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HomeMy WebLinkAboutExhibit 4Exhibit D Bond Purchase Contract -7o b e G1tin.P of CITY OF MIAMI, FLORIDA SPECIAL OBLIGATION BONDS, SERIES 2009 (Street and Sidewalk Improvement Program) PURCHASE CONTRACT October , 2009 The City Commissioners of the City of Miami, Florida 3500 Pan American Drive Miami, Florida 33133 Ladies and Gentlemen: 1. Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Representative"), Morgan Keegan & Company, Inc., Raymond James & Associates, Inc., RBC Capital Markets, Inc. and Goldman Sachs (collectively, the "Underwriters") offer to enter into the following agreement (this "Purchase Contract") with the City of Miami, Florida (the "City"), which upon the City's acceptance hereof will be binding upon the City and upon the Underwriters. This offer is made subject to the City's acceptance by execution of this Purchase Contract and its delivery of same to the Underwriters at or before 5:00 p.m., New York City time, today. 2. Upon the terms and conditions and upon the basis of the representations, warranties, covenants and agreements hereinafter set forth, the Underwriters hereby agree to purchase from the City for offering to the public, and the City hereby agrees to sell and deliver to the Underwriters for such purpose, all (but not less than all) of the aggregate principal amount of the City's Special Obligation Bonds, Series 2009 (Street and Sidewalk Improvement Program), Series 2009, dated as of May 29, 2009 ( the "Series 2009 Bonds"). The Underwriters agree to pay to the City for the purchase of the Series 2009 Bonds an amount equal to $ (which represents the $ par amount of the Series 2009 Bonds, plus net original issue premium of $ and less an Underwriters' discount of $ ). Such purchase price shall be paid by the Underwriters to the City on the Closing Date as described in Section 7 hereof. 3. The Series 2009 Bonds are being issued by the City pursuant to the Constitution and laws of the State of Florida, including Chapter 166, Part II, Florida Statutes, the Charter of the City, and other applicable provisions of law (the "Act") and pursuant to Resolution No. 07-0586 of the City adopted by the City Commission of the City on October 11, 2007 (the "Original Resolution"), {JA468630;4} and Resolution No. 09- adopted by the City Commission of the City on September _, 2009 (the "Series 2009 Bonds Resolution", together with the Original Resolution, the "Resolution"). The Series 2009 Bonds are being issued for the purpose of (i) funding acquisition, construction and improvements to certain roadways and streetways (collectively, the "Project"), and (ii) paying certain costs and expenses incurred in connection with the issuance of the Series 2009 Bonds. The payment of the principal of, redemption premium, if any, and interest on the Series 2009 Bonds shall be secured by (i) the proceeds of the Local Option Gas Taxes, (ii) eighty percent (80%) of the City's portion of the Transportation Surtax, and (iii) twenty percent (20%) of the City's Parking Surcharge (the "Pledged Revenues"), all in the manner and to the extent described in the Resolution. The Series 2009 Bonds shall be more fully described in the Preliminary Official Statement, dated September _, 2009, relating to the Series 2009 Bonds, the form of which is attached to the Resolution. Such Preliminary Official Statement as amended to delete preliminary language and reflect the final terms of the Series 2009 Bonds, and with only such changes as shall be approved by the City and the Underwriters, and as amended and supplemented prior to Closing, is herein referred to as the "Official Statement." The Series 2009 Bonds shall mature, bear interest and be subject to redemption as set forth in Exhibit A attached hereto, and have all such other terms and provisions, as set forth in the Resolution and as described in the Official Statement. All terms not otherwise defined herein shall have the meanings ascribed thereto in the Resolution. 4. Prior to the submission of the offer to purchase the Series 2009 Bonds pursuant to this Purchase Contract, the Underwriters have provided the City all applicable disclosure information required by Section 218.385, Florida Statutes, a copy of which is attached as Exhibit B hereto, and the City, by its acceptance hereof, accepts such disclosure and agrees that it does not require any further disclosure from the Underwriters prior to the delivery of the Series 2009 Bonds with regard to the matters set forth in such Section. The Underwriters agree to make a bona fide public offering of all the Series 2009 Bonds at not in excess of the initial public offering price (which may be expressed in terms of yield), set forth in Exhibit A attached hereto. The Series 2009 Bonds may be offered and sold to certain dealers (including the Underwriters and other dealers or institutions depositing such Series 2009 Bonds into investment trusts) at a price or prices lower than such public offering price. The City covenants with the Underwriters to cooperate with it in qualifying the Series 2009 Bonds for offer and sale under the securities or "Blue Sky" laws of such states as the Underwriters may request; provided that in no event shall the City be obligated to take any action which would subject it to general service of process in any state where it is not now so subject. In accordance with Section 1.148(b) of the Regulations promulgated under the Internal Revenue Code of 1986, as amended, the Underwriters agree to provide at the Closing a certificate stating the price at which at least 10% of each maturity of the Series 2009 Bonds has been sold to the public. Delivered herewith by the Representative on behalf of the Underwriters is a check payable to the order of the City in an amount equal to $ (the "Good Faith Check"). If the City does not accept the offer made hereby, the Good Faith Check shall be immediately returned to the Underwriters. If the offer made hereby is so accepted, the City shall hold the Good Faith Check uncashed until the Closing Date, as defined herein. In the event the Underwriters accept and pay for the Series 2009 Bonds, as provided herein, the uncashed Good Faith Check shall be returned to the Representative at the Closing. {JA468630;4} 2 In the event the City shall fail to deliver the Series 2009 Bonds at the Closing Date, or if the City shall be unable at or prior to the Closing Date to satisfy the conditions to the obligations of the Underwriters contained herein, or if the obligations of the Underwriters shall be terminated for any reason permitted hereby, the Good Faith Check shall be returned immediately to the Representative on behalf of the Underwriters on or prior to the Closing Date. If the Underwriters shall fail (other than for a reason permitted hereby) to accept and pay for the Series 2009 Bonds upon tender thereof by the City as provided herein, the Good Faith Check shall be retained by the City as and for full liquidated damages for such failure and for any and all defaults on the part of the Underwriters, and shall constitute a full release and discharge of all claims and damages for such failure and for any and all such defaults. The following statements are made in satisfaction of the requirements of Section 218.385(2) and (3), Florida Statutes. The City is proposing to issue the Series 2009 Bonds in the aggregate principal amount of $ for the purpose of (i) funding the Project, and (ii) paying certain costs of issuance of the Series 2009 Bonds. The Series 2009 Bonds are expected to be repaid over a period of approximately 19.59 years, at a true interest cost of approximately %, resulting in total interest payments in the amount of $ being made over the life of the Series 2009 Bonds. The Series 2009 Bonds are payable from and secured by the (i) the proceeds of the Local Option Gas Taxes, (ii) eighty percent (80%) of the City's portion of the Transportation Surtax, and (iii) twenty percent (20%) of the City's Parking Surcharge (as defined in the Resolution). Authorizing the Series 2009 Bonds will result in approximately $ (average annual debt service) of City's moneys not being available to finance other services of the City each year over the next approximately 20 years. 5. Within seven business days of the acceptance hereof by the City, the City shall cause to be delivered such reasonable number of copies of the final Official Statement as the Underwriters shall request, which shall be sufficient in number to comply with paragraph (b)(4) of Rule 15c2-12 of the Securities and Exchange Commission (17 CFR § 240.15c2-12) under the Securities Exchange Act of 1934 (the "Rule") and with Rules G-32 and G-36 and all other applicable rules of the Municipal Securities Rulemaking Board (the "MSRB"). The City hereby authorizes the Underwriters to use and distribute the Resolution and the Official Statement and the information contained in each such document in connection with the public offering and the sale of the Series 2009 Bonds. The Underwriters agree that they will not confirm the sale of any Series 2009 Bonds unless the confirmation of sale is accompanied or preceded by the delivery of a copy of the Official Statement pursuant to the rules of the MSRB. 6. The City represents, warrants, covenants and agrees with the Underwriters as of the date hereof and as of the Closing Date, which representations and warranties shall survive the Closing, that: {JA468630;4} 3 A. The City is a municipal corporation of the State of Florida duly organized and existing pursuant to the Constitution, the Charter of the City, and laws of such State and is authorized and empowered by law, including particularly the Act, to issue the Series 2009 Bonds and to use the moneys derived from the sale of the Series 2009 Bonds to fund the Project; to adopt the Resolution; to accept this Purchase Contract; to issue, sell and deliver the Series 2009 Bonds to the Underwriters as provided herein; to levy and collect the Parking Surcharge; to receive the portion of the Local Option Gas Tax and the Transportation Surcharge included in the Pledged Revenues (the "Pledged County Taxes") to execute and perform its obligations under a Disclosure Dissemination Agent Agreement, the form of which is attached to the Preliminary Official Statement as Appendix F (the "Disclosure Agreement"); and to carry out and consummate all other transactions contemplated by the Official Statement and by each of the aforesaid documents, agreements and resolutions. B. The City has duly authorized by all appropriate action, and complied with all provisions of law with which compliance was required on or prior to the date hereof, including the Act, with respect to, the acceptance of this Purchase Contract, the execution and delivery of the Disclosure Agreement, the adoption of the Resolution, the levy and collection of the Parking Surcharge, the distribution of the Pledged County Taxes, and the sale, execution, issuance and delivery of the Series 2009 Bonds. Each of the aforementioned agreements, ordinances, resolutions and other instruments constitute valid and binding obligations of the City enforceable against the City in accordance with their respective terms, subject to applicable bankruptcy, insolvency and other laws affecting creditors' rights and remedies and to general principles of equity. C. When delivered to and paid by the Underwriters in accordance with the terms of this Purchase Contract and the Resolution, the Series 2009 Bonds will have been duly and validly authorized, executed, authenticated, issued and delivered and will constitute legal, valid and binding limited obligations of the City enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency or other laws affecting creditors' rights and remedies and to general principles of equity, and will be entitled to the benefits of the Resolution. D. The City is not in breach or default under any applicable constitutional provision, law or administrative regulation of the State of Florida or the United States or any applicable judgment or decree or any loan agreement, indenture, bond, note, ordinance, resolution, agreement or other instrument to which the City is a party or to which the City or any of the property or assets of the Project are otherwise subject, and no event has occurred and is continuing which constitutes or with the passage of time or the giving of notice, or both, would constitute a material default or event of default by the City under any such instrument. The acceptance of this Purchase Contract, the execution and delivery of the Series 2009 Bonds and the Disclosure Agreement, the adoption of the Resolution, and compliance with the provisions thereof, do not and will not conflict with, or constitute on the part of the City a material violation of, breach of or default under, any indenture, mortgage, deed of trust, resolution, note agreement or other agreement or instrument to which the City {JA468630;4} 4 is a party or by which the City is bound, or, any constitutional provision or statute of the State of Florida, any order, rule or regulation of any court or governmental agency or body having jurisdiction over the City or any of its activities or properties; and all consents of any governmental authority of the State of Florida required in connection with the issuance or sale of the Series 2009 Bonds by the City have been obtained; provided, however, that no representation is made concerning compliance with the Federal securities laws or the securities or "Blue Sky" laws of the various States. E. Except as described in the Preliminary Official Statement and in the Official Statement, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court or governmental agency or body pending or, to the best of its knowledge, threatened against or affecting the City, nor is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the transactions contemplated by this Purchase Contract, the Resolution and the Disclosure Agreement, or which, in any way, would adversely affect the validity or enforceability of the Series 2009 Bonds, the Resolution, the Disclosure Agreement, or any agreement or instrument to which the City is a party, used or contemplated for use in the consummation of the transactions contemplated by this Purchase Contract, the Disclosure Agreement and the Resolution. F. The City will not take or omit to take any action which action or omission will in any way cause the proceeds from the sale of the Series 2009 Bonds to be applied in a manner contrary to that provided for in the Resolution and as described in the Official Statement. G. The Preliminary Official Statement as of the date thereof and the Official Statement as of the date hereof (but in both instances not including information in such documents under the heading "Description of the Series 2009 Bonds — Book -Entry Only System") do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If, after the date of this Purchase Contract and until the earlier of (i) ninety (90) days from the end of the "underwriting period" (as defined in SEC Rule 15c2-12) or (ii) the time when the Official Statement is available to any person from a nationally recognized repository, but in no case less than 25 days following the end of the underwriting period, any event shall occur which might or would cause the Official Statement, as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the City shall notify the Underwriters thereof, and, if in the opinion of the Underwriters, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the City will at its own expense forthwith prepare and furnish to the Underwriters a sufficient number of copies of an amendment of or supplement to the Official Statement (in form and substance satisfactory to the Underwriters) which will supplement or amend the Official Statement so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. {JA468630;4} 5 H. Except as disclosed in the Preliminary Official Statement and in the Official Statement, the City neither is nor has been in default any time after December 31, 1975, as to principal or interest with respect to an obligation issued by the City. I. The City has not been notified of any listing or proposed listing by the Internal Revenue Service to the effect that it is a bond issuer whose arbitrage certifications may not be relied upon. J. As of its date, the Preliminary Official Statement was deemed "final" by the City for purposes of SEC Rule 15c2 -12(b). K. The City has, in connection with previous issues of securities, undertaken in a written certificate for the benefit of holders of such securities, to provide certain continuing disclosure information in accordance with Rule 15c2 -12(b)(5) of the Securities and Exchange Commission, and the City has complied with and is currently in compliance with each such undertaking. L. (i) The financial statements of the City and the other financial information regarding the City in the Official Statement fairly present the financial position and results of the operations of the City as of the dates and for the periods therein set forth; (ii) the audited financial statements have been prepared in accordance with generally accepted accounting principles consistently applied; (iii) the unaudited financial statements (if any) have been prepared on a basis substantially consistent with the audited financial statements included in the Official Statement and reflect all adjustments necessary to that effect; (iv) the other financial information has been determined on a basis substantially consistent with that of the City's audited financial statements included in the Official Statement; and (v) there has been no material adverse change in the financial condition of the City since September 30, 2008, except as specifically described in the Official Statement. 7. At 1:00 p.m., Eastern time, on November _, 2009 (the "Closing Date"), or at such other time or on such earlier or later business day as shall have been mutually agreed upon by the City and the Underwriters, the City will deliver, or cause to be delivered, through the DTC FAST system to the Underwriters the Series 2009 Bonds, in fully registered book entry form, duly executed and authenticated, at a place in Miami, Florida to be mutually agreed upon by the City and the Underwriters. The City will deliver, or cause to be delivered, to the Underwriters at such time and on such date and at a place to be mutually agreed upon by the City and the Underwriters, the closing documents as provided and described in Section 8 of this Purchase Contract. Upon compliance with all the terms and provisions and subject to the conditions hereof, the Underwriters will accept such delivery and pay the purchase price of the Series 2009 Bonds as set forth in Section 2, in immediately available funds to the order of the City; such delivery and payment is herein called the "Closing." The Series 2009 Bonds will be delivered in book -entry -only form and registered in the name of Cede & Co. (JA468630;4) 6 8. The Underwriters have entered into this Purchase Contract in reliance upon the representations, warranties, covenants and agreements of the City contained herein and to be contained in the documents and instruments to be delivered at the Closing and upon the performance by the City of its obligations hereunder, both as of the date hereof and as of the date of Closing. Accordingly, the obligation of the Underwriters under this Purchase Contract to purchase and pay for the Series 2009 Bonds shall be subject to the performance by the City of such obligations at or prior to the Closing, and the obligations hereunder of each party hereto shall be subject (i) to the performance by the City of the obligations to be performed at or prior to Closing, (ii) to the accuracy in all material respects of such representations, warranties, covenants and agreements as of the date hereof and as of the date of Closing and (iii) to the following conditions: A. At the time of the Closing, the Disclosure Agreement shall have been duly executed and delivered by the respective parties thereto in substantially the same form as have been previously delivered to the Underwriters on the date hereof, shall be in full force and effect and shall not have been amended, modified or supplemented except as may have been agreed to in writing by the Underwriters; the Purchase Contract and the Resolution shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriters; and the Official Statement shall not have been supplemented or amended, except in any such case as may have been agreed to in writing by the Underwriters. B. At the time of the Closing, all required official action of the City relating to the authorization, sale and issuance of the Series 2009 Bonds and the transactions contemplated thereby and hereby required to be taken by the City on or prior to the date thereof shall be in full force and effect and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriters. C. At the time of the Closing, the Series 2009 Bonds shall have been duly executed and authenticated in accordance with the provisions of the Resolution. D. At the time of the Closing, the Series 2009 Bonds will be rated "A3" by Moody's Investors Service, "A" by Standard & Poor's Ratings Group ("S&P"), and "A-" by Fitch Ratings. E. At the time of the Closing, there shall not have occurred any change or any development involving a prospective change, in the status of the condition, financial or otherwise, or in the earnings or operations of the City, from that set forth in the Official Statement that in the judgment of the Representative, is material and adverse and that makes it, in the judgment of the Representative, impracticable or inadvisable to proceed with the offer, sale or delivery of the Bonds on the terms and in the manner contemplated in the Official Statement. F. At or prior to the Closing, the Underwriters shall receive the following documents, all in form reasonably acceptable to the Underwriters: (i) The Official Statement of the City executed by the City Manager; {JA468630;4} 7 (ii) A copy of the Resolution, certified as of the date of the Closing by the City Clerk as having been duly adopted by the City Commission and as being in full force and effect and not having been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriters; (iii) The approving opinion of Foley & Lardner LLP, Miami, Florida, Bond Counsel, dated the date of the Closing substantially in the form attached as Appendix E to the Official Statement and the opinion of , Associate Counsel, dated the date of the Closing substantially in the form attached as Exhibit E attached hereto, each addressed (or a separate "reliance letter" addressed) to the City and the Underwriters; (iv) The supplemental opinion of Foley & Lardner LLP, Miami, Florida, Bond Counsel, and Law Offices of Richard Kuper, P.A., Miami, Florida, Associate Counsel, dated the date of the Closing substantially in the form of Exhibit C attached hereto; (v) The opinion of Julie O. Bru, Esq., City Attorney, dated the date of the Closing, substantially in the form of Exhibit D attached hereto; (vi) An opinion of KnoxSeaton, Miami, Florida, Disclosure Counsel, addressed to the City and the Underwriters, and dated the date of Closing, to the effect that (A) with respect to the information in the Official Statement and based upon said firms' participation in the preparation and review of the Official Statement as special disclosure counsel and without having undertaken to determine independently the accuracy or completeness of the contents of the Official Statement, nothing has come to the attention of said firm that would cause it to believe that the Official Statement (except for the financial and statistical data contained therein and information relating to the book -entry -only registration system, as to which no opinion need be expressed) contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading; and (B) the Continuing Disclosure Agreement satisfies the requirements under Rule 15c2-12 for an undertaking to provide certain annual financial information and event notices to various repositories as required by such Rule. (vii) an opinion of Akerman Senterfitt, Miami, Florida counsel to the Underwriters, dated the date of the Closing, in form and substance satisfactory to the Underwriters. (viii) A certificate dated the date of Closing of the Mayor and City Manager to the effect that: {JA468630;4) 8 (a) as of such date, except as disclosed in the Official Statement, no litigation is pending or, to their knowledge, threatened in any court (1) challenging the creation, organization or existence of the City, or (2) seeking to restrain or enjoin the issuance or delivery of any of the Series 2009 Bonds, or the collection or distribution of revenues or other moneys pledged to pay the principal of and interest on the Series 2009 Bonds, or in any way contesting or affecting the validity of the Series 2009 Bonds, the Resolution or the pledge of the Pledged Revenues, or contesting the powers of the City to issue the Series 2009 Bonds, to adopt the Resolution, or (3) in any way contesting or affecting the validity of this Purchase Contract, the Disclosure Agreement or the Resolution; provided, the Underwriters may in their sole discretion accept the opinion of the City Attorney or Bond Counsel in lieu of the certifications required by clauses (1), (2) and (3), in each case, acceptable in form and substance satisfactory to the Underwriters, that in the opinion of the Underwriters, all issues raised in any related or threatened litigation are without substance or the contentions of any plaintiffs therein are without merit; and (b) (1) the representations, warranties, covenants and agreements of the City contained herein are true and correct in all material respects on and as of the date of the Closing as if made on the date of the Closing; and (2) no event affecting the City has occurred since the date of the Official Statement which has not been disclosed therein 'and which should be disclosed in the Official Statement for the purpose for which it is to be used or which it is necessary to disclose therein in order to make the statements and information therein, in light of the circumstances under which they were made, not misleading in any material respect; (ix) A copy of a transcript of all proceedings relating to the authorization, sale and issuance of the Series 2009 Bonds, including, among other documents, copies of the Resolution and this Purchase Contract; (x) An executed Disclosure Agreement of the City, substantially in the form provided therefor in Appendix G to the Official Statement and meeting the requirements of Section (b)(5) of SEC Rule 15c2-12; and (xi) Such additional legal opinions, certificates instruments and other documents as the Underwriters may reasonably request. If the obligations of the Underwriters shall be terminated for any reason permitted by this Purchase Contract, this Purchase Contract shall terminate and the Underwriters shall be under no further obligation hereunder, except as set forth in Section 10 hereof. {JA468630;4} 9 9. The Underwriters may terminate this Purchase Contract by notifying the City of their election to do so if, after its execution and prior to the Closing any of the following have occurred: A. Legislation enacted by the Congress or recommended to the Congress for passage by the President of the United States, or favorably reported for passage to either House of the Congress by any committee of such House to which such legislation has been referred for consideration, or a decision rendered by a court established under Article III of the Constitution of the United States or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement or pronouncement issued or made: (i) By or on behalf of the Treasury Department of the United States or the Internal Revenue Service or other governmental agency having jurisdiction over the subject matter, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such revenues as would be received by the City or the Paying Agent or upon such interest as would be received by the owners of the Series 2009 Bonds or which would have the effect of changing, directly or indirectly, the federal income tax consequences with respect to the owners of the Series 2009 Bonds; or (ii) By or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Series 2009 Bonds, including any or all underlying security, are not exempt from registration under the Securities Act of 1933, as amended, or that the Resolution is not exempt from qualification under the Trust Indenture Act of 1939, as amended, the effect of which, in the judgment of the Representative, would make it impracticable or inadvisable to proceed with the offer, sale or delivery of the Bonds on the terms and in the manner contemplated in the Official Statement. B. The occurrence of any new outbreak of hostilities or any national, or any change in financial markets, or international calamity or crises, including a financial crises, or any escalation of activities involving the military forces of the United States, the effect of which, in the judgment of the Representative, would make it impracticable or inadvisable to proceed with the offer, sale or delivery of the Series 2009 Bonds on the terms and in the manner contemplated in the Official Statement (it being agreed to by the parties hereto that no such hostilities, calamity or crisis was occurring as of the date hereof which had a material effect upon the marketability of the Series 2009 Bonds). C. The declaration of a general banking moratorium by federal, New York or Florida authorities, or the general suspension of or material limitation on trading on the New York Stock Exchange. D. The imposition by the New York Stock Exchange or any governmental authority of any material restrictions not now in force with respect to the Series 2009 Bonds or obligations of the general character of the Series 2009 Bonds or securities generally, or the {JA468630;4} 10 material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, underwriters. E. An order, decree or injunction of any court of competent jurisdiction, or order, ruling, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Series 2009 Bonds or the issuance, offering or sale of the Series 2009 Bonds, including any underlying obligations, as contemplated hereby or by the Official Statement, is or would be in violation of the federal securities laws as amended and then in effect. F. The President of the United States, the Office of Management and Budget, the Department of Treasury, the Internal Revenue Service or any other governmental body, department, agency or commission of the United States or the State of Florida shall take or propose to take any action or implement or propose regulations, rules or legislation which, in the reasonable judgment of the Underwriters, would make it impracticable or inadvisable to proceed with the offer, sale or delivery of the Series 2009 Bonds on the terms and in the manner contemplated in the Official Statement or causes the Official Statement to contain an untrue statement of a material fact or to omit to state a material fact which is necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading in any material respect. G. Any executive order shall be announced, or any legislation, ordinance, rule or regulation shall be proposed by or introduced in, or be enacted by any governmental body, department, agency or commission of the United States or the State of Florida or the State of New York, having jurisdiction over the subject matter, or a decision by any court of competent jurisdiction within the United States or within the State of Florida or the State of New York shall be rendered which, in the reasonable judgment of the Underwriters, would make it impracticable or inadvisable to proceed with the offer, sale or delivery of the Series 2009 Bonds on the terms and in the manner contemplated in the Official Statement or causes the Official Statement to be misleading in any material respect. H. Any event occurring, or information becoming known which, in the reasonable judgment of the Underwriters, makes untrue in any material respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. I. Any fact or event shall exist or have existed that, in the Representative's judgment, requires or has required an amendment of or supplement to the Official Statement. J. There shall have occurred, after the signing hereof, either a financial crisis or a default with respect to the debt obligations of the City or any agency or political subdivision thereof or proceedings under the bankruptcy laws of the United States or the {JA468630;4} 11 State of Florida shall have been instituted by the City or any agency or political subdivision, in either case the effect of which, in the reasonable judgment of the Representative, is such as to materially and adversely affect the market price or the marketability of the Series 2009 Bonds or the ability of the Underwriters to enforce contracts of the sale of the Series 2009 Bonds. 10. From Series 2009 Bond proceeds, the City will pay all costs of issuance of the Series 2009 Bonds including, but not limited to (a) the cost of preparation, posting, printing and delivery of the Official Statement, including the number of copies the Representative deems reasonable; (b) any cost of preparation of the Bonds; (c) the fees and disbursements of Bond Counsel and Disclosure Counsel; (d) the fees and disbursements of any accountants, consultants, financial advisors or additional legal counsel retained in connection with the issuance of the Series 2009 Bonds; (e) fees for Bond ratings and credit enhancement, if any; (f) the expenses of travel, meals, and lodging for City representatives to attend conferences with the rating agencies, investor meetings, and pricing meetings relating to the issuance of the Series 2009 Bonds; (g) all advertising expenses in connection with the public offering of the Series 2009 Bonds; (h) CUSIP Service Bureau charges; and (i) all out- of-pocket and computer costs associated with the issuance of the Series 2009 Bonds. The Underwriters shall pay (i) the costs of preparation and printing of this Purchase Contract and the Blue Sky Survey, if any; (ii) all advertising expenses in connection with the public offering of the Series 2009 Bonds; and (iii) all other expenses incurred by them in connection with the public offering of the Series 2009 Bonds, including the fees and disbursements of Counsel to the Underwriters. If this Purchase Contract shall be terminated by the Representative because of any failure or refusal on the part of the Issuer to comply with the terms or to fulfill any of the conditions of this Purchase Contract, or if for any reason the Issuer shall be unable to perform its obligations under this Purchase Contract, the Issuer will reimburse the Representative for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by the Representative in connection with this Purchase Contract or the offering contemplated hereunder. 11. Any notice or other communication to be given to the City under this Purchase Contract may be given by delivering the same in writing in person or by certified or registered mail, return receipt requested, at its address set forth above, addressed Attention: Finance Director. Any notice or other communication to be given to the Underwriters under this Purchase Contract may be given by delivering the same in person, or by certified or registered mail, return receipt requested, to Merrill Lynch, Pierce Fenner & Smith Incorporated, 300 South Orange Avenue, Suite 800, Orlando, Florida 32801, Attention: Rawn N. Williams. All notices or communications hereunder by any party shall be given and served upon each other party. 12. The Issuer acknowledges that in connection with the offering of the Series 2009 Bonds: (a) the Representative has acted at arms length, is not an agent of, and owes no fiduciary duties to, the Issuer or any other person, (b) the Representative owes the Issuer only those duties and obligations set forth in this Purchase Contract and (c) the Representative may have interests that differ from those of the Issuer. The Issuer waives to the full extent permitted by applicable law any {JA468630;4} 12 claims it may have against the Representative arising from an alleged breach of fiduciary duty in connection with the offering of the Series 2009 Bonds. 13. This Purchase Contract shall constitute the entire agreement between the City and the Underwriters and is made solely for the benefit of the City and the Underwriters. No other person shall acquire or have any rights hereunder or by virtue hereof. All representations, warranties, covenants and agreements of the City in this Purchase Contract shall remain operative and in full force and effect, regardless of (a) any investigation made by or on behalf of the Underwriters, and (b) the delivery of any payment for the Series 2009 Bonds hereunder. 14. This Purchase Contract may be amended only by an agreement in writing between the City and the Underwriters. 15. The validity, interpretation and performance of this Purchase Contract shall be governed by the laws of the State of Florida. 16. This Purchase Contract may be executed in any number of counterparts, each of which so executed and delivered shall constitute an original and all together shall constitute but one and the same instrument. [Signatures on following pages] {JA468630;4) 13 [Signature page for Underwriter Representative to Purchase Contract relating to The City of Miami, Florida Special Obligation Bonds, Series 2009 (Street and Sidewalk Improvement Program)] Very truly yours, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED as Representative of the Underwriters Rawn N. Williams Director {JA468630;4} 14 [Signature page for the City to Purchase Contract relating to The City of Miami, Florida Special Obligation Bonds, Series 2009 (Street and Sidewalk Improvement Program)] Accepted this _th day of October, 2009 by and on behalf of the City of Miami, Florida, pursuant to the provisions of the Resolution. THE CITY OF MIAMI, FLORIDA, a municipal corporation ATTEST: By: Priscilla A. Thompson, City Clerk Pedro G. Hernandez, City Manager Approved as to Form and Correctness: in Julie O. Bru, City Attorney Approved as to Insurance Requirements: LeeAnn Brehm Risk Management Director (JA468630;4) 15 EXHIBIT A ;7 CITY OF MIAMI, FLORIDA SPECIAL OBLIGATION BONDS, SERIES 2009 (Street and Sidewalk Improvement Program) TERMS OF SERIES 2009 BONDS Maturity Date (January 1) Principal Amount Interest Rate Yield Price Optional Redemption The Series 2009 Bonds maturing on and after , are subject to redemption at the option of the City on or after , in whole or in part at any time, in such manner as shall be determined by the Bond Registrar, at a redemption price equal to the principal amount thereof, plus accrued interest to the date fixed for redemption without premium. (JA468630;4) A-1 b -e y th EXHIBIT B CITY OF MIAMI, FLORIDA SPECIAL OBLIGATION BONDS, SERIES 2009 (Street and Sidewalk Improvement Program) DISCLOSURE STATEMENT November , 2009 The City Commissioners of The City of Miami, Florida Miami, Florida 33133 Ladies and Gentlemen: In connection with the proposed issuance by the City of Miami, Florida (the "City") of the principal amount of the bonds referred to above (the "Series 2009 Bonds"), Merrill Lynch, Pierce Fenner & Smith Incorporated, Morgan Keegan & Company, Inc., Raymond James & Associates, Inc., RBC Capital Markets, Inc. and Banc of America Securities LLC (collectively, the "Underwriters"), have agreed to underwrite a public offering of the Series 2009 Bonds. Arrangements for underwriting the Series 2009 Bonds will include a Purchase Contract between the City and the Underwriters, which will embody the negotiations in respect thereof. The purpose of this letter is to famish, pursuant to the provisions of Section 218.385(6), Florida Statutes, certain information in respect of the arrangement contemplated for the underwriting of the Series 2009 Bonds, as follows: (a) The nature and estimated amount of expenses to be incurred by the Underwriters in connection with the purchase and reoffering of the Series 2009 Bonds are set forth on Schedule B-1 attached hereto. (b) No person has entered into an understanding with the Underwriters for any paid or promised compensation or valuable consideration, directly or indirectly, expressly or implied, to act solely as an intermediary between the City and the Underwriters or to exercise or attempt to exercise any influence to effect any transaction in the purchase of the Series 2009 Bonds. {JA468630;4} (c) The amount of underwriting spread expected to be realized is as follows: Per $1,000 Bond Takedown Management Fee Underwriters' Expenses Total Underwriting Spread Dollar Amount (d) No other fee, bonus or other compensation has or will be paid by the Underwriters in connection with the issuance of the Series 2009 Bonds to any person not regularly employed or retained by the Underwriters (including any "finder," as defined in Section 218.386(1)(a), Florida Statutes), except as specifically enumerated as expenses to be incurred and paid by the Underwriters, as set forth in Schedule B-1. (e) The names and addresses of the Underwriters are: Merrill Lynch, Pierce Fenner & Smith Incorporated 300 South Orange Avenue, Suite 800 Orlando, Florida 32801 Morgan Keegan & Company, Inc. 515 W. Morse Boulevard Winter Park, Florida 32789 Raymond James & Associates, Inc. 880 Carillon Parkway Tower 3, 3rd Floor St. Petersburg, Florida 33716 RBC Capital Markets, Inc. 4400 PGA Blvd., Suite 501 Palm Beach, Florida 33410 Goldman Sachs 85 Broad Street New York, New York 10004 IN WITNESS WHEREOF, the undersigned has executed this Disclosure Statement this th day of October, 2009. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, on behalf of itself and as Representative of the Underwriters Rawn N. Williams Director (JA468630;4) B-1 h-0- Ix f n -L G'LO SCHEDULE B-1 UNDERWRITERS' EXPENSES $/1000 Amount Underwriter's Counsel Fee SIFMA Fee Dalcomp Bookrunning CUSIP Fee Day Loan DTC Fee I -Deal Wire Charge I -Deal EOE Fee Out -of -Pocket Total: {JA468630;4} T b,-, EXHIBIT C T a-V etv [Form of Supplemental Co -Bond Counsel Opinion] (LETTERHEAD OF CO -BOND COUNSEL) May _, 2009 Merrill Lynch, Pierce Fenner & Smith Incorporated and Participating Underwriters Orlando, Florida Re: $ City of Miami, Florida Special Obligation Bonds, Series 2009 (Street and Sidewalk Improvement Program) Ladies and Gentlemen: We have acted as Bond Counsel in connection with the issuance of the above -captioned bonds (the "Series 2009 Bonds") and related transactions. This opinion is furnished pursuant to Section 8.F(iv) the Purchase Contract dated October _, 2009 (the "Purchase Contract") among the City of Miami, Florida (the "City"), Merrill Lynch, Pierce Fenner & Smith Incorporated and the Participating Underwriters named therein (Merrill Lynch, Pierce Fenner & Smith Incorporated and said Participating Underwriters are referred to collectively as the "Underwriters"). All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Purchase Contract. We have examined such documents and instruments as we deemed necessary to render the opinions set forth herein. It is our opinion that: 1. The Resolution has been duly adopted by the City and the Resolution authorizes (i) the execution and delivery of the Disclosure Agreement, (ii) the execution, delivery and distribution of the Official Statement and (iii) the taking of any and all such action as may be required by the City to carry out, give effect and consummate the transactions contemplated by the aforementioned agreements and instruments. 2. The information and statements in the Official Statement under the headings "INTRODUCTION" (except for the second paragraph thereunder, as to which no view is hereby expressed), "PURPOSE OF THE ISSUE," "DESCRIPTION OF THE SERIES 2009 BONDS" (except the subsection therein entitled "Book -Entry Only System"), "SECURITY {JA468630;4} C-1 AND SOURCES OF PAYMENT FOR THE SERIES 2009 BONDS," " TAX MATTERS," "CONTINUING DISCLOSURE," "APPENDIX C — FORM OF THE BOND RESOLUTION" and "APPENDIX E — FORM OF BOND COUNSEL OPINION," and insofar as such information and statements constitute summaries of, the Resolution, the Disclosure Agreement, the Series 2009 Bonds or the statutory provisions of state and federal law purported to be summarized therein, excluding any financial, statistical or demographic information therein, or exhibit or attachment therein, constitute fair and accurate statements or summaries of such matters and fairly present the information they purport to show. Other than as set forth above, we express no opinion with respect to the accuracy, completeness, fairness or sufficiency of the Official Statement. 3. The Series 2009 Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended and the Resolution is exempt from qualification under the Trust Indenture Act of 1939, as amended. This opinion is supplemental to our approving opinion dated as of the date hereof with respect to the Series 2009 Bonds. You may rely on our approving opinion as if it were addressed to you. Respectfully Submitted, {JA468630;4} C-2 Ce os EXHIBIT D [Form of City Attorney's Opinion] (LETTERHEAD OF CITY ATTORNEY'S OFFICE) November , 2009 The Honorable Mayor and Members of the City Commission of the City of Miami Miami, Florida Merrill Lynch, Pierce Fenner & Smith Incorporated and Participating Underwriters Orlando, Florida Re: $ City of Miami, Florida Special Obligation Bonds, Series 2009 (Street and Sidewalk Improvement Program) Ladies and Gentlemen: I am City Attorney for the City of Miami, Florida (the "City") and have served in such capacity in connection with the issuance by the City of its $ aggregate principal amount of Special Obligation Bonds, Series 2009 (Street and Sidewalk Improvement Program) (the "Series 2009 Bonds") and related transactions. This opinion is furnished pursuant to the Purchase Contract dated October _, 2009 relating to the Series 2009 Bonds (the "Purchase Contract") among the City, Merrill Lynch, Pierce Fenner & Smith Incorporated and the Participating Underwriters named therein (Merrill Lynch, Pierce Fenner & Smith Incorporated and said Participating Underwriters are referred to collectively as the "Underwriters"). All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Purchase Contract. The Office of the City Attorney has examined such documents and instruments as we deemed necessary to render the requested opinion. Based upon examination of such documents and matters of law as the Office of the City Attorney has determined relevant for the purposes of rendering this opinion, and subject to the reservations set forth herein, I am of the opinion that: 1. The City is a municipal corporation of the State of Florida duly organized and validly existing under its Charter, the Constitution and laws of the State of Florida. 2. The City has and had, as the case may be, full legal right, power and authority to (a) pledge the Pledged Revenues in the manner described in the Official Statement; (b) issue the Series 2009 Bonds, for the purposes of funding acquisition, construction and improvements to certain roadways and streetways (collectively, the "Project"), in the manner contemplated by the Resolution and the Official Statement; (c) secure the Series 2009 Bonds in the manner contemplated by the Official Statement and the Resolution; (d) execute and D-1 {JA468630;4} deliver the Purchase Contract, the Paying Agent and Registrar Agreement, and the Disclosure Agreement; (e) deliver the Series 2009 Bonds to the Underwriters as provided in the Purchase Contract; and (f) carry out and consummate all other transactions contemplated by the aforesaid agreements and instruments, and the City has complied with all provisions of applicable law in all matters relating to such transactions required to be followed on or prior to the date hereof. 3. The City has duly adopted the Resolution and has duly, authorized or ratified, as the case may be (a) the execution, delivery and performance of the Purchase Contract, the Disclosure Agreement, the Paying Agent and Registrar Agreement (collectively, the "Financing Documents"), and the Series 2009 Bonds, (b) the delivery and distribution of the Preliminary Official Statement and the Official Statement, as well as the execution of the Official Statement, and (c) the taking of any and all 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 aforesaid agreements and instruments. 4. The Financing Documents have each been duly authorized, executed and delivered by the City and each of such documents constitutes legal, valid and binding obligations of the City enforceable in accordance with its respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, moratorium or other laws affecting creditors' rights generally or by general principles of equity. 5. 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 Series 2009 Bonds or to the execution and delivery of or the performance by the City of its obligations under the Financing Documents have been obtained or made and any consents, approvals and orders so received or filings so made are in full force and effect; provided, however, that no representation is made concerning compliance with the federal securities laws or the securities or blue sky laws of the various states. 6. The authorization, execution, delivery and performance of the Financing Documents and any other agreement or instrument to which the City is a party, used or contemplated for use in the consummation of the transactions contemplated by the Official Statement or the Financing Documents and compliance with the provisions of each such instrument, do not and will not conflict with, or constitute or result in a material violation or material breach of or a default under, the Constitution of the State of Florida, or any existing law, administrative regulation, rule, decree or order, state or federal, or, a material provision of any agreement, indenture, mortgage, lease, note or other agreement or instrument to which the City or its properties or any of the officers of the City as such is subject. 7. Except as described in the Official Statement, no litigation or other proceedings are pending, or to my knowledge threatened, before or by any court, government agency, public board or body for which the City has received notice (a) restraining or enjoining, or seeking to restrain or enjoin, the authorization, sale, execution, or delivery of any of the Series 2009 Bonds, or (b) in any way questioning or affecting the validity of any provision of the Financing Documents, or (c) in any way questioning or affecting the validity D-2 {JA468630;4} of any of the proceedings or authority for the authorization, sale, execution or delivery of the Series 2009 Bonds, or of any provision, program or transactions made or authorized for their payment, or (d) questioning or affecting the organization or existence of the City or the title of any of its officers to their respective offices, or (e) questioning or affecting the power or authority of the City to fund the Project, or (f) questioning or affecting the power of the City to fix, revise and collect the moneys and revenues pledged to the payment of the Series 2009 Bonds. 8. The statements contained in the Official Statement under the headings "Introduction," "Purpose of the Issue," "Amendment of Resolution", "Security and Sources of Payment for the Series 2009 Bonds," "Ad Valorem Taxation," "The City of Miami," "Litigation," "Disclosure Required by Florida Blue Sky Regulations" and "APPENDIX A General Information Regarding the City of Miami" (excluding any financial, statistical or demographic information therein) constitute fair and accurate descriptions of the legal matters, agreements and ordinances relating to the City which are referred to therein. 9. With respect to the information contained in the Official Statement and based upon my review of the Official Statement as City Attorney and without having undertaken to determine independently the accuracy or completeness of the contents of the Official Statement, I have no reason to believe that the information contained in the Official Statement relating to legal matters affecting the City contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. All opinions as to the enforceability of the legal obligations of the City set forth herein are subject to and limited by bankruptcy, insolvency, reorganization, moratorium, and similar laws in each case relating to or affecting the enforcement of creditors' rights generally, and subject to the enforceability thereof, to the exercise of judicial discretion in accordance with the general principles of equity. I am qualified to practice law in the State of Florida and for the purpose of this opinion, I do not purport to be an expert on, or to express an opinion herein concerning, the laws of any other jurisdiction (including any such laws which may be applicable by virtue of the application of the choice of law provisions under Florida law) except the laws of the United States to the extent set forth herein. No one, other than the addressees named above, is entitled to rely upon the statements made, and conclusions expressed, within this opinion. Very truly yours, Julie O. Bru, Esq. City Attorney D-3 {JA468630;4} [Form of Associate Counsel's Opinion] {JA468630;4} EXHIBIT E