9To:
From:
Date:
Subject:
CITY OF SOUTH MIAMI
OFFICE OF THE CITY MANAGER
INTER-OFFICE MEMORANDUM
The Honorable Mayor & Members of the City Commission
May 5,2015 Agenda Item: ~ Steven Alexander, City Manager
South Miami
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An Ordinance authorizing the issuance of Capital Improvement Revenue
Refunding Note, Series 2015, in the principal amount not to exceed
$5,000,000, for the purpose of refinancing certain of the City's outstanding
indebtedness and paying the costs of issuance of the Note and of refinancing
such indebtedness; covenanting to annually budget and appropriate funds
from Legally Available Non-Ad Valorem Revenues to repay such Note;
providing the form, terms and details of the Note; awarding the Note to
Branch Banking and Trust Company by negotiated sale; making certain
covenants and agreements in connection therewith; authorizing and
directing officers and employees of the City to take all necessary/actions and
execute all necessary documents.
BACKGROUND & ANALYSIS
In 2012 the City of South Miami in conjunction with the City's Financial Advisor requested bank
loan proposals on a 15 year and 20 year basis to refund all or a portion of the City's outstanding
2001A and 2002A loans. Based upon the three qualified proposals received, Ordinance 18-12-
2134 was adopted authorizing the issuance of the Series 2012 Note to BB&T on a bank qualified
basis.
The approval was based upon an attractive 20-year loan at an interest rate of 3.50%, which
provided greater present value savings compared to the alternative is-year proposals.
Additionally, the loan provided flexibility to prepay on any interest payment date with a 1%
premium. At that time and based upon the interest rate of 3.50% from BB& T, the refunding
was estimated to produce present value savings of approximately $640,000 or 12% of the
principal amount refunded. Unfortunately, due to the Metro South lawsuit which was filed a
few days prior to the closing of the Series 2012 Note, BB& T decided not to move forward with
the loan and the City was unable to close on the refinancing.
The City has since settled the Metro South lawsuit, at no financial consequence, and interest
rates currently appear favorable. It is for this reason that the City is moving forward with
pursuing the refunding again and seeking approval of the Commission.
Page I of 2
The City, along with its Financial Advisor (FirstSouthwest), contacted BB& T to discuss the
possibility of renegotiating the previous loan which had already been approved by the Bank and
City Commission. After completing its credit review of the City, BB&T provided the City a
revised loan proposal on April 15, 2015. The proposal included beneficial concessions to the
City with respect to the interest rate and prepayment provisions.
The current recommendation is an attractive 17-year loan at a fixed interest rate of 2.80% that
is held for 45-days from April 15, 2015. Additionally, the loan provides the City flexibility to
prepay on any payment date with NO prepayment penalty. Based upon the interest rate of
2.80% from BB& T, the refunding is estimated to produce present value savings of
approximately $828,000 or 17% of the principal amount refunded.
ATTACHMENTS
-Ordinance Capital Improvement Revenue Refunding Note, Series 2015
-BB& T Term Sheet Proposal
-Preliminary Financing Summary Analysis
-Financing Schedule
Page 2 of 2
1 ORDINANCE NO. ___ _
2 An Ordinance authorizing the issuance of Capital Improvement Revenue
3 Refunding Note, Series 2015, in the principal amount not to exceed
4 $5,000,000, for the purpose of refinancing certain of the City's outstanding
5 indebtedness and paying the costs of issuance of the Note and of refinancing
6 such indebtedness; covenanting to annually budget and appropriate funds
7 from Legally Available Non-Ad Valorem Revenues to repay such Note;
8 providing the form, terms and details of the Note; awarding the Note to
9 Branch Banking and Trust Company by negotiated sale; making certain
10 covenants and agreements in connection therewith; authorizing and directing
11 officers and employees of the City to take all necessary actions and execute
12 all necessary documents.
13 WHEREAS, the City of South Miami, Florida (the "City") has previously financed a
14 portion of certain capital improvements in the City with the proceeds of (i) a loan from the
15 Florida Municipal Loan Council (the "FMLC") pursuant to a Loan Agreement dated as of
16 November 15,2001 between the City and FMLC, currently outstanding in the principal amount
17 of $1,610,000 (the "2001 Loan"), and (ii) a loan from FMLC pursuant to a Loan Agreement
18 dated as of May 1, 2002 between the City and FMLC, currently outstanding in the principal
19 amount of $3,250,000 (the "2002 Loan" and, together with the 2001 Loan, the "Prior Loans");
20 WHEREAS, the City desires to issue its Capital Improvement Revenue Refunding Note,
21 Series 2015 (the "Note"), in the principal amount not to exceed $5,000,000, to refinance all or a
22 portion ofthe Prior Loans in order to achieve debt service savings for the City; and
23 WHEREAS, the City does not expect to issue more than $10 million in tax-exempt
24 obligations during calendar year 2015; and
25 WHEREAS, for the reasons set forth in Section 14 of this Ordinance, the City has
26 determined that it is in the best interest of the City to authorize the negotiated sale of the Note;
27 and
28 WHEREAS, the City has received a proposal from Branch Banking and Trust Company
29 (the "Bank") to make a loan to the City to be evidenced by the Note and, subject to the
30 provisions of this Ordinance, the City wishes to accept such loan and award the sale of the Note
31 to the Bank.
32 NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY
33 COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA THAT:
34 Section 1. Recitals. The above recitals are incorporated herein as findings.
35 Section 2. Definitions. As used herein, unless the context otherwise requires:
36 "Act" means, as applicable, Article VIII, Section 2 of the Constitution of the State of
37 Florida, Chapter 166, Florida Statutes, the Charter of the City of South Miami, and other
38 applicable provisions oflaw.
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39 "Annual Budget" means the annual budget prepared by the City for each Fiscal Year in
40 accordance with Section 12 below and in accordance with the laws of the State of Florida.
41 "Annual Debt Service" means, as of any particular date of calculation, the annual debt
42 service requirement for all Debt in each such Bond Year except that with respect to any Debt for
43 which amortization installments have been established, the amount of principal coming due on
44 the final maturity date with respect to such Debt shall be reduced by the aggregate principal
45 amount of such Debt that is to be redeemed or paid from amortization installments to be made in
46 prior Bond Years.
47 "Bank" means Branch Banking and Trust Company, the purchaser of the Note.
48 "Bond Year" means the annual period beginning on the first day of October of each year
49 and ending on the last day of September of the immediately succeeding year; provided however,
50 that when such term is used to describe the period during which deposits are to be made to
51 amortize principal and interest on Debt maturing or becoming subject to redemption, including
52 without limitation, interest and principal maturing or becoming subject to redemption on October
53 1 of any year shall be deemed to mature or become subject to redemption on the last day of
54 preceding Bond Year.
55 "Business Day" means any day which is not a Saturday, Sunday or day on which banking
56 institutions in Miami-Dade County, Florida, are authorized to be closed.
57 "City" means the City of South Miami, Florida, a Florida municipal corporation.
58 "City Manager" means the City Manager of the City, or his or her successor.
59 "Clerk" means the City Clerk or any Deputy Clerk of the City.
60 "Code" means the Internal Revenue Code of 1986, as amended, inchiding the applicable
61 regulations of the Department of the Treasury (including applicable final regulations, temporary
62 regulations and proposed regulations), the applicable rulings of the Internal Revenue Service
63 (including published Revenue Rulings and private letter rulings) and applicable court decisions.
64 "Cost of Essential Services" means the cost of services necessary for the conducting of
65 the public safety and general governmental operations of the City, as shown in the rows titled
66 "General Government" and "Public Safety" in the City's audited financial statements.
67 "Dated Date" means the date of issuance of the Note.
68 "Debt" means as of any date and without duplication, all of the following to the extent
69 that they are payable in whole or in part from any Legally Available Non-Ad Valorem Revenues:
70 (i) all obligations of the City for borrowed money or evidenced by bonds, debentures, notes or
71 other similar instruments; (ii) all obligations of the City as lessee under capitalized leases; and
72 (iii) all indebtedness of other persons to the extent guaranteed by, or secured by Legally
73 Available Non-Ad Valorem Revenues of the City.
74 "Finance Director" means the Finance Director of the City, or his or her successor.
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75 "Financial Advisor" means First Southwest Company, LLC.
76 "Fiscal Year" means the period commencing on October 1 of each year and ending on the
77 succeeding September 30, or such other consecutive 12-month period as may be hereafter
78 designated as the fiscal year of the City.
79 "FMLC" means the Florida Municipal Loan Council.
80 "Governing Body" means the Mayor and City Commission of the City, or its successor in
81 function.
82 "Holder" or "Noteholder" means the registered owner (or its authorized representative) of
83 the Note.
84 "Legally Available Non-Ad Valorem Revenues" means all revenues of the City derived
85 from any source whatsoever other than ad valorem taxation on real and personal property,
86 including, without limitation, investment income, which are legally available for the payment by
87 the City of debt service on the Note or other Non-Self-Supporting Revenue Debt, including,
88 without limitation, legally available non-ad valorem revenues derived from sources subject to a
89 prior pledge thereof for the payment of other obligations of the City and available after payment
90 of principal and interest on such other obligations, but excluding revenues derived from the
91 revenues of any enterprise fund of the City, except to the extent that revenues derived from such
92 sources have been deposited into the City's General Fund.
93 "Maximum Annual Debt Service" means, as of any particular date of calculation, the
94 largest Annual Debt Service in any Bond Year.
95 "Mayor" means the Mayor of the City or, in the Mayor's absence, the Vice Mayor of the
96 City, and such other person as may be duly authorized to act on the Mayor's behalf.
97 "Non-Self-Supporting Revenue Debt" means obligations evidencing indebtedness for
98 borrowed money, including the Note, (i) the primary security for which is provided by a
99 covenant of the City to budget and appropriate Legally Available Non-Ad Valorem Revenues of
100 the City for the payment of debt service on such obligations, or (ii) primarily secured or payable
101 from another source of funds, but with respect to which the City has also covenanted to budget
102 and appropriate Legally Available Non-Ad Valorem Revenues of the City for the payment of
103 debt service on such obligations, provided that obligations described in this clause (ii) shall only
104 be considered Non-Self-Supporting Revenue Debt to the extent the City has included in its
105 budget (by amendment or otherwise) the payment of such Legally Available Non-Ad Valorem
106 Revenues pursuant to such covenant to pay debt service on such obligations. "Non-Self-
107 Supporting Revenue Debt" shall expressly not include indebtedness payable from the revenues
1 08 of a utility system, or any other enterprise fund of the City, which are pledged to the payment of
109 such indebtedness.
110 "Note" means the City of South Miami, Florida Capital Improvement Revenue
111 Refunding Note, Series 2015, authorized to be issued by the City in the aggregate principal
112 amount not to exceed $5,000,000, the form of which is attached as Exhibit "A" hereto.
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113 "Ordinance" means this Ordinance, authorizing the issuance of the Note, as the same may
114 from time to time be amended, modified or supplemented.
115 "Permitted Lender" means any bank, trust company, savings institution or insurance
116 company that is engaged as a regular part of its business in making loans and authorized to do
117 business in. the State.
118 "Prior Loans" means, collectively, (i) the loan from the FMLC to the City pursuant to a
119 Loan Agreement dated as of November 15, 2001 between the City and FMLC, currently
120 outstanding in the principal amount of $1,610,000, and (ii) the loan from FMLC to the City
121 pursuant to a Loan Agreement dated as of May 1,2002 between the City and FMLC, currently
122 outstanding in the principal amount of $3,250,000.
123 "Refinanced Loans" means all or a portion of the Prior Loans being prepaid with the
124 proceeds of the Note, as determined by the City Manager to be in the best interest of the City in
125 order to achieve debt service savings.
126 "State" means the State of Florida.
127 Section 3. Authority for Ordinance. This Ordinance is enacted pursuant to the Act.
128 The City has ascertained and hereby determined that enactment of this Ordinance is necessary to
129 carry out the powers, purposes and duties expressly provided in the Act, that each and every
130 matter and thing as to which provision is made herein is necessary in order to carry out and
131 effectuate the purposes ofthe City in accordance with the Act and to carry out and effectuate the
132 plan and purpose of the Act, and that the powers of the City herein exercised are in each case
133 exercised in accordance with the provisions of the Act and in furtherance of the purposes of the
134 City.
13 5 Section 4. Ordinance to Constitute Contract. In consideration of the purchase and
136 acceptance of the Note by those who shall hold the same from time to time, the provisions of this
137 Ordinance shall be a part of the contract of the City with the Holder, and shall be deemed to be
13 8 and shall constitute a contract between the City and the Holder. The provisions, covenants and
139 agreements herein set forth to be performed by or on behalf of the City shall be for the benefit,
140 protection and security of the Holder in accordance with the terms hereof.
141 Section 5. Authority for Issuance of Note; Designation Under Code; Prepayment of
142 Refinanced Loans. Subject and pursuant to the provisions hereof, a note to be known as "City
143 of South Miami, Florida Capital Improvement Revenue Refunding Note, Series 2015" is hereby
144 authorized to be issued in an aggregate principal amount not to exceed Five Million Dollars
145 ($5,000,000) for the purpose of refinancing the Refinanced Loans and paying the costs of
146 issuance of the Note and of refinancing the Refinanced Loans.
147 The Note is hereby designated as a "qualified tax-exempt obligation" under Section
148 265(b)(3)(B) of the Code.
149 The prepayment of the Refinanced Loans is hereby authorized.
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150 Section 6. Description of Note; Assignment and Transfer of Note. The Note shall be
151 issued in one (I) typewritten certificate, shall be dated the Dated Date and shall mature on May
152 I, 2032. The Note shall bear interest from the Dated Date at a fixed interest rate, subject to
153 adjustment as provided in the Note, of2.80% per annum. Interest on the Note shall be calculated
154 on the basis of a 360 day year consisting of twelve thirty day months. Accrued interest on the
155 Note will be payable semiannually on May 1 and November 1 of each year, beginning on
156 November 1,2015. Principal of the Note will be payable in semiannual installments on May 1
157 and November 1 of each year, beginning November 1, 2015, as shall be set forth in the form of
158 Note attached as Exhibit "A" hereto. Additional details of the Note shall be as provided in
159 Exhibit "A" attached hereto.
160 The Note shall be in registered form, contain substantially the same terms and conditions
161 as set forth in Exhibit "A" hereto, shall be payable in lawful money of the United States of
162 America, and the principal thereof, interest thereon and any other payments thereunder shall be
163 payable by check, wire, draft or bank transfer to the Holder at such address as may be provided
164 in writing by such Holder to the Finance Director. So long as the Note shall remain outstanding,
165 the City shall maintain and keep books for the registration and transfer of the Note.
166 The Note may not be assigned or transferred except in whole and in a denomination of
167 not less than $100,000 to a Permitted Lender, with the prior written consent of the City. In no
168 event will the Note be assigned or transferred to any kind of trust.
169 Section 7. Execution of Note. The Note shall be executed in the name of the City by
170 the manual signature of the City Manager, the seal of the City shall be imprinted, reproduced or
171 lithographed on the Note, and the Note shall be attested to by the manual signature of the Clerk.
172 If any officer whose signature appears on the Note ceases to hold office before the delivery of
173 the Note, such signature shall nevertheless be valid and sufficient for all purposes. In addition,
174 the Note may bear the signature of, or may be signed by, such persons as at the actual time of
175 execution of the Note shall be the proper officers to sign the Note although at the date of the
176 Note or the date of delivery thereof such persons may not have been such officers.
177 Section 8. Note Mutilated, Destroyed, Stolen or Lost. If the Note is mutilated,
178 destroyed, stolen or lost, the City may, in its discretion (i) deliver a duplicate replacement Note,
179 or Oi) pay a Note that has matured or is about to mature. A mutilated Note shall be surrendered
180 to and canceled by the Clerk or its duly authorized agent. The Holder must furnish the City or its
181 agent proof of ownership of any destroyed, stolen or lost Note, post satisfactory indemnity,
182 comply with any reasonable conditions the City or its agent may prescribe, and pay the City's or
183 its agent's reasonable expenses.
184 Any such duplicate Note shall constitute an original contractual obligation of the City
185 whether or not the destroyed, stolen, or lost Note be at any time found by anyone, and such
186 duplicate Note shall be entitled to equal and proportionate benefits and rights as to lien on, and
187 source of and security for payment from, the funds pledged to the payment of the Note so
188 mutilated, destroyed, stolen or lost.
189 Section 9. Provisions for Prepayment. The Note may be prepaid prior to its maturity,
190 in whole, but not in part, as provided in the form of Note attached as Exhibit "A" hereto.
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191 Section 10. Note Not to be GeneralIndebtedness of the City. The Note shall not be or
192 constitute a general obligation or indebtedness of the City within the meaning of the Constitution
193 of the State, but shall be payable from and secured solely by the covenant of the City to budget
194 and appropriate Legally Available Non-Ad Valorem Revenues, in the manner and to the extent
195 herein and in the Note provided. No Holder shall ever have the right to compel the exercise of
196 the ad valorem taxing power of the City or taxation in any form on any real or personal property
197 to pay the Note, the interest thereon or any other amounts due thereunder, nor shall any Holder
198 be entitled to payment of such principal, interest or any other amounts due thereunder from any
199 funds of the City other than the Legally Available Non-Ad Valorem Revenues, all in the manner
200 and to the extent herein and in the Note provided. The Holders shall have no lien upon any real
201 or tangible personal property of the City.
202 Section 11. Covenant to Budget and Appropriate. The City hereby covenants to
203 budget and appropriate in its Annual Budget, by amendment if necessary, from Legally
204 Available Non-Ad Valorem Revenues in each Fiscal Year, sufficient moneys to pay the principal
205 of and interest on the Note and any other amounts due thereunder in such Fiscal Year, until the
206 Note is paid in full. Such covenant and agreement on the part of the City shall be cumulative to
207 the extent not paid, and shall continue until Legally Available Non-Ad Valorem Revenues or
208 other available funds in amounts sufficient to make all required payments shall have been
209 budgeted, appropriated and actually paid. Notwithstanding the foregoing covenant of the City,
210 the City does not covenant to maintain any services or programs now provided or maintained by
211 the City which generate Legally Available Non-Ad Valorem Revenues.
212 Such covenant to budget and appropriate does not create any lien upon or pledge of such
213 Legally Available Non-Ad Valorem Revenues nor does it preclude the City from pledging in the
214 future a particular source or sources of non-ad valorem revenues. Such covenant to budget and
215 appropriate Legally Available Non-Ad Valorem Revenues is subject in all respects to the
216 payment of obligations heretofore or hereafter entered into, including but not limited to the
217 payment of debt service on bonds and other debt instruments. However, the covenant to budget
218 and appropriate in its Annual Budget for the purposes and in the manner stated herein shall have
219 the effect of making available in the manner described herein Legally Available Non-Ad
220 Valorem Revenues and placing on the City a positive duty to budget and appropriate, by
221 amendment if necessary, amounts sufficient to meet its obligations hereunder; subject, however,
222 in all respects to the restrictions of Section 166.241 (3), Florida Statutes, which provides, in part,
223 that the governing body of each municipality make appropriations for each fiscal year which, in
224 anyone year, shall not exceed the amount to be received from taxation or other revenue sources;
225 and subject further, to the payment of services and programs which are for essential public
226 services affecting the health, welfare and safety of the inhabitants of the City or which are legally
227 mandated by applicable law.
228 Section 12. Operating Budget; Financial Statements. Before the first day of each
229 Fiscal Year, the Governing Body shall prepare, approve and adopt in the manner prescribed by
230 law, a detailed Annual Budget. Such Annual Budget shall, subject to Section 11 hereof, provide
231 for revenues sufficient to comply with the City's obligations hereunder, including any unsatisfied
232 obligations from prior Fiscal Years. The City shall annually provide to the Bank a copy of the
233 Annual Budget and the City's audited financial statements prepared in accordance with law, each
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234 within thirty (30) days of its completion and, in the case of the audited financial statements,
235 within 180 days of the end of each Fiscal Year.
236 Section 13. Issuance of Additional Non-Self Supporting Revenue Debt. Except with
237 respect to Non-Self-Supporting Revenue Debt issued to refund existing Non-Self-Supporting
238 Revenue Debt where the aggregate debt service of the refunding Non-Self-Supporting Revenue
239 Debt will not be greater than that for the Non-Self-Supporting Revenue Debt being refunded, the
240 City may incur additional Non-Self-Supporting Revenue Debt only if, as set forth in a certificate
241 of the Mayor or the City Manager executed prior to the issuance thereof, a copy of which shall
242 be provided to the Bank, the amount of Legally Available Non-Ad Valorem Revenues, after
243 deducting the Cost of Essential Services that are not supported by ad-valorem tax revenues,
244 equals or exceeds 1.25 times the Maximum Annual Debt Service in all future Bond Years on all
245 outstanding Debt and the Debt proposed to be issued. These calculations required above shall be
246 determined using the average of actual receipts for the prior two Fiscal Years based on the City's
247 audited financial statements.
248 For purposes of calculating the foregoing, if any Debt bears a rate of interest that is not
249 fixed for the entire term of the Debt (excluding any provisions that adjust the interest rate upon a
250 change in tax law or in the tax treatment of interest on the debt or upon a default), then the
251 interest rate on such Debt shall be assumed to be the higher of (a) the average rate of actual
252 interest borne by such Debt during the most recent complete month prior to the date of
253 calculation, and (b) (i) for Debt the interest on which is excluded from gross income of the
254 holders thereof for federal tax purposes, The Bond Buyer Revenue Bond Index last published in
255 the month preceding the date of calculation plus one percent, or (ii) for Debt the interest on
256 which is not excluded from the gross income of the holders thereof for federal tax purposes, the
257 yield on a U.S. Treasury obligation with a constant maturity closest to but not before the maturity
258 date of such Debt, as reported in Statistical Release H.l5 of the Federal Reserve on the last day
259 of the month preceding the date of issuance of such proposed Debt, plus three percent (3%);
260 provided, however, that if the City shall have entered into an interest rate swap or interest rate
261 cap or shall have taken any other action which has the effect of fixing or capping the interest rate
262 on such Debt for the entire term thereof, then such fixed or capped rate shall be used as the
263 applicable rate for the period of such.swap or cap, and provided further that if The Bond Buyer
264 Revenue Bond Index or Statistical Release H.l5 of the Federal Reserve is no longer available or
265 no longer contains the necessary data, such other comparable source of comparable data as
266 selected by the Bank shall be utilized in the foregoing calculations. For the purpose of
267 calculating the foregoing, "balloon indebtedness" (as defined in the immediately succeeding
268 sentence) shall be assumed to amortize over a period not to exceed 20 years in substantially
269 equal annual payments at the interest rate set forth in the instrument evidencing such Debt if the
270 interest rate is fixed and, if the interest rate is not fixed, at the rate calculated pursuant to the
271 immediately preceding sentence and any put or tender rights of a lender with respect to any Debt
272 shall be ignored and such Debt shall be assumed to mature as otherwise provided in the
273 instrument evidencing such Debt. "Balloon indebtedness" is any Debt twenty percent (20%) or
274 more of the principal amount of which comes due in any single Fiscal Year.
275 Section 14. Award of Note by Negotiated Sale. Because of the nature of the Note, the
276 maturity of the Note and the prevailing market conditions, and the recommendations of the
277 Financial Advisor, the negotiated sale of the Note to the Bank in substantial accordance with the
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278 Bank's proposal delivered to the City and dated April 15, 2015 (the "Bank's Proposal"), is
279 hereby found to be in the best interests of the City and, upon compliance with the requirements
280 of Section 218.385, Florida Statutes, authorized; provided, however, that the provisions of this
281 Ordinance and the Note shall control to the extent of any conflict with the Bank's Proposal.
282 Section 15. Modification, Amendment or Supplement. This Ordinance may be
283 modified, amended or supplemented by the City from time to time prior to the issuance of the
284 Note hereunder. Thereafter, no modification, amendment or supplement of this Ordinance, or of
285 any ordinance amendatory hereof or supplemental hereto, may be made without the consent in
286 writing of the Holder.
287 Section 16. Tax Compliance. Neither the City, nor any third party over whom the City
288 has control, will make any use of the proceeds of the Note or of the refinanced capital
289 improvements at any time during the term of the Note which would cause the Note (i) to be (a) a
290 "private activity bond" within the meaning of Section I 03(b )(1) of the Code, or (b) an "arbitrage
.291 bond" within the meaning of Section 103(b)(2) of the Code, or (ii) not to be a "qualified tax~
292 exempt obligation" within the meaning of Section 265(b )(3)(B) of the Code. The City covenants
293 throughout the term of the Note to comply with the requirements of the Code and to take all
294 actions necessary to maintain the exclusion from gross income for purposes of the Code of
295 interest on the Note and the status of the Note as a "qualified tax-exempt obligation" to the same
296 extent as on the date of issuance of the Note.
297 Section 17. Events of Defaultj Remedies.
298 A. Events of Default. Anyone or more of the following events shall be an
299 "Event of Default":
300 (i) the City shall fail to pay the principal of or interest on the Note
301 when due;
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(ii) the City shall (a) admit in writing its inability to pay its debts
generally as they become due, (b) file (or have filed against it and not dismissed within 90 days)
a petition in bankruptcy or take advantage of any insolvency act, (c) make an assignment for the
general benefit of creditors, (d) consent to the appointment of a receiver for itself or for the
whole or any substantial part of its property, or (e) be adjudicated a bankrupt; or
(iii) the City shall default in the due and punctual performance of any
of its covenants, conditions, agreements and provisions contained herein or in the Note, and such
default shall continue for thirty (30) days after written notice specifying such default and
requiring the same to be remedied shall have been given to the City by the Holder of the Note;
provided that such default shall not be an Event of Default if the City within such 30 day period
commences and carries out with due diligence to completion (although not necessarily within
such thirty (30) day period) such action as is necessary to cure the same.
B. Remedies on Default. If an Event of Default shall have occurred and be
continuing, the Holder may proceed to protect and enforce its rights hereunder by a suit, action
or special proceeding in equity or at law, by mandamus or otherwise, either for the specific
performance of any covenant or agreement contained herein or for enforcement of any proper
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318 legal or equitable remedy as such Holder shall deem most effectual to protect and enforce the
319 rights aforesaid.
320 No remedy herein conferred upon or reserved to the Holder is intended to be exclusive of
321 any other remedy or remedies, and each and every such remedy shall be cumulative, and shall be
322 in addition to every other remedy given hereunder or now or hereafter existing at law or in
323 equity.
324 No delay or omission of a Holder to exercise any right or power accruing upon any Event
325 of Default shall impair any such right or power or shall be construed to be a waiver of any such
326 Event of Default, or an acquiescence therein; and every power and remedy given by this article
327 may be exercised from time to time, and as often as may be deemed expeditious by a Holder.
328 Notwithstanding the foregoing, under no circumstances will the remedies for an Event of
329 Default include acceleration of the payment ofthe Note.
330 Section 18. General Authority. The officers and employees of the City are hereby
331 authorized and directed to take all other necessary actions and execute all necessary documents
332 to carry out the provisions of this Ordinance.
333 Section 19. Severability. If any one or more of the covenants, agreements or provisions
334 of this Ordinance should be held contrary to any express provision of law or contrary to the
335 policy of express law, though not expressly prohibited, or against public policy, or shall for any
336 reason whatsoever be held invalid, then such covenants shall be null and void and shall be
337 deemed separate from the remaining covenants, agreements or provisions of this Ordinance or of
338 the Note issued hereunder, which remaining covenants, agreements and provisions shall remain
339 in full force and effect.
340 Section 20. No Third-Party Beneficiaries. Except as herein otherwise expressly
341 provided, nothing in this Ordinance expressed or implied is intended or shall be construed to
342 confer upon any person, firm or corporation other than the City and the Holder from time to time
343 of the Note issued hereunder, any right, remedy or claim, legal or equitable, under or by reason
344 of this Ordinance or any provision hereof, this Ordinance and all its provisions being intended to
345 be and being for the sole and exclusive benefit of the City and the Holder from time to time of
346 the Note issued hereunder.
347 Section 21. Controlling Law; Officials of City Not Liable. All covenants, stipulations,
348 obligations and agreements of the City contained in this Ordinance and the Note shall be
349 covenants, stipulations, obligations and agreements of the City to the full extent authorized by
350 the Act and provided by the Constitution and laws of the State. No covenant, stipulation,
351 obligation or agreement contained in this Ordinance or the Note shall be a covenant, stipulation,
352 obligation or agreement of any present or future member, agent, officer or employee of the City
353 or the Governing Body in his or her individual capacity, and neither the members or officers of
354 the Governing Body nor any official executing the Note shall be liable personally on the Note or
355 shall be subject to any personal liability or accountability by reason of the issuance or the
356 execution of the Note by the City or such members thereof.
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010-8062-4827/4/ AM ERICAS
Ord. No. ___ _
1 Section 22. Repeal of Inconsistent Ordinances. Ordinance No. 18-12-2134 enacted
2 September 24, 2012 is hereby superseded and repealed. In addition, all other ordinances or parts
3 thereof in conflict herewith are, to the extent of such conflict, superseded and repealed.
4 Section 23. Effective Date. This Ordinance shall become effect immediately upon its
5 enactment.
6
7 PASSED AND ENACTED this __ day of ____ " 2015.
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ATTEST:
CITY CLERK
READ AND APPROVED AS TO FORM,
LANGUAGE, LEGALITY AND
EXECUTION THEREOF:
24 CITY ATTORNEY
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010-8062-4827/4/ AM ER ICAS
APPROVED:
MAYOR
COMMISSION VOTE:
Mayor Stoddard:
Vice Mayor Harris:
Commissioner Welsh:
Commissioner Liebman:
Commissioner Edmond:
10
382
383
384 REGISTERED
385 No. R-
EXIllBIT "A"
FORM OF NOTE
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF SOUTH MIAMI, FLORIDA
REGISTERED
$_---
386
387
388
389 CAPITAL IMPROVEMENT REVENUE REFUNDING NOTE, SERIES 2015
Interest Rate
2.80%
REGISTERED OWNER:
PRINCIPAL AMOUNT:
Maturity Date
May 1,2032
Date of
Original Issuance
____ ,,2015
__ -'-________ MILLION DOLLARS
390 KNOW ALL MEN BY THESE PRESENTS, that the City of South Miami, Florida, a
391 municipal corporation of the State of Florida (hereinafter called the "City") for value received,
392 hereby promises to pay to the Registered Owner identified above, or to registered assigns or legal
393 representatives, but solely from the revenues hereinafter mentioned, on the dates hereinafter
394 provided, the Principal Amount identified above, and to pay, solely from such revenues, interest
395 on the Principal Amount remaining unpaid from time to time, at the interest rate per annum set
396 forth herein (the "Note Rate"), until the entire Principal Amount has been repaid. Principal of
397 and interest on this Note will be paid by bank wire, check, draft or bank transfer delivered to the
398 Registered Owner hereof at such address as may be provided in writing by the Registered Owner
399 to the City no later than the close of business on the fifth Business Day (as defined in the
400 hereinafter described Ordinance), next preceding each interest payment date (the "Record
401 Date"). Interest on this Note shall be calculated on the basis of a 360 day year consisting of
402 twelve thirty day months.
403 Payments of accrued interest will be due on May 1 and November 1 of each year,
404 beginning November 1, 2015. Payments of principal on this Note will be due on May 1 and
405 November 1 of each year, beginning November 1,2015, in accordance with Schedule 1 attached
406 hereto.
407 Each date when principal and/or interest on this Note is due is a "Payment Date." If any
408 Payment Date is not a Business Day, the payment otherwise due on such Payment Date shall be
409 due on the next succeeding Business Day as if paid on such Payment Date.
410 Any payment of principal hereof or interest hereon not paid within ten (l0) days of when
411 due shall bear interest from the due date until paid at the lesser of (i) the Note Rate plus 2% per
412 annum or (ii) the maximum rate permitted by law.
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413 This Note is issued in the principal amount of $ to refinance the Refinanced
414 Loans (as defined in the Ordinance defined below), pursuant to the authority of and in full
415 compliance with the Constitution and laws of the State of Florida, including particularly Article
416 VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida Statutes and the
417 Charter of the City (collectively, the "Act"), and Ordinance No. , enacted by the Mayor
418 and City Commission of the City on ,2015 (the "Ordinance").
419 This Note and the interest hereon and any other amount due hereunder are secured by
420 City'S covenant to budget and appropriate in each Fiscal Year from its Legally Available Non-
421 Ad Valorem Revenues, sufficient moneys to pay the principal of and interest on this Note and
422 any other amounts due hereunder, until this Note has been paid in full, as more particularly set
423 forth in the Ordinance. Reference is hereby made to the Ordinance for the provisions, among
424 others, relating to the terms and security for the Note, the rights and remedies of the Registered
425 Owner of the Note and the limitations thereon, and the extent of and limitations on the City's
426 rights, duties and obligations, to all of which provisions the Registered Owner hereoffor himself
427 and his successors in interest assents by acceptance of this Note. All terms used herein in
428 capitalized form, unless otherwise defined herein, shall have the meanings ascribed thereto in the
429 Ordinance.
430 This Note has been designated by the City as a "qualified tax-exempt obligation" under
431 Section 265(b)(3)(B) of the Internal Revenue Code of 1986, as amended (the "Code").
432 If for any reason this Note loses its "qualified tax-exempt obligation" status under
433 Section 265(b)(3)(B) of the Code (an "Event ofBQ Loss"), this Note shall bear interest from the
434 earliest effective date of such Event of BQ Loss at the Non-BQ Rate (hereinbelow defined).
435
436 No Event of BQ Loss shall be deemed to occur unless the City has been given timely
437 written notice of such occurrence by the Registered Owner and, to the extent permitted by law,
438 an opportunity to participate in and seek, at the City's own expense, a final administrative
439 determination by the Internal Revenue Service or determination by a court of competent
440 jurisdiction (from which no further right of appeal exists) as to the occurrence of such Event of
441 BQ Loss; provided that the City, at its own expense, delivers to the Registered Owner an opinion
442 of bond counsel acceptable to such Registered Owner to the effect that such appeal or action for
443 judicial or administrative review is not without merit and there is a reasonable possibility that the
444 judgment, order, ruling or decision from which such appeal or action for judicial or
445 administrative review is taken will be reversed, vacated or otherwise set aside.
446 "Non-BQ Rate" shall mean, upon an Event of BQ Loss, the interest rate per armum that
447 shall provide the Registered Owner with the same after tax yield that the Registered Owner
448 would have otherwise received had the Event of BQ Loss not occurred, taking into account the
449 inability of the Registered Owner to deduct a portion of its carrying cost for this Note as a result
450 of such Event ofBQ Loss. The Registered Owner shall provide the City with a written statement
451 explaining the calculation of the Non-BQ Rate, which statement shall, in the absence of manifest
452 error, be conclusive and binding on the City.
453
454 If for any reason the interest on this Note becomes includable in the gross income of the
455 Registered Owner for Federal income tax purposes (an "Event of Taxability"), this Note shall
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OlO-8062-4827!4/AMERICAS
456 bear interest from the earliest effective date of such Event of Taxability at the Taxable Rate
457 (hereinbelow defined).
458 No Event of Taxability shall be deemed to occur unless the City has been given timely
459 written notice of such occurrence by the Registered Owner and, to the extent permitted by law,
460 an opportunity to participate in and seek, at the City's own expense, a final administrative
461 determination by the Internal Revenue Service or determination by a court of competent
462 jurisdiction (from which no further right of appeal exists) as to the occurrence of such Event of
463 Taxability; provided that the City, at its own expense, delivers to the Registered Owner an
464 opinion of bond counsel acceptable to such Registered Owner to the effect that such appeal or
465 action for judicial or administrative review is not without merit and there is a reasonable
466 possibility that .the judgment, order, ruling or decision from which such appeal or action for
467 judicial or administrative review is taken will be reversed, vacated or otherwise set aside.
468 "Taxable Rate" shall mean, upon an Event of Taxability, the interest rate per annum that
469 shall provide the Registered Owner with the same after tax yield that the Registered Owner
470 would have otherwise received had the Event of Taxability not occurred, taking into account the
471 increased taxable income of the Registered Owner as a result of such Event of Taxability. The
472 Registered Owner shall provide the City with a written statement explaining the calculation of
473 the Taxable Rate, which statement shall, in the absence of manifest error, be conclusive and
474 binding on the City.
475 THIS NOTE SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL DEBT OR
476 A PLEDGE OF THE FAITH AND CREDIT OF THE CITY, OR A DEBT OR PLEDGE OF
477 THE FAITH AND CREDIT OF THE STATE OF FLORIDA OR ANY POLITICAL
478 SUBDIVISION THEREOF WITHIN THE MEANING OF ANY CONSTITUTIONAL,
479 LEGISLATIVE OR CHARTER PROVISION OR LIMITATION, AND IT IS EXPRESSLY
480 AGREED BY THE REGISTERED OWNER OF THIS NOTE THAT SUCH REGISTERED
481 OWNER SHALL NEVER HAVE THE RIGHT, DIRECTLY OR INDIRECTLY, TO REQUIRE
482 OR COMPEL THE EXERCISE OF THE AD VALOREM TAXING POWER OF THE CITY
483 OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF FLORIDA OR
484 TAXATION IN ANY FORM ON ANY REAL OR PERSONAL PROPERTY FOR THE
485 PAYMENT OF THE PRINCIPAL OF, AND INTEREST ON THIS NOTE OR FOR THE
486 PAYMENT OF ANY OTHER AMOUNTS PROVIDED FOR IN THE ORDINANCE.
487 This Note shall be and have all the qualities and incidents of negotiable instruments under
488 the law merchant and the Uniform Commercial Code of the State of Florida, subject to the
489 assignment provisions contained herein and in the Ordinance.
490 It is further agreed between the City and the Registered Owner of this Note that this Note
491 and the indebtedness evidenced hereby shall not constitute a lien upon any real or tangible
492 personal property of or in the City. Neither the members of the governing body of the City nor
493 any person executing the Note shall be liable personally on the Note by reason of its issuance.
494 This Note may be prepaid by the City prior to its maturity, in whole, but not in part, on
495 any scheduled principal payment date without premium. .
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496 This Note may not be assigned by the Registered Owner except as provided in Section 6
497 of the Ordinance. Such assignment shall only be effective, and the City obligated to pay such
498 assignee, upon delivery to the Finance Director at the address set forth below of a written
499 instrument or instruments of assignment in the form provided herein, duly executed by the
500 Registered Owner or by his attorney-in-fact or legal representative, containing written
501 instructions as to the details of assignment of this Note, along with the social security number or
502 federal employer identification number of such assignee. In all cases of 'an assignment of this
503 Note the City shall at the earliest practical time enter the change of ownership in the registration
504 books; provided, however, the written notice of assignment must be received by the Finance
505 Director no later than the close of business on the fifth Business Day prior to a Payment Date in
506 order for the assignee to receive the interest and principal payment due on such Payment Date.
507 The City may conclusively rely on the authenticity of any Form of Assignment delivered to it in
508 accordance with this paragraph and accompanied by the original of the Note to which it relates.
509 The City may charge the Registered Owner for the registration of every such assignment of the
510 Note an amount sufficient to reimburse it for any tax, fee or any other goverumental charge
511 required to be paid, except for any such governmental charge imposed by the City, with respect
512 to the registration of such assignment, and may require that such amounts be paid before any
513 such assignment of the Note shall be effective.
514 Any payment or notice required to be given to the Bank hereunder shall be given to
515 Branch Banking and Trust Company at 5130 Parkway Plaza Boulevard, Building #9, Charlotte,
516 North Carolina 28217, Attention: Account Administration/Municipal, or such other address or
517 addresses as the Bank shall provide the City in writing. In the event of an assignment of this
518 Note, any payment or notice required to be given to the Registered Owner hereunder shall be
519 given to the Registered Owner at the address or addresses shown on the Form of Assignment
520 hereto, or such other address or addresses as the Registered Owner shall provide the City in
521 writing. Any notice required to be given to the City hereunder shall be given to the Finance
522 Director at 6130 Sunset Drive, South Miami, Florida 33143, or such other address or addresses
523 as the City shall provide the Bank or any future holder of this Note in writing
524 It is hereby certified and recited that all acts, conditions and things required to exist, to
525 happen, and to be performed precedent to and in the issuance of this Note exist, have happened
526 and, have been performed in regular and due form and time as required by the laws and
527 Constitution of the State of Florida applicable hereto, and that the issuance of the Note does not
528 violate any constitutional or statutory limitation or provision.
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529 IN WITNESS WHEREOF, the City has caused this Note to be executed in its name as of
530 the date hereinafter set forth.
531 The date of this Note is ,2015.
532 CITY OF SOUTH MIAMI, FLORIDA
533 (SEAL)
534
535
536 By: ___________ _
537 ATTEST: City Manager
538
539
540
541 By: ___________ _
542 City Clerk
543
544
545 READ AND APPROVED AS TO FORM,
546 LANGUAGE, LEGALITY AND
547 EXECUTION THEREOF:
548
549
550
551 By: ___________ _
552 City Attorney
553
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010-8062-4827/4/ AM ERICAS
554 FORM OF ASSIGNMENT
555 FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
556 the within Note and all rights
557 thereunder, and hereby irrevocably constitutes and appoints
558 attorney to transfer the within Note in the
559 books kept by the City for the registration thereof, with full power of substitution in the
560 premIses.
Dated:
SOCIAL SECURITY NUMBER OR
FEDERAL IDENTIFICATION NUMBER
OF ASSIGNEE
NOTICE: The signature of this assignment
must correspond with the name as it appears
upon the within Note in every particular, or
any change whatever.
561 [Form of Abbreviations]
562 The following abbreviations, when used in the inscription on the face of the within Note,
563 shall be construed as though they were written out in full according to the applicable laws or
564 regulations.
TEN COM -as tenants in common
TEN ENT -as tenants by the entireties
JT TEN -as joint tenants with the right of survivorship and not as tenants in common
UNIFORM TRANS MIN ACT -Custodian for
(Cust)
Under Uniform Transfers to Minors Act of ---=--:----
(State)
(Minor)
Additional abbreviations may also be used though not in the above list.
565 Name and address of assignee for payment and notice purposes
Notice: ___________ _ Payment: ____________ __
Date: Assignee: ____________ _
By: ________________________ __
Title: _______________________ __
566
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567
568
569
570
571
572
573
574
575
576
577
578
579
580
581
582
583
584
585
586
587
588
589
590
591
592
593
594
595
596
597
598
599
600
601
602
603
604
605
606
Payment Date
November 1, 2015
May 1,2016
November 1, 2016
May 1,2017
November 1, 2017
May 1,2018
November 1, 2018
May 1,2019
November I, 2019
May 1,2020
November I, 2020
May 1,2021
November 1, 2021
May 1,2022
November 1, 2022
May 1,2023
November 1, 2023
May 1,2024
November I, 2024
May 1,2025
November I, 2025
May 1, 2026
November I, 2026
May 1,2027
November I, 2027
May 1,2028
November I, 2028
May 1,2029
November 1, 2029
May 1,2030
November 1,2030
May 1, 2031
November 1,2031
May I, 2032
010-8062-4827/4/ AMERI CAS
SCHEDULE 1
Principal Amount Due
$
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