2015-29175 Reso RESOLUTION NO. 2015-29175
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA AUTHORIZING THE ISSUANCE OF NOT
TO EXCEED $240,000,000 IN AGGREGATE PRINCIPAL AMOUNT OF
CITY OF MIAMI BEACH, FLORIDA RESORT TAX REVENUE BONDS,
SERIES 2015 FOR THE PURPOSE OF FINANCING IMPROVEMENTS TO
THE MIAMI BEACH CONVENTION CENTER; 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 CITY MANAGER, INCLUDING WHETHER THE SERIES
2015 BONDS SHALL NOT BE SECURED BY THE DEBT SERVICE
RESERVE ACCOUNT AND 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 AND DISCLOSURE
DISSEMINATION AGENT; 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 FORM OF
PRELIMINARY OFFICIAL STATEMENT FOR THE SERIES 2015 BONDS
AND AUTHORIZING EXECUTION OF THE FINAL OFFICIAL
STATEMENT FOR THE SERIES 2015 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 CITY TO TAKE
ALL NECESSARY ACTIONS IN CONNECTION WITH THE ISSUANCE OF
THE SERIES 2015 BONDS; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, pursuant to the Constitution and the laws of the State of Florida, in
particular Chapter 67-930, Laws of Florida, Acts of 1967, as amended, and Chapter 166, Florida
Statutes, as amended from time to time, and pursuant to the Miami Beach City Charter, as
amended, and Chapter 102, Article IV of the Miami Beach City Code, as amended, including as
amended upon enactment by the Mayor and City Commission of the City of Miami Beach,
Florida (the "Commission") of an ordinance levying an additional one percent (1%) tax approved
by the electorate in a special election held on August 14, 2012 and set forth in Section 5.03 of the
Miami Beach City Charter, as amended (collectively, the "Act"), the City of Miami Beach,
Florida (the "City") imposes, levies and collects a municipal resort tax upon the rent of every
occupancy of a room or rooms in any hotel, motel, rooming house or apartment house, and upon
the total sales price of all items of food, beverages, alcoholic beverages and wine sold at retail of
any restaurant, as more particularly set forth in the Act (the "Resort Tax"); and
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WHEREAS, the City desires to issue its Resort Tax Revenue Bonds, Series 2015 (the
"Series 2015 Bonds") for the primary purpose of financing certain public improvements to the
Miami Beach Convention Center, as more particularly described in Exhibit A attached hereto
and made a part hereof(the "Series 2015 Project"); and
WHEREAS, the City 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 City to
delegate to the City Manager (hereinafter defined), who shall rely upon the recommendations of
the Chief Financial Officer (hereinafter defined) and RBC Capital Markets, LLC, the City's
financial advisor (the "Financial Advisor"), the determination of various terms of the Series 2015
Bonds, whether the Series 2015 Bonds shall not be secured by the Debt Service Reserve
Account, 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,
all as provided and subject to the limitations contained herein; and
WHEREAS, the City 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 City 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 Commission 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 MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA.
ARTICLE I
DEFINITIONS, AUTHORITY, FINDINGS, AND
RESOLUTION CONSTITUTES A CONTRACT
SECTION 101. DEFINITIONS. In addition to the to Ims defined elsewhere in this
Resolution, as used in this Resolution, the following terms shall have the following meanings:
"Accreted Value" shall mean, as of any date of computation with respect to any Capital
Appreciation Bond, an amount equal to the principal amount of such Capital Appreciation Bond
(the principal amount on the date of original issuance) plus the interest accrued on such Capital
Appreciation Bond from the date of delivery to the original purchasers thereof to the Interest
Payment Date next preceding the date of computation or the date of computation if an Interest
Payment Date, such interest to accrue at a rate not exceeding the' legal rate provided for in the
resolution of the Commission providing for the issuance of such Bonds, compounded
periodically at the times provided for in the resolution of the Commission providing for the
issuance of such Bonds, plus, with respect to matters related to the payment upon redemption or
acceleration of the Capital Appreciation Bonds, if such date of computation shall not be an
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Interest Payment Date, a portion of the difference between the Accreted Value as of the
immediately preceding Interest Payment Date (or the date of original issuance if the date of
computation is prior to the first Interest Payment Date succeeding the date of original issuance)
and the Accreted Value as of the immediately succeeding Interest Payment Date, calculated
based on the assumption that Accreted Value accrues in equal daily amounts on the basis of a
year of twelve 30-day months.
"Act" shall have the meaning ascribed to it in the recitals to this Resolution.
"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 and times of such deposits to be determined in the
Mayor's Certificate with respect to the Series 2015 Bonds or pursuant to a resolution of the
Commission relating to any other Series of Bonds with respect to such Bonds.
"Annual Debt Service Requirement" for any period, as applied to the Bonds of any
Series, shall mean the respective amounts which are needed to provide:
(a) for paying the interest on all Bonds of such Series then Outstanding which is
payable on each Interest Payment Date in such period,
(b) for paying the principal of all Serial Bonds of such Series then Outstanding which
is payable upon the maturity of such Serial Bonds in such period, and
(c) the Amortization Requirements, if any, for the Term Bonds of such Series for
such period.
For purposes of computing (a), (b) and (c) above, any principal, interest or Amortization
Requirements due on October 1 in a Fiscal Year shall be deemed due in the preceding Fiscal
Year.
The following rules shall apply in determining the amount of the Annual Debt Service
Requirement for any period:
(a) With respect to Variable Rate Bonds, the interest rate shall be assumed to be the
average rate of interest for all Variable Rate Bonds for the prior Fiscal Year or portion thereof
while said Bonds were Outstanding or if there were no Variable Rate Bonds Outstanding
during such prior Fiscal Year, then the lesser of(i) the initial rate of interest on such Variable
Rate Bonds and (ii) the average rate of interest for the prior Fiscal Year under a published
variable interest rate index selected by the then financial advisor to the City which is generally
consistent with the rate of interest such Bonds shall bear; "average rate" with respect to
Outstanding Variable Rate Bonds shall mean the rate determined by dividing the total
annualized amount of interest paid on Variable Rate Bonds in such Fiscal Year or portion
thereof by the average principal amount of Variable Rate Bonds Outstanding during such
Fiscal Year or portion thereof.
(b) In the case of Put Bonds, the "put" date or dates shall be ignored if the source for
payment of said "put" is a Credit Facility or a Liquidity Facility and the stated dates for
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Amortization Requirements and principal payments shall be used, and in the case of Bonds
secured by a Credit Facility or a Liquidity Facility, the terms of the reimbursement obligation to
the issuers thereof shall be ignored and the stated dates for Amortization Requirements for Term
Bonds and principal payments shall be used; provided, however, that during any period of time
after the issuer of a Credit Facility or a Liquidity Facility has advanced funds thereunder, the
reimbursement obligation of which is payable from and secured on a parity with the Bonds and
before such amount is repaid, Annual Debt Service Requirements shall include the principal
amount so advanced and interest thereon, in accordance with the principal repayment schedule
and, interest rate or rates specified in the Credit Facility or Liquidity Facility, in lieu of the stated
principal of and Amortization Requirements and interest on such Bonds;
(c) In the case of Extendible Maturity Bonds, the Bonds shall be deemed to mature
on the later of the stated maturity date or the date to which such stated maturity date has been
extended;
(d) In the case of Capital Appreciation Bonds, the principal and interest portions of
the Accreted Value of Capital Appreciation Bonds becoming due at maturity or by virtue of an
Amortization Requirement shall be included in the calculations of accrued and unpaid Annual
Debt Service Requirements in the year in which said principal and interest portions are due and
payable;
(e) In the case of Capital Appreciation and Income Bonds, the principal and interest
portions of the Appreciated Value of Capital Appreciation and Income Bonds shall be included
in the calculations of accrued and unpaid Annual Debt Service Requirements in the year in
which said principal and interest portions are due and payable;
(f) In the case of Balloon Bonds or Interim Bonds, the debt service requirements of
the Balloon Bonds or Interim Bonds may be excluded and in lieu thereof the Balloon Bonds or
Interim Bonds shall be viewed, for purposes of the computation of Annual Debt Service
Requirements, as debt securities having a comparable Federal tax status as such Balloon Bonds
or Interim Bonds, hypothetically maturing in substantially equal annual payments of principal
and interest over a period of not more than 30 years from the date of issuance thereof, bearing
interest at a fixed rate per annum equal to the average interest rate per annum for such debt
securities on the date of issuance of the Balloon Bonds or Interim Bonds and issued by issuers
having a credit rating, issued by Moody's Investors Services, Inc. or any successors thereto or
Standard & Poor's Ratings Services or any successors thereto comparable to that of the City, as
shown by a certificate of an underwriting or investment banking firm experienced in marketing
such securities; and
(g) to the extent that the City has entered into an Interest Rate Swap with respect to
any Bonds and notwithstanding the provisions of clauses (a) through (f) above, while the Interest
Rate Swap is in effect and the Counterparty has not defaulted thereunder, the interest rate with
respect to the principal amount of such Bonds equal to the "notional" amount specified in the
Interest Rate Swap shall be assumed to be (i) if the City's payment obligations under the Interest
Rate Swap are computed based upon a fixed rate of interest, the actual rate of interest upon
which the City's payment obligations are computed under such Interest Rate Swap and (ii) if the
City's payment obligations under the Interest Rate Swap are computed based upon a variable rate
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of interest, the average rate of interest for the City's payment obligations under the Interest Rate
Swap for the prior Fiscal Year or portion thereof while the Interest Rate Swap was in effect or if
the Interest Rate Swap was not in effect during such prior Fiscal Year, then the lesser of(x) the
initial rate of interest for the City's payment obligations under the Interest Rate Swap and (y) the
average rate of interest for the prior Fiscal Year under a published variable interest rate index
agreed upon by the City and the Counterparty which is generally consistent with the formula
which shall be used to determine the City's payment obligations; "average rate" with respect to
the City's payment obligations for the prior Fiscal Year shall mean the rate determined by
dividing the total annualized amount paid by the City under the Interest Rate Swap in such Fiscal
Year or portion thereof by the "notional" amount specified in the Interest Rate Swap for such
Fiscal Year;
(h) If all or a portion of the principal of 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 Annual Debt Service Requirements.
"Appreciated Value" shall mean (i) as of any date of computation with respect to any
Capital Appreciation and Income Bond up to the Interest Commencement Date provided for in
the resolution of the Commission providing for the issuance of such Bond, an amount equal to
the principal amount of such Bond (the principal amount at its initial offering) plus the interest
accrued on such Capital Appreciation and Income Bond from the date of delivery to the original
purchasers thereof to the Interest Payment Date next preceding the date of computation or the
date of computation if an Interest Payment Date, such interest to accrue at a rate not exceeding
the legal rate provided for in the resolution of the Commission providing for the issuance of such
Bonds, compounded periodically, plus, with respect to the payment upon redemption or
acceleration of the Capital Appreciation and Income Bonds, if such date of computation shall not
be an Interest Payment Date, a portion of the difference between the Appreciated Value as of the
immediately preceding Interest Payment Date (or the date of original issuance if the date of
computation is prior to the first Interest Payment Date succeeding the date of original issuance)
and the Appreciated Value as of the immediately succeeding Interest Payment Date calculated
based upon an assumption that Appreciated Value accrues in equal daily amounts on the basis of
a year of twelve 30-day months and (ii) as of any date of computation on and after the Interest
Commencement Date, the Appreciated Value on the Interest Commencement Date.
"Balloon Bonds" shall mean any Bonds issued under this Resolution, interest on which is
payable periodically and twenty five percent (25%) or more of the original principal amount of
which matures during any one Fiscal Year and for which maturing principal amount
Amortization Requirements have not been designated in the resolution of the Commission
authorizing the issuance of such Bonds.
"Bond Counsel" shall mean Squire Patton Boggs (US) LLP, or another lawyer or law
firm selected by the City of favorable national reputation for skill in matters relating to tax-
exempt municipal bonds.
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"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.
"Capital Appreciation Bonds" shall mean any Bonds issued under this Resolution as to
which interest is compounded periodically on each of the applicable periodic dates designated
for compounding and payable in an amount equal to the then current Accreted Value only at the
maturity, earlier redemption or other payment date therefor, all as so provided for by subsequent
proceedings of the Commission relating to the issuance thereof, and which may be either Serial
Bonds or Term Bonds.
"Capital Appreciation and Income Bonds" shall mean any Bonds issued under this
Resolution as to which accruing interest is not paid prior to the Interest Commencement Date
provided for in the resolution authorizing such Bonds and the Appreciated Value for such Bonds
is compounded periodically on certain designated dates prior to the Interest Commencement
Date for such Series of Capital Appreciation and Income Bonds, all as so provided for by
subsequent proceedings of the Commission relating to the issuance thereof and which may be
either Serial Bonds or Term Bonds.
"Chief Financial Officer" shall mean the Chief Financial Officer of the City or his or her
designee or the officer succeeding to his or her principal functions.
"City" shall mean the City of Miami Beach, Florida, a municipal corporation duly
organized and existing under the Constitution and laws of the State of Florida, and any successor
thereto.
"City Attorney" shall mean the City Attorney of the City, his or her designated assistant
or the officer succeeding to his or her principal functions.
"City Clerk" shall mean the Clerk of the City or his or her designee or the officer
succeeding to his or her principal functions.
"City Manager" shall mean the City Manager of the City or his or her designee or the
officer succeeding to his or her principal functions.
"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.
"County" shall mean Miami-Dade County, Florida, a political subdivision of the State of
Florida, and any successor thereto.
"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
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providing such facility irrevocably agrees to provide funds to make payment of the principal of
and interest on Bonds.
"Defeasance Obligations" shall mean to the extent permitted by law:
(i) Direct general obligations of, or obligations the payment of the principal
of which and the interest on which is unconditionally guaranteed by, the United States of
America; and
(ii) 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
(iii) Evidences of ownership of proportionate interests in future interest and
principal payments on specified obligations described in (i) 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 (i) 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
(iv) Obligations described in Section 103(a) of the Internal Revenue Code of
1986, as amended, 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 holders of such obligations or securities described
in clauses (i) or (ii) above, 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 securities described in clauses (i) or (ii) above
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.
"Extendible Maturity Bonds" shall mean Bonds the maturities of which, by their terms,
may be extended by and at the option of the Holders of the Bonds or 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 City in accordance with law.
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"Interest Commencement Date" shall mean, with respect to any particular Capital
Appreciation and Income Bonds, the date provided for in the resolution providing for the
issuance of such Bonds (which date must be prior to the maturity date for such Bonds) after
which interest accruing on such Bonds shall be payable semi-annually or otherwise on a periodic
basis prior to maturity, with the first such payment date being the applicable Interest Payment
Date immediately succeeding such Interest Commencement Date.
"Interest Payment Date" shall mean such dates on which interest on the Bonds is payable
on any Bonds that are Outstanding, as shall be established in the Mayor's Certificate with respect
to the Series 2015 Bonds or pursuant to the resolution of the Commission providing for the
issuance of any other Series of Bonds.
"Interest Rate Swap" shall mean an agreement in writing by and between the City and
another entity (the "Counterparty") pursuant to which (i) the City agrees to pay to the
Counterparty an amount, either at one time or periodically, which is determined by reference to a
rate of interest or formula and a "notional" amount specified in such agreement, during the
period specified in such agreement and (ii) the Counterparty agrees to pay to the City an amount,
either at one time or periodically, which is determined by reference to a different rate of interest
or formula but the same "notional" amount specified in such agreement, during the period
specified in such agreement.
"Interim Bonds" shall mean any Bonds issued under this Resolution on an interim basis
which are expected to be repaid from the proceeds of Bonds or other indebtedness.
"Liquidity Facility" shall mean a letter of credit, line of credit, policy of municipal bond
insurance, guaranty, purchase agreement or similar facility in which the entity providing such
facility agrees to provide funds to pay the purchase price of Put Bonds upon their tender by the
Holders of Put 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 Annual Debt Service
Requirement in the then current or any succeeding Fiscal Year.
"Mayor" shall mean the Mayor of the City or in the absence or disability of the Mayor of
the City, the Vice Mayor of the City or the officers succeeding to their principal functions.
"Mayor's Certificate" shall mean the certificate to be executed by the Mayor 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.
"Outstanding" when used with reference to the Bonds, shall mean, as of any date of
determination, all Bonds theretofore authenticated and delivered except;
(i) Bonds theretofore cancelled by the Registrar or delivered to the Registrar
for cancellation;
(ii) Bonds which are deemed paid and no longer Outstanding as provided
herein;
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(iii) 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
(iv) 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 City.
"Paying Agent" shall mean the City or any bank or trust company or any successor bank
or trust company appointed by the City to act as Paying Agent hereunder.
"Permitted Investments" shall mean and include such obligations as shall be permitted to
be legal investments of the City by the laws of the State.
"Pledged Funds" shall mean, collectively, the Resort Tax Revenues and, except for
moneys, securities and instruments in the Rebate Fund and with respect to any Series of Bonds
not secured by the Debt Service Reserve Account, moneys, securities and instruments held in the
Debt Service Reserve Account, all moneys, securities and instruments held in the Funds and
Accounts created and established by this Resolution.
"Put Bonds" shall mean the Bonds which by their terms may be tendered by and at the
option of the owner thereof for payment by the City prior to the stated maturity thereof.
"Registrar" shall mean the City or a bank or trust company appointed by the City, located
within or without the State of Florida, who or which shall maintain the registration books of the
City and be responsible for the transfer and exchange of the Bonds, and who or which may also
be the Paying Agent for 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 there in. The issuer providing
such facility shall be a municipal bond insurer rated, at the time of deposit in the Debt Service
Reserve Account, in any of the three highest rating categories (without regard to any gradations
within such 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 a
banking association, bank or trust company or branch thereof rated, at the time of deposit into the
Debt Service Reserve Account, in any of the three highest rating categories (without regard to
any gradations within such 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.
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"Reserve Account Requirement" shall mean the lesser of (a) Maximum Annual Debt
Service for all Outstanding Bonds in the current or any subsequent Fiscal Year, or (b) the
maximum amount allowed to be funded from proceeds of Bonds under the Code; provided that,
if the Mayor's Certificate in the case of the Series 2015 Bonds or if the supplemental resolution
corresponding to any other Series of Bonds provides for the establishment of a separate
subaccount in the Debt Service Reserve Account to secure only the Series 2015 Bonds or such
other Series of Bonds (with such Series 2015 Bonds or other Series of Bonds having no claim on
the other moneys deposited to the credit of the Debt Service Reserve Account), the Reserve
Account Requirement for the Series 2015 Bonds or such other Series of Bonds shall be
calculated as provided for in the Mayor's Certificate or in the corresponding supplemental
resolution; and provided further that, if the Mayor's Certificate in the case of the Series 2015
Bonds or if the supplemental resolution corresponding to any other Series of Bonds provides that
the Series 2015 Bonds or such other Series of Bonds shall not be secured by the Debt Service
Reserve Account or any separate subaccount therein, the Reserve Account Requirement shall be
calculated without taking into account the Series 2015 Bonds or such other Series of Bonds. The
City shall be permitted "to provide all or a portion of the Reserve Account Requirement by the
execution and delivery of a Reserve Account Insurance Policy or a Reserve Account Letter of
Credit.
"Resolution" shall mean this Resolution as the same may from time to time be amended
and supplemented in accordance with the terms hereof
"Resort Tax" shall mean the tax described in the recitals to this Resolution levied
pursuant to the Act.
"Resort Tax Revenues" shall mean the proceeds of the Resort Tax.
"Serial Bonds" shall mean the bonds of an issue which shall be stated to mature in annual
or semi-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 Resort Tax Revenue Bonds, Series 2015 authorized
to be issued under this Resolution in the aggregate principal amount not to exceed $240,000,000.
"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.
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"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.
"Underwriters" shall mean Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Citigroup Global Markets Inc., Morgan Stanley & Co., LLC and Siebert Brandford Shank & Co.,
L.L.C.
"Variable Rate Bonds" shall mean Bonds, which may be either Serial Bonds or Term
Bonds, issued with a variable, adjustable, convertible or other similar rate which is not fixed in
percentage for the entire term thereof at the date of issue.
Words of the masculine gender shall be deemed and construed to include correlative
words of the feminine and neuter genders. Words importing singular number shall include the
plural number in each case and vice versa. Words defined in Section 101 hereof that appear in
this Resolution in lower case form shall have the meanings ascribed to them in the definitions in
Section 101 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. The word "person" shall include corporations and associations, including
public bodies, as well as natural persons, unless the context shall otherwise indicate. The word
"may" shall mean "may, but shall not be required to" and the word "including" shall mean
"including, without limitation." The word "Bond" or "Bonds" and the words "revenue bond" or
"revenue bonds" shall mean any Bond or Bonds or all of the Bonds, as the case may be, issued
under the provisions of this Resolution. The word "Resolution" shall include this Resolution and
each resolution supplemental hereto.
SECTION 102. AUTHORITY FOR THIS RESOLUTION. This Resolution is
adopted pursuant to the provisions of the Act.
r
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 City is authorized to levy and collect the Resort Tax pursuant to the Act.
(b) The principal of, premium, if any, 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 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 a lien upon any property
owned by or situated within the corporate territory of the City, except as provided herein with
respect to the Pledged Funds.
(c) The estimated Pledged Funds will be sufficient to pay all principal of, premium, if
any, and interest on the Bonds to be issued hereunder, as the same become due, and to make all
sinking fund, reserve or other payments required by this Resolution.
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(d) Due to the character of the Series 2015 Bonds, prevailing market conditions, the
uncertainty inherent in a competitive bidding process and the recommendations of the Financial
Advisor that the sale of the Series 2015 Bonds be by negotiation, the sale of the Series 2015
Bonds on the basis of negotiated sale rather than a public sale by competitive bid is in the best
interest of the City and is hereby authorized.
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 City and such Bondholders, and the covenants and agreements herein set forth to be
performed by the City 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, Bonds of the City to be known as "City of Miami
Beach, Florida Resort Tax Revenue Bonds, Series 2015" or such other designation as shall be set
forth in the Mayor's Certificate (the "Series 2015 Bonds"), are hereby authorized to be issued in
an aggregate principal amount not to exceed Two Hundred Forty Million Dollars
($240,000,000), for the purpose of providing funds to (i) finance the Series 2015 Project, (ii)
fund as necessary the Debt Service Reserve Account and (iii) pay certain costs of issuance of the
Series 2015 Bonds.
Subject to the limitations contained herein, the Series 2015 Bonds shall be issued in such
aggregate amount, shall be dated, shall mature on such dates and in such years, but not later than
December 31, 2045, and in such amounts, shall be issued as Tax-Exempt Bonds, 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 rates not to exceed the maximum rate permitted by law, shall
have such Amortization Requirements, if any, shall be subject to redemption at such times, at
such prices and pursuant to such notice provisions, as shall be determined by the City Manager,
after consultation with the Chief Financial Officer and the Financial Advisor, and set forth in a
Mayor's Certificate.
The Commission hereby appoints U.S. Bank National Association, as Registrar and
Paying Agent for the Series 2015 Bonds.
If the City Manager determines, in reliance upon the recommendations of the Chief
Financial Officer and the Financial Advisor, that there is an economic benefit to the City 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 City Manager 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 City Manager 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 Mayor is authorized, after consultation with the City Attorney, 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 Mayor of any such
agreements for and on behalf of the City to be conclusive evidence of the City'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.
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 with such changes, modifications, insertions,
omissions and filling-in of blanks as may be approved by the Mayor, after consultation with the
Chief Financial Officer and the City Attorney. The Mayor or his designee, after consultation
with the Chief Financial Officer and the City Attorney, is hereby authorized to deem the
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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
Mayor and the City Manager are hereby authorized to execute the Official Statement with
respect to the Series 2015 Bonds (the "Official Statement") on behalf of the City, in substantially
the form of the draft of the Preliminary Official Statement presented at this meeting, with such
changes, modifications, insertions, omissions and filling-in of blanks as may be approved by the
Mayor, after consultation with the Chief Financial Officer and the City Attorney, with such
execution to be deemed conclusive evidence of the City's approval of the Preliminary Official
Statement and the Official Statement. The use of the Preliminary Official Statement and the
final Official Statement in the marketing and sale of the Series 2015 Bonds is hereby approved.
For the reasons contained in this Resolution, the negotiated sale of the Series 2015 Bonds
to the Underwriters is hereby authorized and approved. The Commission hereby approves the
form of the Bond Purchase Agreement (the "Bond Purchase Agreement"), for the purchase of the
Series 2015 Bonds by the Underwriters, a copy of which has been presented at this meeting.
Upon compliance by the Underwriters with the requirements of Florida Statutes, Section
218.385, the Mayor is hereby authorized to execute the Bond Purchase Agreement in connection
with the sale of the Series 2015 Bonds to the Underwriters, in substantially the form presented at
this meeting, subject to such changes, modifications, insertions, omissions and filling-in of
blanks therein as may be necessary to evidence the terms of the Series 2015 Bonds and such
additional changes as may be approved by the City Manager, after consultation with the Chief
Financial Officer and the City Attorney. The purchase price (not including original issue
premium or original issue discount) at which the Series 2015 Bonds shall be awarded to the
Underwriters shall be determined by the City Manager, after consultation with the Chief
Financial Officer and the Financial Advisor, but shall not be less than 99% of the principal
amount of the Series 2015 Bonds (the "Minimum Purchase Price") and at a true interest cost rate
("TIC") not to exceed 6.00% (the "Maximum TIC"). The execution and delivery by the Mayor
of the Bond Purchase Agreement for and on behalf of the City shall be deemed conclusive
evidence of the approval of the City of any such changes, modifications, insertions, omissions or
filling-in of blanks.
For the benefit of the Holders and beneficial owners from time to time of the Series 2015
Bonds, the City agrees, in accordance with and as the only obligated person with respect to the
Series 2015 Bonds under the Rule, to provide or cause to be provided certain 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 the terms
of the City's continuing disclosure agreement, the Chief Financial Officer is hereby authorized
and directed to enter into and deliver, in the name and on behalf of the City, a Disclosure
Dissemination Agent Agreement (the "Continuing Disclosure Agreement"), with Digital
Assurance Certification, L.L.C. ("DAC"), which is hereby appointed as disclosure dissemination
agent with respect to the Series 2015 Bonds, in substantially the form presented at the meeting at
which this Resolution was considered, subject to such changes, modifications, insertions,
omissions and filling-in of blanks therein as may be determined and approved by the Chief
Financial Officer, after consultation with the City Attorney. The execution of the Continuing
Disclosure Agreement, for and on behalf of the City by the Chief Financial Officer, shall be
deemed conclusive evidence of the City's approval of the Continuing Disclosure Agreement.
Notwithstanding any other provisions of this Resolution, any failure by the City to comply with
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1
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 Chief Financial Officer is further authorized to establish procedures in order to
ensure compliance by the City with the Continuing Disclosure Agreement, including the timely
provision of information and notices. Prior to making any filing in accordance with such
agreement, the Chief Financial Officer may consult with, as appropriate, the City Attorney or
Bond Counsel. The Chief Financial Officer, acting in the name and on behalf of the City, shall
be entitled to rely upon any legal advice provided by the City Attorney or Bond Counsel in
determining whether a filing should be made.
SECTION 202. DESCRIPTION OF BONDS. Unless otherwise specified by the City
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
Federal income tax purposes of the interest on any Tax-Exempt Bonds, the Registrar may, at the
written direction of the City, 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, interest rate 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 City in subsequent proceedings, the Bonds of a Series
shall be dated as determined in a Mayor's Certificate as to the Series 2015 Bonds and by
subsequent resolution of the City relating to the issuance of any other Series of Bonds; shall bear
interest, which may be fixed or variable, from their date of initial issuance at a 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 City
(held by the Registrar) at the close of business on the 15th day of the calendar month preceding
an Interest Payment Date (in each case a "Regular Record Date"), except for (i) Capital
Appreciation Bonds which shall bear interest as described under the defined term Accreted
Value, payable only upon redemption, acceleration or maturity thereof and (ii) Capital
Appreciation and Income Bonds which shall bear interest as described under the defined term
Appreciated Value, payable on the amount due at maturity but only from and after the Interest
Commencement Date; shall be in the denomination of $5,000 or any integral multiple thereof,
except for (i) Capital Appreciation Bonds, which may be initially issued in any denomination so
long as their Accreted Value at maturity shall be $5,000 or any integral multiple thereof, (ii)
Capital Appreciation and Income Bonds, which may be initially issued in any denomination so
long as their Appreciated Value at the Interest Commencement Date shall be $5,000 or any
integral multiple thereof and (iii) any other Series of Bonds as provided for in a subsequent
resolution of the City relating to any other Series of Bonds; and shall mature on such dates, in
such years and in such amounts, as determined in a Mayor's Certificate as to the Series 2015
Bonds and as provided for by subsequent resolution of the City relating to any other Series of
Bonds. Notwithstanding anything in this paragraph to the contrary, any interest not punctually
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paid on a Regular Record Date shall forthwith cease to be payable to the registered Holder on
such Regular Record Date and may be paid at 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
mailed, first-class postage prepaid, not less than 10 days prior to such special record date to such
registered Holder.
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.
The Bonds issued hereunder may be Serial Bonds or Term Bonds and may be Variable
Rate Bonds, Capital Appreciation Bonds, Capital Appreciation and Income Bonds, Extendible
Maturity Bonds, Balloon Bonds, Interim Bonds, Put Bonds and such other types of bonds as may
be marketable from time to time, including, without limitation, Taxable Bonds and Bonds issued
in book-entry form, as determined by subsequent proceedings of the City.
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 by subsequent resolutions of the City, which subsequent resolutions may
contain redemption notice provisions. 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.
Unless otherwise provided in a supplemental resolution relating to any Series of Bonds
with respect to such Bonds, at least thirty (30), but not more than sixty (60), days before the
redemption date, a notice of any such redemption, either in whole or in part, signed by the Chief
Financial Officer, (a) shall be filed by the City with the Registrar and (b) shall be mailed by the
Registrar, first class mail, postage prepaid, to all registered owners of Bonds to be redeemed at
their addresses as they appear on the registration books hereinabove provided for, but failure to
mail any such notice to any registered owner shall not affect the validity of the proceedings for
such redemption. Each such notice shall specify the redemption date and the place or places
where amounts due upon such redemption will be payable and, if less than all of the Bonds are to
be redeemed, the numbers or other distinguishing marks of such Bonds to be redeemed in part
and the respective portions thereof to be redeemed. Subject to the next succeeding paragraph,
such notice shall further state that on such date there shall become due and payable upon each of
the Bonds to be redeemed the redemption price or the specified portions thereof in the case of
Bonds to be redeemed in part only, together with interest accrued to the redemption date, and
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that from and after such date interest thereon shall cease to accrue and be payable on such Bonds
or portions thereof so redeemed.
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 Registrar 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 City 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 City
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 City 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
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.
Upon the payment of the redemption price of Bonds being redeemed, each check or other
transfer of funds issued for such purpose shall bear a description of the issue and maturity of the
Bonds being redeemed with the proceeds of such check or other transfer.
The provisions concerning the manner of giving notice of redemption may be changed or
varied or supplemented in any supplemental resolution applicable to any Series of Bonds issued
under this Resolution for the purpose of complying with any governmental or industry standards
from time to time in effect.
SECTION 204. EXECUTION OF BONDS. The Bonds shall be executed in the name
of the City by the Mayor, and the seal of the City or a facsimile thereof shall be affixed thereto or
imprinted or reproduced thereon and attested by the City Clerk, 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
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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 City 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 City 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 the back of each of the Bonds of such Series shall be
signed with the facsimile signatures of the Mayor and City Clerk, and the City may adopt and
use for that purpose the facsimile signature of any person who shall have been such Mayor and
City Clerk at any time on or after the date of the Bonds, notwithstanding that he may have ceased
to be such Mayor and City Clerk 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 registered Holder or his duly authorized attorney and upon
payment by such Holder of any charges which the Registrar or the City may make as provided in
this Section, the Bonds may be exchanged for Bonds of the same aggregate principal amount of
the same Series, interest rate 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 City 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 City shall cause to be issued in the name of the transferee a new Bond or Bonds
of the same aggregate principal amount of the same Series, interest rate and maturity of any other
authorized denominations.
The City, 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 City, 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 City shall execute and the Registrar shall authenticate and deliver Bonds in
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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 City 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 City 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.
Except as may otherwise be provided with respect to Put Bonds in the proceedings of the
City providing for the issuance thereof, 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 City, 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 City 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 City 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 City and, in the case of
any lost, stolen or destroyed Bond, there shall first be furnished to the City and the Registrar
evidence of such loss, theft, or destruction satisfactory to the City 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 City may
direct the Paying Agent to pay the same without surrender thereof. The City 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 City, 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
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 City in subsequent proceedings, the definitive
Bonds of each Series shall be lithographed, printed or typewritten. Until the definitive Bonds are
prepared, the Mayor and City Clerk may execute and the Registrar may authenticate, in the same
manner as is provided in Section 204, 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
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denominations or any whole multiples thereof, and with such omissions, insertions and variations
as may be appropriate to such temporary Bonds. The City at its own expense shall prepare and
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
principal 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 changes, modifications, insertions, omissions and
filling-in of blanks as may be necessary and desirable and authorized or permitted by this
Resolution or a Mayor'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 City. The City, 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 Mayor or the City Manager 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 CITY. The
Bonds shall not be and shall not constitute an indebtedness of the City, within the meaning of
any constitutional, statutory or charter provisions or limitations; 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, or taxation in any form of any real or personal property therein, or the application of any
other funds of the City to pay the Bonds or the interest thereon or the making of any sinking fund
or reserve payments provided for herein.
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 Resort Tax Revenues
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 of or in 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; COST OF ISSUANCE FUND.
(a) All moneys received by the City from the sale of the Series 2015 Bonds issued
pursuant to this Resolution, together with other moneys lawfully available therefor, if any, shall
be disbursed as provided in the Mayor's Certificate.
(b) All moneys received by the City 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 Commission relating to such Series of Bonds.
(c) There is hereby created and established a special fund designated as the
"Construction Fund", which fund shall be held and administered by the City. 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 projects being 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 City to pay costs of projects for which the applicable Series of
Bonds was issued, including, but not limited to, the payment of capitalized interest on such
Bonds in such amounts as the City shall determine to be appropriate. If for any reason the
moneys in the Construction Fund, or any part thereof including any investment earnings on
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deposit therein, are not necessary for, or are not applied to the purposes provided in this
Resolution or a supplemental resolution relating to a Series of Bonds for the Construction Fund,
then such unapplied proceeds, upon certification of a duly authorized officer of the City that such
surplus proceeds are not needed for the purposes of the Construction Fund, shall be disbursed in
the following order:
First, to the Debt Service Reserve Account, hereinafter created and established, to
the full extent necessary to make the amount then on deposit therein equal to the Reserve
Account Requirement, as applicable, on the Bonds then Outstanding.
Second, the balance, if any, to the redemption or purchase or payment of principal
of Outstanding Bonds or for any other lawful purpose.
Moneys on deposit in the Construction Fund may be invested and reinvested to the fullest
extent practicable in Permitted Investments maturing not later than such date or dates on which
such moneys will 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 Construction Fund and used for the purposes
thereof.
(d) There is hereby created and established a special fund designated as the "Cost of
Issuance Fund", which fund shall be held and administered by the City. There shall be created
separate accounts within the Cost of Issuance Fund for the deposit of proceeds of each Series of
Bonds to pay the costs of issuance of such Series of Bonds as the City shall determine are
appropriate.
(e) 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 CITY. The City 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 City will not take any action or omit to take any action which action
or omission, if reasonably expected on the date of initial issuance and delivery of the Bonds,
would result in inclusion in gross income for Federal income tax purposes under Section 103(a)
of the Code, of interest on Tax-Exempt Bonds. Particularly, the City will not take any action or
omit to take any action, which action or omission, if reasonably expected on the date of the
initial issuance and delivery of the Tax-Exempt Bonds, would have caused any of the Tax-
Exempt Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code.
(2) The City shall comply with the arbitrage rebate covenants as provided in
Section 304(E) hereof.
B. LEVY AND COLLECTION OF RESORT TAX. The City does further hereby
covenant and agree that as long as any of the principal of or interest on any Series of Bonds
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issued pursuant to this Resolution is unpaid, or payment thereof not duly provided for, it will not
repeal the Miami Beach City Code provisions pursuant to which the Resort Tax is levied, will
not reduce the rates of the Resort Tax, or amend or modify said City Code provisions, in any
manner so as to impair or adversely affect the power and obligation of the City to levy and
collect the Resort Tax, or impair or adversely affect in any manner the pledge of the Pledged
Funds made herein, or the rights of holders of Bonds issued pursuant to this Resolution, and the
City shall be unconditionally and irrevocably obligated, as long as any of the Bonds, or interest
thereon, are Outstanding and unpaid, to levy and collect the Resort Tax at not less than the rates
being levied by the City on the date of issuance of the Series 2015 Bonds, to the full extent
necessary to pay the principal of and interest on the Bonds and any other payments provided
herein.
C. RESORT TAX FUND. As soon as the same are received by the City, all of the
Resort Tax Revenues shall be forthwith deposited in a special fund designated as the "Resort Tax
Fund". The Resort Tax Fund shall constitute a trust fund for the purposes provided in this
Resolution and shall be held and administered by the City separate and distinct from all other
funds of the City and used only for the purposes and in the manner provided in this Resolution.
D. DISPOSITION OF RESORT TAX REVENUES. There is hereby created and
established the "Resort Tax Sinking Fund" (hereinafter referred to as the "Sinking Fund").
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 Resort Tax Fund and the Sinking Fund shall be held and
administered by the City.
All Resort Tax Revenues at any time on deposit in the Resort Tax Fund shall be disposed
of only in the following manner:
(1) Resort Tax Revenues shall first be used, to the full extent necessary, for
deposit into the Interest Account in the Sinking Fund, on the fifteenth (15th) day of each month,
beginning with the fifteenth (15th) day of the first full calendar month following the date on
which any or all of the Bonds are delivered to the purchaser thereof, of such sums as shall be
sufficient to pay one-sixth (1/6th) of the interest becoming due on the Bonds on the next semi-
annual Interest Payment Date; provided, however, that such monthly deposits 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 and, provided further, that in the event the City has issued
additional parity Variable Rate Bonds or entered into any Interest Rate Swaps pursuant to the
provisions of this Resolution, Resort Tax Revenues shall be deposited at such other or additional
times and amounts as necessary to pay the interest becoming due on the Variable Rate Bonds on
the next Interest Payment Date or make the payments due under the Interest Rate Swaps on a
parity with interest due on the Bonds, all in the manner provided in the applicable supplemental
resolution.
The City shall, on 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 so transferred so that the Paying
Agent may give appropriate notice required to provide for the payment of such deficiency from
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any Reserve Account Insurance Policy or Reserve Account Letter of Credit on deposit in the
Debt Service Reserve Account.
In the event that the period to elapse between the date of the delivery of the Bonds
and the next semi-annual Interest Payment Date will be other than six (6) months, then such
monthly payments shall be adjusted to provide the required interest amount becoming due and
payable on the next Interest Payment Date.
(2) (a) Resort Tax Revenues shall next be used, to the full extent necessary,
for deposit in the Principal Account in the Sinking Fund, on the fifteenth (15th) day of each
month in each year, of one-sixth (1/6th) of the next maturing principal amount of Serial Bonds
which will mature and become due on such semi-annual maturity dates and one-twelfth (1/12th)
of the next maturing principal amount of Serial Bonds which will mature and become due on
such annual maturity dates, beginning on such dates, as shall hereafter be determined by
subsequent proceedings of the City; provided, however, that such monthly deposits 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 City 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 so transferred 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.
In the event the period to elapse between the date of delivery of the Bonds and the next
principal payment date will be other than six (6) months, in the case of Serial Bonds which
mature semi-annually, or twelve (12) months, in the case of Serial Bonds which mature annually,
then such monthly payments shall be increased or decreased, as appropriate, in sufficient
amounts to provide the required principal amount maturing on the next principal payment date.
Any monthly payment of Resort Tax Revenues to be deposited as set forth above for the purpose
of meeting payments of principal of the Bonds, shall be adjusted, as appropriate, to reflect the
frequency of principal payments applicable to such Series.
(b) Resort Tax Revenues shall next be used, to the full extent
necessary, for deposit into the Bond Redemption Account in the Sinking Fund on the fifteenth
(15th) day of each month in each year, beginning on such date, of such Amortization
Requirements as may be required for the payment of the Term Bonds payable from the Bond
Redemption Account, as shall hereafter be determined by subsequent proceedings of the City.
The moneys in the Bond Redemption Account shall be used solely for the purchase or
redemption of the Term Bonds payable therefrom. The City 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 City may purchase said Term Bonds at prices not
greater than the redemption price of such Term Bonds on the next ensuing redemption date. The
City shall be mandatorily obligated to use any moneys in the Bond Redemption Account for the
redemption prior to maturity of such Term Bonds in such manner and at such times as shall be
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determined by subsequent proceedings of the City. If, by the application of moneys in the Bond
Redemption Account, the City 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 Chief Financial Officer
shall determine over the remaining payment dates.
No distinction or preference shall exist in the use of the moneys on deposit in the Resort
Tax Fund for payment into the Interest Account, the Principal Account and the Bond
Redemption Account, such accounts being on a parity with each other as to payment from the
Resort Tax Fund.
(3) Resort Tax Revenues shall next be used, to the full extent necessary, for
deposit into the Debt Service Reserve Account on the fifteenth (15th) day of each month in each
year, beginning with the fifteenth (15th) day of the first full calendar month following the date
on which any or all of the Bonds issued hereunder are delivered to the purchaser thereof, such
sums as shall be at least sufficient to pay an amount equal to one-sixtieth (1/60th) 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 applicable
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 applicable Reserve Account Requirement
for the Bonds Outstanding.
Notwithstanding the foregoing provisions, in lieu of or in substitute for the required
deposits of Resort Tax Revenues (including existing deposits of Resort Tax Revenues) into the
Debt Service Reserve Account, the City 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 in an amount equal to the difference between the
applicable Reserve Account Requirement for the Bonds Outstanding and the sums then on
deposit in the Debt Service Reserve Account, if any, 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 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 a disbursement is made under the Reserve
Account Insurance Policy or the Reserve Account Letter of Credit, the City shall be obligated to
either reinstate the maximum limits of such Reserve Account Insurance Policy or Reserve
Account Letter of Credit immediately following such disbursement equal to the applicable
Reserve Account Requirement for the Bonds Outstanding, or to deposit into the Debt Service
Reserve Account from the Resort Tax 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 applicable 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 Resort Tax
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Fund or any other fund or account held pursuant to this Resolution and available for such
purpose are insufficient therefor.
In the event that any moneys shall be withdrawn from the Debt Service Reserve Account
for payments into the Interest Account, Principal Account and Bond Redemption Account, such
withdrawals shall be subsequently restored in the manner described in the first paragraph of this
clause (3), from the first Resort Tax Revenues or funds available after all required payments
have been made into the Interest Account, Principal Account and Bond Redemption Account,
including any deficiencies for prior payments unless restored by the reinstatement of the
maximum limits of a Reserve Account Insurance Policy or Reserve Account Letter of Credit.
Any moneys in the Debt Service Reserve Account in excess of the applicable Reserve
Account Requirement for the Bonds Outstanding may, in the discretion of the City, be
transferred to and deposited in the Interest Account, the Principal Account or the Bond
Redemption Account as the City at its option may determine.
The Debt Service Reserve Account shall be valued at least once 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 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) Resort Tax Revenues shall next be used for the payment of any
subordinated obligations. hereafter issued by the City in accordance with Section 304(G) of this
Resolution, which subordinate obligations shall have such lien on the Resort Tax Revenues as
the City shall determine in the proceedings authorizing the issuance of such subordinated
obligations.
(5) Resort Tax Revenues shall next be used to make payments required under
Interest Rate Swap arrangements which are not payable from amounts deposited therefor
pursuant to Section 304(D)(1).
(6) Thereafter, the balance of any Resort Tax Revenues remaining in said
Resort Tax Fund shall, subject to Section 304(A), be used by the City for any lawful purposes;
provided, however, that none of such Resort Tax Revenues shall ever be used for the purposes
provided in this paragraph (6) unless all payments required in paragraphs (1) through (5) above,
including any deficiencies for prior payments and any amount 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 City's obligations
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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 Bond Redemption Account, as the case may be. If the amounts deposited in any
month pursuant to such sections shall be less than the amounts required, the requirement shall be
cumulative and the amount of the deficiency in any month shall be added to the amount
otherwise required to be deposited in each month thereafter until such time as all such
deficiencies have been made up.
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 or a Liquidity Facility, amounts deposited in such relevant account may be paid, to the
extent required, to the issuer of the Credit Facility or Liquidity Facility having theretofore made
said corresponding payment.
E. REBATE FUND. There is hereby created and established the "Rebate Fund,"
which fund shall be maintained separate and apart from all other funds and accounts held by the
City. Notwithstanding anything in this Resolution to the contrary, the City 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 certificate to be executed
and delivered by the City in connection with the issuance of each Series of Tax-Exempt Bonds.
The City shall make or cause to be made 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 City covenants for the benefit of the holders of Tax-
Exempt Bonds 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 City shall not be required to comply with the requirements of this Section 304(E)
in the event that the City obtains an opinion of 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 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 Resort Tax Fund, the Sinking Fund, including
the Interest Account, Principal Account, Bond Redemption Account and Debt Service Reserve
Account and the Cost of Issuance Fund and all other special funds (other than the Rebate Fund)
created and established by this Resolution shall constitute trust funds in favor of the Bondholders
and shall be invested at the direction of the City as provided in this Section 304(F).
Moneys on deposit in the Resort Tax Fund, Interest Account, Principal Account, Bond
Redemption Account, Cost of Issuance Fund and Rebate Fund may be invested 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 in Permitted
Investments maturing not later than the final maturity of any of the Bonds.
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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
City to transfer moneys from the Resort Tax Fund 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 City to transfer moneys from the
Resort Tax Fund to such account, unless the amount in such account shall exceed the applicable
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).
All income and earnings received from the investment and reinvestment of moneys in the
Cost of Issuance Fund shall be transferred to the Resort Tax Fund.
All income and earnings received from the investment and reinvestment of moneys in the
Rebate Fund shall be retained therein.
For the purpose of investing or reinvesting, the City 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 City 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. The designation and establishment of funds and accounts in and by this
Resolution (other than the Rebate Fund) shall not be construed to require the establishment of
any completely independent funds and accounts but rather is intended solely to constitute an
allocation of certain revenues and assets for certain purposes and to establish such certain
priorities for application of certain revenues and assets as herein provided.
G. ISSUANCE OF OTHER OBLIGATIONS PAYABLE OUT OF RESORT
TAX REVENUES. Except upon the conditions and in the manner provided in this Resolution,
the City 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 City may
enter into agreements with issuers of Credit Facilities and Liquidity Facilities which involve
liens on Resort Tax Revenues on a parity with that of the Series of Bonds or portion thereof
which is supported by such Credit Facilities or Liquidity Facilities and may enter into Interest
Rate Swaps which involve a lien on the Resort Tax Revenues on a parity with the lien of the
Bonds. 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, shall provide that such obligations are junior, inferior and subordinate in all respects
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to the Bonds issued pursuant to this Resolution as to lien on and source and security for payment
from the Resort Tax Revenues and in all other respects.
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 shall be issued after the issuance of any Bonds pursuant to this
Resolution unless the following, among other conditions, are complied with:
(1) The City 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 City 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
City will be in compliance with all such covenants and provisions.
(2) The amount of the Resort Tax Revenues during the immediately preceding
Fiscal Year or any twelve (12) consecutive months selected by the City of the eighteen (18)
months immediately preceding the issuance of said additional parity Bonds, as certified by an
independent certified public accountant, were at least equal to one hundred fifty percent (150%)
of the Maximum Annual Debt Service on (i) the Bonds originally issued pursuant to this
Resolution and then Outstanding, (ii) any additional parity Bonds theretofore issued and then
Outstanding, and (iii) the additional parity Bonds then proposed to be issued.
(3) The City need not comply with subparagraph (2) above 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 City shall cause to be delivered a certificate of
the Chief Financial Officer 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.
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 City 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 City 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 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
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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 City 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 City will keep separately identifiable
accounting records for the receipt of the Pledged Funds 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 City relating thereto.
The City shall promptly after the close of each Fiscal Year cause the books, records and
accounts relating to the Pledged Funds 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 Chief Financial Officer, 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 City of any covenant
herein.
J. NO IMPAIRMENT OF CONTRACT. The City 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 City so long as any Bonds are Outstanding hereunder. The City 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 City within the meaning of this
subsection.
K. REMEDIES. Any Holder of Bonds issued under the provisions of this
Resolution or any trustee acting for such Bondholders in the manner hereinafter provided, 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
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duties required by this Resolution or by any applicable statutes to be performed by the City or by
any officer thereof Nothing herein, however, shall be construed to grant any Holder of such
Bonds any lien on any property of or within the corporate boundaries of the City, 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.
The Holder or Holders of Bonds in an aggregate principal amount of more 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 representatives, and shall be filed in
the office of the Chief Financial Officer.
Notwithstanding anything in this Resolution to the contrary, so long as the issuer of a
Credit Facility or a Liquidity Facility shall not be in default in its payment obligations under such
Credit Facility or a Liquidity Facility, said issuer shall be deemed to be the holder of all Bonds
so secured for all purposes of this Section 304(K).
L. ENFORCEMENT OF COLLECTIONS. The City will diligently enforce and
collect the Resort Tax Revenues and will take all steps, actions and proceedings for the
enforcement and collection of such Resort Tax Revenues which shall become delinquent to the
full extent permitted or authorized by applicable laws and regulations. All such Resort Tax
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 City may hereafter create and establish by resolution, 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 City may hereafter create and establish by resolution, 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 the option of the
holder thereof, will provide moneys which shall be sufficient to pay when due the principal,
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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 City 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 Defeasance Obligations so deposited; provided
that in the event said Bonds do not mature and are not to be redeemed within the next succeeding
sixty (60) days, the City shall have given the Registrar and Paying Agent irrevocable instructions
to give, as soon as practicable, a notice to the Holders of said Bonds by first-class mail, postage
pre-paid, 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) As to Variable Rate Bonds, whether discharged and satisfied under the
provisions of subsection (1), (2) or (3) above, the amount required for the interest thereon shall
be calculated at the maximum rate permitted by the terms of the provisions which authorized the
issuance of such Variable Rate Bonds; provided however, that if on any date, as a result of such
Variable Rate Bonds having borne interest at less than such maximum rate for any period, the
total amount of moneys and Defeasance Obligations on deposit for the payment of interest on
such Variable Rate Bonds is in excess of the total amount which would have been required to be
deposited on such date in respect of such Variable Rate Bonds in order to fully discharge and
satisfy such Bonds pursuant to the provisions of this Section, the City may use the amount of
such excess free and clear of any trust, lien, security interest, pledge or assignment securing said
Variable Rate Bonds or otherwise existing under this Resolution.
(5) Notwithstanding any of the provisions of this Resolution to the contrary,
Put Bonds and Extendible Maturity Bonds may only be fully discharged and satisfied either
pursuant to subsection (1) above or by depositing in the Interest Account, the Principal Account
and the Bond Redemption Account, or in such other accounts which are irrevocably pledged to
the payment of the Put Bonds as the City may hereafter create and establish by resolution,
moneys which together with moneys lawfully available therefor, if any, shall be sufficient at the
time of such deposit to pay when due the maximum amount of principal of and redemption
premium, if any, and interest on such Put Bonds and Extendible Maturity Bonds which could
become payable to the Holders of such Bonds upon the exercise of any options provided to the
Holders of such Bonds; provided however, that if, at the time a deposit is made pursuant to this
subsection (5), the options originally exercisable by the Holder of a Put Bond or Extendable
Maturity Bond are no longer exercisable, such Bond shall not be considered a Put Bond or
Extendible Maturity Bond for purposes of this subsection (5).
(6) Notwithstanding the foregoing, all references to the discharge and
satisfaction of Bonds shall include the discharge and satisfaction of any Series of Bonds, any
portion of a Series of Bonds, any maturity or maturities of an issue of Bonds, any portion of a
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maturity of a Series of Bonds or any combination thereof, provided that the provisions of this
subsection (6) shall not affect the requirements regarding Put Bonds and Extendible Maturity
Bonds set forth in subsection (5).
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 or Liquidity Facility pursuant to the
terms thereof, the assignment and pledge created hereunder and all covenants, agreements and
other obligations of the City to the Bondholders shall continue to exist and the issuer of such
Credit Facility or Liquidity Facility shall be subrogated to the rights of such Bondholders.
(7) 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 City 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.
N. CONCERNING THE RESERVE ACCOUNT INSURANCE POLICY, THE
RESERVE ACCOUNT LETTER OF CREDIT, CREDIT FACILITY AND/OR
LIQUIDITY FACILITY. As long as the City shall have a Reserve Account Insurance Policy
and/or a Reserve Account Letter of Credit on deposit in the Debt Service Reserve Account, the
City covenants that it will comply with the provisions of the Reserve Account Insurance Policy
and/or the reimbursement or similar agreement with respect to the Reserve Account Letter of
Credit.
As long as any Series of Bonds of the City are secured by a Credit Facility or Liquidity
Facility, the City covenants to comply with the requirements and conditions imposed on the City
by the issuer of the Credit Facility or Liquidity Facility.
Notwithstanding anything in this Resolution to the contrary, the right of any issuer of a
Credit Facility or Liquidity Facility created under this Resolution shall remain in full force and
effect only so long as the applicable Credit Facility or Liquidity Facility shall remain in effect
and the issuer of such Credit Facility or Liquidity 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. PAYING AGENTS; APPOINTMENT AND ACCEPTANCE OF
DUTIES. The City may at any time or from time to time appoint one or more other Paying
Agents having the qualifications set forth in Section 408 of this Resolution for a successor
Paying Agent; provided that nothing herein shall prevent the City 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 City a written
acceptance thereof Unless otherwise provided, the designated corporate trust offices of the
Paying Agents are designated as the respective offices or agencies of the City for the payment of
the interest on and principal or redemption price of the Bonds.
SECTION 402. RESPONSIBILITIES OF FIDUCIARIES. The recitals of facts
herein and in the Bonds contained shall be taken as the statements of the City 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
hereunder 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 City 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 counsel to the
City, 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 Mayor or the City Manager 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
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accept other evidence of such fact or matter or may require such further or additional evidence as
it may deem reasonable.
(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 hereof
by the City to any Fiduciary shall be sufficiently executed in the name of the City by the Mayor
or the City Manager.
SECTION 404. COMPENSATION. The City 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 City 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, except for any such fees, costs and expenses incurred as a result of gross
negligence or willful misconduct on the part of such Fiduciary.
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 the 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,
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 City, if
the City is acting as fiduciary hereunder; and shall be authorized by law to perform all duties
imposed upon it by this Resolution, shall be the successor to such Fiduciary 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 PAYING AGENT AND
APPOINTMENT OF SUCCESSOR. Any Paying Agent may at any time resign and be
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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 or Liquidity Facility, the City, and the other
Paying Agents. Any Paying Agent may be removed at any time by an instrument filed with such
Paying Agent and the issuer of each Credit Facility or Liquidity Facility and signed by the Mayor
or the City Manager. Any successor Paying Agent shall be appointed by the City and shall be, if
other than the City 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 City shall notify the issuer of each Credit Facility or
Liquidity Facility of the appointment of any successor Paying Agent. In the event of the
resignation or removal of any Paying Agent, such Paying Agent shall pay over, assign and
deliver any moneys held by it as Paying Agent to its successor.
SECTION 409. REGISTRAR. The Registrar for any Series of Bonds (other than the
Series 2015 Bonds) shall be appointed by subsequent proceedings of the City. Any Registrar
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 each Credit Facility or Liquidity Facility
and the City. The Registrar may be removed at any time by an instrument filed with such
Registrar and the issuer of each Credit Facility or Liquidity Facility and signed by the Mayor,
City Manager or his designee, provided that a successor Registrar has been appointed by the
City. The resignation or removal of the Paying Agent as Registrar pursuant to this Section 409
shall not simultaneously constitute a resignation or removal of the Paying Agent. Any Paying
Agent acting as Registrar, however, who resigns or is removed as Paying Agent pursuant to
Section 408 of this Resolution shall automatically cease to be Registrar, and the City may, at its
option, appoint a successor Registrar other than the successor Paying Agent.
SECTION 410. 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 City 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 City or its successor entity, shall be a bank
or trust company authorized by law to exercise corporate trust powers in the State 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 on 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 City 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 City 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 City 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 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 (50%) per centum 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 (50%) per centum 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 or principal amount of such
Bonds or a reduction in the rate of interest thereon, or affecting the promise of the City 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 or Liquidity Facility, then the consent of the issuer of the Credit Facility or
Liquidity 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 or Liquidity 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 City in this Resolution other
covenants and agreements thereafter to be observed by the City or to surrender any right
or power herein reserved to or conferred upon the City; or
(e) to permit the issuance of Bonds, the interest on which is intended to be
excludible from gross income for Federal income tax purposes under the Code to the
Holders thereof in coupon form, if as a condition precedent to the adoption of such
supplemental resolution, there shall be delivered to the City an opinion of counsel of
recognized standing relating to municipal bonds to the effect that the issuance of Bonds
in coupon form is then permitted by law and that the issuance of such Bonds in coupon
form would not cause interest on such Bonds to be included in gross income for Federal
income tax purposes under the Code to the Holders thereof; or
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(f) 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
(g) to qualify this Resolution as an "indenture" under the Trust Indenture Act
of 1939, as amended; or
(h) to make such changes as may be necessary to adjust the terms hereof so as
to facilitate the issuance of Variable Rate Bonds, Capital Appreciation Bonds, Capital
Appreciation and Income Bonds, Put Bonds, Extendible Maturity Bonds, Balloon Bonds,
Interim Bonds and such other Bonds as may be marketable from time to time; or
(i) 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
(j) to comply with the requirements of issuers of Credit Facilities, Liquidity
Facilities, Reserve Account Insurance Policies or Reserve Account Letters of Credit or
Counterparties.
The City 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 City
for inspection by all Bondholders. The City 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 City shall deliver
to the City Clerk 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, and the City shall deliver to the
City Clerk a certificate signed by the Mayor that the Holders of such required percentage of
Bonds have filed such consents, the City 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 each Series as affected and Outstanding at the time of the execution 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
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restrain the City 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 purchasers 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
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. CAPITAL APPRECIATION BONDS; CAPITAL APPRECIATION
AND INCOME BONDS.
(a) For the purposes of (i) receiving payment of the redemption price if a Capital
Appreciation Bond is redeemed prior to maturity, or (ii) computing the amount of Bonds held by
the registered owner of a Capital Appreciation Bond in giving to the City any notice, consent,
request or demand pursuant to this Resolution for any purpose whatsoever, the principal amount
of a Capital Appreciation Bond shall be deemed to be its Accreted Value.
(b) For the purpose of (i) receiving payment of the redemption price if a Capital
Appreciation and Income Bond is redeemed prior to maturity, or (ii) computing the amount of
Bonds held by the registered owner of a Capital Appreciation and Income Bond in giving to the
City any notice, consent, request or demand pursuant to this Resolution for any purpose
whatsoever, the principal amount of a Capital Appreciation and Income Bond shall be deemed to
be its Appreciated Value.
SECTION 604. UNCLAIMED MONEY. Notwithstanding any provisions of this
Resolution, any money held by the Paying Agent 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 City free from the provisions of this Resolution, and all liability of the Paying
Agent with respect to such money shall thereupon cease.
SECTION 605. 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
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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 606. CONTROLLING LAW; MEMBERS OF GOVERNING BODY
OF CITY 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 City contained in this Resolution shall be deemed to be covenants,
stipulations, obligations and agreements of the City to the full extent authorized by the Act and
provided by the Constitution and laws of the State. 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 in his or her
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 607. FURTHER AUTHORIZATIONS. The officers and agents of the
City are hereby authorized and directed, collectively or individually, to take all action and steps
and to execute all instruments, documents and contracts on behalf of the City, 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 608. HEADINGS FOR CONVENIENCE ONLY. Any headings
preceding the texts of the several articles and sections hereof shall be solely for convenience of
reference and shall not constitute a part of this Resolution, nor shall they affect its meaning,
construction or effect.
SECTION 609. TIME OF TAKING EFFECT. This Resolution shall take effect
immediately upon its adoption.
PASSED and ADOPTED this /6/ day of ge,4her , 2015.
X41 B ` � .i/, •
*
* INCORP ORATED: • `�
I Mayor
(SEAL) . ,'Y
Attest: 'o�,CH 26.E
°/• APPROVED AS
(3- 611-
FORM&LANGU EXECUTION
61 &FOR E
City C.er
0e,,(— q )Z6
whammy R °w
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