Loading...
HomeMy WebLinkAboutOrdinance 2002-155 ORDINANCE NO. 2002-J5~ AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF A STORMW A TER UTILITY REVENUE BOND, SERIES 2002, OF THE CITY OF SUNNY ISLES BEACH, FLORIDA IN A PRINCIPAL AMOUNT OF $3,000,000 FOR T~S~NANCING ALL OR A PORTION OF THE COS~R~ROVEMENTS TO THE GOLDEN SHORES STORMWATER UTILITY SYSTEM AND PAYING CERTAIN COSTS RELATED THERETO; DETERMINING THE NEED FOR A NEGOTIATED SALE OF SUCH BOND TO SUNTRUST BANK; PROVIDING FOR THE TERMS AND PAYMENT OF SUCH BOND AND FOR THE RIGHTS, REl\tEDJES AND SECURITY OF THE OWNERS THEREOF; MAKING CERTAIN COVENANTS RELATING TO THE ISSUANCE OF SUCH BOND; DESIGNA TING SUCH BOND AS A "QUALIFIED TAX-EXEMPT OBLIGATION" WITHIN THE MEANING OF SECTION 265(b )(3) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED; AUTHORIZING THE PROPER OFFICERS OF THE CITY TO DO ALL OTHER TmNGS DEEMED NECESSARY OR ADVISABLE IN CONNECTION WITH THE ISSUANCE OF SUCH BOND; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Sunny Isles Beach (the "City Commission") in accordance with Section 24-61.2 of the Code of Miami-Dade County exempted itself from Miami-Dade County's county-wide stormwater utility system and has done so in accordance with Resolution No. 99-144; and WHEREAS, the City Commission pursuant to Ordinance No. 99-77, created a city-wide stormwater utility system (the "Stormwater Utility System"); and WHEREAS, the City Commission hereby determines that it would be in the best economic interest of the City of Sunny Isles Beach (the "City") to finance the costs of certain improvements to the Stormwater Utility System (the "2002 Project"); and WHEREAS, pursuant to the terms and provisions of this Ordinance, the City intends to issue a single obligation to be known as "City of Sunny Isles Beach, Florida Stormwater Utility Revenue Bond, Series 2002" (herein, the "2002 Bond") in a principal amount of $3,000,000 to finance the costs of the 2002 Project including the costs of issuing such 2002 Bond; and WHEREAS, the 2002 Bond shall be secured by a pledge of and lien on the Stormwater Utility Fee charged by the City (as such term is defined below); and WHEREAS, City staff has previously solicited bids from qualified lending institutions to provide a term loan as the vehicle by which the 2002 Bond is to be issued and the 2002 Project is to be financed; and 1 02002- $3 Million Bond Golden Shores Stormwater Utility WHEREAS, City staff has determined and the City Commission hereby concurs that SunTrust Bank, a Georgia banking corporation with its designated office in Miami, Florida (herein, the "Bank"), has provided the lowest responsive, responsible bid to the City; and WHEREAS, the City Commission hereby determines that, in light of present market conditions, the aforementioned bid provided by the Bank, the nature of the 2002 Bond, the nature of the security afforded to the holder of the 2002 Bond, and other factors described herein, it will be in the best interest of the City to sell the 2002 Bond to the Bank on a negotiated basis pursuant to the terms and provisions of this Ordinance; and WHEREAS, the City Commission hereby determines that the City does not expect to issue more than $10,000,000 of its tax-exempt obligations in calendar year 2002, and the City Commission hereby designates the 2002 Bond as a "qualified tax-exempt obligation" within the meaning of Section 265(b) of the Code; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: ARTICLE I STATUTORY AUTHORITY; FINDINGS AND DEFINITIONS SECTION 1.1 AUTHORITY FOR THIS ORDINANCE. This Ordinance is enacted pursuant to the provisions of the Charter of the City of Sunny Isles Beach, Florida, as amended and supplemented, the Florida Constitution, Chapter 166, Florida Statutes, as amended and supplemented, and other applicable provisions of law (collectively, the "Act"). SECTION 1.2 FINDINGS. The findings and determinations set forth in the recitals to this Ordinance are hereby adopted and confirmed as though fully set forth herein. Further, it is hereby ascertained, determined and declared: (a) That the City hereby authorizes the 2002 Project and the financing thereof in the manner hereinafter set forth. (b) That it is necessary and essential to acquire the 2002 Project for the health and safety of the residents of the City and that the 2002 Project will be in the best economic interest of the City. (c) That the 2002 Project will serve a valid municipal purpose. (d) That the cost of the 2002 Project shall be deemed to include, but not be limited to, the cost of certain improvements to the Stormwater Utility System, the fees and expenses of counsel to the Bank and such other expenses as may be necessary or incidental to the 2002 Project and the issuance of the 2002 Bond herein authorized. 2 02002- $3 Million Bond Golden Shores Stormwater Utility (e) That pursuant to the Stormwater Utility Ordinance (as herein defined), the City has been charging a fee for stormwater services as more particularly described in Section 1.3 hereof (herein, the "Stormwater Utility Fee"). (f) That the proceeds of the Stormwater Utility Fee are not pledged or encumbered, in whole or in part, in any manner or for any purpose. (g) That the principal of and interest on the 2002 Bond shall be secured solely by and paid from the Pledged Revenues (as herein defined); and the ad valorem taxing power of the City shall never be necessary or authorized to pay the principal of and interest on the 2002 Bond, and the 2002 Bond issued pursuant to this Ordinance shall not constitute a lien upon any other property whatsoever of or in the City. SECTION 1.3 DEFINITIONS. In addition to terms defined elsewhere in this Ordinance, the following terms shall have the following meanings unless the context otherwise clearly requires: (a) "Act" shall mean the Florida Constitution, Chapter 166, Florida Statutes, as amended and supplemented, the Charter of the City of Sunny Isles Beach, Florida, as amended and supplemented, and other applicable provisions of the law. (b) "Authorized Investments" shall mean any of the following: (1) U.S. Obligations; (2) bonds, debentures, notes or other evidences of indebtedness payable in cash issued by anyone or a combination of any of the following federal agencies: Farmer's Home Administration (or its successor), Federal Housing Administration, Maritime Administration, Public Housing Authority, Government National Mortgage Association; (3) the following investments fully insured by the Federal Deposit Insurance Corporation ("FDIC") (i) certificates of deposit, (ii) savings account, (iii) deposit accounts, or (iv) depository receipts of a bank, savings and loan associations and mutual savings bank; (4) certificates of deposit, either in excess of FDIC insurance or without FDIC insurance, properly secured at all times, by collateral security described in clause (a) and (b) above or secured as required for a "qualified public depository" under the Florida Security for Public Deposits Act, being Chapter 280, Florida Statutes, as amended, or any successor statute. Such agreements are only acceptable with commercial banks, savings and loan associations and mutual savings banks or other "qualified public depository"; 3 02002- $3 Million Bond Golden Shores Stormwater Utility (5) commercial paper rated in one of the two highest rating categories by at least two nationally recognized rating agencies or commercial paper backed by a letter of credit or line of credit rated in one of the two highest rating categories; (6) written repurchase agreements with any bank, savings institution or trust company which is insured by the FDIC or with any broker dealer with retail customers which falls under Securities Investors Protection Corporation protection, provided that such repurchase agreements are fully secured by collateral security described in clause (1) above, and provided further that (i) such collateral is held by the City or any agent acting solely for the City during the term of such repurchase agreement, (ii) such collateral is not subject to lien or claims of third parties, (iii) such collateral has a market value (determined at least once every 14 days) at least equal to the amount invested in the repurchase agreement, (iv) the City has a perfected first security interest in the collateral, (v) the agreement shall be for a term not longer than 270 days, and (vi) the failure to maintain such collateral at the level required in (iii) above will require the City to liquidate the collateral; (7) money market funds rated in the highest rating category of either Standard & Poor's or Moody's Investors Service, or any successor thereto; (8) investments in the Local Government Surplus Funds Trust Fund established pursuant to Part IV of Chapter 218, Florida Statutes, as amended, or any successor trust fund established for the investment of surplus municipal funds; and (9) any other investments permitted under Florida law and acceptable to the Bank. (c) "Bank" shall mean SunTrust Bank, the initial Bondholder. (d) "Bond Counsel" shall mean any firm of nationally recognized bond counsel selected by the City and acceptable to the Bank. (e) "City" shall mean the City of Sunny Isles Beach, Florida, a municipal corporation in the County of Miami-Dade, State of Florida, and its successors and assigns. (f) "City Commission'''' shall mean the duly constituted governing body of the City. (g) "Code" shall mean the Internal Revenue Code of 1986, as amended, the applicable Treasury Regulations promulgated thereunder and any administrative or judicial interpretations of the same published in a form on which the City may rely as a matter of law. (h) "Debt Service Fund" shall mean the Sunny Isles Beach Stormwater Utility Revenue Bond Debt Service Fund, created and established pursuant to this Ordinance and which is the fund in which the Pledged Revenues shall be deposited by the City for the payment of the 2002 Bond and any Parity Bonds (as defined herein) in accordance with the provisions hereof. 4 02002- $3 Million Bond Golden Shores Stormwater Utility (i) "Defeasance Obligations" shall mean, to the extent permitted by law, the following securities: (1) U.S. Obligations; (2) Any bonds or other obligations of any state of the United States of America or of any agency, instrumentality or local governmental unit of any such state (i) which are not callable prior to maturity or as to which irrevocable instructions have been given to the trustee of such bonds or other obligations by the obligor to give due notice of redemption and to call such bonds for redemption on the date or dates specified in such instructions, (ii) which are secured as to principal and interest and redemption premium, if any, by a fund consisting only of cash or bonds or other obligations of the character described in clause (1) hereof which fund may be applied only to the payment of such principal of and interest and redemption premium, if any, on such bonds or other obligations on the maturity date or dates thereof or the redemption date or dates specified in the irrevocable instructions referred to in subclause (i) of this clause (2), as appropriate, and (iii) as to which the principal of and interest on the bonds and obligations of the character described in clause (1) hereof which have been deposited in such fund along with any cash on deposit in such fund are sufficient to pay principal of and interest and redemption premium, if any, on the bonds or other obligations described in this clause (2) to and including the maturity date or dates thereof or to and including the redemption date or dates specified in the irrevocable instructions referred to in subclause (i) of this clause (2), as appropriate; (3) Evidences of indebtedness issued by the Federal Home Loan Banks, Federal Home Loan Mortgage Corporation (including participation certificates), Federal Financing Banks, or any other agency or instrumentality of the United States of America created by an act of Congress provided that the obligations of such agency or instrumentality are unconditionally guaranteed by the United States of America or any other agency or instrumentality of the United States of America or of any corporation wholly-owned by the United States of America; and (4) Evidences of ownership of proportionate interests in future interest and principal payments on obligations described in clause (1) above held by a bank or trust company as custodian. (j) "Interest Rate" shall mean the rate of interest per annum on the 2002 Bond which, when calculated on the basis of a 365/366-day year, as the case may be, shall be determined one day prior to the original issuance and delivery of the 2002 Bond and which shall equal the Bank's cost of fund, plus 0.95%, divided by 1.5054. (k) "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the 2002 Bond, June 30, 2022. 5 02002- $3 Million Bond Golden Shores Stormwater Utility (1) "2002 Bond" shall mean the Stormwater Utility Revenue Bond, Series 2002, authorized by this Ordinance to be issued in a principal amount of $3,000,000. (m) "Ordinance" shall mean this Ordinance as the same may from time to time be amended and supplemented in accordance with the terms hereof. (n) "Owner," "Bondholder" or "registered holder" or any similar term shall mean the Bank or, subject to the provisions of Section 2.4 hereof, any successor registered holder of the 2002 Bond, provided that there shall never be more than 1 registered holder at anyone time. (0) "Parity Obligations" shall mean any notes, bonds or other forms of indebtedness, payable from the Pledged Revenues on parity with the 2002 Bond, whether or not such obligations are issued under this Ordinance. (p) "Paying Agent" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Paying Agent hereunder. (q) "Payment Date" shall mean each January 1, April 1, July 1 and October 1, commencing October 1, 2002, the Maturity Date and any date the principal of the 2002 Bond is optionally prepaid in whole or in part. (r) "Pledged Revenues" shall mean all moneys on deposit in th~ Debt Service Fund derived from the proceeds of the Stormwater Utility Fee required to be deposited therein each month in accordance with the provisions of this Ordinance. (s) "Prime Rate" shall mean the annual interest rate most currently quoted in The Wall Street Journal, eastern edition as the "Prime Rate." (t) "Registrar" shall mean the City's Finance Department or, if the City Commission shall so determine by subsequent proceeding, any bank or trust company and any successor bank or trust company appointed by the City to act as Registrar hereunder. (u) "Tax Certificate" shall mean the Arbitrage Certificate of the City executed on the date of initial delivery of the 2002 Bond. (v) "v. S. Obligations" shall mean the direct obligations of, or obligations on which the timely payment of principal and interest are unconditionally guaranteed by the United States of America, and, if determined by subsequent proceedings of the City Commission, certificates which evidence ownership of the right to the payment of the principal of, or interest on, such obligations. (w) "Stormwater Utility Fee" shall mean the fee assessed against each property within the City for the provision of stormwater service (as described in the Stormwater Utility Ordinance), whether levied in the amounts prescribed by the Stormwater Utility Ordinance or in 6 02002- $3 Million Bond Golden Shores Stormwater Utility any other amounts and whether imposed either by amendment to the Stormwater Utility Ordinance or otherwise. (x) "Stormwater Utility Ordinance" shall mean all proceedings creating the Stormwater Utility System and imposing the Stormwater Utility Fee, including Ordinance No. 99-77 of the City adopted on July 15,1999, as the same may be amended from time to time, and every supplementary ordinance or other ordinance in lieu thereof as may hereafter be adopted. Words importing singular number shall include the plural number and vice versa, as the case may be, and words importing persons shall include firms and corporations. SECTION 1.4 ORDINANCE CONSTITUTES CONTRACT. In consideration of the acceptance of the 2002 Bond authorized to be issued hereunder by those who shall own the same from time to time, this Ordinance shall be deemed to be and shall constitute a contract between the City and the Bondholder and the covenants and agreements herein and therein set forth to be performed by said City shall be for the benefit, protection and security of the Bondholders ARTICLE II AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF 2002 Bond SECTION 2.1 AUTHORIZATION OF 2002 BOND. Subject and pursuant to the provisions of this Ordinance, an obligation of the City of Sunny Isles Beach, Florida, to be known as its "Stormwater Utility Revenue Bond, Series 2002" is hereby authorized to be issued in the aggregate principal amount of not exceeding Three Million Dollars ($3,000,000) for the purpose of financing the costs of the 2002 Project. SECTION 2.2 DESCRIPTION OF 2002 BOND. The text of the 2002 Bond shall be substantially in the form attached hereto as Exhibit A with such omissions, insertions and variations as may be necessary and desirable, as evidenced by the City's execution thereof. The 2002 Bond (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance. Unless the interest rate on the 2002 Bond is converted to the Prime Rate or is otherwise subject to adjustment pursuant to the provisions of Section 2.7 hereof, the 2002 Bond shall bear interest on the outstanding principal amount of the 2002 Bond from time to time at the Interest Rate. Principal of and interest on the 2002 Bond shall be payable in equal installments on each quarterly Payment Date commencing July 1, 2002. All previously unpaid principal of the 2002 Bond and all previously accrued and unpaid interest on the 2002 Bond shall be payable on the Maturity Date. The 2002 Bond shall be issued in registered form. 7 02002- $3 Million Bond Golden Shores Stormwater Utility In the event that the City shall determine that seasonal fluctuations in Pledged Revenues have made it impracticable for the City to make the quarterly payments of principal of and interest on the 2002 Bond at the times and in the amounts described in the preceding paragraph, the City may alter the schedule of such quarterly payments to correspond to such seasonal fluctuations, subject to the following conditions: (i) such altered schedule of payments shall not reduce the sum total of principal and interest payments on the 2002 Bond payable during each year that the 2002 Bond shall remain outstanding; (ii) the Bondholder shall be given a written copy of such altered schedule of payments not less than 30 days before it shall take effect; (iii) the City shall provide the Bondholder with a replacement 2002 Bond reflecting such altered schedule of payments (and the Bondholder shall be obligated to return to the City for cancellation the 2002 Bond that it shall be holding at the time of such replacement); and (iv) the City shall provide the Bank, at the City's sole cost and expense, an opinion of Bond Counsel to the effect that the imposition of such altered schedule of payments shall not have an adverse effect on the exclusion of interest on the 2002 Bond from the gross income of the Bondholder for federal income tax purposes. Principal of and interest on the 2002 Bond shall be payable at the office of the Paying Agent (the designated corporate trust office of the Paying Agent if the City's Finance Department is not the Paying Agent). The 2002 Bond shall be numbered in such manner as may be prescribed by the Registrar. The 2002 Bond shall be payable, with respect to interest and principal, in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. The City may prepay the 2002 Bond in whole or in part, at any time or from time to time, without penalty or premium, by paying to the registered holder all or part of the principal amount of the 2002 Bond, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than ten (10) business days prior thereto. If such prepayment shall be for only a portion of the unpaid principal balance of the 2002 Bond, such prepayment shall be applied against the obligation of the City to pay future amortization installments on the 2002 Bond in the inverse order in which such amortization installments shall become due. Notice having been given as aforesaid, the principal amount stated in such notice shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of the 2002 Bond is to be paid, upon 8 02002- $3 Million Bond Golden Shores Stormwater Utility presentation and surrender of the 2002 Bond to the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department), and (ii) in case only part of the unpaid balance of principal of the 2002 Bond is to be paid, upon presentation of such 2002 Bond at the office of the Paying Agent (the designated corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement 2002 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, so long as the 2002 Bond shall be registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal without surrender of the 2002 Bond. If, on the prepayment date, funds for the payment of the principal amount to be prepaid shall have been provided to the Paying Agent, as above provided, then from and after the prepayment date interest on such principal amount of the 2002 Bond shall cease to accrue. If said funds shall not have been so paid on the prepayment date with respect to principal and on the next succeeding Payment Date with respect to interest, the principal amount of the 2002 Bond shall continue to bear interest until payment thereof. The 2002 Bond shall be subject to tender for purchase at the option of the registered owner thereof, in whole or in part, on the tenth anniversary of the issuance of the 2002 Bond at a purchase price equal to the then unpaid principal balance thereof. In order to exercise such option, the registered owner of the 2002 Bond shall give the Finance Director written notice of its exercise of such option during the period commencing 240 days and ending 180 days prior to the tenth anniversary of the issuance of the 2002 Bond. SECTION 2.3 EXECUTION OF THE 2002 BOND. The 2002 Bond shall be executed in the name of the City by the signature of the Mayor of the City and its official seal shall be affixed thereto or imprinted or reproduced thereon and attested by the City Clerk. The signatures of the Mayor of the City and City Clerk on the 2002 Bond may be manual or facsimile signatures. In case anyone or more of the officers who shall have signed or sealed the 2002 Bond shall cease to be such officer of the City before the 2002 Bond so signed and sealed shall have been actually sold and delivered, such 2002 Bond may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such 2002 Bond had not ceased to hold such office. The 2002 Bond may be signed and sealed on behalf of the City by such person who at the actual time of the execution of the 2002 Bond shall hold the proper office, although at the date the 2002 Bond shall be actually delivered such person may not have held such office or may not have been so authorized. The 2002 Bond shall bear thereon a certificate of authentication, in the form set forth on Exhibit A attached hereto, executed manually by the Registrar (when the City's Finance Department shall act as Registrar, the certificate of authentication shall be manually executed by the City's Finance Director). Only if a 2002 Bond shall bear thereon such certificate of authentication shall it be entitled to any right or benefit under this Ordinance and no 2002 Bond shall be valid or obligatory for any purpose until such certificate of authentication shall have been duly executed by the Registrar. The certificate of authentication of the Registrar upon the 9 02002- $3 Million Bond Golden Shores Stormwater Utility 2002 Bond executed on behalf of the City shall be conclusive evidence that the 2002 Bond so authenticated have been duly authenticated and delivered under this Ordinance and that the Owner thereof is entitled to the benefits of this Ordinance. SECTION 2.4 NEGOTIABILITY. REGISTRATION AND CANCELLATION. The Registrar shall keep books for the registration of the 2002 Bond and for the registration of transfers of the 2002 Bond. The 2002 Bond shall be transferable at the option of the registered Owner thereof to an institutional holder, but subject to the prior written approval of the City's Finance Director (which shall not be unreasonably withheld if the intended transferee provides a suitability letter addressed to the City as to the sophistication of the investor) unless such institutional holder is a bank or trust company, or unless such institutional holder, which is not a bank or trust company, certifies in writing to the City prior to the transfer that it is an accredited investor within the meaning of Rule 501 of the Securities Act of 1933, as amended and supplemented, in which case such approval shall not be required, and upon surrender thereof at the office of the Registrar (the designated corporate trust office of the Registrar if the City's Finance Department is not the Registrar) with a written instrument of transfer satisfactory to the Registrar duly executed by the registered Owner or his duly authorized attorney. Upon the transfer of such 2002 Bond, the City shall issue in the name of the transferee a new 2002 Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the 2002 Bond shall be registered upon the books kept by the Registrar as the absolute Owner of such 2002 Bond, whether such 2002 Bond shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 2002 Bond as the same become due and for all other purposes. All such payments so made to any such Owner or upon his/her order shall be valid and effectual to satisfy and discharge the liability upon such 2002 Bond to the extent of the sum or sums so paid, and neither the City, the Paying Agent nor the Registrar shall be affected by any notice to the contrary. In all cases in which the privilege of transferring the 2002 Bond is exercised, the City shall execute and the Registrar shall authenticate and deliver the 2002 Bond in accordance with the provisions of this Ordinance. The 2002 Bond surrendered in any such transfers shall forthwith be delivered to the Registrar and canceled by the Registrar in the manner provided in this Section. The City or the Registrar (if not the City's Finance Department) may require the payment of a sum sufficient to pay any tax, fee or other governmental charges required to be paid with respect to such transfer. The 2002 Bond paid or redeemed, in whole, either at or before maturity, shall be delivered to the Registrar when the payment or redemption is made, and such 2002 Bond shall thereupon be promptly canceled. The 2002 Bond so canceled may at any time be destroyed by the Registrar, who shall execute a certificate of destruction in duplicate by the signature of one of its authorized officers describing the 2002 Bond, and one executed certificate shall be filed with 10 02002- $3 Million Bond Golden Shores Stormwater Utility the City and the other executed certificate shall be retained by the Registrar (if not the City's Finance Department). SECTION 2.5 MUTILATED. DESTROYED. STOLEN OR LOST 2002 BOND. In case any 2002 Bond shall become mutilated, destroyed, stolen or lost, the City shall execute and the Registrar shall authenticate and deliver a new 2002 Bond of like date, maturity and denomination as the 2002 Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated 2002 Bond, such mutilated 2002 Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed 2002 Bond, there shall first be furnished to the City and the Registrar (if not the City's Finance Department) evidence of such loss, theft, or destruction satisfactory to the City and the Registrar, together with indemnity satisfactory to them. In the event the 2002 Bond shall be about to mature or have matured, instead of issuing a duplicate 2002 Bond, the City may pay the same without surrender thereof. The City and the Registrar (if not the City's Finance Department) may charge the Owner of such 2002 Bond their reasonable fees and expenses in connection with this transaction. Any 2002 Bond surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. Any such duplicate 2002 Bond issued pursuant to this Section shall constitute additional contractual obligations on the part of the City, whether or not the lost, stolen or destroyed 2002 Bond be at any time found by anyone, and such duplicate 2002 Bond shall be entitled to equal proportionate benefits and rights as to lien on the source and security for payment from Pledged Revenues with the 2002 Bond issued hereunder. SECTION 2.6 CONDITIONS FOR ISSUANCE OF THE 2002 BOND. Prior to the issuance of the 2002 Bond, the City shall comply with the following conditions: (e) Deliver to the Bank a fully executed Tax Certificate; and (f) Deliver to the Bank a copy of a completed and executed Form 8038-G to be filed by the City with the Internal Revenue Service; and (g) Cause to be delivered to the Bank an opinion of Bond Counsel, who may be counsel to the Bank, regarding, as the case may be, the due authorization, execution, delivery, validity and enforceability of the 2002 Bond and the pledge of the Pledged Revenues therefore and the due adoption of this Ordinance (enforceability of such instruments may be subject to standard bankruptcy exceptions and the like) and the exclusion of interest on the 2002 Bond from gross income for federal income tax purposes, that the 2002 Bond is not a specified "private activity bond" within the meaning of Section 57(a)(5) of the Code and, therefore, the interest on the 2002 Bond will not be treated as a preference item for purposes of computing the alternative minimum tax imposed by Section 55 of the Code (however, a portion of the interest on the 2002 11 02002- $3 Million Bond Golden Shores Stormwater Utility Bond owned by corporations may be subject to the federal alternative minimum tax which is based in part on adjusted current earnings). Such opinion shall also state that the 2002 Bond is a "qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Code; and (h) Deliver to the Bank an opinion of the City Attorney, satisfactory to the Bank and its counsel, regarding, as the case may be, the due authorization, execution, delivery, validity and enforceability of the 2002 Bond and the first perfected pledge of the Pledged Revenues therefor, and the due adoption of this Ordinance (enforceability may be subject to standard bankruptcy exceptions and the like); and (i) Deliver to the Bank a general certificate of the City in form satisfactory to the Bank and its counsel certifying, among other things, that the City is in compliance with the terms of the Ordinance. SECTION 2.7 INTEREST RATE ADJUSTMENT. If the interest on the 2002 Bond while registered in the name of the Bank becomes includable in the gross income of the Bank for federal income tax purposes as determined in the manner set forth below (herein a "Determination of Taxability") the interest rate on the 2002 Bond shall be adjusted so that the 2002 Bond shall bear interest at the Prime Rate. A Determination of Taxability shall have deemed to occur when (i) the Bank has been advised in writing by the Internal Revenue Service that the interest payable on the 2002 Bond must be includable in the gross income of the Bank for federal income tax purposes or (ii) the entry by a court of a final judgment or order or the promulgation by the Internal Revenue Service of a final ruling or decision, in either such case to the effect that the interest on the 2002 Bond is includable for federal income tax purposes in the gross income of the Bank. A Determination of Taxability shall not include inclusion of interest on any 2002 Bond in the income of the Bank for purposes of any alternative minimum tax, environmental tax or branch profits tax or on account of the Bank being a "substantial user" or a "related person" within the meaning of Section 147(a) of the Code. In the case of (i) above, no Determination of Taxability shall be deemed to occur unless the City has been given timely written notice by the Bank of such determination by the Internal Revenue Service and afforded an opportunity to participate in and seek at its own expense, a final administrative determination or determination by a court of competent jurisdiction (from which no further right of appeal exists) as to the existence of such Determination of Taxability; provided that the City, at its own expense, delivers to the Bank an opinion of Bond Counsel to the effect that such appeal or action for judicial or administrative review is not without merit and there is a reasonable possibility that the judgment, order, ruling or decision from which such appeal or action for judicial or administrative review is taken will be reversed, vacated or otherwise set aside. 12 02002- $3 Million Bond Golden Shores Stormwater Utility In the event of a Determination of Taxability, the City covenants that it shall also pay any interest, additions to tax or penalties, resulting from the interest on the 2002 Bond being includable in the Bank's gross income for federal income tax purposes, and any arrears in interest resulting from such Determination of Taxability. Any such additional amounts (established to the satisfaction of the City) shall be payable by the City to the Bank on the next succeeding Payment Date or, if such amounts become payable after the Maturity Date of the 2002 Bond within 60 days of the date the City is notified by the Bank that such amounts are due. In addition to the foregoing provisions of this section, the interest rate on the 2002 Bond shall be adjusted automatically as of the effective date of any change in the Maximum Corporate Tax Rate (hereinafter defined) or in the Preference Reduction Rate (hereinafter defined), presently 20%, based upon the following calculations; provided, however, that if the 2002 Bond is not a Qualified Tax-Exempt Obligation within the meaning of Section 265(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), on the date of its original issuance and delivery, or if the 2002 Bond at any time subsequent to its original issuance and delivery no longer qualifies as a Qualified Tax-Exempt Obligation, then the Preference Reduction Rate shall be adjusted as of the date of original issuance and delivery of the 2002 Bond or as of such subsequent date, as the case may be. Upon the occurrence of any of the foregoing events, the interest rate on the 2002 Bond shall be adjusted to the product obtained by multiplying the interest rate on the 2002 Bond by a fraction, the numerator of which is equal to the sum of: (i) the product of the Fully Taxable Equivalent (hereinafter defined) times one minus the Maximum Corporate Tax Rate in effect as of the day of adjustment, and (ii) the TEFRA Adjustment (hereinafter defined) in effect as of the date of adjustment; and the denominator of which is equal to the sum of: (i) the product of the Fully Taxable Equivalent times one minus the Maximum Corporate Tax Rate in effect as of the date of the original issuance and delivery of the 2002 Bond, and (ii) the TEFRA Adjustment in effect as of the date of the original issuance and delivery of the 2002 Bond. For the purpose hereof: (1) "Maximum Corporate Tax Rate" means on the date of original issuance and delivery of the 2002 Bond 35% and thereafter the maximum marginal rate of income tax imposed on corporations under Section 11 of the Code or any successor provision; (2) ''TEFRA Adjustment" means an adjustment equal to the product of the following: Cost of Funds multiplied by the applicable Maximum Corporate Tax Rate multiplied by the applicable Preference Reduction Rate; (3) "Cost of Funds" means one hundred (100) multiplied by a fraction, the numerator of which is equal to the total interest expense of SunTrust Banks, Inc., for its immediately preceding tax year, and the denominator of which is equal to the average total assets of SunTrust Banks, Inc., but at no time will be determined to exceed the cost of Fed Funds; (4) "Preference Reduction Rate" means the percentage reduction to be applied to the amount allowable as a deduction under Chapter I of the Code with respect to any financial institution preference item (as such term is defined in Section 291(e) of the Code); and (5) "Fully Taxable Equivalent" means the ten (10) year U.S. Treasury yield plus 0.95 percent, expressed as a number and not as a percentage. For the purposes of this paragraph and the two preceding paragraphs, all percentages shall be expressed as decimals. 13 02002- $3 Million Bond Golden Shores Stormwater Utility ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF SECTION 3.1 2002 BOND NOT TO BE INDEBTEDNESS OF THE CITY. The 2002 Bond shall not be or constitute an indebtedness of the City within the meaning of any constitutional, statutory or other limitation of indebtedness, but shall be secured solely by and payable from the Pledged Revenues. No Bondholder shall ever have the right to compel the exercise of the ad valorem taxing power of the City, or taxation in any form of any real property therein, to pay said 2002 Bond or the interest thereon. The pledge of the Pledged Revenues will not constitute a lien upon any property of the City. SECTION 3.2 2002 BOND SECURED BY PLEDGE OF PLEDGED REVENUES. From and after the issuance of the 2002 Bond, and continuing until the payment of the 2002 Bond as to principal and interest, the Pledged Revenues shall continue to be pledged for the prompt payment of principal of and interest on said 2002 Bond. SECTION 3.3 COVENANTS OF THE CITY. As long as any of the principal of or interest on the 2002 Bond shall be outstanding and unpaid, or until there shall have been set apart in the Debt Service Fund in accordance with Section 3.6 hereof a sum sufficient to pay, when due, the entire principal of the 2002 Bond remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Bondholders as follows: G) Tax Covenants Relating to the Internal Revenue Code of 1986, as amended. (10) In order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the 2002 Bond, the City covenants to comply with each requirement of the Code. In furtherance of the covenant contained in the preceding sentence, the City agrees to continually comply with the provisions of the Tax Certificate, as such certificate may be amended from time to time, as a source of guidance for achieving compliance with the Code. (11) The City covenants and agrees with the Bondholders that the City shall not take any action or omit to take any action, which action or omission, if reasonably expected on the date of initial issuance and delivery of the 2002 Bond, would cause the 2002 Bond to be a "private activity bond" or "arbitrage bond" within the meaning of Sections 141(a) and 148(a), respectively, of the Code. (12) The City shall make any and all payments required to be made to the United States Department of the Treasury in connection with the 2002 Bond pursuant to Section 148(f) of the Code. 14 02002- $3 Million Bond Golden Shores Stormwater Utility (13) Notwithstanding any other provision of this Ordinance to the contrary, so long as necessary in order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the 2002 Bond, the covenants contained in this Section shall survive the payment of the 2002 Bond and the interest thereon, including any payment or discharge thereof pursuant to Section 3.6 of this Ordinance. (k) Establishment of Debt Service Fund. There is hereby created and established the following fund entitled the "Sunny Isles Beach Stormwater Utility Revenue Bond Debt Service Fund" (hereinafter referred to as the "Debt Service Fund"). The Debt Service Fund shall constitute a trust fund for the benefit of the Bondholder and shall be held by the City in an account maintained at the Bank and shall be kept separate and distinct from all other funds of the City, and shall be used only for the purpose and in the manner provided in this Ordinance. Notwithstanding the provisions of the preceding sentence, the City may deposit the proceeds of the Stormwater Utility Fee in a commingled account maintained at the Bank for the City, provided that the City maintains adequate accounting procedures to reflect and control the restricted allocations of the funds on deposit therein for the various purposes of such funds. The designation and establishment of the Debt Service Fund in and by this Ordinance shall not be construed to require the establishment of any completely independent self-balancing fund, as such term is commonly defined and used in governmental accounting, but rather is intended solely to constitute an allocation of certain revenues of the City for certain purposes and to establish certain priorities for application of such revenues as provided herein. Moneys on deposit in the Debt Service Fund may be invested in Authorized Investments at the written direction of the City, provided such investments mature not later than the next succeeding Payment Date. Subject to the terms and provisions of the Code and the preceding paragraph, all income and earnings received from the investment and reinvestment of the moneys on deposit in the Debt Service Fund shall remain on deposit in the Debt Service Fund and be used in the same manner as other moneys on deposit therein. (I) Disposition of Pledged Revenues. Not later than the fifteenth day of each month commencing August 15, 2002, the City shall deposit in the Debt Service Fund the proceeds of the Stormwater Utility Fee in an amount equal to one-half (112) of an amount sufficient to pay the principal of and interest becoming due on the 2002 Bond on October 1, 2002, and beginning October 15,2002 in an amount equal to one-third (113) of the principal of and interest becoming due on the 2002 Bond on the next Payment Date, and shall further cause to be deposited into the Debt Service Fund one business day prior to each Payment Date the proceeds of the Stormwater Utility Fee in an amount necessary to satisfy any deficiency in the Debt Service Fund on such date; provided, however, that such deposit of the interest and principal amount shall not be required to be made to the extent that moneys on deposit in the Debt Service Fund are sufficient for such purpose. The City covenants to deposit, on the business day prior to the Maturity Date, the proceeds of the Stormwater Utility Fee (or other legally available moneys) into the Debt Service Fund in an amount sufficient to pay the outstanding principal of and interest on the 2002 Bond. 15 02002- $3 Million Bond Golden Shores Stormwater Utility (m) Charge of Storm water Utility Fee. Without the prior written consent of the Bank, the City will not repeal, amend or modify the Stormwater Utility Ordinance in any manner so as to (i) impair or adversely affect the power and obligation of the City to impose and collect the Stormwater Utility Fee, or (ii) impair or adversely affect in any manner the pledge of the Stormwater Utility Fee made herein. Without the prior written consent of the Bank, the City will not change, revise or reduce the Stormwater Utility Fee if, in the opinion of the City Manager, such change, revision or reduction will result in producing less Pledged Revenues unless, in the opinion of the City Manager, such rates, fees and charges as so changed, revised or reduced will produce sufficient Pledged Revenues to comply with the requirements of the next succeeding paragraph. Subject to the foregoing provisions of this Section, from time to time and as often as it shall appear necessary the City shall revise the Stormwater Utility Fee as may be necessary or proper in order that the Pledged Revenues shall at all times be sufficient in each fiscal year of the City to provide 1.35x coverage of the principal and interest requirements on the 2002 Bond and all other obligations secured by the Pledged Revenues. The City covenants that, if the total amount of Pledged Revenues realized in any fiscal year of the City shall be less than the amounts referred to above for such fiscal year, it shall, before the 15th day of November of the following fiscal year, take such actions as shall enable the City to comply with the coverage requirements of this Section during such following fiscal year. (n) Enforcement of Collections. The City will diligently enforce and collect the Stormwater Utility Fee, will take steps, actions and proceedings for the enforcement and collection of such Stormwater Utility Fee as shall become delinquent to the full extent permitted or authorized by law, and will maintain accurate records with respect thereof. (0) Budget and Other Financial Information. The City shall provide the Bank with a copy of its audited general purpose financial statements within 120 days of the close of each fiscal year during which the 2002 Bond shall remain outstanding. The City Manager or the Finance Director shall also certify to the Bank at that time that the City is not then in default of its obligations under this Ordinance or the 2002 Bond, or, if the City shall then be in default, shall explain in writing the nature of such default, the steps being taken by the City to cure such default and the estimated time by which such default will be cured. The City shall also provide the Bank with unaudited financial statements not less often than semiannually. Such unaudited statements shall be delivered to the Bank within 30 days after the fiscal period covered by such statements. The City shall demonstrate in each annual budget that there are sufficient proceeds of the Stormwater Utility Fee to pay the principal of and interest on the 2002 Bond coming due in the fiscal year covered by such annual budget. The City shall provide the Bank with a copy of its approved annual budget within 30 days after the final adoption thereof and with such other financial information regarding the City as the Bank may reasonably request. 16 02002- $3 Million Bond Golden Shores Stormwater Utility SECTION 3.4 REMEDIES OF BONDHOLDER. Should the City default in any obligation created by this Ordinance, the Bondholder may, in addition to any remedy set forth in this Ordinance, either at law or in equity, by suit, action, mandamus or other proceeding in any court of competent jurisdiction, protect and enforce any and all rights under the laws of the State of Florida, or granted and contained in this Ordinance, and may enforce and compel the performance of all duties required by this Ordinance, or by any applicable statutes to be performed by the City or by any officer thereof. The City hereby agrees with the Bondholder that the filing of any bankruptcy or insolvency under any federal or state law by or against the City which is not dismissed with prejudice within 30 days of such filing shall give the Bondholder the right to exercise any of the remedies provided to them under this Section 3.4. SECTION 3.5 APPLICATION OF 2002 BOND PROCEEDS. The proceeds of the 2002 Bond shall be used to provide permanent financing for the costs of the 2002 Project, including the payment of costs associated with the issuance of the 2002 Bond. SECTION 3.6 DISCHARGE AND SATISFACTION OF 2002 BOND. The covenants, liens and pledges entered into, created or imposed pursuant to this Ordinance may be fully discharged and satisfied with respect to the 2002 Bond in anyone or more of the following ways: (p) by paying in full the principal of and interest on the 2002 Bond when the same shall become due and payable; or (q) by depositing in the Debt Service Fund or such other accounts as the City may hereafter create and establish by ordinance moneys sufficient at the time of such deposit to pay the 2002 Bond and all interest thereon as the same become due on said 2002 Bond on or prior to the maturity date thereof; or (r) by depositing in the Debt Service Fund or such other accounts as the City may hereafter create and establish by ordinance(which Debt Service Fund or other account and all moneys and securities deposited therein shall be irrevocably pledged to the Bondholders for the payment of the 2002 Bond and all interest thereon) moneys which, when invested in Defeasance Obligations, will provide moneys which shall be sufficient to pay the 2002 Bond and, all interest thereon as the same shall become due on said 2002 Bond on or prior to the Maturity Date thereof. Upon such payment or deposit in the amount and manner provided in this Section 3.6, the 2002 Bond shall no longer be deemed to be outstanding for the purposes of this Ordinance and all liability of the City with respect to the 2002 Bond shall cease, terminate and be completely discharged and extinguished, and the Bondholders shall be entitled for payment solely out of the moneys or securities so deposited. 17 02002- $3 Million Bond Golden Shores Stormwater Utility SECTION 3.8 ADDITIONAL OBLIGATIONS. The City covenants with the Bank that, as long as the 2002 Bond issued under this Ordinance is outstanding and the Bank is the registered owner thereof, without the prior written consent of the Bank, the City shall not issue any Parity Obligations or any obligation secured by a lien on the Pledged Revenues that is senior to the lien on the Pledged Revenues created by this Ordinance in favor of the 2002 Bond. Parity Obligations may be incurred without the prior written consent of the Bank, if prior to incurrence of such Parity Obligations (i) the debt service coverage ratio for the most recent period of 12 full consecutive calendar months preceding the date of delivery of the 2002 Bond is not less than 1.5 and (ii) a certificate of the Finance Director is delivered to the Bank demonstrating that the debt service coverage ratio for the period mentioned in clause (i) is not less than 1.5 on the 2002 Bond or any obligations secured by the Pledged Revenues. ARTICLE IV MISCELLANEOUS PROVISIONS SECTION 4.1 MODIFICATION OR AMENDMENT. No modification or amendment of this Ordinance or of any ordinance amendatory thereof or supplemental thereto, may be made without the consent in writing of the Bondholder. SECTION 4.2 ADDITIONAL AUTHORIZATION. The Mayor, the City Manager, the Finance Director and any other proper official of the City, be 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 transactions contemplated by this Ordinance. SECTION 4.3 SEVERABILITY OF INVALID PROVISIONS. If anyone or more of the covenants, agreements or provisions of this Ordinance should be held contrary to any express provision of law or contrary to the policy of express law, though not expressly prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void and shall be deemed separate from the remaining covenants, agreements or provisions, and shall in no way affect the validity of any of the other provisions of this Ordinance or of the 2002 Bond issued hereunder. SECTION 4.4 WAIVER OF JURY TRIAL. The City, in consideration of the purchase of the 2002 Bond by the Bank, and the Bank, by its acceptance of the 2002 Bond, each mutually and willingly waive the right to a trial by a jury in connection with any and all claims 18 02002- $3 Million Bond Golden Shores Stormwater Utility by any party hereto against the other arising from or in connection with the transactions contemplated by the 2002 Bond or this Ordinance. SECTION 4.5 REPEALER. All ordinances and orders, or parts thereof, in conflict herewith are, to the extent of such conflict, hereby repealed, and this Ordinance shall take effect upon its passage in the manner provided by law. SECTION 4.6 EFFECTIVE DATE. This Ordinance shall take effect ten (10) days after adoption on second reading. PASSED AND ADOPTED on first reading this ~a! of ~, 2002. PASSED AND ADOPTED on second reading this 2l: day of , 2002. ," I ..... ~~ , ~ ....~.. ~.. n, ,{.... \''i:;'' "", >.,;1I" .. '"'".... 1'.1 J;i<. . ~ ,-' ~ (}I\~,.~. '>\1' ,r' r;;e. ..t, _y' .. ..'"~...,/; .........~.~/,;,' . . ":~"t' , . '-, "'"~ /~ ~. _4""'l './ '. 1 .' APPROVED AS TO FORM AND G S CIENCY: Moved by: ~lf\NLA EJJ.~ Seconded by: \11 cL Mo ~ VOTE: L\-o- \ Mayor David Samson Vice Mayor Danny Iglesias Commissioner Norman S. Edelcup Commissioner Gerry Goodman Commissioner Lila Kauffman (yes) -.L (yes) ~ (yes) ~ (yes) :z: (yes) _ 19 (no)_ (no)_ (no)_ (no)_ _ J- (no) _ a.1,~ / 02002- $3 Million Bond Golden Shores Stormwater Utility Exhibit A FORM OF 2002 BOND No.R- UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF SUNNY ISLES BEACH, FLORIDA Stormwater Utility Revenue Bond, Series 2002 4.60% Maturity Date June 30, 2022 Dated Date Interest Rate Registered Owner: SunTrust Bank Principal Amount: $3,000,000 KNOW ALL MEN BY THESE PRESENTS, that the City of Sunny Isles Beach (the "City") in Miami-Dade County, Florida, for value received, hereby promises to pay from the sources herein mentioned, to the Registered Owner specified above or registered assigns on the Maturity Date specified above or earlier upon mandatory repayment of principal as provided below, upon the presentation and surrender hereof at the City's Finance Department or (if so determined by the City) the designated trust office of the bank or trust company appointed by the City to act as paying agent (said City's Finance Department or such bank or trust company and any bank or trust company becoming successor paying agent being herein called the "Paying Agent"), the Principal Amount of $3,000,000 with interest thereon at the Interest Rate specified above (unless interest on this Bond is converted to the Prime Rate (as defined in the Ordinance) or the Interest Rate specified above is otherwise adjusted in the manner provided in the Ordinance calculated on the basis of a 365/366-day year, as the case may be, on each Payment Date (as defined in the Ordinance) in the manner specified in the Ordinance to the registered owner. The Principal Amount and accrued interest thereon is payable in any coin or currency of the United States of America, which, on the date of payment thereof, shall be legal tender for the payment of public and private debts. This Bond is authorized to be issued in a principal amount of $3,000,000 under the authority of and in full compliance with the Constitution and statutes of the State of Florida, including, particularly, Chapter 166, Florida Statutes, as amended and supplemented, the Charter of the City of Sunny Isles Beach, Florida, as amended and supplemented, and other applicable provisions of law (the "Act"), and Ordinance No. 02- _, duly adopted on May _,2002 (as the same may be amended from time to time, and every supplementary ordinance or other ordinance in lieu thereof as may thereafter be adopted, the "Ordinance"), and is subject to all terms and conditions of the Ordinance. Any term used in this Bond and not otherwise defined, shall have the meaning ascribed to such term in the Ordinance. 1 It is hereby certified and recited that all acts, conditions and things required to exist, to happen, and to be performed, precedent to and in the issuance of this Bond exist, have happened and have been performed in regular and due form and time as required by the laws and Constitution of the State of Florida and the Charter of the City applicable thereto, and that the issuance of this Bond, is in full compliance with all constitutional or statutory limitations or provisions. This Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Ordinance until the certificate of authentication hereon shall have been signed by an authorized officer of the Registrar. Except in the event of a Determination of Taxability and as otherwise provided in the Ordinance, this Bond shall bear interest at the Interest Rate set forth above. Principal payments of $37,500 plus interest on this Bond shall be on each quarterly Payment Date commencing October 1, 2002. All previously unpaid principal of the 2002 Bond and all previously accrued and unpaid interest on the 2002 Bond shall be payable on the Maturity Date. The principal of and interest on this Bond shall be secured solely by and payable from the Pledged Revenues (as defined below). "Pledged Revenues" shall mean all moneys on deposit in the Debt Service Fund (created and established under the Ordinance) derived from the proceeds of the Stormwater Utility Fee required to be deposited therein each month in accordance with the provisions of the Ordinance. "Stormwater Utility Fee" shall mean the fee assessed against each property within the City for the provision of stormwater service (as described in the Stormwater Utility Ordinance), whether levied in the amounts prescribed by the Stormwater Utility Ordinance or in any other amounts and whether imposed either by amendment to the Stormwater Utility Ordinance or otherwise. "Stormwater Utility Ordinance" shall mean all proceedings creating the Stormwater Utility System and imposing the Stormwater Utility Fee, including Ordinance No. 99-77 of the City adopted on July 15, 1999, as the same may be amended from time to time, and every supplementary ordinance or other ordinance in lieu thereof as may hereafter be adopted. The City may prepay this Bond in whole or in part, at any time or from time to time, without penalty or premium, by paying to the registered holder all or part of the principal amount of this Bond, together with the unpaid interest accrued on the amount of principal so prepaid to the date of such prepayment. Such accrued and unpaid interest shall be payable on the next succeeding Payment Date. Each prepayment shall be made on such date and in such principal amount as shall be specified by the City in a written notice delivered to the registered owner not less than ten (10) business days prior thereto. Notice having been given as aforesaid, the principal amount stated in such notice or the whole thereof, as the case may be, shall become due and payable on the prepayment date stated in such notice; and the amount of principal shall be paid (i) in case the entire unpaid balance of the principal of this Bond is to be paid, upon presentation and 2 surrender of the Bond to the office of the Paying Agent (designated corporate trust office, if the Paying Agent is not the City's Finance Department), and (ii) in case only part of the unpaid balance of principal of this Bond is to be paid, upon presentation of such Bond at the office of the Paying Agent (designated corporate trust office, if the Paying Agent is not the City's Finance Department) for notation thereon of the amount of principal then paid or for issuance of a replacement Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, if all of the Bonds are registered in the name of the Bank, a partial prepayment may be effected by payment to the Bank of the principal without surrender of this Bond. If, on the prepayment date, funds for the payment of the principal amount to be prepaid shall have been provided to the Paying Agent, as above provided, then from and after the prepayment date interest on such principal amount of this Bond shall cease to accrue. If said funds shall not have been so paid on the prepayment date with respect to principal and on the next succeeding Payment Date with respect to interest, the principal amount of the Bond shall continue to bear interest until payment thereof. The 2002 Bond shall be subject to tender for purchase at the option of the registered owner thereof, in whole or in part, on the tenth anniversary of the issuance of the 2002 Bond at a purchase price equal to the then unpaid principal balance thereof. In order to exercise such option, the registered owner of the 2002 Bond shall give the Finance Director written notice of its exercise of such option during the period commencing 240 days and ending 180 days prior to the tenth anniversary of the issuance of the 2002 Bond. THIS BOND SHALL NOT BE AND SHALL NOT CONSTITUTE AN INDEBTEDNESS OF THE CITY WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY, CHARTER OR OTHER LIMITATIONS OF INDEBTEDNESS BUT SHALL BE SECURED SOLELY BY AND PAYABLE FROM THE PLEDGED REVENUES. NO HOLDER OF THIS BOND SHALL EVER HA VE THE RIGHT TO COMPEL THE EXERCISE OF AD VALOREM TAXING POWER OF THE CITY, OR TAXATION IN ANY FORM OF ANY REAL PROPERTY THEREIN TO PAY THE BOND OR THE INTEREST THEREON. The terms and provisions of the Ordinance are incorporated in this Bond as though such terms and provisions have been set out in full herein. 3 IN WITNESS WHEREOF, the City of Sunny Isles Beach, Florida, has caused this Bond to be signed by its Mayor, either manually or with his facsimile signature, and the seal of the City Commission of the City of Sunny Isles Beach, Florida, to be affixed hereto or imprinted or reproduced hereon, and attested by the Clerk of the City, either manually or with her facsimile signature, and this Bond to be dated the Dated Date set forth above. (SEAL) CITY OF SUNNY ISLES BEACH, FLORIDA ATTEST: By: Mayor City Clerk, City of Sunny Isles Beach, Florida 4 FORM OF CERTIFICATE OF AUTHENTICATION Date of Authentication: This Bond IS the Bond delivered pursuant to the within mentioned Ordinance. CITY OF SUNNY ISLES BEACH Finance Department, as Registrar By: Authorized Officer 5 ASSIGNMENT FOR V ALUE RECEIVED the undersigned sells, assigns and transfers unto (please print or typewrite name, address and tax identification number of assignee) the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints Attorney to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. Dated: Signature Guaranteed: In the presence of: NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Bond in every particular, without alteration or enlargement, or any change whatever. 6 STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) I, Richard Brown-Morrilla, do hereby certify that I am the duly qualified City Clerk of the City of Sunny Isles Beach, Miami-Dade County, Florida. I further certify that the above and foregoing constitutes a true and correct copy of Ordinance No. 2002- enacted on first and second reading at meetings of the City Commission of said city held, respectively on , and , respectively, as said ordinance is officially of record in my possessIon. IN WITNESS WHEREOF, I have hereunto subscribed my official signature and impressed hereon the official seal of the City of Sunny Isles Beach this _ day of , 2002. (SEAL) City Clerk \\MIA-SRVOI \1385044vOlwm 102\50414.010300 7 SUNTRUST April 11 , 2002 Jean Watson Finance Director City of Sunny Isles Beach 17070 Collins Avenue, Suite 250 Sunny Isles Beac~ Florida 33160 RE: $3,000,000.00 tax-exempt bank-qualified Revenue Bond Dear Ms. Watson: Sun Trust Bank (hereinafter referred to as the "Bank") is pleased to infonn you that it has approved and hereby extends to City of Sunny Isles Beach its commitment to provide a $3,000,000 Revenue Bond pursuant to the following terms and conditions, and such additional terms and conditions as may be reasonably required heretofore. 1. BORROWER: City of Sunny Isles Beach (hereinafter referred to as the "Borrower"). 2. FACILITY: $3,000,000.00 tax-exempt bank-qualified Revenue Bond (hereinafter referred to as the "Bond"). 3. PURPOSE: To provide funding for improvements to the City's stonn water infrastructure. (hereinafter referred to as the "Project"). 4. COLLATERAL: The Loan will be fully secured by the assignment of the Borrower's gross collections of the stonn water utility tax (hereinafter referred to as "Pledged Revenues"). s. REPAYMENT: Principal payments of $37,500.00 plus interest will be due quarterly. All remaining principal plus accrued interest will be due at the maturity date (which shall be 20 years from closing, however no later than 6/30/2022) or the call date. There shall be a ten-year call option exercisable at the Bank's discretion within the six months prior to the tenth year anniversary. If the Bank exercises the call option, the Borrower shall have six months from the date of notice to pay the loan in full. All payments by the Borrower shall be made no later than 2:00 p.m. on the due date to the Bank in immediately available funds, free and clear of any defenses, set-offs, counterclaims, or withholdings or deductions for taxes. 6 FEE(S) AND EXPENSES: The Borrower shall be required to pay all reasonable and necessary expenses associated with the contemplated transaction, including but not limited to those listed below. I. Bank's attorney's fee for review and preparation of all legal documents. II. Bond Counsel fees. m. Any and all other reasonable expenses associated with the transaction. 7. INTEREST RATE: A fixed rate to be set one day prior to closing based upon the Bank's cost of fimds plus 0.95% and then divided by 1.5054 The current rate would be 4.6QOA, as of 4/11/02. Borrower may prepay the loan, in whole or in part, at any time, without penalty. Interest shall be calculated on the basis of a 360-day year with twelve 30-day months. 8. DOCUMENTATION: At or prior to closing, the Bank shall have received all documents that are typical for transactions of this nature. 9. FINANCIAL REPORTING REQUIREMENTS: The Borrower shall submit audited financial statements to the Bank not less than annually, and a budget and expenditure report for all funds not less than semi- annually. The Borrower shall submit an operating budget for all funds, as ratified by the Mayor and City Commission, to the Bank not less than annually. 10. COVENANTS & CONDITIONS: Funding of the Bond is contingent upon a satisfactory legal opinion as to the Borrower's tax-exempt status and authority under its Charter to borrow money, as well to the fact that the Bond constitutes bank-qualified status. The authority to borrow money must be acceptable in fonn, manner, tenure and purpose, including approval by the City Council. The Bank reserves the right, upon reasonable notice to the Borrower, to change the pricing of the Bond if an adverse change in the tax laws governing the Bond occurs. 2 The Pledged Revenues shall provide a minimum of I.3Sx coverage of the required debt service for the Loan and all other obligations secured by the Pledged Revenues in any given fiscal year. Parity debt covenant of I.SOx for any additional borrowings secured by the Pledge Revenues. There shall be no material adverse change in the Borrower's financial condition prior to closing. 11. ATTORNEY'S FEE AND COSTS IN THE EVENT LOAN DOES NOT CLOSE: Borrower agrees that should this transaction fail to close for any reason, the Bank's counsel shall be entitled to be reimbursed for any of their out-of-pocket costs and to be paid a reasonable fee for its services through the expiration date of this Commitment, and Borrower understands that such fee shall be paid by Borrower immediately upon receipt of a statement. 12. REPRESENTATIONS: The Borrower warrants and represents that to the best of its knowledge all the documents and/or information provided to the Bank prior to the date hereof are true and correct and further acknowledges that the issuance of this Commitment Letter by the Bank is in reliance upon the accuracy and truth of said documents and/or information Further, the Borrower warrants and represents that all material information known to the Borrower has been disclosed to the Bank and the Borrower acknowledges that the Bank has relied upon this representation in the issuance of this Commitment Letter. 13. COMPLIANCE: This Commitment shall comply with the regulations of the Comptroller of the Currency and the regulatory agencies governing the Bank. 14. WAIVER OF TRIAL BY JURY: IF ANY LEGAL ACTION IS TAKEN WITH RESPECT TO THIS COMMITMENT OR THE LOAN DOCUMENTS, OR ANY TRANSACTION DESCRIBED IN Tms COMMITMENT, THE BORROWER AND BANK WAIVE THEIR RIGHTS TO TRIAL BY JURY. 3 15. ACCEPTANCE: This Commitment shall be considered null and void unless the Borrower shall acknowledge acceptance hereof by signing and returning this letter on or before May 31, 2002. On behalf of SunTrust Bank it is our pleasure to extend this credit and we look forward to continuing our mutually beneficial relationship with you. Sincerely, Kimrey Newlin First Vice President Institutional Banking ACCEPTANCE: The terms and conditions of this Commitment are hereby accepted. Dated: ~ By: As its: Mayor By: dIti~L As its: City Manager 4