HomeMy WebLinkAboutR-2003-030 Promissory Note SunTrust FPL tax exempt obligations final RESOLUTION NO. 2003- 030
A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA,
AUTHORIZING THE ISSUANCE OF ITS PROMISSORY NOTE, SERIES
2003 IN THE PRINCIPAL AMOUNT NOT TO EXCEED $441,904 TO PAY
FOR CERTAIN CAPITAL PROJECTS OF THE CITY AND COSTS
RELATED THERETO;PROVIDING FOR THE PAYMENT OF THE NOTE
FROM THE FRANCHISE FEES RECEIVED FROM FPL; PRESCRIBING
THE FORM, TERMS AND DETAILS OF THE NOTE; AWARDING THE
NOTE TO SUNTRUST BANK BY NEGOTIATED SALE; DESIGNATING
THE NOTE AS A "QUALIFIED TAX-EXEMPT OBLIGATION" WITHIN
THE MEANING OF SECTION 265(b)(3) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED; MAKING CERTAIN COVENANTS AND
AGREEMENTS IN CONNECTION THEREWITH; PROVIDING FOR
CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA;
SECTION 1. DEFINITIONS. As used herein, 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 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
1 RESOLUTION NO. 2003-030
1MGM/014536.00221W8020693_12/19/2003 1]30 AM}
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 hereafter designated
as the fiscal year of the City pursuant to general law.
"Franchise Fees" means the amounts received from Florida Power & Light Company
("FPL") pursuant to Ordinance No. 2002-013 of the City and that certain Franchise Agreement
between the City and FPL dated March 26, 2002, or otherwise.
"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 2003 authorized to be issued by the City in the
aggregate principal amount not to exceed $441,904, the form of which is attached as Exhibit "A"
hereto.
"Project" means the capital projects listed on Exhibit"B"hereto and costs related thereto.
"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.
"SunTrust" means SunTrust Bank, the initial purchaser of the Note, and its successors and
assigns
SECTION 2. AUTHORITY FOR RESOLUTION. This Resolution is enacted pursuant to
the provisions of the Act. The City has ascertained and hereby 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 herein is necessary in order to
carry out and 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 herein exercised are in
• 2 RESOLUTION NO. 2003-030
{MGM/014536.0022NV8020693_12/19/2003 1 130 AM}
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 ofthe
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 herein 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 hereof.
SECTION 4. AUTHORITY FOR ISSUANCE OF NOTE. Subject and pursuant to the
provisions hereof, a note to be known as "City of Dania Beach, Florida, Promissory Note, Series
2003" is hereby authorized to be issued in an aggregate principal amount not to exceed Four
Hundred Forty One Thousand, Nine Hundred and Four Dollars ($441,904.00) for the purpose of
financing the Project. The City shall not use the proceeds of the Note for any purpose other than the
Project without the written approval of SunTrust, which approval may be conditioned upon the
receipt of an opinion of nationally recognized bond counsel to the effect that such use will not
adversely affect the exclusion from the gross income of the Holder of the interest on the Note.
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 3.29%. Principal of and accrued interest on the Note will be payable in semi-annual
installments, with $139,500 amortized over a five year period, and $302,404 amortized over a ten
year period,with the first installment payable October 1,2003 and the final installment payable April
1, 2013. Interest on the Note shall be calculated on the basis of a 360 day year consisting of twelve
(12) thirty day months. The interest rate on the Note shall be adjusted upon the occurrence of an
"Event of Taxability" and in the event of changes in certain tax rates applicable to banking
corporations, all as set forth on the form of Note attached as Exhibit"A"hereto. Details of the Note
shall be as provided in the form of Note attached as Exhibit"A" hereto.
The Note shall be in registered form, contain substantially the same terms and conditions as
set forth in Exhibit"A"hereto, shall be payable in lawful money of the United States of America,
and the principal thereof, interest thereon and any other payments thereunder shall be payable by
check, wire, draft or bank transfer to the Holder at such address as may be provided in writing by
such Holder to the Clerk. 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"hereto.
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 delivery of the Note, such signature shall nevertheless be valid and sufficient for all
3 RESOLUTION NO . 2003-030
{MGM/014536.0022rW8020693_12/19/2003 1]30 AM}
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 thereof 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.
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 prepayment premium 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 hereof, in the manner and to the extent herein provided. 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 Franchise Fees.
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 Franchise Fees, prior and superior to all other liens or encumbrances on the
Franchise Fees, and the City hereby irrevocably pledges the Franchise Fees 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 Franchise Fees shall be cumulative to the extent not paid, and shall continue until the Note has
been paid in full.
The City covenants that for so long as the Note shall remain unpaid, it will continue to
impose the Franchise Fees,and will not amend or repeal the provisions of the resolutions,ordinances
and/or agreements of the City that impose the Franchise Fees as of the date hereof so as to reduce the
rate at which the Franchise Fees are imposed or the services or commodities subject to the Franchise
Fees, or otherwise modify the proceedings of the City relevant to the Franchise Fees in any manner
• 4 RESOLUTION NO. 2003-030
{MGM/014536.0022NV8020693_12/1912003 1130 AM}
so as to impair or adversely affect the ability of the City to impose and collect the Franchise Fees.
The City further agrees to take such legal action as may be necessary to enforce its rights under the
resolutions, ordinances and/or agreements pursuant to which the City imposes the Franchise Fees.
The City represents that the Franchise Fees are not pledged or encumbered in any manner,
except for the payment of the City's $2,350,000 Promissory Note, Series 2002A and $650,000
Promissory Note, Series 2002B. The City further represents that the revenues generated by the
Franchise Fees are 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 hereunder,including any unsatisfied obligations from
prior Fiscal Years.The City shall annually provide to SunTrust a copy of the Annual Budget and the
City's audited financial statements prepared in accordance with law, each within thirty(30)days of
its completion.
SECTION 12. ISSUANCE OF ADDITIONAL OBLIGATIONS. The City will not issue
any obligations or incur any liability payable from or secured by the Franchise Fees 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 the Franchise Fees on a parity with the Note("Additional Debt"), so
• long as no Event of Default exists hereunder and, for the most recently concluded Fiscal Year
preceding the proposed issuance of such Additional Debt (a)the Franchise Fees in such Fiscal Year
equaled at least one hundred fifty percent(150%)of the sum of(i)the maximum annual debt service
on the Note and (ii) the maximum annual debt service on such Additional Debt, and (b) the other
covenants of the City contained herein will continue to be met. For purposes of determining
compliance with (a)(ii) immediately above, the interest rate on any Additional Debt which bears
interest at a variable rate will be deemed to be the greater of(a)the projected initial rate of interest to
be borne by such Additional Debt or(ii)six percent(6.00%)per annum if the Additional Debt is tax
exempt and nine percent (9.00%) per annum if the debt is not tax exempt.
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 SunTrust in substantial accordance with SunTrust's Commitment Letter to the City dated
January 31, 2003, which letter is attached hereto as Exhibit "C" (the "Commitment"), is hereby
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 hereunder. Thereafter, no modification, amendment or supplement of this
Resolution,or of any resolution amendatory hereof or supplemental hereto,may be made without the
consent in writing of the Holder.
• 5 RESOLUTION NO . 2003-030
{MGM/014536.0022NV8020693_12/19/2003 1130 AM}
SECTION 15. TAX COVENANTS. It is the intention of the City and all parties under its
control that the interest on the Note be and remain excluded from gross income for federal income
tax purposes and to this end the City hereby represents to and covenants with each Holder of the
Note issued hereunder that it will comply with the requirements applicable to it contained in Section
103 and Part IV of Subchapter B of Chapter 1 of the Code to the extent necessary to preserve the
exclusion of interest on the Note issued hereunder from gross income for federal income tax
purposes. Specifically,without intending to limit in any way the generality of the foregoing,the City
covenants and agrees:
a) to refrain from using proceeds from the Note in a manner that might cause the Note
to be classified as a private activity bond under Section 141(a) of the Code; and
b) to refrain from taking any action that would cause the Note to become an arbitrage
bond under Section 148 of the Code.
The City understands that the foregoing covenants impose continuing obligations of the City
that will exist as long as the requirements of Section 103 and Part IV of Subchapter B of Chapter 1
of the Code are applicable to the Note.
SECTION 16. EVENTS OF DEFAULT; REMEDIES.
. A. Events of Default. Any one or more of the following events shall be an "Event of Default":
(i) The City shall fail to pay the principal of or interest on the Note when due;
(ii) The City shall default under any obligation for the repayment of money;
(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 herein or in the Note, and such default shall
continue for thirty(30)days after written notice specifying such default and requiring the same to be
remedied shall have been given to the City by the Holder of the Note; provided that such default
shall not be an Event of Default if the City within such 30 day period commences and carries out
with due diligence to completion(although not necessarily within such thirty(30)day period)such
action as is necessary to cure the same.
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 hereunder by a suit,action or special proceeding
6 RESOLUTION NO . 2003-030
{MGM/014536.0022N✓8020693_12/19/1003 1130 AM}
in equity or at law,by mandamus or otherwise,either for the specific performance of any covenant or
• agreement contained herein or for enforcement of any proper legal or equitable remedy as such
Holder shall deem most effectual to protect and enforce the rights aforesaid.
No remedy herein conferred upon or reserved to the Holder is intended to be exclusive of any
other remedy or remedies, and each and every such remedy shall be cumulative, and shall be in
addition to every other remedy given hereunder or now or hereafter existing at law or in equity.
No delay or omission of a Holder to exercise any right or power accruing upon any Event of
Default shall impair any such right or power or shall be construed to be a waiver of any such Event
of Default, or an acquiescence therein; and every power and remedy given by this article may be
exercised from time to time, and as often as may be deemed expeditious by a Holder.
SECTION 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 hereby authorized to
do all acts and things required of them by this Resolution, or desirable or consistent with the
requirements hereof,for the full punctual and complete performance of all the terms,covenants and
agreements contained herein 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
hereby 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 hereunder.
• SECTION 18. BAND QUALIFIED ISSUE. The City hereby designates the Note to be a
"qualified tax-exempt obligation" within the meaning of Section 265(b) of the Code.
SECTION 19. WAIVER OF JURY TRIAL. SUNTRUST AND THE CITY HEREBY
KNOWINGLY,VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY
HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR
ARISING OUT OF,UNDER OR IN CONNECTION WITH THIS RESOLUTION,THE NOTE OR
ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY.
SECTION 20. 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 hereunder,which remaining covenants,agreements and provisions
shall remain in full force and effect.
SECTION 21. NO THIRD-PARTY BENEFICIARIES. Except as herein otherwise
expressly provided,nothing in this Resolution expressed or implied is intended or shall be construed
• 7 RESOLUTION NO. 2003-030
{MGM/014536.0022NV8020693_12/]9/2003 1130 AM}
to confer upon any person,firm or corporation other than the parties hereto and a subsequent holder
• of the Note issued hereunder, any right, remedy or claim, legal or equitable, under or by reason of
this Resolution or any provision hereof, this Resolution and all its provisions being intended to be
and being for the sole and exclusive benefit of the parties hereto and the holder from time to time of
the Note issued hereunder.
. SECTION 22. 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 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 thereof.
SECTION 23. REPEAL OF INCONSISTENT RESOLUTIONS.All resolutions or parts
thereof in conflict with this Resolution are repealed to the extent of such conflict.
SECTION 24. EFFECTIVE DATE. This Resolution shall be in force and take effect
immediately upon its passage and adoption.
• PASSED AND ADOPTED THIS 25TH D OF FEBRUARY, 200 .
jR0YERT H. CHUNN, R. __y)
MAYOR-COMMISSIONER
ATTEST: ROLL CALL:
COMMISSIONER BERTINO-YES
COMMISSIONER MCELYEA- YES
CHARLENE J SON COMMISSIONER MIKES- YES
CITY CLERK VICE-MAYOR FLURY- YES
MAYOR CHUNN- YES
APPROVAASTORM AND CORRECTNESS
BY: 1TNSBRO
CITY ATTORNEY
8 RESOLUTION NO. 2003-030
{MGM/014536.0022NV8020693_12/19/2003 1130 AM}
EXHIBIT "A"
• REGISTERED REGISTERED
No. R- 1 $ 441,904.00
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF DANIA BEACH
PROMISSORY NOTE, SERIES 2003
Interest Rate: Maturity Date: Dated Date:
3.29% April 1, 2013 February_, 2003
REGISTERED OWNER: SUNTRUST BANK
PRINCIPAL AMOUNT: FOUR HUNDRED FORTY ONE THOUSAND,
NINE HUNDRED AND FOUR DOLLARS
KNOW ALL MEN BY THESE PRESENTS, that the City of Dania Beach, Florida, a
municipal corporation of the State of Florida (hereinafter called the "City") for value received,
hereby promises to pay to the Registered Owner identified above, or to registered assigns or legal
representatives, but solely from the revenues hereinafter mentioned, on the dates hereinafter
provided, the Principal Amount identified above,and to pay,solely from such revenues,interest on
the Principal Amount remaining unpaid from time to time, at the interest rate per annum identified
above(the"Note 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 hereof at his address as it appears on the registration books of the City at the close of business
on the fifth Business Day(as defined in the hereinafter described Resolution), next preceding each
interest payment date (the "Record Date").
Interest on this Note shall be calculated on the basis of a 360 day year and will be paid in
arrears for the actual number of days elapsed.
Payments of accrued interest on this Note will be due in arrears on the 1 st day of each April
and October,beginning October 1,2003. Payments of principal of this Note will be due in 20 semi-
annual installments in accordance with the following schedule:
October 1, 2003 $ April 1, 2007 $ October 1, 2010 $
April 1, 2004 October 1, 2007 April 1, 2011
October 1, 2004 April 1, 2008 October 1, 2011
April 1, 2005 October 1, 2008 April 1, 2012
October 1, 2005 April 1, 2009 October 1, 2012
April 1, 2006 October 1, 2009 April 1, 2013
October 1, 2006 April 1, 2010
® {MGM/014536.0022/W8020694_1/2/18/2003 04:56 PM}
1 Dun
Each date when principal and/or interest 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 preceding Business Day.
Any payment of principal hereof or interest hereon not paid when due shall bear interest from
the due date until paid at the maximum rate permitted by law.
This Note is the entire authorized issue of notes in the aggregate principal amount of
$441,904 issued to finance the Project(as defined in the Resolution),pursuant to the authority of and
in full compliance with the Constitution and laws of the State of Florida, including particularly
Article VIH, 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. 2003- , adopted by the City
Commission of the City on February 25, 2003 (the "Resolution").
This Note and the interest hereon are secured by and are payable from a prior lien upon and
pledge of the Franchise Fees(as defined in the Resolution),in the manner and to the extent provided
in the Resolution. Such lien and pledge are on a parity with the lien and pledge of the Franchise Fees
in favor of the holder of the City's $2,350,000 Promissory Note, Series 2002A and the City's
$650,000 Promissory Note, Series 2002B. Reference is hereby made 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 hereof for himself and his successors in interest assents by acceptance of this
Note. All terms used herein in capitalized form, unless otherwise defined herein, shall have the
meanings ascribed thereto in the Resolution.
For purposes of this Note, the following definitions shall apply:
(1) "Code" means the Internal Revenue Code of 1986, as amended;
(2) "Cost of Funds"means 100 multiplied by a fraction,the numerator of which
is equal to the total interest expense of SunTrust for its immediately preceding tax
year and the denominator of which is equal to the average total assets of SunTrust for such
tax year,but not to exceed the cost of Fed Funds.
(3) "Fully Taxable Equivalent" means the Note Rate multiplied by 1.65,
expressed as a number and not as a percentage.
(4) "Maximum Corporate Tax Rate" means the maximum Federal income tax
rate applicable to corporations, presently 35%.
(5) "Preference Reduction Rate"means the percentage reduction to be applied to
the amount allowable as a deduction under Chapter I of the Code with respect to any
{MGM/014536.0022/W8020694 1/2/18/2003 04:56 PM}
2
® financial institution preference item(as such term is defined in Section 291(e)of the Code),
presently 20%. If this Note is not or ceases to be a "qualified tax-exempt obligation" as
defined in Section 265(b) of the Code, the Preference Reduction Rate shall be deemed to
increase from twenty percent (20%) to one hundred percent (100%).
(7) "TEFRA Adjustment"means an adjustment equal to the product of the Cost
of Funds multiplied by the applicable Maximum Corporate Tax Rate multiplied by the
applicable Preference Reduction Rate.
If for any reason the interest on this Note becomes includable in the gross income of the
holder of this Note for Federal income tax purposes(an"Event of Taxability"), this Note shall bear
interest from the earliest effective date of such Event of Taxability at a rate per annum equal to the
interest rate otherwise borne by this Note multiplied by 1.55. In addition to the foregoing, the City
shall pay any additions to tax, penalties and interest, and any arrears in interest imposed upon the
holder of this Note on account of an Event of Taxability. All such additional interest, additions to
tax and penalties shall be paid on the next succeeding Payment Date following the date the holder
was advised of such Event of Taxability.
No Event of Taxability shall be deemed to occur unless the City has been given timely
written notice of such occurrence by the holder of this Note and, to the extent permitted by law, an
opportunity to participate in and seek,at the City's own expense,a final administrative determination
by the Internal Revenue Service or determination by a court of competent jurisdiction(from which
no further right of appeal exists) as to the occurrence of such Event of Taxability;provided that the
City,at its own expense,delivers to the holder of this Note an opinion of bond counsel acceptable to
such holder to the effect that such appeal or action for judicial or administrative review is not without
merit and there is a reasonable possibility that the judgment, order, ruling or decision from which
such appeal or action for judicial or administrative review is taken will be reversed, vacated or
otherwise set aside.
The interest rate borne by this Note shall also be adjusted automatically as of the effective
date of any change in the Maximum Corporate Tax Rate or in the Preference Reduction Rate,to the
product obtained by multiplying the Note Rate by a fraction,the numerator of which is equal to the
sum of(i)the product of the Fully Taxable Equivalent times 1 minus the Maximum Corporate Tax
Rate in effect as of the date of adjustment,plus(ii)the TEFRA Adjustment in effect as of the date of
adjustment,and the denominator of which is equal to the sum of(i)the product of the Fully Taxable
Equivalent times 0.65,plus (ii)the TEFRA Adjustment in effect on the date of closing of the Note.
A certificate of the Holder as to any such additional amount or amounts;in the absence of
manifest error, shall be final and conclusive. In determining such amount,the Holder may use any
reasonable averaging and attribution methods.
Upon the occurrence of an Event of Default(as defined in the Resolution), the Holder may
declare the entire outstanding balance due hereon to be immediately due and payable(but only from
. {MGM/014536.0022/W8020694_1/2/18/2003 04:56 PM}
3
the Franchise Fees), and in any such acceleration the City shall also be obligated to pay all costs of
collection and enforcement thereof,including such fees as may be incurred on appeal or incurred in
any bankruptcy or insolvency proceeding.
THIS NOTE SHALL NOT BE DEEMED TO CONSTITUTE A GENERAL DEBT OR A
PLEDGE OF THE FAITH AND CREDIT OF THE CITY, OR A DEBT OR PLEDGE OF THE
FAITH AND CREDIT OF THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION
THEREOF WITHIN THE MEANING OF ANY CONSTITUTIONAL, LEGISLATIVE OR
CHARTER PROVISION OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE
REGISTERED 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 herein 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 hereby 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.
The principal amount of this Note may be prepaid,in whole or in part,on any payment date,
at any time provided that the City pays a prepayment premium to SunTrust Bank(the"Bank") and
provides the Bank with at least one week written notice of intended prepayment. The "Prepayment
Premium" shall be the amount, as of the date of each event of prepayment, equal to a lump sum
prepayment charge together with accrued and unpaid interest applicable to the prepaid amount plus
all other amounts owing hereunder. The Prepayment Premium shall be determined by the Bank as
follows:
The Prepayment Premium shall be the sum of(i)all out-of-pocket costs incurred by the Bank
due to prepayment, plus (ii) a prepayment processing fee of $100.00, plus (iii) the Economic
Revenue Loss which may be incurred by the Bank as a result of prepayment.
The Economic Revenue Loss, which shall be calculated for each prepayment, is defined as
the present value of the difference between the Original Interest Rate Swap Rate minus the Current
Interest Rate Swap Rate (expressed in decimals), times the amount prepaid and then divided by
twelve(12),discounted at the Current Interest Rate Swap Rate for the remaining term to maturity of
. {MGM/014536.0022/W8020694 1/2/18/2003 04:56 PM}
4
the loan,expressed in months.The Economic Revenue Loss shall be determined by the Bank in good
faith, and the result, absent manifest error, shall be conclusive.
If the Current Interest Rate Swap Rate is equal to or greater than the Original Interest Rate
Swap Rate, there is no Economic Revenue Loss. In this event, the prepayment charge shall be the
sum of(i) out-of-pocket costs and (ii) a prepayment processing fee of$100.00.
The Original Interest Rate Swap Rate is defined as the rate published by the Federal Reserve
Board of Governors in the Federal Reserve H.15 Statistical Release as of February _, 2003
( %), and with a maturity corresponding to the original term of this Note. Should no maturity
exist that corresponds to the original term of this Note,then the maturity is calculated on a straight-
line interpolation between the immediately preceding posted rate and the immediately following
posted rate.
The Current Interest Rate Swap Rate is defined as the rate published by the Federal Reserve
Board of Governors in the Federal Reserve H.15 Statistical Release as of two Bank business days
prior to the prepayment date, and with a maturity corresponding to the maturity date of this Note.
Should no maturity exist that corresponds to the maturity date of this Note, then the maturity is
calculated on a straight-line interpolation between the immediately preceding posted rate and the
immediately following posted rate. For remaining terms of one year or less, the rate will be
calculated based on LIBOR as posted by the British Bankers Association which appears on
Bloomberg reporting service,or such similar service as determined by the Bank,two Bank business
• days prior to the prepayment date.
Should the Federal Reserve no longer release rates for Interest Rate Swaps under the Federal
Reserve H.15 Statistical Release, the Bank may substitute this index with another similar index.
A Prepayment is the amount of a future scheduled principal installment which is being
prepaid. If more than one future principal installment will be prepaid at the same time, then the
Economic Revenue Loss shall be the sum of the several Economic Revenue Loss calculations for
each prepaid principal installment.
Partial prepayments shall be applied to installments of principal in the inverse order of their
maturity.Prepayments of this Note may not be re-borrowed.Partial prepayments shall not lower the
amounts, or postpone the due dates,of any installments of principal and interest due hereunder,but
shall be applied to such installments in the inverse order of their maturities.
This Note may be assigned by the owner of this Note,or any assignee or successor-in-interest
thereto. Such assignment shall only be effective, and the City obligated to pay such assignee, upon
delivery to the Clerk at 100 West Dania Beach Boulevard, Dania Beach, Florida 33304 (or such
future address as may serve as the address of the City) of a written instrument or instruments of
assignment in the form provided herein, duly executed by the owner of this Note or by his
attorney-in-fact or legal representative,containing written instructions as to the details of assignment
• {MGM/014536.0022/W8020694_1/2/18/2003 04:56 PM}
5
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 charge
the registered owner of the Note for the registration of every such assignment of the Note an amount
sufficient to reimburse it for any tax, fee or any other governmental charge required to be paid,
except for any such governmental charge imposed by the City,with respect to the registration of such
assignment,and may require that such amounts be paid before any such assignment of the Note shall
be effective.
It is hereby certified and recited that all acts, conditions and things required to exist, to
happen,and to be performed precedent to and in the issuance of this Note exist,have happened and
have been performed in regular and due form and time as required by the laws and Constitution of
the State of Florida applicable hereto, and that the issuance of the Note does not violate any
constitutional or statutory limitation or provision.
THE REGISTERED OWNER, BY ITS 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 HEREON, OR ARISING OUT OF, UNDER OR IN
• CONNECTION WITH THIS NOTE, THE RESOLUTION OR ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE
OF CONDUCT,COURSE OR DEALING,STATEMENTS(WHETHER VERBAL OR WRITTEN
OR ACTIONS OF EITHER PARTY.
IN WITNESS WHEREOF, the City of Dania Beach, Florida has issued this Note and has
caused the same 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 thereof to be
affixed or reproduced hereon, all as of the 25th day of February, 2003.
CITY OF DANIA BEACH, FLORIDA
(SEAL)
City Clerk
City Manager
ATTEST:
• Mayor
{MGM/014536.0022/W8020694_1/2/18/2003 04:56 PM}
6
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
the within Note and all rights
thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Note in the books
kept by the City for the registration thereof, 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 within 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 within Note,
shall be construed as though they were written out in full according to the applicable laws or
regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN- as joint tenants with the right of survivorship and not as tenants in common
UNIFORM TRANS MIN ACT - Custodian for (Cust.) (Minor)under Uniform
Transfers to Minors Act of
(State)
Additional abbreviations may also be used
though not in the above list.
• {MGM/014536.0022/W8020694 1/2/18/2003 04:56 PM}
7
EXHIBIT "B"
Five Year Term:
Capital Item Amount
Document Imaging Program $34,000
(2) Pick-up Trucks $55,000
1 Small Truck $18,500
1 Suburban $32,000
Sub-Total for Five Year Term $139,500
Ten Year Term:
Capital Item Amount
Bathroom and City Hall
Renovations $11,156
Renovations to Chamber $75,000
Traffic Light $90,000
Remodel 2nd floor $35,000
Recreation Center $91,248
Sub-Total for Ten Year Term $302,404
TOTAL $441,904
10
{MGM/014536.0022/W8020693_1/2/19/2003 11:30 AM}
EXHIBIT "C"
SunTrust Bank W.Dane Sheldon
501 East Las Olas Boulevard,7th Floor Vice President
Ft.Lauderdale,FL 33301
• 01
Fax
954-765- 24
Fax 954-765-7240
SuNTRusimi,
January 31, 2003
SUBMITTED TO:
City of Dania Beach
100 W. Dania Beach Blvd.
Dania Beach,FL 33004
Attn.: Patricia Varney, Director of Finance
Dear Patricia,
SunTrust Bank, South Florida(Bank)is pleased to submit the following commitment to lend to The
City of Dania Beach, Fl. (Borrower) under the following terms and conditions:
1. Facility:
$441,904 Term Loan
The issue is anticipated to be a"Qualified Tax-Exempt Obligation"for purposes of section
265(b)(3) of the Internal Revenue Code of 1986.
2. Security:
The Loan will be for the City of Dania Beach,Florida and will be repaid from and secured by
a pledge of and lien on all revenues from the City's Electric Franchise Fees. Current and
future debt issues may carry a parity lien on Electric Franchise Fee revenues provided 1)the
aggregate Electric Franchise Fees collected over the last fiscal year is sufficient to cover the
highest combined annual debt service on all existing and proposed debt secured by Electric
Franchise Fees at least 1.5X; and 2) all payments on the existing indebtedness are current.
3. Interest Rate:
A fixed rate of 3.29% held until March 5,2003. The loan must close on or before March 5,
2003.
4. Repayment Terms:
Principal and interest will be due semi-annually beginning on October 1,2003 through April
1, 2013. Amortization will be over five (5) years for $139,500 and over ten (10) years for
$302,404.
City of Dania Beach
January 31, 2003
Page 2 of 4
® 5. Underwriting Fees:
None
6. Bank Counsel Legal Fee:
$5,000.00 to be paid by Borrower($6,000 if two separate bonds are required.)
7. Purpose:
The proceeds of the loan shall be used for various capital projects.
8. Prepayment Fee:
Prepayment fee will apply.
9. Disbursement of Loan Proceeds shall be within the control of the Borrower provided,
however,that the Borrower shall not apply any of the proceeds of the loan for a purpose other
than as set forth above.
10. Interest shall be calculated on a 30/360 basis.
11. "Qualified Tax-Exempt Obligation"shall have the same meaning as in Section 265 (b)(3)of
the Internal Revenue Code. The obligation must qualify for the Preference Reduction Rate of
20% as defined below.
® The fixed interest rate shall be adjusted, as set forth below, in the event of a change in the
Qualified Tax-Exempt status of the obligation.
Interest Rate if Loan Becomes Taxable. If the loan is deemed a "Qualified Tax-Exempt
Obligation"whereby the interest earned on the loan is excluded from the gross income of the
Bank when determining Federal and State tax liability,and the loan is issued at a tax exempt
rate but later the interest on the loan becomes taxable (i.e., ceases to be a "Qualified Tax-
Exempt Obligation ) for whatever reason, then the loan will bear interest from the earliest
effective date as of which interest payable on the loan is includable in the gross income of the
Bank at a Fixed Rate per annum equal to the Fixed Rate times 1.55(the"Taxable Rate").The
Borrower shall also pay any additions to tax, penalties, and any interest on the loan and its
gross income for Federal Income Tax purposes, and any arrears in interest resulting from a
determination of taxability. Any penalties in the form of interest or otherwise shall be paid
by the Borrower on the next succeeding interest payment date.
12. Arbitrage Responsibility. The Borrower shall assume whatever responsibility and take
whatever action is necessary to assure that the loan will not constitute an "Arbitrage Loan"
under the provision of Section 148 of the Code. Additionally,the Borrower shall covenant to
comply with any and all rebate requirements contained in Section 148 of the Code.
13. Interest Rate Limitation. If required,the Borrower shall take whatever action is necessary in
order to comply with the provisions of Section 215.84,Florida Statutes,relating to maximum
rate of interest including, but not limited to, the filing of a request with the State Board of
City of Dania Beach
January 31, 2003
Page 3 of 4
Administration for authorization of the interest rate provided herein,if such interest rate is in
excess of the maximum rate.
14. The Borrower shall comply with and agree to such other covenants, terms, and conditions,
that may be reasonably required by the Bank and its counsel and are customary in municipal
financing of this nature. These covenants would include, but not be limited to, covenants
regarding compliance with laws and regulations,the submission of audited financial data to
the Bank in a timely manner,events of default including failure to make payments,failure to
perform any covenant, and the filing of bankruptcy by the Borrower; and remedies in the
event of default, including acceleration.
15. It is understood that the bid set forth herein is conditioned upon the accuracy of information
provided to the Bank by the Borrower and the continued financial strength of the Borrower.
Any misrepresentation or false statement of material fashion made by the Borrower to induce
this bid or any material adverse change in the financial condition of the Borrower will be
sufficient cause for the Bank to terminate this proposal.
16. The Bank will require an opinion from a qualified Counsel regarding the bank qualified,tax-
exempt status of the notes, validity of issuance, enforceability of documents, and other
pertinent issues. Any commitment is subject to all documentation for the loan
contemplated by this proposal being reviewed and accepted in form and substance by
the Bank and its Counsel.
17. This letter constitutes a commitment on the part of the bank to lend and does not require any
additional internal approvals by the bank.
18. WAIVER: THE MAKER, BY EXECUTION HEREOF, AND THE LENDER, BY
ACCEPTANCE HEREOF, MUTUALLY AND WILLINGLY WAIVE THE RIGHT
TO A TRIAL BY JURY OF ANY AND ALL CLAIMS MADE BETWEEN THEM
WHETHER NOW EXISTING OR ARISING IN THE FUTURE, INCLUDING,
WITHOUT LIMITATION, ANY AND ALL CLAIMS, AND INTERVENOR'S
CLAIMS WHETHER ARISING FROM OR RELATED TO THE NEGOTIATION,
EXECUTION,AND PERFORMANCE OF THE TRANSACTIONS TO WHICH THIS
COMMITMENT RELATES.
THE COMMITMENT LETTER OUTLINES THE GENERAL TERMS AND CONDITIONS OF
THE LENDING AGREEMENT BETWEEN THE CITY OF DANIA BEACH, FL AND
SUNTRUST BANK, SOUTH FLORIDA. IF THIS OFFER IS NOT ACCEPTED BY THE CITY
COMMISSION ON OR BEFORE FEBRUARY 25, 2003,THE OFFER WILL EXPIRE UNLESS
EXTENDED BY THE BANK. IF ACCEPTED,THE FACILITY MUST CLOSE BY MARCH 5,
2003.
0 This letter is delivered to you with the understanding that neither it nor its substance shall be disclosed
to any third party except those who are in confidential relationship to you (such as legal counsel and
City of Dania Beach
January 31, 2003
Page 4 of 4
accountants)or where the same is required by law.
We sincerely appreciate the opportunity to serve The City of Dania Beach and look forward to
hearing from you. Please sign below upon acceptance and return the original to my attention. If you
have any questions please call me at (954) 765-7605.
Sincerely,
W. Dane Sheldon
Vice President
SIGNED AND ACCEPTED THIS DAY OF , 2003.
The City of Dania Beach, Fl.
BY:
® AS ITS:
Proposal for Financing
For The City of Dania Beach
January 31, 2003
$441,904
Contact Information:
SunTrust Bank South Florida.
501 East Las Olas Boulevard
Fort Lauderdale, FL 33301
Contact person: W. Dane Sheldon
Phone: (954) 765-7605
Fax: (954) 765-7240
Conditions: Please see attached proposal letter.
Agenda Request Form
{ City of Dania Beach
Agenda IteM7_
Date of Commission meeting: 2125/2003
Description of Agenda Item: Authorize the issuance of$441,904 promissory note
Commission action being requested:
Adopt Resolution or Ordinance ® Expenditure ❑ Award BID/ RFP ❑
Presentation ❑ General approval of item ❑ Continued from meeting
(Jth (Pleaseexplam)
Summaryexplanationand background
., .� ............
At the February 12 meeting, the City Commission approved the issuance of$441,904 financing with
SunTrust for an interest rate of not to exceed 3.29% to fund for certain FY 2003 capital projects. This
• resolution is to comply with the requirements of the bond counsel to include language of pledging
franchise fee and that the issue is a "Qualified Tax-Exempt Obligation".
y t .. ,
�Attachec[�exhibits and additional backup"materials (Please hst)
Resolution, Note
For purchasing requests ONLY
Department: Amount:
Fund: General: ❑ Water: ❑ Sewer: ❑ Stormwater: ❑ Grants: ❑ Capital: ❑
Account Name: Account Number:
Submitted by. Patricia Varney Date: 2/20/2003
Department Director.- Date:
Admin. Services Director. Date:
• Finance Director. Patricia Varney Date: 2/20/2003
City Manager. IPato Date: 2/20/2003