therefore, the Village qualifies for the exception to arbitrage rebate contained in Section 148(f)(4)(D) of the Code. In the event such exception or another exception from rebate is not available, the Village has covenanted to satisfy the arbitrage requirements of Section 148 of the Code including making the necessary calculations and payments, if any, with respect to the rebate requirement. For purposes of this Section 4, "proceeds" includes the amount of investment proceeds on the Notes reasonably expected by the Village on the date of issuance of the Notes. 5. Project Fund. Amounts on deposit in the Project Fund will be used for the payment of costs of acquisition and construction of the Project. No portion of the proceeds of the Notes will be used for reimbursement of expenditures paid by the Village prior to the date of issuance of the Notes except for (i) preliminary capital expenditures incurred before commencement of acquisition or construction of the Project that do not exceed twenty percent (20%) of the portion of the issue price of the Notes, and (ii) capital expenditures that (A) were paid no earlier than sixty (60) days before the date of the adoption by the Village of a declaration of intent to reimburse such expenditures from the proceeds of obligations, and (B) are reimbursed no later than eighteen (18) months after the later of the date the expenditure was paid or the date the Project is placed in service (but no later than three (3) years after the expenditure is paid). Proceeds (if any) used for reimbursement of expenditures will be deposited in the general fund of the Village and will not be used to replace funds of the Village to be used to refund debt of the Village to create a sinking or pledged fund for such debt or the Notes or otherwise to create replacement proceeds for such debt or for the Notes. 6. Qualified Tax -Exempt Obligations (a) The Village reasonably expects that the aggregate face amount of all tax- exempt obligations issued by the Village during calendar year 2008 will not exceed $10 million. The Village represents that neither the Village nor any subordinate entities or entities issuing tax- exempt obligations on behalf of the Village within the meaning of Section 265(b)(3) of the Code have issued tax-exempt obligations during calendar year 2008 and neither the Village nor any such entities expect to issue tax-exempt obligations during calendar year 2008. For purposes of this paragraph (a): (i) 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 another entity are treated as issued by such other entity. Arbitrage Certificate {M1730299_1} 3 (ii) 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 purposes of section 103 of the Code, except that such term shall not include: any private activity bond (as defined in section 141 of the Code) or any current refunding obligation; (iii) An obligation is "tax-exempt" if: (a) interest on the obligation is excluded from gross income for federal income tax purposes; (b) 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 (c) the proceeds of the obligation were derived (directly or indirectly) from proceeds of a tax-exempt obligation. (iv) An obligation that is part of an issue is a refunding obligation to the extent that: (a) proceeds of the issue are used to pay principal or interest on an obligation that is part of another issue; and (b) the amount of the refunding obligation does not exceed the amount of the refunded obligation (determined at the time of issuance of the refunding obligation). For this purpose, the amount of an obligation is the stated principal amount plus accrued unpaid interest (or, if the original issue premium or discount exceeds 2 percent, the present value of the obligation). (v) 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. (b) The Notes have been designated by the Village as qualified tax-exempt obligations (as defined in section 265(b)(3)(B) of the Code) in Section 13 of the Resolution. 7. Miscellaneous (a) No more than 50 percent of the proceeds of the 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). More than 85 percent of the spendable proceeds of the Notes (within the meaning of section 149(g)(3)(A)(ii) of the Code) will be reasonably expended for the governmental purposes within three years of the date of hereof. (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 Notes contained in section 149(b)(2)(B) of the Code. (c) No portion of the proceeds of the 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. Arbitrage Certificate {M1730299_1} 4 (d) There are no other obligations of the Village (i) that are or will be sold within 15 days of the date hereof; 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 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 Notes that would cause the Notes to be "arbitrage bonds" within the meaning of section 148 of the Code. No portion of the proceeds of the Notes will be intentionally used in the manner described in section 148(a)(1) or (a)(2) of the Code. (f) The Village reasonably expects that at least 75 percent of the available construction proceeds (within the meaning of section 148(f)(4)(C)(vi) of the Code) of the Notes will be used for construction expenditures with respect to property owned by the Village. (g) The Village has covenanted that neither the Village nor any person under the control or direction of the Village will make any use of the Project that would cause the 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). [Remainder of this page intentionally left blank] Arbitrage Certificate {M1730299_1} 5 IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 12th day of August, 2008. VILLAGE OF KEY BISCAYNE, FLORIDA By: Robert L. Vernon, Mayor Arbitrage Certificate {M1730299_1} 6 ADORNO & Yoss A LIMITED LIABILITY PARTNERSHIP 2525 PONCE DE LEON BOULEVARD, SUITE 400 MIAMI, FLORIDA 33134-6012 PHONE: (305) 460-1000, FAX: (305) 460-1422 WWW.ADORNO.COM JEFFREY D. DECARLO August 19, 2008 CERTIFIED MAIL RETURN RECEIPT REQUESTED Intern -1 Revenue Service Cenier Ogden, UT 84201 DIRECT LINE (305) 460-1276 EMAIL JDC@ADORNO COM Re: $5,000,000 Village of Key Biscayne, Florida Water and Sewer Revenue Notes, Series 2008 Gentlemen: Enclosed herewith please find Form 8038-G, Information Return for Tax -Exempt Governmental Obligation, for the above -referenced bond issue. Please stamp this letter "received" and return same in the enclosed self-addressed, stamped envelope. Thank you in advance for your consideration. Very truly yours, AD &BOSS, LLP JDC/gr Enclosure Jef . DeCarlo Qt AU G 2 7 2008 'r:21,\ UT {M1411008_1} ATLANTA BOCA RATON DELRAY BEACH FORT LAUDERDALE WEST PALM BEACH Genaro Iglesias, Village Manager Type of Issue (check applicable box(es) and enter the issue price) See instructions and attach schedule Part II 11 12 13 14 15 16 17 18 19 20 ❑ Education Health and hospital U Transportation Public safety Environment (including sewage bonds) n Housing ❑ Utilities fj Other. Describe ► If obligations are TANs or RANs, check box ► ❑ If obligations are BANs, check box If obligations are in the form of a lease or installment sale, check box Part Ill 21 ► n • ❑ Description of Obligations. (Complete for the entire issue for which this form (a) Final maturity date (b) Issue price (c) Stated redemption price at maturity 11 12 13 14 15 16 5,000,000 17 18 is being filed.) (d) Weighted average maturity (e) Yield 08/12/2009 $ 5,000,000 $ 5,000,000 1 years 2.69% Part IV Uses of Proceeds of Bond Issue (including underwriters' discount) 22 Proceeds used for accrued interest 23 Issue price of entire issue (enter amount from line 21, column (b)) 24 Proceeds used for bond issuance costs (including underwriters' discount) 24 28,000 25 25 Proceeds used for credit enhancement 26 Proceeds allocated to reasonably required reserve or replacement fund . 27 Proceeds used to currently refund prior issues 28 Proceeds used to advance refund prior issues 29 Total (add lines 24 through 28) 30 Nonrefunding proceeds of the issue (subtract line 29 from line 23 and enter amount here) Part V 26 27 28 0 22 0 0 0 0 Description of Refunded Bonds (Complete this part only for refunding bonds.) 31 Enter the remaining weighted average maturity of the bonds to be currently refunded 32 Enter the remaining weighted average maturity of the bonds to be advance refunded 33 Enter the last date on which the refunded bonds will be called 34 Enter the date(s) the refunded bonds were issued ► Part VI Miscellaneous Form 8038-G (Rev. November 2000) Department of the Treasury Internal Revenue Service Information Return for Tax -Exempt Governmental uailgations ► Under Internal Revenue Code section 149(e) ► See separate Instructions. Caution: If the issue price is under $100,000, use Form 8038 -GC. OMB No 1545-0720 Part I Reporting Authority If Amended Return, check here ► 1 Issuer's Village name of Key Biscayne, Florida 2 Issuer's employer identification number 65-0291811 3 Number and street (or PO. box if mail is not delivered to street address) 88 West McIntyre Street Room/suite 201 4 Report number 3 2008-1 5 City, town, or post office, state, and ZIP code Key Biscayne, Florida 33149 6 Date of issue 08/12/2008 7 Name of issue Water and Sewer Revenue Notes, Series 2008 8 CUSIP number N/A 9 Name and title of officer or legal representative whom the IRS may call for more information 10 Teleph b one numer of officer o 305-365-5506 23 29 5, 000, 000.00 28,000.00 30 4, 972, 000.00 years years 35 35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) 36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (see instructions) b Enter the final maturity date of the guaranteed investment contract ► 37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units b If this issue is a loan made from the proceeds of another tax-exempt issue, check box ► n and enter the name of the issuer ► and the date of the issue ► 38 If the issuer has designated the issue under section 265(b)(3)(B)(i)(III) (small issuer exception), check box 39 If the issuer has elected to pa a penalty in lieu of arbitrage rebate, check box ► 40 If the issuer has iden ' . - % =:' e, eck box ► ❑ Under penalt of p- �ar that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are •'�•I e Robert L. Vernon Sign Here 08/12/08 ' Mayor For Paperwork Reduction Act Notice, see page 2 of the Instructions. ISA STF FED6403F 36a 37a Signa ure of issuer's authorized representative Date Type or print name and title Form 8038-G (Rev. 11-2000) ►n CERTIFICATE REGARDING COMPLIANCE WITH DEBT CAP The undersigned, Village Manager of the Village of Key Biscayne, Florida (the "Village") hereby certifies as follows pursuant to the requirement of Section 4.10 of the Village Charter (the "Debt Cap Ordinance Requirement"). Capitalized terms used and not defined herein shall have the meanings given to them in Section 4.10 of the Village Charter. (1) The total assessed value of all property within the Village, as certified to the Village by the Miami -Dade County Property Appraiser, for the fiscal year ended September 30, 2007 is $5,630,046,023. One percent (1%) of such amount is $56,300,460 (the "Assessed Value Limitation"). (2) The Village's $10,000,000 Land Acquisition and Capital Improvement Revenue Bonds, Series 1999 (the "1999 Capital Improvement Bonds"), the Village's $10,000,000 Capital Improvement Revenue Bonds, Series 2000 (the "2000 Capital Improvement Bonds"), the balance of the State Revolving Sewer Loan, the Village's $9,987,551 Capital Improvement Revenue Bonds, Series 2002 (the "2002 Capital Improvement Bonds"), the Village's $5,000,000 Capital Improvement Revenue Bonds, Series 2004 (the "2004 Capital Improvement Bonds"), the Village's $3,500,000 Transportation Tax Revenue Bonds, Series 2005 (the "2005 Transportation Tax Bonds"), the Village's $4,000,000 Road Improvement Revenue Bonds, Series 2006 (the "2006 Road Improvement Bonds"), and the Village's proposed $5,000,000 Water and Sewer Revenue Notes, Series 2008 (the "2008 Water and Sewer Notes") constitute the only outstanding Debt of the Village within meaning of the Debt Cap Ordinance. The currently outstanding amount of the 1999 Capital Improvement Bonds is $7,585,000, the currently outstanding amount of the 2000 Capital Improvement Bonds is $8,360,000, the currently outstanding amount of the State Sewer Loan is $339,002, the currently outstanding amount of the 2002 Capital Improvement Bonds is $8,674,807, the currently outstanding amount of the 2004 Capital Improvement Bonds is $2,730,071, the currently outstanding amount of the 2005 Transportation Tax Bonds is $3,452,266, the currently outstanding amount of the 2006 Road Improvement Bonds is $3,831,042, and the current outstanding amount of the 2008 Water and Sewer Notes is $5,000,000 (the "Outstanding Debt"), for a total of $39,972,188. (3) The amount of principal and interest payable during the fiscal year ended September 30, 2009 (the year in which combined debt service is the highest) with respect to the 1999 Capital Improvement Bonds is $890,881, with respect to the 2000 Capital Improvement Bonds is $821,434, with respect to the 2002 Capital Improvement Bonds is $741,177, with respect to the 2004 Capital Improvement Bonds is $220,302, with respect to the State Revolving Sewer Loan is $28,134, with respect to the 2005 Transportation Tax Bonds is $334,086, with respect to the 2006 Road Improvement Bonds is $294,457, and with respect to the 2008 Water and Sewer Notes is $5,131,368, for a total of $8,461,839. (4) Total general fund expenditures of the Village for the fiscal year ended September 30, 2007 was $20,686,819, and 15% of such amount is $3,103,023 (the "General Fund Expenditure Limitation"). (5) The Outstanding Debt does not exceed the Assessed Value Limitation. {M1732399_1} 2008. (6) The amount in (3) exceeds the General Fund Expenditure Limitation. IN WITNESS WHEREOF, the undersigned has set his hand this 12th day of August VILLAGE I , KEY BISCA FLORIDA By: Genaro "Chip" Iglesia , Vi :e Manag {M1732399_1} COVERAGE CERTIFICATE The undersigned, Village Manager of the Village of Key Biscayne, Florida (the "Village") hereby certifies as follows: 1) On the date hereof the Village is issuing its $5,000,000 Village of Key Biscayne, Florida, Water and Sewer Revenue Notes, Series 2008 (the "2008 Notes"). The 2008 Notes are secured by a covenant to budget and appropriate from legally available non -ad valorem revenues (the "Pledged Revenues"). 2) The Village has previously issued its $10,000,000 Land Acquisition and Capital Improvement Revenue Bonds, Series 1999 (the "1999 Capital Improvement Bonds"), its $10,000,000 Capital Improvement Revenue Bonds, Series 2000 (the "2000 Capital Improvement Bonds"), its $9,987,551 Capital Improvement Revenue Bonds, Series 2002 (the "2002 Capital Improvement Bonds"), and its $5,000,000 Capital Improvement Revenue Bonds, Series 2004 (the "2004 Capital Improvement Bonds. The 1999 Capital Improvement Bonds, the 2000 Capital Improvement Bonds, the 2002 Capital Improvement Bonds and the 2004 Capital Improvement Bonds are also secured by the Pledged Revenues. Section 15(b) of each of the Resolutions authorizing the issuance of the 2002 Capital Improvement Bonds and the 2004 Capital Improvement Bonds provides that the Village will not issue any additional obligations secured by the Pledged Revenues, unless the ratio of (a) all Non -Ad Valorem Revenues of the Village in the current fiscal year of the Village plus any available cash balance in the General Fund, to (b) the debt service coming due on the 2008 Notes and all other debt of the Village secured by the Pledged Revenues, namely the 1999 Capital Improvement Bonds, the 2000 Capital Improvement Bonds, the 2002 Capital Improvement Bonds and the 2004 Capital Improvement Bonds, is at least equal to 1.25 to 1.00 (the "Coverage Ratio"). 3) The issuance of the 2008 Notes will comply with Coverage Ratio, as shown in the attached exhibit. Dated as of the 12th day of August, 2008. VILLAG OF KEY , S I YNE, FLORIDA By: Genaro "Chip" Igle ias Village Manager N1732592_11 Village of Key Biscayne, Florida Certificate of Coverage For Additional Bonds Test Series 1999 Bonds: Interest $ 12,213.63 Principal 815,000.00 Total Maximum Annual Debt Service $834,213.63 Series 2000 Bonds: Interest $425,881.00 Principal 465,000.00 Total Maximum Annual Debt Service $890,881.00 Series 2002 Bonds: Interest $ 95,823.98 Principal 645,352.67 Total Maximum Annual Debt Service $741,176.64 Series 2004 Bonds: Interest $ 89,349.26 Principal 297,607.35 Total Maximum Annual Debt Service $386,956.61 Proposed Series 2008 Notes: Interest $ 136,368 Principal 5,000,000 Total Maximum Annual Debt Service $5,131,368 Total Existing and Proposed Maximum Annual Debt Service $7,984,596 Coverage Calculation FY2007 Audited Total Pledged Revenue (including the cash balance in the General Fund) $22,935,711 Actual Coverage Required Coverage 287.25% 125% { M1732592_1} CERTIFICATE OF VILLAGE AS TO COMPUTATION OF INTEREST RATE IN COMPLIANCE WITH SECTION 215.84(3) FLORIDA STATUTES The undersigned, Mayor of the Village of Key Biscayne, Florida hereby certifies that (i) the Village's Water and Sewer Revenue Notes, Series 2008 (the "Notes") are being issued and sold as registered Notes maturing on August 12, 2009 in the aggregate principal amount of $5,000,000 on this date, (ii) such notes shall bear interest at the rate of 2.69% per annum, (iii) as evidenced by the attached copy of a page of The Bond Buyer published on July 31, 2008, the average net interest cost rate, computed in accordance with Section 215.84(3), Florida Statutes, by adding 300 basis points to 4.77% ("The Bond Buyer 20 Note Index" published immediately preceding the first day of the calendar month in which the Notes are sold) is 7.77%, and (iv) the initial interest rate on the Notes equal to 2.69% does not exceed the average net interest cost rate. Dated as of the 12th day of August, 2008. VILLAGE OF KEY BISCAYNE, FLORIDA By: Robert L. Vernon, Mayor {M1730216_2) Market Statistics Thursday,July 31, 2008 The Bond Buyer Weekly Bond Buyer Revenue Bond Index Bond Buyer 20 -Bond Index Bond Buyer 11 -Bond Index Bond Buyer One -Year Note Index New -Issue Sales (Spills) Current Previous 2008 2008 7/24/08 7/17/08 High Date Low Date 5.23% 5.11% 5.25% (6/26) 4.63% (1/17) 4.77% 4.65% 5.11% (2/28) 4.15% (1/17) 4.68% 4.56% 5.02% (2/28) 4.08% (1/17) 1.57% 1.54% 2.92% (1/2) 1.02% (2/13) Wk of 811/08 Wk of 7/25/08 Wk of 7/18108 Wk of 7/27/07 ESTIMATE ACTUAL REVISED REVISED Long -Term Bonds $6,771.7 $8,000.9 $8,434.4 $10,519.1 Negotiated Bonds 5,685.8 5,996.5 6,759.2 8,809.7 Competitive Bonds - 1,085.9 2,004.4 1,675.2 1,627.2 Short -Term Notes 248.0 509.4 869.5 1,039.7 Long -Term Bond Sales Thru 7/30/08 Thru 7/25/08 Thru 7/18/08 Thru 7/27/07 Month, to Date $32,024.2 $25,252.5 $17,251.6 $29,476.0 Year to Date 262,275.6 255,503.9 247,503.0 260,705.9 This week's volume includes sales expected to close on Friday. Next week's estimated volume excludes bond offerings on a "day to day" schedule. RECEIPT FOR NOTES WACHOVIA BANK, NATIONAL ASSOCIATION hereby acknowledges receipt of $5,000,000 aggregate principal amount of Village of Key Biscayne, Florida, Water and Sewer Revenue Notes, Series 2008. IN WITNESS WHEREOF, I hereunto set my hand this 12th day of August, 2008. WACHOVIA BANK, NATIONAL ASSOCIATION By: Lance Aylsworth Vice President { M 1730216_2 } ADORNO & Yoss A LIMITED LIABILITY PARTNERSHIP 2525 PONCE DE LEON BOULEVARD, SUITE 400 MIAMI, FLORIDA 33 I 34-60 I 2 PHONE: (305) 460- 1000, FAX: (305) 460- 1422 WWW.ADORNO.COM August 12, 2008 The Village Council of the Village of Key Biscayne Key Biscayne, Florida Wachovia Bank, National Association Miami, Florida Re: $5,000,000 Village of Key Biscayne, Florida Water and Sewer Revenue Notes, Series 2008 Ladies and Gentlemen: We have acted as Note counsel in connection with the issuance by the Village of Key Biscayne, Florida (the "Village") of its $5,000,000 Water and Sewer Revenue Notes, Series 2008 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"), Ordinance No. 2008-5 duly adopted by the Village Council of the Village on July 8, 2008 and Resolution No. 2008-31 adopted on July 8, 2008 (collectively, the "Note Ordinance"). We have examined the Act, the Note 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 Note 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: 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 Note Ordinance, to perform its obligations thereunder and to issue the Notes. {M1730302_1} The Village Council of the Village of Key Biscayne Wachovia Bank, National Association August 12, 2008 Page 2 2. The Note 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 Note Ordinance, solely from Legally Available Non -Ad Valorem Revenues (as defined in the Note Ordinance) of the Village. 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 ad valorem 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 ad valorem 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. Interest on the Notes 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 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. 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 Note Ordinance to take the actions necessary to comply with such requirements. 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). This opinion is qualified to the extent that the rights of the holders of the Notes and the enforceability of the Notes and the Note Ordinance may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally, now or {M1730302_11 The Village Council of the Village of Key Biscayne Wachovia Bank, National Association August 12, 2008 Page 3 hereafter in effect, and by the exercise of judicial discretion in appropriate cases in accordance with equitable principles. Respectfully submitted, ADORNO & YOSS LLP 4-1414-2-0 Sr- ((e) L- /a } M1730302_1 } WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L. ATTORNEYS AT LAW MITCHELL BIERMAN, P.A. NINA L. BONISKE, P.A. MITCHELL J. BURNSTEIN, P.A. JAMIE ALAN COLE, P.A. STEPHEN J. HELFMAN, P.A. GILBERTO PASTORIZA, P.A. MICHAEL S. POPOK, P.A. JOSEPH H. SEROTA, P.A. SUSAN L. TREVARTHEN, P.A. RICHARD JAY WEISS, P.A. DAVID M. WOLPIN, P.A. DANIEL L. ABBOTT LYNN M. DANNHEISSER IGNACIO G. DEL VALLE ALAN L. GABRIEL DOUGLAS R. GONZALES MATTHEW H. MANDEL BRETT J. SCHNEIDER LILLIAN ARANGO DE LA HOZ• SHAWNTOYIA N. BERNARD BROOKE A. BLOOM A PROFESSIONAL LIMITED LIABILITY COMPANY INCLUDING PROFESSIONAL ASSOCIATIONS BROWARD OFFICE 200 EAST BROWARD BOULEVARD SUITE 1900 FORT LAUDERDALE, FLORIDA 33301 TELEPHONE 954-763-4242 FACSIMILE 954-764-7770 WWW.WSH-LAW.COM MIAMI-DADE OFFICE 2525 PONCE DE LEON BOULEVARD • SUITE 700 CORAL GABLES, FLORIDA 33134 TELEPHONE 305-854-0800 • FACSI MILE 305-854-2323 •OF COUNSEL August 12, 2008 The Village Council of the Village of Key Biscayne, Florida Key Biscayne, Florida Wachovia Bank, National Association Miami, Florida Adorno & Yoss LLP Miami, Florida Re: $5,000,000 Village of Key Biscayne Florida Water and Sewer Revenue Notes, Series 2008 Ladies and Gentlemen: JEFF P.H. CAZEAU RAQUEL ELEJABARRIETA CHAD S. FRIEDMAN R. BRIAN JOHNSON JOHN J. KENDRICK III HARLENE SILVERN KENNEDY KAREN LIEBERMAN• JOHANNA M. LUNDGREN KATHRYN M. MEHAFFEY ALEXANDER L. PALENZUELA-MAORI` DIANE P. PEREZ JOHN J. QUICK ANTHONY L. RECIO SCOTT A. ROBIN GAIL D. SEROTA* JONATHAN C. SHAMRES ESTRELLITA S. SIBILA ANTHONY C. SOROKA EDUARDO M. SOTO MICHAEL L. STINES NANCY STUPARICH• LAURA K. WENDELL• JAMES E. WHITE We have acted as Village Attorney for the Village of Key Biscayne, Florida (the "Village") in connection with the issuance of the Village's $5,000,000 Water and Sewer Revenue Notes, Series 2008 (the "Notes"). In such capacity, we have examined the following: a. Ordinance No. 2008-5 adopted by the Village Council on July 8, 2008, and Resolution No. 2008-31 adopted by the Village Council on July 8, 2008, authorizing the issuance of the Notes (collectively, the "Note Ordinance"); b. The Village Charter, as amended (the "Charter"), and Chapter 166, Florida Statutes, as amended; and The Village Council of the Village of Key Biscayne, Florida Wachovia Bank, National Association Adorno & Yoss LLP August 12, 2008 Page 2 c. Such other documents, certificates, records and proceedings as we have considered necessary to enable us to render this opinion. Based on such examinations, we are of the opinion that: 1. The Note 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 Note Ordinance constitutes a 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. 2. The issuance, sale and delivery of the Notes and the adoption of the Note Ordinance and compliance with the provisions thereof, under the circumstances contemplated thereby, are permitted under the provisions of the Charter, including, in particular, Section 4.10 thereof, 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. 3. To the best of our knowledge, 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 Note Ordinance or adversely affect the validity of the Notes or the security therefor. Respectfully submitted, WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L. BY: Hiwi(\i'A David M. Wolpin DMW:ns WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.I.. Bond Finance - Local Bond Monitoring: Submission Complete Page 1 of 1 STATE OF FLORIDA - DIVISION OF BOND FINANCE LOCAL BOND MONITORING Home Lugout Form submitted successfully. To print the entire form, please click the 'Print' link below. Print https://www.sbafla.com/issue/final.aspx 10/7/2008 Bond Finance - Local Bond Monitoring: Print Form Page 1 of 5 NAME OF GOVERNMENTAL UNIT Village of Key Biscayne, Florida MAILING ADDRESS OF GOVERNMENTAL UNIT OR ITS MANAGER Address(1) 88 West McIntyre Street, Suite 201 Address(2) City Key Biscayne State FL Zip 33149 COUNTIES) IN WHICH GOVERNMENTAL UNIT HAS JURISDICTION Miami -Dade TYPE OF ISSUER City IS THE ISSUER A COMMUNITY DEVELOPMENT DISTRICT? ISSUE NAME AMOUNT INTEREST CALCULATION YIELD $5,000,000 Village of Key Biscayne, Florida Water and Sewer Revenue Notes, Series 2008 $5,000,000.00 Net Interest Cost Rate 2.69 AMOUNT AUTHORIZED $5,000,000.00 DATED DATE (MM/DD/YYYY) 8/12/2008 SALE DATE (MM/DD/YYYY) 8/12/2008 DELIVERY DATE (MM/DD/YYYY) 8/12/2008 LEGAL AUTHORITY FOR ISSUANCE Ch. 166, F.S. TYPE OF ISSUE Revenue IS THIS A PRIVATE ACTIVITY BOND (PAB)? Did This Issue Receive a PAB Allocation? Amount of Allocation $0.00 SPECIFIC REVENUES(S) PLEDGED Primary Other Secondary Other Non -Ad Valorem Revenues https://www.sbafla.com/is sue/print. aspx 10/7/2008 Bond Finance - Local Bond Monitoring: Print Form Page 2 of 5 PURPOSE(S) OF THE ISSUE Primary Water Secondary Sewer/Waste Water Other IS THIS A REFUNDING ISSUE? REFUNDED DEBT HAS BEEN DID THE REFUNDING ISSUE CONTAIN NEW MONEY? APPROXIMATELY WHAT PERCENTAGE OF PROCEEDS IS NEW MONEY? TYPE OF SALE Negotiated INSURANCE/ENHANCEMENTS No Credit Enhancement RATING(S) Moody's NR S&P NR Fitch NR Other DEBT SERVICE SCHEDULE PROVIDED BY E-mail OPTIONAL REDEMPTION PROVISIONS PROVIDED BY E-mail PROVIDE THE NAME AND ADDRESS OF THE SENIOR MANAGING UNDERWRITER OR SOLE PURCHASER Underwriter Wachovia Bank, National Association Address(1) 200 S. Biscayne Blvd. Address(2) 15th Floor City Miami State FL Zip 33131 CO -Underwriter None Address( 1) Address(2) City State - Zip PROVIDE THE NAME(S) AND ADDRESS(ES) OF ANY ATTORNEY OR FINANCIAL CONSULTANT WHO ADVISED https://www.sbafla.com/issue/print.aspx 10/7/2008 Bond Finance - Local Bond Monitoring: Print Form Page 3 of 5 THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE. Bond Counsel Address(1) Address(2) City State Zip Adorno & Zeder/Adorno & Yoss 2525 Ponce de Leon Blvd., Suite 400 Miami FL 33134 CO -Bond Counsel None Address(1) Address(2) City State - Zip Financial Advisor/Consultant None Address(1) Address(2) City State Zip CO -Financial Advisor/Consultant None Address(1) Address(2) City State - Zip Other Professionals Weiss Serota Helfman Pastoriza Cole & Boniske, P. L Address(1) 200 E. Broward Blvd. Address(2) Suite 1900 City Ft. Lauderdale State FL Zip 33301 PAYING AGENT Village of Key Biscayne, FL REGISTRAR Village of Key Biscayne, FL BF2004-A AND BF2004-B NOTE: The following items are required to be completed in full for all bond issues except those sold pursuant to Section 154 Part III, Sections 159 Parts II, III, or V; or Section 243 Part I, Florida Statutes. HAS ANY FEE, BONUS, OR GRATUITY BEEN PAID BY ANY UNDERWRITER OR FINANCIAL CONSULTANT, IN CONNECTION WITH THE BOND ISSUE, TO ANY PERSON NOT REGULARLY EMPLOYED OR ENGAGED BY SUCH UNDERWRITER OR CONSULTANT? IF YES, PLEASE PROVIDE THE FOLLOWING INFORMATION WITH RESPECT TO EACH SUCH UNDERWRITER OR CONSULTANT. COMPANY NAME FEE PAID SERVICE PROVIDED OR FUNCTION SERVED Akerman Senterfitt $3,000.00 Counsel to Purchaser HAVE ANY OTHER FEES BEEN PAID BY THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE, INCLUDING ANY FEE PAID TO ATTORNEYS OF FINANCIAL CONSULTANTS? IF YES, PLEASE PROVIDE THE TOTAL FEES PAID TO APPLICABLE PARTICIPANTS. https://www.sbafla.com/issue/print.aspx 10/7/2008 Bond Finance - Local Bond Monitoring: Print Form Page 4 of 5 Total Bond Counsel Fees Paid $10,000.00 Total Financial Advisor Fees Paid $0.00 Other Fees Paid FILING OF THIS FORM HAS BEEN AUTHORIZED BY THE OFFICIAL OF THE ISSUER IDENTIFIED BELOW Name Title Robert L. Vernon, Mayor Governmental Officer primarily responsible for coordinating issuance of the bonds FEES CHARGED BY UNDERWRITER Management Fee (Per Thousand Par Value) 0 Private Placement Fee 0 UNDERWRITER'S EXPECTED GROSS SPREAD (PER THOUSAND PAR VALUE) 0 FOR ADDITIONAL INFORMATION, THE DIVISION OF BOND FINANCE SHOULD CONTACT: Name Title Phone Company Address(1) Address(2) City State Zip Genaro Iglesias Village Manager 305-365-5506 Village of Key Biscayne, FL 88 W. McIntyre Street Key Biscayne FL 33149 INFORMATION RELATING TO PARTY COMPLETING THIS FORM (IF DIFFERENT FROM ABOVE) Name Title Phone Company Address(1) Address(2) City State Zip Jeffrey DeCarlo Bond Counsel 305-460-1276 Adorno & Yoss, LLP 2525 Ponce de Leon Blvd. Suite 400 Miami FL 33134 In order to better serve local governments, the Division of Bond Finance will remind issuers as their deadlines approach for filing continuing disclosure information required by SEC Rule 15c2-12, based on the following information: IF THE ISSUER IS REQUIRED TO PROVIDE CONTINUING DISCLOSURE INFORMATION IN ACCORDANCE WITH SEC RULE 15c2-12, DO YOU WANT THE DIVISION OF BOND FINANCE TO REMIND YOU OF YOUR FILING DEADLINE? ON WHAT DATE IS THE CONTINUING DISCLOSURE INFORMATION REQUIRED TO BE FILED? (MM/DD) https://www.sbafla.com/issue/print.aspx 10/7/2008 Bond Finance - Local Bond Monitoring: Print Form Page 5 of 5 PROVIDE THE FOLLOWING INFORMATION REGARDING THE PERSON(S) RESPONSIBLE FOR FILING CONTINUING DISCLOSURE INFORMATION REQUIREDBY SEC RULE 15c2-12 AND THE CONTINUING DISCLOSURE AGREEMENT (INCLUDING OTHER OBLIGATED PARTIES, IF APPROPRIATE). Name Title Phone - - Company Address(1) Address(2) City State - Zip Fax - - Email https://www.sbafla.com/issue/print.aspx 10/7/2008 EXHIBIT B COVENANT COMPLIANCE CERTIFICATE The Village hereby certifies to Wachovia Bank that it is in compliance with the required covenant as follows: 1 . All legally available Non -Ad Valorem Revenues shall mean all revenues of the Village derived from any source whatsoever, other than Ad Valorem taxation on real and personal property, and are legally available to make the loan repayments required under this proposal, but only after provision has been made by the Village for payment of services and programs which are for essential public purpose affecting the health welfare and safety of the inhabitants of the Village or which are legally mandated by applicable law. 2. For each fiscal year during the term of the loan, and prior to the incurrence of Additional debt secured by a Covenant to Budget and Appropriate from all Legally Available Non -Ad Valorem Revenues the average of the prior two years Legally Available Non Ad Valorem Revenues as defined above, must cover existing and projected maximum annual debt service on debt secured by and/or payable from such Revenues by at least 1.5x. For purposes of calculating maximum annual debt service, variable rate debt shall be assumed to bear interest at the higher of 7% per annum or the actual interest rate borne by the loan for the month preceding the date of calculation. Moreover, the subject loan will be assumed to be fully funded. The subject loan will be assumed to be amortized over 20 years. Village of Key Biscayne 604 c 2007 (3).DOC 3. The Village's legally available Non -Ad Valorem Revenues for the prior two fiscal years are as follows: Revenues FY 2007 Total Revenues (Per CAFR) $27,514 Less: Ad Valorem Revenues 18,668 Total Non -Ad Valorem Revenues $ 8,846 FY2008 Less: Restricted Funds: [Grant Revenues] 206 [Special Revenue Funds] 730 [Cap Improvements] 9 Adjusted Non Ad -Valorem Revenues $ 7,901 $ Expenditures FY 2007 FY2008 Essential Expenditures General Government $ 2,543 Public Safety 5,123 Fire 4,591 Total Essential Expenditures $ 12,257 Less: Essential Expenditures Paid from Ad Valorem Funds Net of Ad Valorem Debt Service Levy or Designated Ad Valorem Revenues $ 18,668 Adjusted Essential Expenditures $ 0 Fully covered by Ad Valorem Legally Available Non -Ad Valorem Revenues (Adjusted Non -Ad Valorem Revenues less Adjusted Essential Expenditures) $ 7,901 The Village' s debt service coverage ratio is as follows: Average Legally Available Non -Ad Valorem Revenues $ 7,901 Debt Service: Capital Leases Series 1999 (BOA) Series 2000 (Wach) Series 2002 (Sun) Series 2002 (Sun) Sewer Loan Subject Loan$5MM @ 7% 20 years $ 3,457 * Debt Service for this Loan assumed as indicated above. Upon establishment of actual rate (if fixed rate is chosen), the debt service calculation will be revised. 114 824 891 741 387 28 $2,985 472 * Ratio [Must be at least 1.5]/ WITNESS or hands this /C Day Y o By: Village 7,94,1 / 3,457 = 2.29X Village of Key Biscayne 604 c 2007 (3).DOC