02-21-08 SpecialSouth Miami
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2001
MAYOR: Horace G. Feliu ACTING CITY MANAGER: Ajibola Balogun
VICE MAYOR: Brian D. Beasley CITY ATTORNEY: Luis Figueredo
COMMISSIONER: Randy G. Wiscombe CITY CLERK: Maria M. Menendez
COMMISSIONER: Velma Palmer
COMMISSIONER: jay Beckman
SPECIAL CITY COMMISSION AGENDA
City Commission Meeting
Meeting date: February 21, 2008 6130 Sunset Drive, South Miami, FL
Time: 6:00 PM
Next Regular Meeting date: March 4, 2008- Phone: (305) 663 -6340
Time: 7:30 PM
City of South Miami Ordinance No. 8 -06 -1876 requires all persons appearing in a paid
or remunerated representative capacity before the City Staff, Boards, Committees and
the City Commission, to fill out the appropriate form and file it with the City Clerk
prior to engaging in lobbying activities.
CALL TO ORDER:
A. Roll Call:
B. Invocation:
C. Pledge of Allegiance:
ITEMS (S) FOR THE COMMISSION'S CONSIDERATION:
ORDINANCE (S) FIRST READING
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI, FLORIDA, RELATING TO FINANCE;
AUTHORIZING A TERM LOAN; APPROVING THE FORM OF AND
AUTHORIZING THE EXECUTION OF,A PROMISSORY NOTE AND A
LOAN AGREEMENT WITH BANK OF AMERICA, N.A.; PROVIDING FOR
SEVERABILITY, ORDINANCES IN CONFLICT AND AN EFFECTIVE
DATE. 3/5
(City `Manager)
SPECIAL CITY COMMISSION 1
AGENDA - February 21, 2008
Adj ourn:nent
THE CITY HAS A SIGNIFICANT GOVERNMENTAL INTEREST IN
CONDUCTING EFFICIENT AND ORDERLY CONMXSSION MEETINGS.
SPEAKERS PLEASE TAKE NOTICE THAT SECTION 2 -2. 1 (K) (2)
OF THE CODE OF ORDINANCES PROVIDES THAT "ANY PERSON
MAKING PERSONAL IMPERTINENT, OR SLANDEROUS REMARKS OR
WHO SHALL BECOME BOISTEROUS WHILE ADDRESSING THE
CONMISSION SHALL BE FORTHWITH BARRED FROM FURTHER
AUDIENCE BEFORE THE COUNCIL BY THE PRESIDING OFFICER,
UNLESS PERMISSION TO CONTINUE.
PURSUANT TO FLA STATUTES 286.0105, "THE CITY HEREBY ADVISES THE PUBLIC THAT IF A PERSON DECIDES
TO APPEAL ANY DECISION MADE BY THIS BOARD, AGENCY OR COMMISSION WITH RESPECT TO ANY MATTER
CONSIDERED AT ITS MEETING OR HEARING, HE OR SHE WILL NEED A RECORD OF THE PROCEEDINGS, AND THAT
FOR SUCH PURPOSE, AFFECTED PERSON MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS
MADE WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. THIS
NOTICE DOES NOT CONSTITUTE CONSENT BY THE CITY FOR THE INTRODUCTION OR ADMISSION OR OTHERWISE
INADMISSIBLE OR IRRELEVANT EVIDENCE, NOR DOES IT AUTHORIZE CHALLENGES OR APPEALS NOT OTHERWISE
ALLOWED BY LAW.
SPECIAL CITY COMMISSION 2
AGENDA - February 21, 2008
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CITY COMMISSION
February 4, 2008
City Commission
c/o Maria M. Menendez, City Clerk
6130 Sunset Drive
City of South Miami 33143
Re: Calling a Special Meeting: Thursday, February 21, 2008
Honorable Members of the City Commission:
This is to notify all of you that I am hereby calling a Special Meeting of the City
Commission for Thursday, February 21, 2008 starting at 6:00 p.m., in the City
Commission Chambers. The purpose of this meeting is for the approval of a first reading
ordinance that remained under the "Unfinished Business" at the meeting of February 19tH
Said ordinance is a time - sensitive item relating to the parking garage and a promissory
note and loan agreement with Bank of America.
Sincerely,
Horace G4Feliu
Mayor
Cc: Yvonne Soler - McKinley, City Manager
Luis Figueredo, City Attorney
Attachment: Special meeting agenda; Draft Ordinance and backup
6130 Sunset Drive - South Miami, Florida 3143 -5093 - Tel: (305) 663 -6340 - Fax: (305) 663 -6348
CITY OF SOUTH MIAMI
INTER - OFFICE MEMORANDUM
South Miami
AII•AmedcaCit➢
1 I I I I®'
2001
To: The Honorable Mayor Feliu and Members of the City Commission
From: Eliza Rassi
Finance Director r
Date: February 21, 2008
Subject: Ordinance to authorize the City Manager to enter into a short term
loan agreement (bridge loan) with the Bank of America through Florida
League of Cities Municipal Loan Council to pay for the final construction
of the municipal parking garage project up until a loan from the FMLC `s
next bond issue can be secured.
Background During the November 27th 2007 Commission meeting a resolution
was approved to allow the City Manager to negotiate a bridge loan for the
completion of the Parking Garage Project, and as a result through the
Florida Municipal Loan Council Bank of America has provided us the
terms to comply with this need.
Ordinance: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO
FINANCE; AUTHORIZING A TERM LOAN: APPROVING
THE FORM OF AND AUTHORIZING THE EXECUTION OF A
PROMISSORY NOTE AND A LOAN AGREEMENT WITH
BANK OF AMERICA, N.A.; AND PROVIDING FOR
SEVERABILITY, ORDINANCES IN CONFLICT AND
EFFECTIVE DATE.
Backup Documentation:
❑ RESOLUTION 190 -07 -12575
❑ ORDINANCE
❑ LOAN AGREEMENT
I ORDINANCE No.
2
3 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION
4 OF THE CITY OF SOUTH MIAMI, FLORIDA, RELATING TO
5 FINANCE; AUTHORIZING A TERM LOAN: APPROVING
6 THE FORM OF AND AUTHORIZING THE EXECUTION OF A
7 PROMISSORY NOTE AND A LOAN AGREEMENT WITH
8 BANK OF AMERICA, N.A.; AND PROVIDING FOR
9 SEVERABILITY, ORDINANCES IN CONFLICT AND AN
10 EFFECTIVE DATE.
11
12 BE IT ORDERED BY THE CITY COMMISION OF THE CITY OF
13 SOUTH MIAMI, FLORIDA (the "Borrower ") that:
14
15 Section 1. Authority for this Ordinance. This Ordinance is adopted
16 pursuant to the Constitution and laws of the State of Florida.
17
18 Section 2. Definitions. Words and phrases used herein capitalized
19 form and not otherwise defined herein shall have the meanings ascribed hereto in
20 the Loan Agreement (hereinafter defined) and, in addition, the following words
21 and phrases shall have the following meanings when used herein:
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23 "Authorized Signatory" means , Mayor of the Borrower.
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25 "Loan Amount" means $1,000,000.00.
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27 Section 3. Authorization of Transaction. In order to obtain funds to
28 pay the costs of construction of a new municipal parking garage, the Borrower is
29 authorized to obtain a one -year term loan (the "Loan") from and borrow from
30 Bank of America, N.A. (the "Bank ") the amount of the Loan Amount. Because of
31 the characteristics of the transaction and the need for immediate funding, it is in
32 the best interest of the Borrower to obtain the loan through negotiation with the
33 Bank.
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35 Section 4. Loan Agreement and Promissory Note. The Borrower is
36 authorized to execute a Loan Agreement with the Bank in substantially the form
37 attached hereto as Exhibit A (the "Loan Agreement ") and to make the Promissory
38 Note in the form attached to the Loan Agreement, provided that the principal
39 amount of the Promissory Note may not exceed the Loan Amount. The forms and
40 terms of the Loan Agreement and Promissory Note are hereby approved by the
41 Borrower and the Authorized Signatory is authorized to execute the same, with
42 such changes as may be approved by the Authorized Signatory, such approval to
43 be conclusively evidenced by the execution thereof by the Authorized Signatory.
44
45 Section 5. Severability. If any provision of this Ordinance shall be
46 held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable in
47 any context, the same shall not affect any other provision herein or render any
48 other provision (or such provision in any other context) invalid, inoperative or
49 unenforceable to any extent whatever.
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Section 6. Applicable Provisions of the Law. This Ordinance shall be
governed by and construed in accordance with the laws of the State of Florida.
Section 7. Authorizations. All officials and employees of the
Borrower are authorized and empowered, collectively or individually, to take all
action and steps and to execute all instruments, documents, and contracts on
behalf of the Borrower that are necessary or desirable in connection with the
completion of the Loan.
Section 8. Repealer. All Ordinances or parts thereof in conflict
herewith are hereby repealed.
Section 9. Effective Date. This Ordinance shall take effect
immediately upon its enactment.
PASSED AND ADOPTED this _day of
1" Reading -
2 °d Reading-
2008.
ATTEST: APPROVED:
CITY CLERK
READ AND APPROVED AS TO FORM:
CITY ATTORNEY
MAYOR
Commission Vote:
Mayor Feliu:
Vice -Mayor Beasley:
Commissioner Wiscombe:
Commissioner Palmer:
Commissioner Beckman:
Exhibit A to Ordinance.
LOAN AGREEMENT
This LOAN AGREEMENT (the "Agreement ") is made and entered into as of the Closing
Date identified on Attachment B, and is by and between the a political subdivision of the State of
Florida identified on Attachment B hereto, and its successors and assigns (the "Borrower "), and
Bank of America, N.A., a national banking association, and its successors and assigns, as
holder(s) of the hereinafter defined Note (the "Bank ").
The parties hereto, intending to be legally bound hereby and in consideration of the mutual
covenants hereinafter contained, DO HEREBY AGREE as follows:
ARTICLE I
DEFINITION OF TERMS
Section 1.01 Definitions. The words and terms used in this Agreement shall have the
meanings as set forth in the recitals above and the following words and terms as used in this
Agreement shall have the following meanings:
"Agreement" shall mean this Loan Agreement and any and all modifications, alterations,
amendments and supplements hereto made in accordance with the provisions hereof.
"Bond Counsel" means an attorney -at -law or firm of such attorneys having expertise in the
legal aspects of the issuance of indebtedness by states and political subdivisions thereof.
"Borrower" is defined on Attachment B hereto.
"Business Day" means any day except any Saturday or Sunday or day on which the
Principal Office of the Bank is lawfully closed.
"Closing Date" means the date so indicated in the Note.
"Costs" means, with respect to the Project, any lawful expenditure of the Borrower which
meets the further requirements of this Agreement.
. "Event of Default" shall mean an event of default specified in Article VI of this
Agreement.
"Loan" shall mean the loan by the Bank to the Borrower contemplated hereby.
"Loan Amount" is identified on Attachment B.
"Note" means the Borrower's Promissory Note in the form attached hereto as Attachment
"A
"Notice Address" means,
As to the Borrower: As set forth on Attachment B
As to the Bank: Bank of America, N.A.
9000 Southside Boulevard
Building 100
Jacksonville, FL 32256
or to such other address as either parry may have specified in writing to the other using the
procedures specified in Section 7.06.
"Principal Office" means, with respect to the Bank, the office located at 9000 Southside
Boulevard, Building 100, Jacksonville, Florida, 32256, or such other office as the Bank may
designate to the Borrower in. writing.
"Project" means expenditures incurred by the Borrower not more than 60 days prior to the
date of this Agreement with respect to the construction of a new municipal parking garage.
"State" means the State of Florida.
Section 1.02 Titles and Headings. The titles and headings of the articles and sections of
this Agreement have been inserted for convenience of reference only and are not to be considered
a part hereof, shall not in any way modify or restrict any of the terms and provisions hereof, and
shall not be considered or given any effect in construing this Agreement or any provision hereof
or in ascertaining intent, if any question of intent should arise.
ARTICLE II
REPRESENTATIONS OF BORROWER
The Borrower represents and warrants to the Bank that:
Section 2.01 Powers of Borrower. The Borrower is a political subdivision of the type
identified on Attachment B hereto, duly organized and validly existing under the laws of the State.
The Borrower has the power to borrow the amount provided for in this Agreement, to execute and
deliver the Note and this Agreement, to secure the Note in the manner contemplated hereby and
to perform and observe all the terms and conditions of the Note and this Agreement on its part
to be performed and observed. The Borrower may lawfully borrow funds hereunder in order to
pay Costs of the Project.
Section 2.02 Authorization of Loan. The Borrower had, has, or will have, as the case
may be, at all relevant times, full legal right, power, and authority to execute this Agreement, to
make the Note, and to carry out and consummate all other transactions contemplated hereby, and
the Borrower has complied and will comply with all provisions of applicable law in all material
matters relating to such transactions. The Borrower has duly authorized the borrowing of the
amount provided for in this Agreement, the execution and delivery of this Agreement, and the
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making and delivery of the Note to the Bank and to that end the Borrower warrants that it will
take all action and will do all things which, it is authorized by law to take and to do in order to
fulfill all covenants on its part to be performed and to provide for and to assure payment of the
Note. The Note has been duly authorized, executed, issued and delivered to the Bank and.
constitutes legal, valid and binding obligation of the Borrower enforceable in accordance with the
terns thereof and the terms hereof, and is entitled to the benefits and security of this Agreement.
All approvals, consents, and orders of and filings with any governmental authority or agency
which would constitute a condition precedent to the issuance of the Note or the execution and
delivery of or the performance by the Borrower of its obligations under this Agreement and the
Note have been obtained or made and any consents, approvals, and orders to be received or filings
so made are in full force and effect.
Section 2.03 No Violation of Law or Contract. The Borrower is not in default in any
material respect under any agreement or other instrument to which it is a party or by which it may
be bound, the breach of which could result in a material and adverse impact on the financial
condition of the Borrower or the ability of the Borrower to perform its obligations hereunder and
under the Note. The making and performing by the Borrower of this Agreement and the Note will
not violate any applicable provision of law, and will not result in a material breach of any of the
terms of any agreement or instrument to which the Borrower is a party or by which the Borrower
is bound, the breach of which could result in a material and adverse impact on the financial
condition of the Borrower or the ability of the Borrower to perform its obligations hereunder and
under the Note.
Section 2.04 Pending or Threatened Litigation. There are no actions or proceedings
pending against the Borrower or affecting the.Borrower or, to the knowledge of the Borrower,
threatened, which, either in any case or in the aggregate, might result in any material adverse
change in the financial condition of the Borrower, or which questions the validity of this
Agreement or the Note or of any action taken or to be taken in connection with the transactions
contemplated hereby or thereby.
Section 2.05 Financial Information. The financial information regarding the Borrower
furnished to the Bank by the Borrower in connection with the Loan is complete and accurate, and
there has been no material and adverse change in the financial condition of the Borrower from that
presented in such information.
ARTICLE III
COVENANTS OF THE BORROWER
Section 3.01 Affirmative Covenants. For so long as any of the principal amount of or
interest on the Note is outstanding or any duty or obligation of the Borrower hereunder or under the
Note remains unpaid or unperformed, the Borrower covenants to the Bank as follows:
(a) Payment. The Borrower shall pay the principal of and the interest on the Note at the
time and place and in the manner provided herein and in the Note.
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(b) Use of Proceeds. Proceeds from the Note will be used only to pay costs of the Project
and to pay closing costs of the Loan.
(c) Notice of Defaults. The Borrower shall within ten (10) days after it acquires
knowledge thereof, notify the Bank in writing at its Notice Address upon the happening, occurrence,
or existence of any Event of Default, and any event or condition which with the passage of time or
giving of notice, or both, would constitute an Event of Default, and shall provide the Bank with such
written notice, a detailed statement by a responsible officer of the Borrower of all relevant facts and
the action being taken or proposed to be taken by the Borrower with respect thereto.
(d) Maintenance of Existence. The Borrower will take all reasonable legal action within
its control in order to maintain its existence until all amounts due and owing from the Borrower to
the Bank under this Agreement and the Note have been paid in full.
(e) Records. The Borrower agrees that any and all records of the Borrower with respect
to the Loan and the Project shall be open to inspection by the Bank or its representatives at all
reasonable times at the offices the Borrower.
(f) Financial Statements. The Borrower will cause an audit to be completed of its
books and accounts and shall furnish to the Bank audited year -end financial statements of the
Borrower certified by an independent certified public accountant to the effect that such audit has
been conducted in accordance with generally accepted auditing standards and stating whether such
financial statements present fairly in all material respects the financial position of the Borrower
and the results of its operations and cash flows for the periods covered by the audit report, all in
conformity with generally accepted accounting principles applied on a consistent basis, and on a
consolidated basis if applicable. The Borrower shall provide the Bank with the Borrower's audited
financial statements for each fiscal year ending on or after September 30, 2007 within 270 days
after the end thereof. The Borrower shall also provide the Bank with a copy of any management
letter received by the Borrower from its auditors within 30 days after receipt by the Borrower.
(g) Notice of Liabilities. The Borrower shall promptly inform the Bank in writing of
any actual or potential contingent liabilities or pending or threatened litigation of any amount that
could reasonably be expected to have a material and adverse effect upon the financial condition
of the Borrower or upon the ability of the Borrower to perform its obligation hereunder and under
the Note.
(h) Insurance. The Borrower shall maintain such liability, casualty and other insurance
as is reasonable and prudent for similarly situated governmental entities of the State of Florida.
(i) Compliance with Laws. The Borrower shall comply with all applicable federal,
state and local laws and regulatory requirements, the violation of which could reasonably be
expected to have a material and adverse effect upon the financial condition of the Borrower or
upon the ability of the Borrower to perform its obligation hereunder and under the Note.
M
0) Payment of Document Taxes. In the event the Note or this Agreement should be
subject to the excise tax on documents or the intangible personal property tax of the State, the
Borrower shall pay such taxes or reimburse the Bank for any such taxes paid by it.
Section 3.02 Negative Covenants. For so long as any of the principal amount of or interest
on the Note is outstanding or any duty or obligation of the Borrower hereunder or under the Note
remains unpaid or unperformed, the Borrower covenants to the Bank as follows:
(a) No Adverse Borrowings. The Borrower shall not issue or incur any indebtedness
or obligation if such would materially and adversely affect the ability of the Borrower to pay debt
service on the Note or any other amounts owing by the Borrower under this Agreement.
Section 3.03. Bank Fees and Expenses. The Borrower agrees to pay the fee of counsel to
the Bank in connection with the issuance of the Note in the amount of $2,500.00, said amounts to
be due and payable upon the issuance of the Note.
Section 3.04. Automatic Payment Procedure. The Borrower hereby authorizes the
Bank to automatically deduct from a bank account of the Borrower designated to the Bank the
amount of any payment of principal or interest due from the Borrower to the Bank under this
Agreement or the Note. If the funds in the account are insufficient to cover any payment, the Bank
shall not be obligated to advance funds to cover the payment. The Bank covenants that it shall not
debit the Borrower's account for any amount in excess of the principal and interest due from the
Borrower to the Bank as the same becomes due.
Section 3.05. Registration and Exchange of Note. The Note is owned by Bank of
America, N. A. The ownership of the Note may only be transferred, and the Borrower will
transfer the ownership of the Note, upon written request of the Bank specifying the name, address
and taxpayer identification number of the transferee, and the Borrower will keep a record setting
forth the identification of the owner of the Note.
Section 3.06. Note Mutilated, Destroyed, Stolen or Lost. In case the Note shall become
mutilated, or be destroyed, stolen or lost, the Borrower shall issue and deliver a new, in exchange
and in substitution for such mutilated Note, or in lieu of and in substitution for the Note
destroyed, stolen or lost and upon the Bank furnishing the Borrower proof of ownership thereof
and indemnity reasonably satisfactory to the Borrower and paying such expenses as the Borrower
may incur.
Section 3.07. Payment of Principal and Interest; Limited Obligation. The Borrower
promises that it will promptly pay the principal of and interest on the Note at the place, on the
dates and in the manner provided therein according to the true intent and meaning hereof and
thereof.
Section 3.08 Officers and Employees of the Borrower Exempt from Personal Liability.
No recourse under or upon any obligation, covenant or agreement of this Loan Agreement or the
Note or for any claim based hereon or thereon or otherwise in respect thereof, shall be had against
any officer (which includes elected and appointed officials), agent or employee, as such, of the
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Borrower past, present or future, it being expressly understood (a) that the obligation of the
Borrower under this Agreement and under the Note is solely a corporate one, (b) that no personal
liability whatsoever shall attach to, or is or shall be incurred by, the officers, agents, or
employees, as such, of the Borrower, or any of them, under or by reason of the obligations,
covenants or agreements contained in this Agreement or implied therefrom, and (c) that any and
all such personal liability of, and any and all such rights and claims against, every such officer,
agent, or employee, as such, of the Borrower under or by reason of the obligations, covenants or
agreements contained in this Agreement and under the Note, or implied therefrom, are waived
and released as a condition of, and as a consideration for, the execution of this Agreement and the
issuance of the Note on the part of the Borrower.
Section 3.09. Business Days. In any case where the due date of interest on or principal
of the Note is not a Business Day, then payment of such principal or interest need not be made
on such date but may be made on the next succeeding Business Day, provided that credit for
payments made shall not be given until the payment is actually received by the Bank.
ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Bank to lend hereunder are subject to the following conditions
precedent:
Section 4.01 Representations and Warranties. The representations and warranties set
forth in this Agreement and the Note are and shall be true and correct on and as of the date
hereof.
Section 4.02 No Default. On the date hereof the Borrower shall be in compliance with
all the terms and provisions set forth in this Agreement and the Note on its part to be observed
or performed, and no Event of Default nor any event that, upon notice or lapse of time or both,
would constitute such an Event of Default, shall have occurred and be continuing at such time.
Section 4.03 Supporting Documents. On or prior to the date hereof, the Bank shall have
received the following supporting documents, all of which shall be satisfactory in form and
substance to the Bank (such satisfaction to be evidenced by the purchase of the Note by the Bank):
(a) The opinion of the attorney for the Borrower, regarding the due authorization,
execution, delivery, validity and enforceability of this Agreement and the Note;
(b) Such additional supporting documents as the Bank may reasonably request.
'a•
ARTICLE V
FUNDING THE LOAN
Section 5.01 The Loan. The Bank hereby agrees to Loan to the Borrower on the date
hereof the amount of the Loan Amount, to be evidenced by the Note, to provide funds to finance
the Costs of the Project upon the terms and conditions set forth in this Agreement. The Borrower
agrees to repay the principal amount borrowed plus interest thereon, upon the terms and
conditions set forth in this Agreement and the Note.
Section 5.02 Description and Payment Terms of the Note. To evidence the Loan, the
Borrower shall issue and deliver to the Bank the Note in the form attached hereto as Exhibit A.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 General. An "Event of Default" shall be deemed to have occurred under
this Agreement if:
(a) The Borrower shall fail to make any payment of the principal of or interest on the
Loan when the same shall become due and payable, whether by maturity, by acceleration at the
discretion of the Bank as provided for in Section 6.02, or otherwise; or
(b) The Borrower shall default in the performance of or compliance with any term or
covenant contained in this Agreement and the Note, other than a term or covenant a default in the
performance of which or noncompliance with which is elsewhere specifically dealt with, which
default or non - compliance shall continue and not be cured within thirty (30) days after (i) notice
thereof to the Borrower by the Bank, or (ii) the Bank is notified of such noncompliance or should
have been so notified pursuant to the provisions of Section 3.01(c) of this Agreement, whichever
is earlier; or
(c) Any representation or warranty made in writing by or on behalf of the Borrower
in this Agreement or the Note shall prove to have been false or incorrect in any material respect
on the date made or reaffirmed; or
(d) The Borrower admits in writing its inability to pay its debts generally as they
become due or files a petition in bankruptcy or makes an assignment for the benefit of its creditors
or consents to the appointment of a receiver or trustee for itself, or
(e) The Borrower is adjudged insolvent by a court of competent jurisdiction, or it is
adjudged a bankrupt on a petition in bankruptcy filed by or against the Borrower, or an order,
judgment or decree is entered by any court of competent jurisdiction appointing, without the
consent of the Borrower, a receiver or trustee of the Borrower or of the whole or any part of its
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property, and if the aforesaid adjudications, orders, judgments or decrees shall not be vacated or
set aside or stayed within ninety (90) days from the date of entry thereof, or
(f) The Borrower shall file a petition or answer seeking reorganization or any
arrangement under the federal bankruptcy laws or any other applicable law or statute of the United
States of America or the State; or
(g) The Borrower shall default in the due and punctual payment or performance of
covenants related to any indebtedness of the Borrower or under any obligation for the payment
of money to the Bank or any other subsidiary or affiliate of Bank of America Corporation.
Section 6.02 Effect of Event of Default.
Except as otherwise provided in the Note, immediately and without notice, upon the
occurrence of any Event of Default, the Bank may declare all obligations of the Borrower under
this Agreement and the Note to be immediately due and payable without further action of any kind
and upon such declaration the Note and the interest accrued thereon shall become immediately due
and payable. In addition, and regardless whether such declaration is or is not made, the Bank may
also seek enforcement of, and exercise all remedies available to it under any applicable law.
ARTICLE VII
MISCELLANEOUS
Section 7.01 No Waiver: Cumulative Remedies. No failure or delay on the part of the
Bank in exercising any right, power, remedy hereunder or under the Note shall operate as a
waiver of the Bank's rights, powers and remedies hereunder, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further exercise thereof, or the
exercise of any other right, power or remedy hereunder or thereunder. The remedies herein and
therein provided are cumulative and not exclusive of any remedies provided by law or in equity.
Section 7.02 Amendments. Changes or Modifications to the Agreement. This Agreement
shall not be amended, changed or modified except in writing signed by the Bank and the
Borrower. The Borrower agrees to pay all of the Bank's costs and reasonable attorneys' fees
incurred in modifying and/or amending this Agreement at the Borrower's request or behest.
Section 7.03 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same Agreement, and, in making proof of
this Agreement, it shall not be necessary to produce or account for more than one such
counterpart.
Section 7.04 Severability. If any clause, provision or section of this Agreement shall be
held illegal or invalid by any court, the invalidity of such clause, provision or section shall not
affect any other provisions or sections hereof, and this Agreement shall be construed and enforced
am
to the end that the transactions contemplated hereby be effected and the obligations contemplated
hereby be enforced, as if such illegal or invalid clause, provision or section had not been
contained herein.
Section 7.05 Term of Agreement. Except as otherwise specified in this Agreement, this
Agreement and all representations, warranties, covenants and agreements contained herein or
made in writing by the Borrower in connection herewith shall be in full force and effect from the
date hereof and shall continue in effect until as long as the Note is outstanding.
Section 7.06 Notices. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing and shall be deemed to
have been duly given when received if personally delivered; when transmitted if transmitted by
telecopy, electronic telephone line facsimile transmission or other similar electronic or digital
transmission method (provided customary evidence of receipt is obtained); the day after it is sent,
if sent by overnight common carrier service; and five days after it is sent, if mailed, certified
mail, return receipt requested, postage prepaid. In each case notice shall be sent to the Notice
Address.
Section 7.07 Applicable Law; Venue. This Agreement shall be construed pursuant to
and governed by the substantive laws of the State. The parties waive any objection to venue in any
judicial proceeding brought in connection herewith lying in Duval County, Florida.
Section 7.08 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the successors in interest and permitted assigns of the parties. The
Borrower shall have no rights to assign any of its rights or obligations hereunder without the prior
written consent of the Bank.
Section 7.09 No Third Party Beneficiaries. It is the intent and agreement of the parties
hereto that this Agreement is solely for the benefit of the parties hereto and no person not a party
hereto shall have any rights or privileges hereunder.
Section 7.10 Attorneys Fees. To the extent legally permissible, the Borrower and the
Bank agree that in any suit, action or proceeding brought in connection with this Agreement or
the Note (including any appeal(s)), the prevailing party shall be entitled to recover costs and
attorneys' fees from the other parry.
Section 7.11 Entire Agreement. Except as otherwise expressly provided, this Agreement
and the Note embody the entire agreement and understanding between the parties hereto and
supersede all prior agreements and understandings relating to the subject matter hereof.
Attachments A and B are a part hereof.
Section 7.12 Further Assurances. The parties to this Agreement will execute and
deliver, or cause to be executed and delivered, such additional or further documents, agreements
or instruments and shall cooperate with one another in all respects for the purpose of out the
transactions contemplated by this Agreement.
in
Section 7.13 Waiver of Jury Trial. (a) This Section 7.13 concerns the resolution of any
controversies or claims between the parties, whether arising in contract, tort or by statute, that arise
out of or relate to: (i) this Agreement (including any renewals, extensions or modifications); or (ii)
any loan document or other document related to this Agreement (collectively a "Claim "). For the
purposes of this arbitration provision only, the term "parties" shall include any parent corporation,
subsidiary or affiliate of the Bank involved in the servicing, management or administration of any
obligation described or evidenced by this Agreement.
(b) At the request of any party to this Agreement, any Claim shall be resolved by binding
arbitration in accordance with the Federal Arbitration Act (Title 9, U.S. Code) (the "Arbitration
Act "). The Arbitration Act will apply even though this Agreement provides that it is governed by
the law of a specified state. The arbitration will take place on an individual basis without resort to
any form of class action.
(c) Arbitration proceedings will be determined in accordance with the Arbitration Act, the then -
current rules and procedures for the arbitration of financial services disputes of the American
Arbitration Association or any successor thereof ( "AAA "), and the terms of this Section. In the event
of any inconsistency, the terms of this paragraph shall control. If AAA is unwilling or unable to (i)
serve as the provider of arbitration or (ii) enforce any provision of this arbitration clause, any party
to this Agreement may substitute another arbitration organization with similar procedures to serve
as the provider of arbitration.
(d) The arbitration shall be administered by AAA and conducted in Miami, Florida. All Claims
shall be determined by one arbitrator; however, if Claims exceed Five Million Dollars ($5,000,000),
upon the request of any party, the Claims shall be decided by three arbitrators. All arbitration
hearings shall commence within ninety (90) days of the demand for arbitration and close within
ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty
(30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may
extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s)
shall provide a concise written statement of reasons for the award. The arbitration award may be
submitted to any court having jurisdiction to be confirmed, judgment entered and enforced.
(e) The arbitrator(s) will give effect to statutes of limitation in determining any Claim and may
dismiss the arbitration on the basis that the Claim is barred. For purposes of the application of the
statute of limitations, the service on AAA under applicable AAA rules of a notice of Claim is the
equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether
a Claim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall have the power
to award legal fees pursuant to the terms of this Agreement.
(f) This Section does not limit the right of any parry to: (i) exercise self -help remedies, such as
but not limited to, setoff, (ii) initiate judicial or non judicial foreclosure against any real or personal
property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to
obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or
appointment of a receiver, or additional or supplementary remedies.
-10-
(g) The filing of a court action is not intended to constitute a waiver of the right of any party,
including the suing parry, thereafter to require submittal of the Claim to arbitration.
(h) By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right
they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way
to limit this agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably
and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This
provision is a material inducement for the parties entering into this Agreement. This Section 7.13
concerns the Ordinance of any controversies or claims between the Borrower and the Bank, whether
arising in contract, tort or by statute, that arise out of or relate to this Agreement or the Note
(collectively a "Claim "). The parties irrevocably and voluntarily waive any right they may have to
a trial by jury in respect of any Claim. This provision is a material inducement for the parties
entering into this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective between
them as of the date of first set forth above.
CITY OF SOUTH MIAMI, FLORIDA
By:
Name:
Title: Mayor
BANK OF AMERICA, N.A.
By: _
Name:
Title:
-11-
Attachment A to Loan Agreement.
PROMISSORY NOTE
KNOW ALL MEN BY THESE PRESENTS that the undersigned maker (the "Borrower "), apolitical
subdivision created and existing pursuant to the Constitution and the laws of the State of Florida, for value
received, promises to pay from the sources hereinafter provided, to the order of Bank of America, N.A. or
registered assigns (hereinafter, the "Bank "), the principal sum of $1,000,000.00 or such lesser amount as shall
be outstanding hereunder, together with interest on the principal balance outstanding at the rate per annum
equal to the Applicable Rate (as hereinafter defined) based upon a year of 360 days for the actual number
of days elapsed.
Principal of and interest on this Note are payable in immediately available funds constituting lawful
money of the United States of America at such place as the Bank may designate to the Borrower.
The Applicable Rate is the sum of 1.76% plus the LIBOR Rate.
The Borrower shall pay the Bank the entire unpaid principal balance, together with all accrued and
unpaid interest hereon, in full on March _, 2009 (the "Maturity Date ").
All payments by the Borrower pursuant to this Note shall apply first to accrued interest, then to other charges
due the Bank, and the balance thereof shall apply to the principal sum due.
As used in this Note,
(1) The LIBOR Rate is a fluctuating rate of interest equal to the rate per annum equal
to the British Bankers Association LIBOR Rate (`BBA LIBOR "), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as selected by the Bank from
time to time) as determined for each banking day at approximately 11:00 a.m. London time two (2)
London Banking Days prior to the date in question, for U.S. Dollar deposits (for delivery on the first
day of such interest period) with a one month term, as adjusted from time to time in the Bank's sole
discretion for reserve requirements, deposit insurance assessment rates and other regulatory costs.
If such rate is not available at such time for any reason, then the rate for that period will be
determined by such alternate method as reasonably selected by the Bank. A "London Banking Day"
is a day on which banks in London are open for business and dealing in offshore dollars.
The principal of and interest on this Note may be prepaid at the option of the Borrower in whole or
in part at any time without prepayment premium or penalty.
Upon the occurrence of an Event of Default (as defined in the Loan Agreement) then the Bank may
declare the entire debt then remaining unpaid hereunder immediately due and payable; and in any such
default and acceleration, the Borrower shall also be obligated to pay as part of the indebtedness evidenced
by this Note, all costs of collection and enforcement hereof, including such fees as may be incurred on appeal
or incurred in any proceeding under bankruptcy laws as they now or hereafter exist, including specifically
but without limitation, claims, disputes and proceedings seeking adequate protection or relief from the
automatic stay. If any payment hereunder is not made within fifteen (15) days after it is due, then the
Borrower shall also be obligated to pay as a part of the indebtedness evidenced by this Note a late payment
fee in the amount of 4% of delinquent payment, which late payment shall be due and payable immediately.
Interest at the maximum lawful rate per annum shall be payable on the entire principal balance owing
hereunder from and after the occurrence of and during the continuation of a default described in the
preceding paragraph, irrespective of a declaration of maturity.
The Borrower to the extent permitted by law hereby waives presentment, demand, protest and notice
of dishonor.
This Note is issued in conjunction with a Loan Agreement, dated of even date herewith between the
Borrower and the Bank (the "Loan Agreement ") and is subject to all the terms and conditions of the Loan
Agreement.
All terms, conditions and provisions of the Ordinance and Loan Agreement are by this reference
thereto incorporated herein as a part of this Note. Terms used herein in capitalized form and not otherwise
defined herein shall have the meanings ascribed thereto in the Ordinance.
This Note may be exchanged or transferred but only as provided in the Loan Agreement.
It is hereby certified, recited and declared that all acts, conditions and prerequisites required to exist,
happen and be performed precedent to and in the execution, delivery and the issuance of this Note do exist,
have happened and have been performed in due time, form and manner as required by law, and that the
issuance of this Note is in full compliance with and does not exceed or violate any constitutional or statutory
limitation.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in its name as of the
date hereinafter set forth.
The date of this Promissory Note is March_, 2008.
CITY OF SOUTH MIAMI, FLORIDA
By:
Name:
Title: Mayor
2
ATTACHMENT B
to
LOAN AGREEMENT
between
BANK OF AMERICA, N.A.
and
CITY OF SOUTH MIAMI, FLORIDA
1.Name of Borrower: City of South Miami, Florida
2. Type of Political Subdivision: [XXX] Municipality
3.Notice Address of Borrower:
4. Loan Amount:$ 1,000,000.00
5. Closing Date: March _, 2008
RESOLUTION NUMBER:
190 -07 -12575
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CI'T'Y OF SOUTH MIAMI, FLORIDA, RELATING TO FINANCE;
AUTHORIZING THE CITY MANAGER TO NEGOTIATE A BRIDGE
LOAN FOR AN' AMOUNT NOT TO EXCEED $1,000,000 NET AND A
PERMANENT LOAN FOR AN AMOUNT NOT TO EXCEED $1,000,000
NET FOR THE COMPLETION OF CONSTRUCTION OF A PUBLIC
PARKING GARAGE LOCATED AT S.W. 73" STREET FOR
REFINANCING THE PROPERTY WHICH CONSTITUTES MARIA
RICHMAN PROPERTIES CONTRIBUTION TO THE PROJECT; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on October ll� 2007 the Mayor and City Commission approved Resolution no.
169 -07 -12554 authorizing the City Manager to pay $300,000 from its Undesipated Fund
Contingency Cash Reserve; and
WHEREAS, and parking garage project is near completion and the City desires not to
delay it any further; and
WHEREAS, the Mayor an City Commission authorized the City Manger to seek a loan form the
Florida League of Cities in an amount of $1,000,000 and reimburse the undesignated contingency
$300,000 and the remainder to be used for completion of the parking; and
WHEREAS, it is in the best interest of the City to secure a bridge loan as soon as possible.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF SOUTH MIAMI, FLORIDA:
1. Section 1. The City Manager and the City Attorney are authorized to make application to
the Florida Municipal Loan Council and to negotiate the interest rate and the terms and conditions for
a bridge loan and a permanent loan for the purposes and the amounts stated in the "Whereas" clauses.
The loan documents shall be presented to the Mayor and the City. Commission and shall not take
effect until approved ed by the City Commission a required by the city charter
2. Section 3. This resolution shall take effect immediately upon approval.
PASSED AND ADOPTED thisday of 2007.
ATTEST:
CITY CLERK
CIT5Y�A�CORNIBY
APPROVED:
MAYOR
Commission Vote:
5-0
Mayor Feliu:
Yea
Vice -Mayor Wiscombe:
Yea
Commissioner Birts:
Yea
Commissioner Palmer: Yea
Commissioner Beckman: Yea