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HomeMy WebLinkAboutOrdinance 2010-348 ORDINANCE NO. 2010-~ AN ORDINANCE OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AUTHORIZING THE ISSUANCE OF A STORMW A TER UTILITY REVENUE BOND, SERIES 2010, OF THE CITY OF SUNNY ISLES BEACH, FLORIDA IN A PRINCIPAL AMOUNT OF $3,500,000 FOR THE PURPOSES OF FINANCING ALL OR A PORTION OF THE COSTS OF CERT AIN IMPROVEMENTS TO THE STORMW A TER UTILITY SYSTEM AND PAYING CERTAIN COSTS RELATED THERETO; DETERMINING THE NEED FOR A NEGOTIATED SALE OF SUCH BOND TO BRANCH BANKING AND TRUST COMPANY; PROVIDING FOR THE TERMS AND PAYMENT OF SUCH BOND AND FOR THE RIGHTS, REMEDIES AND SECURITY OF THE OWNERS THEREOF; MAKING CERTAIN COVENANTS RELATING TO THE ISSUANCE OF SUCH BOND; DESIGNATING SUCH BOND AS A "QUALIFIED T AX- 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 THINGS 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 its Resolution No. 99-144; and WHEREAS, the City Commission pursuant to Chapter 235 of the City Code, as amended, 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 "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 2010" (herein, the "20 I 0 Bond") in a principal amount of $3,500,000 to finance the costs of the Project including the costs of issuing such 2010 Bond; and WHEREAS, the 2010 Bond shall be secured by a pledge of and lien on the Stormwater Utility Fee (as such term is defined below) charged by the City and by a covenant by the City to appropriate in its annual budget, by amendment, if necessary, from Non-Ad Valorem Revenues (as such term is defined below) lawfully available in each Fiscal Year (as such term is defined below), amounts sufficient to pay the principal of and interest due on the 2010 Bond in accordance with its terms during such Fiscal Year; and MIA 181,312,776v4 7-8-10 WHEREAS, City staff has previously solicited proposals from qualified lending institutions to provide a term loan as the vehicle by which the 2010 Bond is to be issued and the Project is to be financed; and WHEREAS, City staff has determined and the City Commission hereby concurs that Branch Banking and Trust Company (herein, the "Bank"), has provided the most responsive, responsible bid to the City; and WHEREAS, the City Commission hereby determines that, in light of present market conditions, the aforementioned proposal provided by the Bank, the nature of the 2010 Bond, the nature of the security afforded to the holder of the 2010 Bond, and other factors described herein, it will be in the best interest of the City to sell the 2010 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 $30,000,000 of its tax-exempt obligations in calendar year 2010, and the City Commission hereby designates the 2010 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: Auth. the Issuance of a Stormwater Utility Rev. Bond 2 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 ".... 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 oflaw (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 Project and the financing thereof in the manner hereinafter set forth. (b) That it is necessary and essential to fund the Project for the health and safety of the residents of the City and that the Project will be in the best economic interest ofthe City. (c) That the Project will serve a valid municipal purpose. (d) That the cost of the 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 bond counsel to the City and counsel to the Bank and such other expenses as may be necessary or incidental to the Project and the issuance of the 2010 Bond herein authorized. (e) That pursuant to the Stormwater Utility Ordinance (as such term is defined below), the City has been charging a fee for stormwater services as more particularly described in Section 1.3 hereof (herein, the "Stormwater Utility Fee"). (t) 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, except to secure the City's Stormwater Utility Revenue Bond, Series 2002, originally outstanding in the principal amount of $3,000,000 (herein, the "2002 Bond"). (g) That the 2010 Bond shall be secured by a pledge of and lien on the Stormwater Utility Fee, on a parity with the pledge of and lien on the Stormwater Utility Fee that secures the 2002 Bond, and by a covenant of the City to appropriate in its annual budget, by amendment, if necessary, from Non-Ad Valorem Revenues (as such term is defined below) lawfully available in each Fiscal Year (as such term is defined below), amounts sufficient to pay the principal of and interest due on the 2010 Bond in accordance with its terms during such Fiscal Year. (h) That the ad valorem taxing power of the City shall never be necessary or authorized to pay the principal of and interest on the 2010 Bond, and the 2010 Bond issued pursuant to this Ordinance shall not constitute a lien upon any other property whatsoever of or in the City. Auth. the Issuance of a Stormwater Utility Rev. Bond 3 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 - 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) 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 as to timely payment 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; (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 (1) and (2) 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"; (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 (I) 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, Auth. the Issuance of a Storm water Utility Rev. Bond 4 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 (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 Branch Banking and Trust Company, 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. (t) "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 oflaw. (h) "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 Auth. the Issuance of a Stormwater Utility Rev. Bond 5 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 - 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 as to timely payment 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. (i) following: "Determination of Taxability" means, with respect to the 2010 Bond, any of the (1) the holder of the 2010 Bond receives a written claim or assertion from the Internal Revenue Service, including an agent's report or notice of proposed adjustment, to the effect that interest on the 2010 Bond is includable in the gross income of the owner thereof for federal income tax purposes which claim or assertion is not being disputed in good faith, or (2) the delivery to the holder of the 2010 Bond of a written opinion of Bond Counsel which is not disputed in good faith by the City to the effect that (i) such interest is included in the gross income of the holder of the 2010 Bond for federal income tax purposes under the Code, or (ii) such Bond Counsel cannot render an opinion, without materially qualifying the same (which qualification must also be deemed material in the reasonable opinion of the holder of the 2010 Bond and its counsel after consultation with the City), to the effect that interest on the 2010 Bond is excludable from the gross income of the owner thereof for federal income tax purposes (without regard to an alternative minimum tax), or (3) interest on the 2010 Bond is otherwise declared or determined to be includable in the gross income of the owner thereof for federal income tax purposes by reason of legislation, judgment of a court of competent jurisdiction, or final determination letter of the Internal Revenue Service which judgment or determination letter is final and non- appealable. Auth. the Issuance of a Storm water Utility Rev. Bond 6 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 For all purposes of this Ordinance, a Determination of Taxability shall be deemed to occur with respect to the 2010 Bond on the date as of which the interest on the 2010 Bond is deemed includable in the gross income of holder of the 2010 Bond. G) "Fiscal Year" shall mean a fiscal year of the City commencing on October 1 and ending on the following September 30. (k) "Interest Rate" shall mean the rate of interest per annum equal to 4.02%. (1) "Maturity Date" shall mean, with respect to the unpaid principal of and interest on the 2010 Bond, August 1, 2025. (m) "Non-Ad Valorem Revenues" means all revenues of the City derived from any source other than ad valorem taxation on real or personal property and which are legally available to make the payments required under this Ordinance in respect of the 2010 Bond; but only after the payment of services and programs which are for essential public purposes affecting the health, welfare and safety of the inhabitants of the City or which are legally mandated by applicable law. (n) "Ordinance" shall mean this Ordinance as the same may from time to time be amended and supplemented in accordance with the terms hereof. (0) "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 2010 Bond, provided that there shall never be more than 1 registered holder at anyone time. (p) "Parity Obligations" shall mean any notes, bonds or other forms of indebtedness, payable from the Stormwater Utility Fee on parity with the 2002 Bond and the 2010 Bond, whether or not such obligations are issued under this Ordinance. (q) "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. (r) "Payment Date" shall mean each February, May 1, August 1 and November 1, commencing November 1,2010, the Maturity Date and any date the principal of the 2010 Bond is optionally prepaid in whole or in part. (s) "Pledged Revenues" shall mean all moneys derived from Stormwater Utility Fee and all moneys required to be deposited in the 20 I 0 Debt Service Fund in accordance with the provisions of this Ordinance. (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. Auth. the Issuance of a Stormwater Utility Rev. Bond 7 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 (u) "Tax Certificate" shall mean the Arbitrage Certificate of the City executed on the date of initial delivery of the 2010 Bond. (v) "Taxable Rate" means, with respect to the 2010 Bond, the Interest Rate on the 2010 Bond as adjusted to cause the interest received by the holder of the 2010 Bond, after payment of any increase in tax, to equal the interest the holder of the 2010 Bond would have received in the absence of such change or amendment in the tax laws or regulations. (w) "2002 Ordinance" shall mean Ordinance No. 2002-155 enacted by the City Commission on July 15, 2002. (x) "2010 Bond" shall mean the Stormwater Utility Revenue Bond, Series 2010, authorized by this Ordinance to be issued in a principal amount of $3,500,000. (y) "2010 Debt Service Fund" shall mean the Sunny Isles Beach Stormwater Utility Revenue Bond 2010 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 2010 Bond in accordance with the provisions hereof. (z) "U. 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. (aa) "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. (bb) "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 enacted on July 15, 1999, as amended and as the same may be further 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 2010 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 2010 Bond Auth. the Issuance of a Stormwater Utility Rev. Bond 8 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 SECTION 2.1 AUTHORIZATION OF 2010 BOND: APPLICATION OF PROCEEDS. 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 2010" is hereby authorized to be issued in the aggregate principal amount of not exceeding Three Million Five Hundred Thousand Dollars ($3,500,000) for the purpose of financing the costs of the Project. Upon completion of the Project, the City shall either apply any unspent proceeds of the 2010 Bond to redeem a portion of the 2010 Bond in the manner set forth in Section 2.2(t) of this Ordinance or to pay interest on the 2010 Bond on the next Payment Date. SECTION 2.2 DESCRIPTION OF 2010 BOND. (a) The text of the 2010 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. (b) The 20 I 0 Bond (initially issued in one (1) typewritten certificate) shall be dated the date of initial issuance. Unless the interest rate on the 2010 Bond is subject to adjustment pursuant to the provisions of Section 2.7 hereof, the 20 I 0 Bond shall bear interest on the outstanding principal amount of the 2010 Bond from time to time at the Interest Rate. Interest shall be computed on the basis of a 360 day year consisting of twelve 30-day months. Principal of and interest on the 2010 Bond shall be payable in equal installments on each Payment Date commencing July 1, 2011. A schedule ofthe principal of and interest on the Series 2010 Bond is set forth as Schedule A to the form of the 2010 Bond attached as Exhibit A to this Ordinance. All previously unpaid principal of the 2010 Bond and all previously accrued and unpaid interest on the 2010 Bond shall be payable on the Maturity Date. The 2010 Bond shall be issued in registered form. (c) Principal of and interest on the 2010 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 2010 Bond shall be numbered in such manner as may be prescribed by the Registrar. (d) The 2010 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. (d) The City may prepay the 2010 Bond in whole, but not in part, on any Payment Date by paying to the registered holder all of the principal amount of the 2010 Bond, together with the unpaid interest accrued thereon, plus a premium of 1 % of the principal amount being prepaid. (t) In addition, the City may apply unspent proceeds of the 2010 Bond to prepay the 2010 Bond in part on any Payment Date by paying to the registered holder the principal amount of the 2010 Bond to be so prepaid, together with the unpaid interest accrued thereon, without premium or penalty, provided however that the City may exercise the right of prepayment set forth in this paragraph no more than one time. Auth. the Issuance of a Storm water Utility Rev. Bond 9 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 (g) Each prepayment shall be made on such date and in such principal amount as shall be permitted under this Ordinance and specified by the City in a written notice delivered to the registered owner not less than ten (10) days prior thereto. If such prepayment shall be for only a portion of the unpaid principal balance of the 2010 Bond, such prepayment shall be applied against the obligation of the City to pay future amortization installments on the 2010 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 2010 Bond is to be paid, upon presentation and surrender of the 2010 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 ofthe unpaid balance of principal of the 2010 Bond is to be paid, upon presentation of such 2010 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 2010 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, so long as the 2010 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 2010 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 2010 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 2010 Bond shall continue to bear interest until payment thereof. SECTION 2.3 EXECUTION OF THE 2010 BOND. The 2010 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 2010 Bond may be manual or facsimile signatures. In case anyone or more of the officers who shall have signed or sealed the 2010 Bond shall cease to be such officer of the City before the 2010 Bond so signed and sealed shall have been actually sold and delivered, such 2010 Bond may nevertheless be sold and delivered as herein provided and may be issued as if the person who signed or sealed such 2010 Bond had not ceased to hold such office. The 2010 Bond may be signed and sealed on behalf of the City by such person who at the actual time of the execution of the 2010 Bond shall hold the proper office, although at the date the 2010 Bond shall be actually delivered such person may not have held such office or may not have been so authorized. The 2010 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 2010 Bond shall bear thereon such certificate of authentication shall it be entitled to any right or benefit under this Ordinance and no 20 I 0 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 20 I 0 Bond executed on behalf of the City shall be conclusive evidence that the 20 10 Bond so Auth. the Issuance of a Storm water Utility Rev. Bond 10 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 - 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 2010 Bond and for the registration of transfers of the 2010 Bond. The 2010 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 2010 Bond, the City shall issue in the name of the transferee a new 2010 Bond. The City, the Paying Agent and the Registrar shall deem and treat the person in whose name the 2010 Bond shall be registered upon the books kept by the Registrar as the absolute Owner of such 2010 Bond, whether such 2010 Bond shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal of and interest on such 2010 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 2010 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 2010 Bond is exercised, the City shall execute and the Registrar shall authenticate and deliver the 2010 Bond in accordance with the provisions of this Ordinance. The 2010 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 2010 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 2010 Bond shall thereupon be promptly canceled. The 2010 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 2010 Bond, and one executed certificate shall be filed with 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 2010 BOND. In case any 2010 Bond shall become mutilated, destroyed, stolen or lost, the City Auth. the Issuance of a Stormwater Utility Rev. Bond 11 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 shall execute and the Registrar shall authenticate and deliver a new 2010 Bond of like date, maturity and denomination as the 2010 Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any mutilated 2010 Bond, such mutilated 2010 Bond shall first be surrendered to the City and, in the case of any lost, stolen or destroyed 2010 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 2010 Bond shall be about to mature or have matured, instead of issuing a duplicate 2010 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 2010 Bond their reasonable fees and expenses in connection with this transaction. Any 2010 Bond surrendered for replacement shall be canceled in the same manner as provided in Section 2.4 hereof. Any such duplicate 2010 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 2010 Bond be at any time found by anyone, and such duplicate 2010 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 2010 Bond issued hereunder. SECTION 2.6 CONDITIONS FOR ISSUANCE OF THE 2010 BOND. Prior to the issuance of the 2010 Bond, the City shall comply with the following conditions: (a) Delivery to the Bank of a fully executed Tax Certificate; and (b) Delivery to the Bank of a copy of a completed and executed Form 8038-G to be filed by the City with the Internal Revenue Service; and (c) Delivery by the City's bond counsel to the Bank of an opinion of Bond Counsel, regarding the due authorization, execution, delivery, validity and enforceability of the 2010 Bond and the pledge of the Pledged Revenues therefor, the due enactment of this Ordinance (enforceability of such instruments may be subject to standard bankruptcy exceptions and the like), and the exclusion of interest on the 2010 Bond from gross income for federal income tax purposes. Such opinion shall also state that the 2010 Bond is a "qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Code; and (d) Delivery to the Bank of 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 2010 Bond and the pledge of the Pledged Revenues therefor, and the due enactment of this Ordinance (enforceability may be subject to standard bankruptcy exceptions and the like); and (e) Delivery to the Bank of 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. Auth. the Issuance of a Storm water Utility Rev. Bond 12 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 - SECTION 2.7 INTEREST RATE ADJUSTMENT. The Interest Rate on the 2010 Bond shall be subject to adjustment as follows. Upon the occurrence of a Determination of Taxability, the Interest Rate shall be adjusted to the Taxable Rate, as of and from the date such Determination of Taxability would be applicable with respect to the 2010 Bond (the "Accrual Date"); and (i) the City shall on the next interest payment date pay to the holder, or any former holder, as may be appropriately allocated, an amount equal to the sum of (1) the difference between (A) the total interest that would have accrued on the 2010 Bond at the Taxable Rate from the Accrual Date to the date of the Determination of Taxability, and (B) the actual interest paid by the City on the 2010 Bond from the Accrual Date to the date of Determination of Taxability, and (2) any interest and penalties required to be paid as a result of any additional State of Florida and federal income taxes imposed upon such holder and/or former holder arising as a result of such Determination of Taxability; and (ii) from and after the date of the Determination of Taxability, the 2010 Bond shall continue to bear interest at the Taxable Rate for the period such determination continues to be applicable with respect to the 2010 Bond. This adjustment shall survive payment of the 2010 Bond until such time as the federal statute of limitations under which the interest on the 2010 Bond could be declared taxable under the Code shall have expired. ARTICLE III COVENANTS, FUNDS AND APPLICATION THEREOF SECTION 3.1 2010 BOND NOT TO BE INDEBTEDNESS OF THE CITY. The 2010 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 and by a covenant by the City to appropriate in its annual budget, by amendment, if necessary, from Non-Ad Valorem Revenues lawfully available in each Fiscal Year, amounts sufficient to pay the principal of and interest due on the 2010 Bond in accordance with its terms during such Fiscal Year. 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 2010 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 2010 BOND SECURED BY PLEDGE OF PLEDGED REVENUES. From and after the issuance of the 2010 Bond, and continuing until the payment of the 2010 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 2010 Bond. Such pledge of the Pledged Revenues shall be on a parity with any current or future pledge of the Pledged Revenues to secure the repayment of Parity Obligations. The right of the City to issue Parity Obligations shall not be limited by this Ordinance. SECTION 3.3 COVENANTS OF THE CITY. As long as any of the principal of or interest on the 2010 Bond shall be outstanding and unpaid, or until there shall have been set apart in the 2010 Debt Service Fund in accordance with Section 3.6 hereof a sum sufficient to pay, when due, the entire principal of the 2010 Bond remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the Bondholders as follows: Auth. the Issuance of a Storm water Utility Rev. Bond 13 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 ~ (a) Tax Covenants Relating to the Internal Revenue Code of 1986, as amended. (1) In order to maintain the exclusion from gross income for purposes of federal income taxation of interest on the 2010 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. (2) 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 2010 Bond, would cause the 2010 Bond to be a "private activity bond" or "arbitrage bond" within the meaning of Sections 141(a) and 148(a), respectively, of the Code. (3) The City shall make any and all payments required to be made to the United States Department of the Treasury in connection with the 2010 Bond pursuant to Section 148(t) of the Code. (4) 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 2010 Bond, the covenants contained in this Section shall survive the payment of the 2010 Bond and the interest thereon, including any payment or discharge thereof pursuant to Section 3.6 of this Ordinance. (b) Establishment of 2010 Debt Service Fund. There is hereby created and established the following fund entitled the "Sunny Isles Beach Stormwater Utility Revenue Bond 2010 Debt Service Fund" (herein referred to as the "2010 Debt Service Fund"). The 2010 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 a qualified public depository described in Section 1.3(b)(4) of this Ordinance 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 such a qualified public depository 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 2010 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 2010 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 Auth. the Issuance of a Stormwater Utility Rev. Bond 14 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 I . the moneys on deposit in the 2010 Debt Service Fund shall remain on deposit in the 2010 Debt Service Fund and be used in the same manner as other moneys on deposit therein. (c) Disposition of Pledged Revenues and Non-Ad Valorem Revenues. Not later than one business day prior to each Payment Date, the City shall deposit in the 2010 Debt Service Fund the proceeds of the Stormwater Utility Fee in an amount sufficient to the principal of and interest becoming due on the 2010 Bond on such Payment Date; provided, however, that such deposit shall not be required to be made to the extent that moneys on deposit in the 2010 Debt Service Fund are sufficient for such purpose. The City covenants to deposit, not less than one business day prior to the Maturity Date, the proceeds of the Stormwater Utility Fee (or other legally available moneys) into the 2010 Debt Service Fund in an amount sufficient to pay the outstanding principal of and interest on the 2010 Bond. To the extent the proceeds of the Stormwater Utility Fee shall be insufficient to make any deposit into the 2010 Debt Service Fund when required under this Section 3.3(c), the City shall remedy such insufficiency to the extent that Non-Ad Valorem Revenues are available for such purpose to the extent set forth in Section 3.8 of this Ordinance. (d) Charge of Storm water Utility Fee. Without the prior written consent of the holder of the 2010 Bond, 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, (ii) impair or adversely affect in any manner the pledge of the Stormwater Utility Fee made herein, or impair or adversely affect the obligations of the City under Section 3.8 of this Ordinance. Without the prior written consent of the holder of the 2010 Bond, 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, the 2010 Bond and all Parity Obligations. 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. (e) 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. Auth. the Issuance of a Stormwater Utility Rev. Bond 15 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 (f) Budget and Other Financial Information. The City shall provide the holder of the 2010 Bond with a copy of its audited general purpose financial statements within 150 days of the close of each fiscal year during which the 2010 Bond shall remain outstanding. The City Manager or the Finance Director shall also certify to the holder of the 2010 Bond at that time that the City is not then in default of its obligations under this Ordinance, 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 demonstrate in each annual budget that there are sufficient proceeds of the Stormwater Utility Fee to pay the principal of and interest on the 2010 Bond coming due in the fiscal year covered by such annual budget. The City shall provide the holder of the 2010 Bond 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. 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 2010 BOND PROCEEDS. The proceeds of the 2010 Bond shall be used to provide permanent financing for the costs of the Project, including the payment of costs associated with the issuance of the 2010 Bond. SECTION 3.6 DISCHARGE AND SATISFACTION OF 2010 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 2010 Bond in anyone or more of the following ways: (a) by paying in full the principal of and interest on the 2010 Bond when the same shall become due and payable; or (b) by depositing in the 2010 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 2010 Bond and all interest thereon as the same become due on said 2010 Bond on or prior to the maturity date thereof; or (c) by depositing in the 2010 Debt Service Fund or such other accounts as the City may hereafter create and establish by ordinance( which 2010 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 2010 Bond and all interest thereon) moneys which, when invested in Defeasance Obligations, will provide moneys which shall be sufficient to pay the 20 I 0 Bond and, all interest thereon as the same shall become due on said 2010 Bond on or prior to the Auth. the Issuance of a Storm water Utility Rev. Bond 16 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 Maturity Date thereof. Upon such payment or deposit in the amount and manner provided in this Section 3.6, the 2010 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 2010 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. SECTION 3.8 LIMITED OBLIGATIONS. COVENANT TO BUDGET AND APPROPRIATE: (a) The City hereby covenants and agrees to the extent permitted by and in accordance with applicable law and budgetary processes, to prepare, approve and appropriate in its annual budget for each Fiscal Year, by amendment if necessary, Non-Ad Valorem Revenues in an amount which, together with the Pledged Revenues and any other legally available revenues budgeted and appropriated for such purpose, are equal to the principal and interest requirements with respect to the 2010 Bond for the applicable Fiscal Year, plus an amount sufficient to satisfy all other payment obligations of the City under this Ordinance in respect of the 2010 Bond for the applicable Fiscal Year. Non-Ad Valorem Revenues budgeted and appropriated as required under this Section 3.8 shall be deposited into the 2010 Debt Service Fund and applied as required pursuant to Section 3.3(c) of this Ordinance. (b) The obligation of the City pursuant to this Section 3.8 includes an obligation to make amendments to the budget of the City to assure compliance with the terms and provisions hereof. The covenant and agreement on the part of the City to budget and appropriate sufficient amounts of Non-Ad Valorem Revenues shall be cumulative, and shall continue until such Non-Ad Valorem Revenues in amounts, together with the Pledged Revenues and any other legally available revenues budgeted and appropriated for such purposes, sufficient to make all required payments hereunder as and when due, including any delinquent payments, shall have been budgeted, appropriated and actually paid in satisfaction of the obligations of the City under this Ordinance. (c) Nothing contained herein shall preclude the City from pledging any of its Non-Ad Valorem Revenues or other revenues to other obligations (provided, however, the City shall not make any such pledge if as a result the City shall not have sufficient Non-ad Valorem Revenues to pay all of its payment obligations under this Ordinance), nor shall it give the holder of the 2010 Bond a prior claim on the Non-Ad Valorem Revenues until they are actually paid in satisfaction of the obligations of the City under this Ordinance. The City may not expend moneys not appropriated or in excess of its current budgeted revenues. The obligation of the City to budget, appropriate and make payments hereunder from Non-Ad Valorem Revenues is subject to the availability of Non-Ad Valorem Revenues after satisfying funding requirements for obligations having an express lien on or pledge of such revenues and after satisfying funding requirements for essential governmental services of the City. (d) The 2010 Bond shall not constitute a general obligation or general indebtedness of the City within the meaning of the Constitution and laws of the State of Florida. The 2010 Bond does not constitute either a pledge of the full faith and credit of the City or a lien upon any property of the City, except as expressly provided herein. Neither the Bank nor any other Person Auth. the Issuance of a Stormwater Utility Rev. Bond 1 7 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 shall ever have the right to compel the exercise of any taxing power of the City or any other public authority or governmental body to pay the principal of, or the interest on, the 2010 Bond or to pay any other amounts required to be paid pursuant to this Ordinance or the 2010 Bond or to maintain or continue any of the activities of the City that generate user service charges, regulatory fees or any other Non-Ad Valorem Revenues (other than 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 ofthe 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 any one 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 2010 Bond issued hereunder. SECTION 4.4 WAIVER OF JURY TRIAL. The City, in consideration of the purchase of the 2010 Bond by the Bank, and the Bank, by its acceptance of the 2010 Bond, each mutually and willingly waive the right to a trial by a jury in connection with any and all claims by any party hereto against the other arising from or in connection with the transactions contemplated by the 2010 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 become effective immediately upon its enactment after second reading. PASSED AND ADOPTED on first reading this ~ day of ..::rU.L\{ ,2010. PASSED AND ADOPTED on second reading thisA'1~ay of :rIH_Y ,2010. Auth. the Issuance of a Stormwater Utility Rev. Bond 18 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 - ATTEST: ~ UFFICIENCY: ty Attorney Moved by: (iF\W\~~ C;~t'Y1.~ Seconded by: (lh~ ~~211\J Vote: C;-o Mayor Ede1cup Vice Mayor Thaler Commissioner Brezin Commissioner Goodman Commissioner Scholl v (Yes) V(Y es) ~Y es) ~~Yes) ---1L(Y es) _(No) _(No) _(No) _(No) _(No) Auth. the Issuance of a Stormwater Utility Rev. Bond 19 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 Exhibit A FORM OF 2010 BOND No. R- CITY OF SUNNY ISLES BEACH, FLORIDA Stormwater Utility Revenue Bond, Series 2010 4.02% Maturity Date JULY 1,2025 Dated Date Interest Rate Registered Owner: Branch Banking and Trust Company Principal Amount: $3,500,000 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 $3,500,000 with interest thereon at the Interest Rate specified above (subject to adjustment as set forth in Section 2.7 of the Ordinance mentioned below) calculated on the basis of a 360-day year consisting of twelve 30-day months, 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 $3,500,000 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. 2010-~ duly enacted on ~Io\I..Y ~ 7 _,2010 (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. 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, Auth. the Issuance of a Storm water Utility Rev. Bond 1 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 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 (as defined in the Ordinance) or as hereinafter described, this Bond shall bear interest at the Interest Rate set forth above. Any amount due under this Bond not paid when due shall bear interest at a default rate equal to the interest rate on this Bond plus 20% per annum from and after five (5) days after the due date, as set forth in Section 2.7 of the Ordinance. Upon the occurrence of a Determination of Taxability, this Bond shall bear interest as set forth in Section 2.7 of the Ordinance. The City shall pay principal of, sometimes referred to herein as "amortization installments", and interest payments on this Bond on each Payment Date, commencing November 1, 2010, as set forth in Schedule A to this Bond. All previously unpaid principal of the 2010 Bond and all previously accrued and unpaid interest on the 20 I 0 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 in the Ordinance) and by a covenant by the City to appropriate in its annual budget, by amendment, if necessary, from Non-Ad Valorem Revenues (as defined in the Ordinance) lawfully available in each Fiscal Year (as defined in the Ordinance), amounts sufficient to pay the principal of and interest due on this Bond in accordance with its terms during such Fiscal Year. The City may prepay this Bond in whole, but not in part, on any Payment Date by paying to the registered holder all of the principal amount of this Bond, together with the unpaid interest accrued thereon, plus a premium of I % of the principal amount being prepaid. In addition, the City may apply unspent proceeds of this Bond to prepay this Bond in part on any Payment Date by paying to the registered holder the principal amount of this Bond to be so prepaid, together with the unpaid interest accrued thereon, without premium or penalty, provided however that the City may exercise the right of prepayment set forth in this paragraph no more than one time. Each prepayment shall be made on such date and in such principal amount as shall be permitted under this Ordinance and specified by the City in a written notice delivered to the registered owner not less than ten (10) days prior thereto. If such prepayment shall be for only a portion of the unpaid principal balance of this Bond, such prepayment shall be applied against the obligation of the City to pay future amortization installments on this 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; Auth. the Issuance of a Stormwater Utility Rev. Bond 2 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 .... 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 surrender of this 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 this Bond is to be paid, upon presentation of this 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 Bond in the principal amount not redeemed. Notwithstanding the provisions of clause (ii) above, so long as this 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 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 this Bond shall continue to bear interest until payment thereof 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 AND BY A COVENANT BY THE CITY TO APPROPRIATE IN ITS ANNUAL BUDGET, BY AMENDMENT, IF NECESSARY, FROM NON-AD VALOREM REVENUES LA WFULL Y AVAILABLE IN EACH FISCAL YEAR, AMOUNTS SUFFICIENT TO PAY THE PRINCIPAL OF AND INTEREST DUE ON THIS BOND IN ACCORDANCE WITH ITS TERMS DURING SUCH FISCAL YEAR. NO HOLDER OF THIS BOND SHALL EVER HAVE THE RIGHT TO COMPEL THE EXERCISE OF AD V ALOREM 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. Auth. the Issuance of a Stormwater Utility Rev. Bond 3 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 .... 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 Jane A. Hines, CMC, City Clerk ~ orman S. Edelcup, Mayor ATTEST: ~~L Auth. the Issuance of a Storm water Utility Rev. Bond 4 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 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 ~~rjCl By: Auth. the Issuance of a Storm water Utility Rev. Bond 5 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 . { ASSIGNMENT FOR VALUE 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. Auth. the Issuance of a Storm water Utility Rev. Bond 6 Series 2010 $3,500,000 MIA 181,312,776v4 7-8-10 - .. STATE OF FLORIDA ) COUNTY OF MIAMI-DADE ) I, Jane A. Hines, CMC, 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. 2010-~ enacted on first and second reading at meetings of the City Commission of said city held, respectively on 7/ISJ/o , and 7 /~l liD, respectively, as said ordinance is officially of record in my possess{on. I I IN WITNESS WHEREOF, I have hereunto subscribed my official signature and impressed hereon the official seal of the City of Sunny Isles Beach this ~daYOf~,2010, ~A~ . 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(~h..4S-3 SI"lL :ad^l JOIO::J :aZ!S :JaqwnN UO!jJasul :JaqwnN PV O~OZ/8~/LO :aJea UOne~!Iqnd 4D Q1U1JH !WU!M JlJ~ :UO!ldposaa apeO/91>'3NASe3 N S~8N :auOz/a15ed/UO!pas ::"f38 S31S1 ANNnS =10 All:) :JaS!jJaAPV :aweN lua!l::J M'll8 O'SXl ~OZ668~S8 ~Ol668 ~S8 Preview Page 1 of2 City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 (305) 947-0606 City Hall (305) 949-3113 Fax MEMORANDUM TO: The Honorable Mayor and City Commission FROM: Minai Shah, Assistant City Manager-Finance DATE: 7/27/2010 RE: Ordinance Authorizing the Issuance of a Stormwater Utility Revenue Bond, Series 2010, in a Principal Amount of $3.5 Million RECOMMENDATION: Please approve the ordinance and loan documents with BB&T for a $3.5 Million fixed rate loan to be repaid over 15 years and at an interest rate of 4,02%. This rate is locked for 45 days from June 30, 2010. This loan will be repaid from legally available non ad valorem revenues in the Stormwater Fund, The loan can be repaid early but is subject to penalty provisions of the agreement which may be triggered depending upon current market interest rates at the time of prepayment. Payments will be made quarterly, beginning November 1,2010. The total annual debt service will be approximately $312,000. Proceeds from the loan will be used for the payment of the loan from the Capital Improvements Fund for the drainage improvements and future Storm water improvements. The loan documents will require to be executed after the second ordinance reading. A special meeting will be scheduled for the second reading, The closing and settlement will occur shortly thereafter. REASONS: HISTORY: During the fiscal year 2008/2009, the City incurred an expense of approximately $7.3 million for the Central Island Drainage project. This project required the Stormwater Fund to borrow $2,555,863 from the Capital Improvement Fund. On April 15, 2010 Commission Meeting, the City presented an aggressive payback schedule between the Storm water Fund and the Capital Improvement Fund. During the discussion of this item Commission requested that we seek an external financing source for these expenses. Agenda Item 3/1 7- 7.., 7- I D http://sibagenda.sibfl.net/agendaJPreview,aspx?ItemID=313&MeetingID Date Preview Page 2 of2 TALLY OF BIDS: Staff had sent out letter of interests in mid-April to the following financial institutions: . Bank of America . SunTrust Bank . Bank Atlantic . BB & T . City National Bank Bank of America did not respond to the letter of interest. SunTrust and City National Bank had attempted to put a proposal together, but were not able to deliver a proposal due to corporate decisions, The two remaining financial institutions submitted the following proposals for the loan: . Bank Atlantic-l 0 year $3.5 million term loan at an annual interest rate of 5.75% and an option for a 1 year $1 million line of credit at an annual interest rate of 4,5%. . BB&T -15 year up to $4,5 million term loan at annual interest rate of 4.02% and a 20 year up to $4,5 million term loan at an annual interest rate of 4.76%. STAFF's RECOMMENDATION: The term of the Bank Atlantic loan exceeds the City's ability to have enough cash flow to comply with the payment schedule. BB&T offers the best proposal with a 15 year term $3.5 million loan at 4.02%, This loan amount will accomplish reimbursement of the Capital Improvement fund and additional capital projects that Stormwater Fund can address. The loan is structured with quarterly principal and interest payments and is included in the proposed FY 20 I 0/20 11 budget. FUNDING SOURCE: Storm water Fund A TT ACHMENTS: . Ordinance . Form of2010 . Public Hearing Notice http://sibagenda,sibfl,net/agendalPreview.aspx?ItemID=313&MeetingID=O&MeetingDate,., 7/20/2010