12El SQUIRE LEGAL
Sll V DERV COUNSEL
WORLDWIDE
To: City of South Miami, Florida
From: Todd L. Cooper
Date: May 11, 2011
SQUIRE, SANDERS & DEMPSEY (US) LLP
Re: City of South Miami, Florida Status Update on IRS VCAP
Baclmround on the Debt. The City of South Miami, Florida ( "City ") entered into a
Loan Agreement ( "2002 Loan Agreemenf') dated May 1, 2002 with the Florida Municipal Loan
Council ( "Issuer ") pursuant to which the Issuer issued an allocable portion of its Revenue Bonds,
Series 2002A ( "2002 South Miami Council Bonds ") and loaned the City $6,528,627.15 ("2002
Loan"). The 2002 South Miami Council Bonds were tax exempt bonds. Under the 2002 Loan
Agreement the City covenanted to take all necessary actions to preserve the tax exempt status of
the 2002 South Miami Council Bonds. The proceeds of the 2002 Loan were to be used to
finance a public parking garage ( "Garage Project ") in the City. The Garage Project was to be
constructed by Mark Richman Properties, a developer ( "Developer "). The Garage Project was
delayed for several years. The 2002 South Miami Council Bonds are eligible for redemption on
May 1, 2012, at a price of 101 % of the then outstanding principal amount.
The City then entered into a Loan Agreement ( "2006 Loan Agreement ") dated December
1, 2006 with the Issuer pursuant to which the Issuer issued an allocable portion of its Revenue
Bonds, Series 2006 ( "2006 South Miami Council Bonds" and together with 2002 South Miami
Council Bonds, the "Council Bonds ") and loaned the City $5,629,708.40 ( "2006 Loan" and
together with the 2002 Loan, the "Council Loans "). The 2006 South Miami Council Bonds were
also tax exempt bonds. Under the 2006 Loan Agreement the City again covenanted to take all
necessary actions to preserve the tax exempt status of the 2006 South Miami Council Bonds.
The proceeds of the 2006 Loan were to be used to finance additional costs of the Garage Project.
The 2006 South Miami Council Bonds are eligible for redemption on October 1, 2016, at a price
of 100% of the then outstanding principal amount.
Construction was completed and the Garage Project opened in the fall of 2007. For a few
months, parking was free. Beginning in January of 2008, parking rates were implemented.
In March of 2008, the City entered into a Loan Agreement with Bank of America, N.A.
pursuant to which Bank of America, N.A. loaned $1,000,000 to the City ("2008 Bank Loan")
and $700,000 of the proceeds paid for additional improvements to the Garage Project while
$300,000 of the proceeds reimbursed the City for public improvements related to the Garage
Project. The 2008 Bank Loan was a taxable obligation and the City therefore made no covenants
regarding the tax status of the 2008 Bank Loan.
On April 7, 2009 the City entered into a Loan Agreement ( "2009 SunTrust Loan
Agreement ") with SunTrust to refund the 2008 Bank Loan. Pursuant to the 2009 SunTrust Loan
Agreement, SunTrust loaned ( "2009 SunTrust Loan") $1,000,000 to the City and the City used
that money to pay off the 2008 Bank Loan. The 2009 SunTrust Loan was a tax exempt loan. In
the 2009 SunTrust Loan Agreement the City again covenanted to protect the tax exempt status of
the 2009 SunTrust Loan. The SunTrust Loan is immediately callable at a price of 100% of the
then outstanding principal amount.
The 2002 South Miami Council Bonds are currently outstanding in the amount of
$5,415,000. The 2006 South Miami Council Bonds are currently outstanding in the amount of
$5,250,000. The 2009 SunTrust Loan is currently outstanding in the amount of $834,900.
Background on "Private Loan" and "Private Activity ". $2,500,000 of the proceeds of
the 2002 Loan were in turn loaned to the Developer ( "Developer Loan") on June 12, 2002. The
City also entered into a Lease Agreement with the Developer on March 11, 2005 ( "Developer
Agreement ") whereby the Developer would operate the Garage Project and retain certain income
from the Garage Project for a term of 50 years from the opening date of the Garage Project.
Thus the Developer Agreement expires in 2057 as the Garage Project was completed in 2007.
These two actions constituted an impermissible private loan and impermissible private activity,
respectively, under Section 141 of the Internal Revenue Code of 1986, as amended ( "Code "),
adversely affecting the governmental status of the Council Bonds. The private loan arose
immediately upon making the Developer Loan. The private activity did not arise at the time of
the Developer Agreement. It did not occur until parking rates were first charged at the Garage
Project in January of 2008.
IRS Procedures and Negotiations. On July 13, 2010, the City, jointly with the Issuer,
approached the Internal Revenue Service ( "IRS ") to seek permission to apply for a settlement
under the Voluntary Compliance Agreement Program ( "VCAP ") in order to preserve the tax
exempt status of the Council Bonds and the 2009 SunTrust Loan under the Code. As the name
implies, the VCAP program involves a self - reporting of potential problems with a tax exempt
issue or series of tax exempt issues and that is what the City undertook. The procedure is
therefore somewhat different than an IRS Examination because it is self- reported and typically
more beneficial to an issuer of tax exempt bonds. The IRS granted permission for a VCAP and
on August 13, 2010, the City and the Issuer jointly submitted a Request for Closing Agreement
Pursuant to Internal Revenue Manual Section 7.2.3.3 which outlines the VCAP procedures. An
IRS Agent, Steven Haycock in Salt Lake City, Utah, was assigned to the City's VCAP request.
A series of exploratory calls commenced as the agent began to develop the case. Thereafter,
negotiations ensued to attempt to resolve all issues with the IRS and protect the status of the
Council Bonds and the 2009 Sun Trust Loan under the Code. Specifically, discussions focused
on determining any settlement amount to be paid to the IRS to resolve the matter, the language of
the settlement agreement, and the amount of Council Bonds and 2009 SunTrust Loan to be
redeemed, or if not immediately eligible for redemption, defeased until the first redemption date.
SQvtRE, SANDERS & DEMPSEY (US) LLP - 2 - May 11, 2011
As set forth below, these negotiations have been with the IRS agent and additional series of steps
are required.
Current Status. As a result of such negotiations, Mr. Haycock most recently offered the
following proposal, which assumes an acceptance by the City on or before June 30, 2011 and a
July 1, 2011 settlement payment and defeasance or redemption of a portion of the Council Bonds
and the 2009 SunTrust Loan:
The settlement amount will continue to rise with the passage of time if the City does not meet the
July 1, 2011 target for a settlement payment and defeasance or redemption of a portion of the
Council Bonds and the 2009 SunTrust Loan. The City has asked Mr. Haycock to explain the
methodology he used to determine the redemption amounts. The City has asked its Financial
Advisor, First Southwest Company ( "First Southwest "), to make an independent determination
of the proper allocation of the redemption amounts. Since the Council Bonds are not currently
callable, the City has also asked First Southwest to estimate the cost of the expected negative
arbitrage in the escrow that will be necessary to defease the portion of the Council Bonds to be
redeemed to their respective redemption dates as that escrow is likely to earn less than the
interest being paid on the Council Bonds. It is our understanding that the City intends to finance
on a taxable basis a portion or all of the (i) settlement payment and (ii) defeasance and
redemption of the Council Bonds and the 2009 SunTrust Loan. It is also our understanding that
the rates on the refinancing debt will be higher than the rates on the existing debt for the Garage
Project. That would be an additional cost. The City has also asked First Southwest to estimate
that cost.
The above information will be shared with Mr. Haycock. He will consider the City's
information, make changes, if any, present the case to a reviewer within the compliance group at
the IRS and, once Mr. Haycock has obtained the reviewer's approval, he will present the case to
the VCAP Committee the IRS established to review these matters. A final determination will be
made and a settlement agreement drafted. The City would then sign the settlement agreement,
wire the cash settlement payment to the IRS, and the IRS Director would then execute the
settlement agreement. The matter is not fully and finally resolved until the Director executes the
settlement agreement. The timing of a final resolution of this matter is uncertain as the reviewer
or the VCAP Committee may or may not have changes. The IRS VCAP Committee may or may
not accept the agent's presentation. Nonetheless, the City has reached a stage in the process
where decisions will need to be made with all deliberate speed to avoid any growth in the
settlement payment.
SQUIRE, SANDERS & DEMPSEY (US) LLP - 3 - May 11, 2011
Settlement
Partial Redemption or
Debt Issue
Amount
Defeasance Amount
2002 South Miami Council Bonds
$102,881.82
$1,723,474.61
2006 South Miami Council Bonds
166,683.16
3,770,231.56
2009 SunTrust Loan
15,277.01
556,602.76
Total
$284,841.99
$6,050,308.93
The settlement amount will continue to rise with the passage of time if the City does not meet the
July 1, 2011 target for a settlement payment and defeasance or redemption of a portion of the
Council Bonds and the 2009 SunTrust Loan. The City has asked Mr. Haycock to explain the
methodology he used to determine the redemption amounts. The City has asked its Financial
Advisor, First Southwest Company ( "First Southwest "), to make an independent determination
of the proper allocation of the redemption amounts. Since the Council Bonds are not currently
callable, the City has also asked First Southwest to estimate the cost of the expected negative
arbitrage in the escrow that will be necessary to defease the portion of the Council Bonds to be
redeemed to their respective redemption dates as that escrow is likely to earn less than the
interest being paid on the Council Bonds. It is our understanding that the City intends to finance
on a taxable basis a portion or all of the (i) settlement payment and (ii) defeasance and
redemption of the Council Bonds and the 2009 SunTrust Loan. It is also our understanding that
the rates on the refinancing debt will be higher than the rates on the existing debt for the Garage
Project. That would be an additional cost. The City has also asked First Southwest to estimate
that cost.
The above information will be shared with Mr. Haycock. He will consider the City's
information, make changes, if any, present the case to a reviewer within the compliance group at
the IRS and, once Mr. Haycock has obtained the reviewer's approval, he will present the case to
the VCAP Committee the IRS established to review these matters. A final determination will be
made and a settlement agreement drafted. The City would then sign the settlement agreement,
wire the cash settlement payment to the IRS, and the IRS Director would then execute the
settlement agreement. The matter is not fully and finally resolved until the Director executes the
settlement agreement. The timing of a final resolution of this matter is uncertain as the reviewer
or the VCAP Committee may or may not have changes. The IRS VCAP Committee may or may
not accept the agent's presentation. Nonetheless, the City has reached a stage in the process
where decisions will need to be made with all deliberate speed to avoid any growth in the
settlement payment.
SQUIRE, SANDERS & DEMPSEY (US) LLP - 3 - May 11, 2011
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RESOLUTION NO.
A Resolution of the Mayor and City Commission of the City of South Miami,
Florida, authorizing the City Manager to enter into a settlement with the
Internal Revenue Service concerning certain parking garage indebtedness
involving payment of a settlement amount and defeasance and redemption,
as applicable, of a portion of said indebtedness, and to execute a settlement
agreement; authorizing the City's financial advisor to request proposals
from banks for a loan to finance such defeasance and redemption and
payment of the settlement amount; and authorizing necessary actions for
implementation of these matters.
Whereas, the City of South Miami ( "the City") caused to be issued certain bonds and
entered into a loan (collectively, the "Indebtedness ") for the construction of the City's parking
garage, all as more particularly described in the memorandum of Squire, Sanders & Dempsey
(US) LLP, dated May 11, 2011 presented at this meeting (the "SSD Memorandum "); and
Whereas, the Indebtedness was intended to be tax- exempt; and
Whereas, as described in the SSD Memorandum, as a result of certain actions, the City
approached the Internal Revenue Service (the "IRS ") under the IRS's Voluntary Compliance
Agreement Program in order to preserve the tax- exempt status of the Indebtedness; and
Whereas, the City and IRS have been negotiating a settlement that would result in the
preservation of the tax- exempt status of the Indebtedness involving (1) the payment by the City
to the IRS of a settlement amount, and (2) the defeasance and redemption, as applicable, of a
portion of the Indebtedness; and
Whereas, in order to accomplish such settlement, it will be necessary for the City to
borrow moneys;
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI, FLORIDA:
Section 1. The City Manager is hereby authorized to enter into a settlement with the
IRS involving (1) the payment of a settlement amount not to exceed $ , and (2)
the defeasance and redemption, as applicable, of a portion of the Indebtedness in the amount
necessary to preserve the tax- exempt status of the Indebtedness, and to execute a related
settlement agreement with the IRS.
Section 2. The City's financial advisor, First Southwest Company, is hereby
authorized, with the consent of the City Manager, to request proposals from banks for a loan for
the principal purpose of financing the defeasance and redemption, as applicable, and payment of
the settlement amount as authorized in Section 1 of this Resolution.
MIAMI/4267204.1
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Section 3. The City Manager, the Finance Director and the City Attorney and other
officers and agents of the City are hereby authorized to take such actions and execute such
documents as may be necessary to implement the provisions of this Resolution.
Section 4. This Resolution shall become effective upon adoption.
PASSED AND ADOPTED this day of 2011.
ATTEST: APPROVED:
CITY CLERK
READ AND APPROVED AS TO FORM
AND SUFFICIENCY:
CITY ATTORNEY
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M AMU4267204.1
MAYOR
COMMISSION VOTE:
Mayor Stoddard:
Vice Mayor Newman:
Commissioner Palmer:
Commissioner Beasley:
Commissioner Harris: