619-2015 RDA-1A RESOLUTION NO. 619-2015
A RESOLUTION OF THE CHAIRPERSON AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY AUTHORIZING THE ISSUANCE OF
NOT MORE THAN $430,000,000 IN AGGREGATE PRINCIPAL AMOUNT
OF MIAMI BEACH REDEVELOPMENT AGENCY TAX INCREMENT
REVENUE BONDS (CITY CENTER/HISTORIC CONVENTION VILLAGE)
(THE "SERIES 2015 BONDS"), FOR THE PURPOSE OF REFUNDING THE
AGENCY'S OUTSTANDING PRIOR BONDS AND FINANCING CERTAIN
PUBLIC IMPROVEMENTS; PROVIDING FOR THE ISSUANCE OF
ADDITIONAL BONDS ON A PARITY THEREWITH; PROVIDING FOR THE
SECURITY AND PAYMENT OF ALL BONDS ISSUED PURSUANT TO
THIS RESOLUTION; PROVIDING CERTAIN DETAILS OF THE SERIES
2015 BONDS; DELEGATING CERTAIN MATTERS IN CONNECTION WITH
THE ISSUANCE OF THE SERIES 2015 BONDS TO THE EXECUTIVE
DIRECTOR OF THE AGENCY, INCLUDING WHETHER TO SECURE A
CREDIT FACILITY AND/OR A RESERVE ACCOUNT INSURANCE
POLICY, WITHIN THE LIMITATIONS AND RESTRICTIONS STATED
HEREIN; APPOINTING UNDERWRITERS, PAYING AGENT, REGISTRAR,
ESCROW AGENT AND DISCLOSURE DISSEMINATION AGENT;
APPROVING THE FORM OF THE PRELIMINARY OFFICIAL STATEMENT
FOR THE SERIES 2015 BONDS AND AUTHORIZING EXECUTION OF THE
FINAL OFFICIAL STATEMENT FOR THE SERIES 2015 BONDS;
AUTHORIZING THE NEGOTIATED SALE OF THE SERIES 2015 BONDS
AND APPROVING THE FORM AND AUTHORIZING EXECUTION OF THE
BOND PURCHASE AGREEMENT FOR THE SERIES 2015 BONDS;
APPROVING THE FORMS AND AUTHORIZING EXECUTION OF
ESCROW DEPOSIT AGREEMENTS FOR THE OUTSTANDING PRIOR
BONDS; COVENANTING TO PROVIDE CONTINUING DISCLOSURE IN
CONNECTION WITH THE SERIES 2015 BONDS AND APPROVING THE
FORM AND AUTHORIZING EXECUTION OF A CONTINUING
DISCLOSURE AGREEMENT; AUTHORIZING OFFICERS AND
EMPLOYEES OF THE AGENCY TO TAKE ALL NECESSARY ACTIONS IN
CONNECTION WITH THE ISSUANCE OF THE SERIES 2015 BONDS; AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Miami Beach Redevelopment Agency (the "Agency"), a public body
corporate and politic, has been duly created and established to transact business and exercise
powers under and pursuant to the Florida Community Redevelopment Act, Chapter 163, Part III,
Florida Statutes, as amended (together with other applicable provisions of law, the "Act"),
including the issuance of revenue bonds, in order to achieve the purposes of redevelopment as set
forth in the Act; and
WHEREAS, all the requirements of law have been complied with in the creation of the
Agency, the adoption and amendment of a redevelopment plan (the "Redevelopment Plan")
under the Act for that portion of the City of Miami Beach described in the Redevelopment Plan
and known as the "City Center/Historic Convention Village Redevelopment and Revitalization
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Area" (the "Redevelopment Area") and the creation and funding of the City Center/Historic
Convention Village Redevelopment and Revitalization Trust Fund (the "Trust Fund") in
accordance with the Act; and
WHEREAS, in connection with the Redevelopment Plan, the Agency has heretofore
issued multiple series of bonds, of which the following are currently outstanding: (i) $29,105,000
Miami Beach Redevelopment Agency Tax Increment Revenue Bonds, Taxable Series 1998A
(City Center/Historic Convention Village), outstanding in the principal amount of $10,000,000
(the "Outstanding Series 1998A Bonds"), (ii) $51,440,000 Miami Beach Redevelopment Agency
Tax Increment Revenue Refunding Bonds, Taxable Series 2005A (City Center/Historic
Convention Village), outstanding in the principal amount of $27,815,000 (the "Outstanding
Series 2005A Bonds"), and (iii) $29,930,000 Miami Beach Redevelopment Agency Tax
Increment Revenue Refunding Bonds, Series 2005B (City Center/Historic Convention Village),
outstanding in the principal amount of$17,175,000 (the "Outstanding Series 2005B Bonds" and,
together with the Outstanding Series 1998A Bonds and the Outstanding Series 2005A Bonds, the
"Outstanding Prior Bonds"), pursuant to Resolution No. 150-94, adopted by the Board of
Commissioners of the Agency (the "Commission") on January 5, 1994, as supplemented (the
"Prior Bond Resolution"); and
WHEREAS, the Agency desires to finance certain public improvements in accordance
with the Redevelopment Plan, as more particularly described in Exhibit A attached hereto and
made a part hereof(collectively, the "Series 2015 Redevelopment Project"); and
WHEREAS, pursuant to that certain Third Amendment to Interlocal Agreement dated
January 20, 2015, among Miami-Dade County, Florida, the City of Miami Beach, Florida, (the
"City") and the Agency, entered into in connection with the financing of the Series 2015
Redevelopment Project, it is necessary to refund the Outstanding Prior Bonds; and
WHEREAS, in order to refund the Outstanding Prior Bonds and finance the Series 2015
Redevelopment Project, the Agency desires to issue its Tax Increment Revenue Bonds, as more
particularly described in this Resolution (the "Series 2015 Bonds"); and
WHEREAS, the Agency also desires to set forth the provisions pursuant to which it may
issue bonds on a parity with the Series 2015 Bonds and to make provision for the rights and
security of the Holders of all bonds issued hereunder; and
WHEREAS, the Commission has determined that it is in the best interest of the Agency
to delegate,to the Executive Director of the Agency, who shall rely upon the recommendations of
the Chief Financial Officer of the City (the "Chief Financial Officer") and RBC Capital Markets,
LLC, the Agency's financial advisor (the "Financial Advisor"), the determination of various
terms of the Series 2015 Bonds, whether to secure a Credit Facility and/or Reserve Account
Insurance Policy (as such terms are hereinafter defined) with respect to the Series 2015 Bonds,
the final award of the Series 2015 Bonds, and certain other actions in connection with the
issuance of the Series 2015 Bonds and the refunding of the Outstanding Prior Bonds, all as
provided and subject to the limitations contained herein; and
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WHEREAS, the Agency has determined that due to the character of the Series 2015
Bonds, current favorable market conditions, the uncertainty inherent in a competitive bidding
process and the recommendations of the Financial Advisor, it is in the best interest of the Agency
to authorize the negotiated sale of the Series 2015 Bonds; and
WHEREAS, in connection with the issuance of the Series 2015 Bonds, the requirements
of Ordinance No. 2007-3582, adopted by the Mayor and City Commission of the City on
November 21, 2007, including the holding of two public hearings, have been complied with prior
to the adoption of this Resolution;
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CHAIRPERSON AND
MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY:
ARTICLE I
DEFINITIONS, AUTHORITY AND FINDINGS;
RESOLUTION CONSTITUTES A CONTRACT
SECTION 101. DEFINITIONS. In addition to the terms defined elsewhere in this
Resolution, as used in this Resolution, the following terms shall have the following meanings:
"Act" shall mean the Florida Community Redevelopment Act, Chapter 163, Part III,
Florida Statutes, as amended, and other applicable provisions of law.
"Agency" shall mean the Miami Beach Redevelopment Agency, a body corporate and
politic, created pursuant to the Act.
"Amortization Requirements" shall mean such moneys required to be deposited in the
Bond Redemption Account for the purpose of the mandatory redemption or payment at maturity
of any Term Bonds, the specific amounts of such deposits to be determined by the Chairperson
in the Chairperson's Certificate with respect to the Series 2015 Bonds and pursuant to any
resolution authorizing any other Series of Bonds with respect to such other Series of Bonds.
"Average Annual Debt Service" shall mean, at any time and with respect to all of the
Bonds or any particular Series of Bonds (as appropriate), the sum of the Debt Service
Requirements for the then current and every succeeding Fiscal Year divided by the number of
such Fiscal Years.
"Bonds" shall mean the Series 2015 Bonds, authorized to be issued pursuant to this
Resolution, together with any additional parity Bonds hereafter issued pursuant to this
Resolution.
"Bondholder", "Holder", "Holder of Bonds" or "Owner" or any similar term, shall mean
any person, who shall be the registered owner of any Outstanding Bond or Bonds.
"Chairperson" shall mean the Chairperson of the Agency or in the absence or disability of
the Chairperson, the Vice Chairperson of the Agency or the officers succeeding to their principal
functions.
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"Chairperson's Certificate" shall mean the Certificate to be executed by the Chairperson
on or prior to the date of initial issuance of the Series 2015 Bonds, which Certificate shall
provide the details of the Series 2015 Bonds.
"City" shall mean the City of Miami Beach, Florida.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to time,
and the regulations promulgated thereunder and applicable regulations promulgated under the
Internal Revenue Code of 1954, as amended.
"Commission" shall mean the Board of Commissioners of the Agency, being the
Chairperson and members of the Agency.
"County" shall mean Miami-Dade County, Florida.
"Credit Facility" shall mean an irrevocable letter of credit, policy of municipal bond
insurance, guaranty, purchase agreement, credit agreement or similar facility in which the entity
providing such facility irrevocably agrees to provide funds to make payment of the principal of
and interest on Bonds.
"Debt Service Requirement" for any period, as applied to all of the Bonds or all of the
Bonds of any Series (as appropriate), shall mean the respective amounts which are needed to
provide:
(a) for paying the interest on all Bonds or all Bonds of such Series (as
appropriate) then Outstanding which is payable on each Interest Payment Date in such
period,
(b) for paying the principal of all Serial Bonds or all Serial Bonds of such
Series (as appropriate) then Outstanding which is payable upon the maturity of such
Serial Bonds in such period, and
(c) the Amortization Requirements, if any, for all Term Bonds or the Term
Bonds of such Series (as appropriate) for such period.
If all or a portion of the principal of (including, without limitation, Amortization
Requirements) or interest on a Series of Bonds is payable from funds irrevocably set aside or
deposited for such purpose, together with projected earnings thereon to the extent such earnings
are projected to be from Permitted Investments, such principal or interest shall not be included in
determining Debt Service Requirements if such funds and/or Permitted Investments will provide
moneys which shall be sufficient to pay when due such principal or interest.
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"Defeasance Obligations" shall mean to the extent permitted by law:
(a) Direct general obligations of, or obligations the timely payment of the
principal of and the interest on which is unconditionally guaranteed by, the United States
of America; and
(b) Evidences of indebtedness issued by the Bank for Cooperatives, Federal
Home Loan Banks, Federal Home Loan Mortgage Corporation (including participation
certificates), Federal Land Banks, Federal Financing Banks, or any other agency or
instrumentality of the United States of America created by an act of Congress which is
substantially similar to the foregoing in its legal relationship to the United States of
America; provided that the obligations of such agency or instrumentality are
unconditionally guaranteed by the United States of America or any other agency or
instrumentality of the United States of America; and
(c) Evidences of ownership of proportionate interests in future interest and
principal payments on specified obligations described in (a) above held by a bank or trust
company as custodian, under which the owner of the investment is the real party in
interest and has the right to proceed directly and individually against the obligor on the
underlying obligations described in (a) above, and which underlying obligations are not
available to satisfy any claim of the custodian or any person claiming through the
custodian or to whom the custodian may be obligated; and
(d) Obligations described in Section 103(a) of the Code which do not permit
redemption prior to maturity at the option of the obligor and provision for the payment of
the principal of, premium, if any, and interest on which shall have been made by the
irrevocable deposit with a bank or trust company acting as a trustee or escrow agent for
the holders of such obligations, direct general obligations of the United States of
America, the maturing principal of and interest on which, when due and payable, will
provide sufficient monies to pay when due the principal of, premium if any, and interest
on such obligations, and which direct general obligations of the United States of America
are not available to satisfy any other claim, including any claim of the trustee or escrow
agent or of any person claiming through the trustee or escrow agent or to whom the
trustee or escrow agent may be obligated, including in the event of the insolvency of the
trustee or escrow agent or proceedings arising out of such insolvency.
"Executive Director" shall mean the Executive Director of the Agency.
"General Counsel" shall mean the General Counsel of the Agency, currently the City
Attorney of the City.
"Fiduciaries" shall mean the Paying Agent and the Registrar appointed and acting under
this Resolution.
"Fiscal Year" shall mean that period commencing on October 1, and continuing to and
including the next succeeding September 30, or such other annual period as may be prescribed
by law or by the Agency in accordance with law.
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"Interest Payment Date" shall mean for each Series of Bonds such dates on which interest
on the Bonds is payable on such Bonds that are Outstanding, as set forth in the proceedings of
the Agency providing for the issuance of such Series of Bonds.
"Maximum Annual Debt Service" shall mean, at any time and with respect to all of the
Bonds or any particular Series of the Bonds (as appropriate), the greatest Debt Service
Requirement in the then current or any succeeding Fiscal Year.
"Outstanding" when used with reference to the Bonds, shall mean, as of any date of
determination, all Bonds theretofore authenticated and delivered except:
(a) Bonds theretofore cancelled by the Registrar or delivered to the Registrar
for cancellation;
(b) Bonds which are deemed paid and no longer Outstanding as provided
herein;
(c) Bonds in lieu of which other Bonds have been issued pursuant to the
provisions hereof relating to Bonds destroyed, stolen or lost, unless evidence satisfactory
to the Registrar has been received that any such Bond is held by a bona fide purchaser;
and
(d) For purposes of any consent or other action to be taken hereunder by the
Holders of a specified percentage of principal amount of Bonds, Bonds held by or for the
account of the Agency.
"Paying Agent" shall mean any bank or trust company or any successor bank or trust
company appointed by the Agency to act as Paying Agent hereunder.
"Permitted Investments" shall mean and include such obligations as shall be permitted to
be legal investments of the Agency by the laws of the State.
"Pledged Funds" shall mean, collectively, (i) the Trust Fund Revenues, and (ii) except for
moneys, securities and instruments in the Rebate Fund, all moneys, securities and instruments
held in the funds and accounts created and established by this Resolution.
"Redevelopment Area" shall mean the "City Center/Historic Convention Village
Redevelopment and Revitalization Area" located within the City and found by the City to be a
"blighted area" within the meaning of the Act and described in the Redevelopment Plan, as the
geographic boundaries of such area may be changed from time to time as permitted under the
Act.
"Redevelopment Plan" shall mean the redevelopment plan for the Redevelopment Area
originally adopted by the Agency by Resolution No. 128-93 adopted on February 12, 1993 and
approved by the City by Resolution No. 93-20721 adopted on February 12, 1993 and by the
County by Resolution No. 317-93 adopted on March 30, 1993, as the same has been and may be
amended from time to time.
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"Redevelopment Projects" shall mean the particular community redevelopment projects
undertaken by the Agency pursuant to the Redevelopment Plan within the Redevelopment Area
in accordance with the Act, including the Series 2015 Redevelopment Project.
"Registrar" shall mean the officer of the Agency or a bank or trust company appointed by
the Agency, located within or without the State of Florida, who or which shall maintain the
registration books of the Agency and be responsible for the transfer and exchange of the Bonds.
"Reserve Account Insurance Policy" shall mean the insurance policy, surety bond or
other acceptable evidence of insurance, if any, deposited in the Debt Service Reserve Account in
lieu of or in partial substitution for cash or securities on deposit therein. The issuer providing
such insurance shall be rated, at the time of deposit in the Debt Service Reserve Account, in one
of the two highest rating categories of Fitch Ratings Inc. or any successors thereof, Moody's
Investors Service, Inc. or any successors thereof or Standard & Poor's Ratings Services or any
successors thereof.
"Reserve Account Letter of Credit" shall mean the irrevocable, transferable letter of
credit, if any, deposited in the Debt Service Reserve Account in lieu of or in partial substitution
for cash or securities on deposit therein. The issuer providing such letter of credit shall be rated,
at the time of deposit into the Debt Service Reserve Account, in one of the two highest rating
categories of Fitch Ratings Inc. or any successors thereof, Moody's Investors Service, Inc. or any
successors thereof or Standard & Poor's Ratings Services or any successors thereof
"Reserve Account Requirement" shall mean the least of (i) Maximum Annual Debt
Service on all Bonds Outstanding, (ii) 125% of Average Annual Debt Service on all Bonds
Outstanding, or (iii) 10% of the proceeds of the Bonds within the meaning of the Code.
"Resolution" shall mean this Resolution as the same may from time to time be amended
and supplemented in accordance with the terms hereof.
"Secretary" shall mean the Secretary of the Agency.
"Serial Bonds" shall mean the Bonds of any Series which shall be stated to mature in
annual installments but not including Term Bonds.
"Series" shall mean all of the Bonds authenticated and delivered on original issuance and
pursuant to this Resolution or any supplemental resolution authorizing such Bonds as a separate
Series of Bonds, or any Bonds thereafter authenticated and delivered in lieu of or in substitution
for such Bonds pursuant to Article II hereof, regardless of variations in maturity, interest rate or
other provisions.
"Series 2015 Bonds" shall mean the Bonds authorized to be issued under Section 201 of
this Resolution.
"Series 2015 Redevelopment Project" shall mean the construction of certain public
improvements within the Redevelopment Area being financed with proceeds of the Series 2015
Bonds and more particularly described in Exhibit A hereto.
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"State" shall mean the State of Florida.
"Taxable Bonds" shall mean Bonds the interest on which is not intended at the time of
issuance thereof to be excluded from gross income of the holders thereof for federal income tax
purposes.
"Tax-Exempt Bonds" shall mean Bonds the interest on which is excludable from gross
income of the holders thereof for federal income tax purposes.
"Term Bonds" shall mean the Bonds of any Series which shall be stated to mature on one
date and for the amortization of which payments are required to be made into the Bond
Redemption Account in the Sinking Fund.
"Trust Fund" shall mean the City Center/Historic Convention Village Redevelopment
and Revitalization Trust Fund established by Ordinance No. 93-2836 adopted by the City on
February 24, 1993 and by Ordinance No. 93-28 enacted by the County on April 27, 1993 in
accordance with the Act.
"Trust Fund Revenues" shall mean the revenues derived from the Redevelopment Area
and received by the Agency for deposit in the Trust Fund pursuant to Section 163.3 87, Florida
Statutes, as amended, Ordinance No. 93-2836 adopted by the City on February 24, 1993, as
amended from time to time, including Ordinance No. 2014-3901 adopted by the City on
November 8, 2014, and Ordinance No. 93-28 enacted by the County on April 27, 1993, as
amended from time to time, including Ordinance No. 14-133 enacted by the County on
December 16, 2014.
"Underwriters" shall mean Morgan Stanley & Co. LLC, Wells Fargo Bank, National
Association, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Raymond James &
Associates, Inc. and Loop Capital Markets LLC.
Words importing singular number shall include the plural number in each case and vice
versa, and words importing persons shall include firms and corporations. Words that appear in
this Resolution in lower case form shall have the meanings ascribed to them in the definitions
unless the context shall otherwise indicate. The words "Bond", "Owner", "Holder" and "person"
shall include the plural as well as the singular number unless the context shall otherwise indicate.
SECTION 102. AUTHORITY FOR THIS RESOLUTION. This Resolution is adopted
pursuant to the provisions of the Act.
SECTION 103. FINDINGS. The recitals to this Resolution are incorporated herein as
findings. In addition, it is hereby ascertained, determined and declared that:
(a) The Agency is authorized to receive, deposit and apply the Trust Fund
Revenues pursuant to the Act.
(b) It is necessary and desirable to issue the Series 2015 Bonds in order to
refund the Outstanding Prior Bonds and finance the Series 2015 Redevelopment Project.
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(c) The principal of and interest on the Bonds and all required sinking fund,
reserve and other payments shall be payable solely from the Pledged Funds. None of the
City, the County, or the State of Florida or any political subdivision thereof or
governmental authority or body therein shall ever be required to levy ad valorem taxes to
pay the principal of or interest on the Bonds or to make any of the sinking fund, reserve
or other payments required by this Resolution or the Bonds, and the Bonds shall not
constitute indebtedness of the Agency, the City, the County, the State or any political
subdivision thereof within the meaning of any constitutional, statutory or other provision
or limitation or a lien upon any property owned by or situated within the corporate
territory of the Agency or the City, except as provided herein with respect to the Pledged
Funds.
SECTION 104. RESOLUTION CONSTITUTES CONTRACT. In consideration of the
acceptance of the Bonds authorized to be issued hereunder by those who shall own the same
from time to time, this Resolution shall be deemed to be and shall constitute a contract between
the Agency and such Bondholders, and the covenants and agreements herein set forth to be
performed by the Agency shall be for the equal benefit, protection and security of the owners of
any and all of such Bonds, all of which shall be of equal rank and without preference, priority, or
distinction of any of the Bonds over any other thereof except as expressly provided therein and
herein.
[END OF ARTICLE I]
•
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ARTICLE II
AUTHORIZATION, TERMS, EXECUTION AND REGISTRATION OF BONDS
SECTION 201. AUTHORIZATION OF THE SERIES 2015 BONDS. Subject and
pursuant to the provisions of this Resolution, one or more Series of Bonds of the Agency to be
known as Tax Increment Revenue Bonds, Series (City Center/Historic Convention
Village) (the "Series 2015 Bonds"), or such other designation as shall be set forth in the
Chairperson's Certificate, are hereby authorized to be issued in an aggregate principal amount
not to exceed Four Hundred Thirty Million Dollars ($430,000,000), for the purpose of providing
funds, together with any other available moneys, to refund the Outstanding Prior Bonds, to
finance the Series 2015 Redevelopment Project, to fund the Debt Service Reserve Account and
to pay costs of issuance of the Series 2015 Bonds, which Bonds may be issued all at one time or
from time to time, and designated as to Series, as shall be determined by the Executive Director,
after consultation with the Chief Financial Officer and the Financial Advisor, and set forth in the
Chairperson's Certificate. The refunding of the Outstanding Prior Bonds and the financing of
the Series 2015 Redevelopment Project and its acquisition is hereby authorized.
Subject to the limitations contained herein, the Series 2015 Bonds shall be issued in such
aggregate principal amount, shall be dated, shall mature on such dates and in such years, but not
later than March 31, 2044, and in such amounts, shall be issued as Tax-Exempt Bonds or
Taxable Bonds or a combination thereof, shall be in the form of Serial Bonds or Term Bonds or a
combination thereof, shall have such Interest Payment Dates, shall bear interest at such fixed
rates not to exceed the maximum rate permitted by law, shall have such Amortization
Requirements, if any, and shall be subject to redemption at such times and at such prices, all as
shall be determined by the Executive Director, after consultation with the Chief Financial Officer
and the Financial Advisor, and set forth in the Chairperson's Certificate.
The Commission hereby appoints U.S. Bank National Association as Registrar and
Paying Agent for the Series 2015 Bonds.
If the Executive Director determines, in reliance upon the recommendations of the Chief
Financial Officer and the Financial Advisor, that there is an economic benefit to the Agency to
secure and pay for a Credit Facility and/or a Reserve Account Insurance Policy with respect to
all or a portion of the Series 2015 Bonds, the Executive Director is authorized to secure a Credit
Facility and/or a Reserve Account Insurance Policy with respect to all or a portion of the Series
2015 Bonds. The Executive Director is authorized to provide for the payment of any premiums
for such Credit Facility and/or Reserve Account Insurance Policy from the proceeds of the Series
2015 Bonds. The Chairperson is authorized, after consultation with the General Counsel, to
enter into, execute and deliver such agreements as may be necessary to secure such Credit
Facility and/or Reserve Account Insurance Policy, the execution and delivery by the Chairperson
of any such agreements for and on behalf of the Agency to be conclusive evidence of the
Agency's approval of securing such Credit Facility and/or Reserve Account Insurance Policy and
of such agreements. Any agreements with any providers of a Credit Facility and/or Reserve
Account Insurance Policy shall supplement and be in addition to the provisions of this
Resolution.
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The Commission hereby approves the distribution of copies of the Preliminary Official
Statement with respect to the Series 2015 Bonds (the "Preliminary Official Statement") in
substantially the form presented at this meeting, subject to such changes, modifications,
insertions and omissions and such filling-in of blanks therein as may be approved by the
Executive Director, after consultation with the Chief Financial Officer and the General Counsel.
The Chairperson or his designee, after consultation with the Chief Financial Officer and the
General Counsel, is hereby authorized to deem the Preliminary Official Statement "final" for
purposes of Securities and Exchange Commission Rule 15c2-12 (the "Rule") and to execute any
certificates in connection with such finding. The Chairperson and the Executive Director are
hereby authorized to execute the Official Statement with respect to the Series 2015 Bonds (the
"Official Statement") on behalf of the Agency, in substantially the form of the Preliminary
Official Statement presented at this meeting with such changes, modifications, insertions and
omissions and such filling-in of blanks therein as shall be necessary to evidence the terms of the
Series 2015 Bonds or as may be approved by the Executive Director, with such execution to
constitute conclusive evidence of the Agency's approval of the Preliminary Official Statement
and the Official Statement. The use of the Preliminary Official Statement and the Official
Statement in the marketing and sale of the Series 2015 Bonds is hereby approved.
For the reasons stated in the recitals to this Resolution, the negotiated sale of the Series
2015 Bonds to the Underwriters is hereby authorized at a purchase price (not including original
issue premium or original issue discount) of not less than 99% of the aggregate principal amount
of the Series 2015 Bonds (the "Minimum Purchase Price") and at a true interest cost rate ("TIC")
not to exceed 6.50% (the "Maximum TIC"). The Executive Director, after consultation with the
Chief Financial Officer and the Financial Advisor, is hereby authorized to award the Series 2015
Bonds to the Underwriters at a purchase price of not less than the Minimum Purchase Price and
at a TIC not in excess of the Maximum TIC.
The Chairperson is hereby authorized to execute the Bond Purchase Agreement (the
"Bond Purchase Agreement") for the purchase of the Series 2015 Bonds by the Underwriters,
upon compliance by the Underwriters with any and all requirements of Florida Statutes, Section
218.385, in substantially the form presented at this meeting, subject to such changes,
modifications, insertions and omissions and such filling-in of blanks therein as may be necessary
to evidence the terms of the Series 2015 Bonds or as may be approved by the Executive Director,
after consultation with the Chief Financial Officer and the General Counsel. The execution and
delivery of the Bond Purchase Agreement by the Chairperson for and on behalf of the Agency
shall be conclusive evidence of the Agency's acceptance of the Underwriters proposal to
purchase the Series 2015 Bonds and approval of the Bond Purchase Agreement.
The Chairperson is hereby authorized to execute and deliver two Escrow Deposit
Agreements to provide for the defeasance, payment and, as applicable, redemption of the
Outstanding Prior Bonds (collectively, the "Escrow Deposit Agreements"), each with U.S. Bank
National Association, which is hereby appointed escrow agent thereunder (the "Escrow Agent"),
in substantially the forms presented at this meeting, subject to such changes, modifications,
insertions and omissions and such filling-in of blanks therein as may be determined and
approved by the Executive Director, after consultation with the Chief Financial Officer and the
General Counsel. To the extent provided in the Escrow Deposit Agreements, the purchase of
Defeasance Obligations (as defined in the Prior Bond Resolution) from the proceeds of the Series
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2015 Bonds and any other available moneys in order to provide for the defeasance, payment and,
as applicable, redemption of the Outstanding Prior Bonds is hereby authorized and approved.
The execution and delivery of the Escrow Deposit Agreements by the Chairperson for and on
behalf of the Agency shall be conclusive evidence of the Agency's approval of the redemption
prior to maturity of any Outstanding Prior Bonds, the Escrow Deposit Agreements and the
f n Obligations.
of any such De easa ce Ob g ations.
In accordance with the provisions of the Prior Bond Resolution, there is created pursuant
to each of the Escrow Deposit Agreements a separate Escrow Deposit Trust Fund (as defined in
each of the Escrow Deposit Agreements) to be held by the Escrow Agent, for the deposit of
proceeds of each such Series of Series 2015 Bonds and any other available moneys to be applied
as provided in each of the Escrow Deposit Agreements.
For the benefit of the holders and beneficial owners from time to time of the Series 2015
Bonds, the Agency agrees, in accordance with the Rule, to provide or cause to be provided such
annual financial information and operating data, financial statements and notices, in such
manner, as may be required for purposes of paragraph (b)(5) of the Rule. In order to describe
and specify certain terms of the Agency's continuing disclosure agreement, the Executive
Director is hereby authorized and directed to enter into, execute and deliver, in the name and on
behalf of the Agency, a Disclosure Dissemination Agent Agreement (the "Continuing Disclosure
Agreement") with Digital Assurance Certification, L.L.C., which is hereby appointed as
disclosure dissemination agent with respect to the Series 2015 Bonds, in substantially the form
presented at this meeting, subject to such changes, modifications, insertions and omissions and
such filling-in of blanks therein as may be determined and approved by the Executive Director,
after consultation with the General Counsel. The execution and delivery of the Continuing
Disclosure Agreement by the Executive Director for and on behalf of the Agency shall be
conclusive evidence of the Agency's approval of the Continuing Disclosure Agreement.
Notwithstanding any other provisions of this Resolution, any failure by the Agency or the City to
comply with any provisions of the Continuing Disclosure Agreement shall not constitute a
default under this Resolution and the remedies therefor shall be solely as provided in the
Continuing Disclosure Agreement.
The Executive Director is further authorized and directed to establish, or cause to be
established, procedures in order to ensure compliance by the Agency with the Continuing
Disclosure Agreement, including the timely provision of information and notices. Prior to
making any filing in accordance with such agreement, the Executive Director may consult with,
as appropriate, the General Counsel or the Agency's disclosure counsel. The Executive Director,
acting in the name and on behalf of the Agency, shall be entitled to rely upon any legal advice
provided by General Counsel of the Agency or the Agency's disclosure counsel in determining
whether a filing should be made.
SECTION 202. DESCRIPTION OF BONDS. Unless otherwise specified by the Agency
in subsequent proceedings, any Bonds issued pursuant to this Resolution shall be issued in fully
registered form and, if the Registrar issues notice of the availability of exchanging registered
Bonds for coupon Bonds, in coupon form. If the Registrar receives an opinion of counsel of
recognized standing in the field of law relating to municipal bonds to the effect that the issuance
of any of the Bonds in coupon form will not adversely affect the exclusion from gross income for
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federal income tax purposes of the interest on any Tax-Exempt Bonds, the Registrar may, at the
written direction of the Agency, mail notice to the registered owners of the Bonds of the
availability of exchanging registered Bonds for coupon Bonds. Registered Bonds may then be
exchanged for an equal aggregate principal amount of coupon Bonds of the same Series and
maturity of any authorized denomination and coupon Bonds may be exchanged for an equal
aggregate principal amount in the manner provided in this Resolution.
Unless otherwise specified by the Agency in subsequent proceedings, the Bonds of a
Series shall be dated as set forth in a Chairperson's Certificate as to the Series 2015 Bonds and
pursuant to subsequent resolution of the Agency as to the issuance of any other Series of Bonds;
shall be payable in any coin or currency of the United States of America that is legal tender at the
time of such payment; shall bear interest from their date at a fixed rate not exceeding the legal
rate per annum, with interest paid to the registered Holder thereof on each Interest Payment Date
by the Paying Agent at the address shown on the registration books of the Agency (held by the
Registrar) at the close of business on the 15th day of the calendar month preceding an Interest
Payment Date or any other date with respect to any Series of Bonds as may be determined
pursuant to subsequent resolution of the Agency (in each case a "Regular Record Date"); shall be
in denominations of$5,000 or any integral multiples thereof as to the Series 2015 Bonds and as
determined pursuant to subsequent resolution of the Agency relating to the issuance of any other
Series of Bonds; and shall mature on such dates, in such years and in such amounts, as set forth
in a Chairperson's Certificate as to the Series 2015 Bonds and as provided for pursuant to
subsequent resolution of the Agency relating to any other Series of Bonds. Notwithstanding
anything in this paragraph to the contrary, any interest not punctually paid on an Interest
Payment Date shall forthwith cease to be payable to the registered Holder on the Regular Record
Date and may be paid to the registered Holder as of the close of business on a special record date
for the payment of such defaulted interest to be fixed by the Paying Agent, notice of which shall
be given not less than 10 days prior to such special record date to the registered Holders.
The principal of and redemption premium, if any, on the Bonds shall be payable upon
presentation and surrender at the designated office of the Paying Agent. Interest on the Bonds
shall be paid by check or draft drawn upon the Paying Agent and mailed to the registered owners
of the Bonds on each Interest Payment Date; provided, however, that (i) if ownership of Bonds is
maintained in a book-entry only system by a securities depository, such payment may be made
by automatic funds transfer to the securities depository or its nominee or (ii) if such Bonds are
not maintained in a book-entry only system by a securities depository, upon written request of
the Holder of$1,000,000 or more in principal amount of Bonds, such payments may be made by
wire transfer to the bank and bank account specified in writing by such Holder (such bank being
a bank within the continental United States), if such Holder has advanced to the Paying Agent
the amount necessary to pay the cost of such wire transfer or authorized the Paying Agent to
deduct the cost of such wire transfer from the payment due to such Holder.
SECTION 203. REDEMPTION PROVISIONS. The Bonds of each Series, other than
the Series 2015 Bonds, may be subject to redemption prior to maturity at such times, at such
redemption prices and upon such terms in addition to the terms contained in this Resolution as
may be determined pursuant to subsequent resolutions of the Agency, which subsequent
resolutions may contain different redemption notice provisions than those contained in this
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Resolution. The redemption provisions for the Series 2015 Bonds shall be established in the
manner described in the second paragraph of Section 201 of this Resolution.
Notice of redemption for Bonds being redeemed shall be given by deposit in the U.S.
mails of a copy of a redemption notice, postage prepaid, at least thirty (30) and not more than
sixty (60) days before the redemption date to all registered owners of the Bonds or portions of
the Bonds to be redeemed at their addresses as they appear on the registration books to be
maintained in accordance with the provisions hereof. Failure to mail any such notice to a
registered owner of a Bond, or any defect therein, shall not affect the validity of the proceedings
for redemption of any Bond or portion thereof with respect to which no failure or defect
occurred. Such notice shall set forth the date fixed for redemption, the rate of interest borne by
each Bond being redeemed, the date of publication, if any, of a notice of redemption, the name
and address of the Registrar and Paying Agent, the redemption price to be paid and, if less than
all of the Bonds then outstanding shall be called for redemption, the distinctive numbers and
letters, including CUSIP numbers, if any, of such Bonds to be redeemed and, in the case of
Bonds to be redeemed in part only, the portion of the principal amount thereof to be redeemed.
If any Bond is to be redeemed in part only, the notice of redemption which relates to such Bond
shall also state that on or after the redemption date, upon surrender of such Bond, a new Bond or
Bonds in a principal amount equal to the unredeemed portion of such Bond will be issued. Any
notice mailed as provided in this Section shall be conclusively presumed to have been duly
given, whether or not the owner of such Bond receives such notice.
In the case of an optional redemption of Bonds, the redemption notice may state that (a) it
is conditioned upon the deposit of moneys with the Paying Agent or with a bank, trust company
or other appropriate fiduciary institution acting as escrow agent (the "escrow agent"), in amounts
necessary to effect the redemption, no later than the redemption date, or (b) the Agency retains
the right to rescind such notice on or prior to the scheduled redemption date (in either case, a
"Conditional Redemption"), and such notice and optional redemption shall be of no effect if such
moneys are not so deposited or if the notice is rescinded as described in this Section. Any such
notice of Conditional Redemption shall be captioned "Conditional Notice of Redemption." Any
Conditional Redemption may be rescinded at any time prior to the redemption date if the Agency
delivers a written direction to the Registrar directing the Registrar to rescind the redemption
notice. The Registrar shall give prompt notice of such rescission to the affected Bondholders.
Any Bonds subject to Conditional Redemption where redemption has been rescinded shall
remain Outstanding, and neither the rescission nor the failure by the Agency to make such
moneys available shall constitute a default under this Resolution.
Notice having been given in the manner and under the conditions described in this
Section, and with respect to a Conditional Redemption, the Conditional Redemption not having
been rescinded, the Bonds or portions of Bonds so called for redemption shall, on the redemption
date designated in such notice, become and be due and payable at the redemption price provided
for redemption for such Bonds or portions of Bonds on such date. On the date so designated for
redemption, moneys for payment of the redemption price being held in separate accounts by the
Paying Agent in trust for the registered owners of the Bonds or portions thereof to be redeemed,
all as provided in this Resolution, interest on the Bonds or portions of Bonds so called for
redemption shall cease to accrue, such Bonds and portions of Bonds shall cease to be entitled to
any lien, benefit or security under this Resolution and shall be deemed paid hereunder, and the
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registered owners of such Bonds or portions of Bonds shall have no right in respect thereof
except to receive payment of the redemption price thereof and to receive Bonds for any
unredeemed portions of the Bonds.
SECTION 204. EXECUTION OF BONDS. The Bonds shall be executed in the name of
the Agency by the Chairperson, and the seal of the Agency or a facsimile thereof shall be affixed
thereto or imprinted or reproduced thereon and attested by the Secretary, either manually or with
their facsimile signatures. In case any one or more of the officers who shall have signed or
sealed any of the Bonds shall cease to be such officer before the Bonds so signed and sealed shall
have been actually sold and delivered, such Bonds may nevertheless be sold and delivered as
herein provided and may be issued as if the person who signed and sealed such Bonds had not
ceased to hold such office. Any Bond may be signed and sealed on behalf of the Agency by such
person as at the actual time of the execution of such Bond shall hold the proper office, although
at the date of such Bonds such person may not have held such office or may not have been so
authorized.
The Bonds of each Series shall bear thereon a certificate of authentication, in the form set
forth in Exhibit B hereto, executed manually by the Registrar. Only such Bonds as shall bear
thereon such certificate of authentication shall be entitled to any right or benefit under this
Resolution and no Bond shall be valid or obligatory for any purpose until such certificate of
authentication shall have been duly executed by the Registrar. Such certificate of the Registrar
upon any Bond executed on behalf of the Agency shall be conclusive evidence that the Bond so
authenticated has been duly authenticated and delivered under this Resolution and that the
Holder thereof is entitled to the benefits of this Resolution. If the Bonds of a Series have been
validated, the validation certificate on each of the Bonds of such Series shall be signed with the
manual or facsimile signatures of the present or any future Chairperson, and the Agency may
adopt and use for that purpose the manual or facsimile signature of any person who shall have
been such Chairperson at any time on or after the date of the Bonds, notwithstanding that he may
have ceased to be such Chairperson at the time when said Bonds shall be actually delivered.
SECTION 205. NEGOTIABILITY, REGISTRATION AND CANCELLATION. At the
option of the registered Holder thereof and upon surrender thereof at the designated corporate
trust office of the Registrar with a written instrument of transfer satisfactory to the Registrar duly
executed by the Holder or his duly authorized attorney and upon payment by such Holder of any
charges which the Registrar or the Agency may make as provided in this Section, the Bonds may
be exchanged for Bonds of the same aggregate principal amount of the same Series and maturity
of any other authorized denominations.
The Registrar shall keep books for the registration of Bonds and for the registration of
transfers of Bonds. The Bonds shall be transferable by the Holder thereof in person or by his
attorney duly authorized in writing only upon the books of the Agency kept by the Registrar and
only upon surrender thereof together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Holder or his duly authorized attorney. Upon the transfer of any
such Bond, the Agency shall cause to be issued in the name of the transferee a new Bond or
Bonds.
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The Agency, the Paying Agent and the Registrar may deem and treat the person in whose
name any Bond shall be registered upon the books kept by the Registrar as the absolute Holder
of such Bond, whether such Bond shall be overdue or not, for the purpose of receiving payment
of, or on account of, the principal of, premium, if any, and interest on such Bond as the same
becomes due and for all other purposes. All such payments so made to any such Holder or upon
his order shall be valid and effectual to satisfy and discharge the liability upon such Bond to the
extent of the sum or sums so paid, and neither the Agency, the Paying Agent nor the Registrar
shall be affected by any notice to the contrary.
In all cases in which the privilege of exchanging Bonds or transferring Bonds is
exercised, the Agency shall execute and the Registrar shall authenticate and deliver Bonds in
accordance with the provisions of this Resolution. All Bonds surrendered in any such exchanges
or transfers shall forthwith be delivered to the Registrar and cancelled by the Registrar in the
manner provided in this Section. There shall be no charge for any such exchange or transfer of
Bonds, but the Agency or the Registrar may require the payment of a sum sufficient to pay any
tax, fee or other governmental charge required to be paid with respect to such exchange or
transfer. Neither the Agency nor the Registrar shall be required (a) to transfer or exchange
Bonds of any Series for a period of 15 days next preceding any selection of Bonds of such Series
to be redeemed or thereafter until after the mailing of any notice of redemption; or (b) to transfer
or exchange any Bonds of any Series called for redemption.
All Bonds paid or redeemed, either at or before maturity shall be delivered to the Paying
Agent when such payment or redemption is made, and such Bonds, together with all Bonds
purchased by the Agency, shall thereupon be promptly cancelled. Bonds so cancelled may at
any time be destroyed by the Paying Agent, who shall execute a certification of destruction in
duplicate by the signature of one of its authorized officers describing the Bonds so destroyed,
and one executed certificate shall be filed with the Agency and the other executed certificate
shall be retained by the Paying Agent.
SECTION 206. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In case
any Bond shall become mutilated, destroyed, stolen or lost, the Agency may execute and the
Registrar shall authenticate and deliver a new Bond of like Series, date, maturity, denomination
and interest rate as the Bond so mutilated, destroyed, stolen or lost; provided that, in the case of
any mutilated Bond, such mutilated Bond shall first be surrendered to the Agency and, in the
case of any lost, stolen or destroyed Bond, there shall first be furnished to the Agency and the
Registrar evidence of such loss, theft, or destruction satisfactory to the Agency and the Registrar,
together with indemnity satisfactory to them. In the event any such Bond shall be about to
mature or have matured or have been called for redemption, instead of issuing a duplicate Bond,
the Agency may direct the Paying Agent to pay the same without surrender thereof The Agency
and Registrar may charge the Holder of such Bonds their reasonable fees and expenses in
connection with this transaction. Any Bond surrendered for replacement shall be cancelled in
the same manner as provided in Section 205 hereof
Any such duplicate Bonds issued pursuant to this Section shall constitute additional
contractual obligations on the part of the Agency, whether or not the lost, stolen or destroyed
Bonds be at any time found by anyone, and such duplicate Bonds shall be entitled to equal and
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proportionate benefits and rights as to lien on and source and security for payment from the
Pledged Funds, with all other Bonds issued hereunder.
SECTION 207. PREPARATION OF DEFINITIVE BONDS; TEMPORARY BONDS.
Unless otherwise specified by the Agency in subsequent proceedings, the definitive Bonds of
each Series shall be lithographed, printed or typewritten. Until the definitive Bonds are
prepared, the Chairperson and Executive Director may execute and the Registrar may
authenticate, in the same manner as is provided in Section 204 hereof, and deliver, in lieu of
definitive Bonds, but subject to the same provisions, limitations and conditions as the definitive
Bonds, one or more printed, lithographed or typewritten temporary fully registered Bonds,
substantially of the tenor of the definitive Bonds in lieu of which such temporary Bond or Bonds
are issued, in authorized denominations or any whole multiples thereof, and with such omissions,
insertions and variations as may be appropriate to such temporary Bonds. The Agency at its own
expense shall prepare, execute and, upon the surrender at the designated corporate trust office of
the Registrar of such temporary Bonds for which no payment or only partial payment has been
provided, the Registrar shall authenticate and, without charge to the Holder thereof, deliver in
exchange therefor, at the designated corporate trust office of the Registrar, definitive Bonds of
the same aggregate principal amount, Series and maturity as the temporary Bonds surrendered.
Until so exchanged, the temporary Bonds shall in all respects be entitled to the same benefits and
security as definitive Bonds issued pursuant to this Resolution.
SECTION 208. FORM OF BONDS. The text of the Bonds shall be of the tenor set forth
in Exhibit B to this Resolution, with such omissions, insertions and variations as may be
necessary and desirable and authorized or permitted by this Resolution or a Chairperson's
Certificate.
SECTION 209. BOOK-ENTRY ONLY SYSTEM FOR THE BONDS;
QUALIFICATION FOR THE DEPOSITORY TRUST COMPANY. The Series 2015 Bonds
shall be issued, and any future Series of Bonds may be issued, as uncertificated securities
through the book-entry only system maintained by The Depository Trust Company, New York,
New York ("DTC") or, with respect to any Series of Bonds other than the Series 2015 Bonds,
such other securities depository as may be selected by the Agency. The Agency, the Registrar
and the Paying Agent are hereby authorized to take such actions as may be necessary to qualify
the Bonds for deposit with DTC, including but not limited to those actions as may be set forth in
a letter of representations with DTC, the execution and delivery of which with respect to the
Series 2015 Bonds by the Chairperson or Executive Director of the Agency is hereby authorized.
[END OF ARTICLE II]
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ARTICLE III
COVENANTS, FUNDS AND APPLICATION THEREOF
SECTION 301. BONDS NOT TO BE INDEBTEDNESS OF THE AGENCY OR THE
CITY. The Bonds shall not be and shall not constitute an indebtedness of the Agency, the City,
the County, the State or any political subdivision thereof, within the meaning of any
constitutional, statutory or charter provisions or limitations, or a pledge of the faith and credit of
the Agency, the City, the County, the State or any political subdivision thereof, but shall be
payable solely, as provided in this Resolution, from the Pledged Funds. No Holder or Holders of
any Bonds issued hereunder shall ever have the right to compel the exercise of the ad valorem
taxing power of the City, the County, the State or any political subdivision thereof or taxation in
any form of any real or personal property therein, or the application of any funds of the Agency
or the City, the County, the State or any political subdivision thereof to pay the Bonds or the
interest thereon or the making of any sinking fund or reserve payments provided for herein other
than the Pledged Funds as provided in this Resolution.
SECTION 302. BONDS SECURED BY PLEDGE OF PLEDGED FUNDS. The
payment of the principal of, interest and premium, if any, on all of the Bonds issued hereunder
and any additional parity Bonds hereafter issued, as provided herein, shall be secured forthwith
equally and ratably by a first lien on and pledge of the Pledged Funds. The Pledged Funds in an
amount sufficient to pay the principal of and interest on the Bonds herein authorized and to make
the payments into the Sinking Fund (hereinafter created and established) and all other payments
provided for in this Resolution, as well as moneys held in the funds and accounts created under
this Resolution (other than the Rebate Fund), are hereby irrevocably pledged to the payment of
the principal of and interest on the Bonds authorized herein, and other payments provided for
herein, as the same become due and payable.
The Bonds and the obligation evidenced thereby shall not constitute a lien upon any
property owned by or situated within the corporate territory of the Agency or the City, but shall
constitute a lien only on the Pledged Funds all in the manner provided in this Resolution.
SECTION 303. APPLICATION OF BOND PROCEEDS; CONSTRUCTION FUND.
(a) All moneys received by the Agency from the sale of the Series 2015 Bonds shall
be disbursed as provided in a certificate of the Executive Director executed on the date of
delivery of the Series 2015 Bonds.
(b) All moneys received by the Agency from the sale of any Series of Bonds, other
than the Series 2015 Bonds, shall be disbursed in accordance with the provisions of a subsequent
resolution of the Agency relating to such Series of Bonds.
(c) There is hereby created and established a special fund designated the "Miami
Beach Redevelopment Agency Construction Fund (City Center/Historic Convention Village)"
(hereinafter referred to as the "Construction Fund") to be held and administered by the Agency.
There shall be created separate accounts within the Construction Fund for the deposit of proceeds
of each Series of Bonds and other available moneys to fund Redevelopment Projects being
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funded from proceeds of such Series of Bonds and other available moneys. Proceeds and other
moneys on deposit in the Construction Fund shall be disbursed by the Agency to pay costs of the
Redevelopment Project for which the applicable Series of Bonds was issued. If for any reason
the moneys in the Construction Fund, or any part thereof including any investment earnings on
deposit therein, are not necessary for, or are not applied to the purposes provided for the
applicable Series of Bonds, then such unapplied proceeds, upon certification of a duly authorized
official of the Agency that such surplus proceeds are not needed for such purposes, shall be
applied to the redemption or purchase or payment of principal of Outstanding Bonds.
Moneys on deposit in the Construction Fund may be invested and reinvested by the
Agency to the fullest extent practicable in Permitted Investments maturing not later than such
date or dates on which such moneys shall be needed for the purposes of the Construction Fund.
The earnings and investment income derived from the moneys and investments on deposit in the
Construction Fund shall be deposited and maintained in the applicable account within the
Construction Fund and used for the purposes thereof.
(d) The proceeds of the sale of the Bonds shall be and constitute trust funds for the
purposes hereinabove provided and there is hereby created a lien upon such moneys, until so
applied, in favor of the Holders of said Bonds.
SECTION 304. COVENANTS OF THE AGENCY. The Agency hereby covenants and
agrees with the Holders of any and all of the Bonds issued pursuant to this Resolution as follows:
A. TAX COVENANTS.
(1) The Agency will not take any action or omit to take any action, which
action or omission would result in interest on the Tax-Exempt Bonds being includable in
gross income of the holders thereof for federal income tax purposes under the Code.
Particularly, the Agency will not take any action or omit to take any action which would
have caused any of the Tax-Exempt Bonds to be "arbitrage bonds" within the meaning of
Section 148 of the Code.
(2) The Agency shall comply with the arbitrage rebate covenants as provided
in Section 304(E) hereof.
B. REDEVELOPMENT PLAN. The Agency will carry out the purposes of the
Redevelopment Plan within the Redevelopment Area all in accordance with the Act and will take
all such actions as are required to carry out the full intent of the Redevelopment Plan.
C. TRUST FUND. As soon as the same are received by the Agency, all of the Trust
Fund Revenues shall be forthwith deposited into the Trust Fund. The Trust Fund shall constitute
a trust fund for the purposes provided in this Resolution, shall be held by the Agency and shall
be maintained separate and distinct from all other funds of the Agency and used only for the
purposes and in the manner provided in this Resolution and the Act.
D. DISPOSITION OF TRUST FUND REVENUES. There is hereby created and
established a special fund designated the "Miami Beach Redevelopment Agency Sinking Fund
(City Center/Historic Convention Village)" (hereinafter referred to as the "Sinking Fund").
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There are also hereby created four (4) separate accounts in the Sinking Fund to be known as the
"Interest Account", the "Principal Account," the "Bond Redemption Account" and the "Debt
Service Reserve Account". The Sinking Fund and the accounts therein shall be held and
administered by the Agency.
In each Fiscal Year, all Trust Fund Revenues deposited in the Trust Fund during such
Fiscal Year shall be disposed of by the Agency only in the following manner:
(1) Trust Fund Revenues shall first be used, to the full extent required, for
deposit into the Interest Account in the Sinking Fund, immediately upon receipt of such
Trust Fund Revenues, of such sums as shall be sufficient to pay the interest becoming due
on the Bonds during the current calendar year (or if such Trust Fund Revenues are
deposited in the Trust Fund during the first quarter of such Fiscal Year, to pay the interest
becoming due on the Bonds through the end of the next succeeding calendar year);
provided, however, that such deposit for interest shall not be required to be made into the
Interest Account to the extent that money on deposit therein is sufficient for such
purpose.
The Agency shall, on the business day prior to each Interest Payment Date,
transfer to the Paying Agent moneys in an amount equal to the interest due on such
Interest Payment Date or shall advise the Paying Agent of the amount of any deficiency
in the amount on deposit in the Interest Account so that the Paying Agent may give
appropriate notice required to provide for the payment of such deficiency from any
Reserve Account Insurance Policy or Reserve Account Letter of Credit on deposit in the
Debt Service Reserve Account.
(2) (a) Trust Fund Revenues shall next be used, to the full extent required,
for deposit into the Principal Account in the Sinking Fund, immediately upon receipt of
such Trust Fund Revenues, of such sums as shall be sufficient to pay the principal
amount of Serial Bonds which will mature during the current calendar year (or if such
Trust Fund Revenues are deposited in the Trust Fund during the first quarter of such
Fiscal Year, to pay the principal amount of Serial Bonds which will mature through the
end of the next succeeding calendar year); provided, however, that such deposit for
principal shall not be required to be made into the Principal Account to the extent that
money on deposit therein is sufficient for such purpose.
The Agency shall, on the business day prior to each principal payment date,
transfer to the Paying Agent moneys in an amount equal to the principal due on such
principal payment date or shall advise the Paying Agent of the amount of any deficiency
in the amount on deposit in the Principal Account so that the Paying Agent may give
appropriate notice required to provide for the payment of such deficiency from any
Reserve Account Insurance Policy or Reserve Account Letter of Credit on deposit in the
Debt Service Reserve Account.
(b) Trust Fund Revenues shall next be used, to the full extent required,
for deposit into the Bond Redemption Account in the Sinking Fund, immediately upon
receipt of such Trust Fund Revenues, of such Amortization Requirements as may be
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required for the payment of the Term Bonds payable from the Bond Redemption Account
during the current calendar year (or if such Trust Fund Revenues are deposited in the
Trust Fund during the first quarter of such Fiscal Year, for the payment of the Term
Bonds payable from the Bond Redemption Account through the end of the next
succeeding calendar year).
The moneys in the Bond Redemption Account shall be used solely for the
purchase or redemption of the Term Bonds payable therefrom. The Agency may at any
time purchase any of said Term Bonds at prices not greater than the then redemption
price of said Term Bonds. If the Term Bonds are not then redeemable, the Agency may
purchase said Term Bonds at prices not greater than the redemption price of such Term
Bonds on the next ensuing redemption date. The Agency shall be mandatorily obligated
to use any moneys in the Bond Redemption Account for the redemption prior to maturity
of such Term Bonds at such times as the same are subject to mandatory redemption. If,
by the application of moneys in the Bond Redemption Account, however, the Agency
shall purchase or call for redemption in any year Term Bonds in excess of the
Amortization Requirements for such year, such excess of Term Bonds so purchased or
redeemed shall be credited in such manner and at such times as the Executive Director
shall determine over the remaining payment dates.
(3) Trust Fund Revenues shall next be used, to the full extent required, for
deposit into the Debt Service Reserve Account, immediately upon receipt of such Trust
Fund Revenues, of the difference between the amount on deposit in the Debt Service
Reserve Account (including any Reserve Account Insurance Policy or Reserve Account
Letter of Credit) and the Reserve Account Requirement for the Bonds Outstanding, and,
provided further, that no payments shall be required to be made into the Debt Service
Reserve Account whenever and as long as the amount deposited therein (including any
Reserve Account Insurance Policy or Reserve Account Letter of Credit) shall be equal to
the Reserve Account Requirement for the Bonds Outstanding.
Moneys in the Debt Service Reserve Account shall be used only for the purpose
of making payments of principal of and interest on the Bonds when the moneys in the
Funds and Accounts held pursuant to this Resolution and available for such purpose are
insufficient therefor.
Any moneys in the Debt Service Reserve Account in excess of the Reserve
Account Requirement for the Bonds Outstanding may, in the discretion of the Agency, be
transferred to and deposited in the Interest Account, the Principal Account or the Bond
Redemption Account as the Agency at its option may determine.
Notwithstanding the foregoing provisions, in lieu of or in substitute for the
required deposits (including existing deposits therein) into the Debt Service Reserve
Account, the Agency may cause to be deposited into the Debt Service Reserve Account a
Reserve Account Insurance Policy or a Reserve Account Letter of Credit for the benefit
of the Holders of the Bonds Outstanding, which Reserve Account Insurance Policy or
Reserve Account Letter of Credit shall be payable or available to be drawn upon, as the
case may be (upon the giving of notice as required thereunder), on any Interest Payment
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Date on which a deficiency exists which cannot be cured by moneys in any other Fund or
Account held pursuant to this Resolution and available for such purpose. If any such
Reserve Account Insurance Policy or Reserve Account Letter of Credit is substituted for
moneys on deposit in the Debt Service Reserve Account, the excess moneys in the Debt
Service Reserve Account shall be transferred to and deposited in the Interest Account, the
Principal Account or the Bond Redemption Account as the Agency at its option may
determine. If a disbursement is made under the Reserve Account Insurance Policy or the
Reserve Account Letter of Credit, the Agency shall be obligated to either reinstate the
maximum limits of such Reserve Account Insurance Policy or Reserve Account Letter of
Credit following such disbursement or to deposit into the Debt Service Reserve Account
from the Trust Fund Revenues, as herein provided, funds in the amount of the
disbursements made under such Reserve Account Insurance Policy or Reserve Account
Letter of Credit, or a combination of such alternatives as shall equal the Reserve Account
Requirement for the Bonds Outstanding.
In the event that upon the occurrence of any deficiency in the Interest Account,
the Principal Account or the Bond Redemption Account, the Debt Service Reserve
Account is then funded with one or more Reserve Account Insurance Policies and/or
Reserve Account Letters of Credit, the Agency or the Paying Agent, as applicable, shall,
on an interest or principal payment date or mandatory redemption date to which such
deficiency relates, draw upon or cause to be paid under such facilities, on a pro-rata basis
thereunder, an amount sufficient to remedy such deficiency, in accordance with the terms
and provisions of such facilities and any corresponding reimbursement or other
agreement governing such facilities; provided however, that if at the time of such
deficiency the Debt Service Reserve Account is only partially funded with one or more
Reserve Account Insurance Policies and/or Reserve Account Letters of Credit, prior to
drawing on such facilities or causing payments to be made thereunder, the Agency shall
first apply any cash and securities on deposit in the Debt Service Reserve Account to
remedy the deficiency and, if after such application a deficiency still exists, the Agency
or the Paying Agent, as applicable, shall make up the balance of the deficiency by
drawing on such facilities or causing payments to be made thereunder, as provided in this
paragraph. Amounts drawn or paid under a Reserve Account Insurance Policy or
Reserve Account Letter of Credit shall be applied as set forth in the second paragraph of
this Section 304(D)(3). Any amounts drawn or paid under a Reserve Account Insurance
Policy or Reserve Account Letter of Credit shall be reimbursed to the issuer thereof in
accordance with the terms and provisions of the reimbursement or other agreement
governing such facility.
The Debt Service Reserve Account shall be valued on the first day in each Fiscal
Year and the value of securities on deposit therein shall be the lower of par, or if
purchased at other than par, amortized value. Amortized value, when used with respect
to securities purchased at a premium above or a discount below par, shall mean the value
at any given date obtained by dividing the total premium or discount at which such
securities were purchased by the number of interest payment dates remaining to maturity
on such securities after such purchase and by multiplying the amount so calculated by the
number of interest payment dates having passed since the date of purchase; and (i) in the
case of securities purchased at a premium, by deducting the product thus obtained from
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the purchase price, and (ii) in the case of securities purchased at a discount, by adding the
product thus obtained to the purchase price.
(4) Trust Fund Revenues shall next be used for the payment of any
subordinated obligations hereafter issued by the Agency in accordance with Section
304(G) of this Resolution, which subordinate obligations shall have such lien on the Trust
Fund Revenues as the Agency shall determine in the proceedings authorizing the issuance
of such subordinated obligations.
(5) Thereafter, the balance of any Trust Fund Revenues remaining in said
Trust Fund shall, subject to Section 304(A), be used by the Agency for any lawful
purposes, including payment of any fees and expenses of the Fiduciaries; provided,
however, that none of such Trust Fund Revenues shall ever be used for the purposes
provided in this paragraph (5) unless all payments required in paragraphs (1) through (4)
above, including any deficiencies for prior payments and any amounts due to the issuer of
any Reserve Account Insurance Policy or Reserve Account Letter of Credit, have been
made in full to the date of such use.
Notwithstanding anything in Section 304(D)(1) and (2) to the contrary, failure to make
the scheduled payments specified therein shall not constitute a breach of the Agency's
obligations under this Resolution so long as, on the date that any interest or principal payment is
due on the Bonds, monies sufficient to make such payment are on deposit in the Interest
Account, Principal Account or the Bond Redemption Account, as the case may be.
Notwithstanding the foregoing or any other provision herein to the contrary, if any
amount applied to the payment of principal of and premium, if any, and interest on the Bonds
that would have been paid from an account in the Sinking Fund, is paid instead under a Credit
Facility, amounts deposited in such relevant account may be paid, to the extent required, to the
issuer of the Credit Facility having theretofore made said corresponding payment.
E. REBATE FUND. There is hereby created and established the "Miami Beach
Redevelopment Agency Rebate Fund (City Center/Historic Convention Village)" which fund
shall be maintained by the Agency separate and apart from all other funds and accounts of the
Agency. Notwithstanding anything in this Resolution to the contrary, the Agency shall transfer
or cause to be transferred from Pledged Funds to the Rebate Fund the amounts required to be
transferred in order to comply with the arbitrage rebate covenants contained in a tax compliance
certificate to be executed and delivered by the Agency in connection with the issuance of each
Series of Tax-Exempt Bonds. The Agency shall make payments from the Rebate Fund of
amounts required to be deposited therein to the United States of America in the amounts and at
the times required by such arbitrage rebate covenants. The Agency covenants for the benefit of
the Bondholders that it will comply with the requirements of the arbitrage rebate covenants.
There shall be excluded from the pledge and lien of this Resolution the Rebate Fund, together
with all moneys and securities from time to time held therein and all investment earnings derived
therefrom. The Agency shall not be required to comply with the requirements of this Section
304(E) in the event that the Agency obtains an opinion of nationally recognized bond counsel
that (i) such compliance is not required in order to maintain the exclusion from gross income for
federal income tax purposes of interest on Tax-Exempt Bonds and/or (ii) compliance with some
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other requirement is necessary to maintain the exclusion from gross income for federal income
tax purposes of interest on Tax-Exempt Bonds.
F. INVESTMENT OF FUNDS. The Trust Fund, the Sinking Fund, including the
Interest Account, Principal Account, Bond Redemption Account and Debt Service Reserve
Account, and all other special funds (other than the Rebate Fund) created and established by, or
pursuant to, this Resolution shall constitute trust funds in favor of the Bondholders and shall be
invested at the direction of the Agency as provided in this Section 304(F).
Moneys on deposit in the Trust Fund, Interest Account, Principal Account and Bond
Redemption Account may be invested at the direction of the Agency in Permitted Investments
maturing not later than the dates on which such moneys will be needed for the purposes of such
fund or account.
Moneys on deposit in the Debt Service Reserve Account may be invested at the direction
of the Agency in Permitted Investments maturing not later than the final maturity of any of the
Bonds.
All income and earnings received from the investment and reinvestment of moneys in the
Interest Account, the Principal Account and the Bond Redemption Account in the Sinking Fund
shall be retained in the respective accounts and applied as a credit against the obligation of the
Agency to transfer moneys to such accounts pursuant to Section 304(D)(1) and Section
304(D)(2)(a) and Section 304(D)(2)(b) of this Resolution, respectively.
All income and earnings received from the investment and reinvestment of moneys in the
Debt Service Reserve Account in the Sinking Fund shall be retained in the Debt Service Reserve
Account and applied as a credit against the obligation of the Agency and the City to transfer
moneys to such account, unless the amount in such account shall exceed the Reserve Account
Requirement, in which event such excess may be applied in the manner set forth for excess
amounts in the Debt Service Reserve Account, as described in Section 304(D)(3).
For the purpose of investing or reinvesting, the Agency may commingle moneys in the
funds and accounts created and established hereunder (other than the Rebate Fund) in order to
achieve greater investment income; provided that the Agency shall separately account for the
amounts so commingled. The amounts required to be accounted for in each of the funds and
accounts designated herein (other than the Rebate Fund) may be deposited in a single bank
account provided that adequate accounting procedures are maintained to reflect and control the
restricted allocations of the amounts on deposit therein for the various purposes of such funds
and accounts as herein provided.
G. ISSUANCE OF OTHER OBLIGATIONS PAYABLE OUT OF PLEDGED
FUNDS. Except upon the conditions and in the manner provided herein, the Agency will not
issue any other obligations payable from the Pledged Funds, nor voluntarily create or cause to be
created any debt, lien, pledge, assignment, encumbrance or any other charge having priority to or
being on a parity with the lien of the Bonds issued pursuant to this Resolution and the interest
thereon, upon any of the Pledged Funds; provided that the Agency may enter into agreements
with issuers of Credit Facilities which involve liens on Pledged Funds on a parity with that of the
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Series of Bonds or portion thereof which is supported by such Credit Facilities solely with
respect to any reimbursement obligations due such issuers which evidence amounts equal to the
scheduled stated principal (including, without limitation, Amortization Requirements) and
interest due on the Series of Bonds or portion thereof which is supported by such Credit
Facilities. Any other obligations, in addition to the Bonds authorized by this Resolution or
additional parity Bonds issued under the terms, restrictions and conditions contained in this
Resolution and obligations to issuers of Credit Facilities as described above, shall provide that
such obligations are junior, inferior and subordinate in all respects to the Bonds issued pursuant
to this Resolution as to lien on and source and security for payment from the Pledged Funds and
in all other respects. Nothing in this Resolution shall be deemed to prohibit the Agency from
entering into currency swaps or other arrangements for hedging interest rates on any
indebtedness.
H. ISSUANCE OF ADDITIONAL PARITY BONDS. No additional parity Bonds,
as in this subsection defined, payable on a parity with Bonds issued pursuant to this Resolution
out of Pledged Funds, including, without limitation, Trust Fund Revenues, shall be issued after
the issuance of any Bonds pursuant to this Resolution unless the following, among other
conditions, are complied with:
(1) The Agency must be current in all deposits into the various funds and
accounts and all payments theretofore required to have been deposited or made by it
under the provisions of this Resolution and the Agency must be currently in compliance
with the covenants and provisions of this Resolution and any supplemental resolution
hereafter adopted for the issuance of additional parity Bonds; unless upon the issuance of
such additional parity Bonds the Agency will be in compliance with all such covenants
and provisions.
(2) The aggregate of the Trust Fund Revenues (not including any portion
thereof which may be attributable to investment earnings) received by the Agency during
the immediately preceding Fiscal Year were at least equal to one hundred fifty percent
(150%) of the Maximum Annual Debt Service on (1) the Bonds originally issued
pursuant to this Resolution and then Outstanding, (2) any additional parity Bonds
theretofore issued and then Outstanding, and (3) the additional parity Bonds then
proposed to be issued.
(3) The Agency need not comply with subparagraph (2) of this paragraph in
the issuance of additional parity Bonds if and to the extent the Bonds to be issued are
refunding Bonds, that is, delivered in lieu of or in substitution for Bonds originally issued
under this Resolution or previously issued additional parity Bonds, if the Agency shall
cause to be delivered a certificate of the Executive Director of the Agency setting forth (i)
the Maximum Annual Debt Service (A) with respect to the Bonds of all Series
Outstanding immediately prior to the date of authentication and delivery of such
refunding Bonds, and (B) with respect to the Bonds of all Series to be Outstanding
immediately thereafter, and (ii) that the Maximum Annual Debt Service set forth
pursuant to (B) above is no greater than that set forth pursuant to (A) above.
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Simultaneously with the delivery of any Bonds issued pursuant to subparagraphs (2) and
(3) above for the purpose of refunding any Bonds issued under this Resolution, the Agency may
withdraw from the Sinking Fund amounts theretofore deposited which are allocable to the Bonds
being refunded and shall transfer said amounts in accordance with the resolution providing for
the issuance of the refunding Bonds, provided that after such withdrawal the Agency shall be in
compliance with the provisions of this Resolution.
The term "additional parity Bonds" as used in this Resolution shall be deemed to mean
additional obligations evidenced by Bonds issued upon the provisions and within the limitations
of this subsection to finance Redevelopment Projects payable from the Pledged Funds on a parity
with Bonds originally authorized and issued pursuant to this Resolution. Such Bonds shall be
deemed to have been issued pursuant to this Resolution the same as the Bonds originally
authorized and issued pursuant to this Resolution and all of the covenants and other provisions of
this Resolution (except as to details of such Bonds evidencing such additional parity obligations
inconsistent therewith) shall be for the equal benefit, protection.and security of the Holders of
any Bonds originally authorized and issued pursuant to this Resolution and the Holders of any
Bonds evidencing additional obligations subsequently issued within the limitations of and in
compliance with this subsection. All of such Bonds, regardless of the time or times of their
issuance shall rank equally with respect to their lien on the Pledged Funds and their sources and
security for payment therefrom without preference of any Bonds over any other.
The term "additional parity Bonds" as used in this Resolution shall not be deemed to
include bonds, notes, certificates or other obligations subsequently issued in accordance with this
Resolution, the lien of which on the Pledged Funds is subject to the prior and superior lien on the
Pledged Funds of Bonds and the Agency shall not issue any obligations whatsoever payable from
the Pledged Funds, which rank equally as to lien and source and security for their payment from
such Pledged Funds with Bonds except in the manner and under the conditions provided in
subsection (G) above and this subsection.
I. BOOKS AND RECORDS. The Agency will keep separately identifiable
accounting records for the receipt of the Trust Fund Revenues by the use of a fund established in
accordance with generally accepted accounting principles, and any Holder of a Bond or Bonds
issued pursuant to this Resolution, shall have the right at all reasonable times to inspect all
records, accounts and data of the Agency relating thereto.
The Agency shall promptly after the close of each Fiscal Year cause the books, records
and accounts relating to the Trust Fund Revenues for such Fiscal Year to be properly audited by
a qualified, recognized and nationally known independent firm of certified public accountants
and shall file the report of such certified public accountants in the office of the Executive
Director, and shall mail upon request, and make available generally, said report, or a reasonable
summary thereof, to any Holder or Holders of Bonds issued pursuant to this Resolution.
Such audited books, records and accounts shall contain the statements required by
generally accepted accounting principles applicable to governmental entities, and a certificate of
such certified public accountants disclosing any breach on the part of the Agency of any
covenant herein.
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J. NO IMPAIRMENT OF CONTRACT. The Agency has full power and authority
to irrevocably pledge the Pledged Funds to the payment of the principal of and interest on the
Bonds. The pledge of such Pledged Funds, in the manner provided herein, shall not be subject to
repeal, modification or impairment by any subsequent resolution, ordinance or other proceedings
of the Agency so long as any Bonds are Outstanding hereunder. The Agency shall take all
actions necessary and pursue such legal remedies which may be available to it either in law or in
equity to prevent or cure any impairment by any entity other than the Agency within the meaning
of this subsection.
K. REMEDIES. Any Holder of Bonds issued under the provisions of this Resolution
may either at law or in equity, by suit, action, mandamus or other proceedings in any court of
competent jurisdiction, protect and enforce any and all rights under the laws of the State or
granted and contained in this Resolution, and may enforce and compel the performance of all
duties required by this Resolution or by any applicable statutes, including the Act, to be
performed by the Agency or by any officer thereof Nothing herein, however, shall be construed
to grant any Holder of such Bonds any lien on any property of the Agency, except as provided
herein. No Holder of Bonds, however, shall have any right in any manner whatever to affect
adversely, or prejudice the security of this Resolution or to express any right hereunder except in
the manner herein provided, and all proceedings at law or in equity shall be instituted and
maintained for the benefit of all Holders of Bonds.
L. ENFORCEMENT OF COLLECTIONS. The Agency will diligently enforce and
collect the Trust Fund Revenues and will take all steps, actions and proceedings for the
enforcement and collection of such Trust Fund Revenues to the full extent permitted or
authorized by applicable laws, including the Act. All Trust Fund Revenues shall as collected be
held in trust to be applied as herein provided and not otherwise.
M. DISCHARGE AND SATISFACTION OF BONDS. The covenants, liens and
pledges entered into, created or imposed pursuant to this Resolution may be fully discharged and
satisfied with respect to all or a portion of the Bonds in any one or more of the following ways:
(1) by paying the principal of and interest on such Bonds when the same shall
become due and payable; or
(2) by depositing in the Interest Account, the Principal Account and the Bond
Redemption Account and/or in such other accounts which are irrevocably pledged to the
payment of Bonds as the Agency may hereafter create and establish, certain moneys
which together with other moneys lawfully available therefor, if any, shall be sufficient at
the time of such deposit to pay when due the principal, redemption premium, if any, and
interest due and to become due on said Bonds on or prior to the redemption date or
maturity date thereof; or
(3) by depositing in the Interest Account, the Principal Account and the Bond
Redemption Account and/or such other accounts which are irrevocably pledged to the
payment of Bonds as the Agency may hereafter create and establish, moneys which
together with other moneys lawfully available therefor when invested in such Defeasance
Obligations which shall not be subject to redemption prior to their maturity other than at
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the option of the Holder thereof, will provide moneys which shall be sufficient to pay
when due the principal, redemption premium, if any, and interest due and to become due
on said Bonds on or prior to the redemption date or maturity date thereof
Upon such payment or deposit in the amount and manner provided in this Section
304(M), Bonds shall be deemed to be paid and shall no longer be deemed to be
Outstanding for the purposes of this Resolution and all liability of the Agency with
respect to said Bonds shall cease, terminate and be completely discharged and
extinguished, and the Holders thereof shall be entitled to payment solely out of the
moneys or securities so deposited; provided that (i) in connection with any discharge and
satisfaction pursuant to subsection (2) or (3) above, the Agency shall concurrently with
such deposit deliver (A) an opinion of nationally recognized bond counsel to the effect
that interest on the Bonds being discharged will not, by reason of such discharge, become
includable in gross income for federal income tax purposes and that such Bonds have
been discharged in accordance with the provisions of this Section, and (B) an
accountant's verification report showing the sufficiency of such moneys and/or
Defeasance Obligations to provide for the payment of said Bonds, and (ii) in the event
said Bonds do not mature and are not to be redeemed within the next succeeding sixty
(60) days, the Agency shall have given the Registrar irrevocable instructions to give, as
soon as practicable, a notice to the Holders of said Bonds by first-class mail, postage
prepaid, stating that the deposit of said moneys or Defeasance Obligations has been made
with an appropriate fiduciary institution acting as escrow agent solely for the Holders of
said Bond and other Bonds being defeased, and that said Bonds are deemed to have been
paid in accordance with this Section and stating such maturity or redemption date upon
which moneys are to be available for the payment of the principal of and premium, if any,
and interest on said Bonds.
• (4) Notwithstanding the foregoing, all references to the discharge and
satisfaction of Bonds shall include the discharge and satisfaction of any issue of Bonds,
any portion of an issue of Bonds, any maturity or maturities of an issue of Bonds, any
portion of a maturity of an issue of Bonds or any combination thereof
(5) If any portion of the moneys deposited for the payment of the principal of
and redemption premium, if any, and interest on any portion of Bonds is not required for
such purpose, the Agency may use the amount of such excess free and clear of any trust,
lien, security interest, pledge or assignment securing said Bonds or otherwise existing
under this Resolution.
In the event that the principal and redemption price, if applicable, and interest due
on the Bonds shall be paid by the issuer of a Credit Facility pursuant to the terms thereof,
the assignment and pledge created hereunder and all covenants, agreements and other
obligations of the Agency to the Bondholders shall continue to exist and the issuer of
such Credit Facility shall be subrogated to the rights of such Bondholders.
N. CONCERNING THE RESERVE ACCOUNT INSURANCE POLICY, THE
RESERVE ACCOUNT LETTER OF CREDIT AND/OR CREDIT FACILITY. As long as the
Agency shall have a Reserve Account Insurance Policy and/or a Reserve Account Letter of
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Credit on deposit in the Debt Service Reserve Account, the Agency covenants that it will comply
with the provisions of the Reserve Account Insurance Policy and/or Reserve Account Letter of
Credit and any reimbursement or similar agreement with respect to any such Reserve Account
Insurance Policy and/or Reserve Account Letter of Credit.
As long as any Series of Bonds of the Agency are secured by a Credit Facility, (i) the
Agency covenants to comply with the requirements and conditions imposed on the Agency by
the issuer of the Credit Facility and (ii) all rights hereunder granted to the Holders of Bonds so
secured shall be exercisable by the issuer of such Credit Facility in lieu of the Holders of such
Bonds.
Notwithstanding anything in this Resolution to the contrary, the rights of any issuer of a
Credit Facility created under this Resolution shall remain in full force and effect only so long as
the applicable Credit Facility shall remain in effect and the issuer of such Credit Facility shall not
be in default in its payment obligations to the Holders of Bonds secured by such facility.
[END OF ARTICLE III]
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ARTICLE IV
CONCERNING THE FIDUCIARIES
SECTION 401. ADDITIONAL PAYING AGENTS; APPOINTMENT AND
ACCEPTANCE OF DUTIES. The Agency may at any time or from time to time appoint one or
more other Paying Agents having the qualifications set forth in this Article IV for a successor
Paying Agent; provided that nothing herein shall prevent the Agency from appointing itself as
the Paying Agent hereunder. Each Paying Agent shall signify its acceptance of the duties and
obligations imposed upon it by this Resolution by executing and delivering to the Agency a
written acceptance thereof.
SECTION 402. RESPONSIBILITIES OF FIDUCIARIES. The recitals of facts herein
and in the Bonds contained shall be taken as the statements of the Agency and no Fiduciary
assumes any responsibility for the correctness of the same. No Fiduciary makes any
representation as to the validity or sufficiency of this Resolution or of any Bonds issued
thereunder or as to the security afforded by this Resolution, and no Fiduciary shall incur any
liability in respect thereof The Registrar shall, however, be responsible for its representation
contained in its certificate of authentication of the Bonds. No Fiduciary shall be under any
responsibility or duty with respect to the application of any moneys paid by such Fiduciary in
accordance with the provisions of this Resolution to or upon the order of the Agency or any other
Fiduciary. No Fiduciary shall be under any obligation or duty to perform any act which would
involve it in expense or liability or to institute or defend any suit in respect thereof, or to advance
any of its own moneys, unless properly indemnified. No Fiduciary shall be liable in connection
with the performance of its duties hereunder except for its own negligence, misconduct or
default.
SECTION 403. EVIDENCE ON WHICH FIDUCIARIES MAY ACT.
(a) Each Fiduciary, upon receipt of any notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other paper or document furnished to it pursuant to any
provision of this Resolution, shall examine such instrument to determine whether it conforms to
the requirements of this Resolution and shall be protected in acting upon any such instrument
believed by it to be genuine and to have been signed or presented by the proper party or parties.
Each Fiduciary may reasonably consult with counsel, who may or may not be of counsel to the
Agency, and the opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken or suffered by it under this Resolution in good faith and in
accordance therewith.
(b) Whenever any Fiduciary shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action under this Resolution, such matter
(unless other evidence in respect thereof be therein specifically'prescribed) may be deemed to be
conclusively proved and established by a certificate of the Chairperson, Executive Director or his
designee, and such certificate shall be full warrant for any action taken or suffered in good faith
under the provisions of this Resolution upon the faith thereof; but in its discretion the Fiduciary
may in lieu thereof accept other evidence of such fact or matter or may require such further or
additional evidence as it may deem reasonable.
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(c) Except as otherwise expressly provided in this Resolution, any request, order,
notice or other direction required or permitted to be furnished pursuant to any provision thereof
by the Agency to any Fiduciary shall be sufficiently executed in the name of the Agency by the
Chairperson, Executive Director or designee of either of them.
SECTION 404. COMPENSATION. The Agency may agree with any Fiduciary to pay
to such Fiduciary from time to time reasonable compensation for all services rendered under this
Resolution, and also all reasonable expenses, charges, counsel fees and other disbursements,
including those of its attorneys, agents and employees, incurred in and about the performance of
their powers and duties under this Resolution. The Agency may also agree with any Fiduciary to
indemnify any Fiduciary for any and all of its reasonable fees, costs and expenses resulting from
any claim, liability or the like incurred in and about the performance of its powers and duties
under this Resolution.
SECTION 405. CERTAIN PERMITTED ACTS. Any Fiduciary, individually or
otherwise, may become the owner of any Bonds, with the same rights it would have if it were not
a Fiduciary. To the extent permitted by law, any Fiduciary may act as depositary for, and permit
any of its officers or directors to act as a member of, or in any other capacity with respect to, any
committee formed to protect the rights of Bondholders or to effect or aid in any reorganization
growing out of the enforcement of the Bonds or this Resolution, whether or not any such
committee shall represent Holders of a majority in principal amount of the Bonds then
Outstanding.
SECTION 406. MERGER OR CONSOLIDATION. Any entity into which any
Fiduciary may be merged or converted or with which it may be consolidated or any entity
resulting from any merger, conversion or consolidation to which it shall be a party or any entity
to which any Fiduciary may sell or transfer all or substantially all of its corporate trust business
shall be a successor Fiduciary hereunder provided such entity shall be a bank or trust company
organized under the laws of any state of the United States or a national banking association or
shall be a successor entity to the Agency, if the Agency is acting as Fiduciary hereunder, shall be
authorized by law to perform all duties imposed upon it by this Resolution, and shall be such
successor without the execution or filing of any paper or the performance of any further act.
SECTION 407. ADOPTION OF AUTHENTICATION. In case any of the Bonds
contemplated to be issued under this Resolution shall have been authenticated but not delivered,
any successor Registrar may adopt the certificate of authentication of any predecessor Registrar
so authenticating such Bonds and deliver such Bonds so authenticated; and in case any of the
said Bonds shall not have been authenticated, any successor Registrar may authenticate such
Bonds in the name of the predecessor Registrar, or in the name of the successor Registrar, and in
all such cases such certificate shall be fully effective.
SECTION 408. RESIGNATION OR REMOVAL OF FIDUCIARY AND
APPOINTMENT OF SUCCESSOR. Any Fiduciary may at any time resign and be discharged
of the duties and obligations created by this Resolution by giving at least 60 days' written notice
to the issuer of a Credit Facility, the Agency, and the other Fiduciaries. Any Fiduciary may be
removed at any time by an instrument filed with such Fiduciary and the issuer of each Credit
Facility and signed by the Chairperson, Executive Director or his designee. Any successor
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Fiduciary shall be appointed by the Agency and shall be, if other than the Agency or its
successor entity, a bank or trust company organized under the laws of any state of the United
States or a national banking association, willing and able to accept the office on reasonable and
customary terms and authorized by law to perform all the duties imposed upon it by this
Resolution. The Agency shall notify the issuer of each Credit Facility of the appointment of any
successor Fiduciary. In the event of the resignation or removal of any Fiduciary, such Fiduciary
shall pay over, assign and deliver any moneys held by it as Fiduciary to its successor.
SECTION 409. VACANCY. If at any time hereafter any Fiduciary shall resign, be
removed, be dissolved, or otherwise become incapable of acting, or if the bank or trust company
acting as any Fiduciary shall be taken over by any governmental official, agency, department or
board, the position of Fiduciary shall thereupon become vacant. If the position of such Fiduciary
shall become vacant for any of the foregoing reasons or for any other reasons, the Agency shall
appoint a successor Fiduciary.
If no appointment of a successor Fiduciary shall be made pursuant to the foregoing
provisions of this Section, the Holder of any Bond Outstanding hereunder or any retiring
Fiduciary may apply to any court of competent jurisdiction to appoint a successor Fiduciary.
Such court may thereupon, after such notice, if any, as such court may deem proper and
prescribe, appoint a successor Fiduciary.
Any Fiduciary hereafter appointed, if not the Agency or its successor entity, shall be a
bank or trust company authorized by law to exercise corporate trust powers and subject to
examination by federal or state authority of good standing and having at the time of its
appointment a combined capital and surplus aggregate not less than Fifty Million Dollars
($50,000,000).
[END OF ARTICLE IV]
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ARTICLE V
EXECUTION OF INSTRUMENTS BY BONDHOLDERS
AND PROOF OF OWNERSHIP OF BONDS
SECTION 501. PROOF OF EXECUTION OF DOCUMENTS AND OWNERSHIP.
(a) Any request, direction, consent or other instrument in writing required by this
Resolution to be signed or executed by Bondholders may be in any number of concurrent
instruments of similar tenor and may be signed or executed by such Bondholders in person or by
their attorneys or legal representatives appointed by an instrument in writing. Proof of the
execution of any such instrument and of the ownership of Bonds shall be sufficient for any
purpose of this Resolution and shall be conclusive in favor of the Fiduciary with regard to any
action taken by it under such instrument if made in the following manner:
(1) The fact and date of the execution by any person of any such instrument
may be proved by the verification of any officer in any jurisdiction who, by the laws
thereof, has power to take affidavits within such jurisdiction, to the effect that such
instrument was subscribed and sworn to before him, or by an affidavit of a witness to
such execution. Where such execution is in behalf of a person other than an individual,
such verification shall also constitute sufficient approval of the authority of the signor
thereof.
(2) The ownership of Bonds shall be proved by the registration books required
to be maintained pursuant to the provisions of this Resolution.
Nothing contained in this Article shall be construed as limiting the Fiduciary to such
proof, it being intended that the Fiduciary may accept any other evidence of the matters herein
stated which it may deem sufficient.
(b) If the Agency shall solicit from the Holders any request, direction, consent or
other instrument in writing required or permitted by this Resolution to be signed or executed by
the Holders, the Agency may, at its option, fix in advance a record date for determination of
Holders entitled to give each request, direction, consent or other instrument, but the Authority
shall have no obligation to do so. If such a record date is fixed, such request, direction, consent
or other instrument may be given before or after such record date, but only the Holders of record
at the close of business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Bonds have authorized or agreed or
consented to such request, direction, consent or other instrument, and for that purpose the Bonds
shall be computed as of such record date.
(c) Any request or consent of the Holder of any Bond shall bind every future Holder
of the same Bond in respect of anything done by the Agency or any Fiduciary in pursuance of
such request or consent.
[END OF ARTICLE V]
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ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 601. MODIFICATION OR AMENDMENT. Except as otherwise provided
in the second paragraph hereof, no adverse material modification or amendment of this
Resolution, or of any resolution amendatory hereof or supplemental hereto, may be made
without the consent in writing of (i) the Holders of more than fifty per centum (50%) in
aggregate principal amount of the Bonds then Outstanding or (ii) in case less than all of the
several Series of Bonds then Outstanding are affected by the modification or amendment, the
Holders of more than fifty per centum (50%) in aggregate principal amount of the Bonds of each
Series so affected and Outstanding at the time such consent is given; provided, however, that no
modification or amendment shall permit a change in the maturity of such Bonds or a reduction in
the rate of interest thereon, or affecting the promise of the Agency to pay the principal of and
interest on the Bonds, as the same mature or become due, from the Pledged Funds, or reduce the
percentage of Holders of Bonds required above for such modification or amendment, without the
consent of the Holders of all the Bonds.
For the purposes of this Section 601, to the extent any Series of Bonds is secured by a
Credit Facility, then the consent of the issuer of the Credit Facility shall constitute the consent of
the Holders of such Series.
This Resolution may be amended, changed, modified and altered without the consent of
the Holders of Bonds or any Credit Facility:
(a) to cure any ambiguity or formal defect or omission in this Resolution or in
any supplemental resolutions or to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions contained herein; or
(b) to grant to or confer upon the Bondholders any additional rights, remedies,
powers, authority or security that may lawfully be granted to or conferred upon the
Bondholders; or
(c) to add to the conditions, limitations and restrictions on the issuance of
Bonds under the provisions of this Resolution, other conditions, limitations and
restrictions thereafter to be observed; or
(d) to add to the covenants and agreements of the Agency in this Resolution
other covenants and agreements thereafter to be observed by the Agency or to surrender
any right or power herein reserved to or conferred upon the Agency; or
(e) to qualify the Bonds or any of the Bonds for registration under the
Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended;
or
(f) to qualify this Resolution as an "indenture" under the Trust Indenture Act
of 1939, as amended; or
•
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(g) to make such changes as may be necessary to comply with the provisions
of the Code relating to the exclusion of interest on Tax-Exempt Bonds from gross income
thereunder; or
(h) to make such changes as may evidence the interest herein of an issuer of a
Credit Facility that secures any Series of Bonds.
The Agency shall cause a notice of a proposed supplemental resolution requiring the
consent of Bondholders to be mailed, postage prepaid, to all Holders of Bonds then Outstanding
at their addresses as they appear on the registration books. Such notice shall briefly set forth the
nature of the proposed supplemental resolution and shall state that a copy thereof is on file at the
office of the Agency for inspection by all Bondholders. The Agency shall not, however, be
subject to any liability to any Bondholder by reason of its failure to mail the notice required by
this Section, and any such failure shall not affect the validity of such supplemental resolution
when consented to or approved as provided in this Section.
Whenever, at any time after the date of the mailing of such notice, the Agency shall
deliver to the Executive Director an instrument or instruments purporting to be executed by the
Holders of at least a majority in aggregate principal amount of the Bonds then Outstanding,
which instrument or instruments shall refer to the proposed supplemental resolutions described in
such notice and shall specifically consent to and approve the adoption thereof, the Agency may
adopt such supplemental resolutions in substantially such form without liability or responsibility
to any Holder of any Bond, whether or not such Holder shall have consented thereto. It shall not
be necessary for the consent of the Holders to approve the particular form of any proposed
supplemental resolution, but it shall be sufficient if such consent shall approve the substance
thereof.
If the Holders of more than fifty per centum (50%) in aggregate principal amount of the
Bonds of all Series affected and Outstanding at the time of the adoption of such supplemental
resolution shall have consented to and approved the adoption thereof as herein provided, no
Holder shall have any right to object to the adoption of such supplemental resolution, or to object
to any of the terms and provisions therein contained, or the operation thereof, or in any manner
to question the propriety of the adoption thereof, or to enjoin or restrain the Agency from
adopting the same or from taking any action pursuant to the provisions thereof
The consent of the Holders of any additional Series of Bonds to be issued hereunder shall
be deemed given if the underwriters or initial Underwriters for resale consent in writing to such
supplemental resolution and the nature of the amendment effected by such supplemental
resolution is disclosed in the official statement or other offering document pursuant to which
such additional Series of Bonds is offered and sold to the public.
SECTION 602. SEVERABILITY OF INVALID PROVISIONS. If any one or more of
the covenants, agreements or provisions of this Resolution should be held contrary to any
express provision of law or contrary to the policy of express law, though not expressly
prohibited, or against public policy, or shall for any reason whatsoever be held invalid, then such
covenants, agreements or provisions shall be null and void and shall be deemed separate from the
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remaining covenants, agreements or provisions, and shall in no way affect the validity of any of
the other provisions of this Resolution or of the Bonds issued hereunder.
SECTION 603. UNCLAIMED MONEY. Notwithstanding any provisions of this
Resolution, any money held by any Fiduciary for the payment of the principal or redemption
price of, or interest on, any Bonds and remaining unclaimed for five (5) years after the principal
of all of the Bonds has become due and payable (whether at maturity or upon call for
redemption), if such money were so held at such date, or five (5) years after the date of deposit
of such money if deposited after such date when all of the Bonds became due and payable, shall
be repaid to the Agency free from the provisions of this Resolution, and all liability of the
Fiduciary with respect to such money shall thereupon cease.
SECTION 604. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS.
In any case where the date of maturity of interest on or principal of the Bonds or the date fixed
for redemption of any Bonds shall be a Saturday, Sunday or a day on which any Paying Agent is
required, or authorized or not prohibited, by law (including executive orders) to close and is
closed, then payment of such interest or principal and any redemption premium need not be paid
by the Paying Agent on such date but may be paid on the next succeeding business day on which
the Paying Agent is open for business with the same force and effect as if paid on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the period after such
date of maturity or redemption.
SECTION 605. CONTROLLING LAW; MEMBERS OF GOVERNING BODY OF
AGENCY NOT LIABLE. The provisions of this Resolution shall be governed by, and
interpreted in accordance with, the laws of the State. All covenants, stipulations, obligations and
agreements of the Agency contained in this Resolution shall be deemed to be covenants,
stipulations, obligations and agreements of the Agency to the full extent authorized by the Act
and provided by the Constitution and laws of the State. 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 or employee of the Commission or the Agency
in his individual capacity, and neither the members of the Commission nor any official executing
the Bonds shall be liable personally on the Bonds or this Resolution or shall be subject to any
personal liability or accountability by reason of the issuance or the execution by the Commission
or such members thereof.
SECTION 606. FURTHER AUTHORIZATIONS. The Chairperson, the Executive
Director and such other officers, employees and staff members of the Agency as may be
designated by the Chairperson and the Executive Director or either of them are each designated
as agents of the Agency in connection with the issuance and delivery of the Bonds and are
authorized and empowered, collectively or individually, to take all action and steps and to
execute all instruments, documents and contracts on behalf of the Agency, that are necessary or
desirable in connection with the execution and delivery of the Bonds, and which are not
inconsistent with the terms and provisions of this Resolution.
SECTION 607. HEADINGS FOR CONVENIENCE ONLY. Any headings preceding
the texts of the several articles and sections hereof shall be solely for convenience of reference
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and shall not constitute a part of this Resolution, nor shall they affect its meaning, construction or
effect.
SECTION 608. TIME OF TAKING EFFECT. This Resolution shall take effect
immediately upon its adoption.
PASSED AND ADOPTED this /y day &Ober , 2015.
-4441\\ .
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:= ' #
tirehairperson
* INCORP ORATED:
Attest:
CH 26
/4-j/c V`Szcr
Secretary
APPROVED AS TO
FORM & LANGUAGE
& R rXECUTION
C7Nol-Uifi q as 15
Redevelopment Agency R je Date
General Counsel
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