99-23043 RESO
RESOLUTION NO. 99-23043
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA (THE "CITY") AUTHORIZING THE
CITY TO BORROW AN AMOUNT NOT TO EXCEED $1,400,000 FROM
COLONIAL BANK, FOR A PERIOD OF FIVE (5) YEARS AT AN INTEREST
RATE NOT TO EXCEED FOUR AND SIX-TENTHS PERCENT (4.6%) PER
ANNUM, FOR THE PURPOSE OF FINANCING THE 41ST STREET
PUBLIC AREA BEAUTIFICATION PROJECT; PLEDGING TO THE
PAYMENT OF SAID NOTE ONE TWELFTH (1/12) OF THE ADDITIONAL
ONE PERCENT (1 %) RESORT TAX, APPROVED BY THE VOTERS OF
THE CITY ON NOVEMBER 3, 1992, AND LEVIED AND COLLECTED BY
THE CITY PURSUANT TO CHAPTER 67-930, LAWS OF FLORIDA, ACTS
OF 1967, AS AMENDED, AND ORDINANCE NO. 93-2829 (CODIFIED IN
SEC. 102-307 OF THE MIAMI BEACH CODE), ON A SUBORDINATED
BASIS, AND COVENANTING TO ANNUALLY BUDGET AND
APPROPRIA TE FUNDS FROM LEGALL Y AVAILABLE NON-AD
VALOREM REVENUES TO REPAY SUCH NOTE IN THE EVENT THAT
THE PROCEEDS OF SUCH PORTION OF THE RESORT TAX ARE
INSUFFICIENT THEREFOR; DELEGATING AUTHORITY TO THE
MANAGER AND THE FINANCE DIRECTOR TO NEGOTIATE THE FINAL
PROVISIONS OF SUCH LOAN; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, 41 st Street is a main gateway to the City and is the primary entrance for tourists
arriving from Miami International Airport; and
WHEREAS, the beautification of 41 st Street will enhance tourism, as well as the quality of
life for residents of the City, by improving the appearance of the main thoroughfare through the
Middle Beach area; and
WHEREAS, in September 1995, a master plan for 41 st Street was completed by the Curtis
and Rogers Design Studio, Inc. and the Savino and Miller Design Studio following an extensive
community planning process; and
WHEREAS, in May 1996, the City Commission appropriated $5 million for the
Beautification of 41 st Street (the "Project"); and
WHEREAS, in June 1997, the City Commission approved an agreement with Consul-Tech
Engineering, Inc. for architecture and engineering services; and
WHEREAS, the Finance and Citywide Projects Committee has reviewed the plan and has
recommended that Phase I and Phase II of the Project be implemented and that the appropriation for
such project be reduced to $1,727,250; and
WHEREAS, the Finance and Citywide Projects Committee also directed that a financing
strategy for such project be developed; and
WHEREAS, on June 17, 1998, the Mayor and City Commission adopted Resolution No. 98-
22789, authorizing the Administration to pursue a bank loan from Colonial Bank to finance the cost
of Phase I and Phase II of the Project; and
WHEREAS, on July 15, 1998, the Mayor and City Commission adopted Resolution No. 98-
22859, authorizing the City to borrow an amount not to exceed $1,400,000 from the Bank, for a
period of five (5) years, at an interest rate not to exceed four and sixty one-hundredths percent
(4.60%) per annum; and
WHEREAS, the Administration has entered into negotiations with Colonial Bank in order
to procure said loan; and
WHEREAS, as a result of that negotiation, it is now necessary and desirable to amend the
terms of such loan.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
Section 1. The matters set out in the foregoing recitals are true and correct, and they are
hereby incorporated as a portion of this Resolution.
Section 2. The City is hereby authorized to borrow an amount not to exceed $1,400,000
from Colonial Bank, for a period of five (5) years, at an interest rate not to exceed four and six-tenths
percent (4.6%) per annum; which amount shall be used solely to pay the costs of implementing Phase
I and Phase II of the Project. The security to be pledged for such loan shall be one twelfth (1/12) of
the additional one percent (1 %) of Resort Tax, approved by the voters of the City on November 3,
1992, and levied and collected by the City pursuant to Chapter 67-930, Laws of Florida, Acts of
1967, as amended, and Ordinance No. 93-2829 (codified in Sec. 102-307 of the Miami Beach Code);
provided, however, that such pledge shall be subordinate to any present or future bonds or other
obligations to which the Resort Tax may be pledged. In the event that such pledged revenues are,
at any time, insufficient to pay the principal of, and interest on, the loan, the City is hereby
authorized to covenant and agree in the loan agreement, attached hereto and hereinafter referred to
as the "Loan Agreement," to be entered into in connection with such loan, to budget and appropriate
in its annual budget, by amendment, if necessary, from non-ad valorem revenues lawfully available
in the then current fiscal year, amounts sufficient to pay the principal of and interest on such loan
coming due in such fiscal year, until paid in full. Such covenant to budget and appropriate funds
shall be subject to the terms and conditions set forth in the Loan Agreement attached hereto. The
Mayor is hereby authorized and directed to execute the Loan Agreement and a promissory note in
substantially the form attached as Exhibit "A" to the Loan Agreement in connection with the loan
and deliver the same to Colonial Bank.
2
Section 3. The Mayor, City Clerk, Manager, City Attorney and Finance Director are
hereby authorized and directed to do all things and execute all documents necessary to carry out the
intent of this Resolution, including, without limitation, engaging the City's bond counsel and
financial advisor to assist in the negotiation and execution of the loan.
Section 4.
This Resolution shall supersede Resolution No. 98-22859.
Section 5.
This Resolution shall take effect immediately upon its adoption.
PASSED and ADOPTED this 20th day of
January
,1999.
wA
MA YOR
ATTEST:
~r;~
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
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Ity A omey
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F:\A TTO\lEVL\BONDSICOLONIAl\BOND3.RES
Janulry 12, 1999 (10:2J.m)
3
:;ITY OF MIAMI BEACH
;ITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
ltp:\\cLm iam i-beach. fl. us
TO:
FROM:
SUBJECT:
COMMISSION MEMORANDUM NO. ~
Mayor Neisen O. Kasdin and
Members of the City C
DATE: January 20,1999
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA (THE "CITY") AUTHORIZING THE
CITY TO BORROW AN AMOUNT NOT TO EXCEED $1,400,000 FROM
COLONIAL BANK, FOR A PERIOD OF FIVE (5) YEARS AT AN INTEREST
RATE NOT TO EXCEED FOUR AND SIX-TENTHS PERCENT (4.6%) PER
ANNUM, FOR THE PURPOSE OF FINANCING THE 41ST STREET
PUBLIC AREA BEAUTIFICATION PROJECT; PLEDGING TO THE
PAYMENT OF SAID NOTE ONE TWELFTH (1/12) OF THE ADDITIONAL
ONE PERCENT (1%) RESORT TAX, APPROVED BY THE VOTERS OF
THE CITY ON NOVEMBER 3, 1992, AND LEVIED AND COLLECTED BY
THE CITY PURSUANT TO CHAPTER 67-930, LAWS OF FLORIDA, ACTS
OF 1967, AS AMENDED, AND ORDINANCE NO. 93-2829 (CODIFIED IN
SEe. 102-307 OF THE MIAMI BEACH CODE), ON A SUBORDINATED
BASIS, AND COVENANTING TO ANNUALL Y BUDGET AND
APPROPRIA TE FUNDS FROM LEGALL Y A V AILABLE NON-AD
VALOREM REVENUES TO REPAY SUCH NOTE IN THE EVENT THAT
THE PROCEEDS OF SUCH PORTION OF THE RESORT TAX ARE
INSUFFICIENT THEREFOR; DELEGATING AUTHORITY TO THE
MANAGER AND THE FINANCE DIRECTOR TO NEGOTIATE THE FINAL
PROVISIONS OF SUCH LOAN; AND PROVIDING AN EFFECTIVE DATE.
RECOMMENDATION:
Approve the Resolution.
BACKGROUND:
On July 15, 1998, the Mayor and City Commission approved Resolution No. 98-22859.
which authorized the Administration to pursue a loan from Colonial Bank (the "Bank") to finance
the cost of Phases I and II of the 4 pI Street Beautification Project (the "Project"). Resolution No.
98-22859 authorized a loan of not to exceed $1,400,000 for a period of five (5) years at an interest
rate not to exceed 4.60% per annum.
AGENDA ITEM ~
DATE~
Page 2
The Commission authorized a pledge of the Middle Beach portion of the so-called "quality of life"
funds derived from the Resort Tax (that is, one twelfth (1112) of the additional one percent (1%) of
Resort Tax, approved by the voters of the City on November 3, 1992,. and levied and collected by
the City pursuant to Chapter 67-930, Laws of Florida, Acts of 1967, as amended, and Ordinance No.
93-2829 (codified in Sec. 102-307 of the Miami Beach Code) (hereinafter referred to as the "Pledged
Revenues"), as security for the loan.
Early in the negotiations, the Bank raised an issue with respect to whether its cost of carrying
the loan would be deductible on its income taxes under the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder (the "Code"). After consultation with the
City's Bond Counsel, the City Attorney's Office advised the Bank that the loan would not be a
"qualified small issue" that would receive such treatment. The Bank had to re-approve the loan since
its interest rate was predicated on treatment as a "qualified small issue."
The Administration continued negotiations with Colonial Bank and the City Attorney's
Office prepared a loan agreement with regard to the proposed loan, and distributed a draft of the loan
agreement to the Bank and its counsel.
Upon review of the loan agreement, the Bank's counsel advised the City that the pledge of
the Pledged Revenues was insufficient as security for the loan, because it was subject to dilution in
the event that the City issues Resort Tax Bonds, or Tax Increment Bonds utilizing the Resort Tax
as a secondary pledge. After reviewing the matter and considering several financing options, the
Administration and the Bank agreed that a covenant to budget and appropriate from any legally
available non ad valorem revenues, in the event that the Pledged Revenues are insufficient to pay
the debt service on the loan,would suffice for its purposes.
ANALYSIS:
Addition of the covenant to budget and appropriate from any legally available non ad
valorem revenues, in the event that the Pledged Revenues are insufficient to pay the debt service on
the loan,requires approval by the Mayor and City Commission so that the Administration and the
City Attorney's Office can close the loan.
CONCLUSION:
The addition of a covenant to budget and appropriate from any legally available non ad
valorem revenues, in the event that the Pledged Revenues are insufficient to pay the debt service on
the loan, will not adversely affect the City and will allow the Bank to move forward with the closing
of the loan. The Mayor and City Commission should approve the Resolution attached hereto.
MD/LUme
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F'S(-"tlIn:\1I"CI)r.l)~L\I,\1rM
RESOLUTION NO.
96-21975
A RESOLUTION OF THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA AUTHORIZING THE CREATION OF A
WORK ORDER FOR THE 41ST STREET
BEAUTIFICATION PROJECT; APPROPRIATING
$5 MILLION FOR THE PROJECT FROM THE
QUALITY OF LIFE FUNDS FOR MID-BEACH; AND
AUTHORIZING THE ISSUANCE OF A REQUEST
FOR LETTERS OF INTEREST FOR
ARCHITECTURAL/ENGINEERING AND
LANDSCAPE DESIGN SERVICES FOR THE
PREPARATION OF PLANS FOR
IMPLEMENTATION OF THE PROJECT'S MASTER
PLAN.
\VHEREAS, in November, 1994, a selection committee of nine persons selected the firm
of Curtis and Rogers Design Studio to develop the Master Plan for the beautification of 41st Street
(Project); and
\VHEREAS, the firm designed the Master Plan and received the input of the community in
three meetings on the Plan; and
\VHEREAS, the community has endorsed the Master Plan and recommended it to the Mayor
and City Commission; and
\VHEREAS, the Capital Improvements/Finance Committee has reviewed the Plan and its
funding from a portion of the quality oflife funds to be allocated from the additional I % Resort Tax.
NOW, THEREFORE, BE IT RESOL YED BY THE MAYOR AND CITY COMlVIISSION OF
THE CITY OF MIAlVII BEACH, FLORIDA, as follows:
1. The Administration is hereby authorized to create a \vork order to be called "4 I st Street
Beautification Project".
2. 55 million (54 million for the Project and $1 million for anticipated interest costs) is to be
appropriated from the quality of life funds to be authorized for the Mid-Beach Community for the
repayment of a loan; provided, hO\,vever, that the expenditures be bid separately and must come back
to the Mayor and City Commission for specific approval.
3. The Administration is authorized to issue a Request for Letters of Interest for
architectural/engineering and landscape design services for the Project.
PASSED AND ADOPTED THIS 1st
DAY OF
Attest:
po Lu-tcr P~L-~
City Clerk
FORM APPROVED
!.egal nw
By/?V~ './~
Date )//)-~{'
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
CITY OF MIAMI BEACH
OFFICE OF THE CITY MANAGER
TELEPHONE: (305) 673-7010
FAX: (305) 673-nS2
COMMISSION MEMORANDUM NO.
~ 53-9l.o
May 1, 1996
To:
Mayor Seymour Gelber and
Members of the City Commission
From:
Jose Garcia-Pedrosa fI
City Manager
I,
Authorization for thJ{ssuance of a RFLI for Architectual/Engineering Services
and Appropriation of$5 million for the Beautification of 41st Street
Subject:
Administrative Recommendation
The Administration recommends that the Mayor and City Commission adopt the resolution.
Background
The City of Miami Beach issued a Request for Letters oflnterest (RFLI No. 138-93/04) on August
19, 1994 seeking professional landscape architectural services of firms to prepare design
development documents and other related architectural services for projects where the construction
budget exceeded $500,000.
A nine (9) member selection committee composed of residents, landscape architects and City staff
interviewed nine (9) interested firms on November 18, 1994 and recommended Curtis and Rogers
Design Studio, Inc. for the 41st Street Middle Beach Beautification Project.
Curtis and Rogers Design Studio, Inc. and their sub-consultants Savino & Miller Design Studio, Inc.
worked with the City Administration, the Middle Beach Steering Committee, business OMlers,
tenants and residents to develop a streetscape master plan for the 41st Street Middle Beach
Beautification Project. To ensure that the community was given the opportunity to provide their
input into the planning process. three community meetings were conducted. These meetings were
held on April 4 and 26 and May 16, 1995. Throughout the planning process the architect team
worked closely with the City Administration, the Middle Beach Partnership and all other interested
individuals so that the master plan, when completed, would be supported by the Administration and
the community to the Commission. The final community meeting was held on June 1, 1995 at which
AGENDA
ITEM
RLE
c: 1_ 0/_
the fmal master plan was presented. The plan was endorsed by the business community, property
owners and residents who recommended that the master plan be implemented.
The 41st Street Association presented the master plan for the beautif!cation of 41st Street to the
Capital Improvements/Finance Committee. The Committee forwarded the plan to the Commission
who approved the plan in concept. The Administration is now ready to create the work order for the
project, appropriate the necessary funds and request the authorization to issue a RFLI for
architects/engineers and landscape designers for the development of the construction docwnents to
implement the master plan.
Analvsis
The $5 million ($4 million for the Project and $1 million in anticipated interest costs) for this project
will be appropriated from the quality of life funds for Mid-Beach from the additional 1 % resort tax.
It is anticipated that the City will seek a bank loan for the project and pledge a portion of these
quality of life funds for the repayment of that loan. The Administration anticipates that the loan can
be repaid with an allocation of 50% of the quality of life funds for Mid-Beach over six years.
Conclusion
As this maste-r plan has received tht: support of the Middle Beach community, the business owners
on 41st Street, property owners and residents, the Project should move forward and the RFLI should
be issued; and funds will be available from the quality of life funds allocated to the Mid-Beach area,
the resolution and project should be approved.
JGP/RJN/KS
the above and aforegoin8 is a
1 hereby certify ~ ~.._~# I set my band and
of In WitneSS UJIl;;l~ c;
::~/~of~Uw-' 109 71.
CITY CLERK.
) . -.
BY /i!.w:~ k.. ~~
~C DEPUTY (Seal)
Not to Exceed $1,294,000
City of Miami Beach, Florida
Subordinate Resort Tax Revenue Note, Series 1999
(41st Street Beautification Project)
TRANSCRIPT OF PROCEEDINGS
The closing was held on March 24, 1999, at 10:00 A.M. at the City of Miami Beach City Hall,
1700 Convention Center Drive, Miami Beach, Florida 33139.
I. PARTIES TO THE TRANSACTION:
Issuer: CITY OF MIAMI BEACH, FLORIDA
Neisen O. Kasdin
. Nancy Liebman
Simon Cruz
David Dermer
Susan Gottlieb
Martin Shapiro
Jose Smith
Mayor
CommissionerNice Mayor
Commissioner
Commissioner
Commissioner
Commissioner
Commissioner
City Manager
City Clerk
City Finance Director
City Attorney
Financial Advisor
Purchaser of Bonds
Bond Counsel
Counsel to the Purchaser
Sergio Rodriguez
Robert Parcher
Patricia D. Walker
Murray H. Dubbin
Dain Rauscher
Colonial Bank
Squire Sanders & Dempsey, L.L.P.
Neil S. Rollnick, Esq.
II. DOCUMENTS:
A. ..~' Certified copies of Resolution Nos. 96-21975 and 99-23043.
B. .-"'" Loan Agreement
C. ..-"" General Certificate of the Issuer
D. -....... Tax Compliance Certificate
E. ..".- Cross-Receipt
F. _Investment Letter
G._ IRS Form 8038-G
H. - Notice of Sale
I. ~ State of Florida Division of Bond Finance Forms BF-2003 and BF-2004
J. - Negotiated Sale Disclosure Statement and Truth in Bonding Statement
K. - Specimen Note
L. - Opinion of the City Attorney
M.'-' Opinion of Bond Counsel
':\A TTOUV\.\IIONDI'COlOH&ALICLO!UNQ3.DOC
RESOLUTION NO. 99-23043
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA (THE "CITY") AUTHORIZING THE
CITY TO BORROW AN AMOUNT NOT TO EXCEED $1,400,000 FROM
COLONIAL BANK, FOR A PERIOD OF FIVE (5) YEARS AT AN INTEREST
RATE NOT TO EXCEED FOUR AND SIX-TENTHS PERCENT (4.6%) PER
ANNUM, FOR THE PURPOSE OF FINANCING THE 41ST STREET
PUBLIC AREA BEAUTIFICATION PROJECT; PLEDGING TO THE
PAYMENT OF SAID NOTE ONE TWELFTH (1/12) OF THE ADDITIONAL
ONE PERCENT (1%) RESORT TAX, APPROVED BY THE VOTERS OF
THE CITY ON NOVEMBER 3, 1992, AND LEVIED AND COLLECTED BY
THE CITY PURSUANT TO CHAPTER 67-930, LAWS OF FLORIDA, ACTS
OF 1967, AS AMENDED, AND ORDINANCE NO. 93-2829 (CODIFIED IN
SEC. 102-307 OF THE MIAMI BEACH CODE), ON A SUBORDINATED
BASIS, AND COVENANTING TO ANNUALL Y BUDGET AND
APPROPRIA TE FUNDS FROM LEGALL Y A V AILABLE NON-AD
VALOREM REVENUES TO REPAY SUCH NOTE IN THE EVENT THAT
THE PROCEEDS OF SUCH PORTION OF THE RESORT TAX ARE
INSUFFICIENT THEREFOR; DELEGATING AUTHORITY TO THE
MANAGER AND THE FINANCE DIRECTOR TO NEGOTIATE THE FINAL
PROVISIONS OF SUCH LOAN; At'\TD PROVIDING AN EFFECTIVE DATE.
WHEREAS, 41 st Street is a main gateway to the City and is the primary entrance for tourists
arriving from Miami International Airport; and
WHEREAS, the beautification of 41 st Street will enhance tourism, as well as the quality of
life for residents of the City, by improving the appearance of the main thoroughfare through the
Middle Beach area; and
WHEREAS, in September 1995, a master plan for 41st Street was completed by the Curtis
and Rogers Design Studio, Inc. and the Savino and Miller Design Studio following an extensive
community planning process; and
WHEREAS, in May 1996, the City Commission appropriated $5 million for the
Beautification of 41 st Street (the "Project"); and
WHEREAS, in June 1997, the City Commission approved an agreement with Consul-Tech
Engineering, Inc. for architecture and engineering services; and
WHEREAS. the Finance and Citywide Projects Committee has reviewed the plan and has
recommended that Phase I and Phase II of the Project be implemented and that the appropriation for
such project be reduced to $1,727,250; and
WHEREAS, the Finance and Citywide Projects Committee also directed that a financing
strategy for such project be developed; and
WHEREAS, on June 17, 1998, the Mayor and City Commission adopted Resolution No. 98-
22789, authorizing the Administration to pursue a bank loan from Colonial Bank to finance the cost
of Phase I and Phase II of the Project; and
WHEREAS, on July 15, 1998, the Mayor and City Commission adopted Resolution No. 98-
22859, authorizing the City to borrow an amount not to exceed $1,400,000 from the Bank. for a
period of five (5) years, at an interest rate not to exceed four and sixty one-hundredths percent
(4.60%) per annum; and
WHEREAS, the Administration has entered into negotiations with Colonial Bank in order
to procure said loan; and
WHEREAS, as a result of that negotiation, it is now necessary and desirable to amend the
terms of such loan.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
Section 1. The matters set out in the foregoing recitals are true and correct, and they are
hereby incorporated as a portion of this Resolution.
Section 2. The City is hereby authorized to borrow an amount not to exceed $1,400,000
from Colonial Bank, for a period oftive (5) years, at an interest rate not to exceed four and six-tenths
percent (4.6%) per annum; which amount shall be used solely to pay the costs of implementing Phase
I and Phase II of the Project. The security to be pledged for such loan shall be one twelfth (1112) of
the additional one percent (1%) of Resort Tax, approved by the voters of the City on November 3,
1992, and levied and collected by the City pursuant to Chapter 67-930, Laws of Florida, Acts of
1967, as amended, and Ordinance No. 93-2829 (codified in Sec. 102-307 of the Miami Beach Code);
provided, however, that such pledge shall be subordinate to any present or future bonds or other
obligations to which the Resort Tax may be pledged. In the event that such pledged revenues are,
at any time, insufficient to pay the principal of, and interest on, the loan, the City is hereby
authorized to covenant and agree in the loan agreement, attached hereto and hereinafter referred to
as the "Loan Agreement," to be entered into in connection with such loan, to budget and appropriate
in its annual budget, by amendment, if necessary, from non-ad valorem revenues lawfully available
in the then current fiscal year, amounts sufficient to pay the principal of and interest on such loan
coming due in such fiscal year, until paid in full. Such covenant to budget and appropriate funds
shall be subject to the terms and conditions set forth in the Loan Agreement attached hereto. The
Mayor is hereby authorized and directed to execute the Loan Agreement and a promissory note in
substantially the form attached as Exhibit "A" to the Loan Agreement in connection with the loan
and deliver the same to Colonial Bank.
2
Section 3. The Mayor, City Clerk, Manager, City Attorney and Finance Director are
hereby authorized and directed to do all things and execute all documents necessary to carry out the
intent of this Resolution, including, without limitation, engaging the City's bond counsel and
financial advisor to assist in the negotiation and execution of the loan;
Section 4.
This Resolution shall supersede Resolution No. 98-22859.
Section S.
This Resolution shall take effect immediately upon its adoption.
PASSED and ADOPTED this 20th day of
January
,1999.
Y/JA
MA YOR
ATTEST:
~rf~
APPROVED AS TO
FORM & lANGUAGE
& FOR EXECUTION
~ !!i.~
.fy A omey
lh(J/
Datil
'.....TTO'UYlI8ONDS'COlOHlAl\lONQ3.RES
~12,1_(tO:z:s...'
3
.'
~ITY OF MIAMI BEACH
ITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
tp:\\ci.miami-beach. f1.us
COMMISSION MEMORANDUM NO. ~
TO:
Mayor Neisen O. Kasdin and
Mem bers of the City C
DATE: January 20. 191)9
FROM: Sergio Rodriguez
City Manager
Murray H. Du it, \X\:t~e~
City Attornev / ~ ~
. ., \
SUB.JECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSIO~ OF THE
CITY OF MIAMI BEACH, FLORIDA (THE "CITY") AUTHORIZING THE
CITY TO BORRO\V AN AMOUNT NOT TO EXCEED SI,~OO,OOO FROM
COLONIAL BANK, FOR A PERIOD OF FIVE (5) YEARS AT At'\f INTEREST
R.\TE NOT TO EXCEED FOUR AND SIX-TENTHS PERCENT (~.6%) PER
ANNUM, FOR THE PURPOSE OF FINANCING THE ~lST .STREET
PUBLIC AREA BEAUTIFICATION PROJECT; PLEDGING TO THE
PA Y~.'1ENT OF SAID NOTE ONE TWELFTH (1112) OF THE ADDITIONAL
ONE PERCENT (1 %) RESORT TAX, APPROVED BY THE VOTERS OF
THE CITY ON No\rEMBER 3, 1992, AND LEVIED AND COLLECTED BY
THE CITY PURSUANT TO CHAPTER 67-930, LAWS OF FLORIDA, ACTS
OF 1967, AS A.MENDED, AND ORDINANCE NO. 93-2829 (CODIFIED IN
SEe. 102-307 OF THE MIAMI BEACH CODE), ON A SUBORDINATED
BASIS, AND COVENANTING TO ANNUALLY BUDGET AND
APPROPRIATE FUNDS FROM LEGALLY AVAILABLE NON-AD
VALOREl\ol REVENUES TO REPAY SUCH NOTE IN THE EVENT THAT
THE PROCEEDS OF SUCH PORTION OF THE RESORT TA..X ARE
INSUFFICIENT THEREFOR; DELEGATING AUTHORITY TO THE
MANAGER AND THE FINANCE DIRECTOR TO NEGOTIATE THE FINAL
PROVISIONS OF SUCH LOAN; Al'\fD PROVIDING At'\f EFFECTIVE DATE.
RECOMMENDATION:
Approve the Resolution.
BACKGROUND:
On July 15. 1998. the Mayor and City CO,mmission approved Resolution No. 98-22859.
\vhich authorized the Administration to pursue a loan from Colonial Bank (the "Bank") to finance
the cost of Phases I and II of the 4151 Street Beautitication Project (the "Project"). Resolution No.
98-22859 authorized a loan of not to exceed '51.400.000 for a period offi'.e (5) ye:lrs at an interest
rate not to exceed 4.60% per annum.
AGE~DAITE~I~
DATE / - 20- is.
Page 2
The Commission authorized a pledge of the Middle Beach portion of the so-called "quality of life"
funds derived from the Resort Tax (that is, one twelfth (1/12) of the additional one percent (1%) of
Resort Tax. approved by the voters of the City on November 3. I 992...and levied and collected by
the City pursuant to Chapter 67-930. Laws of Florida, Acts of 1967. as amended. and Ordinance No.
93-2829 (codified in Sec. 102-307 of the Miami Beach Code) (hereinafter referred to as the "Pledged
Revenues"). as security for the loan.
Early in the negotiations. the Bank raised an issue with respect to \vhether its cost of carrying
the loan would be deductible on its income taxes under the rnternal Revenue Code of 1986. as
amended, and the regulations promulgated thereunder (the "Code"). After consultation with the
City's Bond Counsel. the City Attorney's Office advised the Bank that the loan would not be a
"qualified small issue" that would receive such treatment. The Bank had to re-approve the loan since
its interest rate was predicated on treatment as a "qualified small issue."
The Administration continued negotiations with Colonial Bank and the City Attorney's
Office prepared a: loan agreement with regard to the proposed loan. and distributed a draft of the loan
agreement to the Bank and its counsel.
Upon review of the loan agreement. the Bank's counsel advised the City that the pledge of
the Pledged Revenues was insufficient as security for the loan. because it was subject to dilution in
the event that the City issues Resort Tax Bonds, or Tax Increment Bonds utilizing the Resort Tax
as a secondary pledge. After reviewing the matter and considering several financing options, the
Administration and the Bank agreed that a covenant to budget and appropriate from any legally
available non ad valorem revenues, in the event that the Pledged Revenues are insufficient to pay
the debt service on the loan,would suffice for its purposes.
ANALYSIS:
Addition of the covenant to budget and appropriate from any legally available non ad
valorem revenues, in the event that the Pledged Revenues are insufficient to pay the debt service on
the loan,requires approval by the Mayor and City Commission so that the Administration and the
City Attorney's Office can close the loan.
CONCLUSION:
The addition of a covenant to budget and appropriate from any legally available non ad
valorem revenues. in the event that the Pledged Revenues are insufficient to pay the debt service on
the loan. will not adversely affect the City and will allow the Bank to move forward with the closing
of the loan. The Mayor and City Commission should approve the Resolution attached hereto.
MD/LL/me
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LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is made as of the24th day of March, 1999,
by and between the City of Miami Beach ("City") and Colonial Bank (the "Bank").
WITNESSETH
WHEREAS, 41 st Street is a main gateway to the City and is the primary entrance for
tourists arriving from Miami International Airport; and
WHEREAS, the beautification of 41st Street will enhance tourism, as well as the quality of
life for residents of the City, by improving the appearance of the main thoroughfare through the
Middle Beach area; and
WHEREAS, in September 1995, a master plan for 41 st Street was completed by the Curtis
and Rogers Design Studio, Inc. and the Savino and Miller Design Studio following an extensive
community planning process; and
WHEREAS, on May 1, 1996, the Mayor and City Commission adopted Resolution No. 96-
21975, which, among other things, appropriated $5 million for the Beautification of 41 st Street (the
"Project"); and
WHEREAS, on June 4, 1997, the Mayor and City Commission adopted Resolution No. 97-
22407, approving an agreement with Consul-Tech Engineering, Inc. for architecture and
engineering services; and
WHEREAS, the Finance and Citywide Projects Committee has reviewed the plan and has
recommended that Phase I and Phase II of the Project be implemented and that the appropriation
for such project be reduced to $1,727,250; and
WHEREAS, the Finance and Citywide Projects Committee also directed that a financing
strategy for such project be developed; and
WHEREAS, on June 17,1998, the Mayor and City Commission adopted Resolution No. 98-
22789, authorizing the Administration to pursue a bank loan from the Bank to finance the cost of
Phase I and Phase II of the Project; and
WHEREAS, on July 15, 1998, the Mayor and City Commission adopted Resolution No. 98-
22859, authorizing the City to borrow an amount not to exceed $1,400,000 from the Bank, for a
period of five (5) years, at an interest rate not to exceed four and sixty one-hundredths percent
(4.6%) per annum; and
WHEREAS, on January 20, 1999, the Mayor and City Commission adopted Resolution No.
99-23043, superseding the aforesaid Resolution No. 98-22859; and
WHEREAS, the Bank has agreed to make such a loan to the City; and
WHEREAS, the City and the Bank desire to set forth herein the details of such loan.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained, it is agreed by the parties hereto as follows:
Section 1. Incorporation of Recitals. The matters set out in the foregoing recitals are
true and correct, and they are hereby incorporated as a portion of this Agreement.
Section 2.
Definitions. As used herein, unless the context otherwise requires:
"Act" means, as applicable, the City Charter of Miami Beach, Chapter 166, Florida Statutes,
and other applicable provisions of law.
"Annual Budget" means the annual budget prepared by the City for each Fiscal Year in
accordance with Section 14. below and in accordance with the laws of the State of Florida.
"Bank" means Colonial Bank.
"Business Day" means any day which is not a Saturday, Sunday or legal holiday in Miami-
Dade County, Florida.
"Chief Financial Officer" means the chief financial officer of the City as defined in Section
218.403, Florida Statues.
"City" means the City of Miami Beach, Florida, a public body corporate and politic of the
State of Florida.
"Clerk" means the Clerk or any Deputy Clerk of the City.
"Code" means the Internal Revenue Code of 1986, as amended, including the applicable
regulations of the Department of the Treasury (including applicable final regulations, temporary
regulations and proposed regulations), the applicable rulings of the Internal Revenue Service
(including published Revenue Rulings and private letter rulings) and applicable court decisions.
"Cost of the Project" means with respect to the Project, all items of cost authorized by the
Act, including the costs of issuance of the Note.
"Dated Date" means the date of issuance of the Note.
"Draw Receipt" means Schedule 2 attached to the Note, which Schedule 2, when
completed and executed, shall evidence the receipt of each draw of proceeds of the Note.
"Fiscal Year" means the period commencing on October 1 of each year and ending on the
succeeding September 30, or such other consecutive 12-month period as may be hereafter
designated as the fiscal year of the City pursuant to general law.
"Governing Body" means the Mayor and City Commission of the City, or its successor in
function.
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"Initial Purchaser" means the Bank.
"Mayor" means the Mayor of the City and such other person as may be duly authorized to
act on his or her behalf.
"Non-Ad Valorem Revenues" means all revenues of the City derived from any source
other than ad valorem taxation on real or personal property, which are legally available to make the
payments required under this Resolution.
"Noteholder" or "Holder" means the registered owner (or its authorized representative) of
the Note.
"Note" means the Subordinate Resort Tax Revenue Note, Series 1999 (41st Street
Beautification Project), authorized to be issued hereunder in an aggregate principal amount not to
exceed $1,294,000.
"Noteholder" or "Holder" means the registered owner (or its authorized representative) of
the Note.
"Pledged Revenues" means one twelfth (1/12) of the additional one percent (1 %) Resort
Tax, approved by the voters of the City on November 3,1992, and levied and collected by the City
pursuant to Chapter 67-930, Laws of Florida, Acts of 1967, as amended, and Ordinance No. 93-
2829 (codified in Sec. 102-307 of the Miami Beach Code).
"Project" means Phases I and II of the 41 st Street Beautification Project, as more
particularly described in Resolution No. 96-21975.
"Resolution" means Resolution No. 99-23043, adopted by the Mayor and City Commission
on January 20, 1999.
"State" means the State of Florida.
Section 3. Authority for Agreement. The Loan Agreement is being entered into
pursuant to the provisions of the Act and the Resolution.
Section 4. Agreement to Constitute Contract. In consideration of the purchase and
acceptance of the Note by those who shall hold the same from time to time, the provisions of this
Agreement shall be a contract of the City with the Holder of the Note. The provisions, covenants
and agreements herein set forth to be performed by or on behalf of the City shall be for the equal
benefit, protection and security of the Holder of the Note in accordance with the terms hereof.
Section 5. Issuance of Note. Subject and pursuant to the provisions hereof, the Note
to be known as "City of Miami Beach, Florida Subordinate Resort Tax Revenue Note, Series 1999
(41st Street Beautification Project)" shall be issued to the Initial Purchaser as a single note in the
aggregate principal amount of not to exceed One Million Two Hundred Ninety-Four Thousand
Dollars ($1,294,000) for the purpose of financing the Project.
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Section 6. Description of Note. The Note shall be issued as one (1) typewritten
certificate in the denomination of not to exceed One Million Two Hundred Ninety-Four Thousand
Dollars ($1,294,000), and shall be dated the Dated Date. The outstanding principal amount of the
Note, as of any date, shall be equal to the sum of the amounts stated in the Draw Receipts
executed by the Chief Financial Officer and attached to the Note, less all repayments of the
principal thereof. The Note shall bear interest the rate of four and sixty one-hundredths percent
(4.60%) per annum, and such interest on each drawing of the proceeds of the Note shall accrue
from the date such proceeds are received by the City, as set forth in the Draw Receipt executed
by the Chief Financial Officer of the City. Interest on the Note shall be calculated on the basis of
a 360 day year consisting of twelve thirty day months. Accrued interest on the Note will be payable
on the first days of June and December of each year, commencing on June 1, 1999. The principal
of the Note shall be payable annually on the first day of December of each year, commencing on
December 1, 1999, in accordance with the schedule of payments set forth in Schedule 1 of Exhibit
"A" attached hereto. Additional details of the Note shall be as provided in the form of Note attached
hereto as Exhibit "A."
Notwithstanding anything to the contrary contained herein, the Note shall not be a revolving
loan and amounts repaid shall not be re-drawn by the City under any circumstances.
The Note hereunder shall be in registered form, contain substantially the same terms and
conditions as set forth in Exhibit "A" hereto, shall be payable in lawful money of the United States
of America, and the principal thereof, interest thereon and any other payments thereunder shall be
payable by check, wire, draft or bank transfer to the Holder at such address as may be provided
in writing by such Holder to the Clerk of the City. So long as the Note shall remain outstanding, the
City shall maintain and keep books for the registration and transfer of the Note. The Clerk is
hereby appointed as registrar for the Note and the Chief Financial Officer is hereby appointed as
paying agent for the Note.
The Note issued shall be and have all the qualities and incidents of negotiable instruments
under the law merchant and the Uniform Commercial Code of the State of Florida, subject to the
provisions for registration of transfer contained in this Agreement and in the Note.
The Note may be assigned in whole as to principal and interest by the Initial Purchaser, or
any assignee or successor-in-interest of the Initial Purchaser. Such assignment shall only be
effective, and the City obligated to pay such assignee, upon written notice of assignment being
provided to the Clerk of the City at 1700 Convention Center Drive, Miami Beach, Florida 33139;
provided, however, the written notice of assignment must be received by the Clerk no later than
the close of business on the fifth Business Day prior to the payment date in order to carry the right
to receive the interest and principal payment due on such payment date. The City may charge the
registered owners of such Note for the registration of every such assignment of such Note sufficient
to reimburse it for any tax, fee or any other governmental charge required to be paid, except for
any such governmental charge imposed by the City, with respect to the registration of such
assignment, and may require that such amounts be paid before any such assignment of the Note
shall be effective.
Section 7. Execution of Note. The Note shall be executed in the name of the City by
the Mayor and the seal of the City shall be imprinted, reproduced or lithographed on the Note. and
FIA Tll)lt.f....I.\80ND..i\COl.ONIALlU.>AN7 ,\(jR
Man:h n 1<m(U6pm)
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attested to and countersigned by the Clerk. The signatures of either the Mayor or the Clerk (but
not both) on the Note may be by facsimile. If any officer whose signature appears on the Note
ceases to hold office before the delivery of the Note, such signature shall nevertheless be valid and
sufficient for all purposes. In addition, the Note may bear the signature of, or may be signed by,
such persons as at the actual time of execution of such Note shall be the proper officers to sign
such Note although the date of such Note or the date of delivery thereof such persons may not
have been such officers.
Section 8. Note Mutilated, Destroyed, Stolen or Lost. If the Note is mutilated,
destroyed, stolen or lost, the City or its agent may, in its discretion (i) deliver a duplicate
replacement Note, or (ii) pay a Note that has matured or is about to mature. A mutilated Note shall
be surrendered to and cancelled by the Clerk or its duly authorized agent. The Holder must furnish
the City or its agent proof of ownership of any destroyed, stolen or lost Note; post satisfactory
indemnity; comply with any reasonable conditions the City or its agent may prescribe; and pay the
City's or its agent's reasonable expenses.
Any such duplicate Note shall constitute an original contractual obligation on the part of the
City whether or not the destroyed, stolen, or lost Note be at any time found by anyone, and such
duplicate Note shall be entitled to equal and proportionate benefits and rights as to lien on, and
source of and security for payment from, the funds pledged to the payment of the Note so
mutilated, destroyed, stolen or lost. -
Section 9. Closing and Draws of the Proceeds of the Note. Because of the nature
of the transaction described herein, the maturity of the Note and the prevailing market conditions,
the negotiated sale of the Note to the Initial Purchaser has been approved and authorized in the
Resolution. Upon compliance with Section 218.385, Florida Statutes, by the Initial Purchaser, and
payment of the proceeds of the initial draw against the Note to the City, the Chief Financial Officer
shall deliver the Note to the Initial Purchaser. At the time of delivery of the Note to the Initial
Purchaser, the City shall also deliver to the Initial Purchaser the following documentation.
a. Certified copies of Resolution Nos. 96-21975 and 99-23043.
b. General Certificate of the City as to authorization, incumbency and other matters.
c. Tax Compliance Certificate of the City.
d. Cross-Receipt
e. Investment Letter
f. IRS Form 8038-G
g. Notice of Sale
h. State of Florida Division of Bond Finance Forms BF-2003 and BF-2004
i. Negotiated Sale Disclosure Statement and Truth in Bonding Statement
j. Opinion of the City Attorney
k. Opinion of Bond Counsel
The Bank shall fund further draws of the principal amount of the Note upon the written
request of the Chief Financial Officer, and the outstanding principal amount of the Note shall be
increased to the amount of the aggregate of such draws, less any repayments; provided, however,
that the draws shall be made in increments of $25,000, with a minimum of $100,000 per draw.
Upon receipt of the proceeds of each draw, the Chief Financial Officer of the City shall execute and
f:'ATn)lUVl.'OOSos\COLOS1AVUlAN1.,\OR
Ma..d.ll, 1999(I:~6fwrll
Page 5
deliver a Draw Receipt, in an amount equal to the proceeds of the draw, to the Bank. The originals
of such Draw Receipts, upon receipt by the Bank, shall be attached to the Note.
Section 10. Provisions for Redemption. The Note may be prepaid in whole or in part
by the City at any time prior to maturity without premium or penalty, upon the City providing the
Holder at least ten (10) days' advance notice of its intent to prepay. In the event of any partial
prepayment of the Note, each partial prepayment shall be (a) first applied to accrued interest on
the Note, and then to the principal thereof, (b) in an amount equal to $50,000 or an integral multiple
of $50,000 in excess thereof, and (c) be applied to the principal installment or installments thereof
in the inverse order of their maturity.
Section 11. Authorization of Project. The City has heretofore authorized the acquisition
and construction of the Project. Proceeds received from the sale of the Note shall be used solely
to pay the costs of the Project and the costs of issuance of the Note.
Section 12. Pledged Revenues; Note Not to Be General Indebtedness of the City.
The City, in accordance with the Resolution, hereby pledges the Pledged Revenues to the payment
of the principal of, and interest on, the Note, which pledge is, and shall be, junior, inferior and
subordinate in all respects to the prior pledge of said Pledged Revenues, including, but not limited
to the pledge of the Pledged Revenues to (a) the City's Resort Tax Revenue Refunding Bonds,
Series 1996, issued in the original aggregate principal amount of $4,095,000, (b) the Miami Beach
Redevelopment Agency's (i) Tax Increment Revenue Bonds, Series 1993 (City CenterlHistoric
Convention Village), issued in the original aggregate principal amount of $25,000,000, (ii) Tax
Increment Revenue Bonds, Taxable Series 1996A (City Center/Historic Convention Village), issued
in the original aggregate principal amount of $37,500,000, (iii) Tax Increment Revenue Bonds,
Series 1996B (City Center/Historic Convention Village), issued in the original aggregate principal
amount of $7,705,000, (iv) Tax Increment Revenue Bonds, Taxable Series 1998A (City
CenterlHistoric Convention Village), issued in the original aggregate principal amount of
$29,105,000, and (v) Tax Increment Revenue Bonds, Series 1998B (City CenterlHistoric
Convention Village), issued in the original aggregate principal amount of $9,135,000, and (c) any
future debt obligations of the City or the Miami Beach Redevelopment Agency to which the Pledged
Revenues may be pledged on a basis senior to the Note. Nothing contained in this Agreement or
in the Note shall prevent the Pledged Revenues from being pledged to secure any bonds, notes
or other obligations that may hereafter be issued by the City or the Miami Beach Redevelopment
Agency and any such pledge may, in the sole and absolute discretion of the City, be senior to,
equal to, or junior to, the pledge of the Pledged Revenues to the payment of the principal of, and
interest on, the Note.
The Note shall not be or constitute a general obligation or indebtedness of the City within
the meaning of the Constitution of Florida, but shall be payable from and secured solely by the
Pledged Revenues and, to the extent provided in Section 13 hereof, payable from Non-Ad Valorem
Revenues, in the manner and to the extent herein provided. No Holder of the Note shall ever have
the right to compel the exercise of the ad valorem taxing power of the City or taxation in any form
on any real or personal property to pay such Note or the interest thereon, nor shall any Holder be
entitled to payment of such principal and interest from any other funds of the City. The Holder shall
have no lien upon the Project.
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Section 13. Covenant to Budget and Appropriate. In the event that the Pledged
Revenues are, at any time, insufficient to pay the principal of, and interest on, the Note, the City
hereby covenants and agrees to budget and appropriate in its Annual Budget, by amendment, if
necessary, from Non-Ad Valorem Revenues lawfully available in the then current Fiscal year,
amounts sufficient to pay the principal of and interest on the Note coming due in such Fiscal year,
until paid in full. Such covenant and agreement on the part of the City to budget and appropriate
such amounts of Non-Ad Valorem Revenues shall be cumulative to the extent not paid, and shall
continue until such Non-Ad Valorem Revenues or other legally available funds in amounts sufficient
to make all such required payment shall have been budgeted, appropriated and actually paid.
Notwithstanding the foregoing covenant of the City, the City does not covenant to maintain any
services or program, now provided or maintained by the City, which generate Non-Ad Valorem
Revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge of such
Non-Ad Valorem Revenues, nor does it preclude the City from pledging in the future its Non-Ad
Valorem Revenues, nor does it require the City to levy and collect any particular Non-Ad Valorem
Revenue, nor does it give the Noteholder a prior claim on the Non-Ad Valorem Revenues as
opposed to claims of general creditors of the City. Such covenant to budget and appropriate Non-
Ad Valorem Revenues is subject in all respects to the payment of obligations secured by a pledge
of such Non-Ad Valorem Revenues heretofore or hereinafter entered into (including the payment
-of debt service on bonds and other debt instruments). However, the covenant to budget and
appropriate in its Annual Budget for the purposes and in the manner stated herein shall have the
effect of making available in the manner described herein Non-Ad Valorem Revenues and placing
on the City a positive duty to budget and appropriate, by amendment, if necessary, amounts
sufficient to meet its obligations hereunder; subject, however, in all respect to the restriction of
Section 166.241 (3), Florida Statutes, which provides, in part, that the governing body of each
municipality make appropriations for each fiscal year which, in anyone year, shall not exceed the
amount to be received from taxation or other revenue sources; and subject further, to the payment
of services and programs which are for essential public purposes affecting the health, welfare and
safety of the inhabitants of the City or which are legally mandated by applicable law.
Section 14. Operating Budget; Financial Statements. Before the first day of each
Fiscal Year the Governing Body shall prepare, approve and adopt in the manner prescribed by law,
a detailed Annual Budget. The City shall annually provide to the Initial Purchaser a copy of the
Annual Budget and the City's audited financial statements prepared in accordance with law, each
within thirty (3D) days of its completion.
Section 15. Tax Covenants. It is the intention of the City that the interest on the Note
issued hereunder be and remain excluded from gross income for federal income tax purposes and
to this end the City hereby represents to and covenants with each Holder of the Note issued
hereunder that it will comply with the requirements applicable to it contained in the Code to the
extent necessary to preserve the exclusion of interest on the Note issued hereunder from gross
income for federal income tax purposes. Specifically without intending to limit in any way the
generality of the foregoing, the City covenants and agrees:
a) to refrain from using proceeds from the Note in a manner that might cause the Note
to be classified as a private activity bond under Section 141 (a) of the Code; and
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b) to refrain from taking any action that would cause the Note to become an arbitrage
bond under Section 148 of the Code.
The City understands that the foregoing covenants impose continuing obligations of the City
that will exist as long as the requirements of the Code are applicable to the Note.
Section 16. Events of Default. Anyone or more of the following events shall be an
"Event of Default":
(A) The City shall fail to pay the principal of or interest on the Note when due;
(8) The City shall (i) admit in writing its inability to pay its debts generally as they
become due, (ii) file (or have filed against it and not dismissed within ninety (90) days) a petition
in bankruptcy or take advantage of any insolvency act, (iii) make an assignment of the general
benefit of creditors, (iv) consent to the appointment of a receiver for itself of for the whole or any
substantial part of its property, or (v) be adjudicated a bankrupt;
(C) The City shall default in the due and punctual performance of any of its covenants,
conditions, agreements and provision 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 thirty (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.
Section 17. Remedies on Default. If an Event of Default shall have occurred and be
continuing, the Holder may proceed to protect and its enforce its rights hereunder by a suit, action
or special proceeding in equity or at law, by mandamus or otherwise, either of the specific
performance of any covenant or agreement contained herein or for enforcement of any proper legal
or equitable remedy as such Holder shall deem most effectual to protect and enforce the rights
aforesaid.
No remedy herein conferred upon or reserved to the Holder is intended to be exclusive of
any other remedy or remedies, and each and every such remedy shall be cumulative, and shall be
in addition to every other remedy given hereunder or now or hereafter existing at law or in equity.
No delay or omission of a Holder to exercise any right or power accruing upon any Event
of Default shall impair any such right or power or shall be construed to be a waiver of any such
Event of Default, or an acquiescence herein; and every power and remedy given by this article may
be exercised from time to time, and as often as may be deemed expeditious by a Holder.
Section 18. Severability. If anyone or more of the covenants, agreements or provisions
of this Agreement should be held contrary to any express provision of law or contrary to the policy
of express law, though not expressly prohibited, or against public policy, or shall be for any reasons
whatsoever be held invalid, then such covenants, agreements or provisions shall be null and void
and shall be deemed separate from the remaining covenants, agreements or provisions of this
t':IATIl)\I-EVUOON()S\(;OU)NIAI.'U>AN7.AOR,
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Page 8
Agreement or of the Note, which remaining covenants, agreements and provisions shall remain in
full force and effect.
Section 19. No Third-Party Beneficiaries. Except as herein otherwise expressly
provided, nothing in this Agreement expressed or implied is intended or shall be construed to
confer upon any person, firm or corporation other than the parties hereto and the owner and holder
of the Note issued under and secured by this Agreement, any right, remedy or claim, legal or
equitable, under or by reasons of this Agreement or any provision hereof, this Agreement and all
its provisions being intended to be and being for the sole and exclusive benefit of the parties hereto
and the owner and holder from time to time of the Note issued hereunder.
Section 20. Controlling Law; Members of City Not Liable. All covenants, stipulations,
obligations and agreements of the City contained in this Agreement shall be deemed to be
covenants, stipulations, obligations and agreements of the City to the full extent authorized by the
Act and provided by the Constitution and laws of the State of Florida. No covenant, stipulation,
obligation or agreement contained herein shall be deemed to be a covenant, stipulation, obligation
or agreement of any present or future member, agent, officer or employee of the City or the
Governing Body of the City in his or her individual capacity, and neither the members or officers
of the Governing Body of the City nor any official executing the Note shall be liable personally on
the Note or this Agreement or shall be subject to any personal liability or accountability by reasons
of the issuance or the execution by the City or such members thereof.
IN WITNESS WHEREOF, the City of Miami Beach, Florida and Colonial Bank have caused
this Agreement to be executed as of the 24th day of March, 1999.
CITY O7jl1 BEACH, FLORIDA
Mayor
ilk r ~cb-
City Clerk
COLONIAL BANK
QJ~~r~
Title: '\./1 C I!! --4(',)ca .
Name: ~ /) " /).,11"1 I~
Title: ~~r. CAsh it€y-
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
F,IA TJ'(lIUVL' OONDSlCOU)SIAVU>AN7,\GR
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Page 9
~~Y
City Atto~
7/~~/
EXHIBIT "A"
(Form of Note)
REGISTERED
No. R-
REGISTERED
Not to Exceed $
as more fully set forth herein.
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF MIAMI BEACH, FLORIDA
SUBORDINATE RESORT TAX REVENUE NOTE, SERIES 1999
(41st STREET BEAUTIFICATION PROJECT)
Interest Rate: 4.60%
Maturity Date:
Dated Date:
Registered Holder:
Principal Amount:
Not to Exceed $1,294,000
The City of Miami Beach, Florida (herein called the "City"), a political subdivision and public
body corporate and politic in Miami-Dade County, Florida, duly organized and operating under the
Constitution and laws of the State of Florida is justly indebted and for value received hereby
promises to pay to the Registered Holder identified above, or to the registered assigns or legal
representatives of such Registered Holder, but solely from the revenues hereinafter mentioned, on
the dates hereinafter provided, the Principal Amount identified above, and to pay, solely from such
revenues, interest on the Principal Amount remaining unpaid from time to time, at the Interest Rate
per annum identified above on the first days of December and June of each year, commencing on
June 1, 1999, until the entire Principal Amount has been repaid. Principal of and interest on this
Note will be paid by bank wire, check, draft or bank transfer delivered to the Registered Holder
hereof at its address as it appears on the registration books of the City at the close of business on
the fifth Business Day (as defined in the hereinafter described Loan Agreement), of the month next
preceding the interest payment date (the "Record Date"). The principal of this Note shall be
payable in annual installments in the amounts set forth on Schedule 1 attached hereto and by this
reference made part hereof.
Interest on this Note shall be calculated on the basis of a 360 day year consisting of twelve
thirty day months. Interest, at the rate set forth above, shall accrue on each draw of the proceeds
of this Note from the date of each such Draw Receipt in Schedule 2 attached hereto.
This Note is the only Note of the entire authorized issue of notes in the aggregate principal
amount of not to exceed One Million Two Hundred Ninety-Four Thousand Dollars ($1,294,000),
issued to finance the acquisition and construction of the Project (as defined in the Loan Agreement
described below), pursuant to the authority of and in full compliance with the Constitution and laws
of the State of Florida, including particularly Part II, Chapter 166, Florida Statutes, the Charter of
f'ArI't7lLEVLlBONos\coWNIALl1.(lAN1.AOR
M..,hl1.1999(U6rm1
the City and other applicable provisions of law (the "Act"), and Resolution No. 99-23043, duly
adopted by the Mayor and City Commission on January 20, 1999, (the "Resolution") This Note is
subject in all respects to the terms and conditions of the Resolution and the Loan Agreement dated
as of , 1999, by and between the City and Colonial Bank (the "Loan Agreement").
The outstanding principal amount of this Note, at any time, shall be equal to the sum
of the amounts shown on the Draw Receipts attached hereto in Schedule 2 and by this
reference incorporated herein as though fully set forth at this place, less any repayments.
Such principal amount may be increased from time to time upon the written request of the
Chief Financial Officer of the City, but in no event shall the aggregate principal amount of
this Note exceed the amount set forth in the immediately preceding paragraph.
All capitalized terms used herein, unless otherwise defined herein, shall have the meanings
ascribed thereto in the Resolution or in the Loan Agreement, as the case may be.
Subject to the provisions of the Resolution and the Loan Agreement, the City has pledged
the Pledged Revenues (as such term is defined in the Loan Agreement), to the payment of the
principal of, and interest on, the Note, which pledge is, and shall be, junior, inferior and subordinate
in all respects to the prior pledge of said Pledged Revenues, including, but not limited to the pledge
of the Pledged Revenues to (a) the City's Resort Tax Revenue Refunding Bonds, Series 1996,
issued in the original aggregate principal amount of $4,095,000, (b) the Miami Beach
Redevelopment Agency's (i) Tax Increment Revenue Bonds, Series 1993 (City Center/Historic
Convention Village), issued in the original aggregate principal amount of $25,000,000, (ii) Tax
Increment Revenue Bonds, Taxable Series 1996A (City Center/Historic Convention Village), issued
in the original aggregate principal amount of $37,500,000, (iii) Tax Increment Revenue Bonds,
Series 1996B (City CenterlHistoric Convention Village), issued in the original aggregate principal
amount of $7,705,000, (iv) Tax Increment Revenue Bonds, Taxable Series 1998A (City
CenterlHistoric Convention Village), issued in the original aggregate principal amount of
$29,105,000, and (v) Tax Increment Revenue Bonds, Series 1998B (City Center/Historic
Convention Village), issued in the original aggregate principal amount of $9,135,000, and (c) any
future debt obligations of the City or the Miami Beach Redevelopment Agency to which the Pledged
Revenues may be pledged on a basis senior to this Note. Nothing herein shall prevent the Pledged
Revenues from being pledged to secure any bonds, notes or other obligations that may hereafter
be issued by the City or the Miami Beach Redevelopment Agency and any such pledge may, in the
sole and absolute discretion of the City be senior to, equal to, or junior to, the pledge of the
Pledged Revenues to the payment of the principal of, and interest on, this Note.
In the event that, at any time, the Pledged Revenues are insufficient to pay the principal of
and interest on this Note, subject to the provisions of the Resolution and the Loan Agreement, the
City has covenanted and agreed to budget and appropriate in its Annual Budget, by amendment,
if necessary, from Non-Ad Valorem Revenues lawfully available in the then current Fiscal year,
amounts sufficient to pay the principal of and interest on this Note coming due in such Fiscal year,
until paid in full. Such covenant and agreement on the part of the City to budget and appropriate
such amounts of Non-Ad Valorem Revenues shall be cumulative to the extent not paid, and shall
continue until such Non-Ad Valorem Revenues or other legally available funds in amounts sufficient
to make all such required payment shall have been budgeted, appropriated and actually paid.
Notwithstanding the foregoing covenant of the City, the City does not covenant to maintain any
F:\A lTf)\I.F.\'l.' BON[)Sll.OI.ONI,\L'.LC)AN7A<HI
M...:h22.I?99(1 ~6pm,
Page 2
services or program, now provided or maintained by the City, which generate Non-Ad Valorem
Revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge of such
Non-Ad Valorem Revenues, nor does it preclude the City from pledging in the future its Non-Ad
Valorem Revenues, nor does it require the City to levy and collect any particular Non-Ad Valorem
Revenue, nor does it give the Noteholder a prior claim on the Non-Ad Valorem Revenues as
opposed to claims of general creditors of the City. Such covenant to budget and appropriate Non-
Ad Valorem Revenues is subject in all respects to the payment of obligations secured by a pledge
of such Non-Ad Valorem Revenues heretofore or hereinafter entered into (including the payment
of debt service on bonds and other debt instruments). However, the covenant to budget and
appropriate in its Annual Budget for the purposes and in the manner stated in the Resolution shall
have the effect of making available in the manner described herein Non-Ad Valorem Revenues and
placing on the City a positive duty to budget and appropriate, by amendment, if necessary,
amounts sufficient to meet its obligations hereunder; subject, however, in all respect to the
restriction of Section 166.241 (3), Florida Statutes, which provides, in part, that the governing body
of each municipality make appropriations for each Fiscal Year which, in anyone year, shall not
exceed the amount to be received from taxation or other revenue sources; and subject further, to
the payment of services and programs which are for essential public purposes affecting the health,
welfare and safety of the inhabitants of the City or which are legally mandated by applicable law.
Reference is hereby made to the Loan Agreement for the provisions among others, relating
to the terms and security for the Note, the custody and application of the proceeds of the Note, the
rights and remedies of the Registered Owner of the Note, and the extent of and limitations on the
City's rights, duties and obligations, to all of which provisions the Registered Holder hereof for itself
and its successors in interest assents by acceptance of this Note. All capitalized terms used
herein, unless otherwise defined herein, shall have the meanings ascribed thereto in the
Resolution.
THIS NOTE SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL DEBT OR A
PLEDGE OF THE FAITH AND CREDIT OF THE CITY, OR A DEBT OR PLEDGE OF THE FAITH
AND CREDIT OF THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF
WITHIN THE MEANING OF ANY CONSTITUTIONAL, LEGISLATIVE OR CHARTER PROVISION
OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE REGISTERED HOLDER OF THIS
NOTE THAT SUCH REGISTERED HOLDER SHALL NEVER HAVE THE RIGHT, DIRECTLY OR
INDIRECTLY, TO REQUIRE OR COMPEL THE EXERCISE OF THE AD VALOREM TAXING
POWER OF THE CITY OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF
FLORIDA OR TAXATION IN ANY FORM ON ANY REAL OR PERSONAL PROPERTY FOR THE
PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THIS NOTE OR
FOR THE PAYMENT OF ANY OTHER AMOUNTS PROVIDED FOR IN THE RESOLUTION OR
THE LOAN AGREEMENT.
It is further agreed between the City and the Registered Holder of this Note that this Note
and the indebtedness evidenced hereby shall not constitute a lien upon the Project, or any part
thereof, or any other tangible personal property of or in the City. Neither the members of the
Governing Body of the City nor any person executing this Note shall be liable personally on this
Note by reason of their issuance.
f' A TIl)\LEVL'OONO:'iiICOI.oSIAI.'LOAS7,'\GR
\l...,h 22. 1'I99(I'~l\pml
Page 3
This Note may be prepaid in whole or in part by the City at any time prior to maturity without
premium or penalty, upon the City providing the Registered Holder at least ten (10) days' advance
notice of its intent to prepay. In the event of any partial prepayment of this Note, each partial
prepayment shall include the payment of all interest accrued to the date of prepayment, and shall
be first applied to accrued interest hereon, and then to the principal. Any prepayments shall be
evidenced by the customary documentation of the Holder, and a copy of such documentation shall
be provided to the City after each prepayment.
The registration of this Note may be assigned in whole upon the registration books upon
delivery to the Clerk of the City accompanied by a written instrument or instruments of assignment
in form and with guaranty of signature satisfactory to the Clerk, duly executed by the Holder of this
Note or by its attorney in fact or legal representative, containing written instructions as to the details
of assignment of this Note, along with the social security number or federal employer identification
number of such assignee. In all cases of an assignment of this Note the City shall at the earliest
practical time in accordance with the provisions of the Loan Agreement enter the change of
ownership in the registration books. The City may charge the Holder of such Note for the
registration of every such assignment of a Note an amount sufficient to reimburse it for any tax, fee
or any other governmental charge required (other than by the City), to be paid with respect to the
registration of such assignment, and may require that such amounts be paid before any such
assignment of a Note shall be effective.
It is hereby certified and recited that all acts, conditions and things required to exist, to
happen, and to be performed precedent to and in the issuance of this Note exist, have happened
and have been performed in regular and due form and time as required by the Constitution and
laws of the State of Florida applicable hereto, and that the issuance of the Note does not violate
any constitutional or statutory limitation or provision.
IN WITNESS WHEREOF, the City of Miami Beach, Florida has issued this Note and has
caused the same to be executed by the manual or facsimile signature of the Mayor, and attested
by the manual or facsimile signature of the Clerk and its corporate seal or a facsimile thereof to be
affixed or reproduced hereon, all as of the day of , 199_.
CITY OF MIAMI BEACH, FLORIDA
Mayor
[SEAL]
ATTEST:
Clerk
~-:." TtUILf.VV 80NDS\COUJN IAI.'.t.OAN7AGJI.
\hn:h 22. 1999(U61'"')
Page 4
[Form of Abbreviations]
The following abbreviations, when used in the inscription on the face of the within Note, shall be
construed as though they were written out in full according to the applicable laws or 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 under Uniform Transfers
to
(Cust.)
Minors Act of
(Minor)
(State)
Additional abbreviations may be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned
(the "Assignor"). hereby sells, assigns and transfers unto
(the "Assignee")
PLEASE INSERT SOCIAL SECURITY NUMBER OR FEDERAL
EMPLOYER TAX IDENTIFICATION NUMBER OF TRANSFEREE
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints
as attorney to register the assignment of
the within Note on the books kept for registration of assignment thereof, with full power of
substitution in the premises.
Date:
Signature Guaranteed:
Notice: Signature(s) must be guaranteed by a
member firm of the New York Stock Exchange,
a member firm of any other recognized
national securities exchange or a commercial
bank or trust company.
NOTICE: No assignment will be registered in
the name of the Assignee, unless the
signature(s) to this assignment correspond(s)
with the name as it appears upon the face of
the within Note in every particular without
alteration or enlargement or any change
whatever and the Social Security or Federal
Employer Identification Number of the
Assignee is supplied.
[End of Note Form]
1':\,\ lTO'ILE.\,LIDON05\C()WNIALIl.oAN7AGR
M....h 21.1999(U6pm)
Page 5
SCHEDULE 1
SCHEDULE OF PRINCIPAL REPAYMENTS
PAYMENT DATE PRINCIPAL AMOUNT
December 1, 1999 20% of outstanding principal amount of Note 1
December 1, 2000 20% of outstanding principal amount of Note 1
December 1, 2001 20% of outstanding principal amount of Note 1
December 1, 2002 20% of outstanding principal amount of Note 1
December 1, 2003 Remaining outstanding principal amount of Note2
1 To be rounded to the nearest increment of $5,000.
2 Final Maturity
F:\AliOILf.VLIBONDS\COLONIAL\LOAN7.AGR
Mard'l21.1999{I:'6rm1
SCHEDULE 2
CITY OF MIAMI BEACH, FLORIDA
SUBORDINATE RESORT TAX REVENUE NOTE, SERIES 1999
(41st STREET BEAUTIFICATION PROJECT)
DRAW RECEIPT
Amount of Draw: $
Draw Receipt No. _
I, , the duly authorized and acting Chief Financial Officer of the City
of Miami Beach, Florida (the "City"), do hereby certify that on this _ day of , 199_, the
City received the proceeds of a draw in the amount of $ , in connection with the City
of Miami Beach, Florida, Subordinate Resort Tax Revenue Note, Series 1999 (41st Street
Beautification Project) (the "Note").
This draw of the proceeds of the Note, together with all previous draws of proceeds of the
Note, less all repayments, is equal to $ , which is, and shall be, as of the date hereof,
the aggregate principal amount of the Note.
, Chief Financial Officer
F:'A1TO'.1.EVL'BONDS\COWNIALIUlAN'7.AOR
M....21.1999(I,'...
GENERAL CERTIFICATE OF THE ISSUER
The undersigned officers of the City of Miami Beach, Florida (the "Issuer") DO HEREBY
CERTIFY THAT:
1. They are the duly elected, qualified and acting incumbents of their respective offices
of the Issuer, as set forth after their signatures hereto, and as such are familiar with its books and
corporate records.
2. The Issuer is a body corporate and politic duly organized, existing and in good
standing under and by virtue of the laws of the State of Florida, and as such has all requisite power
and authority to issue debt and to carry on its business as now being conducted.
3. The following are the duly elected, qualified and acting Mayor and members of the
City Commission of the Issuer who hold the offices appearing opposite each such member's name:
Commissioner
Beginning Date of Current Term
Ending Date of Current Term
Neisen O. Kasdin (Mayor)
Nancy Liebman (Vice Mayor)
Simon Cruz
David Dermer
Susan Gottlieb
Martin Shapiro
Jose Smith
November, 1997
November, 1997
November, 1997
November, 1997
November, 1995
November, 1995
November, 1997
November, 1999
November, 2001
November, 1999
November, 2001
November, 1999
November, 1999
November, 2001
The City Commission is the legislative body of the Issuer. All of the above persons have duly filed
their oaths or affirmations of office and filed bonds or undertakings in the amount and manner
required by law.
4. Included in the transcript of which this certificate forms a part is a true, correct and
complete copy of Resolution No. 99-23043 adopted by the Issuer on January 20, 1998 (the
"Resolution") authorizing the issuance by the Issuer of its not to exceed $1,294,000 Subordinate
Resort Tax Revenue Note, Series 1999 (41st Street Beautification Project) (the "Note") and related
matters, which was adopted by at least a majority of the members of the City Commission of the
Issuer at a meeting duly called and held at which a requisite number of members of the City
Commission of the Issuer were present and acting throughout, and that the Note Resolution has not
been repealed, revoked, rescinded, or amended and is in full force and effect on the date hereof.
5. The Note was authorized by the Resolution and is in substantially the same form and
text set forth in the Loan Agreement dated as of the date hereof by and between Colonial Bank and
the Issuer (the "Loan Agreement"). The Note has been duly authorized, executed, issued and
delivered and constitutes the legal, valid, binding and enforceable obligation of the Issuer in
conformity with the provisions of the Constitution and laws of the State of Florida. The proceeds of
the Note will be used by the Issuer to acquire and construct the 41 st Street Beautification Project,
as more specifically set forth in the Loan Agreement.
F.\A TTO'i.EVl\80NDS\COLONIAL\CLOSINGJOOC
6. The Issuer is not in default in the payment of the principal of or interest on any
indebtedness for borrowed money and is not in default under any instrument under and subject to
which any indebtedness may be incurred, and no event has occurred and is continuing under the
provisions of any such instrument which, with the lapse of time or the giving of notice, or both, would
constitute an event of default thereunder. The Issuer is not in default in the performance of any of
the covenants and obligations assumed by it under the Resolution and the Loan Agreement..
7. The Issuer is not in violation of any existing law, court or administrative regulation,
decree or order and is not in default in the performance of any material obligations to be performed
by the Issuer under any agreement, indenture, lease or other instrument to which the Issuer is
subject or by which it or any of its assets are bound. The adoption of the Resolution and the
execution, delivery and due performance of the Loan Agreement and the Note, and the compliance
by the Issuer with the provisions thereof, will not conflict with or constitute on the part of the Issuer
a breach of or a default under the Issuer's Charter or Code or under any existing law, court or
administrative regulation, decree or order or any agreement, indenture, lease or other instrument
to which the Issuer is subject or by which the Issuer or any of its assets are bound. The issuance
of the Note, together with all other obligations of the Issuer, will not exceed any limit prescribed by
the Constitution or statutes of the State of Florida.
8. No approval, consent, or withholding of objection on the part of any regulatory body,
federal, state or local, is required in connection with (a) the issuance and sale of the Note by the
Issuer to Colonial Bank (the "Bank") and (b) the execution or delivery of or compliance by the Issuer
with the terms and conditions of the Note. The consummation of the transactions set forth in this
paragraph in the manner and under the terms and conditions as provided in the Resolution will
comply with all applicable federal, state or local laws and any rules and regulations promulgated by
any regulatory authority or agency.
9. There is no action, suit, proceeding, inquiry or investigation, at law or in equity, or
before or by any court, public board or body, pending or, to the knowledge of the undersigned,
threatened against or affecting the Issuer, (a) restraining or enjoining the issuance or delivery of the
Note; or (b) contesting or questioning in any way the terms and provisions of the Resolution or the
Loan Agreement; (c) questioning or challenging the authority of the Issuer to collect any of its
Pledged Revenues (as defined in the Loan Agreement) or (d) in any manner questioning the
proceedings and authority under which the Note is issued or affecting the validity of the same or the
security therefor or wherein an unfavorable decision, ruling or find would adversely affect the
transactions contemplated by the Resolution and the Loan Agreement or would materially affect the
ability of the issuer to comply with the terms of the Note.
10. Neither the existence of the Issuer nor the title of the present officials or members
to their respective offices are being contested and no authority or proceedings for the issuance of
the Note have been modified, repealed, revoked or rescinded.
11. The seal which has been impressed upon the Note and upon this Certificate is the
legally adopted, proper and only official seal of the Issuer.
12. The interest rate on the Note of 4.60% per annum is not more than 300 basis points
in excess of 5.08%, the Bond Buyer "20 Bond Index" published in the February 26, 1999 Bond
Buyer, and therefore is in compliance with the requirements of Section 215.84(3), Florida Statutes.
F 'A TTO'LEVl\80NOS\COLONIALlClCSrNGJ.DOC
2
13. The Issuer has duly performed all of its obligations under the Resolution and the
Loan Agreement to be performed by it at or before the date hereof. All representations and
warranties of the Issuer contained in the Loan Agreement are true and correct as of the date hereof
as if made on this date.
14. All proceedings of the Issuer at which the authorization and sale of the Note were
considered were conducted in compliance with the provisions of all applicable state and local public
meetings laws. The undersigned have not, and to the best knowledge of the undersigned no
member of the City Commission, while meeting together with any other member or members of the
City Commission, reached any conclusion as to the actions taken by the City Commission with
respect to the Note, the security therefor, the application of the proceeds therefrom or any other
material matters with respect to the Note, except at duly noticed meetings of the City Commission.
15. The undersigned does not, and to the best knowledge of the undersigned no member
of the City Commission has or holds any employment or contractual relationship with Colonial Bank,
the initial purchaser of the Note, except as fully and fairly disclosed in compliance with the provisions
of Section 112.3143, Florida Statutes.
16. There has been no material adverse change in the financial position of the Issuer,
as presented in its financial audit for its fiscal year ended September 30, 1997, since the date of
such audit. All of the financial information provided by the Issuer to the Bank is accurate and correct
as of the date hereof.
WITNESS our hands and the seal of the Issuer as of the 24th day of March, 1999.
CITY OF MIAMI BEACH
By:
1fJ;
Neisen O. Kasdin
Mayor
By:
~p~
Robert Parcher
City Clerk
By:
1&VWk'4-
Patricia D. Walker
Director of Finance
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
F:\A TTO\lEVl\80NDS\COlONlAlICLOSINGJ_OOC
3
]/G~/17
Data
TAX COMPLIANCE CERTIFICATE
OF ISSUER
Pertaining to
Not to Exceed
$1,294,000
City of Miami Beach, Florida
Subordinate Resort Tax Revenue Note,
Series 1999 (41 st Street Beautification Project)
The City of Miami Beach, Florida (the "Issuer" or "City"), by its officer signing this
Certificate, certifies, represents, and covenants as follows with respect to the captioned obligations
(the "Issue"), dated as of March 24, 1999. All statements in this Certificate are of facts or, as to
events to occur in the future, reasonable expectations.
I. DEFINITIONS
1.10. Attachment A. The definitions and cross-references set forth in Attachment A
apply to this Certificate and its Attachments. All terms relating to a particular issue, such as Sale
Proceeds, relate to the Issue, unless indicated otherwise. (For example, "Sale Proceeds" refers to
Sale Proceeds of the Issue, unless indicated otherwise.)
1.20. Special Definitions. In addition, the following definitions apply to this
Certificate and its Attachments:
"Loan Agreement " means the Loan Agreement by and between the City and the
Purchaser.
"Pledged Revenues" means the revenues pledged to the payment of principal of and
interest on the Issue in accordance with the Loan Agreement.
"Project" means street, sidewalk and related improvements at 41 st Street, Miami
Beach, Florida, and includes Issuance Costs, all of which are governmental purposes for purposes
of the Code.
"Purchaser" means Colonial Bank.
"Rebate Instructions" means the Rebate Instructfons attached hereto as Attachment
A-I.
Reference to a Section means a section of the Code. Reference by number only (for example,
"2.10") means that numbered paragraph of this Certificate. Reference to an Attachment means an
attachment to this Certificate.
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Library: Miami; Document #: 9\3v2
II. ISSUE DATA
2.10. Issuer. The Issuer is a Governmental Unit.
2.20. Purpose ofIssue. The Issue is being issued to pay costs of the Project.
2.30. Dates. The Sale Date of the Issue is March 24, 1999 and the Issuance Date of
the Issue is March 24, 1999.
2.40. Issue Price. As set forth in Attachment B, the Issue Price of the Issue is not to
exceed $1,294,000, computed as follows:
Par amount of Issue
Original issue premium or (discount)
Pre-Issuance Accrued Interest
Issue Price
$1,294,000.00
0.00
0.00
$1.294.000.00
2.50. Sale Proceeds. Net Proceeds. and Net Sale Proceeds. The Sale Proceeds, Net
Proceeds, and Net Sale Proceeds of the Issue are as follows (assuming the entire principal amount
of the Issue is drawn):
Issue Price
Less: Pre-Issuance Accrued Interest
Sale Proceeds
$1,294,000.00
(0.00)
$1,294,000.00
Less: Deposit to reserve fund
Net Proceeds
Less: Minor Portion
Net Sale Proceeds
( 0.00)
$1,294,000.00
( 64,700.00)
$1.229.300.00
2.60. Disposition of Sale Proceeds and Pre-Issuance Accrued Interest. There is no
Pre-Issuance Accrued Interest. The Sale Proceeds of the Issue will upon draw in accordance with
the provisions of the Loan Agreement be used to pay costs of the Project.
2.70. Higher Yielding Investments. Gross Proceeds will not be invested in Higher
Yielding Investments except for those Gross Proceeds identified in 3.10 and 3.20, but only during
the applicable Temporary Periods there described for those Gross Proceeds.
2.80. Single Issue. No other obligations have been or will b! sold less than 15 days
before or after the Sale Date of the Issue pursuant to the Same Plan of Financing with the Issue that
are expected to be paid from substantially the same source of funds as the Issue, determined without
regard to guarantees from a person who is not a Related Party to the Issuer. Accordingly, no
obligations other than those that comprise the Issue are a part of the same issue with the Issue.
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Library: Miami; Document #: 913v2
III. ARBITRAGE (NONREBA TE) MATTERS
3.10. Use of Net Sale Proceeds and Pre-Issuance Accrued Interest: Temporary
Periods.
(A) Pre-Issuance Accrued Interest. There is no Pre-Issuance Accrued Interest.
(B) Costs of the Proiect. All of the Net Sale Proceeds will be used to pay costs of
the Project within 3 years from the Issuance Date, which 3-year period is the Temporary Period for
such Net Sale Proceeds since the following three tests are reasonably expected to be satisfied:
(i) At least 85% of the Net Sale Proceeds will be allocated to expenditures
on the Project by the end of the Temporary Period;
(ii) Within 6 months of the Issuance Date, the Issuer will incur substantial
binding obligations to third parties to expend at least 5% of the Net Sale
Proceeds on the Project; and
(iii) Completion of the Project and allocation of the Net Sale Proceeds to
expenditures will proceed with due diligence.
Any Sale Proceeds that remain unspent on the third anniversary of the Issuance
Date, which is the expiration date of the Temporary Period for such Proceeds, shall not be invested
in Higher Yielding Investments with respect to the Issue after that date except as part of the Minor
Portion. In complying with the foregoing sentence, the Issuer may take into account "yield
reduction payments" (within the meaning of Regulations ~1.148-5(c)) timely paid to the United
States.
3.20. Use of Investment Proceeds: Temporary Periods. Any Investment Proceeds
will be used to pay costs of the Project. Such Investment Proceeds may be invested in Higher
Yielding Investments during the Temporary Period identified in 3.10(B) or, if longer, one year from
the date of receipt, such period being the Temporary Period for such Proceeds.
3.30. No Bond Fund. ReJ>lacement Fund or Assured Available Funds. The Issuer
has not established and does not expect to establish or use any sinking fund, debt service fund,
redemption fund, reserve or replacement fund, or similar fund, or any other fund to pay Debt
Service on the Issue. Except for the Pledged Revenues and Proceeds of a Refunding Issue, if any,
no other money or Investment Property is or will be pledged as collateral or used for the payment of
Debt Service on die Issue (or for the reimbursement of any others who may provide money to pay
that Debt Service), or is or will be restricted, dedicated, encumbered, or set aside in any way as to
afford the holders of the Issue reasonable assurance of the availability of such money or Investment
Property to pay Debt Service on the Issue.
3.40. No Overissuance. The Proceeds of the Issue are not reasonably expected to
exceed the amount needed for the governmental purposes of the Issue as set forth in 2.20.
3.50. Other Uses of Proceeds Negated. Except as stated otherwise 10 this
Certificate, none of the Proceeds of the Issue will be used:
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Library: Miami; Document #: 913v2
<A) to pay principal of or interest on, refund, renew, roll over, retire, or replace any
other obligations issued by or on behalf of the Issuer or any other Governmental Unit,
(B) to replace any Proceeds of another issue that were not expended on the project
for which such other issue was issued,
(C) to replace any money that was or will be used directly or indirectly to acquire
Higher Yielding Investments,
(D) to make a loan to any person or other Governmental Unit,
(E) to pay any Working Capital Expenditure other than expenditures identified in
Regulations 91.148-6(d)(3)(ii)(A) and (B) (i.e., Issuance Costs of the Issue, Qualified
Administrative Costs, reasonable charges for a Qualified Guarantee or for a Qualified Hedge,
interest on the Issue for a period commencing on the Issuance Date of the Issue and ending on the
date that is the later of three years from such Issuance Date or one year after the date on which the
project financed or refinanced by the Issue was or will be placed in service, payments of the Rebate
Amount, and costs, other than those already described, that do not exceed 5% of the Sale Proceeds
and that are directly related to Capital Expenditures financed or deemed financed by the Issue,
principal or interest on an issue paid from unexpected excess Sale Proceeds or Investment
Proceeds, and principal or interest on an issue paid from investment earnings on a reserve or
replacement fund that are deposited in a Bona Fide Debt Service Fund), or
(F) to reimburse any expenditures made prior to the Issuance Date.
No portion of the Issue is being issued solely for the purpose of investing Proceeds in Higher
Yielding Investments.
3.60. Disposition ofProiect. The Issuer does not intend to sell or otherwise dispose
of the Project or any portion thereof during the term of the Issue except for dispositions of property
in the normal course at the end of such property's useful life to the Issuer.
3.70. No Other Replacement Proceeds. That portion of the Issue that is to be used
to finance Capital Expenditures has a weighted average maturity that does not exceed 120% of the
weighted average reasonably expected economic life of such Capital Expenditures.
.
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Library: Miami; Document #: 913v2
IV. REBATE MATTERS
4.10. Issuer Obligation Regarding Rebate. Consistently with its covenants
contained in the Loan Agreement, the Issuer will calculate and make, or cause to be calculated and
made, payments of the Rebate Amount in the amounts and at the times and in the manner provided
in Section 148(f) and the Rebate Instructions with respe~t to Gross Proceeds to the extent not
exempted under Section 148(f)(4) and the Rebate Instructions.
4.20. No Avoidance of Rebate Amount. No amounts that are required to be paid to
the United States will be used to make any payment to a party other than the United States through
a transaction or a series of transactions that reduces the amount earned on any Investment Property
or that results in a smaller profit or a larger loss on any Investment Property than would have
resulted in an ann's length transaction in which the Yield on the Issue was not relevant to either
party to the transaction.
4.30. Exceptions. Notwithstanding the foregoing, the computations and payments
of amounts to the United States referred to in IV. need not be made to the extent that the Issuer will
not thereby fail to comply with any requirements of Section 148(f) and the Rebate Instructions
based on an Opinion of Bond Counsel.
V. OTHER TAX MATTERS
5.10. Not Private Activity Bonds. No obligation of the Issue will be a Private
Activity Bond based on the following:
(A) Not more than 5% of the Proceeds, if any, will be used for a Private Business
Use and not more than 5% of the Debt Service on the Issue, if any, will be paid from or secured by
payments with respect to property, or secured by property or borrowed money, used for a Private
Business Use.
(B) Less than 5% of the Proceeds, if any, will be used to make or finance loans to
any Private Person.
5.20. Issue Not Federally Guaranteed. The Issue is not Federally Guaranteed.
5.30. Not Hedge Bonds. At least 85% of the Spendable Proceeds will be used to
carry out the governmental purposes of the Issue within three years from the Issuance Date. Not
more than 50%, if any, of the Proceeds will be invested in Nonpurpose Investments having a
substantially guaranteed Yield for four years or more (including but not limited to any investment
contract or fixed yield investment having a maturity of four years or more). The reasonable
expectations stated above are not based on and do not take into account (A) any expectations or
assumptions as to the occurrence of changes in market interest rates or changes of federal tax law or
regulations or rulings thereunder or (B) any prepayments of items other than items that are
customarily prepaid.
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Library: Miami; Document #: 9\3v2
5.40. Internal Revenue Service Information Return. Within the time and on the
form prescribed by the Internal Revenue Service under Section 149(e), the Issuer will file with the
Internal Revenue Service an Information Return setting forth the required information relating to
the Issue. The information reported on that Information Return will be true, correct, and complete
to the best of the knowledge and belief of the undersigned.
5.50. No Adverse Effect on Tax Status. The Issuer will make no use of the
Proceeds of the Issue or take any action or permit any other action to be taken that would affect
adversely the exclusion of interest on the Issue from gross income for federal income tax purposes.
5.60. Responsibility of Officer. The officer signing this Certificate is one of the
officers of the Issuer responsible for issuing the Issue.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
.
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Library: Miami; Document #: 913v2
In making the representations in this Certificate, the Issuer relies in part on the
representations of the Purchaser set forth in the Purchaser's Certificate attached hereto as
Attachment B. To the best of the knowledge, information, and belief of the undersigned, all
expectations stated in this Certificate and in Attachment B are the expectations of the Issuer and are
reasonable, all facts stated are true, and there are no other existing facts, estimates, or circumstances
that would or could materially change the statements made in this Certificate or in Attachment B.
The certifications and representations made in this Certificate are intended to be relied upon as
certifications described in Regulations 9 1.148-2(b). The Issuer acknowledges that any change in
the facts or expectations from those set forth in this Certificate or in Attachment B may result in
different requirements or a change in status of the Issue or interest thereon under the Code, and that
bond counsel should be contacted if such changes are to occur or have occurred.
The date of this Certificate is March 24, 1999.
CITY OF MIAMI BEACH, FLORIDA
By:
{f}( [{L ( ~
Finance Director
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Library: Miami; Document #: 913v2
List of Attaclunents
Attaclunent A -- Definitions for Tax Compliance Certificate
Attachment A-I -- Rebate Instructions
Attaclunent B -- Purchaser's Certificate
,
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Library: Miami; Document #: 913v2
Attachment A
DefInitions for Tax Compliance CertifIcate
The following terms, as used in Attachment A and in the Tax Compliance
CertifIcate to which it is attached and in the other Attachments to the Tax Compliance
CertifIcate, have the following meanings unless therein otherwise defmed or unless a different
meaning is indicated by the context in which the term is used. Capitalized terms used within
these defInitions that are not defIned in Attachment A have the meanings ascribed to them in the
Tax Compliance CertifIcate to which this Attachment A is attached. The word "issue," in lower
case, refers either to the Issue or to another issue of obligations or portion thereof treated as a
separate issue for the applicable purposes of Section 148, as the context requires. The word
"obligation" or "obligations," in lower case, includes any obligation, whether in the form of
bonds, notes, certifIcates, or any other obligation that is a "bond" within the meaning of Section
150(a)(I). All capitalized terms used in this CertifIcate include either the singular or the plural.
All terms used in this Attachment A or in the Tax Compliance CertifIcate to which this
Attachment A is attached, including terms specifIcally defmed, shall be interpreted in a manner
consistent with Sections 103 and 141-150 and the applicable Regulations thereunder except as
otherwise specifIed. All references to Section, unless otherwise noted, refer to the Code.
"Advance Refunding Issue" means any Refunding Issue that is not a Current
Refunding Issue. Where appropriate, the term Advance Refunding Issue shall include the
Advance Refunding Portion of a multipurpose issue.
"Advance Refunding Portion" means that portion of a multipurpose issue that is
allocable to a separate governmental purpose and that would be treated as an Advance Refunding
Issue if it were in fact a separate issue.
"Available Amounts" means any amounts that are available to the Issuer to pay
Working Capital Expenditures of the type fInanced by the issue, excluding Proceeds of the issue,
but including cash, investments, and other amounts held in accounts or otherwise by the Issuer
or a Related Party if those amounts may be used by the Issuer for Working Capital Expenditures
of the type being fInanced by the Issue without legislative or judicial action and without a
legislative, judicial, or contractual requirement that those amounts be reimbursed.
"Available Construction Proceeds" means an amount equal to (a) the sum of (i)
the Issue Price of the issue, (ii) Investment Proceeds on that Issue Price, (iii) earnings on any
reasonably required reserve or repla~ement fund allocated to the issue not funded from the Issue
Price, and (iv) Investment Proceeds and earnings on (ii) and (Hi), (b) reduced by the portions,
if any, of the Issue Price of the issue (i) attributable to Pre-Issuance Accrued Interest and
earnings thereon, (ii) allocated to the Underwriter's discount, (Hi) used to pay other Issuance
Costs of the issue, and (iv) deposited in a reasonably required reserve or replacement fund
allocated to the issue. Available Construction Proceeds do not include Investment Proceeds or
earnings on a reasonably required reserve or replacement fund allocated to the issue for any
period after the earlier of (a) the close of the 2-year period that begins on the Issuance Date or
(b) the date the construction of the Projects fInanced by the issue is substantially completed. If
008, (J484.00CS.TAXIAIT_A.
the issue consists of a New Money Portion and a Refunding Portion and the New Money Portion
is a Construction Issue, this defInition shall be applied by substituting "New Money Portion" for
"issue" each place the latter term appears. If the issue or the New Money Portion, as
applicable, is not a Construction Issue, and the Issuer makes the election under Regulations
g1.148-7(j)(I) and Section 148(f)(4)(C)(v) to treat the issue or the New Money Portion as two
separate issues consisting of the Construction Portion and the Nonconstruction Portion, this
defInition shall be applied by substituting "Construction Portion" for "issue" each place the latter
term appears.
"Bona Fide Debt Service Fund" means a fund, including a portion of or an
account in that fund (or in the case of a fund established for two or more bond or note issues,
the portion of that fund properly allocable to an issue) or a combination of such funds, accounts
or portions that is used primarily to achieve a proper matching of revenues with Debt Service
on an issue within each Bond Year and that is depleted at least once each year except for a
reasonable carryover amount not to exceed the greater of the earnings thereon for the
immediately preceding Bond Year or one-twelfth of the annual Debt Service on the issue for the
immediately preceding Bond Year.
"Bond Year" means the annual period relevant to the application of Section 148(f)
to the issue, except that the fIrst and last Bond Years may be less than 12 months long. The last
day of a Bond Year shall be the close of business on the day preceding the anniversary of the
Issuance Date of the issue unless the Issuer selects another date on which to end a Bond Year
in the manner permitted by the Code.
"Capital Expenditures" means costs of a type that are properly chargeable to
capital account (or would be so chargeable with a proper election) under general federal income
tax principles.
"Code" means the Internal Revenue Code of 1986, the Regulations (whether
temporary or fInal) under that Code or the statutory predecessor of that Code, and any
amendments of, or successor provisions to, the foregoing and any offIcial rulings,
announcements, notices, procedures and judicial determinations regarding any of the foregoing,
all as and to the extent applicable. Unless otherwise indicated, reference to a Section includes
any applicable successor section or provision and such applicable Regulations, rulings,
announcements, notices, procedures and determinations pertinent to that Section.
"Commingled Fund" means any fund or account of the Issuer that contains both
Gross Proceeds of an issue and amounts in excess Cjf $25,000 that are not Gross Proceeds of that
issue if the amounts in the fund or account are invested and accounted for collectively, without
regard to the source of funds deposited in the fund or account.
"Commingled Investment Proceeds" means, in the case of certain issues specified
in Regulations ~1.148-6(d)(6), Investment Proceeds of such issue (other than Investment
Proceeds held in a Refunding Escrow) that are deposited in a Commingled Fund with substantial
tax or other revenues from governmental operations of the Issuer and that are reasonably
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008, C3484.00CS.TAX1AIT_A.
expected to be spent for governmental purposes within 6 months from the date of deposit in the
Commingled Fund, using any reasonable accounting assumptions.
"Computation Date" means each date on which the Rebate Amount for an issue
is required to be computed under Regulations g1.148-3(e). In the case of a Fixed Yield Issue,
the fIrst Computation Date shall not be later than 5 years after the Issuance Date of the issue.
Subsequent Computation Dates shall be not later than 5 years after the immediately preceding
Computation Date for which an installment payment of the Rebate Amount was paid. In the
case of Variable Yield Issue, the fIrst Computation Date shall be the last day of any Bond Year
irrevocably selected by the Issuer ending on or before the fIfth anniversary of the Issuance Date
of such issue and subsequent Computation Dates shall be the last day of each Bond Year
thereafter or each fIfth Bond Year thereafter, whichever is irrevocably selected by the Issuer
after the first date on which any portion of the Rebate Amount is required to be paid to the
United States. The fInal Computation Date is the date an issue is retired.
"Conduit Borrower" means the obligor on a purpose investment.
"Conduit Financing Issue" means an issue the Proceeds of which are reasonably
expected to be used to fInance at least one Conduit Loan.
"Conduit Loan" means a purpose investment acquired by an issuer with Proceeds
of a Conduit Financing Issue, thereby effecting a loan to the Conduit Borrower.
"Construction Expenditures" means Capital Expenditures allocable to the cost of
real property (including the construction or making of improvements to real property, but
excluding acquisitions of interests in land or other existing real property) or constructed personal
property within the meaning of Regulations g 1.148- 7 (g).
"Construction Issue" means an issue at least 75 percent of the Available
Construction Proceeds of which are to be used for Construction Expenditures with respect to
property which is or is to be owned by a Governmental Unit or a 501(c)(3) Organization. If an
election under Section 148(t)(4)(C)(v) and Regulations ~1.148-7(j) is made to bifurcate an issue
or the New Money Portion, that portion of the issue or the New Money Portion which satisfIes
the 75 percent test stated in the preceding sentence and which fInances 100% of the Construction
Expenditures is the Construction Issue.
-
"Controlled Group" means a group of entities controlled directly or indirectly by
the same entity or group of entities within the meaning of Regulations g 1. 150-1 (e).
"Current Refunding Issue" means a Refunding Issue that is issued not more than
90 days before the last expenditure of any Proceeds of the Refunding Issue for the payment of
Debt Service on the Prior Issue. Where appropriate, the term Current Refunding Issue shall
include the Current Refunding Portion of a multipurpose issue.
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008: [3484 . DOCS . TAXl AIT_A.
"Current Refunding Portion" means that portion of a multipurpose issue that
constitutes a separate governmental purpose and that would be treated as a Current Refunding
Issue if it were in fact a separate issue.
an issue.
"Debt Service" means principal of and interest and any redemption premium on
"Excess Gross Proceeds" means all Gross Proceeds of an Advance Refunding
Issue or Advance Refunding Portion that exceed an amount equal to 1 percent of the Sale
Proceeds of such Advance Refunding Issue or Advance Refunding Portion, other than Gross
Proceeds allocable to: (a) payment of Debt Service on the Prior Issue; (b) payment of
Pre-Issuance Accrued Interest on the Advance Refunding Issue or Advance Refunding Portion
and interest on the Advance Refunding Issue or Advance Refunding Portion that accrues for a
period up to the completion date of any capital project fInanced by the Prior Issue, plus one
year; (c) a reasonably required reserve or replacement fund for the Advance Refunding Issue
or Advance Refunding Portion or Investment Proceeds of such fund; (d) payment of Issuance
Costs of the Advance Refunding Issue or Advance Refunding Portion; (e) payment of
administrative costs allocable to repaying the Prior Issue, carrying and repaying the Advance
Refunding Issue or Advance Refunding Portion, or investments of the Advance Refunding Issue
or Advance Refunding Portion; (f) Transferred Proceeds allocable to expenditures for the
governmental purpose of the Prior Issue; (g) interest on purpose investments; (h) Replacement
Proceeds in a sinking fund for the Advance Refunding Issue or Advance Refunding Portion; and
(i) fees for a QualifIed Guarantee for the Advance Refunding Issue, the Advance Refunding
Portion or the Prior Issue.
"Federally Guaranteed" means that (a) the payment of Debt Service on an issue,
or the payment of principal or interest with respect to any loans made from the Proceeds of an
issue, is directly or indirectly guaranteed in whole or in part by the United States or by an
agency or instrumentality of the United States, within the meaning of Section 149(b), or (b)
more than 5 % of the Proceeds of an issue will be invested directly or indirectly in federally
insured deposits or accounts. The preceding sentence does not apply to (a) Proceeds invested
during the initial Temporary Period until such Proceeds are needed to pay costs of the Project,
(b) investments of a Bona Fide Debt Service Fund, (c) direct purchases from the United States
of obligations issued by the United States Treasury, or (d) other investments permitted by
Section 149(b) or Regulations g 1. 149(b )-1 (b).
"501 (c )(3) Organization" means an organization described in Section 501 (c )(3) and
exempt/rom tax under Section 501(a).
"Fixed Yield Issue" means an issue of obligations the Yield on which is fIxed and
determinable on the Issuance Date.
"Governmental Unit" means a state, territory or possession of the United States,
the District of Columbia, or any political subdivision thereof referred to as a "State or local
governmental unit" in Regulations ~1.103-1(a). "Governmental Unit" does not include the
United States or any agency or instrumentality of the United States.
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"Gross Proceeds" means Proceeds and Replacement Proceeds of an issue.
"Higher Yielding Investments" means any Investment Property that produces a
Yield that (a) in the case of Investment Property allocable to Replacement Proceeds of an issue
and Investment Property in a Refunding Escrow, is more than one thousandth of one percentage
point (.00001) higher than the Yield on the applicable issue, and (b) for all other purposes of
this CertifIcate, is more than one-eighth of one percentage point (.00125) higher than the Yield
on the applicable issue.
"Investment Proceeds" means any amounts actually or constructively received
from investing Proceeds of an issue in Investment Property.
"Investment Property" means investment property within the meaning of Sections
148(b)(2) and 148(b)(3), including any security (within the meaning of Section 165(g)(2)(A) or
(B)), any obligation, any annuity contract and any other investment-type property (including
certain residential rental property for family units as described in Section 148(b)(2)(E) in the
case of any bond other than a Private Activity Bond). Investment Property includes a
Tax-Exempt Obligation that is a "specifIed private activity bond" as defIned in Section
57(a)(5)(C) but does not include other Tax-Exempt Obligations.
"Issuance Costs" means any fInancial, legal, administrative and other fees or costs
incurred in connection with the issuance of an issue, including any underwriter's compensation
withheld from the Issue Price.
"Issuance Date" means the date of physical delivery of an issue by the Issuer in
exchange for the purchase price of the issue.
"Issue Price" means in the circumstances applicable to the issue:
(1) Public Offering. In the case of obligations actually
offered to the general public in a bona fIde public offering at the
initial offering price for each maturity set forth in the CertifIcate
of the Underwriter or Placement Agent attached to the Tax
Compliance CertifIcate, the aggregate of the initial offering price
for each maturity (including any Pre-Issuance Accrued Interest and
original issue premium), which is not more than the fair market
value thereof as of the Sale Date, and at which initial offering
price not less than 10% of the principal amount of each maturity,
as of the Sale Date, was sold or reasonably expected to be sold
(other than to bond houses, brokers or other intermediaries). In
the case of publicly offered obligations that are not described in
the preceding sentence, Issue Price means the aggregate of the
initial offering price to the public of each maturity set forth in the
CertifIcate of the Underwriter or Placement Agent attached to the
Tax Compliance CertifIcate, which is not more than the fair
market value thereof as of the Sale Date, and at which initial
.
A-5
008, [3484 . DOCS . TAXI AIT_A.
offering price not less than 10% of the principal amount of each
maturity was sold to the public.
(2) Private Placement. In the case of obligations sold by
private placement, the aggregate of the prices, including any Pre-
Issuance Accrued Interest and original issue premium, paid to the
Issuer by the fIrst purchaser(s) (other than bond houses, brokers or
other intermediaries).
"Minor Portion" means an amount equal to the lesser of $100,000 or 5% of the
Sale Proceeds of the issue.
"Net Proceeds" means the Sale Proceeds of an issue less the portion thereof, if
any, deposited in a reasonably required reserve or replacement fund for such issue.
"Net Sale Proceeds" means the Sale Proceeds of an issue less the portion thereof,
if any, deposited in a reasonably required reserve or replacement fund for such issue and
invested as a part of a Minor Portion for such issue.
"New Money Issue" means an issue that is not a Refunding Issue.
"New Money Portion" means that portion of a multipurpose issue other than the
Refunding Portion.
"Nonpurpose Investments" means any Investment Property that is acquired with
Gross Proceeds as an investment and not in carrying out any governmental purpose of the issue.
"Nonpurpose Investments" does not include any investment that is not regarded as "investment
property" or a "nonpurpose investment" for the particular purposes of Section 148 (such as
certain investments in U.S. Treasury obligations in the State and Local Government Series and
certain temporary investments), but does include any other investment that is a "nonpurpose
investment" within the applicable meaning of Section 148.
"Original Issue" means an issue for new money purposes (or the New Money
Portion of a multipurpose issue) all or a portion of the Debt Service on which was or will be
paid or provided for with Proceeds of a Refunding Issue.
"Pre-Issuance Accrued Interest" means interest on an obligation that accrued for
a period not greater than one year before its Issuance Date and that will be paid within one year
after such Issuance Date.
"Preliminary Expenditures" means any Capital Expenditures that are preliminary
expenditures, within the meaning of Regulations ~1.150-2(t)(2) or former Regulations ~1.103-
18(i)(2), as applicable, i.e., architectural, engineering, surveying, soil testing, reimbursement
bond issuance, and similar costs that are incurred prior to commencement of acquisition,
construction, or rehabilitation of a project other than land acquisition, site preparation, and
similar costs incident to commencement of construction. The amount of Preliminary
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008, !3484.DOCS.TAX]AIT_A.
Expenditures may not exceed 20 % of the aggregate issue price of the issue that financed or is
reasonably expected to finance the project for which the preliminary expenditures are or were
incurred.
"Prior Issue" means an issue of obligations all or a portion of the Debt Service
on which is paid or provided for with Proceeds of the Issue which is a Refunding Issue. The
Prior Issue may be a Refunding Issue.
"Private Activity Bond" means (a) obligations of an issue more than 5% of the
Proceeds of which are or are to be used for a Private Business Use and more than 5 % of the
Debt Service on which is or is to be paid from or secured by payments with respect to property,
or secured by property, used for a Private Business Use, or (b) obligations of an issue 5% or
more of the Proceeds of which are or are to be used to make or fInance loans to any Private
Person.
"Private Business Use" means use (directly or indirectly) in a trade or business
carried on by any Private Person other than use as a member of, and on the same basis as, the
general public. Any activity carried on by a Private Person (other than a natural person) shall
be treated as a trade or business. In the case of a Qualified 501(c)(3) Bond, Private Business
Use excludes use by a 501(c)(3) Organization that is not an unrelated trade or business activity
by such 501(c)(3) Organization within the meaning of Section 513(a).
"Private Person" means any natural person or any artificial person, including a
corporation, partnership, trust or other entity, that is not a Governmental Unit and that is not
acting solely and directly as an offIcer or employee of or on behalf of the Issuer or another
Governmental Unit. "Private Person" includes the United States and any agency or
instrumentality of the United States.
"Proceeds" means any Sale Proceeds, Investment Proceeds, and Transferred
Proceeds of an issue. "Proceeds" do not include Replacement Proceeds.
"QualifIed Administrative Costs" means reasonable direct administrative costs,
(other than carrying costs), such as separately stated brokerage or selling commissions, but not
legal and accounting fees, recordkeeping, custody, and similar costs. General overhead costs
and similar indirect costs of the Issuer such as employee salaries and office expenses and costs
associated with computing the Rebate Amount are not Qualified Administrative Costs.
"Qualified 501 (c )(3) Bonds" means an is~ue of bonds that satisfies the
requirements of Section 145(a).
"Qualified Guarantee" means any guarantee of an obligation that constitutes a
"qualified guarantee" within the meaning of Regulations ~1.148-4(t).
"Qualified Hedge" means a "qualified hedge" as defined in Regulations
~1.148-4(h)(2).
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008, [3484.DOCS.TAX1AIT_A.
"Rebate Amount" means the excess of the future value, as of any date, of all
receipts on Nonpurpose Investments acquired with Gross Proceeds of an issue over the future
value, as of that date, of all payments on Nonpurpose Investments acquired with Gross Proceeds
of such issue, computed in accordance with Section 148( t) and Regulations g 1.148- 3.
"Refunded Bonds" means that portion of a Prior Issue the Debt Service on which,
after the Issuance Date of a Refunding Issue, is to be paid from Proceeds or Replacement
Proceeds of either such Refunding Issue or the Prior Issue.
"Refunding Bonds" means obligations of a Refunding Issue.
"Refunding Issue" means an issue the Proceeds of which are or are to be used to
pay Debt Service on Refunded Bonds and to finance Issuance Costs, Pre-Issuance Accrued
Interest or permitted capitalized interest, a reasonably required reserve or replacement fund, and
similar costs of the Refunding Issue.
"Refunding Escrow" means one or more funds established as part of a single
transaction, or a series of related transactions, containing Proceeds of a Refunding Issue and any
other amounts to provide for payment of Debt Service on one or more Prior Issues.
"Refunding Portion" means that portion of a multipurpose issue the Proceeds of
which are or are to be used to pay Debt Service on Refunded Bonds and to finance Issuance
Costs, Pre-Issuance Accrued Interest or permitted capitalized interest, a reasonably required
reserve or replacement fund, and similar costs properly allocable to such Refunding Portion.
"Regulations" or "Reg." means applicable Treasury Regulations.
"Reimbursement Allocation" means an allocation of the Proceeds of an issue for
the Reimbursement of Prior Capital Expenditures that meets each of the following requirements:
(a) is evidenced on the books or records of the Issuer maintained with respect to the issue, (b)
the allocation entry identifIes either actual prior Capital Expenditures, or the fund or account
from which the prior Capital Expenditures were paid, and (c) evidences the Issuer's use of
Proceeds of such issue to reimburse a Capital Expenditure for a governmental purpose that was
originally paid from a source other than the Proceeds of such issue.
"Reimbursement of Prior Capital Expenditures" means a Reimbursement
Allocation of Proceeds of an issue to a Capital Expenditure paid prior to the Issuance Date of
such issue, which satisfIes clause (a), (b) or (c), as appropriate. .
(a) A Reimbursement Allocation satisfIes clause (a) if:
(i) The Reimbursement Allocation was made from
Proceeds of an issue issued prior to March 3, 1992;
and
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008, [3484 . DOCS . TAX] AIT_A.
(ii) The Capital Expenditure reimbursed was paid in
anticipation of reimbursement from the Proceeds of
obligations issued by a Governmental Unit.
(b) A Reimbursement Allocation satisfIes clause (b) if the Reimbursement
Allocation was made from Proceeds of an issue issued after March 2,
1992 and before July 1, 1993, and if it satisfIes either subclause (i) or (ii).
(i) Subclause (i) is satisfied if:
(1) The Capital Expenditure reimbursed was
paid after September 8, 1989 and before
March 2, 1992;
(2) There is objective evidence that, at the time
such Capital Expenditure was paid by the
Issuer (except Preliminary Expenditures),
the Issuer expected to reimburse such
Capital Expenditure with Proceeds of a
borrowing (whether taxable or tax-exempt);
(3) The expectation stated in subclause (2) was
reasonable by being consistent with the
budgetary and financial circumstances of the
Issuer (i.e., no funds from sources other
than the Issue were, or were reasonably
expected to be, reserved, allocated on a
long-term basis, or otherwise set aside by
the Issuer or any member of the same
Controlled Group as the Issuer pursuant to
their budget or fmancial policies with
respect to such Capital Expenditure);
(4)
The Reimbursement Allocation occurred
within 1 year after the later of the date on
which such Capital Expenditure was paid or
the date on which the property resulting
from such Capital Expenditure was placed in
service; and
.
(5) The reimbursed amounts were not used
within one year after the date of the
Reimbursement Allocation to (A) refund
obligations issued by any Governmental
Unit, (B) create or increase the balance in a
sinking fund with respect to any obligation
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008, [3484.DOCS.TAXIAIT_A.
of the Issuer or to replace funds that have
been, are being, or will be used for sinking
fund purposes, (C) create or increase the
balance in a reserve or replacement fund
with respect to any obligation of the Issuer,
or to replace funds that have been, are
being, or will be so used for reserve or
replacement fund purposes, or (D)
reimburse any person for any expenditure or
payment that was originally paid with
proceeds of any obligation of the Issuer
(other than an internal borrowing from one
of its own funds).
(ii) Subclause (ii) is satisfied if:
(1) Such Capital Expenditure was paid after
March 1, 1992;
(2) On or before the date such Capital
Expenditure was paid by the Issuer (except
Preliminary Expenditures), the Issuer
declared its reasonable intention to
reimburse such Capital Expenditure with
proceeds of a borrowing (whether taxable or
tax-exempt) in a declaration of intent
meeting the requirements of former
Regulations U .103-18( t) or Regulations
g1.150-2(t)(2); and
(3) The requirements set forth in subclauses
(i)(3), (4) and (5) of this clause (b) are met.
(c) A Reimbursement Allocation satisfIes clause (c) if the Reimbursement
Allocation was made from Proceeds of an issue issued after June 30, 1993
and either subclause (i) or (ii) is satisfIed.
(i) SubcljlUse (i) is satisfied if:
(1) The Capital Expenditure reimbursed was
paid after September 8, 1989 and before
March 2, 1992;
(2) There is objective evidence that, at the time
the Capital Expenditure was paid by the
Issuer (except Preliminary Expenditures),
A-lO
008, (3484.DOCS.TAX1AIT_A.
the Issuer expected to reimburse such
Capital Expenditure with Proceeds of a
borrowing (whether taxable or tax-exempt);
(3) The expectation stated in subclause (i)(2)
was reasonable by being consistent with the
budgetary and fInancial circumstances of the
Issuer; and
(4) The Reimbursement Allocation occurred or
will occur within 18 months after the later
of the date the original expenditure was paid
or the date the project fInanced by such
expenditure was placed in service or
abandoned, but in no event more than 3
years after the original expenditure was
paid.
(ii) Subclause (ii) is satisfIed if:
(1) The Capital Expenditure was paid after
March 1, 1992;
(2) Within 60 days after payment of the original
expenditure (except Preliminary
Expenditures), the Issuer adopted an official
intent for the original expenditure that
satisfies Regulations g 1.150- 2( e); and
(3) The Reimbursement Allocation occurred or
will occur within 18 months after the later
of the date the original expenditure was paid
or the date the project fInanced by such
expenditure was placed in service or
abandoned, but in no event more than 3
years after the original expenditure was
paid.
"Related Party" means, in reference to a Governmental Unit or 501(c)(3)
Organization, any member of the same Controlled Group, and, in reference to any person that
is not a Governmental Unit or 501(c)(3) Organization, a related person as defined in Section
144(a)(3).
"Replacement Proceeds" means with respect to an issue amounts (including any
investment income but excluding any Proceeds of that issue) replaced by Proceeds of that issue
A-ll
008, [3484.DOCS.TAXIAIT_A.
under Section 148(a)(2). Replacement Proceeds include amounts, other than Proceeds, held in
a sinking fund, pledged fund or reserve or replacement fund for the issue.
"Sale Date" means with respect to an issue (or a portion of an issue) the first date
upon which there is a binding contract in writing with the Issuer for the sale and purchase of the
issue (or of respective obligations of the issue if sold by the Issuer on different dates) on specific
terms that are not later modified or adjusted in any material respect. In the case of a variable
yield obligation, the Sale Date is the Issuance Date thereof.
"Sale Proceeds" means that portion of the Issue Price actually or constructively
received by the Issuer upon the sale or other disposition of an issue, including any underwriter's
compensation withheld from the Issue Price, but excluding Pre-Issuance Accrued Interest.
"Same Plan of Financing" is determined based on such factors as the purposes for
the obligations and the structure of the financing. For example, generally (A) obligations to
finance a single facility or related facilities are part of the same plan of fInancing; (B) short-term
obligations to fInance working capital expenditures and long-term obligations to fInance capital
projects are not part of the same plan of fInancing; and (C) certificates of participation in a lease
and general obligation obligations secured by tax revenues are not part of the same plan of
financing.
"Spendable Proceeds" means the Net Sale Proceeds of an issue.
"Tax-Exempt Obligation" means any obligation or issue of obligations (including
bonds, notes and lease obligations treated for federal income tax purposes as evidences of
indebtedness) the interest on which is excluded from gross income for federal income tax
purposes within the meaning of Section 150, and includes any obligation or any investment
treated as a "tax-exempt bond" for the applicable purpose of Section 148.
"Tax-Exempt Organization" means a Governmental Unit or a 501(c)(3)
Organization.
"Temporary Period" means the period of time, as set forth in the Tax Compliance
Certificate, applicable to particular categories of Proceeds of an issue during which such
category of Proceeds may be invested in Higher Yielding Investments without the issue being
treated as arbitrage bonds under Section 148.
"Transferred Proceeds" means that portion of the Proceeds of an issue (including
any Transferred Proceeds of that issue) that remains unexpended at the time that any portion of
the principal of that issue is discharged with the Proceeds of a Refunding Issue and that
thereupon becomes Proceeds of the Refunding Issue as provided in Regulations ~1.148-9(b).
Transferred Proceeds do not include any Replacement Proceeds.
"Variable Yield Issue" means any issue that is not a Fixed Yield Issue.
A-12
008, [3484.DOCS.TAX]AIT_A.
"Working Capital Expenditures" means any costs of a type that do not constitute
Capital Expenditures, including current operating expenses.
"Yield" has the meaning assigned to it for purposes of Section 148, and means
that discount rate (stated as an annual percentage) that, when used in computing the present
worth of all applicable unconditionally payable payments of Debt Service and all payments for
a QualifIed Guarantee, if any, paid and to be paid with respect to an obligation (paid and to be
paid during and attributable to the Yield Period in the case of a Variable Yield Issue), produces
an amount equal to (a) the Issue Price in the case of a Fixed Yield Issue or the present value of
all the Issue Prices during the Yield Period in the case of a Variable Yield Issue, or (b) the
purchase price for yield purposes in the case of Investment Property, all subject to the applicable
methods of computation provided for under Section 148, including variations from the foregoing.
The Yield on Investment Property in which Proceeds or Replacement Proceeds of an issue are
invested is computed on a basis consistent with the computation of Yield on that issue, including
the same compounding interval (of not more than one year selected by the Issuer).
"Yield Period" means, in the case of the first Yield Period, the period that
commences on the Issuance Date and ends at the close of business on the first Computation Date
and, in the case of each succeeding Yield Period, the period that begins immediately after the
end of the immediately preceding Yield Period and ends at the close of business on the next
succeeding Computation Date.
The terms advance refunding, "current refunding", "bond", "obligation",
"reasonable retainage", "reasonably required reserve or replacement fund", "reserve or
replacement fund", "loan", "sinking fund", "multipurpose issue", "purpose investment",
"variable yield obligation", "yield reduction payment", "other replacement proceeds", and other
terms relating to Code provisions used but not defined in this Certificate shall have the meanings
given to them for purposes of Sections 103 and 141 to 150 unless the context indicates another
meaning.
(End of Attachment A)
.
A-13
008: [3484 . DOCS . TAX1AIT_A.
ATTACHMENT A-I
to
Tax Compliance Certificate of Issuer
pertaining to
Not to Exceed
$1,294,000
City of Miami Beach, Florida
Subordinate Resort Tax Revenue Note,
Series 1999 (41 st Street Beautification Project)
INSTRUCTIONS FOR COMPLIANCE WITH REBATE
REQUIREMENTS OF SECTION 148(t) OF THE CODE.
The Issuerl covenanted in the operative documents (i.e., OrdinanceIResolution!rrust Indenture and
Tax Compliance Certificates) to comply with the arbitrage rebate requirement of Section 148(f) of
the Code. These Instructions provide guidance for that compliance, including the spending
exceptions that free the Issue from all or part of the rebate requirements.
PART I: GENERAL
SECTION 1.01. REBATE GENERALLY.
The Rebate Amount2 with respect to the Issue must be paid (rebated) to the United States to prevent
the bonds of the Issue from being arbitrage bonds, the interest on which is subject to federal income
tax. In general, the Rebate Amount is the amount by which the actual earnings on Nonpurpose
Investments purchased (or deemed to have been purchased) with Gross Proceeds of the Issue
exceed the amount of earnings that would have been received if those Nonpurpose Investments had
a Yield equal to the Yield on the Issue.3 Stated differently, the Rebate Amount for the Issue as of
aIiy date is the excess of the Future Value, as of that date, of all Receipts on Nonpurpose
Investments over the Future Value, as of that date, of all Payments on Nonpurpose Investments,
computed using the Yield on the Issue as the Future Value rate.4
For purposes of these Instructions, the term "Issuer" includes the borrower in a conduit fInancing issue.
.
Capitalized tenns that are not defined in these Instructions are defmed in Attachment A to the Tax.
Compliance CertifIcate of the Issuer.
2.
3.
Amounts earned on the Bona Fide Debt Service Fund for the Issue are not taken into account in determining
the Rebate Amount since the average annual Debt Service on the Issue does not exceed $2,500,000.
4.
The scope of these Instructions does not permit a detailed description of the computation of the Rebate
Amount with respect to the Issue. If you need assistance in computing the Rebate Amount on the Issue or
want Squire, Sanders & Dempsey L.L.P. to do the computations, please feel free to contact the Squire.
Sanders & Dempsey L.L.P. attorney with whom you normally consult.
MiuIIi; MlAll-<lll; eo.:..- .: _I
Page 2
If the Issue is a Fixed Yield Issue, the Yield on the Issue generally is the Yield to maturity, taking
into account mandatory redemptions prior to maturity. If the Issue is a Variable Yield Issue, the
Yield on the Issue is computed separately for each Yield Period selected by the Issuer.
SECTION 1.02. SPECIAL DEFINITIONS.
For purposes of these Instructions, the following terms shall have the following meanings.
"Available Construction Proceeds" means an amount equal to (a) the sum of (i) the Issue Price of
the issue, (ii) Investment Proceeds on that Issue Price, (iii) earnings on any reasonably required
reserve or replacement fund allocated to the issue not funded from the Issue Price, and (iv)
Investment Proceeds and earnings on (ii) and (iii), (b) reduced by the portions, if any, of the Issue
Price of the issue (i) attributable to Pre-Issuance Accrued Interest and earnings thereon, (ii)
allocated to the Underwriter's discount, (iii) used to pay other Issuance Costs of the issue, and (iv)
deposited in a reasonably required reserve or replacement fund allocated to the issue. Available
Construction Proceeds do not include Investment Proceeds or earnings on a reasonably required
reserve or replacement fund allocated to the issue for any period after the earlier of (a) the close of
the 2-year period that begins on the Issuance Date or (b) the date the construction of the Projects
financed by the issue is substantially completed. If the issue consists of a New Money Portion and
a Refunding Portion and the New Money Portion is a Construction Issue, this definition shall be
applied by substituting ''New Money Portion" for "issue" each place the latter term appears. If the
issue or the New Money Portion, as applicable, is not a Construction Issue, and the Issuer makes the
election under Regulations ~ 1.148-7 (j)( 1) and Section 148( f)( 4)( C)( v) to treat the issue or the New
Money Portion as two separate issues consisting of the Construction Portion and the
Nonconstruction Portion, this definition shall be applied by substituting "Construction Portion" for
"issue" each place the latter term appears.
"Bifurcated Issue" means a New Money Issue or the New Money Portion of a Multipurpose Issue
that the Issuer, pursuant to Section 148( t)( 4)( C)( v) and Regulations ~ 1.148-70), has elected in its
Tax Compliance Certificate to bifurcate into a Construction Portion and a Nonconstruction Portion.
"Bond Counsel's Opinion" means an opinion or opinions of a nationally recognized bond counsel
firm whose opinion is given with respect to the Issue when issued, or its successors or other
nationally recognized bond counsel appointed by the Issuer.
"Bond Year" means the annual perioJ relevant to the application of Section 148(t) to the issue,
except that the first and last Bond Years may be less than 12 months long. The last day of a Bond
Year shall be the close of business on the day preceding the anniversary of the Issuance Date of the
issue unless the Issuer selects another date on which to end a Bond Year in the manner permitted by
the Code.
"Computation Date" means each date on which the Rebate Amount for an issue is required to be
computed under Regulations ~ 1.148-3( e). In the case of a Fixed Yield Issue, the first Computation
Date shall not be later than 5 years after the Issuance Date of the issue. Subsequent Computation
Miami; MIA 11-03 I; O.a.......: 2_1
Page 3
Dates shall be not later than 5 years after the immediately preceding Computation Date for which
an installment payment of the Rebate Amount was paid. In the case of a Variable Yield Issue, the
fIrst Computation Date shall be the last day of any Bond Year irrevocably selected by the Issuer
ending on or before the fIfth anniversary of the Issuance Date of such issue and subsequent
Computation Dates shall be the last day of each Bond Year thereafter or each fIfth Bond Year
thereafter, whichever is irrevocably selected by the Issuer after the fIrst date on which any portion of
the Rebate Amount is required to be paid to the United States. The fmal Computation Date is the
date an issue is retired.
"Construction Expenditures" means Capital Expenditures allocable to the cost of real property
(including the construction or making of improvements to real property, but excluding acquisitions
of interests in land or other existing real property) or constructed personal property within the
meaning of Regulations 91. I 48-7(g).
"Construction Issue" means an issue at least 75 percent of the Available Construction Proceeds of
which are to be used for Construction Expenditures with respect to property which is or is to be
owned by a Governmental Unit or a 501(c)(3) Organization. If an election has been made in the
Issuer's Tax Compliance CertifIcate to bifurcate an issue or the New Money Portion, the
Construction Portion (i.e., that portion of the issue or the New Money Portion which satisfies the 75
percent test stated in the preceding sentence and which fmances 100% of the Construction
Expenditures) is treated as the Construction Issue and the balance of the issue or the New Money
Portion is treated as the Nonconstruction Portion.
"Fixed Yield Issue" means an issue of obligations the Yield on which is fIxed and determinable on
the Issuance Date.
"Future Value" means the value of a Payment or Receipt at the end of a period determined using the
economic accrual method as the value of that Payment or Receipt when it is paid or received (or
treated as paid or received), plus interest assumed to be earned and compounded over the period at
a rate equal to the Yield on the Issue, using the same compounding interval and fmancial
conventions that were used to compute that Yield.
"Guaranteed Investment Contract" means any Nonpurpose Investment that has specifIcally
negotiated withdrawal or retirement provisions and a specifIcally negotiated interest rate and any
agreement to supply investments on two or more future dates ~, a forward supply contract).
,
"Multipurpose Issue" means an issue that consists of a Refunding Portion and a New Money
Portion.
"Payment" means payments actually or constructively made to acquire Nonpurpose Investments, as
specifIed in Regulations 91. 148-3(d)(I)i) through (v).
"QualifIed Administrative Costs" means the reasonable, direct administrative costs, other than
carrying costs, of purchasing or selling Nonpurpose Investments such as separately stated brokerage
Miami: MIAII-OJI: ~.: Z066.1
Page 4
or selling commissions. Qualified Administrative Costs do not include legal and accounting fees,
recordkeeping, custody, and similar costs, general overhead costs and similar indirect costs of the
Issuer such as employee salaries and office expenses and costs associated with computing the
Rebate Amount. In general, Qualified Administrative Costs are not reasonable unless they are
comparable to administrative costs that would be charged for the same investment or a reasonably
comparable investment if acquired with a source of funds other than Gross Proceeds of Tax-
Exempt Obligations.
"Reasonable Retainage" means an amount, not to exceed 5% of the Net Sale Proceeds of the Issue,
that is retained for reasonable business purposes relating to the property fmanced with Proceeds of
the Issue. For example, Reasonable Retainage may include a retention to ensure or promote
compliance with a construction contract in circumstances in which the retained amount is not yet
payable, or in which the Issuer reasonably determines that a dispute exists regarding completion or
payment.
"Rebate Analyst" means an independent individual, firm or entity experienced in the computation
of the Rebate Amount pursuant to Section 148(t) of the Code.
"Receipt" means amounts actually or constructively received from Nonpurpose Investments as
specified in Regulations gl.148-3( d)(2)(i) through (iii).
"Variable Yield Issue" means any issue that is not a Fixed Yield Issue.
"Yield Period" means, in the case of the first Yield Period, the period that commences on the
Issuance Date and ends at the close of business on the first Computation Date and, in the case of
each succeeding Yield Period, the period that begins immediately after the end of the immediately
preceding Yield Period and ends at the close of business on the next succeeding Computation Date.
PART II: EXCEPTIONS TO REBATE
SECTION 2.01. SPENDING EXCEPTIONS.
.
The rebate requirements with respect to the Issue are deemed to have been satisfied if anyone of
three spending exceptions (the 6-Month, the 18-Month, or the 2-Year Spending Exception,
collectively, the "Spending Exceptions") is satisfied. The Spending Exceptions are each
independent exceptions. The Issue need not meet the requirements of any other exception in order
to use anyone of the three exceptions. F or example, a Construction Issue may qualify for the
6-Month Spending Exception or the 18-Month Spending Exception even though the Issuer makes
one or more elections under the 2- Year Exception with respect to the Issue.
The following rules apply for purposes of all of the Spending Exceptions except as otherwise noted.
Miami; MlAI~]I; Ooc:umcal'; lO66vI
Page 5
Refunding Issues. The only spending exception available for a Refunding Issues is the 6-Month
Spending Exception.
Special Transferred Proceeds Rules. In applying the Spending Exceptions to a Refunding Issue,
unspent Proceeds of the Prior Issue that become Transferred Proceeds of the Refunding Issue are
ignored. If the Prior Issue satisfies one of the rebate Spending Exceptions, the Proceeds of the Prior
Issue that are excepted from rebate under that exception are not subject to rebate either as Proceeds
of the Prior Issue or as Transferred Proceeds of the Refunding Issue.
However, if the Prior Issue does not satisfy any of the Spending Exceptions and is not otherwise
exempt from rebate, the Transferred Proceeds from the Prior Issue will be subject to rebate, even if
the Refunding Issue satisfies the 6-Month Spending Exception. The Rebate Amount will be
calculated on the Transferred Proceeds on the basis of the Yield of the Prior Issue up to each
transfer date and on the basis of the Yield of the Refunding Issue after each transfer date.
Application of Soending Exceptions to a Multipurpose Issue. If the Issue is a Multipurpose Issue,
the Refunding Portion and the New Money Portion are treated for purposes of the rebate Spending
Exceptions as separate issues. Thus, the Refunding Portion is eligible to use only the 6-Month
Spending Exception. The New Money Portion is eligible to use any of the three Spending
Exceptions.
Expenditures for Governmental Purposes of the Issue. Each of the spending exceptions requires
that expenditures of Gross Proceeds be for the governmental purposes of the Issue. These purposes
include payment of interest (but not principal) on the Issue.
SECTION 2.02. 6-MONTH SPENDING EXCEPTION.
The Issue will be treated as satisfying the rebate requirements if all of the Gross Proceeds of the
Issue are allocated to expenditures for the governmental purposes of the Issue within the 6-month
period beginning on the Issuance Date and the Rebate Amount, if any, with respect to earnings on
amounts deposited in a reasonably required reserve or replacement fund or a Bona Fide Debt
Service Fund if and to the extent that such Fund is subject to rebate (see footnote 3) is timely paid
to the United States. If no bond of the Issue is a Private Activity Bond (other than a Qualified
501(c)(3) Bond) or a tax or revenue anticipation bond, the 6-month period is extended for an
additional 6 months if the unexpended Gross Proceeds of the Issue at the end of the 6-month period
do tot exceed the lesser of5% of the Proceeds of the Issue or $100,000.
For purposes of the 6-Month Spending Exception, Gross Proceeds required to be spent within 6
months do not include amounts in a reasonably required reserve or replacement fund for the Issue
or in a Bona Fide Debt Service Fund for the Issue.
,.
For purposes of these Instructions. references to "Refunding Issue" include the Refunding Portion of a
Multipurpose Issue.
Miami; MIAII-<lJI: ~.: 2066.1
Page 6
SECTION 2.03. I8-MONTH SPENDING EXCEPTION.
The Issue (or the New Money Portion if the Issue is a Multipurpose Issue) is treated as satisfying
the rebate requirement if the conditions set forth in (A), (B) and (C) are satisfied.
(A) All of the Gross Proceeds of the Issue (excluding amounts in a reasonably required reserve or
replacement fund for the Issue or in a Bona Fide Debt Service Fund for the Issue) are allocated to
expenditures for the governmental purposes of the Issue in accordance with the following schedule,
measured from the Issuance Date:
(l)at least 15% within 6 months;
(2)at least 60% within 12 months; and
(3)100% within 18 months, subject to the Reasonable Retainage exception described below.
(B) The Rebate Amount, if any, with respect to earnings on amounts deposited in a reasonably
required reserve or replacement fund or in a Bona Fide Debt Service Fund for the Issue, to the
extent such Fund is subject to rebate (see footnote 3), is timely paid to the United States. And,
(C) The Gross Proceeds of the Issue qualify for the initial3-year Temporary Period.
If the only unspent Gross Proceeds at the end of the 18th month are Reasonable Retainage, the
requirement that 100% of the Gross Proceeds be spent by the end of the 18th month is treated as
met if the Reasonable Retainage, and all earnings thereon, are spent for the governmental purposes
of the Issue within 30 months of the Issuance Date.
For purposes of determining whether the spend-down requirements have been met as of the end of
each of the first two spending periods, the amount of Investment Proceeds that the Issuer reasonably
expects as of the Issuance Date to earn on the Sale Proceeds and Investment Proceeds of the Issue
during the IS-month period are included in Gross Proceeds of the Issue. The final spend-down
requirement includes actual Investment Proceeds for the entire 18 months.
The IS-Month Spending Exception does not apply to the Issue (or the New Money Portion, as .
applicable) if any portion of the Issue (or New Money Portion) is treated as meeting the rebate
requirement under the 2- Year Spending Exception discussed below. This rule prohibits use of the
IS-Month Spending Exception for the Nonconstruction Portion of a Bifurcated Issue. The only
Spending Exception available for the Nonconstruction Portion of a Bifurcated Issue is the 6-Month
Spending Exception.
Miami; MlAI~31; ~.: lO66vl
Page 7
SECTION 2.04. 2-YEAR SPENDING EXCEPTION FOR CERTAIN CONSTRUCTION
ISSUES.
(A) In general. A Construction Issue no bond of which is a Private Activity Bond (other than a
Qualified 501 (c)(3) Bond or a Bond that finances property to be owned by a Governmental Unit or
a SOI(c)(3) Organization) is treated as satisfying the rebate requirement if the Available
Construction Proceeds of the Issue are allocated to expenditures for the governmental purposes of
the Issue in accordance with the following schedule, measured from the Issuance Date:
(I )at least 10% within 6 months;
(2)at least 45% within 1 year;
(3)at least 75% within 18 months; and
(4)100% within 2 years, subject to the Reasonable Retainage exception described below.
Amounts in a Bona Fide Debt Service Fund or a reasonably required reserve or replacement fund
for the Issue are not treated as Gross Proceeds for purposes of the expenditure requirements.
However, unless the Issuer has elected otherwise in the Tax Compliance Certificate, earnings on
amounts in a reasonably required reserve or replacement fund for the Issue are treated as Available
Construction Funds during the 2-year period and therefore must be allocated to expenditures for the
governmental purposes of the Issue.
If the Issuer elected in the Tax Compliance Certificate to exclude from Available Construction
Proceeds the Investment Proceeds or earnings on a reasonably required reserve or replacement fund
for the Issue during the 2-year spend-down period, the Rebate Amount, if any, with respect to such
Investment Proceeds or earnings from the Issuance Date must be timely paid to the United States.
If the election is not made, the Rebate Amount, if any, with respect to such Investment Proceeds or
earnings after the earlier of the date construction is substantially completed or 2 years after the
Issuance Date must be timely paid to the United States. The Rebate Amount, if any, with respect to
earnings on amounts in a Bona Fide Debt Service Fund must be timely paid to the extent such Fund
is subject to the rebate requirements (see footnote 3).
The Issue does not fail to satisfy the spending requirement for the fourth spend-down period M.,
100% within 2 years of the Issuance Date) if the only unspent Available Construction Proceeds are
amounts for Reasonable Retainage if such amounts (together with all earnings on such amounts) are
allocated to expenditures within 3 years of the Issuance Date.
For purposes of determining whether the spend-down requirements have been met as of the end of
each of the first 3 spend-down periods, Available Construction Proceeds include the amount of
Investment Proceeds or earnings that the Issuer reasonably expected as of the Issuance Date to earn
during the 2-year period. For purposes of satisfying the final spend-down requirement, Available
Miami; M1AI~JI; ~.: lO66vl
Page 8
Construction Proceeds include actual Investment Proceeds or earnings from the Issuance Date
through the end of the 2-year period.
Available Construction Proceeds do not include Gross Proceeds used to pay Issuance Costs
fmanced by the Issue, but do include earnings on such Proceeds. Thus, an expenditure of Gross
Proceeds to pay Issuance Costs does not count toward meeting the spend-down requirements, but
expenditures of earnings on such Gross Proceeds to pay Issuance Costs do count.
(B) 112% penalty in lieu of rebate for Construction Issues. If the Issuer elected in the Tax
Compliance Certificate for a Construction Issue, or for the Construction Portion of a Bifurcated
Issue, to pay a 1 Yz% penalty in lieu of the Rebate Amount on Available Construction Proceeds in
the event that the Construction Issue fails to satisfy any of the spend-down requirements, the 112%
penalty is calculated separately for each spend-down period, including each semi-annual period
after the end of the fourth spend-down period until all Available Construction Proceeds have been
spent. The penalty is equal to 0.015 times the underexpended Proceeds as of the end of the
applicable spend-down period. The fact that no arbitrage is in fact earned during such spend-down
period is not relevant. The Rebate Amount with respect to Gross Proceeds other than Available
Construction Proceeds ~, amounts in a reasonably required reserve or replacement fund or in a
Bona Fide Debt Service Fund, to the extent subject to rebate (see footnote 3)) must be timely paid.
PART ill: COMPUTATION AND PAYMENT.
SECTION 3.01. COMPUTATION AND PAYMENT OF REBATE AMOUNT.
If none of the Spending Exceptions described above is satisfied (and if the 1-1/2% penalty election
for a Construction Issue or the Construction Portion of a Bifurcated Issue has not been made), then
within 45 days after each Computation Date, the Issuer shall compute, or cause to be computed, the
Rebate Amount as of such Computation Date. The first Computation Date is a date selected by the
Issuer, but shall be not later than 5 years after the Issuance Date. Each subsequent Computation
Date shall end 5 years after the previous Computation Date except that, in a Variable Yield Issue,
the Issuer may select annual Yield Periods. The final Computation Date shall be the date the last
obligation of the Issue matures or is finally discharged.
Within 60 days after each Computation Date (except the fmal Computation Date), the Issuer shall
pay to the United States not less than 90% of the Rebfte Amount, if any, computed as of such
Computation Date. Within 60 days after the fmal Computation Date, the Issuer shall pay to the
United States 100% of the Rebate Amount, if any, computed as of the fmal Computation Date. In
computing the Rebate Amount, a computation credit of $1,000 may be taken into account on the
last day of each Bond Year to the Computation Date during which there are unspent Gross Proceeds
that are subject to the rebate requirement, and on the fmal maturity date.
If the operative documents pertaining to the Issue establish a Rebate .Fund and require the
computation of the Rebate Amount at the end of each Bond Year, the Issuer shall calculate, or
cause to be calculated, within 45 days after the end of each Bond Year the Rebate Amount, taking
MWnl; MIAI~ll; ~,: lO66vl
Page 9
into account the computation credit of $1 ,000 for each Bond Year. Within 50 days after the end of
each Bond Year, if the Rebate Amount is positive, the Issuer shall deposit in the Rebate Fund such
amount as will cause the amount on deposit therein to equal the Rebate Amount, and may withdraw
any amount on deposit in the Rebate Fund in excess of the Rebate Amount. Payments of the
Rebate Amount to the Internal Revenue Service on a Computation Date shall be made first from
amounts on deposit in the Rebate Fund and second from other amounts specified in the operative
documents.
Each payment of the Rebate Amount or portion thereof shall be payable to the Internal Revenue
Service and shall be made to the Internal Revenue Service Center, Philadelphia, PA 19255 by
certified mail. Each payment shall be accompanied by Internal Revenue Service Form 8038-T and
any other form or forms required to be submitted with such remittance.
SECTION 3.02. BOOKS AND RECORDS.
(A) The Issuer or Trustee, as applicable, shall keep proper books of record and accounts containing
complete and correct entries of all transactions relating to the receipt, investment, disbursement,
allocation and application of the Gross Proceeds of the Issue. Such records shall specify the
account or fund to which each Nonpurpose Investment (or portion thereot) held by the Issuer or
Trustee is to be allocated and shall set forth as to each Nonpurpose Investment (1) its purchase
price, (2) identifying information, including par amount, interest rate, and payments dates, (3) the
amount received at maturity or its sales price, as the case may be, including accrued interest, (4) the
amounts and dates of any payments made with respect thereto, and (5) the dates of acquisition and
disposition or maturity.
The Issuer, Trustee, or Rebate Analyst, as applicable, shall retain the records of all calculations and
payments of the Rebate Amount until six years after the retirement of the last obligation that is a
part of the Issue.
SECTION 3.03. FAIR MARKET VALUE.
No Nonpurpose Investment shall be acquired for an amount in excess of its fair market value. No
Nonpurpose Investment shall be sold or otherwise disposed of for an amount less than its fair
market value.
The fair market value of any Nonpurpose Investment shall be the pri!e at which a willing buyer
would purchase the Nonpurpose Investment from a willing seller in an arms-length transaction.
Fair market value generally is determined on the date on which a contract to purchase or sell the
Nonpurpose Investment becomes binding (i.e., the trade date rather than the settlement date).
Except as otherwise provided in this Section, a Nonpurpose Investment that is not of a type traded
on an established securities market (within the meaning of Section 1273 of the Code) is rebuttably
presumed to be acquired or disposed of for a price that is not equal to its fair market value.
Miami; MlAI..,'I; ~.: 2066Y1
Page 10
(A) Obligations purchased directly from the Treasury. The fair market value of a United States
Treasury obligation that is purchased directly from the United States Treasury is its purchase price.
(B) Safe harbor for Guaranteed Investment Contracts. The purchase price of a Guaranteed
Investment Contract shall be treated as its fair market value on the purchase date if all the following
conditions are met:
(I) The Issuer or broker makes a bona fide solicitation for a specified Guaranteed Investment
Contract and receives at least three bona fide bids from reasonably competitive providers (of
Guaranteed Investment Contracts) that have no material financial interest in the Issue.
(2) The Issuer purchases the highest-yielding Guaranteed Investment Contract for which a
qualifying bid is made (determined net of broker's fees);
(3) The Yield on the Guaranteed Investment Contract (determined net of broker's fees) is not less
than the Yield then available from the provider on reasonably comparable Guaranteed Investment
Contracts, if any, offered to other persons from a source of funds other than Gross Proceeds of Tax-
Exempt Obligations;
(4) The determination of the terms of the Guaranteed Investment Contract takes into account as a
significant factor the Issuer's reasonably expected drawdown schedule for the amounts to be
invested, exclusive of amounts deposited in a Bona Fide Debt Service Fund and a reasonably
required reserve or replacement fund;
(5) The terms of the Guaranteed Investment Contract, including collateral security requirements,
are reasonable; and
(6) The obligor on the Guaranteed Investment Contract certifies the administrative costs that it is
paying (or expects to pay) to third parties in connection with the Guaranteed Investment Contract.
(C) Safe harbor for certificates of deposit. The purchase price of a certificate of deposit shall be
treated as its fair market value on the purchase date if all of the following requirements are met:
(1) The certificate of deposit has a fixed interest rate, a fixed payment schedule, and a substantial
penalty for erly withdrawal; and
(2) The Yield on the certificate of deposit is not less than (a) the Yield on reasonably comparable
direct obligations of the United States, or (b) the highest Yield that is published or posted by the
provider to be currently available from the provider on reasonably comparable certificates of
deposit offered to the public.
Certificates evidencing the foregoing requirements should be obtained before purchasing any
Guaranteed Investment Contract or certificate of deposit.
MJami; MlAI..,ll; ~.: 2......
Page 11
SECTION 3.04. CONSTRUCTIVE SALE/PURCHASE.
(A) Nonpurpose Investments that are held by the Issuer or Trustee as of any Computation Date (or
Bond Year if the computations are required to be done annually) shall be treated for purposes of
computing the Rebate Amount as of such date as having been sold for their fair market value as of
such date. Investment Property which becomes allocated to Gross Proceeds of the Issue on a date
after such Investment Property has actually been purchased shall be treated for purposes of the
rebate requirements as having been purchased by the Issuer on such date of allocation at its fair
market value on such date.
(B) For purposes of constructive or deemed sales or purchases of Investment Property (other than
Investment Property in the Escrow Fund or that is otherwise not invested for a Temporary Period or
is not part of a reasonably required reserve or replacement fund for the Issue) must be valued at its
fair market value on the date of constructive or deemed sale or purchase
(C) Except as set forth in (8), fixed rate Investment Property that is (1) issued with not more than
2% of original issue discount or original issue premium, (2) issued with original issue premium that
is attributable exclusively to reasonable underwriters' compensation or (3) acquired with not more
than 2% of market discount or market premium, may be treated as having a fair market value equal
to its outstanding stated principal amount, plus accrued interest. Fixed rate Investment Property
also may be treated as having a fair market value equal to its present value.
SECTION 3.05. ADMINISTRATIVE COSTS.
(A) Administrative costs shall not be taken into account in determining the payments for or
receipts from a Nonpurpose Investment unless such administrative costs are Qualified
Administrative Costs. Thus, administrative costs or expenses paid, directly or indirectly, to
purchase, carry, sell, or retire Nonpurpose Investments generally do not increase the Payments for,
or reduce the Receipts from, Nonpurpose Investments.
(B) Qualified Administrative Costs are taken into account in determining the Payments and
Receipts on Nonpurpose Investments and thus increase the Payments for, or decrease the Receipts
from, Nonpurpose Investments. In the case of a Guaranteed Investment Contract, a broker's
commission or similar fee paid on behalf of either the Issuer or the provider is an administrative
cost that is not a Qualified A<iI!llnistrative Cost to the extent that the present value (computed using
the taxable discount rate usJd by the parties to compute the commission or, if not readily
ascertainable, a reasonable taxable discount rate) of the commission, as of the date the contract is
purchased, exceeds the present value of annual payments equal to 0.05 percent of the weighted
average amount reasonably expected to be invested each year during the term of such contract.
MIami; MlAIW11; ~.: 2066Y1
Page 12
PART IV: COMPLIANCE AND AMENDMENT
SECTION 4.01. COMPLIANCE.
The Issuer, Trustee or Rebate Analyst, as applicable, shall take all necessary steps to comply with
the requirements of these Instructions in order to ensure that interest on the Issue is excluded from
gross income for federal income tax purposes under Section 103(a) of the Code. However,
compliance shall not be required in the event and to the extent stated therein the Issuer and the
Trustee receive a Bond Counsel's Opinion that either (A) compliance with such requirement is not
required to maintain the exclusion from gross income for federal income tax purposes of interest on
the Issue, or (B) compliance with some other requirement in lieu of such requirement will comply
with Section 148(f) of the Code, in which case compliance with the other requirement specified in
the Bond Counsel's Opinion shall constitute compliance with such requirement.
SECTION 4.02. LIABILITY.
If for any reason any requirement of these Instructions is not complied with, the Issuer and the
Trustee, if applicable, shall take all necessary and desirable steps to correct such noncompliance
within a reasonable period of time after such noncompliance is discovered or should have been
discovered with the exercise of reasonable diligence. The Trustee shall have no duty or
responsibility to independently verify any of the Issuer's, or the Rebate Analyst's, calculations with
respect to the payments of the Rebate Amount due and owing to the United States. Under no
circumstances whatsoever shall the Trustee be liable to the Issuer, any bondholder or any other
person for any inclusion of the interest on the Issue in gross income for federal income tax
purposes, or any claims, demands, damages, liabilities, losses, costs or expenses resulting therefrom
or in any way connected therewith, so long as the Trustee acts only in accordance with these
Instructions and the operative documents pertaining to the Issue.
SQUIRE, SANDERS & DEMPSEY L.L.P.
March 24, 1999
Miuai; MlAll..oll; Dac:uIacat.: 1066v1
Attachment B
To Tax Compliance Certificate of
City of Miami Beach, Florida
Purchaser's Certificate
Colonial Bank (the "Purchaser"), as Purchaser of the not to exceed $1,294,000 City of
Miami Beach, Florida Subordinate Resort Tax Revenue Note, Series 1999 (41 st Street Beautification
Project), dated March 24, 1999 (the "Issue"), issued by the City of Miami Beach, Florida (the
"Issuer"), based on its knowledge regarding the sale of the Issue, certifies that:
(1) Issue Price -- Section 148. The Purchaser is purchasing the Issue from the Issuer
at a purchase price of not to exceed $1,294,000 (there being no accrued interest) as an investment of
the Purchaser and not for purposes of resale. Thus, the Issue Price of the Issue is not to exceed
$1,294,000.
(2) Issue Price -- Information Return. For purposes of the Information Return
required by Section 149( e) of the Internal Revenue Code to be filed with the Internal Revenue Service
in connection with the Issue, the Issue Price of the entire Issue is $1,294,000, assuming the entire
principal amount of the Issue is drawn. The Issue Price of the Issue for the final maturity taking into
account mandatory principal payments prior to maturity and the net interest cost of the Issue can not be
determined.
(3) Yield. The yield on the Issue, calculated in accordance with Section 148(h) of the
Code and Treasury Regulations ~ 1.148-4, is 4.60%, being that yield which, when used in computing
the present worth of all payments of principal and interest to be paid on the Issue, computed on the
basis of a year consisting of 3 60 days and semi annual compounding, produces an amount equal to the
aggregate Issue Price of the Issue as stated in paragraph (1) above.
(4) Authorized Officer. The undersigned is an officer of Colonial Bank and is
authorized to execute and deliver this Certificate for itself in connection with the issuance of the Issue.
It is understand that the certifications contained herein will be relied on by the Issuer in making certain
of its representations in its Tax Compliance Certificate and by Squire, Sanders & Dempsey L.L.P., as
bond counsel, in rendering certain of its opinions in connection with the issuance of the Issue.
Dated: March 24, 1999
COLONIAL BANK
BYO--- - ~~
Title: - \t /~ ~/?!Vo .
Library: Miami; Document #:930v2
C'
COLONIAL BANK
March 24, 1999
City of Miami Beach
Miami Beach, Florida
Squire, Sanders & Dempsey L.L.P.
Miami, Florida
Re: Not to Exceed $1,294,000 City of Miami Beach, Florida Subordinate Resort Tax
Revenue Note, Series 1999 (41st Street Beautification Project)
Ladies and Gentlemen:
In connection with the proposed issuance of the above-referenced Note (the "Note") by the
City of Miami Beach, Florida (the "Issuer"), the undersigned hereby confirms that it is purchasing
the Note. In consideration of the issuance and delivery of the Note, and as an inducement thereof,
the undersigned hereby advises you that
1. The business of the undersigned is that normally attributed to a bank and it has
made other purchases of bonds and notes issued by governmental entities similar
to yourself and the undersigned has such knowledge and experience in
governmental issues that it is capable of evaluating the merits and risks of
purchasing the Note.
2. During the course of the transaction, prior to the sale and delivery of the Note, the
undersigned has:
(a) received and reviewed copies in final form of the Note, Resolution No. 99-
23043 adopted by the Issuer on January 20, 1999 (the "Resolution"), the
Loan Agreement dated as of March 24, 1999, between the Issuer and the
undersigned Bank, and all documents, and instruments entered into in
connection therewith;
(b) been afforded the opportunity to ask questions of the City Attorney ("Counsel
to the Issuer") and Squire, Sanders & Dempsey L.L.P. ("Bond Counsel"),
concerning the terms and conditions of the aforementioned documents and
instruments; and
(c) been afforded the opportunity to ask questions concerning the financial
condition of the Issuer; received all such information and materials which it
has requested; and satisfied itself as to the accuracy and completeness of
such information and material. The undersigned understands that neither
Counsel to the Issuer nor Bond Counsel have been requested to undertake,
F:\A TTO\LEVL\BONDS\COLONIALICLOSING3.DOC
An Affiliate of The Colonial BancGroup, Inc.
P.O. Box 310367, Miami. Florida 33231-0367
www.colonialbank.com
AN EQUAL OPPORTUNITY EMPLOYER
City of Miami Beach
Squire, Sanders & Dempsey L.L.P.
March 24, 1999
Page 2
and they have not undertaken, to ascertain the accuracy or completeness of
any statements made in or concerning any of the information or documents
relating to the financial condition of the Issuer provided to the undersigned
by the Issuer and the undersigned has not relied upon Counsel to the Issuer
or Bond Counsel for such purposes.
3. The undersigned is purchasing the Note for its own account for investment and not
with a view to, or the sale in connection with, any distribution of all or any part of the
Note; provided that any subsequent disposition or transfer of the Note shall at all
times remain in control of the purchaser thereof.
4. Except for sales to financial institutions or accredited investors (as defined in Section
230.501 (a), Code of Federal Regulations), which shall be in the Bank's sole
discretion, in the event the undersigned should determine to resell any or all of the
Note, it agrees it will give advance written notice to the Issuer of the intended sale
and the nature thereof and shall, if requested by the Issuer within ten (10) days after
receipt of such notice, provide the Issuer with a written opinion of its legal counsel,
who is, and in a form which is, reasonably satisfactory 0 the Issuer, that the
proposed sale will be permitted under all applicable Federal or State securities laws,
rules or regulations, including, without limitation, the provisions of the Securities Act
of 1933 and the Trust Indenture Act of 1939. The undersigned agrees that any such
sale shall be subject to the purchaser providing to the Issuer a letter containing
similar representations to those set forth herein.
5. The undersigned has satisfied itself that the Note is a lawful investment for it under
all applicable laws.
Very truly yours,
Colonial Bank
BY:~~
a e:u,vti 'dc~ ~
Title: "j /) / I-
y ICt!' - /'/"~t<>/e7tI'n
F:'ATTO\lEVL\BONDSICOLONIAlICLOSING3.DOC
Information Return for Tax-Exempt Governmental Obligations
> Under Internal Revenue Code section 149(e)
> See separate instructions
(Note: Use Form 8038-GC if the issue price is under $100,000.)
Form 8038-G
(Rev. May 1995)
Department of the Treasury
Internal Revenue Service
Reporting Authority
Issuer's name
City of Miami Beach, Florida
3 Number and street (or P.O. box if mail is not delivered to street address)
1700 Convention Center Drive
5 City, town, state, and ZIP code
Miami Beach, Florida 33139
OMS No.1 545-0720
If Amended Return, check here ,.
Issuer's employer identification number
59-6000372
4 Report number
G1999-1
6 Date of issue
March 24, 1999
8 CUSIP Number
N/A
7 Name of issue
Subordinate Resort Tax Revenue Note, Series 1999 (41 st Street Beautification Project)
Type of Issue (check ap licable box(es) and enter the issue price)
. Does not include pre-issuance accrued interest. See line 21 .
Education (attach schedule-see instructions) ............. ............ ..................... ................... .......... ................... ;,
Health and hospital (attach schedule-see instructions) .................................................................................,.
11 Transportation........ ..... ...................... ..... ............. ............ ................ ...... ................................................. ;;..
12 Public safety ....................... ............... ........ .......... .............. .................... ................. ........... .................... ;;..
13 Environment (including sewage bonds) ......................................................................................................;;..
14 Housing.. .................... ................... ....... ............ .............. ............... .......................... ................. ............. ;;..
15 Utilities...... ......... ........ ............. ........... ...... ........... ............... .................................. .......... ................ ....... ;;..
16 X Other. Describe (see instructions) ;;"Street and sidewalk improvements
17 If obligations are tax or other revenue anticipation bonds, check box ;,
18
9
10
. Issue price
1,294,000
29
30
31 Enter the date(s) the refunded bonds were issued.............................................................................. ;;..
_ Miscellaneous
32 Enter the amount of the state volume cap allocated to the issue ............................................................ ;;..
33 Enter the amount of the bonds designated by the issuer under section 265(b)(3)(B)(i)(1I1) (small issuer
Exception) ......... ...................... ... .......... . ......... .................................. .... ... .......... .......... .... ..... ,.
34 Pooled financings:
a Enter the amount of the proceeds of this issue that are to be used to make loans to other governmental units.... ;;..
b If this issue is a loan made from the proceeds of another tax-exempt issue, check box and enter the name;;" 0
the Issuer> and the date of the issue ....;;..
35 If the issuer has elected to pay a penalty in lieu of rebate. check box........................................... .............;;.. 0
Under penalties of perjury, I declare th8t I have examined this return and accompanying schedules and statements. and to the best of my knowledge and belief, they are
;'1f;rf~(~
If obligations are in the form of a lease or installment sale, check box ;,
Description of Obli ations
(a)
Maturity date
(dl
Stated redemption
price at maturity
12/01/03 4.60% N/A N/A
1,294,000 N/A
inal Proceeds of Bond Issue (includin underwriters' discount)
21 Proceeds used for accrued interest.......................................................................................,.........................;;..
22 Issue price of entire issue (enter amount from line 20, column (c)).....................................................................;;..
23 Proceeds used for bond issuance costs (including underwriters' discount).......................;;.. 23 15,000
24 Proceeds used for credit enhancement .......................................................................;;.. 24 -0-
25 Proceeds allocated to reasonably required reserve or replacement fund ..........................;;.. 25 -0-
26 Proceeds used to refund prior issues ..........................................................................;;.. 26 -0-
(bl
Interest rate
(c)
Issue price
27 Total (add lines 23 through 26) .....................................................................................................................;;..
28
-0-
1,294,000
15,000
1,279,000
N/A
N/A
N/A
N/A
N/A
N/A
Please
Sign
Here
5i nsture of officer
IMarch 24, 1999 ~ IPatricia D. Walker, Finance Director
Date T e or rint name and title
Cat. No. 63773S Form 8038-G (Rev. 5-93)
For Paperwork Reduction Act Notice, see page 1 of the instructions.
OFFICE OF THE CITY ATTORNEY
<&i{y tf JIUomi l1mm
F
L
o
R
o
A
MURRAY H. DUBBIN
City Attorney
Telephone:
Telecopy:
(305) 673-7470
(305) 673-7002
March 22, 1999
VIA FEDERAL EXPRESS
Division of Bond Finance
180 I Hermit(!ge Boulevard Suite 100
Tallahassee, Florida 32308
Re:
Not to Exceed $1,294,000 City of Miami Beach, Florida Subordinate
Resort Tax Revenue Note, Series 1999 (41st Street Beautiiication
Project)
Ladies and Gentlemen:
In connection with the above-referenced bond issue (the "Note"), this notice is provided to
you in accordance with the requirements of Section 218.38(1)(a), Florida Statutes. Notice is hereby
given of the impendilJ.g issuance of the Note in the principal amount set forth above. The Issuer
expects to deliver the Note on or about March 24, 1999.
Copies of consolidated Form BF-2003/ BF-2004-B relating to the issuance of the Note will
be forwarded to you as soon as it is available.
Very truly yours,
~q.'d~
First Assistant City Attorney
LAL/bfg
F:\ATTOIlEV\.\80NDSICOLONlAL\CLOSINGJ.DOC
1700 Convention Center Drive -- Fourth Floor -- Miami Beach, Florida 33139
, J
STATE OF FLORIDA
DIVISION OF BOND FINANCE
LOCAL BOND MONITORING SECTION
This fonn represents an update and compilation of the BF2003, BF2004-A and BF2004-B fonns.
. Bond Information forms (BF2003) are required to be completed by local govemments pursuant to Chapter 19A-1.003. Florida Administrative Code (FAC.).
. Bond Disclosure forms BF2004-A (Competitive Sale) or BF2004-B (Negotiated Sale) are required to be filed with the Division within 120 days of the
delivery of the issue pursuant to Sections 218.38(1 )(b)1 and 218.38(1 )(c)1, Florida Statutes (F.S.), respectively.
. Final Official Statements, if prepared, are required to be submitted pursuant to Section 218.38(1), F.S.
. Please complete all items applicable to the issuer as provided by the Florida Statutes.
. PURSUANT TO SECTION 218.369, F.S., ISSUERS OF BOND ANTICIPATION NOTES ARE EXEMPT FROM THESE FILING REQUIREMENTS.
BF2003
BOND INFORMATION FORM
PART L ISSUER INFORMATION
1. NAME OF GOVERNMENTAL UNIT: City of Miami Beach. Florida
2. MAILING ADDRESS OF GOVERNMENTAL UNIT OR ITS MANAGER:
1700 Convention Center Drive. 4th Floor. Miami Beach. FL 33139
3. COUNTY(IES) IN WHICH GOVERNMENTAL UNIT HAS JURISDICTION:
Miami-Dade County .
4. TYPE OF ISSUER:
COUNTY
--1L CITY
AUTHORITY
INDEPENDENT SPECIAL DISTRICT
DEPENDENT SPECIAL DISTRICT
SPECIFY OTHER
PART IL BOND ISSUE INFORMATION
1. NAME OF BOND ISSUE: Subordinate Resort Tax Revenue Note. Series 1999 (41 st Street Beautification Proiect)
2. AMOUNT ISSUED: $1,294,000
3. AMOUNT AUTHORIZED: $1,400,000
4. DA TED DATE: March 24, 1999
5. SALE DATE: March 24, 1999 6. DELIVERY DATE: March 24, 1999
7. LEGAL AUTHORITY FOR ISSUANCE: FLORIDA STATUES Ch.166
SPECIAL ACTS Ch. 67-930. Laws of Florida. Acts of 1967. as amended
OTHER
8. TYPE OF ISSUE: GENERAL OBLIGA nON SPECIAL ASSESSMENT
...1L. REVENUE _ COP (CERTIFICATE OF PARTICIPATION)
_ BANK LOAN/LINE OF CREDIT EXCISE TAX
SPECIAL OBLIGATION
LEASE-PURCHASE
9. A. IS THIS A PRIVATE ACTIVITY BOND (PAB)? _ YES --2L NO
B. I. IF YES, DID THIS ISSUE RECEIVE A PAB ALLOCA nON? YES NO
2. IF YES, AMOUNT OF ALLOCA nON: $
F-\A T'TOlUVlJlONOlI'COUJNIAL'ClDSlNOl_DOC
10. SPECIFIC REVENUE(S) PLEDGED:
(1 ) PRIMARY Specified portion of Resort Tax
(2) SECONDAR Y No secondary pled~e - instead there is a covenant to bud~et and appropriate.
(3) OTHER(S)
11. A. PURPOSE(S) OF THE ISSUE:
(1) PRIMARY Street. sidewalk and related improvements
(2) SECONDARY
(3) OTHER(S)
B. IF PURPOSE IS REFUNDING, COMPLETE THE FOLLOWING:
(l) FOR EACH ISSUE REFUNDED LIST: NAME OF ISSUE, DATED DATE, ORIGINAL PAR VALUE (PRINCIPAL
AMOUNT) OF ISSUE, AND AMOUNT OF PAR VALUE (PRINCIPAL AMOUNT) REFUNDED.
(2) REFUNDED DEBT HAS BEEN: RETIRED OR
(3) A. DID THE REFUNDING ISSUE CONTAIN NEW MONEY? YES
B. IF YES, APPROXIMA TEL YWHA T PERCENTAGE OF PROCEEDS IS NEW MONEY?
DEFEASED
_NO
%
12. TYPE OF SALE:
COMPETITIVE BID _ NEGOTIATED
-1:L NEGOTIATED PRIVATE PLACEMENT
13. BASIS OF INTEREST RATE CALCULATION, I.E., INTEREST RATE USED TO STRUCTURE THE BOND ISSUE:
NET INTEREST COST RATE (NIC)
CANADIAN INTEREST COST RATE (CIC)
SPECIFY OTHER:
%
%
TRUE INTEREST COST RATE (TIC)
ARBITRAGE YIELD (ARBI)
%
%
14. lNSURANCE/ENHANCEMENTS: _AGIC AMBAC CGIC CLIC
HUD MBIA _ NGM _ LOC (LETIER OF CREom SPECIFY OTHER
~ NOT INSURED
_ FGIC
FSA
15. RA TING(S): Aa3 MOODY'S
~ NOT RATED
AA S&P
_ FITCH
DUFF & PHELPS
SPECIFY OTHER
16. DEBT SERVICE SCHEDULE: ATTACH COMPLETE COPY OF SCHEDULE PROVIDING THE FOLLOWING
INFORMATION: See Attachment A
MA TURJTY DATES (MOfDA YNR)
COUPONIINTEREST RATES
ANNUAL INTEREST PAYMENTS
PRINCIPAL (PAR VALUE) PAYMENTS
MANDA TORY TER...\1 AMORTIZATION
17. LIST OR ATTACH OPTIONAL REDEMPTION PROVISIONS:
Subiect to redemption at any time without premium or penalty upon 10 davs' notice to the noteholder
2
18. PROVIDE THE NAME AND ADDRESS OF THE SENIOR MANAGING UNDER WRITER OR SOLE PURCHASER.
Colonial Bank.
30 I Arthur Godfrev Road (41 st Street)
Miami Beach. FL 33140
19. PROVIDE THE NAME(S) AND ADDRESS(ES) OF ANY ATTORNEY OR FINANCIAL CONSULTANT WHO
ADVISED THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE.
NO BOND COUNSEL
_ NO FINANCIAL ADVISOR
_ NO OTHER PROFESSIONALS
BOND COUNSEL(S):
Squire. Sanders & Dempsey L.L.P.
201 S. Biscavne Boulevard. Suite 2900
Miami. Florida 33131
FINANCIAL ADVISOR(S)/CONSUL T ANTS(S):
OTHER PROFESSIONALS:
20. PAYING AGENT: Finance Director. City of Miami Beach
21. REGISTRAR: City Clerk. City of Miami Beach
22. COMMENTS:
NO PAYING AGENT
NO REGISTRAR
PARTIll RESPONDENTINFORMATION
FOR ADDITIONAL INFORMATION, THE DIVISION SHOULD CONTACT:
Name and Title Patricia D. Walker Finance Director Phone (305)673-7000
Company City of Miami Beach
INFORMATION RELATING TO PARTY COMPLETING THIS FORM (If different from above):
Name and Title Phone
Company
Date Report Submitted: March 24, 1999
BF2004-A and BF2004-B
NOTE: THE FOLLOWING ITEMS ARE REQUIRED TO BE COMPLETED IN FULL FOR ALL BOND ISSUES EXCEPT THOSE SOLD PURSUANT TO
SECTION 154 PART III; SECTIONS 159 PARTS II. III OR V; OR SECTION 243 PART II. FLORIDA STATUTES.
23. ANY FEE, BONUS, OR GRATUITY PAID BY ANY UNDERWRITER OR FINANCIAL CONSULTANT, IN
CONNECTION WITH THE BOND ISSUE, TO ANY PERSON NOT REGULARL Y EMPLOYED OR ENGAGED BY
SUCH UNDER WRITER OR CONSULTANT:
-X-NO FEE, BONUS OR GRATUITY PAID BY UNDERWRITER OR FINANCIAL CONSULTA;\iT
(I) COMPANY NAME
FEE PAID: $ SERVICE PROVIDED or FUNCTION SERVED:
3
(2) COMPANY NAME
FEE PAID: $
SERVICE PROVIDED or FUNCTION SERVED:
(3) COMPANY NAME
FEE PAID: $
SERVICE PROVIDED or FUNCTION SERVED:
(4) COMPANY NAME
FEE PAID: $
SERVICE PROVIDED or FUNCTION SERVED:
24. ANY OTHER FEES PAID BY THE UNIT OF LOCAL GOVERNMENT WITH RESPECT TO THE BOND ISSUE,
INCLUDING ANY FEE PAID TO ATTORNEYS OR FINANCIAL CONSULTANTS:
NO FEES PAID BY ISSUER
(I) COMPANY NAME Souire. Sanders & Demosev L.L.P.
FEE PAID: $7.500 SERVICE PROVIDED or FUNCTION SERVED: Bond Counsel
(2) COMPANY NAME Rollnick & Linden. P.A.
FEE PAID: $7.500 SERVICE PROVIDED or FUNCTION SERVED: Counsel to Purchaser
(3) COMPANY NAME
FEE PAID: $
SERVICE PROVIDED or FUNCTION SERVED:
PLEASE PROVIDE THE SIGNATURE OF EITHER THE CHIEF EXECUTIVE OFFICER OF THE GOVERNING BODY OF THE
UNIT OF LOCAL GOVERNMENT OR THE GOVERNMENTAL OFFICER PRIMARILY RESPONSIBLE FOR COORDINATING
THE ISSUANCE OF THE BONDS:
NAME (Typed/Printed): Patricia D. Walker
SIGNATURE:
'--fD-U (L { tu-
TITLE: Finance Director. City of Miami Beach
DATE: March 24.1999
BF2004-B
ITEMS 25 AND 26 MUST BE COMPLETED FOR ALL BONDS SOLD BY NEGOTIATED SALE
25. MANAGEMENT FEE CHARGED BY UNDERWRITER: $0.00
OR
PRIVATE PLACEMENT FEE: $0.00
PER THOUSAND PAR VALUE.
NO MANAGEMENT FEE OR PRIVATE PLACEMENT FEE
26. UNDERWRITER'S EXPECTED GROSS SPREAD:
$
PER THOUSAND PAR VALUE.
-1L NO GROSS SPREAD
PART IV. RETURN THIS FORM AND THE FINAL OFFICIAL STATEMENT, IF ONE WAS PREPARED, TO:
Courier Deliveries: Division of Bond Finance
State Board of Administration
1801 Hermitage Blvd., Suite 200
Tallahassee, FL 32308
Phone: 904/488-4782
FAX: 904/413-1315
Mailing Address: Division of Bond Finance
State Board of Administration
P.O. Drawer 13300
Tallahassee, FL 32317-3300
F:'ATTO\lEVL\80NOS\COlONIAlICLOSINGJ,DOC
4
Not to Exceed $1,294,000
CITY OF MIAMI BEACH, FLORIDA
SUBORDINATE RESORT TAX REVENUE NOTE, SERIES 1999
(41st Street Beautification Project)
CROSS RECEIPT
We hereby acknowledge receipt of net proceeds of the above-referenced Note in the amount
of not to exceed $1,294,000.
CITY OF MIAMI BEACH, FLORIDA
DATED:
March 24, 1999
fMw~
Director of Finance
By:
We hereby acknowledge receipi of the above-captioned Note in the aggregate principal
amount of not to exceed $1,294,000.
COLONIAL BANK
DATED:
March 24, 1999
B~
. itle]~O" -P-~ .
F:\ATTO\LEVl\80NOS\COLONIAI..\CLOSINGJ_OOC
NEGOTIATED SALE DISCLOSURE STATEMENT
AND TRUTH IN BONDING STATEMENT
Pursuant to the requirements of Section 218.385, Florida Statutes, the following information
is provided by Colonial Bank, Miami Beach, Florida (the "Bank") to the City of Miami Beach (the
"Issuer") in connection with the issuance of its Not to Exceed $1,294,000 Subordinate Resort Tax
Revenue Note, Series 1999 (41 st Street Beautification Project) (the "Note").
1. The Bank estimates that the itemized list of expenses set forth in Exhibit "A" attached
hereto will be incurred by it in connection with the issuance of the Note.
2. The names, addresses and estimated amounts of compensation of any finders
connected with the issuance of the Note are listed below. A finder, as defined by Section
218.386(1 )(a), Florida Statutes, as amended, is a person who is not regularly employed by, or not
a partner or officer of, an underwriter, bank, banker, or financial consultant or adviser, and who
enters into an understanding with either the issuer or the managing underwriter, or both, for any paid
or promised compensation or valuable consideration directly or indirectly, expressly or implied, to
act solely as an intermediary between said Issuer and managing underwriter for the purposes of
influencing any transaction in the purchase of such bonds.
None.
3. The amount of underwriting spread expected to be realized by the Bank in
connection with the issuance of the Note is:
Not applicable.
4. The managing fee to be charged by the Bank in connection with the issuance of the
Note is expected to be:
Not applicable.
5. The other fees, bonuses, and other compensation estimated to be paid by the Bank
in connection with the Note to any person not regularly employed or retained by the Bank, are as
follows:
None.
6. The name and address of the Bank is as follows:
Colonial Bank
301 Arthur Godfrey Road (41st Street)
Miami Beach, Florida 33140
7. The Issuer is proposing to issue up to not to exceed $1,294,000 of debt for the
purpose of acquiring and constructing the 41st Street Beautification Project (as defined in the Loan
Agreement between the Issuer and the Bank, dated as of March 24, 1999) This debt or obligation
is expected to be repaid over a period of approximately five (5) years. At an average interest rate
of 4.60%, total interest paid over the life of the debt will be approximately $157,954.00.
8. The source of repayment or security for the Note is a pledge of a limited portion of
Resort Tax revenues of the Issuer. Authorizing this debt will result in as much as approximately
F:\A TTOIJ..EVL\BONOSICOLONIALICLOSING3.DOC
$1,432,954 of such Resort Tax revenues not being available to finance other services of the Issuer
until after December 1, 2003, the scheduled repayment date of the Note.
It is our understanding that the Issuer has not requested any further disclosure from the
Bank.
Dated: March 24, 1999
COLONIAL BANK
~~
Ti. / _ r; /....I.P~/j.....
F:\A TTO\lEVLIBONDS\COlON1AL\ClOS1NG3.DOC
2
EXHIBIT "A"
EXPENSES
NONE
F:\ATTO\LEVl\BONDS\COLONIAL\CLOSINGJ.DOC
REGISTERED
No.R-1
REGISTERED
Not to Exceed $1,294,000
as more fully set forth herein.
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF MIAMI BEACH, FLORIDA
SUBORDINATE RESORT TAX REVENUE NOTE, SERIES 1999
(41st STREET BEAUTIFICATION PROJECT)
Interest Rate: 4.60%
Maturity Date: December 1, 2003
Dated Date: March 24, 1999
Registered Holder:
Principal Amount:
Colonial Bank
Not to Exceed $1,294,000
The City of Miami Beach, Florida (herein called the "City"), a political subdivision and public
body corporate and politic in Miami-Dade County, Florida, du~y organized and operating under the
Constitution and laws of the State of Florida is justly indebted and for value received hereby
promises to pay to the Registered Holder identified above, or to the registered assigns or legal
representatives of such Registered Holder, but solely from the revenues hereinafter mentioned, on
the dates hereinafter provided, the Principal Amount identified above, and to pay, solely from such
revenues, interest on the Principal Amount remaining unpaid from time to time, at the Interest Rate
per annum identifiSV i.. I doe r a r, commencing on
June 1, 1999, until. .'" en i.... . I ount hr:. id nd interest on this
Note will be paid. b ire, ec nk r f" d 0 Registered Holder
hereof at its address as it appears on e reglstra Ion 00 s 0 he I y a e c ose of business on
the fifth Business Day (as defined in the hereinafter described Loan Agreement), of the month next
preceding the interest payment date (the "Record Date"). The principal of this Note shall be
payable in annual installments in the amounts set forth on Schedule 1 attached hereto and by this
reference made part hereof.
Interest on this Note shall be calculated on the basis of a 360 day year consisting of twelve
thirty day months. Interest, at the rate set forth above, shall accrue on each draw of the proceeds
of this Note from the date of each such Draw Receipt in Schedule 2 attached hereto.
This Note is the only Note of the entire authorized issue of notes in the aggregate principal
amount of not to exceed One Million Two Hundred Ninety-Four Thousand Dollars ($1,294,000),
issued to finance the acquisition and construction of the Project (as defined in the Loan Agreement
described below), pursuant to the authority of and in full compliance with the Constitution and laws
of the State of Florida, including particularly Part II, Chapter 166, Florida Statutes, the Charter of
the City and other applicable provisions of law (the "Act"), and Resolution No. 99-23043, duly
adopted by the Mayor and City Commission on January 20, 1999, (the "Resolution") This Note is
subject in all respects to the terms and conditions of the Resolution and the Loan Agreement dated
as of March 24, 1999, by and between the City and Colonial Bank (the "Loan Agreement").
The outstanding principal amount of this Note, at any time, shall be equal to the sum
of the amounts shown on the Draw Receipts attached hereto in Schedule 2 and by this
reference incorporated herein as though fully set forth at this place, less any repayments.
Such principal amount may be increased from time to time upon the written request of the
Chief Financial Officer of the City, but in no event shall the aggregate principal amount of
this Note exceed the amount set forth in the immediately preceding paragraph.
All capitalized terms used herein, unless otherwise defined herein, shall have the meanings
ascribed thereto in the Resolution or in the Loan Agreement, as the case may be.
Subject to the provisions of the Resolution and the Loan Agreement, the City has pledged
the Pledged Revenues (as such term is defined in the Loan Agreement), to the payment of the
principal of, and interest on, the Note, which pledge is, and shall be, junior, inferior and subordinate
in all respects to the prior pledge of said Pledged Revenues, including, but not limited to the pledge
of the Pledged Revenues to (a) the City's Resort Tax Revenue Refunding Bonds, Series 1996,
issued in the original aggregate principal amount of $4,095,000, (b) the Miami Beach
Redevelopment Agency's (i) Tax Increment Revenue Bonds, Series 1993 (City Center/Historic
Convention Village), issued in the original aggregate principal amount of $25,000,000, (ii) Tax
Increment Revenue Bonds, Taxable Series 1996A (City Center/Historic Convention Village), issued
in the original aggregate principal amount of $37,500,000, (iii) Tax Increment Revenue Bonds,
Series 1996B (City Center/Historic Convention Village), issued in the original aggregate principal
amount of $7,705,000, (iv) Tax Increment Revenue Bonds, Taxable Series 1998A (City
Center/Historic Convention Village), issued in the original aggregate principal amount of
$29,105,000, and (v) Tax Increment Revenue Bonds, Series 1998B (City Center/Historic
Convention Village), issued in the original aggregate principal amount of $9,135,000, and (c) any
future debt obligations of the City or the Miami Beach Redevelopment Agency to which the Pledged
Revenues may be~;.' ... e i........... e' 1i;D" f1l! ~I I revent the Pledged
Re~enues from bel. . .,. e . 0 ~ .;r y bona, .1.... ffi:.i..,.i.! th'~' "li9t that may her~after
be Issued by the C. o. h Mlam " ea eel,' pm g~ c s pledge may, In the
sole and absolute Iscre Ion 0 . e ity senior 0, equa 0, or JUnior to, the pledge of the
Pledged Revenues to the payment of the principal of, and interest on, this Note.
In the event that, at any time, the Pledged Revenues are insufficient to pay the principal of
and interest on this Note, subject to the provisions of the Resolution and the Loan Agreement, the
City has covenanted and agreed to budget and appropriate in its Annual Budget, by amendment,
if necessary, from Non-Ad Valorem Revenues lawfully available in the then current Fiscal year,
amounts sufficient to pay the principal of and interest on this Note coming due in such Fiscal year,
until paid in full. Such covenant and agreement on the part of the City to budget and appropriate
such amounts of Non-Ad Valorem Revenues shall be cumulative to the extent not paid, and shall
continue until such Non-Ad Valorem Revenues or other legally available funds in amounts sufficient
to make all such required payment shall have been budgeted, appropriated and actually paid.
Notwithstanding the foregoing covenant of the City, the City does not covenant to maintain any
services or program, now provided or maintained by the City, which generate Non-Ad Valorem
Revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge of such
Non-Ad Valorem Revenues, nor does it preclude the City from pledging in the future its Non-Ad
Valorem Revenues, nor does it require the City to levy and collect any particular Non-Ad Valorem
Revenue, nor does it give the Noteholder a prior claim on the Non-Ad Valorem Revenues as
opposed to claims of general creditors of the City. Such covenant to budget and appropriate Non-
Ad Valorem Revenues is subject in all respects to the payment of obligations secured by a pledge
of such Non-Ad Valorem Revenues heretofore or hereinafter entered into (including the payment
of debt service on bonds and other debt instruments). However, the covenant to budget and
appropriate in its Annual Budget for the purposes and in the manner stated in the Resolution shall
have the effect of making available in the manner described herein Non-Ad Valorem Revenues and
placing on the City a positive duty to budget and appropriate, by amendment, if necessary,
amounts sufficient to meet its obligations hereunder; subject, however, in all respect to the
restriction of Section 166.241 (3), Florida Statutes, which provides, in part, that the governing body
of each municipality make appropriations for each Fiscal Year which, in anyone year, shall not
exceed the amount to be received from taxation or other revenue sources; and subject further, to
the payment of services and programs which are for essential public purposes affecting the health,
welfare and safety of the inhabitants of the City or which are legally mandated by applicable law.
Reference is hereby made to the Loan Agreement for the provisions among others, relating
to the terms and security for the Note, the custody and application of the proceeds of the Note, the
rights and remedies of the Registered Owner of the Note, and the extent of and limitations on the
City's rights, duties and obligations, to all of which provisions the Registered Holder hereof for itself
and its successors in interest assents by acceptance of this Note. All capitalized terms used
herein, unless otherwise defined herein, shall have the meanings ascribed thereto in the
Resolution.
THIS NOTE SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL DEBT OR A
PLEDGE OF THE FAITH AND CREDIT OF THE CITY, OR A DEBT OR PLEDGE OF THE FAITH
AND CREDIT OF THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF
WITHIN THE MEANING OF ANY CONSTITUTIONAL, LEGISLATIVE OR CHARTER PROVISION
ORLlMITATION'~""", .1: ESS .YT.... ~..>ED~OLDEROFTHIS
NOTE THAT SUCffi~. GI >i . ER SH LLtN, V! ....... H " H' ";.d.-iT, DIRECTLY OR
~Ng:EE;~;'TTH~'" U~'< EO COTHEL Tp E 'E~ 'IS:" g: Ii I ;" D~V~~~E:rl~~I~~
FLORIDA OR TAXATION IN ANY FORM ON ANY REAL OR PERSONAL PROPERTY FOR THE
PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THIS NOTE OR
FOR THE PAYMENT OF ANY OTHER AMOUNTS PROVIDED FOR IN THE RESOLUTION OR
THE LOAN AGREEMENT.
It is further agreed between the City and the Registered Holder of this Note that this Note
and the indebtedness evidenced hereby shall not constitute a lien upon the Project, or any part
thereof, or any other tangible personal property of or in the City. Neither the members of the
Governing Body of the City nor any person executing this Note shall be liable personally on this
Note by reason of their issuance.
This Note may be prepaid in whole or in part by the City at any time prior to maturity without
premium or penalty, upon the City providing the Registered Holder at least ten (10) days' advance
notice of its intent to prepay. In the event of any partial prepayment of this Note, each partial
prepayment shall include the payment of all interest accrued to the date of prepayment, and shall
be first applied to accrued interest hereon, and then to the principal. Any prepayments shall be
evidenced by the customary documentation of the Holder, and a copy of such documentation shall
be provided to the City after each prepayment.
The registration of this Note may be assigned in whole upon the registration books upon
delivery to the Clerk of the City accompanied by a written instrument or instruments of assignment
in form and with guaranty of signature satisfactory to the Clerk, duly executed by the Holder of this
Note or by its attorney in fact or legal representative, containing written instructions as to the details
of assignment of this Note, along with the social security number or federal employer identification
number of such assignee. In all cases of an assignment of this Note the City shall at the earliest
practical time in accordance with the provisions of the Loan Agreement enter the change of
ownership in the registration books. The City may charge the Holder of such Note for the
registration of every such assignment of a Note an amount sufficient to reimburse it for any tax, fee
or any other governmental charge required (other than by the City), to be paid with respect to the
registration of such assignment, and may require that such amounts be paid before any such
assignment of a Note shall be effective.
It is hereby certified and recited that all acts, conditions and things required to exist, to
happen, and to be performed precedent to and in the issuance of this Note exist, have happened
and have been performed in regular and due form and time as required by the Constitution and
laws of the State of Florida applicable hereto, and that the issuance of the Note does not violate
any constitutional or statutory limitation or provision.
IN WITNESS WHEREOF, the City of Miami Beach, Florida has issued this Note and has
caused the same to be executed by the manual or facsimile signature cf the Mayor, and attested
by the manual or facsimile signature of the Clerk and its corporate seal or a facsimile thereof to be
affixed or reproduced hereon, all as of the 24th day of March, 1999.
CITY OF MIAMI BEACH, FLORIDA
E"".... I'"",:'.',i,,i,.,.
~ ~~,
f , r
[SEAL]
ATTEST:
Clerk
[Form of Abbreviations]
The following abbreviations, when used in the inscription on the face of the within Note, shall be
construed as though they were written out in full according to the applicable laws or 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 under Uniform Transfers
to
(Cust.)
Minors Act of
(Minor)
(State)
Additional abbreviations may be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned
(the "Assignor"). hereby sells, assigns and transfers unto
(the "Assigne~")
PLEASE INSERT SOCIAL SECURITY NUMBER OR FEDERAL
EMPLOYER TAX IDENTIFICATION NUMBER OF TRANSFEREE
the within Note
the within Note 0 ks
substitution in the premises.
ti tes and appoints
r g the assignment of
eo , with full power of
Date:
Signature Guaranteed:
Notice: Signature(s) must be guaranteed by a
member firm of the New York Stock Exchange,
a member firm of any other recognized
national securities exchange or a commercial
bank or trust company.
NOTICE: No assignment will be registered in
the name of the Assignee, unless the
signature(s) to this assignment correspond(s)
with the name as it appears upon the face of
the within Note in every particular without
alteration or enlargement or any change
whatever and the Social Security or Federal
Employer Identification Number of the
Assignee is supplied.
[End of Note Form]
SCHEDULE 1
SCHEDULE OF PRINCIPAL REPAYMENTS
PAYMENT DATE PRINCIPAL AMOUNT
December 1, 1999 20% of outstanding principal amount of Note 1
December 1,2000 20% of outstanding principal amount of Note 1
December 1,2001 20% of outstanding principal amount of Note 1
December 1, 2002 20% of outstanding principal amount of Note 1
December 1,2003 Remaining outstanding principal amount of Note2
1 To be rounded to the nearest increment of $5,000.
2 Final Maturity
I'
"
SCHEDULE 2
CITY OF MIAMI BEACH, FLORIDA
SUBORDINATE RESORT TAX REVENUE NOTE, SERIES 1999
(41st STREET BEAUTIFICATION PROJECT)
DRAW RECEIPT
Amount of Draw: $
Draw Receipt No. _
I, , the duly authorized and acting Chief Financial Officer of the City
of Miami Beach, Florida (the "City"), do hereby certify that on this _ day of , 199_, the
City received the proceeds of a draw in the amount of $ , in connection with the City
of Miami Beach, Florida, Subordinate Resort Tax Revenue Note, Series 1999 (41st Street
Beautification Project) (the "Note").
This draw of the proceeds of the Note, together with all previous draws of proceeds of the
Note, less all repayments, is equal to $ , which is, and shall be, as of the date hereof,
the aOggregate principal amount of the Note.
E
I
SCHEDULE 2
CITY OF MIAMI BEACH, FLORIDA
SUBORDINATE RESORT TAX REVENUE NOTE, SERIES 1999
(41st STREET BEAUTIFICATION PROJECT)
DRAW RECEIPT
Amount of Draw: $15,000.00
Draw Receipt No.1
I, Patricia D. Walker, the duly authorized and acting Chief Financial Officer of the City of
Miami Beach, Florida (the "City"), do hereby certify that on this 24th day of March, 1999, the City
received the proceeds of a draw in the amount of $15,000.00, in connection with the City of Miami
Beach, Florida, Subordinate Resort Tax Revenue Note, Series 1999 (41st Street Beautification
Project) (the "Note").
This draw of the proceeds of the Note, together with all previous draws of proceeds of the
Note, less all repayments, is equal to $15,000.00, which is, and shall be, as of the date hereof, the
aggregate principal amount of the Note.
~tu-
Patricia D. Walker, Chief Financial Officer
.
F'\ATTO\lEVl\BONDS\COlONlAl\ORAv.mEQ,FRM
OFFICE OF THE CITY ATTORNEY
~ of J/{iomi 1Jt:Oi'A
F
L
o
R
o
A
MURRAY H. DUBBIN
City Attorney
Telephone:
Telecopy:
(305) 673-7470
(305) 673-7002
March 24, 1999
Colonial Bank
Miami Beach, Florida
Squire, Sanders & Dempsey L.L.P.
Miami, Florida
Re: Not to Exceed $1,294,000 City of Miami Beach, Florida Subordinate
Resort Tax Revenue Note, Series 1999 (41st Street Beautification
Project)
Ladies and Gentlemen:
I am the City Attorney for the City of Miami Beach, Florida (the "Issuer"), a municipality of the
State of Florida (the "State"), established pursuant to the Constitution and laws of the State, in
connection with the Issuer's Not to Exceed $1,294,000 Subordinate Resort Tax Revenue Note,
Series 1999 (41 st Street Beautification Project) (the "Note"). The Note is authorized to be issued
pursuant to the City Charter of the Issuer, Chapter 166, Florida Statutes, and other applicable
provisions of law (the "Act") and Resolution No. 99-23043 of the Issuer adopted on January 20,
1999 (the "Resolution"), for the purpose of acquiring and constructing Phases I and II of the 41 st
Street Beautification Project (the "Project"), as more particularly described in the Loan Agreement,
dated as of March 24, 1999, by and between the Issuer and Colonial Bank (the "Loan Agreement").
The terms used herein in capitalized form and not otherwise defined herein have the meaning
ascribed to them in the Loan Agreement. I have examined the law and such certified proceedings
and other papers as I deem necessary to render this opinion.
Based upon the foregoing, I am of the opinion that
1. The Issuer is duly created and validly existing as a body corporate and politic and a
municipal corporation of the State of Florida. The Issuer has such powers as set forth in the Act
with good, right and lawful authority to, among other things, acquire the Project and to provide funds
therefor through the issuance of the Note, to charge and collect the Pledged Revenues (as defined
in the Loan Agreement), to secure the Note as provided in the Loan Agreement, to adopt the
Resolution and the Loan Agreement and to perform its obligations under the Resolution and the
Loan Agreement.
2. The Resolution has been duly adopted by the Issuer, and the Resolution remains in
full force and effect as of the date hereof, has not been modified after its date of adoption and, to
the best of my knowledge, no event has occurred that constitutes or would, with the passage of time
or the giving of notice, constitute a default by the Issuer under the terms thereof. The Resolution
and the Loan Agreement constitute valid and binding instruments, enforceable against the Issuer
in accordance with their terms. The Note has been duly authorized, executed and delivered by the
F:\ATTO\LEVLIBONDSICOLONIAlIClOSING3.DOC
1700 Convention Center Drive -- Fourth Floor -- Miami Beach, Florida 33139
Colonial Bank
Squire, Sanders & Dempsey L.L.P.
March 24, 1999
Page 2
Issuer, and constitutes the legal, valid and binding obligation of the Issuer, but payable from and
secured solely by the sources and in the manner provided in the Loan Agreement.
3. To the best of my knowledge after due inquiry, neither the adoption of the Resolution,
nor execution of the Loan Agreement, nor compliance by the Issuer with the terms and conditions
thereof will conflict with or result in a breach of any of the terms or provisions of the Issuer's Charter
or Code or of any law in force on the date hereof, or, to the best of my knowledge, any regulation,
order, writ, injunction or decree of any court or governmental authority, or will result in a breach of
any of the terms or provisions of any agreement or instrument to which the Issuer is bound, or in any
such case constitutes or will constitute a default thereunder or results or will result in the creation
or imposition of any encumbrance upon any of the properties or assets of the Issuer other than
those encumbrances permitted by the Loan Agreement.
4. The Issuer has the lawful authority to pledge the Pledged Revenues in the manner
provided in the Resolution and the Loan Agreement as security for the Note.
5. There is no litigation pending or, to the best of my knowledge, threatened against
the Issuer (i) seeking to restrain or enjoin the issuance or delivery of the Note or the application of
the proceeds thereof, or the charge or collection of the Pledged Revenues, (ii) contesting or
affecting the authority for the issuance of the Note or the validity or enforceability of the Note, the
Resolution or the Loan Agreement, or the transactions contemplated thereunder, (iii) contesting or
affecting the establishment or existence of the Issuer or any of its officers, its ability to charge or
collect revenues, its assets, property or conditions, financial or otherwise, or contesting or affecting
any of the powers of the Issuer, including its power to levy and collect taxes, fees and other charges;
(iv) contesting or affecting the exclusion from gross income of interest on the Note for federal
income tax purposes; or (v) which would have a materially adverse effect upon the matters provided
for or contemplated by the Resolution.
6. No further authorization, approval, consent or other order of governmental authority
or agency is required on the part of the Issuer for the valid adoption of the Resolution, the execution
of the Loan Agreement, the authorization, issuance, sale, execution and delivery of the Note and
the consummation of the transactions contemplated thereby.
The foregoing opinion is qualified to the extent that the rights of the holder of the Note and
the enforceability of the Note, the Resolution and the Loan Agreement may be limited by any
bankruptcy, insolvency, reorganization, moratorium and the Loan Agreement or other laws affecting
creditors' rights generally heretofore or hereafter enacted to the extent constitutionally applicable
and their enforcement may also be subject to the exercise of judicial discretion in appropriate cases.
Very truly yours,
~~
urray . Dubbin
City Atto ney
F:\ATTO\LEVl\BONDS\COlONIAL\ClOSING3.00C
OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE - MIAMI BEACH, FLORIDA 33139
~,if~f#0~
L.L.P.
~~d~
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2(}/ f~ YJ~ YJ~nd
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.!)";,/~ (yc.5) SS8 ///..!!.:i
March 24, 1999
Colonial Bank
Miami Beach, Florida
Re: Not to Exceed $1,294,000 City of Miami Beach, Florida Subordinate Resort Tax
Revenue Note, Series 1999 (41 st Street Beautification Project)
We have examined the transcript of proceedings (the "Transcript") relating to the issuance
by the City of Miami Beach, Florida (the "City") of its not to exceed $1,294,000 aggregate principal
amount of City of Miami Beach, Florida Subordinate Resort Tax Revenue Note, Series 1998 (41st
Street Beautification Project) (the "Note").
The Note is issued pursuant to the Constitution and laws of the State of Florida, including
Chapter 166, Florida Statutes, and the City Charter, Resolution No. 99-23043, adopted by the
Mayor and City Commission of the City on January 20, 1999 (the "Resolution"), and a Loan
Agreement dated as of March 24, 1999 (the "Loan Agreement") by and between the City and
Colonial Bank, to pay the costs of the Project (as defmed in the Loan Agreement).
The documents in the Transcript examined include a certified copy of the Resolution and the
Loan Agreement. Based on this examination, we are of the opinion that, under existing law:
1. The interest on the Note is excluded from gross income for federal income tax purposes
under Section 103(a) of the Internal Revenue Code of1986, as amended (the "Code"), and is not an
item of tax preference under Section 57 of the Code for purposes of the federal alternative minimum
tax imposed on individuals and corporations.
Under the Code, a portion of the interest on the Note earned by certain corporations (as
defmed for federal income tax purposes) may be subject to a corporate alternative minimum tax,
and interest on the Note may be subject to a branch profits tax imposed on certain foreign
corporations doing business in the United States and to a tax imposed on excess net passive income
of certain S corporations.
In giving the foregoing opinion with respect to the treatment of the interest on the Note and
the status of the Note under the federal tax laws, we have relied upon, and assumed compliance
~~.~~.~~.-t~.-t~.~~. ~.~
~.~ .~.~.Lry~. g;~. g;~.Y+', ~~
MiIlN~)4Alf.O)1.),DooI.mri/ll: 940r1
~,if~~~~
L.L.P.
March 24, 1999
Page 2
with, the City's covenants and the accuracy, which we have not independently verified, of the
representations and certifications of the City contained in the Transcript. The accuracy of certain of
those representations and certifications, and the City's compliance with those covenants, may be
necessary for the interest on the Note to be and to remain excluded from gross income for federal
income tax purposes. Failure to comply with certain requirements subsequent to issuance of the
Note could cause the interest on the Note to be included in gross income for federal income tax
purposes retroactively to the date of their issuance.
2. The Note and the income thereon are exempt from taxation under the laws of the State
of Florida, except for estate taxes imposed by Chapter 198, Florida Statutes, as amended, and net
income and franchise taxes imposed by Chapter 220, Florida Statutes, as amended, on interest,
income or profits on debt obligations owned by "corporations," "banks" and "savings associations"
(as such terms are defmed in said Chapter 220).
3. The Note is not a qualified tax-exempt obligation within the meaning of Section
265(b)(3)(B) of the Code.
In rendering the foregoing opinions we have assumed the validity and enforceability of the
Note and the accuracy and truthfulness of all public records and of all certifications, documents and
other proceedings examined by us that have been executed or certified by public officials acting
within the scope of their official capacities and have not verified the accuracy or truthfulness
thereof We have also assumed the genuineness of the signatures appearing upon such public
records, certifications, documents and proceedings.
Except as expressly set forth in paragraphs I and 3, we express no opinion as to any other
federal tax consequences regarding the Note.
Respectfully submitted,
Jq~( ~ ,J~c4y- ~ ~ L. (... P.
UiIml~l4Io.IUlll.l;~.' SI40Jt
A frog goes into a bank and approaches the teller. He can see from her name plate that the teller's
name is Patricia Whack. So he says, "Ms.Whack, I'd like to get a loan to buy a boat and go on a
long vacation." Patti looks at the frog in disbelief and asks how much he wants to borrow. The
frog says $30,000. The teller asks his name and the frog says that his name is Kermit Jagger and
that it's OK, he knows the bank manager. Patti explains that $30,000 is a substantial amount of
money and that he will need to secure some collateral against the loan. She asks if he has
anything he can use as collateral. The frog says, "Sure. I have this," and produces a tiny pink
porcelain elephant, about half an inch tall. Bright pink and perfectly formed. Very confused,
Patti explains that she'll have to consult with the manager and disappears into a back offIce.
She finds the manager and says: "There's a frog called Kermit Jagger out there who claims to
know you and wants to borrow $30,000. And he wants to use this as collateraL" She holds up the
tiny pink elephant. "I mean, what the heck is this?" So the bank manager looks back at her and
says:
ARE you READY FOR THIS?
I MEAN REALLY READY?
You're warned!
"It's a knick knack, Patti Whack, Give the frog a loan, His old man's a Rolling Stone."
REGISTERED
No.R-1
REGISTERED
Not to Exceed $1,294,000
as more fully set forth herein.
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF MIAMI BEACH, FLORIDA
SUBORDINATE RESORT TAX REVENUE NOTE, SERIES 1999
(41st STREET BEAUTIFICATION PROJECT)
Interest Rate: 4.60%
Maturity Date: December 1, 2003
Dated Date: March 24, 1999
Registered Holder:
Principal Amount:
Colonial Bank
Not to Exceed $1,294,000
The City of Miami Beach, Florida (herein called the "City"), a political subdivision and public
body corporate and politic in Miami-Dade County, Florida, duly organized and operating under the
Constitution and laws of the State of Florida is justly indebted and for value received hereby
promises to pay to the Registered Holder identified above, or to the registered assigns or legal
representatives of such Registered Holder, but solely from the revenues hereinafter mentioned, on
the dates hereinafter provided, the Principal Amount identified above, and to pay, solely from such
revenues, interest on the Principal Amount remaining unpaid from time to time, at the Interest Rate
per annum identified above on the first days of December and June of each year, commencing on
June 1, 1999, until the entire Principal Amount has been repaid. Principal of and interest on this
Note will be paid by bank wire, check, draft or bank transfer delivered to the Registered Holder
hereof at its address as it appears on the registration books of the City at the close of business on
the fifth Business Day (as defined in the hereinafter described Loan Agreement), of the month next
preceding the interest payment date (the "Record Date"). The principal of this Note shall be
payable in annual installments in the amounts set forth on Schedule 1 attached hereto and by this
reference made part hereof.
Interest on this Note shall be calculated on the basis of a 360 day year consisting of twelve
thirty day months. Interest, at the rate set forth above, shall accrue on each draw of the proceeds
of this Note from the date of each such Draw Receipt in Schedule 2 attached hereto.
This Note is the only Note of the entire authorized issue of notes in the aggregate principal
amount of not to exceed One Million Two Hundred Ninety-Four Thousand Dollars ($1,294,000),
issued to finance the acquisition and construction of the Project (as defined in the Loan Agreement
described below), pursuant to the authority of and in full compliance with the Constitution and laws
of the State of Florida, including particularly Part II, Chapter 166, Florida Statutes, the Charter of
the City and other applicable provisions of law (the "Act"), and Resolution No. 99-23043, duly
adopted by the Mayor and City Commission on January 20, 1999, (the "Resolution") This Note is
subject in all respects to the terms and conditions of the Resolution and the Loan Agreement dated
as of March 24, 1999, by and between the City and Colonial Bank (the "Loan Agreement").
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The outstanding principal amount of this Note, at any time, shall be equal to the sum
of the amounts shown on the Draw Receipts attached hereto in Schedule 2 and by this
reference incorporated herein as though fully set forth at this place, less any repayments.
Such principal amount may be increased from time to time upon the written request of the
Chief Financial Officer of the City, but in no event shall the aggregate principal amount of
this Note exceed the amount set forth in the immediately preceding paragraph.
All capitalized terms used herein, unless otherwise defined herein, shall have the meanings
ascribed thereto in the Resolution or in the Loan Agreement, as the case may be.
Subject to the provisions of the Resolution and the Loan Agreement, the City has pledged
the Pledged Revenues (as such term is defined in the Loan Agreement), to the payment of the
principal of, and interest on, the Note, which pledge is, and shall be, junior, inferior and subordinate
in all respects to the prior pledge of said Pledged Revenues, including, but not limited to the pledge
of the Pledged Revenues to (a) the City's Resort Tax Revenue Refunding Bonds, Series 1996,
issued in the original aggregate principal amount of $4,095,000, (b) the Miami Beach
Redevelopment Agency's (i) Tax Increment Revenue Bonds, Series 1993 (City Center/Historic
Convention Village), issued in the original aggregate principal amount of $25,000,000, (ii) Tax
Increment Revenue Bonds, Taxable Series 1996A (City Center/Historic Convention Village), issued
in the original aggregate principal amount of $37,500,000, (Hi) Tax Increment Revenue Bonds,
Series 1996B (City Center/Historic Convention Village), issued in the original aggregate principal
amount of $7,705,000, (iv) Tax Increment Revenue Bonds, Taxable Series - 1998A (City
Center/Historic Convention Village), issued in the original aggregate principal amount of
$29,105,000, and (v) Tax Increment Revenue Bonds, Series 1998B (City Center/Historic
Convention Village), issued in the original aggregate principal amount of $9,135,000, and (c) any
future debt obligations of the City or the Miami Beach Redevelopment Agency to which the Pledged
Revenues may be pledged on a basis senior to this Note. Nothing herein shall prevent the Pledged
Revenues from being pledged to secure any bonds, notes or other obligations that may hereafter
be issued by the City or the Miami Beach Redevelopment Agency and any such pledge may, in the
sole and absolute discretion of the City be senior to, equal to, or junior to, the pledge of the
Pledged Revenues to the payment of the principal of, and interest on, this Note.
In the event that, at any time, the Pledged Revenues are insufficient to pay the principal of
and interest on this Note, subject to the provisions of the Resolution and the Loan Agreement, the
City has covenanted and agreed to budget and appropriate in its Annual Budget, by amendment,
if necessary, from Non-Ad Valorem Revenues lawfully available in the then current Fiscal year,
amounts sufficient to pay the principal of and interest on this Note coming due in such Fiscal year,
until paid in full. Such covenant and agreement on the part of the City to budget and appropriate
such amounts of Non-Ad Valorem Revenues shall be cumulative to the extent not paid, and shall
continue until such Non-Ad Valorem Revenues or other legally available funds in amounts sufficient
to make all such required payment shall have been budgeted, appropriated and actually paid.
Notwithstanding the foregoing covenant of the City, the City does not covenant to maintain any
services or program, now provided or maintained by the City, which generate Non-Ad Valorem
Revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge of such
Non-Ad Valorem Revenues, nor does it preclude the City from pledging in the future its Non-Ad
Valorem Revenues, nor does it require the City to levy and collect any particular Non-Ad Valorem
Revenue, nor does it give the Noteholder a prior claim on the Non-Ad Valorem Revenues as
I
opposed to claims of general creditors of the City. Such covenant to budget and appropriate Non-
Ad Valorem Revenues is subject in all respects to the payment of obligations secured by a pledge
of such Non-Ad Valorem Revenues heretofore or hereinafter entered into (including the payment
of debt service on bonds and other debt instruments). However, the covenant to budget and
appropriate in its Annual Budget for the purposes and in the manner stated in the Resolution shall
have the effect of making available in the manner described herein Non-Ad Valorem Revenues and
placing on the City a positive duty to budget and appropriate, by amendment, if necessary,
amounts sufficient to meet its obligations hereunder; subject, however, in all respect to the
restriction of Section 166.241 (3), Florida Statutes, which provides, in part, that the governing body
of each municipality make appropriations for each Fiscal Year which, in anyone year, shall not
exceed the amount to be received from taxation or other revenue sources; and subject further, to
the payment of services and programs which are for essential public purposes affecting the health,
welfare and safety of the inhabitants of the City or which are legally mandated by applicable law.
Reference is hereby made to the Loan Agreement for the provisions among others, relating
to the terms and security for the Note, the custody and application of the proceeds of the Note, the
rights and remedies of the Registered Owner of the Note, and the extent of and limitations on the
City's rights, duties and obligations, to all of which provisions the Registered Holder hereof for itself
and its successors in interest assents by acceptance of this Note. All capitalized terms used
herein, unless otherwise defined herein, shall have the meanings ascribed thereto in the
Resolution.
THIS NOTE SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL DEBT OR A
PLEDGE OF THE FAITH AND CREDIT OF THE CITY, OR A DEBT OR PLEDGE OF THE FAITH
AND CREDIT OF THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF
WITHIN THE MEANING OF ANY CONSTITUTIONAL, LEGISLATIVE OR CHARTER PROVISION
OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE REGISTERED HOLDER OF THIS
NOTE THAT SUCH REGISTERED HOLDER SHALL NEVER HAVE THE RIGHT, DIRECTLY OR
INDIRECTLY, TO REQUIRE OR COMPEL THE EXERCISE OF THE AD VALOREM TAXING
POWER OF THE CITY OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF
FLORIDA OR TAXATION IN ANY FORM ON ANY REAL OR PERSONAL PROPERTY FOR THE
PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THIS NOTE OR
FOR THE PAYMENT OF ANY OTHER AMOUNTS PROVIDED FOR IN THE RESOLUTION OR
THELOANAGREEMEN~
It is further agreed between the City and the Registered Holder of this Note that this Note
and the indebtedness evidenced hereby shall not constitute a lien upon the Project, or any part
thereof, or any other tangible personal property of or in the City. Neither the members of the
Governing Body of the City nor any person executing this Note shall be liable personally on this
Note by reason of their issuance.
This Note may be prepaid in whole or in part by the City at any time prior to maturity without
premium or penalty, upon the City providing the Registered Holder at least ten (10) days' advance
notice of its intent to prepay. In the event of any partial prepayment of this Note, each partial
prepayment shall include the payment of all interest accrued to the date of prepayment, and shall
be first applied to accrued interest hereon, and then to the principal. Any prepayments shall be
evidenced by the customary documentation of the Holder, and a copy of such documentation shall
be provided to the City after each prepayment.
The registration of this Note may be assigned in whole upon the registration books upon
delivery to the Clerk of the City accompanied by a written instrument or instruments of assignment
in form and with guaranty of signature satisfactory to the Clerk, duly executed by the Holder of this
Note or by its attorney in fact or legal representative, containing written instructions as to the details
of assignment of this Note, along with the social security number or federal employer identification
number of such assignee. In all cases of an assignment of this Note the City shall at the earliest
practical time in accordance with the provisions of the Loan Agreement enter the change of
ownership in the registration books. The City may charge the Holder of such Note for the
registration of every such assignment of a Note an amount sufficient to reimburse it for any tax, fee
or any other governmental charge required (other than by the City), to be paid with respect to the
registration of such assignment, and may require that such amounts be paid before any such
assignment of a Note shall be effective.
It is hereby certified and recited that all acts, conditions and things required to exist, to
happen, and to be performed precedent to and in the issuance of this Note exist, have happened
and have been performed in regular and due form and time as required by the Constitution and
laws of the State of Florida applicable hereto, and that the issuance of the Note does not violate
any constitutional or statutory limitation or provision.
IN WITNESS WHEREOF, the City of Miami Beach, Florida has issued this Note and has
caused the same to be executed by the manual or facsim:-le signature of the Mayor, and attested
by the manual or facsimile signature of the Clerk and its corporate seal or a facsimile thereof to be
affixed or reproduced hereon, all as of the 24th day of March, 1999.
CITY OF MIAMI BEACH, FLORIDA
11
[SEAL]
Mayor
~~ faA~
Clerk
[Form of Abbreviations]
The following abbreviations, when used in the inscription on the face of the within Note, shall be
construed as though they were written out in full according to the applicable laws or 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 under Uniform Transfers
to
(Cust.)
Minors Act of
(Minor)
(State)
Additional abbreviations may be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned
(the "Assignor"). hereby sells, assigns and transfers unto
(the "Assignee")
PLEASE INSERT SOCIAL SECURITY NUMBER OR FEDERAL
EMPLOYER TAX IDENTIFICATION NUMBER OF TRANSFEREE
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints
as attorney to register the assignment of
the within Note on the books kept for registration of assignment thereof, with full power of
substitution in the premises.
Date:
Signature Guaranteed:
Notice: Signature(s) must be guaranteed by a
member firm of the New York Stock Exchange,
a member firm of any other recognized
national securities exchange or a commercial
bank or trust company.
NOTICE: No assignment will be registered in
the name of the Assignee, unless the
signature(s) to this assignment correspond(s)
with the name as it appears upon the face of
the within Note in every particular without
alteration or enlargement or any change
whatever and the Social Security or Federal
Employer Identification Number of the
Assignee is supplied.
[End of Note Form]
SCHEDULE 1
SCHEDULE OF PRINCIPAL REPAYMENTS
PAYMENT DATE PRINCIPAL AMOUNT
December 1, 1999 20% of outstanding principal amount of Note 1
December 1, 2000 20% of outstanding principal amount of Note 1
December 1, 2001 20% of outstanding principal amount of Note 1
December 1, 2002 20% of outstanding principal amount of Note 1
December 1, 2003 Remaining outstanding principal amount of Note2
1 To be rounded to the nearest increment of $5,000.
2 Final Maturity