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73-13862 RESOLUTION NO. 73-13862 A RESOLUTION PROVIDING FOR THE ISSUANCE OF $17 ,570 ,000 EXCISE TAX REFUNDING BONDS OF THE CITY OF MIAMI BEACH, FOR THE PURPOSE OF REFUNDING THE OUTSTANDING CONVENTION HALL COMPLETION AND CONSTRUCTION OF THEATRE OF THE PERFORMING ARTS BONDS SERIES 1969 ; PROVIDING FOR THE SALE, SECURITY AND PAY- MENT THEREOF AND MAKING CERTAIN COVENANTS AND AGREEMENTS IN THAT CONNECTION. WHEREAS , the City of Miami Beach heretofore issued $12 ,000 ,000 Convention Hall Completion and Con- struction of Theatre of the Performing Arts Bonds , Series 1969 , dated April 1 , 1969 , of which the principal amount of $11,205 ,000 are now outstanding (herein called the "1969 Bonds") pursuant to a resolution heretofore adopted by the City Council on February 25 , 1969 (herein called the "1969 Resolution" ) , for the completion of its Conven- tion Hall , and the construction of a Theatre of Perform- ing Arts on. a portion of land comprising the old Munici- pal Golf Course, -all as more- fully described in said 1969 Resolution; .and. WHEREAS , said 1969 Bonds are payable solely from the anticipated proceeds of the City of Miami Beach Resort Tax and a tax on the use of public utility services in the manner provided in said 1969 Resolution; and -1- A , WHEREAS, the City has been auvised that it can effect substantial savings in interest costs by refunding said outstanding 1969 Bonds; NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COUNCIL OF THE CITY OF MIAMI BEACH, FLORIDA: ARTICLE I STATUTORY AUTHORITY, FINDINGS AND DEFINITIONS 1.01. AUTHORITY FOR THIS RESOLUTION. This reso- lution is adopted pursuant to the provisions of Chapter 7672, Laws of Florida, Acts of 1917, as amended and supple- mented, being the Charter of said City, and Chapter 67-930 , Laws of Florida, Acts of 1967, and other applicable provi- sions of law. It is hereby found and determined as follows: (A) That although some of said 1969 Bonds are not payable nor redeemable prior to the year 1980 , all of said 1969 Bonds unmatured and unpaid on April 1, 1980 , are callable and redeemable on said date at the redemption price stated therein and accrued interest to the date of prior redemption, all of said 1969 Bonds may be refunded by depositing in trust from the proceeds of the Bonds au- thorized herein an amount wnich will be sufficient, to- gether with such moneys as may be available in the Sinking Fund and Reserve Fund for said 1969 Bonds , to pay maturing -2- 4 interest on and principal of all of saiu 1969 uonds which mature on April 1, 1980 , or prior thereto, as the same become due, and to redeem prior to maturity on April 1, 1980 , all of said 1969 Bonds which mature after April 1, 1980. (8) That all said 1969 Bonds may be advantageously refunded with substantial benefits to the City in savings of interest during the remaining terms of said 1969 Bonds , and it is in the best interests of the City to refund said 1969 Bonds in the manner provided for and authorized in this resolution. (C) That there is hereby authorized the refunding of said 1969 Bonds in the manner provided herein at an estimated cost of not exceeding $17 ,570,000. Such cost shall be deemed to include interest upon the Bonds issued pursuant to this resolution for a period of 12 months after the issuance of said Bonds , legal expenses , fees for financial services , administrative expenses and such other expenses as may be necessary or incidental to the refunding of said 1969 Bonds in the manner provided in this resolution. (D) That pursuant to Chapter 67-930 , Laws of Florida, Acts of 1967, the City heretofore under date of November 20 , 1968, adopted an ordinance levying excise taxes on payments made for hotel accommodations -3- +1 ` • j and beverages in the City of Miami Beach; that part of said taxes are pledged to the Tourist Development Authority of the City in the percentages provided in said ordinance; that the remainder of said taxes (herein referred to as "Resort Taxes") , except for said 1969 Bonds , are not pledged or encumbered in any manner, and it is deemed neces- sary and advisable to pledge said Resort Taxes to said Bonds to be issued as provided herein. (E) That pursuant to Section 167. 431, Florida Statutes , the City heretofore under date of September 28, 1969, adopted an ordinance levying taxes (hereinafter called "Utilities Services Taxes") on each and every purchase of electricity, metered or bottled gas (natural, liquefied petroleum gas or manufactured gas) and telephone service within the corporate limits of said City; that, except for said 1969 Bonds , said Utilities Services Taxes are not pledged or encumbered in any man- : ner, and it is deemed necessary and advisable to pledge said Utilities Services Taxes to said Bonds to be issued as provided herein. (F) That the revenues to be derived from said Resort Taxes and Utilities Services Taxes (herein sometimes collectively called "Excise Taxes") will be sufficient to pay all of the principal of and interest on the Bonds authorized to be issued by this resolution, as -4- the same shall become due, and all reserve, sinking fund or other payments provided for herein. (G) That the principal of and interest on the Bonds to be issued pursuant to this resolution, and all of the reserve, sinking fund and other payments provided for in this resolution will be paid solely from said Resort Taxes and Utilities Services Taxes pledged therefor by this resolution, and no holder of such Bonds shall ever be entitled to require or compel the levy of any ad valorem taxes on any real property in said City to pay the principal of or interest on said Bonds to be issued pursuant to this resolution, or to make any of the reserve, sinking fund or other payments provided for in this resolution, and said Bonds shall not constitute a lien upon any properties of the City of Miami Beach, ex- cept said Resort Taxes and Utilities Services Taxes. 1.02. RESOLUTION TO CONSTITUTE CONTRACT. In consideration of the acceptance of the Bonds authorized to be issued hereunder by those who shall hold the same from time to time, this resolution shall be deemed to be and shall constitute a contract between the City of Miami Beach, Florida, and such Bondholders , and the covenants and agreements herein set forth to be performed by said City shall be for the equal benefit, protection and se- curity of the legal holders of any and all of such Bonds -5- Y ✓w i • and the coupons attached thereto, all of wnich shall be of equal rank and without preference, priority or distinction of any of the Bonds or coupons over any other thereof ex- cept as expressly provided therein and herein. 1.03. DEFINITIONS. The following terms shall have the following meanings in this resolution unless the text otherwise expressly requires: (A) "City" shall mean the City of Mian i Beach, Florida. (B) "Act" shall mean Chapter 7672, Laws of Florida, Acts of 1917, as amended and supplemented, being the Charter of the City, Chapter 67-930 , Laws of Florida, Acts of 1967, and other applicable provisions of law. (C) "Bonds" shall mean the $17,570 ,000 Excise Tax Bonds originally authorized to be issued pur- suant to this resolution, together with any pari passu additional Bonds hereafter issued under the terms, con- ditions and limitations contained in this resolution, and the interest coupons attached to said Bonds. (D) "Holder of Bonds" or "Bondholder" , or any similar term, shall mean any person who shall be the bearer or owner of any outstanding Bond or Bonds -6- registered to bearer or not registered, or the regis- tered owner of any outstanding Bond or Bonds which shall at the time be registered other than to bearer, or of any coupons representing interest accrued or to accrue on said Bonds. (E) "Resort Taxes" shall mean the part of the excise taxes heretofore levied in the City pursu- ant to Chapter 67-930, Laws of Florida, Acts of 1967, which have not been heretofore pledged for the Tourist Development Authority of said City, and said ordinance adopted on November 20, 1968 (herein referred to as "Resort Tax Ordinance") . (F) "Utilities Services Taxes" shall mean the taxes collected in said City on the purchase of utilities services pursuant to Section 167. 431, Florida Statutes, and the ordinance adopted on October 5, 1966 (herein referred to as "Utilities Service Tax Ordinance") . (G) "Excise Taxes" shall mean collec- tively said Resort Taxes and Utilities Services Taxes. (H) Words importing the singular number shall include the plural number in each case and vice versa, and words importing persons shall include firms , associations and corporations. -7- I. ARTICLE II AUTHORIZATION, TLRMS, EXECUTION AND REGISTRATION OF BONDS 2.01. AUTHORIZATION AND TERMS OF BONDS. That for the purpose of refunding said 1969 Bonds and purposes incidental thereto, there shall be issued and sold excise tax bonds of said City to be designated "Excise Tax Refunding Bonds" in the principal amount of not exceeding $17, 570,000, which bonds shall bear the date of October 1, 1972; shall be in the denomination of $5,000 each; shalLbe numbered 1 to 3514, inclusive, shall bear interest until paid at a rate or rates not exceeding the maximum legal rate of interest, payable on April 1, 1973, and semi-annually thereafter, and shall mature serially in numerical order on April 1 of each of the years as follows: Years Principal Amounts 1973 $ 580,000 1974 $1,150 , 000 1975 $1,140 ,000 1976 $1,130,000 1977 $1,120,000 1978 $1,115,000 1979 $1,100,000 1980 $1,090,000 1981 $ 620 ,000 1982 $ 525,000 1983 $ 450,000 1984 $ 475,000 1985 $ 500,000 1986 $ 525,000 1987 $ 550,000 1988 $ 575,000 -8- Years Principal Amounts 1989 $ 605 ,000 1990 $ 635 ,000 1991 $ 665,000 1992 $ 700 ,000 1993 $ 735,000 1994 $ 775,000 1995 $ 810 , 000 $17 , 570 ,000 Both principal and interest of said Bonds shall be payable in lawful money of the United States of America at Chemical Bank, New York, New York, and shall be callable for redemption as shall hereafter be determined by resolution hereafter adopted by the City Council. A notice of such prior redemption shall in each case be published at least once at least thirty days prior to the date of redemption in a newspaper or financial journal published in the City of New York, New York. Interest shall cease on any Bonds so called for prior redemption on the redemption date if adequate funds have been duly provided for the redemption thereof. 2.02. EXECUTION OF BONDS AND COUPONS. Said Bonds shall be executed in the name of the City by the Mayor and attested by the City Clerk and Finance Director, one of which signatures may be a facsimile signature, and shall have affixed thereto or printed or reproduced thereon the corporate seal of the City. In case any one -9- • or more of the officers who shall have signed or sealed any of the Bonds shall cease to be such officer of the City before the Bonds so signed and sealed 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 or sealed such Bonds had not ceased to hold such office. Any Bond may be signed and sealed on behalf of the City by such person as at the actual time of the execution of such Bonds shall hold the proper office in the City, although at the date of such Bonds such person may not have held such office or may not have been so authorized. The coupons to be attached to the Bonds shall be authenticated with the facsimile signatures of the present or any future Mayor and City Clerk and Finance Director, and the City may adopt and use for that purpose the facsimile signature of any of said persons who shall have been such officers at any time on or after the date of the Bonds , notwithstanding that they may have ceased to be such officers at the time when said Bonds shall be actually sold and delivered. 2. 03. NEGOTIABILITY AND REGISTRATION. The i;onds shall be and have all the qualities and incidents of nego- tiable instruments under the law merchant and the Uniform Commercial Code-Investment Securities Law of the State of -10- Florida, and each successive holder, in accepting any of said Bonds or the coupons appertaining thereto, shall be conclusively deemed to have agreed that such Bonds shall be and have all the qualities and incidents of negotiable instruments under the law merchant and the Uniform Commercial Code-Investment Securities Law of the State of Florida, and each successive holder shall further be conclusively deemed to have agreed that said Bonds shall be incontestable in the hands of a bona fide holder for value in the manner provided hereinafter in the form of said Bonds. The Bonds may be registered at the option of the holder as to principal only, or as to both principal and interest, at the office of the Chemical Bank, New York, New York, such registration to be noted on the back of said Bonds in the space provided therefor. After such registration as to principal only, or both principal and interest, no transfer of the Bonds shall be valid unless made at said office by the registered owner, or by his duly authorized agent or representative and similarly noted on the Bonds , but the Bonds may be discharged from registration by being in like manner transferred to bearer and thereupon transferability by delivery shall be restored. At the option of the holder the Bonds may thereafter again from time to time be registered or transferred to bearer as before. Such registration as to principal only shall -11- not affect the negotiability of the coupons which shall continue to pass by delivery. 2.04. BONDS MUTILATED, DESTROYED, STOLEN OR LOST. In case any Bond shall become mutilated or be destroyed, stolen or lost, the City may in its discretion issue and deliver a new Bond with all unmatured coupons, if any, so mutilated, destroyed, stolen or lost, in ex- change and substitution for such mutilated Bond, upon surrender and cancellation of such mutilated Bond and attached coupons , if any, or in lieu of and substitution for the Bond and attached coupons , if any, destroyed, stolen or lost, and upon the holder furnishing the City proof of his ownership thereof and satisfactory indemnity and complying with such other reasonable regulations and conditions as the City may prescribe and paying such expenses as the City may incur. All Bonds and coupons so surrendered shall be cancelled by the City Clerk and Finance Director and held for the account of the City. If any such Bond or coupon shall have matured or be about to mature, instead of issuing a substituted Bond or coupon, the City may pay the same, upon being indemnified as aforesaid, and if such Bond or coupon be lost, stolen or destroyed, without surrender thereof. Any such duplicate Bonds and coupons issued pursuant to this Section shall constitute original, -12- T � additional contractual obligations on the part of the City, whether or not the lost, stolen or destroyed Bonds or coupons be at any time found by any one, and such duplicate Bonds and coupons shall be entitled to equal and proportionate benefits and rights as to lien and source and security for payment from the Resort Taxes and Utilities Services Taxes pledged herein. 2.05. FORM OF BONDS AND COUPONS. The text of the Bonds and coupons shall be of substantially the following tenor, with such omissions , insertions and variations as may be necessary and desirable and author- ized or permitted by this resolution or any subsequent resolution adopted prior to the issuance thereof: -13- • • • • • No. UNITED STATES OF AMERICA $5,000 STATE OF FLORIDA COUNTY OF DADE CITY OF MIAMI BEACH EXCISE TAX REFUNDING BOND The City of Miami Beach in Dade County, Florida, for value received, hereby promises to pay to bearer, or if this bond is registered as to principal, then to the registered holder hereof, solely from the special funds hereinafter specified, the sum of Five Thousand Dollars ($5,000) on the first day of April, 19 , and to pay, solely from said special funds , interest on said sum until paid at the rate of per centum ( %) per annum, payable semi-annually on the first days of April and October of each year, with interest due on and prior to maturity hereof payable only upon presentation and surrender of the annexed interest coupons as they severally become due. Both principal hereof and interest hereon are payable in lawful money of the United States of America at the Chemical Bank, New York, New York. (Insert redemption provisions determined by subsequent resolution. ) A notice of such intended redemption shall in each case be published at least once at least thirty (30) days prior to the date of redemption in a financial journal -14- ' published in the City of New York, New York. Interest shall cease on any Bonds so called for prior redemption on the redemption date if adequate funds have been duly provided for the redemption thereof. This Bond is one of an issue of $17,570 ,000 of like tenor and effect, except as to maturity (and interest rate) , issued pursuant to the Constitution and Laws of Florida, including the Charter of said City and other applicable statutes , and Resolution No. 73-13862 adopted by the City Council of said City on January 3, , 1973 ,, (herein called "resolution") , for the purpose of refund- ing the outstanding Convention Hall Completion and Con- struction of Theatre of the Performing Arts Bonds , Series 1969, dated April 1, 1969, and purposes incidental thereto. This Bond and the issue of which it is a part, and such other Bonds as may be hereafter issued on a parity there- with, are payable as to both principal and interest from Resort Taxes and Utilities Services Taxes levied or re- ceived in said City in the manner provided in said reso- lution, and only in case of a deficiency in the proceeds of said Resort Taxes shall the proceeds of said Utilities Services Taxes be used for the payment of said principal and interest on said Bonds. It is provided in said reso- lution that the City shall provide a sinking fund sufficient to assure the prompt payment of principal of and interest on the bonds as each falls due, and reserves therefor, as -15- c41,41 ...rlriN► provided in said resolution. For a statement of the covenants , terms and provisions securing the Bonds of the issue of which this Bond is one, including the right of the City of Miami Beach to issue additional Bonds on a parity therewith, reference is made to said resolution. This Bond and the coupons appertaining hereto are payable solely from and secured by a lien upon and pledge of Resort Taxes and Utilities Services Taxes collected in said City in the manner provided in the resolution authorizing said issue of Bonds. This Bond does not constitute an indebtedness of said City within the meaning of any constitutional, statutory or charter provision or limitation, and it is expressly agreed by the holders of this Bond and the coupons appertaining hereto that such holders shall never have the right to require or compel the exercise of the ad valorem taxing power of said City, or the taxation of real estate in said City, for the payment of the principal of and inter- est on this Bond, or the making of any sinking fund, reserve or other payments provided for in the resolution authorizing the issue of Bonds of which this Bond is one. It is further agreed between the City of Miami Beach and the holder of this Bond that this Bond and the obligation evidenced hereby shall not constitute a lien upon any property of or in said City of Miami Beach, but shall constitute a lien only on said Resort Taxes and -16- , r ', Utilities Services Taxes in the manner provided in said resolution. The City in said resolution has covenanted and agreed with the holders of the Bonds of the issue of Bonds of which this Bond is one to levy and collect sufficient Resort Taxes and Utilities Services Taxes within the limits prescribed by law to pay the principal of and in- • terest on said Bonds and create and maintain reserves therefor, to the extent and in the manner provided in said resolution. It is hereby certified and recited that all acts , conditions and things required by the Constitution and Laws of Florida and by the Charter of the City to happen, exist and be performed precedent to and in the issuance of this Bond, have happened, exist and have been performed as so required, and that the issuance of this Bond, and of the issue of Bonds of which this Bond is one, is in full compliance with all constitutional, statutory or charter limitations or provisions. This Bond, and the coupons appertaining thereto, is and has all the qualities and incidents of a negotiable instrument under the law merchant and the Uniform Com- l . mercial Code-Investment Securities Law of the State of Florida, and the original holder and each successive I • holder of this Bond, and of the coupons appertaining hereto, i -17- { 1 1 i shall be conclusively deemed by his acceptance hereof to have agreed that this Bond, and the coupons appertaining hereto, shall be and have all the qualities and incidents of negotiable instruments under the law merchant and the Uniform Commercial Code-Investment Securities Law of the State of Florida. The original holder and each successive holder of this Bond, and of the coupons appertaining here- to, shall be conclusively deemed to have agreed and con- sented to the following terms and conditions : (a) Title to this Bond, unless registered as herein provided, and to the annexed interest coupons may be transferred by delivery in the manner provided for negotiable instruments payable to bearer in the law mer- chant and in the Uniform Commercial Code-Investment Se- curities Law of the State of Florida; (b) Any person in possession of this Bond, unless registered as herein provided, or of the interest coupons hereunto appertaining, regardless of the manner in which he shall have acquired possession, is hereby granted power to transfer absolute title hereto by de- livery hereof to a bona fide purchaser, that is , to any one who shall purchase the same for value (present or antecedent) without notice of prior defenses or equities or claims of ownership enforceable against his transferor; every prior take or owner of this Bond, unless registered -18- as herein provided, and of the annexed interest coupons , waives and renounces all of his equities and rights herein favor of every such bona fide purchaser and every such bona fide purchaser shall acquire absolute title hereto and to all rights represented hereby; and (c) The City of Miami Beach, Florida, may treat the bearer of this Bond, unless registered as herein provided, and of the interest coupons hereunto appertaining, as the absolute owner hereof for all purposes without being affected by any notice to the contrary. This Bond may be registered as to principal only, or as to both principal and interest, in accordance with the provisions endorsed hereon. IN WITNESS WHEREOF, said City of Miami Beach, Florida, has caused this Bond to be executed by the manual or facsimile signature of its Mayor, and attested by the manual or facsimile signature of its City Clerk and Finance Director, and its corporate seal or a facsimile thereof to be affixed hereto or imprinted or reproduced hereon and has caused the interest coupons hereto attached to be executed with the facsimile signatures of said Mayor and City Clerk and Finance Director, all as of the first -19- day of October, 1972. (SEAL) Mayor Attest: City Clerk and Finance Director -20- ' ' • } .1 (FORM OF COUPON) No. $ On the first day of , 19 , unless the hereinafter mentioned Bond shall then be optional for redemption and shall have been duly called for redemption and provision for the payment of the re- demption price duly made, the City of Miami Beach, Dade County, Florida, will pay to bearer, solely out of the special funds described in the hereinafter men- tioned Bond, the amount shown hereon in lawful money of the United States of America at the Chemical Bank, New York, New York, being interest due that day on its Excise Tax Refunding Bond dated October 1, 1972, and numbered Attest: Mayor City Clerk and Finance Director -21- VALIDATION CERTIFICATE This Bond is one of an issue of Bonds which were validated and confirmed by judgment of the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, rendered on the day of , 1972. Mayor • Cis ty Clerk and Finance Director -22- (PROVISION T'OR REGISTRATION) This Bond may be registered in the name of the holder on the books to be kept by the Chemical Bank, New York, New York, as Registrar, or such other Regis- trar as may hereafter be duly appointed, as to principal only, such registration being noted hereon by such Registrar in the registration blank below after which no transfer shall be valid unless made on said books by the registered holder or his attorney duly authorized and similarly noted in the registration blank below, but it may be discharged from registration by being transferred to bearer after which it shall be transfer- able by delivery but it may be again registered as be- fore. The registration of this Bond as to principal shall not restrain the negotiability of the coupons by delivery merely but the coupons may be surrendered and the interest made payable only to the registered holder, in which event the Registrar shall note in the regis- tration blank below that this Bond is registered as to interest as well as principal and thereafter the interest will be remitted by mail to the registered holder. With the consent of the holder and of the City of Miami Beach, this Bond, when converted into a Bond registered as to both principal and interest, may be reconverted into a coupon Bond and again converted into a Bond registered -23- r _ • as to both principal and interest as hereinabove pro- vided. Upon reconversion of this Bond when registered as to principal and interest into a coupon Bond, coupons representing the interest to accrue upon the Bond to date of maturity shall be attached hereto by the Regis- trar and the Registrar shall note in the registration blank below whether the Bond is registered as to prin- cipal only or payable to bearer. DATE OF • IN WHOSE • MANNER OF : SIGNATURE REGISTRATION : NAME REGISTERED : REGISTRATION : OF REGISTRAR • • • • . -24- ARTICLE III RESORT TAXES AND UTILITIES SERVICES TAXES AND APPLICATION THEREOF 3.01. BONDS NOT TO BE AN INDEBTEDNESS OF THE CITY OF MIAMI BEACH. Neither the Bonds nor coupons shall be or constitute an indebtedness of the City of Miami Beach, within the meaning of any constitutional, or statutory or charter limitation of indebtedness , but shall be payable solely from said Resort Taxes and Utilities Services Taxes as herein 'provided. No holder or holders of any Bond issued hereunder, or of any coupon appertain- ing thereto, shall ever have the right to compel the exercise of the ad valorem taxing power of the City, or taxation in any form of any real property therein to pay said Bonds or the interest thereon. 3.02. BONDS SECURED BY PLEDGE OF RESORT TAXES AND UTILITIES SERVICES TAXES. The payment of the principal of and interest or and all other payments required for the Bonds issued hereunder shall be secured forthwith equally and ratably by a first lien on said Resort Taxes and Util- ities Services Taxes and the City does hereby irrevocably pledge such Resort Taxes and Utilities Services Taxes to the payment of the principal of and interest on the Bonds issued pursuant to this resolution, and for reserves there- for; provided, however, that said payments for debt service on said Bonds shall be made from Utilities Services Taxes -25- only to the extent that said Resort Taxes are insufficient therefor, all in the manner provided in this resolution. The City does further hereby covenant and agree that as long as any of the principal of or interest on any of the Bonds issued pursuant to this resolution are out- standing and unpaid, or payment thereof not duly provided for, it will not repeal said Resort Tax Ordinance or Util- ities Services Tax Ordinance, and will not reduce the rates of said Resort Taxes, or Utilities Services Taxes or amend or modify Resort Tax Ordinance or Utilities Services Tax Ordinance in any manner so as to impair or adversely affect the power and obligations of the City to levy and collect said Resort Taxes and Utilities Services Taxes made herein, or the rights of holders of Bonds issued pur- suant to this resolution, and £a:i,:;. city shall be uncondi- tionally and irrevocably obligated, as long as any of said Bonds, or interest thereon, are outstanding and unpaid, to levy and collect all said Excise Taxes at the maximum rate or rates now permitted by existing laws to the full extent necessary to pay the principal of and interest on said Bonds and reserves therefor. The City does further represent that it has power to irrevocably pledge said Excise Taxes to the payment of the principal of and interest on the Bonds issued pursuant to this resolution, and reserves therefor, -26- and that said pledge of said Excise Taxes in the manner provided herein shall not be subject to repeal, modifi- cation or impairment by any subsequent resolution, ordi- nance or other proceeding of the governing body of the City of Miami Beach, or by any subsequent act of the Leg- islature of Florida. 3.03. APPLICATION OF BOND PROCEEDS. The pro- ceeds received from the sale of the Bonds issued under the provisions of this resolution (herein referred to as "Bond Proceeds") and all moneys then on deposit in the Sinking Fund and Reserve Fund heretofore created for said outstanding 1969 Bonds, shall be applied by the City forthwith upon the delivery of and payment for the Bonds issued hereunder as follows: (a) All accrued interest received from the sale of said Bonds shall be deposited in the Sinking Fund and used for the payment of interest on the Bonds issued hereunder. (b) All the moneys in the Sinking Fund and the Reserve Fund for said 1969 Bonds, shall be transferred from said Sinking Fund and Reserve Fund, and deposited in a trust fund hereinafter designated as the Outstanding 1969 Bonds Redemption Fund to be held by THE MIAMI BEACH FIRST NATIONAL BANK under the Escrow Deposit Agreement between the City and said Bank hereinafter referred to. -27- (c) There shall next be deposited in the Sinking Fund and Reserve Fund for said outstanding 1969 Bonds to be held by THE MIAMI BEACH FIRST NATIONAL BANK in said fund to be known as the "outstanding 1969 Bonds Redemption Fund" , an amount which the City Clerk and Finance Director and such Bank shall certify will be sufficient, together with the moneys deposited in said Outstanding 1969 Bonds Redemption Fund pursuant to (b) above, will be equal to the aggregate amount of principal and interest which will mature and become due on said outstanding 1969 Bonds to and including April 1 , 1980, and the principal and redemption premiums which will become due on said outstanding 1969 Bonds which mature after April 1, 1980 on the prior redemption thereof on April 1, 1980. Said deposit of said moneys in said Outstand- ing 1969 Bonds Redemption Fund, shall be and constitute an irrevocable deposit of said moneys in trust solely for the payment of the principal of and interest on said outstanding 1969 Bonds as the same mature and be- come due to and including April 1, 1980 , and payment on April 1, 1980 of the principal of and redemption pre- miums on said outstanding 1969 Bonds which mature after April 1, 1980 on the prior redemption thereof on April 1, 1980, and shall be used solely and only for such purpose. Said moneys shall be so deposited irrevocably • -28- • 'v 'T BANK in trust with said THE M IAM I BEACH FIRST NATIONAL/ under a form of Escrow Deposit Agreement to be hereafter entered into by and between the City and said Bank, in such form as may be hereafter agreed upon between the City and said Bank, and the City Council of said City is hereby authorized to enter into said Agreement for and on behalf of the City. Said Escrow Deposit Agreement shall provide that said Bank shall immediately upon the delivery of said Bonds authorized herein, promptly publish a notice in the name of the City calling said outstanding 1969 Bonds which mature after April 1, 1980 for prior redemp- tion on April 1, 1980 , and that said Bank shall again publish said notice at least once not more than sixty (60) days and not less than thirty (30) days prior to the date of redemption, both such publications to be made in a financial paper published in the City of New York, State of New York. Prior to the delivery of said Bonds there shall be delivered to said THE MIAMI BEACH FIRST NATIONAL BANK a resolution of the City Council of said City irrevocably instructing and directing said Bank in the name of the City to publish said notices of the prior redemption of said outstanding 1969 Bonds on April 1, 1980 at the times provided above. -29- All of the moneys in said Outstanding 1969 Bonds Redemption Fund shall be invested by said Bank in direct obligations of the United States of America or obligations unconditionally guaranteed by the United States govern- ment or in time deposits in banks or trust companies , maturing not later than the dates upon which such moneys will be needed to pay the principal of and interest on said 1969 Bonds maturing on or prior to April 1, 1980 , and the prior redemption of April 1, 1980 of all said outstanding 1969 Bonds which mature after April 1, 1980. All of such time deposits in banks or trust companies shall be secured by the collateral deposit of direct ob- ligations of the United States of America or obligations unconditionally guaranteed by the United States of America. The income derived from the investment of the moneys in said Outstanding 1969 Bonds Redemption Fund shall be deposited in the Sinking Fund created by this resolution, and the required deposits in the said Sink- ing Fund on the fifteenth day of each month shall be reduced by the amounts of such income then on deposit in said Sinking Fund or the income on such investments which will be received prior to the fifteenth day of any succeeding month. (d) From said Bond Proceeds , after making all the deposits in full from said Bond Proceeds under -30- • (b) and (c) above, there shall next be deposited in the Sinking Fund created by this ordinance an amount not exceeding one year's interest on the Bonds issued here- under. Said moneys shall be used for the payment of interest on the Bonds issued hereunder. (e) From said Bond Proceeds , after making all the deposits in full from said Bond Proceeds under (a) to (d) , inclusive, there shall next be de- posited in the Reserve Fund created by this resolution an amount not exceeding the maximum amount of principal and interest which will mature and become due in any year thereafter on the Bonds issued pursuant to this resolution. (f) Any moneys or securities remaining in said Outstanding 1969 Bonds Redemption Fund after the final payment of all principal of and interest and redemption premiums on said outstanding 1969 Bonds on the maturity or prior redemption thereof, or the reserva- tion in said Outstanding 1969 Bonds Redemption Fund of sufficient funds for such purposes , shall be returned by said Bank to the City for deposit by the City in its discretion in the Sinking Fund or the Reserve Account created for the Bonds issued hereunder. 3. 04. COVENANTS OF THE CITY. As long as any 4 of the principal of or interest on any of the Bonds shall -31- 5 be outstanding and unpaid, or until there shall have been set apart in the Sinking Fund and Reserve Fund herein established a sum sufficient to pay when due the entire principal of the Bonds remaining unpaid, together with interest accrued and to accrue thereon, the City covenants with the holders of any and all of the Bonds issued pursuant to this resolution as follows: (A) RESORT TAX FUND. That all the proceeds of said Resort Taxes, as defined herein, as soon as the same are received by the City shall be forthwith de- posited in a special fund in a bank or trust company in the State of Florida which is eligible under the state laws to receive deposits of state and municipal funds , which fund is hereby designated as the "Resort Tax Fund" . Said fund shall constitute a trust fund for the purposes provided in this resolution and shall be kept separate and distinct from all other funds of the City and used only for the purposes and in the manner provided in sub- section (B) of this Section 3.04. (B) DISPOSITION OF MONEYS IN RESORT TAX FUND. That all moneys at any time remaining on deposit in the Resort Tax Fund shall be disposed of by the City only in the following manner and order of priority: (1) Moneys on deposit in the Resort Tax Fund shall first be used for the payment of the principal of -32- • and interest on the Bonds and for such purpose the City shall withdraw from the Resort Tax Fund and deposit into a fund to be known as the "Sinking Fund" , which is hereby created and established, on or before the fifteenth (15th) day of each month, beginning with the fifteenth (15th) day of the first month after the delivery of said Bonds , one-sixth (1/6) of the amount of interest which will mature and become due on the next semi-annual in- terest payment date, and beginning with April 15 , 1973 , one-twelfth (1/12) of the amount of principal which will mature and become due on said Bonds on the next prin- cipal maturity date. In the event that the period be- tween the delivery of the Bonds and the next semi-annual interest payment date will be less than six months, such monthly interest deposits for such period shall be in- creased sufficiently to provide the required amount of interest maturing on said next interest payment date; provided, however, that such deposits for interest shall not be required to be made to the extent other available moneys in the Sinking Fund are sufficient therefor. (2) After making the deposits required by clause (1) above, the City shall next, from the moneys remaining in the Resort Tax Fund, deposit in a fund to be known as the "Reserve Fund" , which is hereby created and established, on or before the fifteenth (15th) day of each month, such amount as may be necessary to make -33- . • • the amount on deposit in said Reserve Fund, together with the moneys then on deposit therein , equal to the largest amount of principal and interest which will mature and become due on said Bonds in any succeeding year; provided, however, that no further deposits shall be required to be made into said Reserve Fund when there shall be on deposit therein a sum equal to the largest amount of principal and interest which will mature and become due on said Bonds in any suc- ceeding year. Moneys in the Reserve Fund shall be used only for the purpose of the payment of maturing principal of or interest on the Bonds when the other moneys in the Sinking Fund are insufficient therefor, and for no other purpose. Any withdrawals from the Reserve Fund shall be subsequently restored from the first moneys available in the Resort Tax Fund after all required payments for the Sinking Fund and Reserve Fund, in- cluding any deficiencies for prior payments , have been made in full. (3) If on any payment date the moneys in said Resort Tax Fund are insufficient to place the -34- required amount in the Sinking Fund or Reserve Fund as hereinabove provided, the deficiency shall be made up in the subsequent payments in addition to the payments which would otherwise be required to be made on the subsequent payment dates. (4) Thereafter, the balance of any moneys remaining in the Resort Tax Fund whenever on or before the fifteenth (15th) day of each month, after all required deposits into the Sinking Fund and Reserve Fund provided for above have been duly made on or be- fore such fifteenth (15th) day of such month , may be withdrawn by the City and used for any lawful purpose ; provided, however, that none of said moneys shall ever be used for any purposes other than the purposes here- inbefore specified unless all current payments , includ- ing any deficiencies for prior payments , provided for under clauses (1) and (2) above, have been made in full and unless the City shall have complied with all the covenants and provisions of this resolution. (C) DISPOSITION OF UTILITIES SERVICES TAXES. That to the extent that the moneys in said Resort Tax Fund are insufficient on the fifteenth (15th) day of any month to make all the deposits into the Sinking Fund and Reserve Fund required to be made on -35- such fifteenth (15th) day of such month, including any deficiencies for prior required deposits into said Sinking Fund and Reserve Fund, all the pro- ceeds of both said Utilities Services Taxes , as de- fined herein, thereafter collected or received by the City shall be used only for the purpose of mak- ing the deposits in such Sinking Fund and Reserve Fund to the full extent that the other moneys in the Resort Tax Fund are insufficient to make all deposits required to be made therein, including any deficiencies for prior required deposits , on such fifteenth (15th) day of such month. Such deposits of said Utilities Services Taxes shall continue to be made on said succeeding fifteenth (15th) day of the month to the full extent necessary to make all required monthly deposits into the Sinking Fund and Reserve Fund, including any deficienciesfor prior re- quired deposits , under the provisions of Section 3. 04 (B) of this resolution. Whenever on or before any fifteenth (15th) day of any month the full amounts required are then on deposit in said Sinking Fund and Reserve Fund, together with any deficiencies for prior required de- posits , said Utilities Services Taxes may be used for any lawful purposes ; provided, however, that the -36- holders of the Bonds issued pursuant to this reso- lution shall have a first lien on all such Utili- ties Services Taxes whenever and to the extent that the moneys in the Resort Tax Fund are insuffi- cient on any fifteenth (15th) day of any month to make all the deposits required to be made into the Sinking Fund and the Reserve Fund, including any de- ficiencies for prior required deposits , on such fif- teenth (15th) day of the month, and such Utilities Services Taxes shall never be used for any other purposes as long as such Utilities Services Taxes are needed for the making of any required deposits into said Sinking Fund or Reserve Fund whenever the moneys in the Resort Tax Fund are insufficient to make such required deposits into the Sinking Fund and Reserve Fund. It is the express intention of this resolution that whenever at any time the City shall have made the required deposits into the Sinking Fund and Reserve Fund due on the next fifteenth (15th) day of the month in full the City may use the Resort Taxes available for any lawful purpose from the time such deposits have been made to the next succeeding fifteenth (15th) day of of the month. -37- • (D) The Sinking Fund, the Reserve Fund, the Resort Tax Fund, and the Utilities Services Taxes shall constitute trust funds for the purposes provided herein for such funds . Such funds , exclusive of any moneys invested , shall be continuously secured in the same manner as state and municipal deposits of funds are required to be secured by the laws of the State of Florida. The moneys in the Sinking Fund may be invested and reinvested in direct obligations of the United States of America, or in time deposits in banks or trust companies fully collateralized by securities eligible under the laws of Florida as collateral secur- ity for deposit of municipal funds , maturing not later than the date or dates on which such moneys will be needed for the purposes of said fund. The moneys in the Reserve Fund may be invested and reinvested in direct obligations of the United States of America, or in time deposits in banks or trust companies fully collateralized by securities eligible under the laws of Florida as collateral security for deposits of municipal funds , maturing at such time or times as the governing body of the City shall determine to be proper and advisable. The income from all investments -38- and reinvestments in the Sinking Fund and Reserve Fund whenever and as long as all current payments or depos- its in such funds have been fully made , including any deficiencies for prior required payments or deposits , shall be deposited in the Resort Tax Fund and used in the manner provided herein for such Resort Tax Fund. (E) NO ENCUMBRANCES TO BE CREATED ON EXCISE TAXES. That the City will not issue any other obligations payable from said Excise Taxes, nor volum- tarily create or cause to be created any debt, lien, pledge, assignment,encumbrances or any other charge having priority to, or being on a parity with (except pari passu additional Bonds as provided for herein) , the lien of the Bonds issued pursuant to this resolu- tion and the interest thereon upon said Excise Taxes. (F) ISSUANCE OF PARI PASSU ADDITIONAL BONDS. That no pari passu additional Bonds, as in this subsection defined, payable pari passu with the Bonds originally issued pursuant to this resolution from said Excise Taxes shall be created after the issuance of any Bonds pursuant to this resolution, except under the con- ditions and in the manner herein provided. -39- No such pari passu additional Bonds shall be issued unless all of the following condi- tions are complied with: (1) All required payments or depos- its for all funds shall have been made in full to the date of issuance of said pari passu additional Bonds and the City shall not then be in default un- der any of the covenants contained in this resolu- tion. (2) One-half (1/2) of the aggregate amount of Utilities Services Taxes as defined here- in, received by the City during the twenty-four (24) complete calendar months immediately preceding the issuance of such pari passu additional Bonds shall have been not less than one and one-third (1-1/3) times the maximum amount of principal and interest which will mature and become due in any succeeding year, except the years 1974 to 1980, inclusive, on the following: (a) The Bonds authorized by this resolution then outstanding; and (b) Any pari passu additional Bonds theretofore issued under the terms , limi- tations and conditions contained in this resolu- tion then outstanding; and (c) The pari passu additional -40- Bonds then proposed to be issued. (3) One-half (1/2) of the aggregate amount of Excise Taxes , as defined herein , received by the City during the twenty-four (24) complete cal- endar months immediately preceding the issuance of such pari passu additional Bonds shall have been not less than one and three-fourths (1-3/4) times the maximum amount of principal and interest which will mature and become due in any succeeding year, except the years 1974 to 1960, inclusive, on the following: (a) The Bonds authorized by this resolution then outstanding; and (b) Any pari passu additional Bonds theretofore issued and then outstanding; and (c) The pari passu additional Bonds then proposed to be issued. For the purposes of this subsection, the terms "Utilities Services Taxes" and "Excise, Taxes" shall mean Utilities Services Taxes or Ex- cise Taxes , as the case may be , actually received by the City anc not pledged, encumbered or allocat- ed for any other purpose than the payment of debt -41- service and reserves on the Bonds, and which the City may have pledged pursuant to this resolution or may legally pledge at the time of the issuance of such proposed pari passu additional Bonds to the payment of debt service and reserves on Bonds theretofore is- sued pursuant to this resolution and the pari passu additional Bonds proposed to be issued. For the purposes of this subsection the word "Bonds" shall include any Bonds authorized and not issued where the authorization for the issu- ance thereof is then in force and effect. The term °pari passu additional Bonds" as used in this subsection shall be deemed to mean additional obligations evidenced by Bonds issued un- • der the provisions and within the limitations of this subsection payable from said Excise Taxes, as defined herein, pari passu 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 author- ized and issued pursuant to this resolution, and all of the covenants and other provisions of this resolu- tion (except as to details of such Bonds evidencing such pari passu additional obligations inconsistent therewith) , ,shall be for the equal benefit, protection -42- and security of the holders of any Bonds originally authorized and issued pursuant to this resolution and holders of any Bonds evidencing additional obli- gations subsequently created 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 said Excise Taxes provided for herein with- out preference of any Bond or coupon over any other. The term "pari passu additional Bonds" as used in this subsection shall not be deemed to include bonds, notes , certificates or other obli- gations subsequently issued, the lien of which on said Excise Taxes provided for herein is subject to the prior and superior lien on such Excise Taxes of Bonds issued pursuant to this resolution and the City shall not issue any obligations whatsoever payable from such Excise Taxes which rank equally as to lien P and source and security for payment from such Excise Taxes with Bonds issued pursuant to this resolution except in the manner and under the conditions provid- ed in this subsection. No pari passu additional Bonds , as in this subsection defined, shall be created at any time, however, unless all of the payments into the respective funds provided for in this resolution on Bonds then -43- • outstanding, and all other reserve or sinking fund or other payments provided for in this resolution shall have been made in full to the date of issuance of said pari passu additional Bonds and the City shall have fully complied with all the covenants , agreements and terms of this resolution. (G) BOOKS AND RECORDS. That the City shall also keep books and records of the levy and col- lection of said Excise Taxes which shall be separate and apart from all other books , records and accounts of the City , and any holder of a Bond or Bonds issued pursuant to this resolution shall have the right at all reasonable times and for reasonable purposes to inspect all records , accounts and data of the City re- lating thereto. The City shall also, at least once a year, cause the books, records and accounts relating to said Excise Taxes to be properly audited, and shall upon request make generally available the reports of such audits to any holder or holders of Bonds issued pursuant to this resolution. (H) REMEDIES. Any holders of Bonds or of any coupons appertaining thereto issued under the provisions of this resolution, or any trustee acting for such Bondholders in the manner hereinafter provided -44- • . may either at law or in equity, by suit, action, mandamus or other proceeding in any court of competent jurisdiction , protect and enforce any and all rights under the laws of the State of Florida, 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 to be performed by the City or by any officer thereof, including the levying and collect- ing of such Excise Taxes . In the event that default shall be made in the payment of the interest on or the principal of any of the Bonds issued pursuant to this resolution as the same shall become due, or in the making of the payments required to be made by this resolution, or in the event that the City or any officer, agent or employee thereof shall fail or refuse to comply with any provisions of this resolution, or shall default in any covenant made herein, and in the further event that any such default shall continue for a period of thirty (30) days, any holder of such Bonds, or any Trustee appointed to represent Bondholders as hereinafter provided, shall be entitled as of right to the appointment of a receiver to collect and receive said Excise Taxes in an appro- priate judicial proceeding in a court of competent jurisdiction, whether or not such holders or trustee is also seeking or shall have sought to enforce any -45- other right or exercise any other remedy in connec- tion with Bonds issued pursuant to this resolution . The receiver so appointed shall col- lect and receive all said Excise Taxes in the manner provided in this resolution, and comply under the jurisdiction of the court appointing such receiver, with all of the provisions of this resolution . Whenever all that is due upon Bonds issued pursuant to this resolution, and interest thereon, and under any covenants of this resolution for reserve, sinking or other funds, and charges and expenses of said receivership, shall have been paid and made good, and all defaults unc r the provisions of this resolution shall have been curLd and made good, said receivership shall be terminated upon the entry of an order of the court to that effect. Upon any subsequent default, any holder of Bonds issued pursuant to this resolution, or any Trustee appointed for Bondholders as hereinafter provided, shall have the same right to secure the further appointment of a receiver upon any such subsequent default. Such receiver shall in the performance of the powers hereinabove conferred upon him be under the direction and supervision of the court making such -46- 1 0 appointment, shall at all times be subject to the orders and decrees of such court and may be removed thereby and a successor receiver appointed in the discretion of such court. Nothing herein contained shall limit or restrict the jurisdiction of such court to enter such other and further orders and de- crees as such court may deem necessary or appropriate for the exercise by the receiver of any function not specifically set forth herein . The holder or holders of Bonds in an aggregate principal amount of not less than twenty- five per centum (25%) of Bonds issued under this resolution then outstanding may by a duly executed certificate in writing appoint a trustee for holders of Bonds issued pursuant to this resolution with authority to represent such Bondholders in any legal proceedings for the enforcement and protection of the rights of such Bondholders . Such certificate shall be executed by such Bondholders or their duly authorized attorneys or representative and shall be filed in the office of the City Clerk and Finance Director. (I) ENFORCEMENT OF COLLECTIONS . That the City will diligently levy, enforce and collect said Excise Taxes and will take all steps, actions and proceedings for the enforcement and collection of such -47- • • 1• Excise Taxes which shall become delinquent to the full extent permitted or authorized by the Charter of said City and by the laws of the State of Florida. (S) PAYMENT FROM OTHER FUNDS. The City further covenants that to the extent the proceeds of said Excise Taxes shall be insufficient to pay the principal of and interest on said Bonds as the same mature and become due, it will pay such principal and interest from funds derived from sources other than the proceeds of ad valorem taxes ; provided, however, that the provisions of this subsection shall not be deemed to create a lien on such other funds of the City or to prevent the City from hereafter pledging any of such funds for other purposes. -48- A V ;. ARTICLE IV MISCELLANEOUS PROVISIONS 4 ' 01• MODIFICATION ODIFIC N of this resolution r modification or amendment O OR AMENDMENT. No materialresolution amendat ution o r of any orhereof h n aY be made without the consent supplemental hereto holder of two-thirds sent in writing of the of the Bonds then out (2/3) or more in principal no modi standin amount fication g' Provided, however, that or the maturity of such amendment shall permit a change in of interest thereon,ch Bonds or a reduction i obligation or n the rate gation o in the amount r affecting the of the principal unconditional promise Bonds as the same shall principal of and interest on of the City to pay the Taxesbecome the without the consent of sue from said Excise the holders of such Bonds . 4. 02. provisions of this RESOLUTION CONSTITUTES C tract between t is resolution shall cons ONTRACT. The the olders of the Bonds he City of Miamititute a con_ BeFloridaBeach, F ndsand until such time as all herein authorized to be issued of said Bon and the interest thereon shall be paid in full, or Bonds issued hereunder and until provisions shall have been made f and interest for thereon in full . 4. 03. SALE OF BONDS. authorized shall bThat the sold at one time or in Bonds herein e blocks from -49- 4 f time to time pursuant to such provisions therefor as may be made in resolution or resolutions to be adopted by the City Council . The Bonds so sold shall be pre- pared and executed as soon as may be after sale and shall be thereupon delivered to said purchasers upon payment in accordance with the terms of sale . 4 .04 . VALIDATION AUTHORIZED. That Joseph A. Wanick, Esq. , City Attorney of the City of Miami Beach, be and he is hereby authorized and direc- ted to institute appropriate proceedings in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida, for the validation of said Bonds, and the proper officers of the City are hereby authorized to verify on behalf of the City any pleadings in such proceedings . 4 .05 . SEVERABILITY OF INVALID PROVISION . That if any one or more sections, paragraphs , clauses, or provisions of this resolution shall be held to be invalid for any reason, such invalidity shall not affect the validity or enforceability of any of the remaining provisions hereof. 4 .06 . TIME OF TAKING EFFECT. That all resolutions and orders or parts thereof in conflict -50- • • - -y . , M f herewith are to the extent of such conflict repealed, and this resolution shall be in full force and effect immediately after its adoption. PASSED AND ADOPTED this 3rd day of January, 1973 . Cv -446Le___,/ 2 Mayor ATTEST: C y lerk and Finance Director -51-