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HomeMy WebLinkAboutR-2006-110 City Hall Expansion Promissory Note RESOLUTION NO. 2006-110 A RESOLUTION OF THE CITY OF DANIA BEACH,FLORIDA,AUTHORIZING THE ISSUANCE OF ITS PROMISSORY NOTE, SERIES 2006, IN THE PRINCIPAL AMOUNT NOT TO EXCEED $1,466,640.00, TO PAY FOR THE RENOVATION, EXPANSION AND EQUIPPING OF THE CITY HALL COMPLEX AND RELATED COSTS ; PROVIDING FOR THE PAYMENT OF THE NOTE FROM THE WATER UTILITY TAXES IMPOSED BY THE CITY; PRESCRIBING THE FORM, TERMS AND DETAILS OF THE NOTE; AWARDING THE NOTE TO WACHOVIA BANK, N.A. BY NEGOTIATED SALE AND MAKING CERTAIN RELATED COVENANTS AND AGREEMENTS;PROVIDING FOR CONFLICTS;FURTHER,PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. Definitions. As used in this Resolution, unless the context otherwise requires: "Act"means,as applicable,Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166, Florida Statutes, the Charter of the City of Dania Beach, and other applicable • provisions of law. "Annual Budget" means the annual operating budget prepared by the City for each Fiscal Year in accordance with Section 11 below and in accordance with the laws of the State of Florida. "Business Day"means any day which is not a Saturday, Sunday or legal holiday in Broward County, Florida. "Chief Financial Officer"means the chief financial officer of the City as defined in Section 218.403, Florida Statutes. "City' means the City of Dania Beach, a Florida municipal corporation, or its successor. "City Manager"means the City Manager of the City and such other person as may be duly authorized to act on his or her behalf. "Clerk"means the City Clerk or any Deputy Clerk of the City. "Code" means the Internal Revenue Code of 1986, as amended, including the applicable regulations of the Department of the Treasury (including applicable final regulations, temporary regulations and proposed regulations), the applicable rulings of the Internal Revenue Service (including published Revenue Rulings and private letter rulings) and applicable court decisions. "Costs of the Project"means with respect to the Project, all items of cost authorized by the Act, including the costs of issuance of the Note. "Dated Date"means the date of issuance of the Note. "Fiscal Year" means the period commencing on October 1 of each year and ending on the succeeding September 30, or such other consecutive 12-month period as may be subsequently designated as the fiscal year of the City pursuant to general law. "Governing Body"means the City Commission of the City, or its successor in function. "Mayor"means the Mayor of the City and such other person as may be duly authorized to act on the Mayor's behalf. "Noteholder"or"Holder"means the registered owner(or its authorized representative)of the Note. "Note" means the Promissory Note, Series 2006, authorized to be issued by the City in the aggregate principal amount not to exceed $1,466,640.00, the form of which is attached as Exhibit "A" to this Resolution. "Project" means the renovation, expansion and equipping of the City Hall Complex. "Public Service Tax" means the proceeds of the Public Service Tax as described in and received by the City pursuant to Section 166.231,Florida Statutes, and Section 23-11(1)of the City Code of Ordinances. "Resolution"means this Resolution, authorizing the issuance of the Note, as the same may from time to time be amended, modified or supplemented. "State"means the State of Florida. "Wachovia" means Wachovia Bank, N.A., the initial purchaser of the Note, and its successors and assigns. "Water Utility Taxes"means that portion of the Public Service Tax levied and collected by the City on the purchase of water in the City. Section 2. Authority for Resolution. This Resolution is enacted pursuant to the provisions of the Act. The City has ascertained and determined that enactment of this Resolution is necessary to carry out the powers,purposes and duties expressly provided in the Act, that each and every matter and thing as to which provision is made in this Resolution is necessary in order to carry out and RESOLUTION#2006-110 2 effectuate the purposes of the City in accordance with the Act and to carry out and effectuate the plan and purpose of the Act, and that the powers of the City exercised in this Resolution are in each case exercised in accordance with the provisions of the Act and in furtherance of the purposes of the City. Section 3. Resolution to Constitute Contract. In consideration of the purchase and acceptance of the Note by those who shall hold the same from time to time, the provisions of this Resolution shall be a part of the contract of the City with the Holder, and shall be deemed to be and shall constitute a contract between the City and the Holder from time to time of the Note. The pledge made in this Resolution and the provisions,covenants and agreements in this Resolution set forth to be performed by or on behalf of the City shall be for the benefit,protection and security of the Holder of the Note in accordance with the terms of this Resolution. Section 4. Authority For Issuance Of Note. Subject and pursuant to the provisions of this Resolution, a note to be known as"City of Dania Beach, Florida,Promissory Note, Series 2006"is authorized to be issued in an aggregate principal amount not to exceed One Million,Four Hundred Sixty Six Thousand Six Hundred Forty Dollars ($1,466,640.00) for the purpose of financing the Costs of the Project. The City shall not use the proceeds of the Note for any purpose other than the Costs of the Project without the written approval of Wachovia. Section 5. Description of Note. The Note shall be issued in one(1)typewritten certificate and shall be dated the Dated Date. The Note shall bear interest from the Dated Date at the rate of 4.07% and shall mature ten (10) years from the Dated Date. Principal of and interest on the Note shall be payable in twenty semi-annual installments,with the first installment due and payable six(6) months after the Dated Date. Interest shall be calculated on the basis of a 360 day year consisting of twelve(12)thirty day months.Details of the Note,including the scheduled principal payments,shall be as provided in the form of Note attached as Exhibit"A"to this Resolution. RESOLUTION#2006-110 3 The Note shall be in registered form, contain substantially the same terms and conditions as set forth in Exhibit"A"attached to this Resolution, shall be payable in lawful money of the United States of America,and the principal thereof,interest thereon and any other payments thereunder shall be payable by check,wire,draft or bank transfer to the Holder at such address as may be provided in writing by such Holder to the Clerk. So long as the Note shall remain outstanding, the City shall maintain and keep books for the registration and transfer of the Note. The Note may be assigned as provided in the form of Note attached as Exhibit "A" attached to this Resolution. Section 6. Execution of Note. The Note shall be executed in the name of the City by the manual signature of the Clerk and the City Manager, the seal of the City shall be imprinted, reproduced or lithographed on the Note, and the Note shall be attested to by the manual signature of the Mayor. If any officer whose signature appears on the Note ceases to hold office before the rdelivery of the Note, such signature shall nevertheless be valid and sufficient for all purposes. In addition, the Note may bear the signature of,or may be signed by, such persons as at the actual time of execution of the Note shall be the proper officers to sign the Note although at the date of the Note or the date of delivery of it such persons may not have been such officers. Section 7. Note Mutilated,Destroyed,Stolen or Lost. If the Note is mutilated,destroyed, stolen or lost, the City may, in its discretion (i) deliver a duplicate replacement Note, or (ii) pay a Note that has matured or is about to mature. A mutilated Note shall be surrendered to and canceled by the Clerk or its duly authorized agent. The Holder must furnish the City or its agent proof of ownership of any destroyed, stolen or lost Note; post satisfactory indemnity; comply with any reasonable conditions the City or its agent may prescribe; and pay the City's or its agent's reasonable expenses. .* RESOLUTION#2006-110 4 Any such duplicate Note shall constitute an original contractual obligation on the part of the City whether or not the destroyed, stolen, or lost Note be at any time found by anyone, and such duplicate Note shall be entitled to equal and proportionate benefits and rights as to lien on, and source of and security for payment from,the funds pledged to the payment of the Note so mutilated, destroyed, stolen or lost. Section 8. Provisions for Redemption. The Note may be prepaid in whole or in part at any time prior to maturity in the manner and with the breakage fee provided in the form of Note attached as Exhibit "A"hereto. Section 9. Note not to be General Indebtedness of the City. The Note shall not be or constitute a general obligation or indebtedness of the City within the meaning of the Constitution of Florida, but shall be payable from and secured solely in the manner described in Section 10 of this Resolution, in the manner and to the extent provided in this Resolution. No Holder shall ever have the right to compel the exercise of the ad valorem taxing power of the City or taxation in any form on any real or personal property to pay the Note or the interest thereon,nor shall any Holder be entitled to payment of such principal and interest from any funds of the City other than the Water Utility Taxes. The Holder shall have no lien upon any real or tangible personal property of the City. Section 10. Pledge of Revenues. The payment of the principal of, premium, if any, and interest on the Note shall be secured forthwith equally and ratably by an irrevocable lien on and pledge of the Water Utility Taxes,prior and superior to all other liens or encumbrances on the Water Utility Taxes, and the City irrevocably pledges the Water Utility Taxes to the payment of the principal of,premium,if any, and interest on the Note as the same shall become due. Such pledge of the Water Utility Taxes shall be cumulative to the extent not paid, and shall continue until the Note has been paid in full. RESOLUTION#2006-110 5 The City covenants that for so long as the Note shall remain unpaid, it will continue to impose the Water Utility Taxes, and will not amend or repeal the provisions of the resolutions, ordinances and/or agreements of the City that impose the Water Utility Taxes as of the date of this Resolution as to reduce the rate at which the Water Utility Taxes are imposed or the services or commodities subject to the Water Utility Taxes, or otherwise modify the proceedings of the City relevant to the Water Utility Taxes in any manner so as to impair or adversely affect the ability of the City to impose and collect the Water Utility Taxes. The City further agrees to take such legal action as may be necessary to enforce its rights under the resolutions,ordinances, agreements or any of the foregoing pursuant to which the City imposes the Water Utility Taxes. The Water Utility Taxes in each Fiscal Year shall equal at least one hundred fifty percent (150%) of the sum of(i)the annual debt service on the Note and(ii)the annual debt service on any Additional Debt issued in accordance with Section 12 of this Resolution(the "Required Coverage Ratio').If the Water Utility Taxes for a given Fiscal Year are insufficient for the City to provide the Required Coverage Ratio,the City agrees to either(a)increase the Water Utility Taxes to the extent permitted by applicable law,or(c)partially prepay the Note or such Additional Debt,in each case so that as a result of such action the Required Coverage Ratio is met. Such action shall remain in effect until such time as the action is no longer necessary for the Required Coverage Ratio to be met. For purposes of determining compliance with this paragraph and paragraph 12�relating to Additional Bonds, (a) the interest rate on any Additional Debt which bears interest at a variable rate will be assumed to bear interest at the greater of(a)the actual rate of interest borne by such Additional Debt for the month preceding the date of calculation, or(b) seven percent (7%)per annum. The City represents that the Water Utility Taxes are not pledged 'or encumbered in any manner. The City further represents that the revenues generated by the Water Utility Taxes are RESOLUTION#2006-110 6 estimated to be sufficient to pay the principal of, premium, if any, and interest on the Note as the same shall become due. Section 11. Operating Budget; Financial Statements. Before the first day of each Fiscal Year the Governing Body shall prepare, approve and adopt in the manner prescribed by law, a detailed Annual Budget. Such Annual Budget shall provide for revenues sufficient to comply with the City's obligations under this Resolution,including any unsatisfied obligations from prior Fiscal Years. The City shall annually provide to Wachovia printed copies of(a)the City's Comprehensive Annual Financial Report, (b)the Annual Budget and(c)the City's Capital Improvement Plan when available,or within 180 days of the end of each Fiscal Year,whichever is sooner. The City will also provide Wachovia with any other information it shall reasonably request. Section 12. Issuance Of Additional Obligations. The City will notissue any obligations or incur any liability payable from or secured in whole or in part by the Water Utility Taxes and having a right to payment therefrom that is prior to the right to payment therefrom of the Note.The City may issue obligations payable from or secured in whole or in part by the Water Utility Taxes on a parity with the Note ("Additional Debt"), so long as no Event of Default exists under this Resolution and, for the most two recently concluded Fiscal Years preceding the proposed issuance of such Additional Debt (a)the Water Utility Taxes equaled at least one hundred fifty percent(150%)of the sum of(1) the maximum annual debt service on the Note and (ii) the maximum annual debt service on such proposed Additional Debt, and(b)the other covenants of the City contained in this Resolution will continue to be met. Section 13. Award of Note by Negotiated Sale. Because of the nature of the Note, the maturity of the Note and the prevailing market conditions, the negotiated sale of the Note to Wachovia in substantial accordance with Wachovia's Commitment Letter to the City dated June 5, RESOLUTION#2006-110 7 2006,which letter is attached to this Resolution as Exhibit`B"(the"Commitment"),is found to be in the best interests of the City; provided, however, that the provisions of this Resolution shall control to the extent of any conflict with the Commitment. Section 14. Modification,Amendment or Supplement. This Resolution may be modified, amended or supplemented by the City from time to time prior to the issuance of the Note under this Resolution. Thereafter, no modification, amendment or supplement of this Resolution, or of any resolution amending it or supplemental to it, may be made without the consent in writing of the Holder. Section 15. Events of Default; Remedies. A. Events of Default. Any one or more of the following events shall bean"Event of Default": (1) The City shall fail to pay the principal of or interest on the Note within ten(10) days of when due; ii The City shall fail to a theprincipal of or interest on an other loan or obligation for ( ) Y pay Y g the repayment of money within ten (10) days of when due; (iii) The City shall (a) admit in writing its inability to pay its debts generally as they become due, (b) file (or have filed against it and not dismissed within '90 days) a petition in bankruptcy or take advantage of any insolvency act,(c)make an assignment for the general benefit of creditors, (d) consent to the appointment of a receiver for itself or for the whole or any substantial part of its property, or (e) be adjudicated a bankrupt; or (iv) The City shall default in the due and punctual performance of any of its covenants, conditions, agreements and provisions contained in this Resolution or in the'Note, and such default shall continue for thirty(30)days after written notice specifying such default and requiring the same to be remedied shall have been given to the City by the Holder of the Note; provided that such default shall not be an Event of Default if the City within such 30 day period commences and carries out with due diligence to completion (although not necessarily within suchithirty(30) day period) such action as is necessary to cure the same. B. Remedies on Default. If an Event of Default shall have occurred and be continuing, the Holder may proceed to protect and enforce its rights under this Resolution by a suit,action or special proceeding in equity or at law,by mandamus or otherwise, either for the specific performance of any RESOLUTION#2006-110 8 i covenant or agreement contained in this Resolution or for enforcement of any proper legal or equitable remedy as such Holder shall deem most effectual to protect and enforce the rights aforesaid. No remedy conferred in this Resolution upon or reserved to the Holder is intended to be exclusive of any other remedy or remedies,and each and every such remedy shall be cumulative,and shall be in addition to every other remedy given under this Resolution or now or hereafter existing at law or in equity. No delay or omission of a Holder to exercise any right or power accruing upon any Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Event of Default, or an acquiescence in such Event of Default; and every power and remedy given by this article maybe exercised from time to time, and as often as may be deemed expeditious by a Holder. Section 16. Bank Qualified Issue. The City designates the Note to be a "qualified tax- exempt obligation"within the meaning of Section 265(b) of the Code. Section 17. General Authority. The Mayor and the members of the Governing Body and the officers, attorneys and other agents or employees of the City are authorized to do all acts and things required of them by this Resolution, or desirable or consistent with the requirements of this Resolution, for the full punctual and complete performance of all the terms, covenants and agreements contained in this Resolution or in the Note,including the execution of any documents or instruments relating to payment of the Note,and each member,employee,attorney and officer of the City is authorized and directed to execute and deliver any and all papers and instruments and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions contemplated under this Resolution. RESOLUTION#2006-110 9 Section 18. Waiver Of Jury Trial. Wachovia and the City knowingly, voluntarily and intentionally waive the right either may have to a trial by jury in respect to any litigation based on this Resolution, or arising out of, under or in connection with this Resolution, the Note or any agreement contemplated to be executed in conjunction with it, or any course of conduct, course of dealing, statements (whether verbal or written), or actions of either party. Section 19. Severability. 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 of this Resolution or of the Note issued under it,which remaining covenants,agreements and provisions shall remain in full force and effect. Section 20. No Third-Party Beneficiaries. Except as otherwise expressly provided in this Resolution, nothing in it expressed or implied is intended or shall be construed to confer upon any person, firm or corporation other than the parties to it and a subsequent holder of the Note issued under it, any right,remedy or claim, legal or equitable, under or by reason of this Resolution or any provision of it,this Resolution and all its provisions being intended to be and being for the sole and exclusive benefit of the parties to it and the holder from time to time of the Note issued under it. Section 21. Controlling Law; Members of City Not Liable. All covenants, stipulations, obligations and agreements of the City contained in this Resolution and the Note shall be covenants, stipulations, obligations and agreements of the City to the full extent authorized by the Act and provided by the Constitution and laws of the State of Florida.No covenant, stipulation,obligation or agreement contained in this Resolution or the Note shall be a covenant, stipulation, obligation or RESOLUTION#2006-110 10 agreement of any present or future member,agent, officer or employee of the City or the Governing Body of the City in his or her individual capacity, and neither the members or officers of the Governing Body of the City nor any official executing the Note shall be liable personally on the Note or shall be subject to any personal liability or accountability by reason of the issuance or the execution of the Note by the City or such members of the City. Section 22. Repeal of Inconsistent Resolutions.All resolutions or parts of them in conflict with this Resolution are repealed to the extent of such conflict. Section 23. Effective Date. This Resolution shall be in force and take effect immediately upon its passage and adoption. PASSED AND ADOPTED on June 27, 2006. dz '4q&� PATRICIA FLURY MAYOR-COMMISSIONER A'FJEST: LOUISE STILSON, CMC CITY CLERK APPROVED AS TO FORM AND CORRECT SS BY: f TH MAS J. A, �B CITY ATTORNEY RESOLUTION#2006-110 11 EXHIBIT "A" FORM OF NOTE REGISTERED REGISTERED No. R- 1 $ 1,466,640.00 UNITED STATES OF AMERICA STATE OF FLORIDA CITY OF DANIA BEACH PROMISSORY NOTE, SERIES 2006 Interest Rate: Maturity Dated Date: 4.07% June 29, 2016 June 29, 2006 REGISTERED OWNER: WACHOVIA BANK, N.A. PRINCIPAL AMOUNT: ONE MILLION FOUR HUNDRED SIXTY SIX THOUSAND SIX HUNDRED FORTY DOLLARS KNOW ALL PERSONS BY THESE PRESENTS, that the City of Dania Beach, Florida, a municipal corporation of the State of Florida(the"City")for value received,promises to pay to the Registered Owner identified above,or to registered assigns or legal representatives,but solely from the revenues mentioned below,on the dates provided below, the Principal Amount identified above, and to pay, solely from such revenues,interest on the Principal Amount remaining unpaid from time to time, at the interest rate per annum identified above(the"Bond Rate"), until the entire Principal Amount has been repaid. Principal of and interest on this Note will be paid by bank wire, check, draft or bank transfer delivered to the Registered Owner of this Note at the address as it appears on the registration books of the City at the close of business on the fifth Business Day(as defined in the Resolution described below), next preceding each interest payment date (the "Record Date"). Interest on this Note shall be calculated on the basis of a 360 day year consisting of twelve (12) thirty day months and will be paid in arrears. Principal of and interest on this Note shall be payable in semi-annuat installments on June 29 and December 29 of each year,beginning December 29,2006. The amount of principal and interest due on each payment date, assuming payment is made when due, is as set forth in the amortization schedule attached to this Note as Schedule "I." Each date when principal, interest or both on this Note is due is a "Payment Date." If any Payment Date is not a Business Day,the payment otherwise due on such Payment Date shall be due on the next succeeding Business Day,but interest shall continue to accrue until the date such interest is actually received by the Registered Owner. Ex. A-1 Upon the occurrence of an Event of Default(as defined in the Resolution identified below) until such Event of Default has been cured this Note shall bear interest at the lesser of(1) a variable rate equal to the Registered Owner's "Prime Rate"plus 200 basis points or (ii) the maximum rate permitted by law. Also, upon the occurrence of an Event of Default, the Holder may declare the entire outstanding balance due on this Note to be immediately due and payable (but only from the Water Utility Taxes identified in the Resolution below), and in any such acceleration the City shall also be obligated to pay all costs of collection and enforcement, including such fees as may be incurred on appeal or incurred in any bankruptcy or insolvency proceeding. This Note is issued in the aggregate principal amount of$1,466,640, issued to finance the Costs of the Project(as defined in the Resolution identified below),pursuant to the authority of and in full compliance with the Constitution and laws of the State of Florida, including particularly Article VIII, Section 2 of the Constitution of the State of Florida, Chapter 166,Florida Statutes,the Charter of the City (collectively, the "Act"), and Resolution No. 2006-110, adopted by the City Commission of the City on June 27, 2006 (the "Resolution"). This Note and the interest hereon are secured by and are payable from a prior lien upon and pledge of the Water Utility Taxes (as defined in the Resolution), in the manner and to the extent provided in the Resolution. Reference is made in this Note to the Resolution for the provisions, among others, relating to the terms and security for the Note, the custody and application of the proceeds of the Note,the rights and remedies of the Registered Owner of the Note, and the extent of and limitations on the City's rights,duties and obligations,to all of which provisions the Registered Owner for himself,herself,or itself and his,hers or its successors in interest assents by acceptance of this Note. All terms used in this Note in capitalized form, unless otherwise defined in this Note, shall have the meanings ascribed to them in the Resolution. Should this Note be determined not to be a "qualified tax-exempt obligation" pursuant to Section 265(b)(3)(B)of the Internal Revenue Code of 1986,as amended,the Registered Owner shall adjust the interest rate on this Note so that the Registered Owner shall receive the same after tax yield equivalent computed as of June 29, 2006. In the event of a Determination of Taxability,the interest rate payable under this Note shall be subject to a full gross-up modification, as determined by the Registered Owner and its counsel (the"Taxable Rate"), effective retroactively to the date on which such Determination of Taxability was made. In addition,upon a Determination of Taxability,the City agrees to pay to the Registered Owner subject to such Determination of Taxability the Additional Amount upon demand. "Additional Amount" means (i) the difference between (a) interest on this Note for the period commencing on the date on which the interest on this Note ceased to be excludable from gross income for federal income tax purposes and ending on the earlier of the date this Note ceased to be outstanding or such adjustment is no longer applicable to this Note(the"Taxable Period") at a rate per annum equal to the Taxable Rate, and(b)the aggregate amount of interest paid on this Note for the Taxable Period under the provisions of this Note without considering the Determination of Taxability, plus (ii) any penalties and interest paid or payable by such Registered Owner to the Internal Revenue Service by reason of such Determination of Taxability., As used in this Note, "Determination of Taxability"means a final decree or judgment of any federal court or a final action Ex. A-2 of the Internal Revenue Service or of the United States Treasury Department determining that any 0 interest payable on this Note is includable in the gross income of the Registered Owner. No such decree or action shall be considered final for the purposes of this paragraph unless the City has been given written notice and,if it is so desired by the City and is legally permissible, the City has been afforded the opportunity to contest the same,at its own expense, either directly or in the name of the Registered Owner and until the conclusion of any appellate review, if sought. If the tax laws or regulations are amended to decrease the maximum marginal statutory percentage rate of Federal income tax applicable to the taxable income of the Registered Owner, or to cause the interest on this Note to be subject to a minimum tax or an alternative minimum tax or to change,the disallowance rate of interest deductions due to the purchase and holding of this Note or to otherwise decrease the yield on this Note to the Registered Owner(directly or indirectly,other than a change as a result of a Determination of Taxability), then the interest rate on this Note shall be adjusted to cause the after-tax yield on this Note to equal what the after-tax yield on this Note would have been in the absence of such change or amendment in the tax laws or regulations. If the tax laws or regulations are amended to increase the after-tax yield on this Note to the Registered Owner (including any change in the marginal tax rate of the Registered Owner), then the after-tax yield on this Note shall be adjusted to equal what the after-tax yield on this Note would have been in the absence of such change or amendment in the tax laws or regulations. Notwithstanding the foregoing,in no event shall the interest rate payable on this Note in any 0 year exceed the maximum rate permitted by law. THIS NOTE SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL DEBT OR A PLEDGE OF THE FAITH AND CREDIT OF THE CITY, OR A DEBT OR PLEDGE OF THE FAITH AND CREDIT OF THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION OF IT WITHIN THE MEANING OF ANY CONSTITUTIONAL, LEGISLATIVE OR CHARTER PROVISION OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE REGISTERED OWNER OF THIS NOTE THAT SUCH REGISTERED OWNER SHALL NEVER HAVE THE RIGHT,DIRECTLY OR INDIRECTLY, TO REQUIRE OR COMPEL THE EXERCISE OF THE AD VALOREM TAXING POWER OF THE CITY OR ANY OTHER POLITICAL SUBDIVISION OF THE STATE OF FLORIDA OR TAXATION IN ANY FORM ON ANY REAL OR PERSONAL PROPERTY FOR THE PAYMENT OF THE PRINCIPAL OF,PREMIUM,IF ANY, AND INTEREST ON THIS NOTE OR FOR THE PAYMENT OF ANY OTHER AMOUNTS PROVIDED FOR IN THE RESOLUTION. This Note shall be and have all the qualities and incidents of negotiable instruments under the law merchant and the Uniform Commercial Code of the State of Florida,subject to the provisions for registration of transfer contained in this Note and in the Resolution. It is further agreed between the City and the Registered Owner of this Note that this Note and the indebtedness evidenced by it shall not constitute a lien upon any real or tangible personal property of or in the City. Neither the members of the governing body of the City nor any person executing the Note shall be liable personally on the Note by reason of its issuance. Ex. A-3 This Note shall be subject to redemption in whole or in part on any date at the option of the City,upon payment by the City of a redemption price equal to the principal amount of the Note to be redeemed plus accrued interest thereon,plus a breakage fee computed in accordance with Schedule "II" attached to this Note. This Note may be assigned by the Registered Owner of this Note, or any assignee or successor-in-interest to it. Such assignment shall only be effective,and the City obligated to pay such assignee, upon delivery to the Clerk at the address set forth below of a written instrument or instruments of assignment in the form provided in this Note,duly executed by the owner of this Note or by the Registered Owner's attorney-in-fact or legal representative,containing written instructions as to the details of assignment of this Note, along with the social security number or federal employer identification number of such assignee. In all cases of an assignment of this Note the City shall at the earliest practical time in accordance with the provisions of the Resolution enter the change of ownership in the registration books;provided,however,the written notice of assignment must be received by the Clerk no later than the close of business on the fifth Business Day prior to a Payment Date in order to carry the right to receive the interest and principal payment due on such Payment Date. The City may conclusively rely on the authenticity of any Form of Assignment delivered to it in accordance with this paragraph and accompanied by the original of the Note to which it relates. Any payment or notice required to be given to the Registered Owner shall be given to the Registered Owner at 1950 West Hillsboro Boulevard, Deerfield Beach, Florida 33442, Attention: Government and Institutional Banking, or such other address or addresses as the Registered Owner shall provide the City in writing. In the event of an assignment of this Note, any payment or notice required to be given to the Registered Owner under this Note shall be given to the Registered Owner at the address or addresses shown on the Form of Assignment attached to this Note, or such other address or addresses as the Registered Owner shall provide the City in writing Any notice required to be given to the City under this Note shall be given to the Clerk at 100 West Dania Beach Boulevard, Dania Beach, Florida 33304 or such other address or addresses as the City shall provide the Registered Owner in writing. It is certified and recited that all acts, conditions and things required to exist,to happen, and to be performed precedent to and in the issuance of this Note exist, have happened and have been performed in regular and due form and time as required by the laws and Constitution of the State of Florida applicable to this Note, and that the issuance of the Note does not violate any constitutional or statutory limitation or provision. THE REGISTERED OWNER, BY ACCEPTANCE OF THIS NOTE, AND THE CITY, BY ITS ACCEPTANCE OF THE PROCEEDS OF THE NOTE, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED ON THIS NOTE,OR ARISING OUT OF,UNDER OR IN CONNECTION WITH THIS NOTE, THE RESOLUTION OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT,COURSE OR DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. Ex. A-4 IN WITNESS OF THE FOREGOING,the City of Dania Beach,Florida has issued this Note and has caused it to be executed by the manual signature of the Clerk and the City Manager, and attested by the manual signature of the Mayor and its corporate seal or a facsimile of it to be affixed or reproduced on it, all as of June , 2006. CITY OF DANIA BEACH, a Florida municipal corporation ATTEST: BY: Patricia Flury Mayor - Commissioner BY: BY: Louise Stilson, CMC, City Clerk Ivan Pato, City Manager APPROVED AS TO FORM AND CORRECTNESS: BY: Thomas J. Ansbro, City Attorney Ex. A-5 FORM OF ASSIGNMENT FOR VALUE RECEIVED, the undersigned sells, assigns and transfers to the within Note and all rights under it, and irrevocably constitutes and appoints as attorney to transfer the Note in the books kept by the City for the registration of it,with full power of substitution in the premises. Dated: NOTICE: The signature of this SOCIAL SECURITY NUMBER OR assignment must correspond with FEDERAL IDENTIFICATION NUMBER the name as it appears upon the OF ASSIGNEE Note in every particular, without enlargement or alteration or any change whatever. [Form of Abbreviations] The following abbreviations, when used in the inscription on the face of the Note, shall be construed as though they were written out in full according to the applicable laws or regulations. TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with the right of survivorship and not as tenants in common UNIFORM TRANS MIN ACT - Custodian for (Cust.) (Minor) under Uniform Transfers to Minors Act of (State) Additional abbreviations may also be used though not in the above list. WPB:253645:2 0 SCHEDULE I AMORTIZATION SCHEDULE WPB:253645:2 Schedule I-1 Schedule II In addition to principal, interest and any other amounts due under this Note,Borrower shall on demand pay to Bank any "Breakage Fee" due hereunder for each Break Event. "Break Event"means any voluntary or mandatory prepayment or acceleration,in whole or in part,of principal of this Note occurring prior to the date such principal would, but for that prepayment or acceleration, have become due ("Scheduled Due Date"). For each date on which a Break Event occurs ('Break Date"), a Breakage Fee shall be due only if the rate under "A" below exceeds the rate under "B" below and shall be determined as follows: Breakage Fee = the Present Value of((A-B)xQ + LIBOR Breakage, where: A= The rate per annum equal to the sum of(i)the bond equivalent yield(bid side)of the U.S. Treasury security with a maturity closest to the Maturity Date as reported by the Wall Street Journal (or other published source) on the date the Interest Rate of this Note was set ("Lock in Date"), >l lus (ii) the corresponding swap spread of Bank on the Lock in Date for a fixed rate payor to pay Bank the fixed rate side of an interest rate swap of that maturity, plus (iii) .25%. B = A rate per annum equal to the sum of(i) the bond equivalent yield (bid side) of the U.S. Treasury security with a maturity closest to the Maturity Date as reported by the Wall Street Journal (or other published source) on the Break Date, plus (ii) the • corresponding swap spread that Bank determines another swap dealer would quote to Bank on the Break Date for paying to Bank the fixed rate side of an interest rate swap of the maturity. C = The sum of the products of(i) each Affected Principal Amount for each Affected Principal Period, times (ii) the number of days in that Affected Principal Period divided by 360(if this Note uses the Actual/360 Computation)or the actual number of days in the year(if this Note uses the Actual/Actual Computation). "Affected Principal Amount" for an Affected Principal Period is the principal amount of this Note scheduled to be outstanding during that Affected Principal Period determined as of the relevant Break Date before giving effect to the Break Event on that Break Date, and for any prepayment, multiplying each such principal amount times the Prepayment Fraction. "Affected Principal Period" is each period from and including a Scheduled Due Date to but excluding the next succeeding Scheduled Due Date,provided that the first such period shall begin on and includes the Break Date. "LIBOR Breakage"is any additional loss, cost or expense that Bank may incur with respect to any hedge for the fixed rate of this Note based on the difference between the London interbank offered rate(for U.S. dollar deposits of the relevant maturity)available in the London interbank market at the • beginning of the interest period in which the Break Date occurs and that which is available in that market on the Break Date. WPB:253645:2 Schedule II-1 "Maturity Date" is the date on which the final payment of principal of this Note would, but for any Break Event, have become due. "Prepayment Fraction" is a fraction equal to the principal amount being prepaid over the principal amount of this Note outstanding immediately prior to that prepayment on the Break Date. "Present Value" is determined as of the Break Date using "B" above as the discount rate. In addition, a Break Event shall be deemed to occur hereunder if, on any date("Borrowing Date") after the date hereof but prior to any acceleration of this Note, any advance of principal under this Note is scheduled to be made and that advance fails to be made on that Borrowing Date(whether due to Borrower's default, Borrower's failure to borrow, the termination of any loan commitment, any unsatisfied condition precedent, or otherwise), in which case that Borrowing Date shall be a Break Date,the Affected Principal Amount for that Break Event shall be based on the amount of the failed advance,and the Borrower shall on demand pay to the Bank any Breakage Fee due hereunder for that Break Event. Breakage Fees are payable as liquidated damages, are a reasonable pre-estimate of the losses,costs and expenses Bank would incur in the event of any prepayment or acceleration of this Note,are not a penalty, will not require claim for, or proof of, actual damages, and Bank's determination thereof shall be conclusive and binding in the absence of manifest error. For any Break Event hereunder,the . foregoing Breakage Fee provisions supersede any breakage compensation agreement that Borrower and Bank may have executed with respect to this Note. • WPB:253645:2 Schedule II-2 • EXHIBIT "B" COMMITMENT LETTER ' • WP6:253645:2 Ex. B-1 --�, CITY OF DANIA BEACH Agenda Item# 77 Agenda Request Item Date of Commission Meeting: 6/27/2006 Adopt Resolution ® Adopt Ordinance(1st Reading) ❑ Adopt Ordinance (2nd Reading) ❑ Award Bid/RFP ❑ Presentation ❑ Continued from: RegU6sted ACtIOn (Idenfity appropriate A, ion or Motion) Obtain financing in the amount of$1,466,640 for the expansion and renovation of City Hall. Why Action is Necessary To fund the project as approved in the FY 2006 CIP. What Action Accomplishes Purchasing Requests ONLY Dept: 1800 General Administration Acct#: Amt: Fund: General: ❑ Water: ❑ Sewer: ❑ Stormwater: ❑ Grants: ❑ Capital: ❑ Summary Explanation/Background See staff memo Fiscal Impact/Cost Summary Exhibits Attached Bond Resolution Staff Memo Wachovia's Commitment Loan letter Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 •Authorized Signatures Submitted by Patricia Varney Date 06/20/06 Department Director Patricia Varney Date 06/20/06 HR Director Date Finance Director Patricia Varney Date 06/20/06 City Attorney Thomas J. Ansbro Date 06/20/06 City Manager Ivan Pato Date 06/20/06 City., erk Use r ion Action: ved: ❑ Denied: ❑ Continued to: ❑ CITY OF DANIA BEACH DEPARTMENT OF FINANCE MEMORANDUM TO: Mayor and Commission Memo: DFA-06-25 VIA: Ivan Pato, City Manager FROM: Patricia Varney Director of Finance DATE: June 16, 2006 SUBJECT: Debt issuance for the expansion and renovation of the City Hall During the budget process,the Commission has approved the project for the City Hall expansion,in the amount of$1,466,640. At March 14, 2006 Commission meeting, the Commission has approved the project be contracted with Coastal Contracting& Development Inc. in the amount of$1,306,400. This contract amount does not provide • for any contingency or change orders that may require during the construction. The difference of the budget amount and the contract amount will be utilized for furnishing, change orders that may require, and if funding available some renovations to the existing City Hall building. The City has issued a request for proposal in late May to seek for the best interest rate of this project. The term is set for 10 years, semi-annual payment and pledging the Water Utility Tax for payment. The proposals were due to the City on June 7, 2006 with three banks responding. The summary of their proposals are as follows: 1) Wachovia Bank—4.07%, and $6,000 bond counsel cost. There will be prepayment penalty based on the breakage point at the time of prepayment. 2) SunTrust Bank -4.38%with no prepayment penalty, and 4.21% with prepayment penalty. However, should the City decided to open an operating deposit account with the Bank for the loan proceeds and sets loan payment on auto debit, the rate are 4.34% without prepayment penalty and 4.17% with prepayment penalty. Bond counsel fee is $6,000 3) Bank of America—4.37%with prepayment penalty and a bond counsel fee of $4,500. I do not foresee with the proposed rate, that the City will be prepaying the debt prior to maturity date. Since Wachovia has the lowest rate, I am recommending that the financing be awarded to Wachovia Bank. The target date for closing this loan is June 29, 2006. l • Wachovia Bank, N.A. Government and Institutional Banking 1950 W. Hillsboro Boulevard Deerfield Beach,FL 33442 (954)596-6907 (954)596-6908 FAX June 5, 2006 Ms. Patricia Varney Finance Director City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, FL 33004 Dear Ms. Varney: Wachovia Bank National Association (the "Bank") is pleased to submit the Commitment described below to the City subject to the following terms and conditions. Borrower: City of Dania Beach Amount: $1 ,466,640 Facility: Term Loan Purpose: Finance the expansion and equipping of the City Hall Complex. Term: The loan will mature ten years from closing. Principal and Interest shall be paid semi-annually through maturity. Interest on the outstanding balance of the loan will be calculated on a 30-day month/360 day year basis. Security: The loan will be secured by a senior lien on Water Utility Tax Revenues (the "Pledged Revenues"). Interest Rate: Bank Qualified Fixed Rate: 4.07% Prepayment: Should the City prepay during the life of the loan, the City may incur a breakage fee as outlined in Exhibit A attached. . Conditions 1 . The City, by official action, shall approve entering into this commitment and the loan facility described herein; and shall cause any borrowing under this facility to be designated as a "Qualified Obligation" pursuant to Section 265(b)(3)(B) Internal Revenue Code of 1986, as amended. Should subsequent but currently unforeseen events cause any borrowing under this facility to be determined to be a "non-qualified" obligation pursuant to Section 265(b)(3)(B), Internal Revenue Code of 1986, as amended, the Bank shall adjust the interest rate on any outstandings hereunder so that it shall receive the same after tax yield equivalent contemplated as of the time of this commitment. 2. In the event that the interest on any drawing under this Commitment is ever determined to be taxable for purposes of federal or state income taxation, or in the event that any or all of the interest on any drawing under this Commitment is deemed to be included in the gross income of the Bank for federal or state income taxation, or in the event the Bank is unable to deduct any other amounts as a result of purchasing or carrying any borrowings resultant from the Commitment, or in the event of a change in the marginal tax rate applicable to . corporations or the alternative minimum tax rate or in the method prescribed by federal income tax laws for calculating the alternative minimum tax to which the Bank may be subject, or in the event of any action which would otherwise decrease the after tax or taxable equivalent yield to the Bank, the interest on this Commitment shall be subject to a full gross up modification, as determined by the Bank and its counsel. In no event, however, shall the interest rate on this Commitment exceed the maximum rate permitted by law. 3. Loan documents relating to this facility shall be prepared by counsel for the Bank. Closing will be conditioned upon receipt by the Bank of a standard opinion from Bank counsel as to the due authorization and enforceability of the documents and as to tax-exemption under state and federal law, and an opinion of the issuer's attorney as to litigation and other matters. The loan documents and such opinions shall be in form and content acceptable to the Bank. Documents must be available for review at least 5 business days prior to closing. Bank Counsel will charge a fee of $6,000.00. All costs relating to the preparation of documents, including the Bank counsel fee, will be paid by the City (whether or not the transaction closes). 4. On an ongoing basis, the City agrees that it shall deliver to the Bank printed copies of, when available, or within 180 days of each fiscal year end, • whichever is sooner, a Comprehensive Annual Financial Report, a Current Year Operating Budget as soon as it is completed and a Capital Improvement Plan and any other such information as reasonably requested by Bank. 5. The City will take all necessary steps, and will do nothing to jeopardize its ability to receive the Pledged Revenues for as long as the subject facility remains outstanding. 5. The City, may not issue any additional parity debt secured by the Pledged Revenues unless the historic (for each of the last two years), Pledged Revenues cover maximum annual debt service on all existing and prospective debt by 1 .5x. 6. The City's Pledged Revenues must cover annual debt service on all debt secured by the Pledged Revenues by 1 .5x at all times. For purposes of calculating maximum annual debt service or annual debt service, all variable rate borrowings secured by the Pledged Revenues shall be assumed to bear interest at the higher of 7% per annum or the actual interest rate borne by the variable rate debt for the month preceding the date of the calculation. 7. This Commitment shall remain in full force and effect through 3:00 p.m., local time, June 16, 2006, at which time, if not accepted by execution of the acceptance clause below and mailed to the Bank at its 1950 Hillsboro Blvd, Deerfield Beach, FL, 33442, office to my attention, this Commitment shall expire and shall not be enforceable by either the Bank or the City unless extended by the Bank in writing. Unless extended by the Bank in writing, this facility must close on or prior to June 29, 2006, after which this commitment shall expire. 8. If the Bank chooses to waive any covenant, paragraph, or provision of this Commitment, or if any covenant, paragraph, or provision of this Commitment is construed by a court of competent jurisdiction to be invalid, it shall not affect the applicability, validity or enforceability of the remaining covenants, paragraphs or provisions. 9. The preceding terms and conditions are not exhaustive. Any final commitment may include other covenants, terms and closing conditions as are customarily required by the Bank for similar transactions including but not limited to a Cross Default with other debt, Default Rate of Prime + 2%, Events of Default, Acceleration upon Default and waiver of jury trial. This Commitment Letter shall not survive closing. 10. The City represents and agrees that all information provided to the Bank is correct and complete. No material adverse change may occur in, nor may any adverse circumstance be discovered as to, the financial condition of the City or Agency prior to closing. The Bank's obligations under this Commitment are • conditioned on the fulfillment to the Bank's sole satisfaction of each term and condition referenced by this Commitment. 11 . This Commitment supersedes all prior Commitments and proposals with respect to this transaction, whether written or oral, including any previous loan proposals made by the Bank or anyone acting within its authorization. No modification shall be valid unless in writing and signed by an authorized Officer of the Bank. This Commitment is not assignable and no entity other than the City shall be entitled to rely on this Commitment. 12. The Bank will make the loan for its own account and not with the intent to distribute the loan or interests therein. However, the Bank may in the future enter into participation agreements or securitization transactions with respect to the loan. No transfer restrictions will apply to the loan. If requested, the Bank will deliver an appropriate investor letter at closing. Wachovia Bank National Association appreciates the opportunity to submit this Commitment to you and looks forward to your favorable response. Should you have any questions, please do not hesitate to contact me at (954) 596-6907. Best Regards, WACHOVIA BANK NATIONAL ASSOCIATION • Scott D. Kreiger Vice President ACCEPTANCE The above Commitment is hereby accepted on the terms and conditions outlined therein by authority of the Governing Board of the City: By: Date: Its: Exhibit A In addition to principal, interest and any other amounts due under this Note, Borrower shall on demand pay to Bank any "Breakage Fee" due hereunder for each Break Event. "Break Event" means any voluntary or mandatory prepayment or acceleration, in whole or in part, of principal of this Note occurring prior to the date such principal would, but for that prepayment or acceleration, have become due ("Scheduled Due Date"). For each date on which a Break Event occurs ("Break Date"), a Breakage Fee shall be due only if the rate under "A" below exceeds the rate under "B" below and shall be determined as follows: Breakage Fee = the Present Value of ((A-B)xC) + LIBOR Breakage, where: A = The rate per annum equal to the sum of (i) the bond equivalent yield (bid side) of the U.S. Treasury security with a maturity closest to the Maturity Date as reported by the Wall Street Journal (or other published source) on the date the Interest Rate of this Note was set ("Lock in Date"), plus (ii) the corresponding swap spread of Bank on the Lock in Date for a fixed rate payor to pay Bank the fixed rate side of an interest rate swap of that maturity, plus (iii) .25%. B = A rate per annum equal to the sum of (i) the bond equivalent yield (bid side) of the U.S. Treasury security with a maturity closest to the Maturity Date as reported by the Wall Street Journal (or other published source) on the Break Date, plus (ii) the corresponding swap spread that Bank determines another swap dealer would quote to Bank on the Break Date for paying to Bank the fixed rate side of an interest rate swap of the maturity. C = The sum of the products of (i) each Affected Principal Amount for each Affected Principal Period, times (ii) the number of days in that Affected Principal Period divided by 360 (if this Note uses the Actual/360 Computation) or the actual number of days in the year (if this Note uses the Actual/Actual Computation). "Affected Principal Amount" for an Affected Principal Period is the principal amount of this Note scheduled to be outstanding during that Affected Principal Period determined as of the relevant Break Date before giving effect to the Break Event on that Break Date, and for any prepayment, multiplying each such principal amount times the Prepayment Fraction. "Affected Principal Period" is each period from and including a Scheduled Due Date to but excluding the next succeeding Scheduled Due Date, provided that the first such period shall begin on and includes the Break Date. "LIBOR Breakage" is any additional loss, cost or expense that Bank may incur with respect to any hedge for the • fixed rate of this Note based on the difference between the London interbank offered rate (for U.S. dollar deposits of the relevant maturity) available in the London interbank market at the beginning of the interest period in which the Break Date occurs and that which is available in that market on the Break Date. "Maturity Date" is the date on which the final payment of principal of this Note would, but for any Break Event, have become due. "Prepayment Fraction" is a fraction equal to the principal amount being prepaid over the principal amount of this Note outstanding immediately prior to that prepayment on the Break Date. "Present Value" is determined as of the Break Date using "B" above as the discount rate. In addition, a Break Event shall be deemed to occur hereunder if, on any date ("Borrowing Date") after the date hereof but prior to any acceleration of this Note, any advance of principal under this Note is scheduled to be made and that advance fails to be made on that Borrowing Date (whether due to Borrower's default, Borrower's failure to borrow, the termination of any loan commitment, any unsatisfied condition precedent, or otherwise), in which case that Borrowing Date shall be a Break Date, the Affected Principal Amount for that Break Event shall be based on the amount of the failed advance, and the Borrower shall on demand pay to the Bank any Breakage Fee due hereunder for that Break Event. Breakage Fees are payable as liquidated damages, are a reasonable pre-estimate of the losses, costs and expenses Bank would incur in the event of any prepayment or acceleration of this Note, are not a penalty, will not require claim for, or proof of, actual damages, and Bank's determination thereof shall be conclusive and binding in the absence of manifest error. For any Break Event hereunder, the foregoing Breakage Fee provisions supersede any breakage compensation agreement that Borrower and Bank may have executed with respect to this Note. •