HomeMy WebLinkAboutR-2022-051 Issuance of Capital Improvement Non-Ad Valorem Revenue Note, Series 2022 Not to Exceed $18,100,000 to Finance Parks and Recreation Master Plan ProjectRESOLUTION NO.2022-051
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA AUTHORIZING THE ISSUANCE OF CAPITAL
IMPROVEMENT NON -AD VALOREM REVENUE NOTE, SERIES 2022 OF
THE CITY OF DANIA BEACH, FLORIDA IN AN AMOUNT NOT TO
EXCEED $18,100,000 FOR THE PURPOSE OF FINANCING ALL OR A
PORTION OF THE COST OF THE PARKS AND RECREATION MASTER
PLAN CAPITAL PROJECT AND VARIOUS PUBLIC SAFETY CAPITAL
IMPROVEMENT PROJECTS AND PROVIDING FOR THE PAYMENT OF
THE COST OF ISSUANCE OF THE NOTE; APPROVING TRUIST BANK AS
THE MOST RESPONSIVE RESPONDER TO THE CITY'S REQUEST FOR
PROPOSALS FOR FINANCING THE PROJECT; APPROVING AND
AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN
AGREEMENT WITH TRUIST BANK; AWARDING THE SALE OF THE NOTE
TO TRUIST BANK; PROVIDING FOR SECURITY FOR THE NOTE;
PROVIDING CERTAIN OTHER MATTERS IN CONNECTION WITH THE
ISSUANCE OF THE NOTE; PROVIDING FOR CONFLICTS; PROVIDING
FOR SEVERABILITY; AND FURTHER, PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the City of Dania Beach, Florida ("City"), a municipal corporation, is duly
created and existing pursuant to the Florida Constitution and by virtue of the laws of the State of
Florida ("State"); and
WHEREAS, the City Commission of the City (the "Commission"), on February 22, 2022,
enacted Ordinance No. 2022-10 (the "Expenditure Ordinance") authorizing the expenditure of
funds for the purpose of funding the City's Parks Master Plan Phase I — CW Thomas Park (the
"Park Project"); and
WHEREAS, the Commission has also determined that certain existing public safety
buildings for Police and Fire Rescue need to be reconfigured in accordance with modern-day
standards and needs, which may require demolition, consolidation, and reconstruction of such
buildings (the "Public Safety Project", and collectively, with the Park Project, the "Project"); and
WHEREAS, prior to the expenditure of funds for the Public Safety Project, the
Commission shall adopt an ordinance authorizing the expenditure of funds in excess of $1,000,000
with respect to funding the Public Safety Project as required by Charter; and
WHEREAS, the Commission desires to authorize the issuance of not exceeding
$18,100,000 Capital Improvement Non -Ad Valorem Revenue Note (the "Note") for the purpose
of financing all or a portion of the costs of the Project and paying the costs of issuance of the Note:
and
WHEREAS, on January 25, 2022, the City issued its Request for Proposals City Bid No.
22-004 ("REP") for a bank loan in an amount not to exceed $18,100,000 for the purpose of
financing the Project; and
WHEREAS, the Commission desires that the Note be secured by a covenant to budget and
appropriate from legally available non -ad valorem revenues of the City; and
WHEREAS, on February 14, 2022, pursuant to the RFP loan proposals were received
from two banks as follows:
• Truist Bank
• Webster Bank, formerly Sterling National Bank; and
WHEREAS, the City's financial advisor, Dunlap & Associates, Inc., and City's Finance
Director recommend Commission approval for award of the note and the financing proposal bid
to the most responsive bidder — Truist Bank (the "Bank"); and
WHEREAS, the Commission hereby determines it to be in the best interests of the City
to proceed with a negotiated sale of the Note in accordance with the provisions of §218.385, F.S.
and therefore to accept the proposal of the Bank (the "Proposal"), which is attached as Exhibit "A"
to this Resolution, to purchase the Note in accordance with the additional findings set forth herein;
and
WHEREAS, the Commission desires to set forth the details of the Note and the other
provisions of the financing in a Loan Agreement with the Bank (the "Loan Agreement"), which is
attached in substantially final form, as Exhibit `B" to this Resolution;
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND THE CITY
COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, THAT:
Section 1. Incorporation. That the foregoing findings are incorporated by reference
and made a part of this Resolution.
Section 2. Authority. In accordance with the provisions of the Charter of the City,
the Code of Ordinances of the City, and Chapter 166, Florida Statutes, there is hereby authorized
to be issued a Note of the City, in an aggregate principal amount not to exceed $18,100,000, for
the purpose of financing all or a portion of the costs of the Project and paying the cost of issuance
of the Note. The Note shall be designated "City of Dania Beach, Florida Capital Improvement
2 RESOLUTON #2022-051
Non -Ad Valorem Revenue Note, Series 2022". The details of the Note and the other provisions
of the financing shall be set forth in the Loan Agreement attached hereto as Exhibit `B".
Section 3. Approval of Loan Agreement. The Commission hereby approves the
Loan Agreement by and between the City and the Bank, in substantially the form presented at this
meeting and attached hereto as Exhibit `B". The City Manager is hereby authorized to execute,
the Mayor is hereby authorized to countersign and deliver the Loan Agreement on behalf of the
City and the City Clerk is authorized to place the City's seal thereon and attest thereto, in
substantially the form presented at this meeting, with such changes, modifications, deletions and
insertions as the City Manager, with the advice of the City Attorney, may deem necessary and
appropriate. Such execution and delivery shall be conclusive evidence of the approval thereof by
the City.
Section 4. Authority of Officers. The appropriate City Officials, including but not
limited to the City Manager, Mayor, City Clerk, Finance Director and City Attorney, are
authorized and directed to execute to do all other things necessary to accomplish the issuance and
sale of the Note. The City Clerk is hereby authorized to attest the City Manager's and Mayor's
signature. All action taken to date by the officers of the City in furtherance of the issuance of the
Note and the obtaining of the Proposal is hereby approved, confirmed and ratified.
Section 5. Pledge of Security. In order to secure the payment of the Note, the
Commission hereby authorizes a covenant to budget and appropriate from legally available Non -
Ad Valorem Revenues of the City (as defined in the Loan Agreement), as set forth in the Loan
Agreement attached hereto as Exhibit `B".
Section 6. Negotiated Sale of the Note. Based upon the uncertainty of the interest
rate environment if sale of the .Note is delayed, the City hereby determines the necessity for a
negotiated sale of the Note. Prior to the final delivery of the Note to the Bank, the City will require
that it be provided all applicable disclosure information required by Section 218.385, Florida
Statutes. The negotiated sale of the Note to the Bank is hereby approved at a purchase price of par.
Section 7. Repeal of Resolutions in Conflict. All Resolutions or parts of Resolutions
in conflict herewith are hereby repealed to the extent of such conflict.
Section 8. Severability Clause. If any phrase, clause, sentence, paragraph or section
of this Resolution shall be declared invalid or unconstitutional by the judgment or decree of a court
3 RESOLUTON #2022-051
of competent jurisdiction, such invalidity or unconstitutionality shall not affect any of the
remaining phrases, clauses, sentences, paragraphs or sections of this Resolution.
Section 9. Effective Date. That this Resolution shall become effective immediately
upon its passage and adoption.
PASSED AND ADOPTED on March 22, 2022.
ATTEST:
r
THOMAS SCHNEIDER, CMC �•
CITY CLERK
*'TAMARA JAMES
off MAYOR /
rd
RESOLUTON #2022-051
EXHIBIT "A"
PROPOSAL OF TRUIST
RESOLUTON #2022-051
Truist Financial Corporation
Governmental Finance
2320 Cascade Point Blvd. Suite 600
Charlotte, North Carolina 28208
Phone (704) 954-1700
Fax (704) 954-1799
February 14, 2022
Ms. Sasha Ramos
Procurement Administrator
City of Dania Beach
100 W Dania Beach Blvd.
Dania Beach, FL 33004
Dear Ms. Ramos:
Truist Bank ("Lender") is pleased to offer this proposal for the financing requested by the City of Dania Beach
("Borrower").
PROJECT: Capital Improvement Non -Ad Valorem Note, Series 2022
AMOUNT: $18,100,000.00
MATURITY DATE: October 15, 2042
INTEREST RATE: 2.52%
TAX STATUS: Tax Exempt — Non -Bank Qualified
PAYMENTS: Interest: Semi -Annual
Principal. Annual
INTEREST RATE
CALCULATION: 30/360
SECURITY: Covenant to Budget and Appropriate legally available non -ad valorem revenues of
the Borrower
PREPAYMENT
TERMS: Prepayable in whole at any time on or after October 15, 2027 without penalty
RATE
EXPIRATION: March 28, 2022
DOCUMENTATION/
LEGAL REVIEW
FEE: $7,500
FUNDING: The financing shall be fully funded at closing and allow for a maximum of four
funding disbursements in the form of wires or checks.
DOCUMENTATION: It shall be the responsibility of the Borrower to retain and compensate counsel to
appropriately structure the financing documents according to Federal and State
statutes. Documents shall include provisions that will outline appropriate changes to
be implemented in the event that this transaction is determined to be taxable in
accordance with the Internal Revenue Code. These provisions must be acceptable to
Lender. In the event of default, any amount due, and not yet paid, shall bear interest
at a default rate equal to the interest rate on the Capital Improvement Non -Ad
Valorem Note, Series 2022 plus 2% per annum from and after five (5) days after the
date due.
Lender shall also require the Borrower to provide an unqualified bond counsel
opinion, a no litigation certificate, and evidence of IRS Form 8038 filing. Lender
and its counsel reserve the right to review and approve all documentation before
closing. Lender will not be required to present the bond for payment.
REPORTING
REQUIREMENTS: Lender will require financial statements to be delivered within 270 days after the
conclusion of each fiscal year-end throughout the term of the financing or in
accordance with state requirements.
Lender shall have the right to cancel this offer by notifying the Borrower of its election to do so (whether this
offer has previously been accepted by the Borrower) if at any time prior to the closing there is a material adverse
change in the Borrower's financial condition, if we discover adverse circumstances of which we are currently
unaware, if we are unable to agree on acceptable documentation with the Borrower or if there is a change in law
(or proposed change in law) that changes the economic effect of this financing to Lender.
Costs of counsel for the Borrower and any other costs will be the responsibility of the Borrower.
The stated interest rate assumes that the Borrower expects to borrow more than $10,000,000 in the current
calendar year and that the financing will qualify as tax-exempt financing under the Internal Revenue Code.
Lender reserves the right to terminate this bid or to negotiate a mutually acceptable interest rate if the financing
is not tax-exempt financing.
We appreciate the opportunity to offer this financing proposal. Please call me at (803) 413-4991 with your
questions and comments. We look forward to hearing from you.
Sincerely,
Truist Bank
z4w,,/�
Andrew G. Smith
Senior Vice President
City of Dania Beach, Florida
Capital Improvement Non Ad -Valorem Note, Series 2022
EXHIBIT "ONE"
CITY OF DANIA BEACH, FLORHM
Sworn Statement Under §287.133(3)(a), Florida Statutes
on Public Entity Crimes
(This form must be signed in the presence of a Notary Public or other officer authorized to
administer oaths.)
This sworn statement is submitted with Bid, Proposal or Contract No. 2-2- D ° /
2. This sworn statement is submitted by:
its business address is:
Federal Identification Number
(FEN is:
(Name of entity submitting sworn statement)
<C1t 1 j1/1/4.w
�9't b Z----,
(if applicable)
Social Security Number:
(if the entity has no FEIN, include the Social Security
Number of the individual signing this sworn statement)
3. My name is:a.
(print name of individual signing this document)
and my relationship to the entity is: 5' +- V
(President, General Partner, etc. as applicable)
4. I understand that a "public entity crime" as defined in §287.133(1)(g), Florida Statutes means a
violation of any state or federal law by a person with respect to and directly related to the transaction
of business with any public entity or with an agency or political subdivision of any other state or
with the United States, including, but not limited to, any bid or contract for goods or services to be
provided to any public entity or an agency or political subdivision of any other state or of the United
States and involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or material
misrepresentation.
5. I understand that to be "convicted" or "conviction" as defined in §287.133(1)(b), Florida Statutes,
means a finding of guilt and conviction of a public entity crime, with or without an adjudication of
guilt, in any federal or state trial court of record relating to charges brought by indictment or
information after,July 1, 1989, as a result of a jury verdict, non jury trial, or entry of a plea of guilty
or polo contendete (also known as a plea of "No Contest").
6. I understand that an "affiliate" as defined in §287.133(1)(a), Florida Statutes means:
a) A predecessor or successor of a person or a corporation convicted of a public entity crime; or
b) An entity under the control of any natural person who is active in the management of the entity
and which has been convicted of a public entity crime. The term "affiliate" includes those
16
City of Dania Beach, Florida
Capital Improvement Non Ad -Valorem Note, Series 2022
officers, directors, executives, partners, shareholders, employees, members, and agents who
are active in the management of an affiliate. The ownership by one person of shares constituting
a controlling interest in another person, or a pooling of equipment or income among persons
when not for fair market value under an arm's length agreement, shall be a primafacie case that
one person controls another person. A person who knowingly enters into a joint venture with a
person who has been convicted of a public entity crime in Florida during the preceding 36
months shall be considered an affiliate.
I understand that a "person" as defined in §287.133(1)(e), Florida Statutes, means any natural
person or entity organized under the laws of any state or of the United States with the legal power
to enter into a binding contract and which bids or applies to bid on contracts for the provision of
goods or services let by a public entity, or which otherwise transacts or applies to transact business
with a public entity. The term "person" includes those officers, directors, executives, partners,
shareholders, employees, members, and agents who are active in management of an entity.
8. Based on information and belief, the statement that I have marked below is true in relation to the
entity sub ng this sworn statement. (Please indicate which statement applies)
a) Neither the entity submitting the sworn statement, nor any officers, directors,
executives, partners, shareholders, employees, members or agents who are active in
management of the entity nor any affiliate of the entity have been charged with and convicted
of a public entity crime subsequent to July 1, 1989.
b) The entity submitting this sworn statement, or one or more of the officers, directors,
executives, partners, shareholders, employees, members or agents who are active in
management of the entity or an affiliate of the entity has been charged with and convicted of a
public entity crime subsequent to July 1, 1989 and (Please now indicate which additional
statement below applies):
1. There has been a proceeding concerning the conviction before a hearing officer
of the State of Florida, Division of Administrative Hearings. The final order entered by the
hearing officer did not place the person or affiliate on the convicted vendor list. (Please
attach a copy of the final order)
2. The person or affiliate was placed on the convicted list. There has been a
subsequent proceeding before a hearing officer of the State of Florida, Division of
Administrative Hearings. The final order entered by the hearing officer determined that it
was in the public interest to remove the person or affiliate from the convicted vendor list.
(Please attach a copy of the final order)
3. The person or affiliate has not been placed on the convicted vendor list. (Please
describe any action taken by or pending with the Florida Department of General
Services)
Sign ture (of person whose Printed Name Dat
first appears above)
17
City of Dania Beach, Florida
Capital Imorovvement Non Ad -Valorem Note, Series 2022
STATE OF •F�lli' l I nq )
COUNTY OF o ) �_l,'
Sworn to and subscribed before me on "Yua % , 20� /�Y`t-` by ec,:'l-) itt;-44 , who
(check one) [ ] is personally known to me or fv] Sas prodtked as identification.
cif J)L
My commission expires: i'%• t l �, 1 1-�4"7-3
=b!ic
ON
h Carai'srsa
�sr 16, 2023
18
fvv--,-td
Nota is
PRINT Name of Notary Public
City of Dania Beach, Florida
Capital Improvement Non Ad -Valorem Note, Series 2022
EXHIBIT "TWO"
NON -COLLUSION AFFIDAVIT
CITY PROJECT NAME: BANK LOAN $I8,100,000(Not-to-Exceed)
CAPITAL IMPROVEMENT NON -AD VALOREM NOTE,
SERIES 2022
CITY BID NO.22-004
The undersigned Respondent has not divulged, discussed, or compared his/her/its response with any other
Respondent, and has not colluded with any other Respondent or parties to this RFP whatsoever.
Name of Respondent
sigr(atdre
PRINT Name
Title
91/1f , 20;2 --
Date
'Sovih Co.vtino�_
STATE OF A )
COUNTY OF�na-}On _ )
Sworn to and subscribed before me on
personally known to me or who has produced
My commission expires:
s JENNIFER L NORTON
«wry Public - Stafe of South Carolina
W Commission Expires December 16, 20M
19
2014, by AhdkCc,U �iM if ( who is
i to o.C-e j , as identification.
Not�yjP�blic
��ff
PRINT ame of Notary Public
City of Dania Beach, Florida
Capital Improvement Non Ad -Valorem Note, Series 2022
EXHIBIT "THREE"
REQUEST FOR PROPOSAL
CITY OF DANIA BEACH
$18,100,000 (Not -to -Exceed)
CAPITAL IMPROVEMENT NON -AD VALOREM NOTE, SERIES 2022
NON -BANK QUALIFIED
Name & Address of Bank: • yfi
2r- ire
c�zv 1
2. Contact Person of Bank: A ov 00 Lw zsr • •�
Title:
Phone #: -19Q /
f
E-Mail: �.e re rr . C.... h e T,..,a"- • t. F--
Expenses to be paid by City (specify a not to exceed amount for each category):
Bank Counsel Fee: ?.
Bank Counsel Expenses:
4. A. Interest Rate: Callable any time on or after October 1, 2027 at Par: -?. f Z:_ %
Formula:
Interest Rate(s) Held Until:
B. Interest Rate: Callable any time on or after October 1, 2037 at Par:: %
Formula:
Interest Rate(s) Held Until:
C. Interest Rate: Callable any time without penalty: %
Formula:
Interest Rate(s) Held Until:
The City is looking for a fixed interest rate to be held until the closing date on March 24 2022 without
entering into an_y rate lock agreement.
List 3 recent similar financings including a reference for each:
C.-k1 at, P "11j91aa.r.01*fe., Ft CNRrs 'Zteo4.t_ F. n.w..a. .t•
�'•;� oG Alrceu.14e _ 1�1 t7An� `Dep��` �i�-.wt+ea_ S3�•Tr'
C•-��, of 6101)e(/k.41 r—L MILA0 r�.N.E+ Si •I�
Signature of Bank �5 Date: 02 /yr128 z 2—
1
20
City of Dania Beach, Florida
Capital Improvement Non Ad -Valorem Note, Series 2022
EXHIBIT "FOUR"
ACKNOWLEDGMENT OF ADDENDA
The Proposer acknowledges the receipt of the following addenda issued by the City and
incorporated into and made part of the RFP. In the event the Proposer fails to include any such
addenda in the table below, submission of this form shall constitute acknowledgment of receipt of
all addenda, whether or not received by the Proposer.
ADDENDU
M NUMBER
DATE
RECEIVED
PRINT NAME
TITLE
SIGNATURE
(BLUE INK ONLY)
kv 11---
21
EXHIBIT `B"
FORM OF LOAN AGREEMENT
RESOLUTON #2022-051
LOAN AGREEMENT
This LOAN AGREEMENT (this "Agreement") is made and entered into as of March 24,
2022, and is by and between the City of Dania Beach, Florida, a Florida municipal corporation,
and its successors and assigns (the "City"), and Truist Bank, a state banking corporation, and its
successors and assigns as holder of the hereinafter defined Note (the "Bank");
WHEREAS, on February 22, 2022, the City Commission of the City (the "Commission")
enacted Ordinance No. 2022-10 (the "Expenditure Ordinance") authorizing the expenditure of
funds for the purpose of funding the City's Parks Master Plan Phase I — CW Thomas Park (the
"Park Project"), and on March 22, 2022, the Commission adopted Resolution No. 2022- (the
"Note Resolution"), approving a loan from the Bank and the issuance of a Note in the principal
amount not to exceed $18,100,000 for the purpose of financing all or a portion of the costs of the
Park Project and the demolition, consolidation, and reconstruction of certain existing public
safety buildings for Police and Fire Rescue (the "Public Safety Project", and collectively, with
the Park Project, the "Project") and paying costs of issuance of the Note: and
WHEREAS, the City hereby determines that it is desirable and in the best interest of the
City to enter into this Agreement whereby the City will borrow funds (the "Loan") from the
Bank to be used to finance a portion of the costs of the Project and pay the costs of issuance of
the Note; and
WHEREAS, the obligation of the City to repay such Loan shall be evidenced by the
delivery of its $18,100,000 Capital Improvement Non -Ad Valorem Revenue Note, Series 2022
(the "Note") to the Bank in the principal amount of the Loan; and
WHEREAS, the Note shall be issued pursuant to the terms and provisions of the
Expenditure Ordinance, the Note Resolution and this Agreement; and
WHEREAS, the execution and delivery of this Agreement have been duly authorized by
the Note Resolution.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby and in
consideration of the mutual covenants hereinafter contained, DO HEREBY AGREE as follows:
ARTICLE I
DEFINITION OF TERMS
Section 1.1 Definitions. The words and terms used in this Agreement shall have the
meanings as set forth in the Note Resolution and in the recitals above, unless otherwise defined
herein. Unless the context shall otherwise require, the following words and terms as used in this
Agreement shall have the following meanings:
"Act" means Part II of Chapter 166, Florida Statutes, as amended, the Charter of the City,
and other applicable provisions of law.
"Ad Valorem Revenues" means all revenues generated from ad valorem taxation on real
or personal property of the City less ad valorem revenues generated to pay debt service on voted
debt.
"Agreement" means this Loan Agreement and any and all modifications, alterations,
amendments and supplements hereto made in accordance with the provisions hereof.
"Audit" means the audited financial statements of the City.
"Balloon Indebtedness" means Debt, 25% or more of the original principal of which
matures during any one Fiscal Year.
"Business Day" means any day which is not a Saturday, Sunday or other day on which
the Bank is lawfully closed.
"Clerk" means the Clerk or any Deputy Clerk of the City.
"Dated Date" means the date of issuance of the Note.
"Debt" means at any date (without duplication) all of the following to the extent that they
are guaranteed or secured by or payable in whole or in part from any Non -Ad Valorem Revenues
(a) all obligations of the City for borrowed money or evidenced by bonds, debentures, notes, or
other similar instruments; (b) all indebtedness of other persons to the extent guaranteed by, the
Non -Ad Valorem Revenues of the City; and (c) any obligation of the City for borrowed money
or evidenced by bonds, debentures, notes, or other similar instruments where the security
provided by the Non -Ad Valorem Revenues is not the primary security for the obligation or is a
backup pledge for the obligation; provided, however, if with respect to any obligation
contemplated in (b) or (c) above, such obligation shall not be considered 'Debt" for purposes of
this Agreement unless the City has actually used Non -Ad Valorem Revenues to satisfy such
obligation during the immediately preceding Fiscal Year or reasonably expects to use Non -Ad
Valorem Revenues to satisfy such obligation in the current or immediately succeeding Fiscal
Year. After an obligation is considered "Debt" as a result of the proviso set forth in the
immediately preceding sentence, it shall continue to be considered "Debt" until the City has not
used any Non -Ad Valorem Revenues to satisfy such obligation for two consecutive Fiscal Years.
"Default Rate" means the rate to be imposed upon the Note, from and after (5) days from
the occurrence of an Event of Default which equals two percentage points (2.0%) in excess of
the Interest Rate or Taxable Rate borne by the Note immediately prior to the occurrence of the
Event of Default.
"Determination of Taxability" means a final decree or judgment of any federal court or a
final action of the Internal Revenue Service or of the United States Treasury Department
determining that due to the action or inactions of the City and not due to a change in tax law, any
interest payable on this Note is includable in the gross income of the Holder. No such decree or
action shall be considered final for the purposes of this paragraph unless the City has been given
written notice thereof from the Internal Revenue Service or the United States Treasure
2
Department, as applicable 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 Holder and until the conclusion of any appellate review, if sought.
"Essential Government Services" means the City's general government and public safety
expenses as reported in the City's Audit.
"Event of Default" shall mean an event of default specified in Article VIII of this
Agreement.
"Fiscal Year" means the period commencing on October I 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.
"General Fund Revenues" means total revenues of the City derived from any source
whatsoever and that are allocated to and accounted for in the general fund of the City's Audit.
"Governing Body" means the City Commission of the City, or its successor in function.
"Holder" means the registered owner (or its authorized representatives) of the Note from
time to time, initially the Bank.
"Interest Payment Date" means each April 15 and October 15, commencing October 15,
2022.
"Interest Rate" means 2.52% per annum, subject to adjustment as provided in Section 8.2
hereof and in the Note.
"Loan" means the outstanding principal amount of the Note issued hereunder.
"Loan Documents" means this Agreement, the Note, the Note Resolution and all other
documents, agreements, certificates, schedules, notes, statements, and opinions, however
described, referenced herein or executed or delivered pursuant hereto or in connection with or
arising with the Loan or the transaction contemplated by this Agreement.
"Manager" means the City Manager and such other person as may be authorized to act on
his or her behalf.
"Maturity Date" means October 15, 2042.
"Maximum Annual Debt Service" means, with respect to the Note, together with any
Debt, the maximum aggregate principal of and interest due on such obligations in any Fiscal
Year.
"Mayor" means the Mayor of the City and such other person as may be authorized to act
on his or her behalf.
3
"Non -Ad Valorem Revenues" means all revenues of the City derived from any source
other than ad valorem taxation on real or personal property accounted in the General Fund and
which are legally available to make the payments required under this Agreement.
"Note Counsel" means Weiss Serota Helfman Cole & Bierman, P.L. or such other
counsel experienced in matters relating to the validity of, and the exclusion from gross income
for federal income tax purposes of interest on, obligations of states and their political
subdivisions selected by the City.
"Note Payment Dates" mean each Interest Payment Date and Principal Payment Date on
the Note.
"Person" means natural persons, firms, trusts, estates, associations, corporations,
partnerships and public bodies.
"Principal Payment Date" means each October 15, commencing on October 15, 2022 and
thereafter until the Maturity Date.
"Reimbursement Resolution" means Resolution No. 2021-102, adopted by the
Commission on July 13, 2021 declaring its official intent to issue obligations to pay the cost of
the Project.
"State" means the State of Florida.
Section 1.2 Interpretation. Unless the context clearly requires otherwise, words of
masculine gender shall be construed to include correlative words of the feminine and neuter
genders and vice versa, and words of the singular number shall be construed to include
correlative words of the plural number and vice versa. This Agreement and all the terms and
provisions hereof shall be construed to effectuate the purposes set forth herein and to sustain the
validity hereof.
Section 1.3 Titles and Headings. The titles and headings of the articles and sections
of this Agreement have been inserted for convenience of reference only and are not to be
considered a part hereof, shall not in any way modify or restrict any of the terms and provisions
hereof, and shall not be considered or given any effect in construing this Agreement or any
provision hereof or in ascertaining intent, if any question of intent should arise.
ARTICLE II
REPRESENTATIONS OF CITY
The City represents and warrants to the Bank that:
Section 2.1 Powers of City. The City is duly organized and validly existing as a
municipal corporation under the laws of the State. The City has the power to borrow the amount
provided for in this Agreement, to execute and deliver the Loan Documents, to secure the Note
in the manner contemplated hereby, and to perform and observe all the terms and conditions of
4
the Note and this Agreement on its part to be performed and observed. The City may lawfully
issue the Note in order to finance a portion of the costs of the Project and pay costs of issuance of
the Note.
Section 2.2 Authorization of Loan. The City has full legal right, power, and
authority to adopt the Note Resolution and to execute and deliver this Agreement, to issue, sell,
and deliver the Note to the Bank, and to carry out and consummate all other transactions
contemplated hereby and by the Loan Documents, and the City has complied and will comply
with all provisions of applicable law in all material matters relating to such transactions. The
City, by the Note Resolution and the Expenditure Ordinance, has duly authorized the borrowing
of the amount provided for in this Agreement, the execution and delivery of this Agreement, and
the making and delivery of the Note to the Bank, and to that end the City warrants that it will
take all action and will do all things which it is authorized by law to take and to do in order to
fulfill all covenants on its part to be performed and to provide for and to assure payment of the
Note. The City has duly adopted the Note Resolution and authorized the execution, delivery, and
performance of the Note and the Agreement and the taking of any and all other such action as
may be required on the part of the City to carry out, give effect to and consummate the
transactions contemplated by the Loan Documents. The Note, upon the execution and delivery to
the Bank, constitutes the legal, valid and binding obligation of the City enforceable in
accordance with its terms and the terms of the Note Resolution, and are entitled to the benefits
and security of the Note Resolution and this Agreement. All approvals, consents, and orders of
and filings with any governmental authority or agency which would constitute a condition
precedent to the issuance of the Note or the execution and delivery of or the performance by the
City of its obligations under the Loan Documents have been obtained or made and any consents,
approvals, and orders to be received or filings so made are in full force and effect.
Section 2.3 Agreements. The making and performing by the City of this Agreement
will not violate any provision of the Act, or any ordinance or resolution of the City, or any
regulation, order or decree of any court, and will not result in a breach of any of the terms of any
agreement or instrument to which the City is a party or by which the City is bound. Upon the
execution and delivery of the Loan Documents each constitutes the legal, valid and binding
obligation of the City enforceable in accordance with their respective terms.
Section 2.4 Litigation, Etc. There are no actions or proceedings pending against the
City or affecting the City or, to the knowledge of the City, threatened, which, either in any case
or in the aggregate, might result in any material adverse change in the financial condition of the
City, or which question the validity of this Agreement, the Note or any of the other Loan
Documents or of any action taken or to be taken in connection with the transactions
contemplated hereby or thereby. The City is not in default in any material respect under any
agreement or other instrument to which it is a parry or by which it may be bound.
Section 2.5 Financial Information. The financial information regarding the City
furnished to the Bank by the City in connection with the Loan is complete and accurate, and
there has been no material and adverse change in the financial condition of the City from that
presented in such information.
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ARTICLE III
COVENANTS OF THE CITY
Section 3.1 Affirmative Covenants. The City covenants, for so long as any of the
principal amount of or interest on the Note is outstanding and unpaid or any duty or obligation of
the City hereunder or under any of the other Loan Documents remains unpaid or unperformed, as
follows:
(a) Use of Proceeds. The City represents and warrants that the proceeds from
the Note will be used only to finance the Project and pay the costs of issuance of the Note. The
City represents and warrants that, as of the date of issuance of the Note, there are no other bonds,
notes or obligations of the City secured by a covenant to budget and appropriate legally available
Non -Ad Valorem Revenues, in the manner contemplated by this Agreement and the Note
Resolution.
(b) Notice of Defaults. The City shall within ten (10) days after it acquires
knowledge thereof, notify the Bank in writing upon the happening, occurrence, or existence of
any Event of Default, and any event or condition which with the passage of time or giving of
notice, or both, would constitute an Event of Default, and shall provide the Bank with such
written notice, a detailed statement by a responsible officer of the City of all relevant facts and
the action being taken or proposed to be taken by the City with respect thereto.
(c) Records. The City agrees that any and all records of the City shall be
open to inspection by the Bank or its representatives at all reasonable times at the offices of the
City.
(d) Maintain Existence. The City shall do all things lawfully within its
power to maintain its existence as a municipal corporation of the State, and shall not voluntarily
dissolve.
(e) Insurance. The City shall maintain such liability, casualty and other
insurance as is reasonable and prudent for similarly situated municipal corporations of the State
and shall upon the request of the Bank, provide evidence of such coverage to the Bank.
(f) Comply with Laws. The City is in compliance with and shall comply
with all applicable federal, state and local laws and regulatory requirements.
(g) Taxes. The City is a tax exempt municipal corporation under the laws of
the State; however, in the event the Note, this Agreement or any other Loan Document should be
subject to the excise tax on documents or any intangible personal property tax, or any similar tax,
of the State, the City shall pay such taxes or reimburse the Bank for any such taxes paid by it.
(h) Investments. The City shall invest only in obligations permitted by
Section 218.415, Florida Statutes or pursuant to the City's investment policy.
ON
Section 3.2 Bank Fees and Expenses. The City hereby agrees to the fees of counsel
to the Bank in connection with the issuance of the Note in the amount of $7,500.00, said amount
to be due and payable upon the issuance of the Note.
Section 3.3 Registration and Exchange of Note; Persons Treated as Holder. So
long as the Note shall remain unpaid, the City will keep books for the registration and transfer of
the Note. The Bank shall not assign, transfer, convey, or otherwise dispose of the Note, or any
or all of its rights, title or interest therein, to any person, company or corporation without prior
written consent of the City and upon compliance with all federal and state securities laws
applicable. [Provided, however, the Bank may allow for affiliates of the Bank to participate in
the Note]. The Note may only be transferred to an "Accredited Investor" as such term is defined
in the Securities Act of 1933, as amended, and regulation D thereunder or a "Qualified
Institutional Buyer" as that term is defined under rule 144A of the Securities and Exchange
Commission. Upon the written consent of the City, the Note may be transferred or exchanged
upon the registration books kept by the City, upon delivery to the City, together with written
instructions as to the details of the transfer or exchange, of such Note in form satisfactory to the
City and with guaranty of signatures satisfactory to the City, along with the social security
number or federal employer identification number of any transferee and, if the transferee is a
trust, the name and social security or federal tax identification numbers of the settlor and
beneficiaries of the trust, the date of the trust and the name of the trustee. The Note is to be
issued as a single Note and may be exchanged for a Note of the same principal amount and
maturity in whole but not in part. No transfer or exchange of any Note shall be effective until
entered on the registration books maintained by the City.
The City may deem and treat the person in whose name any Note shall be registered upon
the books of the City as the absolute Holder of such Note, whether such Note shall be overdue or
not, for the purpose of receiving payment of, or on account of, the principal of and interest on
such Note as they become due, and for all other purposes. All such payments so made to any
such Holder or upon his order shall be valid and effectual to satisfy and discharge the liability
upon such Note to the extent of the sum or sums so paid.
The Note, the principal of and interest on which have been paid, either at or prior to
maturity, and all other obligations owed to the Bank under the Loan Documents have been paid,
shall be delivered to the City when such full payment is made, and shall thereupon be cancelled.
In case a portion but not all of an outstanding Note shall be prepaid pursuant to mandatory
prepayment provisions, such Note shall not be surrendered in exchange for a new Note, but the
City shall make a notation indicating the remaining outstanding principal of the Note upon the
registration books. The Note so redesignated shall have the remaining principal as provided on
such registration books and shall be deemed to have been issued in the denomination of the
outstanding principal balance, which shall be an authorized denomination.
Section 3.4 Payment of Principal and Interest. The City promises that it will
promptly pay the principal of and interest on the Note at the place, on the dates and in the
manner provided therein according to the true intent and meaning hereof and thereof, provided
that the principal of and interest on the Note is secured solely as provided in Sections 3.5 hereof,
and nothing in the Note or in this Agreement shall be construed as pledging any other funds or
assets of the City to such payment or authorizing such payment to be made from any other
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source. The Note shall not be or constitute a general obligation or indebtedness of the City
within the meaning of the Constitution of the State of Florida, but shall be payable solely from
and secured in the manner and to the extent provided in Sections 3.5. 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 such Note or the interest thereon, nor shall any
Holder be entitled to payment of such principal and interest from any other funds of the City
other than the Non -Ad Valorem Revenues actually budgeted, appropriated and deposited in the
Note Fund, established pursuant to Section 6.1 hereof.
Section 3.5 Covenant to Budget and Appropriate. The City hereby covenants and
agrees to appropriate in its annual budget, by amendment, if necessary, from Non -Ad Valorem
Revenues lawfully available in each Fiscal Year, amounts sufficient to pay the principal and
interest due on the Note in accordance with their terms during such Fiscal Year. Such covenant
and agreement on the part of the City to budget and appropriate such amounts of Non -Ad
Valorem Revenues shall be cumulative to the extent not paid, and shall continue until such Non -
Ad Valorem Revenues or other legally available funds in amounts sufficient to make all such
required payments shall have been budgeted, appropriated and actually paid. Notwithstanding
the foregoing covenant of the City, the City does not covenant to maintain any services or
programs, now provided or maintained by the City, which generate Non -Ad Valorem Revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge of such
Non -Ad Valorem Revenues, nor does it preclude the City from pledging in the future its Non -Ad
Valorem Revenues, nor does it require the City to levy and collect any particular Non -Ad
Valorem Revenues, nor does it give the Holder a prior claim on the Non -Ad Valorem Revenues
as opposed to claims of general creditors of the City. Such covenant to budget and appropriate
Non -Ad Valorem Revenue is subject in all respects to the payment of obligations secured by a
pledge of such Non -Ad Valorem Revenues heretofore or hereafter entered into. However, the
covenant to budget and appropriate in its general annual budget for the purposes and in the
manner stated herein shall have the effect of making available in the manner described herein
Non -Ad Valorem Revenues and placing on the City a positive duty to appropriate and budget, by
amendment, if necessary, amounts sufficient to meet its obligations under this Agreement;
subject, however, in all respects to the terms of this Agreement and the restrictions of Section
166.241, Florida Statutes; and subject, further, to the payment of services and programs which
are for Essential Government Services affecting the health, welfare and safety of the inhabitants
of the City or which are legally mandated by applicable law.
Section 3.6 Anti -Dilution; Issuance of Additional Obligations. Prior to the
incurrence of additional Debt secured by or payable from Non -Ad Valorem Revenues, the Non -
Ad Valorem Revenues available to pay debt service on the Note and other Debt, if any, shall
cover Maximum Annual Debt Service on the Note and Maximum Annual Debt Service on any
proposed or actual Debt by at least 2x. The calculation required by the immediately preceding
sentence shall be determined using the actual Non -Ad Valorem Revenues, Essential Government
Services and Ad Valorem Revenues for the prior Fiscal Year based on the City's annual Audit.
For clarification purpose, the calculation shall be the sum of Ad Valorem Revenues plus Non -Ad
Valorem Revenues minus Essential Governmental Services equals Non -Ad Valorem Revenues
available to pay debt service on the Note. For purposes of the foregoing calculation, Maximum
Annual Debt Service on the Note and Maximum Annual Debt Service on Debt shall be
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calculated on an aggregate basis whereby the annual debt service for each is combined and the
overall Maximum Annual Debt Service is determined.
For purposes of the foregoing test contained in this Section 3.6, the calculation of
Maximum Annual Debt Service on Debt means, with respect to Debt that bears interest at a fixed
interest rate, the actual Maximum Annual Debt Service, and, with respect to Debt which bears
interest at a variable interest rate, Maximum Annual Debt Service on such Debt shall be
determined assuming that interest accrues on such Debt as follows: (a) any outstanding variable
rate Debt will be assumed to bear interest at 0.5% per annum over the actual interest rate borne
by such Debt for the Fiscal Year preceding the date of calculation and (b) any additional variable
rate debt proposed to be issued will be assumed to bear interest at 0.5% per annum over the
actual interest rate borne by such Debt on the date of issuance of such Debt. Notwithstanding the
foregoing, if any Debt, whether bearing interest at a fixed or variable interest rate, constitutes
Balloon Indebtedness, as defined herein, Maximum Annual Debt service on such Debt shall be
determined assuming such Debt is amortized over 25 years from its original date of issuance on
an approximately level debt service basis.
Prior to the issuance of any Debt subsequent to the date of this Agreement, the City shall
provide a certification to the Holder that evidences compliance with this provision upon the
issuance of such proposed Debt taking into account such additional Debt and that no Event of
Default is existing under this Agreement.
Section 3.7 Prepayment. Upon written notice to the Holder given by the City at least
two (2) Business Days prior to the date fixed for prepayment, the City shall be entitled to prepay
the Note prior to maturity in whole, but not in part, at any time on or after October 15, 2027 at
par with no additional prepayment charge or premium.
Section 3.8 Business Days. In any case where the due date of interest on or principal
of the Note is not a Business Day, then payment of such principal or interest need not be made
on such date but may be made on the next succeeding Business Day, provided that credit for
payments made shall not be given, and interest shall continue to accrue on principal, until the
payment is actually received by the Bank.
Section 3.9 Officers and Employees of the City Exempt from Personal Liability.
No recourse under or upon any obligation, covenant or agreement of this Agreement or the Note
or for any claim based thereon or otherwise in respect thereof, shall be had against the Mayor or
any Commissioner of the City, or any officer, agent or employee, as such, of the City past,
present or future, it being expressly understood (a) that the obligation of the City under this
Agreement and the Note is solely a corporate one, (b) that no personal liability whatsoever shall
attach to, or is or shall be incurred by, the Commission, or the officers, agents, or employees, as
such, of the City, or any of them, under or by reason of the obligations, covenants or agreements
contained in this Agreement or implied therefrom, and (c) that any and all such personal liability
of, and any and all such rights and claims against, every such Commission member of the City,
and every officer, agent, or employee, as such, of the City under or by reason of the obligations,
covenants or agreements contained in this Agreement, or implied therefrom, are waived and
released as a condition of, and as a consideration for, the execution of this Agreement and the
issuance of the Note on the part of the City.
Section 3.10 Note Mutilated, Destroyed, Stolen or Lost. In case the Note shall
become mutilated, or be destroyed, stolen or lost, the City shall issue and deliver a new Note of
like tenor as the Note so mutilated, destroyed, stolen or lost, in exchange and in substitution for
such mutilated Note, or in lieu of and in substitution for the Note destroyed, stolen or lost and
upon the Holder furnishing the City proof of ownership thereof and indemnity reasonably
satisfactory to the City and complying with such other reasonable regulations and conditions as
the City may prescribe and paying such expenses as the City may incur. The mutilated Note so
surrendered shall be canceled.
ARTICLE IV
CONDITIONS OF LENDING
Section 4.1 Conditions of Lending. The obligations of the Bank to lend hereunder
are subject to the following conditions precedent:
(a) Representations and Warranties. The representations and warranties set
forth in the Loan Documents are and shall be true and correct to the best of the City's knowledge
on and as of the date hereof.
(b) No Default. On the date hereof the City shall be in compliance with all
the terms and provisions set forth in the Loan Documents on its part to be observed or
performed, and no Event of Default nor any event that, upon notice or lapse of time or both,
would constitute such an Event of Default, shall have occurred and be continuing at such time.
(c) Supporting Documents. On or prior to the date hereof, the Bank shall
have received the following supporting documents, all of which shall be satisfactory in form and
substance to the Bank (such satisfaction to be evidenced by the purchase of the Note by the
Bank):
(i) The opinion of the City Attorney regarding the due authorization,
execution, delivery, validity and enforceability of this Agreement and the Note, the City's
power to incur the debt evidenced by the Note and the due adoption of the Note
Resolution and enactment of the Expenditure Ordinance;
(ii) The opinion of Note Counsel to the effect that (A) the Note
constitutes a valid and binding limited obligations of the City, enforceable in accordance
with its terms and (B) Under existing statutes, regulations, rulings and judicial decisions,
interest on the Note is excluded from gross income for federal income tax purposes and is
not an item of tax preference for purposes of the federal alternative minimum tax under
the Internal Revenue Code of 1986, as amended (the "Code");
(iii) Certified copies of the Note Resolution and the Expenditure
Ordinance;
(iv) A certificate or certificates of the City relating to (i) the
Expenditure Ordinance and the Note Resolution authorizing the execution, delivery and
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performance of the City with respect to the Note, (ii) incumbency and specimen
signatures of officers, and (iii) such other matters as the Bank may reasonably require;
(v) A certificate of the City certifying that there is no action, suit,
proceeding, inquiry or investigation at law or in equity before or by any court, public
board or body pending, or, to the best knowledge of the City, threatened against or
affecting the City wherein an unfavorable decision, ruling or finding would adversely
affect the transactions contemplated by, or the validity or enforceability of, the
Expenditure Ordinance or the Note Resolution; and
(vi) Such additional supporting documents as the Bank may reasonably
request.
(d) No Adverse Changes. On or prior to the date hereof, there shall have
been no material adverse changes in the financial condition of the City from that reflected in its
audited financial statements for its Fiscal Year ended September 30, 2020.
ARTICLE V
THE LOAN; CITY'S OBLIGATION; DESCRIPTION AND PAYMENT TERMS
Section 5.1 The Loan. The Bank hereby agrees to loan to the City the amount of
$18,100,000 to be evidenced by the Note, to provide funds to finance a portion of the costs of the
Project and pay costs of issuance of the Note upon the terms and conditions set forth in the Note
Resolution and in this Agreement. The City agrees to repay the principal amount borrowed plus
interest thereon, upon the terms and conditions set forth in the Loan Documents.
Section 5.2 Description and Payment Terms of the Note. To evidence the Loan, the
City shall issue and deliver to the Bank the Note in the form attached hereto as Exhibit "A".
ARTICLE VI
APPLICATION OF BOND PROCEEDS AND CREATION OF ACCOUNTS
Section 6.1 Note Fund. There is hereby created a fund, entitled "City of Dania
Beach, Florida, Capital Improvement Non -Ad Valorem Revenue Note, Series 2022 Note Fund"
(the "Note Fund"). There shall be deposited into the Note Fund on each Note Payment Date
sufficient amounts of Non -Ad Valorem Revenues as specified in Sections 3.5 hereof which,
together with the amounts already on deposit therein, will enable the City to pay the principal of
and interest coming due on the Note on each Note Payment Date. Moneys in the Note Fund
shall be applied on each Note Payment Date to the payment of principal of and interest on the
Note coming due on each such date.
Section 6.2 Project Fund. There is hereby created a separate fund entitled "City of
Dania Beach, Florida Capital Improvements Non -Ad Valorem Revenue Note, Series 2022
Project Fund," which shall be used only for payment of the Costs of the Project, including
reimbursing the City for certain expenditures previously made for Costs of the Project, if any.
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Moneys in the Project Fund, until applied in payment of any item of the Costs of the Project or to
pay interest on the Note in the manner hereinafter provided, shall be held in trust by the City, and
shall be subject to a lien and charge in favor of the Holder of the Note and for the further security
of such Holder.
Section 6.3 Rebate Fund. The City covenants and agrees to establish a special fund
to be known as the "City of Dania Beach, Florida Capital Improvements Non -Ad Valorem
Revenue Note, Series 2022 Rebate Fund," which shall be held in trust by the City and used
solely to make required rebates to the United States and the Holder shall have no right to have
the same applied for principal and interest on the Note. The City agrees to undertake all actions
required of it in its arbitrage certificate relating to the Note, including, but not limited to:
(a) making a determination in accordance with the Code of the amount required to be
deposited in the Rebate Fund;
(b) depositing the amount determined in clause (a) above into the Rebate Fund;
(c) paying on the dates and in the manner required by the Code to the United States
Treasury from the Rebate Fund and any other legally available moneys of the City such
amounts as shall be required by the Code to be rebated to the United States Treasury; and
(d) keeping such records of the determinations made pursuant to this Section 6.3 as
shall be required by the Code, as well as evidence of the fair market value of any
investments purchased with proceeds of the Note.
The provisions of the above -described arbitrage certifications may be amended without
the consent of any Holder from time to time as shall be necessary, in the opinion of Note
Counsel, to comply with the provisions of the Code.
Section 6.4 Funds. Each of the funds and accounts herein established and created
shall constitute trust funds for the purposes provided herein for such funds and accounts
respectively. The money in such funds and accounts shall be continuously secured in the same
manner as deposits of City funds are authorized to be secured by the laws of the State of Florida.
The designation and establishment of the funds and accounts in and by this Agreement
shall not be construed to require the establishment of any completely independent, self -balancing
funds, as such term is commonly defined and used in governmental accounting, but rather is
intended solely to constitute an earmarking of certain revenues and assets of the City for the
purposes herein provided and to establish certain priorities for application of such revenues and
assets.
Section 6.5 Application of Note Proceeds. The proceeds received upon the sale of
the Note shall be deposited in the Project Fund and applied simultaneously with the delivery of
the Note, as follows:
(a) The City shall first use the proceeds from the Note to pay the costs of issuance of
the Note.
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(b) The remainder of the proceeds of the Note shall be used to reimburse costs of the
Park Project incurred by the City prior to the issuance of the Note but incurred not earlier
than 60 days prior to adoption of the Reimbursement Resolution and to pay the costs
incurred with respect to the Project.
ARTICLE VII
SPECIAL COVENANTS
Section 7.1 Financial Statements. The City shall, promptly upon receipt by the City
or within two hundred seventy (270) days of each Fiscal Year end, whichever is sooner, provide
the Holder with a printed copy of its annual financial statements for such year, prepared in
accordance with generally accepted accounting principles together with an audit report of a
certified public accountant containing no qualification that is not acceptable to the Holder. The
City shall also provide to the Holder, within thirty (30) days of its adoption, its current year
operating budget, and, upon request, any other financial information reasonably requested by
such Holders.
Section 7.2 Tax Representations, Warranties And Covenants Of The City.
Notwithstanding anything herein to the contrary, the City hereby covenants and represents that it
has taken and caused to be taken and shall make and take and cause to be made and taken all
actions that may be required of it for the interest on the Note to be and remain excluded from the
gross income of the Holder for federal income tax purposes, and that to the best of its knowledge
it has not taken or permitted to be taken on its behalf, and covenants that to the best of its ability
and within its control, it shall not make or take, or permit to be made or taken on its behalf, any
action which, if made or taken, would adversely affect such exclusion under the provisions of the
Code.
The City acknowledges that the continued exclusion of interest on the Note from gross
income for federal income tax purposes depends, in part, upon compliance with the arbitrage
limitations imposed by Sections 103(b)(2) and 148 of the Code. The City hereby acknowledges
responsibility to take all reasonable actions necessary to comply with these requirements. The
City hereby agrees and covenants that it shall not permit at any time or times any of the proceeds
of the Note or other funds of the City to be intentionally used, directly or indirectly, to acquire or
to replace funds which were used directly or indirectly to acquire any higher yielding
investments (as defined in Section 148 of the Code), the acquisition of which would cause the
Note to be arbitrage bonds for purposes of Sections 103(b)(2) and 148 of the Code. The City
further agrees and covenants that it shall do and perform all acts and things necessary in order to
assure that the requirements of Sections 103(b)(2) and 148 of the Code are met.
Specifically, without intending to limit in any way the generality of the foregoing, the
City covenants and agrees:
(a) to pay to the United States of America at the times required pursuant to
Section 148(f) of the Code, the excess of the amount earned on all non -purpose
investments (as defined in Section 148(f)(6) of the Code) (other than investments
13
attributed to an excess described in this sentence) over the amount which would have
been earned if such non -purpose investments were invested at a rate equal to the yield on
the Note, plus any income attributable to such excess (the "Rebate Amount");
(b) to maintain and retain all records pertaining to and to be responsible for
making or causing to be made all determinations and calculations of the Rebate Amount
and required payments of the Rebate Amount as shall be necessary to comply with the
Code; and
(c) to comply with all representations and restrictions contained in any Tax
Certificate executed by the City in connection with the Note.
The City understands that the foregoing covenants impose continuing obligations on it to
comply with the requirements of Section 103 and Part IV of Subchapter B of Chapter 1 of the
Code so long as such requirements are applicable.
Section 7.3 Additional Tag Covenants of The City. For so long as the Note remains
outstanding, the City hereby covenants as follows:
(a) It will comply with, and timely make or cause to be made all filings
required by, all effective rules, rulings or regulations promulgated by the Department of
the Treasury or the Internal Revenue Service;
(b) It has not and will not use, invest, direct or permit the investment of the
proceeds of the Note or any investment earnings thereon in a manner that will result in
the Note becoming "private activity bonds" within the meaning of Sections 141 and 145
of the Code;
(c) It has not and will not use or permit to be used more than ten percent
(10%) of the proceeds of the Note (including any amounts used to pay costs associated
with issuing the Note), including all investment income earned on such proceeds directly
or indirectly, in any trade or business carried on by any person who is not the City or a
state or political subdivision or instrumentality thereof as those terms are used in Section
103 of the Code (an "Exempt Person");
(d) It has not and will not use or permit the use of any portion of the proceeds
of the Note, including all investment income earned on such proceeds, directly or
indirectly, to make or finance loans to persons who are not Exempt Persons;
(e) It has not entered into, and will not enter into, any arrangement with any
person or organization (other than an Exempt Person) which provides for such person or
organization to manage, operate, lease or provide services with respect to more than 10%
of the project financed or refinanced with the proceeds of the Note (a "Service
Contract"), unless the guidelines set forth in Revenue Procedure 2017-13 (or any new,
revised or additional guidelines applicable to Service Contracts) (the "Guidelines"), are
satisfied, except to the extent it obtains a private letter ruling from the Internal Revenue
Service or an opinion of nationally recognized Bond Counsel which allows for a variation
from the Guidelines;
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(f) It has not and will not cause the Note to be treated as "federally
guaranteed" for purposes of Section 149 of the Code, as may be modified in any
applicable rules, rulings, policies, procedures, regulations or other official statements
promulgated or proposed by the Department of the Treasury or the Internal Revenue
Service with respect to "federally guaranteed" obligations described in Section 149 of the
Code. For purposes of this paragraph, the Note and the Prior Notes shall be treated as
"federally guaranteed" if (i) all or any portion of the principal or interest on the Note is
or will be guaranteed directly or indirectly by the United States of America or any agency
or instrumentality thereof, or (ii) 5% or more of the proceeds of the Note will be (A) used
in making loans the payment of principal or interest with respect to which is to be
guaranteed in whole or in part by the United States of America or any agency or
instrumentality thereof, or (B) invested directly or indirectly in federally insured deposits
or accounts, and (iii) such guarantee is not described in Section 149(b)(3) of the Code;
and
(g) It will comply with the information reporting requirements of Section
149(e)(2) of the Code.
The terms "debt service," "gross proceeds," "net proceeds," "proceeds," and "yield" have
the meanings assigned to them for purposes of Section 148 of the Code.
Section 7.4 Invoices for Note Payments. The Bank agrees to provide the City with
an invoice at least 10 days prior to each Note Payment Date setting forth the amount of principal
and interest due on the Note on such Note Payment Date. Failure by the Bank to provide such
invoice shall not relieve the City of its obligation to make the payments required by this
Agreement and the Note when due.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.1 General. An "Event of Default" shall be deemed to have occurred under
this Agreement if:
(a) The City shall fail to make any payment of the principal of or interest on the Note
after the same shall become due and payable, whether by maturity, or otherwise; or
(b) The City shall default in the performance of or compliance with any term or
covenant contained in the Loan Documents, other than a term or covenant a default in the
performance of which or noncompliance with which is dealt with in Section 8.1(a), which default
or non-compliance shall continue and not be cured within thirty (30) days after (i) notice thereof
to the City by the Bank; or (ii) the Bank is notified of such noncompliance or should have been
so notified pursuant to the provisions of Section 3.1(b) of this Agreement, whichever is earlier;
or
(c) The City shall fail to comply with Section 3.1(b), (d) or (e) or Sections 7.2 or 7.3
hereof, or any representation or warranty made in writing by or on behalf of the City in any Loan
15
Document shall prove to have been false or incorrect in any material respect on the date made or
reaffirmed; provided, however, that a Determination of Taxability shall not be deemed an Event
of Default; or
(d) The City admits in writing its inability to pay its debts generally as they become
due or files a petition in bankruptcy or makes an assignment for the benefit of its creditors or
consents to the appointment of a receiver or trustee for itself; or
(e) The City is adjudged insolvent by a court of competent jurisdiction, or it is
adjudged a bankrupt on a petition in bankruptcy filed by or against the City, or an order,
judgment or decree is entered by any court of competent jurisdiction appointing, without the
consent of the City, a receiver or trustee of the City or of the whole or any part of its property,
and if the aforesaid adjudications, orders, judgments or decrees shall not be vacated or set aside
or stayed within ninety (90) days from the date of entry thereof; or
(f) The City shall file a petition or answer seeking reorganization or any arrangement
under the federal bankruptcy laws or any other applicable law or statute of the United States of
America or the State.
Section 8.2 Effect of Event of 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 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. While an Event of Default shall have occurred and be continuing, the Note
shall bear interest at the Default Rate, until paid or cured.
ARTICLE IX
MISCELLANEOUS
Section 9.1 No Waiver; Cumulative Remedies. No failure or delay on the part of the
Bank or the City in exercising any right, power, remedy hereunder, or under the Note or other
Loan Documents shall operate as a waiver of the City's or Bank's rights, powers and remedies
hereunder, nor shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof, or the exercise of any other right, power or remedy
hereunder or thereunder. The remedies herein and therein provided are cumulative and not
exclusive of any remedies provided by law or in equity.
Section 9.2 Amendments, Changes or Modifications to the Agreement. This
Agreement shall not be amended, changed or modified except by written instrument between the
Bank and the City. The City agrees to pay all of the Bank's costs and reasonable attorneys' fees
incurred in modifying and/or amending this Agreement at the City's request or behest.
Section 9.3 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be an original; but such
counterparts shall together constitute but one and the same Agreement, and, in making proof of
16
this Agreement, it shall not be necessary to produce or account for more than one such
counterpart.
Section 9.4 Severability. If any clause, provision or section of this Agreement shall
be held illegal or invalid by any court, the invalidity of such clause, provision or section shall not
affect any other provisions or sections hereof, and this Agreement shall be construed and
enforced to the end that the transactions contemplated hereby be effected and the obligations
contemplated hereby be enforced, as if such illegal or invalid clause, provision or section had not
been contained herein.
Section 9.5 Term of Agreement. Except as otherwise specified in this Agreement,
this Agreement and all representations, warranties, covenants and agreements contained herein
or made in writing by the City in connection herewith shall be in full force and effect from the
date hereof and shall continue in effect until as long as the Note is outstanding.
Section 9.6 Notices. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing and shall be deemed to
have been duly given when received. In each case notice shall be sent to:
If to the City: Ana M. Garcia, City Manager
City of Dania Beach
100 W. Dania Beach Blvd.
Dania Beach, Florida 33004
If to the Bank: Truist Bank
2320 Cascade Point Blvd, Suite 600
Charlotte, North Carolina 28208
Attn: Governmental Finance
or to such other address as either party may have specified in writing to the other using the
procedures specified above in this Section 9.6.
Section 9.7 Applicable Law. This Agreement, and each of the Loan Documents and
transactions contemplated herein, shall be construed pursuant to and governed by the substantive
laws of the State.
Section 9.8 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the successors in interest and permitted assigns of the parties. The City
shall have no rights to assign any of its rights or obligations hereunder without the prior written
consent of the Bank.
Section 9.9 Conflict. In the event any conflict arises between the terms of this
Agreement and the terms of any other Loan Document, the terms of this Agreement shall govern
in all instances of such conflict.
Section 9.10 No Third Party Beneficiaries. It is the intent and agreement of the
parties hereto that this Agreement is solely for the benefit of the parties hereto and no person not
a party hereto shall have any rights or privileges hereunder.
17
Section 9.11 Attorneys Fees. To the extent legally permissible, the City and the Bank
agree that in any suit, action or proceeding brought in connection with this Agreement, the Note,
or the Note Resolution (including any appeal(s)), the prevailing party shall be entitled to recover
costs and attorneys' fees from the other party.
Section 9.12 Entire Agreement. Except as otherwise expressly provided, this
Agreement and the other Loan Documents embody the entire agreement and understanding
between the parties hereto and supersede all prior agreements and understandings relating to the
subject matter hereof.
Section 9.13 Further Assurances. The parties to this Agreement will execute and
deliver, or cause to be executed and delivered, such additional or further documents, agreements
or instruments and shall cooperate with one another in all respects for the purpose of carrying out
the transactions contemplated by this Agreement.
Section 9.14 Waiver of Jury Trial. THE CITY AND THE BANK IRREVOCABLY
AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY CONTROVERSY OR CLAIM BETWEEN THEM, WHETHER ARISING
IN CONTRACT, TORT OR BY STATUTE, THAT ARISES OUT OF OR RELATES TO THIS
AGREEMENT, THE NOTE OR THE NOTE RESOLUTION. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE CITY AND THE BANK TO ENTER INTO THIS
AGREEMENT.
[remainder of page intentionally left blank]
18
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective
between them as of the date of first set forth above.
CITY OF DANIA BEACH, FLORIDA
[SEAL] By:
ATTEST:
Thomas Schneider, CMC, City Clerk
Approved as to form and correctness:
By:
Eve A. Boutsis, City Attorney
LON
Ana M. Garcia, City Manager
Tamara James, Mayor
TRUIST BANK
LN
19
Andrew Smith
Senior Vice President
EXHIBIT "A"
[FORM OF NOTE]
ANY HOLDER OF THIS NOTE SHALL AT THE TIME OF TRANSFER BE AN
"ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN THE SECURITIES
ACT OF 1933, AS AMENDED, AND REGULATION D THEREUNDER OR A
"QUALIFIED INSTITUTIONAL BUYER" AS THAT TERM IS DEFINED UNDER
RULE 144A OF THE SECURITIES AND EXCHANGE COMMISSION.
No. R-1
UNITED STATES OF AMERICA
STATE OF FLORIDA
CITY OF DANIA BEACH
CAPITAL IMPROVEMENT
NON -AD VALOREM REVENUE NOTE, SERIES 2022
Interest Rate
2.52%*
Holder: Truist Bank
Maturity Date
October 15, 2042
$18,060,000
Dated Date
March 24, 2022
Principal Amount: Eighteen Million Sixty Thousand Dollars ($18,060,000)
* Subject to adjustment as provided herein
KNOW ALL MEN BY THESE PRESENTS, that the City of Dania Beach, Florida (the
"City"), for value received, hereby promises to pay to the Holder shown above, or registered
assigns (the "Bank"), from the sources hereinafter mentioned, the Principal Amount specified
above plus interest at the Interest Rate specified above, subject to adjustment as provided herein.
Subject to the rights of prior prepayment described in this Note, the Note shall mature on the
Maturity Date specified above. Payments due hereunder shall be made no later than 2:00 p.m.,
Eastern time, on the date due, free and clear of any defenses, set -offs, counterclaims, or
withholding or deductions for taxes.
This Note is issued under authority of and in full compliance with the Constitution and
laws of the State of Florida, including particularly Part I1 of Chapter 166, Florida Statutes, as
amended, the Charter of the City, Ordinance No. 2022-10 duly enacted by the City Commission
on February 22, 2022, Resolution No. 2022- duly adopted by the City Commission on March
22, 2022 (the "Note Resolution") and a Loan Agreement, dated of even date herewith, between
the City and the Bank (the "Loan Agreement") and is subject to all the terms and conditions of
the Loan Agreement. All terms, conditions and provisions of the Loan Agreement are by this
reference thereto incorporated herein as a part of this Note. Terms used herein in capitalized
form and not otherwise defined herein shall have the meanings ascribed thereto in the Loan
Agreement.
A-1
This Note is issued for the purpose of financing a portion of the costs of the City's Parks
Master Plan Phase I — CW Thomas Park and paying costs of issuance of the Note.
The principal on this Note shall be due and payable on October 15 of each year (each, a
"Principal Payment Date"), beginning October 15, 2022, through and including October 15, 2042
(the "Maturity Date"), in the principal amounts set forth on the payment schedule attached
hereto.
This Note shall bear interest on the outstanding principal balance from its Dated Date at
the Interest Rate specified above, subject to adjustment as provided below. Interest on this Note
shall be due and payable on April 15 and October 15 of each year (each, an "Interest Payment
Date") beginning on October 15, 2022 until the Maturity Date. The entire unpaid principal
balance, together with all accrued and unpaid interest hereon, shall be due and payable in full on
the Maturity Date. All payments by the City pursuant to this Note shall apply first to accrued
interest, then to other charges due the Bank, and the balance thereof shall apply to the principal
sum due.
Interest on the Note shall be computed on the basis of a 360-day year consisting of twelve
30-day months.
Upon the occurrence of an Event of Default (as defined in the hereinafter described Loan
Agreement) until such Event of Default has been cured this Note shall bear interest after (5) days
from the Event of Default at the Default Rate, which is two percentage points (2.0%) in excess of
the Interest Rate otherwise borne by the Note immediately prior to the occurrence of an Event of
Default.
In the event of a Determination of Taxability, the interest rate payable hereunder shall
increase to % per annum (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 Holder, 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 Holder to the Internal Revenue Service by reason of such Determination of
Taxability.
As used herein, "Determination of Taxability" means a final decree or judgment of any
federal court or a final action of the Internal Revenue Service or of the United States Treasury
Department determining that due to the action or inactions of the City and not due to a change in
tax law, any interest payable on this Note is includable in the gross income of the Holder. No
such decree or action shall be considered final for the purposes of this paragraph unless the City
has been given written notice thereof from the Internal Revenue Service or of the United States
Treasury Department, as applicable, and, if it is so desired by the City and is legally permissible,
A-2
the City has been afforded the opportunity to contest the same, at its own expense, either directly
or in the name of the Holder and until the conclusion of any appellate review, if sought.
The principal of and interest on this Note are payable in lawful money of the United
States of America by wire transfer or by certified check delivered on or prior to the date due to
the registered Holder or his legal representative at the address of the Holder as it appears on the
registration books of the City.
Upon written notice to the Holder given by the City at least two (2) Business Days prior
to the date fixed for prepayment, the City shall be entitled to prepay the Note prior to maturity in
whole, but not in part, at any time on or after October 15, 2027 at par with no additional
prepayment charge or premium.
Reference is hereby made to the Loan Agreement for the provisions, among others,
relating to the terms, lien and security of the Note, the custody and application of the proceeds of
the Note, the rights and remedies of the Holder of the Note, and the extent of and limitations on
the City's rights, duties and obligations, to all of which provisions the Holder hereof for himself
and his successors in interest assents by acceptance of this Note.
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 HOLDER OF THIS NOTE THAT SUCH HOLDER 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 AND INTEREST ON THIS NOTE OR FOR THE PAYMENT OF ANY OTHER
AMOUNTS PROVIDED FOR IN THE LOAN AGREEMENT.
It is further agreed between the City and the Holder of this Note that neither the members
of the Governing Body of the City nor its officers, agents and/or employees nor any person
executing the Note shall be liable personally on the Note by reason of its issuance.
The original registered Holder, and each successive registered Holder of this Note shall
be conclusively deemed to have agreed and consented to all of the terms and conditions of the
Loan Agreement.
It is hereby certified and recited that all acts, conditions and things required to happen, to
exist and to be performed precedent to and for the issuance of this Note have happened, do exist
and have been performed in due time, form and manner as required by the Constitution and the
laws of the State of Florida applicable thereto.
E
IN WITNESS WHEREOF, the City of Dania Beach, Florida has caused this Note to be
executed in its name by the manual signature of its City Manager and Mayor, and attested by the
manual signature of its Clerk and its corporate seal or a facsimile thereof affixed hereto, all as of
this 24th day of March, 2022.
CITY OF DANIA BEACH, FLORIDA
[SEAL] By:
ATTEST:
By:
Thomas Schneider, CMC, City Clerk
LIZA
A-4
Ana M. Garcia, City Manager
Tamara James, Mayor
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.
Date:
SOCIAL SECURITY NUMBER OR
FEDERAL IDENTIFICATION
NUMBER OF ASSIGNEE
NOTICE: The signature of this
assignment must correspond with the
name as it appears upon the within Note
in every particulate, 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
UNIFORM TRANS MIN ACT -
Uniform Transfers to Minors Act of
of survivorship and not as tenants in common
Custodian for (Cust.) (Minor) under
(State).
Additional abbreviations may also be used
though not in the above list.
Name and address of assignee for payment and notice purposes
Notice:
Date:
Assignee:
By:
Title:
Payment:
/:1.7
AMORTIZATION SCHEDULE
To
City of Dania Beach
Capital Improvement Non -Ad Valorem Revenue Note, Series 2022
Dated March 24, 2022
Payment Date
Principal Amount
10/15/2022
$ 380,000.00
10/15/2023
690,000.00
10/15/2024
710,000.00
10/15/2025
725,000.00
10/15/2026
745,000.00
10/15/2027
765,000.00
10/15/2028
780,000.00
10/15/2029
800,000.00
10/15/2030
820,000.00
10/15/2031
840,000.00
10/15/2032
865,000.00
10/15/2033
885,000.00
10/15/2034
910,000.00
10/15/2035
930,000.00
10/15/2036
955,000.00
10/15/2037
980,000.00
10/15/2038
1,005,000.00
10/15/2039
1,030,000.00
10/15/2040
1,055,000.00
10/15/2041
1,080,000.00
10/15/2042
1,110,000.00
on