HomeMy WebLinkAboutComplete Legislation - Ordinance V1City of Miami
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Ordinance
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Miami, FL 33133
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File Number: 08-00726 Final Action Date:
AN ORDINANCE OF THE CITY OF MIAMI, FLORIDA,
SUPPLEMENTING THAT CERTAIN ORDINANCE NO. 11693
ADOPTED BY THE CITY COMMISSION ON AUGUST 14, 1998;
AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $42,000,000
IN AGGREGATE PRINCIPAL AMOUNT OF ITS VARIABLE RATE
PARKING SYSTEM REVENUE REFUNDING BONDS, SERIES 2008,
IN ONE OR MORE SERIES AND ON A TAX-EXEMPT OR TAXABLE
BASIS, FOR THE PURPOSES OF CURRENTLY REFUNDING AND
REDEEMING ALL OF THE CITY'S OUTSTANDING TAX-EXEMPT
VARIABLE RATE PARKING SYSTEM REVENUE BONDS, SERIES
2006, AND ITS TAXABLE VARIABLE RATE PARKING SYSTEM
REVENUE BONDS, SERIES 2006, AND PAYING CERTAIN COSTS
OF ISSUANCE IN CONNECTION THE ISSUANCE OF SUCH
BONDS; ESTABLISHING CRITERIA FOR DETERMINING THE
DATES, INTEREST RATES, INTEREST PAYMENT DATES,
PRINCIPAL AMOUNTS, PROVISIONS FOR TENDER AND
REDEMPTION AND MATURITY SCHEDULES FOR SUCH BONDS;
AWARDING THE SALE OF SAID BONDS TO SUNTRUST
ROBINSON HUMPHREY INC. ON A NEGOTIATED BASIS, AND
APPROVING THE CONDITIONS AND CRITERIA OF SUCH SALE;
APPROVING THE FORM OF AND AUTHORIZING THE
EXECUTION OF A BOND PURCHASE AGREEMENT WITH
SUNTRUST ROBINSON HUMPHREY INC.; APPROVING THE
FORM OF AND AUTHORIZING THE EXECUTION OF AN
OFFICIAL STATEMENT ON BEHALF OF THE CITY; APPROVING
THE FORM OF AND AUTHORIZING THE EXECUTION AND
DELIVERY OF A BOND CREDIT FACILITY AGREEMENT WITH
SUNTRUST BANK; APPROVING THE FORM OF A BOND CREDIT
FACILITY FROM SUNTRUST BANK; APPROVING THE FORM OF
AND AUTHORIZING THE EXECUTION AND DELIVERY OF A
REMARKETING AGREEMENT AND DESIGNATING SUNTRUST
ROBINSON HUMPHREY INC. AS THE REMARKETING AGENT
THEREUNDER; APPROVING THE FORM OF AND AUTHORIZING
THE EXECUTION AND DELIVERY OF A TRUSTEE, TENDER
AGENT, PAYING AGENT AND REGISTRAR AGREEMENT, AND
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DESIGNATING TD BANK, NATIONAL ASSOCIATION, AS
TRUSTEE, PAYING AGENT, TENDER AGENT AND REGISTRAR
THEREUNDER; APPROVING THE FORM OF AND AUTHORIZING
THE EXECUTION AND DELIVERY OF A DISCLOSURE
DISSEMINATION AGENT AGREEMENT AND DESIGNATING
DIGITAL ASSURANCE CERTIFICATION, L.L.C. AS
DISSEMINATION AGENT THEREUNDER; DESIGNATING A
QUALIFIED DERIVATIVE AGREEMENT WITH RESPECT TO THE
2008 BONDS; DESIGNATING A SURETY BOND WITH RESPECT
TO THE 2008 BONDS; AUTHORIZING CERTAIN OFFICIALS AND
EMPLOYEES OF THE CITY AND THE DEPARTMENT TO TAKE
ALL ACTIONS REQUIRED IN CONNECTION WITH THE
ISSUANCE OF SAID BONDS; PROVIDING CERTAIN OTHER
DETAILS WITH RESPECT THERETO; AND PROVIDING AN
EFFECTIVE DATE FOR THIS ORDINANCE.
WHEREAS, pursuant to Ordinance No. 11693, enacted by the City of
Miami, Florida (the "City") on August 14, 1998 (as supplemented and amended, and in
particular, as amended by Ordinance No. 11719, enacted by the City on October 27,
1998, collectively, the "1998 Bond Ordinance"), the City issued its $13,490,000 Parking
System Revenue Refunding Bonds, Series 1998, of which $7,560,000 are currently
outstanding; and
WHEREAS, on December 18, 2003, the City adopted Ordinance No.
12457 (the "2003 Ordinance"), pursuant to which the City determined to issue Additional
Bonds under the terms of the 1998 Bond Ordinance to finance the cost of certain public
parking improvements more particularly described in the 2003 Ordinance (the "Project");
and
WHEREAS, on March 9, 2006, the City adopted Ordinance No. 12778
(the "2006 Ordinance" and together with the 1998 Bond Ordinance and the 2003
Ordinance, collectively, the "Bond Ordinance") supplementing and amending the 1998
Bond Ordinance and the 2003 Ordinance to, among other things: (a) ratify the 2003
Ordinance and the delegated actions taken to date by officials of the City and the
Department thereunder, and (b) redesignate the Additional Bonds authorized under the
2003 Ordinance as "Tax -Exempt Variable Rate Parking System Revenue Bonds of the
City of Miami, Florida, Series 2006" (the "Tax -Exempt Series 2006 Bonds") and
"Taxable Variable Rate Parking System Revenue Bonds of the City of Miami, Florida,
Series 2006" (the "Taxable Series 2006 Bonds," together with the Tax -Exempt Series
2006 Bonds, collectively, the "Refunded Bonds"); and
WHEREAS, the City desires to provide for the issuance, in one or more
Series, of its Tax Exempt Variable Rate Parking System Revenue Refunding Bonds,
Series 2008 (the "Tax -Exempt Series 2008 Bonds") and its Taxable Variable Rate
Parking System Revenue Refunding Bonds (the "Taxable Series 2008 Bonds;" the Tax -
Exempt Series 2008 Bonds and the Taxable Series 2008 Bonds are sometimes
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collectively referred to herein as the "2008 Bonds") in an aggregate principal amount of
not to exceed $42,000,000 as a Series of Additional Bonds under the 1998 Bond
Ordinance, as supplemented hereby, the proceeds of which will be used to currently
refund and redeem all of the Refunded Bonds;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION
OF THE CITY OF MIAMI, FLORIDA:
ARTICLE I
AUTHORITY AND DEFINITIONS
Authority for this Ordinance. This Ordinance is adopted and implemented
pursuant to the Constitution and laws of the State of Florida, including without limitation
Chapter 166, Florida Statutes, the Charter of the City and Section 211 of the 1998 Bond
Ordinance. This Ordinance shall constitute a "Series Ordinance" as defined in the 1998
Bond Ordinance.
Definitions. All terms used herein in capitalized form, except as otherwise
defined herein, shall have the meanings ascribed thereto in Section 101 of the 1998 Bond
Ordinance. The terms "herein," "hereby," "hereunder," "hereof," "hereinbefore,"
"hereinafter" and other equivalent words refer to this Ordinance as a whole and not solely
to the particular portion thereof in which any such word is used. Unless the context
dictates otherwise, all definitions set forth in this Section 1.02 are meant to include both
singular and plural usages. Whenever used herein, any pronoun shall be deemed to
include both singular and plural and to cover all genders. As used herein, the following
terms shall have the meanings set forth below:
(a) "Alternate Bond Credit Facility" means a Bond Credit Facility
issued pursuant to Section 7.01.G. hereof in substitution of an existing Bond Credit
Facility for the purpose of providing credit and/or liquidity support for the 2008 Bonds.
(b) "Alternate Rate" means, on any Rate Determination Date, (i) with
respect to the Tax -Exempt Series 2008 Bonds: (a) the Securities Industry and Financial
Markets Association Municipal Swap Index (the "SIFMA Index") released by
Municipal Market Data to its subscribers, or its replacement index, plus (b) fifteen basis
points (0.15%), and (ii) with respect to the Taxable Series 2008 Bonds, the 91-Day
Treasury Bill rate on such date. In the event that at any time Municipal Market Data
ceases to announce the SIFMA Index (or its replacement), makes a material change in
the method of calculating the SIFMA Index, or in any other way materially modifies the
SIFMA Index, the Remarketing Agent may make such calculations as may be required
to determine the relevant index using a formula and method of calculating such index
that it reasonably believes will produce the rate that would have been produced by
Municipal Market Data as in effect prior to such cessation, change or modification of the
SIFMA Index (or its replacement).
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(c) "Ambac Assurance" shall mean Ambac Assurance Corporation, a
Wisconsin domiciled stock insurance company.
(d) "Authorized Denominations" means with respect to the 2008
Bonds (i) in a Commercial Paper Mode, Daily Mode or Weekly Mode, $100,000 and
any integral multiple of $5,000 in excess thereof, and (ii) in a Term Rate Mode or Fixed
Rate Mode, $5,000 and any integral multiple thereof, provided, however, that if as a
result of the change in the Mode of the 2008 Bonds from a Term Rate Mode to a
Commercial Paper Mode, Daily Mode or Weekly Mode, it is not possible to deliver the
2008 Bonds required or permitted to be Outstanding in a denomination permitted above,
the 2008 Bonds may be delivered, to the extent necessary, in different denominations.
(e) "Bond Counsel's Opinion" means a written opinion of an
attorney (or attorneys) or firm (or firms) of attorneys selected by the City which is of
nationally recognized standing in the field of law relating to municipal bonds and the
exclusion from gross income for federal income tax purposes of interest on municipal
bonds.
(f) "Bond Credit Facility" shall initially mean, with respect to the
2008 Bonds, the irrevocable direct pay letters of credit issued by the initial Bond Credit
Facility Issuer to provide credit and liquidity support -for each Series of the 2008 Bonds
pursuant to the Bond Credit Facility Agreement, and, upon the issuance of an Alternate
Bond Credit Facility with respect to the 2008 Bonds, or a Series thereof, such Alternate
Bond Credit Facility or Facilities.
(g) "Bond Credit Facility Agreement" means (a) initially, upon the
issuance of the 2008 Bonds, that certain Letter of Credit Agreement, dated as of the date
of issuance of the 2008 Bonds, entered into by and between the City and SunTrust Bank,
a Georgia Banking corporation with respect to the Bond Credit Facility, and (b) in
connection with the issuance of an Alternate Bond Credit Facility, the agreement(s)
entered into by and between the City and the Alternate Bond Credit Facility issuer with
respect to the Alternate Bond Credit Facility.
(h) "Bond Credit Facility Amount" means at any time with respect
to the 2008 Bonds, an amount equal to the aggregate principal amount of the 2008
Bonds then Outstanding plus an interest amount equal to interest with respect to the
2008 Bonds at the Maximum Rate for the minimum number of days required by the
rating agencies, all as shall be set forth in the Bond Credit Facility for the 2008 Bonds.
(i) "Bond Credit Facility Issuer" means: (a) initially, SunTrust
Bank, a Georgia banking corporation, as the initial Bond Credit Facility Issuer for the
2008 Bonds in accordance with this Ordinance, and, (b) thereafter, upon the issuance of
one or more Alternate Bond Credit Facilities, the issuer(s) of such Alternate Bond Credit
Facility.
(j) "Business Day" means any day except (i) a Saturday, Sunday or
legal holiday, or (ii) any other day on which DTC (so long as DTC is acting as securities
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depository for the 2008 Bonds) and the commercial banks and trust companies in the
City of New York, or any City in which the principal office of the City, the Tender
Agent, the Remarketing Agent and the Bond Credit Facility Issuer (or Alternate Bond
Credit Facility issuer) are authorized or required to remain closed, or are closed for any
other reason.
(k) "Commercial Paper Mode" means the Mode during which the
duration of the Interest Periods and the interest rates for the 2008 Bonds are determined
under Section 4.04 hereof.
(1) "Commercial Paper Rate Bond" means a 2008 Bond while in a
Commercial Paper Mode.
(m) "Current Mode" means, from time to time, the then -prevailing
Mode or Modes at which the 2008 Bonds bear interest, as described in Section 4.10 B.
hereof.
(n) "Daily Mode" means the Mode during which 2008 Bonds bear
interest at a Daily Rate.
(o) "Daily Rate" means an interest rate determined pursuant to
Section 4.05 hereof.
(p) "Daily Rate Bond" means the 2008 Bonds while in a Daily Mode.
(q) "DTC" means The Depository Trust Company, New York, New
York, its successors, or any substitute securities depository.
(r) "Electronic Means" means facsimile transmission, telex, telegram
or e-mail transmission or other similar electronic means of communication.
(s) "Expiration Date" means the scheduled expiration date of the
Bond Credit Facility, as such date may be extended from time to time as provided
therein, or the date on which the Bond Credit Facility shall terminate pursuant to its
terms (other than pursuant to the occurrence of an event of default under the Bond
Credit Facility Agreement), or pursuant to an election to terminate by the City.
(t) "Expiration Tender Date" shall have the meaning set forth in
Section 6.05 A. hereof.
(u) "Favorable Opinion of Bond Counsel" means, with respect to
any action the occurrence of which requires such an opinion, an unqualified Bond
Counsel's Opinion to the effect that such action is permitted under the 1998 Bond
Ordinance and this Ordinance and that such action will not impair the exclusion of
interest on the Tax -Exempt Series 2008 Bonds from gross income for purposes of
federal income taxation (subject to the inclusion of any exceptions contained in the
opinion delivered upon original issuance of the 2008 Bonds).
•
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(v) "Financial Advisor" means First Southwest Company.
(w) "Fixed Rate" means an interest rate fixed to the Maturity Date of
the 2008 Bonds.
(x)
Mode.
"Fixed Rate Bond" means the 2008 Bonds while in a Fixed Rate
(y) "Fixed Rate Mode" means the Mode during which the 2008
Bonds bear interest at a Fixed Rate.
(z) "Interest Payment Date" means the following dates upon which
interest is payable on the 2008 Bonds:
(0)
any Principal Payment Date or Mode Change Date;
(ii) with respect to a Commercial Paper Rate Bond, the first
Business Day following the last day of the Interest Period therefor;
(iii) with respect to the Daily Mode and the Weekly Mode, the
first Business Day of each calendar month;
(iv) with respect to the Term Rate Mode, each April 1 and
October 1 prior to the Purchase Date and the Purchase Date;
(v) with respect to the Fixed Rate Mode, each April 1 and
October 1 prior to the Maturity Date and the Maturity Date, provided that the
Interest Payment Dates for the Fixed Rate Mode may be changed in connection
with the conversion to such Mode upon receipt of a Favorable Opinion of Bond
Counsel; and
(vi) with respect to Purchased Bonds, the respective dates
provided in the Bond Credit Facility Agreement.
(aa) "Interest Period" means the period of time that any interest rate
on the 2008 Bonds remains in effect, which period:
(i) with respect to a Commercial Paper Rate Bond, shall be the
period established by the Remarketing Agent pursuant to Section 4.04 hereof;
(ii) with respect to 2008 Bonds in the Daily Mode, shall be the
period from and including a Business Day to but excluding the next Business
Day;
(iii) with respect to 2008 Bonds in the Weekly Mode and
Purchased Bonds, shall be the periods from and including the Closing Date (if
initially issued in the Weekly Mode) or the Mode Change Date that they began to
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bear interest at the Weekly Rate to and including the following Wednesday, and
thereafter, commencing on each Thursday to and including Wednesday of the
following week;
(iv) with respect to 2008 Bonds in the Term Rate Mode, shall
be the period from the Mode Change Date to and including the date selected by
the City before the Mode Change Date as the last day upon which an interest rate
determined by the Remarketing Agent pursuant to Section 4.07 hereof shall be in
effect, and thereafter, shall be the period beginning on the day after the end of the
prior Interest Period and ending on the date selected by the City before the end of
such prior Interest Period as the last day upon which an interest rate determined
by the Remarketing Agent pursuant to Section 4.07 hereof shall be in effect;
provided, that no Interest Period shall extend beyond the day preceding any
Mandatory Purchase Date or the Maturity Date; and, provided further, that such
Interest Period shall be at least six (6) months or a multiple of six (6) months; and
(v) with respect to 2008 Bonds in the Fixed Rate Mode, shall
be the period from and including the Mode Change Date to and including the
earlier of the Maturity Date or the date such 2008 Bonds are redeemed or
purchased in lieu thereof.
(bb) "Mandatory Purchase Date" means (i) any Purchase Date of the
2008 Bonds in the Commercial Paper Mode or the Term Rate Mode, (ii) any Mode
Change Date, (iii) any Substitution Date, (iv) any Expiration Tender Date, and (v) the
second Business Day following the receipt by the Tender Agent and Paying Agent of a
notice of an event of default under the Bond Credit Facility Agreement for the 2008
Bonds as set forth in Section 6.05 B. hereof.
(cc) "Maturity Date" means the final maturity date of the 2008 Bonds
which shall be October 1, 2036.
(dd) "Maximum Rate" means 12% per annum; provided, however, that
in no event shall the Maximum Rate exceed the maximum rate permitted by applicable
law.
(ee) "Mode" means the Commercial Paper Mode, the Daily Mode, the
Fixed Rate Mode, the Term Rate Mode, or the Weekly Mode. The 2008 Bonds shall
initially be issued in the Weekly Mode.
(ff) "Mode Change Date" means the date a New Mode begins.
(gg) "New Mode" shall have the meaning specified in Section 4.10 B.
hereof.
(hh) "Notice Parties" means the City, the Remarketing Agent, the
Tender Agent, the Paying Agent, the Rating Agencies and the Bond Credit Facility
Issuer.
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(ii) "Principal Payment Date" means any date upon which the
principal amount of 2008 Bonds or the applicable Series thereof is due hereunder,
including the Maturity Date and any Redemption Date.
(jj) "Purchase Date" means with respect to the 2008 Bonds: (i) in the
Commercial Paper Mode, the Fixed Rate Mode (pursuant to Section 5.01 F. hereof), or
the Term Rate Mode (for 2008 Bonds described in Section 6.04 hereof), the Business
Day after the last day of the Interest Period applicable thereto, and (ii) during the Daily
Mode or Weekly Mode, any Business Day upon which such 2008 Bond is tendered or
deemed tendered for purchase pursuant to Section 6.01 hereof.
(kk) "Purchase Fund" means with respect to the 2008 Bonds, the
applicable fund (including the accounts and subaccounts therein) established pursuant to
Article X hereof.
(11) "Purchase Price" means 100% of the principal amount of the
2008 Bonds, plus accrued interest, if any, to and including the date of such purchase,
provided however, that such term shall not include premium in the case of 2008 Bonds
subject to mandatory tender for purchase on a date when such 2008 Bonds are also
subject to optional redemption at a premium due and owing on such 2008 Bonds.
(mm) "Purchased Bond Rate" means the interest rate on Purchased
Bonds as referenced in Section 4.03.E. hereof, and as described in the provisions of the
Bond Credit Facility Agreement.
(nn) "Purchased Bonds" means 2008 Bonds that are purchased on a
Purchase Date or Mandatory Purchase Date with immediately available funds
transferred to the Tender Agent from amounts available under the Bond Credit Facility
pursuant to Section 6.08.C. hereof.
(oo) "Rate Determination Date" means any date on which the interest
rate on the 2008 Bonds is required to be determined, being: (i) in the case of any
Commercial Paper Rate Bond, the first day of each Interest Period; (ii) in the case of
2008 Bonds in the Daily Mode, each Business Day; (iii) in the case of 2008 Bonds in the
Weekly Mode, for any Interest Period commencing on any Mode Change Date, the
Business Day immediately preceding the respective Mode Change Date, and for other
Interest Periods thereafter, not later than each Thursday; and (iv) in the case of 2008
Bonds to be, or continue to be, in the Term Rate Mode or Fixed Rate Mode, a
Business Day prior to the first day of an Interest Period.
(pp) "Record Date" means, with respect to 2008 Bonds: (i) in a
Commercial Paper Mode, the day (whether or not a Business Day) next preceding each
Interest Payment Date, and (ii) in the Daily Mode or the Weekly Mode, the opening of
business on the Business Day next preceding an Interest Payment Date, and (iii) in the
Term Rate Mode or the Fixed Rate Mode, the l5th day (whether or not a Business Day)
of the calendar month next preceding each Interest Payment Date.
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(qq) "Redemption Date" means the date fixed for redemption of the
2008 Bonds in any notice of redemption given in accordance with the terms hereof.
(rr) "Remarketing Agent" means the remarketing agent or agents at
the time serving as such for the 2008 Bonds. The initial Remarketing Agent shall be
SunTrust Robinson Humphrey Inc.
(ss) "Remarketing Agreement" means the Remarketing Agreement
entered into between the City and a Remarketing Agent with respect to the 2008 Bonds.
(tt) "Substitution Date" means the date on which an Alternate Bond
Credit Facility is to be substituted for a then existing Bond Credit Facility in effect for
the 2008 Bonds pursuant to Section 7.01 hereof.
(uu) "Surety Bond" shall mean Surety Bond Policy No. SB2257BE
issued by Ambac Assurance on the date of the issuance of the Refunded Bonds and
guaranteeing certain payments into the Reserve Account with respect to the Bonds,
including the 2008 Bonds, as provided therein and subject to the limitations set forth
therein.
(vv) "Tender Agent" or "Paying Agent" or "Trustee" or
"Registrar" means the Tender Agent, Paying Agent, Trustee and Registrar for the 2008
Bonds appointed by the City, who shall also serve in the capacity of Tender Agent,
Paying Agent, Trustee and Registrar for the 2008 Bonds during the period that the initial
Bond Credit Facility is in effect with respect to the 2008 Bonds. The initial Tender
Agent, Paying Agent, Trustee and Registrar shall be TD Bank, National Association.
(ww) "Term Rate" means an interest rate determined pursuant to
Section 4.07 A. hereof.
(xx) "Term Rate Bond" means the 2008 Bonds while in a Term Rate
Mode.
(yy) "Term Rate Mode" means the Mode during which the 2008
Bonds bear interest at a Term Rate.
(zz) "2008 Bonds" shall have the meaning set forth in the Recitals
hereto.
(aaa) "Underwriter" means SunTrust Robinson Humphrey, Inc.
(bbb) "Weekly Mode" means a period of time during which the 2008
Bonds bear interest at a Weekly Rate.
(ccc) "Weekly Rate" means an interest rate determined pursuant to
Section 4.06 hereof.
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Mode.
(ddd) "Weekly Rate Bond" means the 2008 Bonds while in a Weekly
ARTICLE II
FINDINGS
The City hereby finds, determines and declares as follows:
(a) This Ordinance supplements the 1998 Bond Ordinance.
(b) The City operates, through the Department of the City, the Parking
System, and derives Revenues therefrom.
(c) It is necessary, desirable, convenient, and in the best interest of
City that the Refunded Bonds be currently refunded and redeemed with, among other
sources, the proceeds of the 2008 Bonds because such refunding, under current market
conditions, is anticipated to result in a net interest cost savings to the City. The City is
authorized to issue the 2008 Bonds for the valid public purposes of refunding the
Refunded Bonds, paying any accrued interest due with respect to such refunding, and
paying the costs of iss nre_of the 2008 Bonds.
(d) The 2008 Bonds shall not be issued unless the requirements of the
1998 Bond Ordinance for the issuance thereof as "Additional Bonds" are satisfied on or
prior to the issuance thereof. Upon the issuance thereof, the 2008 Bonds shall constitute
Bonds under the 1998 Bond Ordinance entitled to all the security and benefits thereof.
(e) Because of the characteristics of the 2008 Bonds and the
uncertainty of current market conditions, the City has determined it is in the best interest
of the City, upon the satisfaction of the terms and conditions set forth herein, to enter
into a Bond Purchase Agreement with the Underwriter to purchase the 2008 Bonds at a
price equal to 100% of the principal amount thereof.
(f) Prior to the sale of the 2008 Bonds, the Underwriter will provide
the City with a disclosure statement containing the information required by Section
218.385(6), Florida Statutes, and a truth -in -bonding statement in accordance with
Section 218.385, Florida Statutes.
ARTICLE III
CONTRACTUAL OBLIGATION
In consideration of the acceptance of the 2008 Bonds authorized to be
issued hereunder by those who shall hold the same from time to time, the 1998 Bond
Ordinance, as supplemented by this Ordinance, shall be deemed to be and shall constitute
a contract between the City and the registered owners of the 2008 Bonds. The covenants
and agreements set forth herein and in the 1998 Bond Ordinance to be performed by the
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City shall be for the equal benefit, protection and security of the registered owners of the
2008 Bonds, and each 2008 Bond shall be of equal rank with all Outstanding Bonds and
with any Additional Bonds hereafter issued and Qualified Derivative Payments related to
any Bonds issued under the 1998 Bond Ordinance, if any, without preference, priority or
distinction over any other thereof. All applicable covenants contained in the 1998 Bond
Ordinance, as supplemented hereby, shall be fully applicable to the 2008 Bonds as if
originally issued thereunder, except as otherwise specifically provided herein. The City
has designated a Qualified Derivative Agreement with respect to the 2008 Bonds. The
Qualified Derivative Agreement with respect to the 2008 Bonds has been authorized by a
separate supplemental ordinance of the City and the Qualified Derivative Payments
thereunder shall be on a parity with the interest payments with respect to the 2008 Bonds
and any Additional Bonds issued under the 1998 Bond Ordinance as to security and
source of payment from Net Revenues.
ARTICLE IV
AUTHORIZATION AND ISSUANCE OF 2008 BONDS
Authorization of Refunding of Refunded Bonds; Authorization of Issuance and
General Description of 2008 Bonds.
(a) The current refunding of the Refunded Bonds is hereby authorized.
An authorized officer of the City is hereby directed to deliver or cause to be delivered
any and all appropriate notices regarding the redemption and defeasance of the
Refunded Bonds and to take such further actions and execute such certificates and
instruments as such authorized officer deems necessary or appropriate in connection
with such redemption and defeasance of the Refunded Bonds.
(b) Subject and pursuant to the provisions hereof and of the 1998
Bond Ordinance, the 2008 Bonds to be known as the "Tax -Exempt Variable Rate
Parking System Revenue Refunding Bonds, Series 2008" and the "Taxable Variable
Rate Parking System Revenue Refunding Bonds, Series 2008" are hereby authorized to
be issued in the aggregate principal amount of not to exceed $42,000,000 or such lesser
amount as may be approved by an authorized officer of the City for the purpose of
refunding all of the Refunded Bonds, provided that the Principal and Interest
Requirements for each Fiscal Year for the 2008 Bonds does not exceed the Principal and
Interest Requirements for each Fiscal Year for the Refunded Bonds. The fmal maturity
date of the 2008 Bonds shall not be later than the Maturity Date, which date is not later
than the final maturity date of the Refunded Bonds.
(c) Each Series of the 2008 Bonds shall be separate and distinct from
the other Series of the 2008 Bonds for all purposes of this Ordinance and the 1998 Bond
Ordinance. References in this Ordinance to "2008 Bond" or "2008 Bonds" shall be
deemed to refer to a Series of the 2008 Bonds, or an individual 2008 Bond of a Series, as
appropriate. Each Series of the 2008 Bonds shall constitute a Series of Bonds for the
purposes of the 1998 Bond Ordinance, with the effect that this Ordinance shall be
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deemed to constitute separate but identical supplemental ordinances of the City with
respect to each Series of the 2008 Bonds.
(d) Notwithstanding anything contained herein to the contrary, the
2008 Bonds shall not be issued until the City has complied with the requirements for the
issuance of the 2008 Bonds as Additional Bonds under the 1998 Bond Ordinance, as
supplemented hereby.
(e) On the date of issuance and delivery of the 2008 Bonds, the
payment of the principal of and interest on (or Purchase Price of) the 2008 Bonds shall
be secured by the Bond Credit Facility to be issued by the Bond Credit Facility Issuer.
The Bond Credit Facility is subject to extension or substitution as provided in this
Ordinance and in the Bond Credit Facility Agreement.
(f) The 2008 Bonds shall be dated the date of their original issuance
and delivery, shall mature on the Maturity Date, and shall be subject to prior redemption
or tender for purchase as provided in Articles V and VI hereof.
(g) The 2008 Bonds shall bear interest at a variable interest rate from
their date of issuance or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, at rate or rates determined in accordance with the
provisions hereof, payable on each Interest Payment Date as herein provided until
payment of the principal or redemption price thereof is made or provided for, whether at
maturity, upon redemption or otherwise. Interest on the 2008 Bonds shall be payable in
arrears on each Interest Payment Date, commencing on the first Interest Payment Date
after the date of original issuance of the 2008 Bonds. The 2008 Bonds shall initially
bear interest at a Weekly Rate to be determined by the Underwriter prior to the delivery
of the 2008 Bonds. Upon compliance with the conditions set forth in this Ordinance
regarding a change in Mode, the City may change the Mode of one or more Series of the
2008 Bonds to another Mode permitted by this Ordinance.
Denominations Numbers, Letters. The 2008 Bonds shall be issued solely in the
form of fully registered bonds in Authorized Denominations. Unless an authorized
officer of the City shall otherwise direct, the 2008 Bonds shall be numbered
consecutively from 1 upward preceded by the letter "R" and the letter and number, as
applicable, of the Series designation prefixed to the number. Portions of the 2008 Bonds
may be issued in Series bearing different CUSIP numbers and may bear such additional
designations, if any, as may be set forth in a certificate of an officer of the City
designated with responsibility for issuing the 2008 Bonds pursuant to this Ordinance.
Place of Payment: Paying Agent and Dating.
(h) Accrued and unpaid interest on the 2008 Bonds shall be due on the
Interest Payment Dates and payable (i) in the case of 2008 Bonds in a Commercial Paper
Mode, the Daily Mode or the Weekly Mode, by wire transfer of immediately available
funds to the account specified by the owner in a written direction received by the Paying
Agent on or prior to a Record Date or, if no such account number is furnished, by check
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File Number: 08-00726
mailed by the Paying Agent to the owner at the address appearing on the books required
to be kept by the Registrar, and (ii) in the case of 2008 Bonds in the Term Rate Mode
and Fixed Rate Mode, by check or draft mailed by the Paying Agent to the owner at the
address appearing on the applicable Record Date in the books required to be kept by the
Paying Agent, except that in the case of an owner of $1,000,000 or more in aggregate
principal amount of 2008 Bonds, upon the written request of such owner to the Paying
Agent, received on or prior to a Record Date, specifying the account or accounts to
which such payment shall be made, payment of interest when due shall be made by wire
transfer of immediately available funds. Any such direction or request shall remain in
effect until revoked or revised by such owner by an instrument in writing delivered to
the Paying Agent. The principal and the redemption price on the 2008 Bond shall be
payable on its Principal Payment Date, upon surrender thereof at the corporate trust
operations office in Jacksonville, Florida (or such other office subsequently designated
in writing) of TD Bank, National Association, or its successors or assigns, at the option
of the owner, and such banking institution is hereby appointed as Paying Agent and
Tender Agent for the 2008 Bonds. The payment of the Purchase Price of the 2008
Bonds on any Purchase Date or Mandatory Purchase Date, as the case may be, shall be
made by wire transfer in immediately available funds by the Tender Agent, or, if the
owner has not provided wire transfer instructions, by check mailed to the owner at the
address appearing in the books kept by the Registrar.
(i) The 2008 Bonds shall be initially dated as of the date of their
issuance and shall also show the date of authentication thereof and shall bear interest
from the Interest Payment Date next preceding the date of authentication (from its dated
date, in the case of the first Interest Payment Date), until the entire principal amount
thereof is paid; provided however, if, at the time of authentication of a 2008 Bond,
interest is in default or overdue thereon, such 2008 Bond shall bear interest from the
Interest Payment Date to which interest has previously been paid in full or made
available for payment in full.
(j) Interest on each Commercial Paper Rate Bond, Daily Rate Bond
and Weekly Rate Bond shall be calculated on the basis of a 365/366-day year for the
actual number of days elapsed to the Interest Payment Date. Interest on the 2008 Bonds
in the Term Rate Mode or Fixed Rate Mode shall be calculated on the basis of a 360-day
year composed of twelve 30-day months.
(k) The interest rates for the 2008 Bonds contained in the records of
the Paying Agent shall be conclusive and binding upon the City, the Remarketing Agent,
the Tender Agent, each Bond Credit Facility Issuer and the Bondholders of the 2008
Bonds.
(1) Until remarketed in accordance with this Ordinance, each 2008
Bond that constitutes a Purchased Bond shall bear interest at the Purchased Bonds Rate
and shall be payable at such times and in such manner as set forth in the Bond Credit
Facility Agreement.
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File Number: 08-00726
(m) Except as may be otherwise provided in a Bond Credit Facility
with respect to the Purchased Bonds Rate of the 2008 Bonds, no 2008 Bond may bear
interest at an interest rate higher than the Maximum Rate.
(n) If the date for payment of the principal of, premium, if any, or
interest on the 2008 Bonds is not a Business Day, then the date for such payment shall
be the next succeeding Business Day, and except as may be otherwise provided in the
Bond Credit Facility with respect to Purchased Bonds, payment on such succeeding
Business Day shall have the same force and effect as if made on the nominal date of
payment, without accrual of additional interest.
Determination of Interest Rates and Interest Periods During Commercial Paper
Mode.
(o) Interest Periods on the 2008 Bonds in a Commercial Paper Mode
shall be of such duration, of at least one day and not more than 270 days, ending on a
day next preceding a Business Day or on the Maturity Date, as the Remarketing Agent
shall determine in accordance with the provisions of this Section 4.04; provided,
however, no Interest Period shall extend beyond the date which is five days prior to the
Expiration Date of the Bond Credit Facility. In making the determinations with respect
to Interest Periods, subject to the limitations -imposed by the preceding sentence, the
Remarketing Agent shall on each Rate Determination Date select for each Commercial
Paper Rate Bond then subject to such adjustment the Interest Period which, if
implemented on such Rate Determination Date, would result in the Remarketing Agent
being able to remarket such Commercial Paper Rate Bond at par in the secondary market
at the lowest interest rate then available and for the longest Interest Period available at
such rate, provided that if on any Rate Determination Date, the Remarketing Agent
determines that current or anticipated future market conditions or anticipated future
events are such that a different Interest Period would result in a lower average
interest cost on such Commercial Paper Rate Bond, then the Remarketing Agent
shall select the Interest Period which, in the judgment of the Remarketing Agent,
would permit such Commercial Paper Rate -Bond -to achieve such lower average
interest cost; provided, however, that if the Remarketing Agent has received notice
from the City that any Commercial Paper Rate Bond is to be changed from the
Commercial Paper Mode to any other Mode or if it is to be purchased pursuant to
Section 6.05 hereof, the Remarketing Agent shall, with respect to such Commercial
Paper Rate Bond, select Interest Periods which do not extend beyond the Mandatory
Purchase Date.
(p) By 1:00 p.m. on each Rate Determination Date, the Remarketing
Agent shall, with respect to each Commercial Paper Rate Bond that is subject to
adjustment on such Date, determine an interest rate for the Interest Period then selected
for such Commercial Paper Rate Bond and, no later than 1:00 p.m., shall give notice by
Electronic Means to the City and the Paying Agent of the applicable Interest Period,
Purchase Date and interest rate.
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File Number: 08-00726
(q) By acceptance of any Commercial Paper Rate Bond, the
Bondholder thereof shall be deemed to have agreed, during each Interest Period, to the
interest rate (including the Alternate Rate, if applicable), Interest Period and Purchase
Date then applicable thereto and to have further agreed to tender such Commercial Paper
Rate Bond to the Tender Agent for purchase on the next succeeding Purchase Date at the
Purchase Price. Such Bondholder further acknowledges that if funds for such purchase
are on deposit with the Tender Agent on such Purchase Date, such Bondholder shall
have no rights under the 1998 Bond Ordinance or this Ordinance other than to receive
the payment of such Purchase Price and that interest shall cease to accrue to such owner
on such Purchase Date.
Determination of Interest Rate During Daily Mode. The interest rate for any
Daily Rate Bond shall be the rate of interest per annum determined by the Remarketing
Agent on or before 10:00 a.m. on the Rate Determination Date as the minimum rate of
interest that, in the sole judgment of the Remarketing Agent, would, under then existing
market conditions, result in the sale of the Daily Rate Bonds on the Rate Determination
Date at a price equal to the principal amount thereof, plus accrued interest, if any. The
Remarketing Agent shall make the rate available by Electronic Means to each other
Notice Party by 11:00 a.m., on the Rate Determination Date. With respect to any day that
is not a Business Day, the interest rate shall be the same rate as the interest rate
established for the immediately preceding Business Day. The determination of each
interest rate by the Remarketing Agent shall, in the absence of manifest error, be
conclusive and binding upon the Tender Agent, the Paying Agent, the Bond Credit
Facility Issuer, the City and the owners of the Daily Rate Bonds.
Determination of Interest Rate During Weekly Mode. The interest rate for
Weekly Rate Bonds for each Interest Period shall be the rate of interest per annum
determined by the Remarketing Agent on and as of the applicable Rate Determination
Date as the minimum rate of interest that, in the sole judgment of the Remarketing Agent,
would, under then existing market conditions, result in the sale of the Weekly Rate Bonds
on the Rate Determination Date at a price equal to the principal amount thereof, plus
accrued interest, if any. The Remarketing Agent shall make the rate available by
Electronic Means to each other Notice Party by 4:00 p.m., on the Rate Determination
Date. The Interest Period on Weekly Rate Bonds will begin on and include Thursday,
and continue through and include the next succeeding Wednesday. The determination of
each interest rate by the Remarketing Agent shall be conclusive and binding, in the
absence of manifest error, upon the Tender Agent, the Paying Agent, the Bond Credit
Facility Issuer, the City and the owners of the Weekly Rate Bonds.
Determination of Interest Rate and Interest Periods During Term Rate Mode and
Fixed Rate Mode.
(r) Term Rates. The Term Rate to be effective for the Interest Period
commencing on any Mode Change Date after which such 2008 Bonds will constitute
Term Rate Bonds or any Purchase Date while the 2008 Bonds are and will remain Term
Rate Bonds shall be determined by the Remarketing Agent. No later than 4:00 p.m. on
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File Number: 08-00726
the Business Day next preceding such Mode Change Date or the Purchase Date, as the
case may be, the Remarketing Agent shall determine the Term Rate and shall make the
Term Rate available by Electronic Means to each other Notice Party. The Term Rate
shall be the minimum rate that, in the sole judgment of the Remarketing Agent, would
result in a sale of the Term Rate Bonds at a price equal to the principal amount thereof
on the Rate Determination Date taking into consideration the duration of the Interest
Period, which shall be established by the City.
(s) Fixed Rate. The Fixed Rate to be effective for the Interest Period
commencing on any Mode Change Date after which the 2008 Bonds will constitute
Fixed Rate Bonds shall be determined by the Remarketing Agent. No later than 4:00
p.m. on the Business Day next preceding such Mode Change Date, the Remarketing
Agent shall determine the Fixed Rate and shall make the Fixed Rate available by
Electronic Means to each other Notice Party. The Fixed Rate shall be the minimum rate
that, in the sole judgment of the Remarketing Agent, would result in a sale of the Fixed
Rate Bonds at a price equal to the principal amount thereof on the Rate Determination
Date taking into consideration the duration of the Interest Period.
(t) Failure to Establish Term Rate or Fixed Rate. If, for any reason, a
Term Rate for Term Rate Bonds or a Fixed Rate for Fixed Rate Bonds cannot be
established on a Purchase Date, such Term Rate Bonds or Fixed Rate Bonds, as
applicable, will be changed automatically to the Weekly Mode on the Purchase Date;
provided, however, that a Bond Credit Facility with a Bond Credit Facility Amount
required for Weekly Rate Bonds must be in effect. If such Bond Credit Facility is not
then in effect, then, with respect to the Term Rate Bonds, the provisions of Section
4.10.C.(vi) hereof shall apply, and with respect to Fixed Rate Bonds, such 2008 Bonds
shall remain in the Mode then in effect immediately prior to their attempted conversion
to a Fixed Rate Mode.
Alternate Rate for Interest Calculation. If the Remarketing Agent fails to
determine the interest rate(s) or Interest Periods with respect to the 2008 Bonds, or if the
method of determining the interest rate(s) or Interest Periods with respect to the 2008
Bonds shall be held to be unenforceable by a court of law of competent jurisdiction, then
the 2008 Bonds shall thereupon (until such time as the applicable Remarketing Agent
again makes such determination, or until there is delivered to the City and such
Remarketing Agent a Favorable Opinion of Bond Counsel) bear interest at the Weekly
Rate in the case of Commercial Paper Rate Bonds and Daily Rate Bonds and Term Rate
Bonds and, in the case of Weekly Rate Bonds, bear interest at the Alternate Rate for
subsequent weekly periods.
[Reserved].
Changes in Mode.
(u) Changes. 2008 Bonds in any Mode may be changed to any other
Mode at the times and in the manner hereinafter provided, provided however, that 2008
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File Number. 08-00726
Bonds converted to a Fixed Rate Mode shall not be changed to any other Mode except
as provided in Section 6.04 hereof. Subsequent to such change in Mode, the 2008
Bonds may be changed to a different Mode at the times and in the manner hereinafter
provided.
(v) Notice of Intention to Change Mode. The City shall give written
notice to the Notice Parties of its intention to effect a change in the Mode for the 2008
Bonds from the Mode then prevailing (the "Current Mode") to another Mode (the "New
Mode") specified in such written notice, specifying the proposed Mode Change Date.
Such notice shall be given at least 20 days prior to the Mode Change Date if the Current
Mode is the Daily Mode, the Weekly Mode or the Commercial Paper Mode; such notice
shall be given at least 35 days prior to the Mode Change Date if the Current Mode is the
Term Rate Mode or the Fixed Rate Mode for 2008 Bonds described in Section 6.04
hereof.
Another.
(w) General Provisions Applying to Changes from One Mode to
(i) The Mode Change Date must be a Business Day.
(ii) Additionally, the Mode Change Date:
(A) from the Commercial Paper Mode shalt be the last
Purchase Date for the Commercial Paper Rate Bonds with respect
to which a Mode change is to be made;
(B) from a Term Rate Mode shall be the Purchase Date
of the current Interest Period; and
(C) from a Fixed Rate Mode pursuant to Section 6.04
hereof shall be the Purchase Date of the current Interest Period.
(iii) On or prior to the date the City provides the notice to the
Notice Parties pursuant to Section 4.10.B. hereof, the City shall deliver to the
Notice Parties a Bond Counsel's Opinion to the effect that it expects to be able to
deliver a Favorable Opinion of Bond Counsel on the Mode Change Date.
(iv) No change in Mode will become effective unless all
conditions precedent thereto have been met and the following items shall have
been delivered to the Tender Agent, Paying Agent, and the Remarketing Agent
two (2) Business Days prior to the Mode Change Date, or such later time as is
acceptable to the City, the Tender Agent, Paying Agent, and the Remarketing
Agent, on the Mode Change Date:
(A) Except in the case of a change in Mode pursuant to
Section 4.07.C. or Section 4.10.C(vi) hereof, a Favorable Opinion
of Bond Counsel dated the Mode Change Date; and
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File Number: 08-00726
(B) With respect to a change in the Mode to the Daily
Mode, Weekly Mode, Commercial Paper Mode or Term Rate
Mode (other than a change in Mode between the Daily Mode and
the Weekly Mode or the Weekly Mode and the Daily Mode), a
Bond Credit Facility with the necessary Bond Credit Facility
Amount for such New Mode.
(C) With respect to a change in Mode that requires a
new Bond Credit Facility (or an amendment to an existing Bond
Credit Facility), the receipt from each Rating Agency of a
confirmation of the ratings assigned to the 2008 Bonds upon the
delivery of such new Bond Credit Facility (or amendment to such
existing Bond Credit Facility).
(v) If all conditions to the Mode Change are met, the Interest
Period(s) for the New Mode shall commence on the Mode Change Date and the
Interest Rate(s) (together, in the case of a change to the Commercial Paper Mode,
with the Interest Period(s)) shall be determined by the Remarketing Agent in the
manner provided in Sections 4.04, 4.05, 4.06, and 4.07 hereof, as applicable.
(vi) With -respect -to -any change in the Mode, in the event the
foregoing conditions of this Section 4.10.C. have not been satisfied by the Mode
Change Date, the New Mode shall not take effect and the 2008 Bonds that are the
subject of the Mode Change Notice will be changed to Weekly Rate Bonds on the
Mode Change Date; provided, however, that, if the 2008 Bonds subject to the
Mode Change Notice are Term Rate Bonds that are not supported by a Bond
Credit Facility, then such Term Rate Bonds shall continue in the Term Rate Mode
for the same duration on such Mode Change Date, and provided further, that such
Term Rate Bonds shall still be subject to mandatory purchase in accordance with
Section 6.03 hereof.
(x) Serial Bonds. The City may, in the notice given pursuant to
Section 4.10.B. hereof in connection with any Mode change of the 2008 Bonds to the
Term Rate Mode or Fixed Rate Mode, provide for serial maturities of all or some of the
2008 Bonds subject to such Mode change. The principal amount of such serial
maturities of the 2008 Bonds and the maturity dates thereof shall be set forth in the
notice given pursuant to Section 4.10.B. hereof. The interest rate for such serial bonds
maturing on a particular date may be different from the interest rate or rates established
for other 2008 Bonds subject to such Mode change.
(y) Mandatory Conversion to Fixed Rate Mode or a Term Rate Mode.
The City covenants to take such steps as are required under this Ordinance to, as soon as
reasonably possible, change the Mode on the 2008 Bonds to a Fixed Rate Mode or a
Term Rate Mode that does not require a Bond Credit Facility upon the occurrence of the
following events:
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File Number. 08-00726
(i) upon the Bond Credit Facility Issuer's failure to transfer
amounts available under the applicable Bond Credit Facility to pay the Purchase
Price of the 2008 Bonds following proper notice by the Tender Agent; or
(ii) upon the occurrence of an Expiration Date of the Bond
Credit Facility that is then currently in effect with respect to 2008 Bonds in a
Mode that requires a Bond Credit Facility, and such Expiration Date occurs prior
to a Substitution Date; or
(iii) if, during the term of any Bond Year that the 2008 Bonds
are Outstanding, the Remarketing Agent fails to remarket 2008 Bonds on two
separate occasions; or
(iv) if the City fails to provide a Bond Credit Facility for the
2008 Bonds during any period that the 2008 Bonds are in a Mode which requires
the support of a Bond Credit Facility.
Registration and Exchange
(z) The registration of any 2008 Bond may be transferred upon the
registration books as provided in the 1998 Bond Ordinance. In all cases of a transfer of
a 2008 Bond, the Registrar shall at the earliest practical time in accordance with the
terms hereof enter the transfer of ownership in the registration books and shall deliver in
the name of the new transferee or transferees a new fully registered 2008 Bond or Bonds
of the same maturity and authorized denomination or denominations, for the same
aggregate principal amount and payable from the same source of payment as described
herein. The City and the Registrar may charge the registered owner for the registration
of every transfer or exchange of a 2008 Bond an amount sufficient to reimburse them for
any tax, fee or any other governmental charge required (other than by the City) to be
paid with respect to or in connection with any such transfer or exchange, and may
require that such amounts be paid before any such new 2008 Bond shall be delivered.
(aa) The City and the Tender Agent may deem and treat the registered
owner of any 2008 Bond as the absolute owner of such 2008 Bond for the purpose of
receiving payment of the principal thereof and the interest thereon. Subject to the
provision of Section 4.11.A. above, a 2008 Bond may be exchanged at the office of the
Registrar for a like aggregate principal amount of such 2008 Bond, and Authorized
Denomination of the same maturity.
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File Number. 08-00726
Source of Payment. The 2008 Bonds shall be "Bonds" as such term is used in
the 1998 Bond Ordinance. During the period that the Bond Credit Facility is in place
with respect to the 2008 Bonds, the scheduled payment of principal of and interest on and
the payment of the redemption price of the 2008 Bonds shall be paid from amounts
drawn under the Bond Credit Facility pursuant to Section 7.01.C. hereof, and the
payment of the Purchase Price of the 2008 Bonds on a Purchase Date or Mandatory
Purchase Date shall be paid from the sources described in Section 6.09 hereof. The
payments required pursuant to the terms of the 1998 Bond Ordinance and the terms
hereof, including the reimbursement of the Bond Credit Facility Issuer of amounts drawn
under the Bond Credit Facility to pay the principal of and interest on (or Purchase Price
of) any 2008 Bonds supported by such Bond Credit Facility, will be payable from the Net
Revenues, on a parity with any Bonds currently Outstanding and any Additional Bonds
hereafter issued and Qualified Derivative Payments related to such Bonds.
THE PAYMENT OF THE 2008 BONDS WILL NOT CONSTITUTE A
GENERAL INDEBTEDNESS OF THE CITY OR ANY OTHER POLITICAL
SUBDIVISION OF THE STATE OF FLORIDA WITHIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY OR CHARTER PROVISION OR
LIMITATION, NOR A LIEN UPON ANY PROPERTY OF THE CITY, EXCEPT
REVENUES AND OTHER MONEYS PLEDGED THEREFOR TO THE EXTENT
PROVIDED IN THE 1998 BOND ORDINANCE OR THIS ORDINANCE. NEITHER
THE GENERAL FAITH AND CREDIT NOR THE TAXING POWER OF THE CITY,
THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF IS
PLEDGED TO THE PAYMENT OF THE PRINCIPAL OR PURCHASE PRICE OF
THE 2008 BONDS OR ANY PREMIUM OR INTEREST THEREON AND THE
REGISTERED OWNER OF ANY 2008 BOND ISSUED UNDER THE PROVISIONS
OF THIS ORDINANCE SHALL NEVER HAVE THE RIGHT TO REQUIRE OR
COMPEL THE EXERCISE OF THE AD VALOREM TAXING POWER OF THE
CITY, THE STATE OF FLORIDA, OR ANY POLITICAL SUBDIVISION THEREOF
FOR THE PAYMENT THEREOF. NO RECOURSE SHALL BE HAD FOR THE
PAYMENT OF THE PRINCIPAL OR PURCHASE PRICE OF OR INTEREST ON
THE 2008 BONDS OR FOR ANY CLAIM BASED THEREON OR ON THE 1998
BOND ORDINANCE OR THIS ORDINANCE OR OTHERWISE WITH RESPECT
THERETO OR HERETO AGAINST ANY MEMBER, OFFICER OR EMPLOYEE OF
THE CITY OR ANY PERSON EXECUTING THE 2008 BONDS AND NOTHING IN
THE 2008 BONDS, THE 1998 BOND ORDINANCE OR IN THIS ORDINANCE
SHALL CREATE OR GIVE RISE TO ANY PERSONAL LIABILITY OF ANY SUCH
MEMBER, OFFICER OR EMPLOYEE OF THE CITY OR THE PERSON
EXECUTING THE 2008 BONDS.
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File Number: 08-00726
Application of Proceeds of 2008 Bonds. The proceeds of the 2008 Bonds shall
be applied simultaneously with the issuance and delivery of such Bonds in such amounts
which, together with other available funds of the City, if any, including monies
transferred from the applicable funds and accounts of the Bond Fund for the Refunded
Bonds shall in the aggregate, equal the redemption price, plus accrued interest to the
redemption date of the Refunded Bonds. The Refunded Bonds are anticipated to be
redeemed and defeased on the date of the issuance and delivery of the 2008 Bonds, but
in no event, more than 90 days after the date of issuance and delivery of the 2008 Bonds.
Form of 2008 Bond. Subject to the provisions of the 1998 Bond Ordinance, each
2008 Bond and the certificate of authentication with respect thereto shall be in
substantially the following form, with such insertions or omissions, endorsements and
variations as may be permitted by the 1998 Bond Ordinance and applicable law and as
may be required to conform to this Ordinance, including changes as shall be necessary to
reflect differences among the 2008 Bonds, and approved by an authorized officer of the
City, execution and delivery of the 2008 Bonds to be conclusive evidence of such
approval.
City of Miami Page 21 of 59 Printed On: 6/27/2008
File Number: 08-00726
No. R-
[Form of Bond]
UNITED STATES OF AMERICA
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
THE CITY OF MIAMI
[TAX EXEMPT/TAXABLE] VARIABLE RATE PARKING SYSTEM
REVENUE REFUNDING BONDS,
SERIES 2008
Interest Rate
Maturity Date
1,20
Original Dated Date
,2008
CUSIP No.
REGISTERED OWNER: CEDE & Co.
PRINCIPAL AMOUNT: DOLLARS
Introduction. The City of Miami, Florida (the "City"), a municipal
corporation in the County of Miami -Dade, State of Florida, for value received, hereby
promises to pay to the Registered Owner identified above, or to registered assigns or
legal representatives, on the Maturity Date identified above (or earlier as hereinafter
provided), but solely from the sources hereinafter described, the Principal Amount
identified above, in any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and private debts upon
presentation and surrender hereof at the corporate trust operations office in Jacksonville,
Florida, of TD Bank, National Association, or its successors or assigns, as Trustee,
Tender Agent, Paying Agent and Registrar (the "Tender Agent" or "Paying Agent"), at
the option of the Registered Owner hereof, and to pay, solely from such sources, interest
on the Principal Amount at the rate or rates of interest and at the times provided for
herein.
This Bond is one of a duly authorized issue of Bonds designated "[Tax
Exempt/Taxable] Variable Rate Parking System Revenue Refunding Bonds, Series 2008"
(the "2008 [Tax Exempt/Taxable] Bonds") issued by the City under and pursuant to the
Constitution and laws of the State of Florida, including without limitation Chapter 166,
Florida Statutes, the Charter of the City and other applicable provisions of law, and
pursuant to Ordinance No. (the "Series Ordinance"), enacted by the City on
, 2008, which supplements Ordinance No. 11693, enacted by the City on
August 14, 1998, as supplemented and amended, and in particular, as amended by
Ordinance No. 11719, enacted by the City on October 27, 1998 (collectively, the "1998
Bond Ordinance"), as further supplemented by Ordinance No. 12457 enacted by the City
on December 18, 2003 (the "2003 Ordinance"), which 1998 Bond Ordinance and 2003
Ordinance were supplemented and amended by Ordinance No. 12778, enacted by the
City on March 9, 2006 (the "2006 Ordinance," and together with the 1998 Bond
Ordinance, the 2003 Ordinance and the Series Ordinance, the "City Ordinance").
Capitalized terms used but not defined herein shall have the meanings assigned to them in
Section 101 of the 1998 Bond Ordinance. By the purchase and acceptance of this Bond,
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File Number: 08-00726
the holder or owner hereof signifies its assent to all of the provisions of the City
Ordinance. As provided in the City Ordinance, during the period that a Bond Credit
Facility is in place with respect to this Bond, the payment of principal, Purchase Price
and redemption price of and interest on this Bond shall be paid from amounts described
in the City Ordinance, including amounts drawn under such Bond Credit Facility. This
Bond and all other payments required pursuant to the terms of the City Ordinance,
including the reimbursement of the Bond Credit Facility Issuer for amounts drawn under
the Bond Credit Facility to pay the principal of and interest on (or Purchase Price of) this
Bond, are payable from (and secured by) (i) a pledge of Net Revenues and the City's
rights to receive Net Revenues from the Parking System, owned and operated by the City,
(ii) the money and Investment Obligations in the funds and accounts established under
the City Ordinance and the income derived from such Investment Obligations and the
investment of such money upon deposit of such Revenues into the Revenue Account, and
(iii) such other funds held or set aside under the City Ordinance (excluding the Rebate
Account) for the payment of these Bonds. Such pledge is on parity with certain other
bonds heretofore issued under the City Ordinance and any Qualified Derivative Payments
related to any Bonds issued under the City Ordinance. Reference is hereby made to the
City Ordinance for the provisions, among others, relating to the terms of, lien on and
security for the 2008 Bonds, the custody and application of the proceeds of the 2008
Bonds, the rights and remedies of the registered owners of the 2008 Bonds and the extent
of and limitations on the City's rights, duties and obligations, the provisions permitting
the issuance of additional parity indebtedness, and the provisions permitting amendments
to the City Ordinance with and without consent of the Bondholders, to all of which
provisions the Registered Owner hereof for itself and its successors in interest irrevocably
assents by acceptance of this Bond. By the purchase and acceptance of this Bond, the
holder or owner hereof signifies its assent to all of the provisions of the Ordinance.
Copies of the City Ordinance are on file and available at the designated office of TD
Bank, National Association, as Tender Agent.
This 2008 Bond shall not be or constitute a general indebtedness of the
City or any other political subdivision in the State of Florida, within the meaning of any
constitutional, statutory or charter provision or limitation, and it is expressly agreed that
this 2008 Bond and the obligation evidenced hereby shall not constitute nor be a lien
upon any property of the City. Neither the general faith and credit nor the taxing power
of the City, the State of Florida or any political subdivision thereof is pledged to the
payment of the principal, purchase price or redemption price or any premium or interest
thereon and the registered owner of any 2008 Bond issued under the provisions of the
City Ordinance shall never have the right to require or compel the exercise of the ad
valorem taxing power of the City, the State of Florida, or any political subdivision thereof
for the payment thereof. No recourse shall be had for the payment of the principal,
Purchase Price or redemption price of or interest on the 2008 Bonds or for any claim
based thereon or on the City Ordinance or otherwise with respect thereto or hereto against
any member, officer or employee of the City or any person executing the 2008 Bonds and
nothing in the 2008 Bonds, the City Ordinance or herein shall create or give rise to any
personal liability of any such member, officer or employee of the City or the County or
person executing the 2008 Bonds.
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File Number 08-00726
The 2008 Bonds are being issued to refund and currently redeem the
outstanding principal amount of the City's Tax -Exempt Variable Rate Parking System
Revenue Bonds, Series 2006, and its Taxable Variable Rate Parking System Revenue
Bond, Series 2006.
Payment of Interest; Modes. This 2008 Bond shall be dated the date of its
issuance and shall bear interest from such date. Interest on this 2008 Bond is payable on
2008] and on each Interest Payment Date thereafter as follows:
I. if this 2008 Bond is in a Commercial Paper Mode, a Daily Mode or a
Weekly Mode, by wire transfer of immediately available funds to the account
specified by the Registered Owner in a written direction received by the Paying
Agent on or prior to a Record Date or, if no such account number is furnished, by
check or draft mailed by the Paying Agent to the Registered Owner at the address
appearing on the books required to be kept by the Registrar pursuant to the City
Ordinance, and
II. if this 2008 Bond is in the Term Rate Mode or the Fixed Rate Mode,
by draft or check mailed by the Paying Agent to the Registered Owner hereof at
its address appearing on the applicable Record Date in the books required to be
kept by the Registrar pursuant to the City Ordinance, except that in the case of a
Registered Owner of $1,000,000 or more in aggregate principal amount of 2008
Bonds, upon the written request ofsuch Bondholder to the Paying Agent, received
on or prior to a Record Date, specifying the account or accounts to which such
payment shall be made, payment of interest when due shall be made by wire
transfer of immediately available funds. Any such direction or request shall
remain in effect until revoked or revised by such Bondholder by an instrument in
writing delivered to the Paying Agent.
This 2008 Bond is initially issued in the Weekly Mode. The Mode
applicable to this 2008 Bond may at any time be changed to a Commercial Paper Mode,
Daily Mode, Weekly Mode, Term Rate Mode or Fixed Rate Mode, all as provided in the
City Ordinance. Under certain circumstances described in the City Ordinance, the Mode
applicable to the 2008 Bonds must be converted to a Fixed Rate Mode. The interest rate
applicable to this 2008 Bond will be determined at the times and in the manner provided
in the City Ordinance.
While this 2008 Bond is in a Commercial Paper Mode, a Daily Mode or a
Weekly Mode, interest hereon shall be calculated on the basis of a year of 365 or 366
days, as appropriate, for the actual number of days elapsed to the Interest Payment Date.
While this 2008 Bond is in a Term Rate Mode or a Fixed Rate Mode, interest hereon
shall be computed on the basis of a year of 360 days composed of twelve 30-day months.
Payment of Principal; Redemption Price. In addition to accrued and
unpaid interest thereon, the principal or the redemption price of this 2008 Bond shall be
payable on its Principal Payment Date, upon surrender thereof at the office of the Paying
City of Miami Page 24 of 59 Printed On: 6/27/2008
File Number: 08-00726
Agent. The payment of the Purchase Price of this 2008 Bond payable upon optional or
mandatory tender for purchase shall be made by wire transfer in immediately available
funds by TD Bank, National Association, as Tender Agent appointed under the City
Ordinance, or any successor thereto under the City Ordinance, or, if the Registered
Owner has not provided wire transfer instructions, by check or draft mailed to the
Registered Owner at the address appearing in the books required to be kept by the
Registrar pursuant to the City Ordinance.
Mandatory Purchase. This 2008 Bond is subject to mandatory purchase at
a price equal to the Purchase Price thereof on (i) the Purchase Date of 2008 Bonds in the
Commercial Paper Mode or the Term Rate Mode, (ii) any Mode Change Date; (iii) the
date on which an Alternate Bond Credit Facility is substituted for the then existing Bond
Credit Facility in effect with respect to this 2008 Bond, (iv) the fifth calendar day (or, if
such date is not a Business Day, the preceding Business Day) preceding the Expiration
Date of the Bond Credit Facility (each, a "Mandatory Purchase Date"), and (v) the second
Business Day following the receipt by the Tender Agent and Paying Agent of a notice of
an event of default under the Bond Credit Facility Agreement for the 2008 Bonds and
directing the Tender Agent to cause the mandatory tender of the 2008 Bonds. Notice of
any proposed Mandatory Purchase Date shall be given to owners of this 2008 Bond by
the Paying Agent as provided in the City Ordinance. The Registered Owner does not
have the right to retain this 2008 Bond after any Mandatory Purchase Date.
Optional Tender. When this 2008 Bond is in the Weekly Mode or the
Daily Mode, the Registered Owner may elect to have it purchased on any Business Day
at a price equal to the Purchase Price thereof, by complying with the procedures for such
purchase in the City Ordinance.
Sources for Payment of Purchase Price. Funds for the payment of the
Purchase Price due upon an optional tender or mandatory purchase of this 2008 Bond
shall be derived solely from the following sources in the order of priority indicated and
neither the City, the Paying Agent, the Tender Agent nor the Remarketing Agent shall be
obligated to provide funds from any other source:
(i) immediately available funds transferred by the Remarketing Agent
to the Tender Agent derived from the remarketing of this 2008 Bond;
(ii) immediately available funds drawn by and transferred to the
Tender Agent from amounts available under the Bond Credit Facility then in
effect with respect to this 2008 Bond; and
(iii) at the City's sole discretion, upon deposit into the Revenue
Account established by the City Ordinance, and other funds and accounts held or
set aside under the City Ordinance (excluding the Rebate Fund), Net Revenues
available for the payment of the 2008 Bonds,
provided, that funds described in paragraph (iii) above shall not be commingled with the
funds described in paragraphs (i) and (ii) above, provided further, that the failure of the
City of Miami Page 25 of 59 Printed On: 6/27/2008
File Number: 08-00726
City to deposit such Net Revenues pursuant to paragraph (iii) above shall not constitute
an event of default under the City Ordinance, and provided further, that if a Bond Credit
Facility is in effect with respect to this 2008 Bond and a properly presented drawing
under the Bond Credit Facility is not honored, then this 2008 Bond shall thereafter bear
interest at the Maximum Rate until the Purchase Price is paid.
Redemption of this 2008 Bond. This 2008 Bond shall be subject to
redemption prior to maturity at the option of the City, in whole or in part, on the
Redemption Dates and at the redemption prices (plus interest accrued to the Redemption
Date) and in the manner provided in the City Ordinance.
Under certain conditions described in the City Ordinance, the City may, in
connection with a change to a Term Rate Mode or Fixed Rate Mode, or on any Purchase
Date for this 2008 Bond while it is in the Term Rate Mode, waive or otherwise alter its
rights to redeem thereafter this 2008 Bond while it is in the Term Rate Mode or Fixed
Rate Mode.
In the event of redemption of less than all of the 2008 Bonds, those particular
2008 Bonds or portions thereof to be redeemed shall, subject to this paragraph below, be
selected by the Paying Agent by lot in such manner as the Paying Agent in its discretion
may determine; provided, however, that the 2008 Bonds to be redeemed shall be in
Authorized Denominations and provided, further, any Purchased Bonds shall be
redeemed prior to any other 2008 Bonds. New 2008 Bonds representing the unredeemed
balance of the principal amount thereof shall be issued to the Bondholders thereof,
without charge therefor. Any new 2008 Bond issued pursuant to the City Ordinance shall
be executed by the City and authenticated and shall be in Authorized Denominations in a
aggregate unpaid principal amount equal to the unredeemed portion of such 2008 Bond
surrendered.
Notice of redemption shall be given at the times and in the manner
provided in the City Ordinance.
As provided in the City Ordinance, Additional Bonds may be issued
thereunder from time to time pursuant to supplemental ordinances in one or more Series,
in various principal amounts, may mature at different times, may bear interest at different
rates and otherwise may vary as in the City Ordinance provided. The aggregate principal
amount of Bonds which may be issued under the City Ordinance is not limited except as
provided in the City Ordinance, and all Bonds issued and to be issued under the City
Ordinance are and will be equally secured by the pledge and covenants made therein,
except as otherwise expressly provided or permitted in the City Ordinance.
If the date for payment of the principal of, premium, if any, or interest on
this 2008 Bond shall be a Saturday, Sunday, legal holiday or a day on which the Tender
Agent, the Paying Agent, the Remarketing Agent, the Bond Credit Facility Issuer with
respect to this 2008 Bond, or banks and trust companies located in Jacksonville, Florida
are authorized by law or executive order to close or are closed for any other reason, then
Cuy of Miami Page 26 of 59 Printed On: 6/27/2008
File Number: 08-00726
the date for such payment shall be the next succeeding day which is not a Saturday,
Sunday, legal holiday or a day on which the Tender Agent, the Remarketing Agent, the
Bond Credit Facility Issuer with respect to this 2008 Bond, or banks and trust companies
located in Jacksonville, Florida are authorized by law or executive order to close or are
closed for any other reason, and payment on such day shall have the same force and
effect as if made on the nominal date of payment.
This 2008 Bond is transferable, as provided in the City Ordinance, only
upon the books of the City kept for that purpose at the above -mentioned office of the
Registrar by the Registered Owner hereof in person, or by its duly authorized attorney,
upon surrender of this 2008 Bond together with a written instrument of transfer
satisfactory to the Paying Agent duly executed by the Registered Owner or its duly
authorized attorney, and thereupon a new registered Bond or Bonds, of the same Series
and maturity and in the same aggregate principal amount, shall be issued to the transferee
in exchange therefor as provided in the City Ordinance, and upon payment of the charges
therein prescribed. The City, the Tender Agent and the Paying Agent may deem and treat
the person in whose name this Bond is registered as the absolute owner hereof for the
purpose of receiving payment of, or on account of, the principal and the interest due
hereon and for all other purposes. The 2008 Bonds are issuable in the form of fully
registered bonds without coupons in Authorized Denominations (as defined in the City
Ordinance). Upon defeasance of this Bond in a Mode other than the Fixed Rate Mode,
amounts deposited with respect to interest in connection with the defeasance of such
Bond shall be calculated based upon the Maximum Rate through the first date that the
Bond is subject to redemption or tender.
It is hereby certified, recited and declared that all acts, conditions and
things required to exist, to happen, and to be performed precedent to and in connection
with the issuance of this 2008 Bond, exist, have happened and have been performed in
regular and due form and time as required by the laws and Constitution of the State of
Florida applicable thereto, and that the issuance of this 2008 Bond is in full compliance
with all constitutional and statutory limitations, provisions and restrictions.
This 2008 Bond shall not be valid or become obligatory for any purpose or
be entitled to any security or benefit under the City Ordinance until the Certificate of
Authentication endorsed hereon shall have been duly executed by the Registrar.
IN WITNESS WHEREOF, the City of Miami has caused this 2008
Bond to be signed by (or bear the facsimile signature of) its Mayor and to be signed by
(or bear the facsimile signature of) its City Clerk, and the original official seal (or a
facsimile thereof) to be imprinted hereon, all as of the day of , 2008.
(SEAL)
THE CITY OF MIAMI, FLORIDA
By:
Mayor
City of Miami Page 27 of 59 Printed On: 6/27/2008
File Number. 08-00726
ATTESTED AND COUNTERSIGNED:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
City of Miami Page 28 of 59 Printed On: 6/27/2008
File Number: 08-00726
REGISTRAR'S CERTIFICATION
OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the
within -mentioned City Ordinance.
, AS REGISTRAR
By
Authorized Signature
Date of Authentication , 200 .
City of Miami Page 29 of 59 Printed On: 6/27/2008
File Number: 08-00726
ASSIGNMENT
For value received, the undersigned sells, assigns and transfers unto
(PLEASE PRINT OR TYPEWRITE NAME, SOCIAL SECURITY NUMBER OR OTHER
IDEN 1 IFYING NUMBER OF ASSIGNEE
AND ADDRESS INCLUDING ZIP CODE OF ASSIGNEE)
the within Bond of The City of Miami, Florida, and hereby irrevocably constitutes and appoints
attorney to transfer the said Bond on the Books
kept for registration thereof, with full power of substitution in the premises.
Dated: , 20
Signature guaranteed:
NOTICE: Signature must be guaranteed by
an institution which is a participant in the
Securities Transfer Agent Medallion
Program (STAMP) or similar program.
NOTICE: The signature to this assignment
must correspond with the name of the
Registered Owner as it appears upon the
face of the within Bond in every particular,
without alteration or enlargement or any
change whatever and the Social Security
Number or other identifying number of such
assignee must be supplied.
The following abbreviations, when used in the inscription on the face of
the within bond, shall be construed as though they were written out in full according to
applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants in the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in common
UNIF TRANS MIN ACT -
(Cust.)
Custodian for
under Uniform Transfer to Minors Act of
(State)
Additional abbreviations may also be used though not in list above.
[End of Bond Form]
City of Miami Page 30 of 59 Printed On: 6/27/2008
File Number. 08-00726
Book -Entry Only System.
(bb) General. The 2008 Bonds when initially issued shall be registered
in the name of Cede & Co., as nominee of DTC, in the form of a single fully registered
Bond for each maturity of the 2008 Bonds. DTC is hereby appointed initial securities
depository for the 2008 Bonds, subject to the provisions of subsection B. of this Section.
So long as DTC or its nominee, as securities depository, is the Bondholder of 2008
Bonds, individual purchases of beneficial ownership interests in such 2008 Bonds may
be made only in book -entry form by or through DTC participants, and Placement Agents
of such beneficial ownership interest in 2008 Bonds will not receive physical delivery of
bond certificates representing the beneficial ownership interests purchased.
(i) So long as DTC or its nominee, as securities depository, is the
Bondholder of 2008 Bonds, payments of principal and the redemption price of and
interest on such 2008 Bonds will be made by wire transfer to DTC or its nominee, or
otherwise pursuant to DTC's rules and procedures as may be agreed upon by the City, the
Paying Agent and DTC. Transfers of principal, the redemption price and interest
payments to DTC participants will be the responsibility of DTC. Transfers of such
payments to beneficial owners of 2008 Bonds by DTC participants will be the
responsibility of such participants, indirect participants and other nominees of such
beneficial owners.
(ii) So long as DTC or its nominee, as securities depository, is the
Bondholder of 2008 Bonds, the City shall send, or cause the Paying Agent to send, or
take timely action to permit the Paying Agent to send to DTC notice of redemption of
such 2008 Bonds and any other notice required to be given to Bondholders of 2008
Bonds pursuant to the 1998 Bond Ordinance, as supplemented herein, in the manner and
at the times prescribed by the 1998 Bond Ordinance, as supplemented herein, or
otherwise pursuant to DTC's rules and procedures or as may be agreed upon by the City,
the Paying Agent (if applicable) and DTC.
(iii) Neither the City-- nor the Paying Agent -and Tender Agent shall have
any responsibility or obligation to the DTC participants, beneficial owners or other
nominees of such beneficial owners for (i) sending transaction statements; (ii)
maintaining, supervising or reviewing, or the accuracy of, any records maintained by
DTC or any DTC participant, indirect participant or other nominees of such beneficial
owners; (iii) payment or the timeliness of payment by DTC to any DTC participant,
indirect participant or by any DTC participant, indirect participant or other nominees of
beneficial owners to any beneficial owner of any amount due in respect of the principal
or the redemption price of or interest on 2008 Bonds; (iv) delivery or timely delivery by
DTC to any DTC participant or indirect participant, or by any DTC participant, indirect
participant or other nominees of beneficial owners to any beneficial owners of any notice
(including notice of redemption) or other communication which is required or permitted
under the terms of the 1998 Bond Ordinance, as supplemented herein, to be given to
Bondholders of 2008 Bonds; (v) the selection of the beneficial owners to receive payment
City of Miami Page 31 of 59 Printed On: 6/27/2008
File Number: 08-00726
in the event of any partial redemption of 2008 Bonds; or (vi) any action taken by DTC or
its nominee as the Bondholder of the 2008 Bonds.
(iv) Notwithstanding any other provisions of the 1998 Bond Ordinance,
as supplemented herein, to the contrary, the City, the Tender Agent and the Paying Agent
shall be entitled to treat and consider the Bondholder in whose name each 2008 Bond is
registered in the registration books of as the absolute Bondholder of such Bond for the
purpose of payment of principal or the redemption price and interest with respect to such
Bond, for the purpose of giving notices of redemption and other matters with respect to
such Bond, for the purpose of registering transfers with respect to such Bond, and for all
other purposes whatsoever. The Paying Agent shall pay all principal and the redemption
price of and interest on the 2008 Bonds only to or upon the order of the respective
Bondholders, as shown on the registration books as provided in the 1998 Bond
Ordinance, as supplemented herein, or their respective attorneys duly authorized in
writing, and all such payments shall be valid and effective to fully satisfy and discharge
the City's obligations with respect to payment of principal or the redemption price of and
interest on the 2008 Bonds to the extent of the sum or sums so paid.
(v) Notwithstanding any other provisions of the 1998 Bond Ordinance,
as supplemented by this Ordinance, so long as any 2008 Bond is registered in the name of
Cede & Co., as nominee of DTC, all payments with respect to principal or the redemption
price of and interest on such Bond and all notices with respect to such Bond shall be
made and given, respectively, pursuant to DTC rules and procedures.
(vi) A Bondholder of the 2008 Bonds that are subject to optional tender
shall give notice to elect to have its 2008 Bonds purchased or tendered, through its DTC
participant, to the Tender Agent and the Remarketing Agent, and shall effect delivery of
such 2008 Bonds by causing the DTC participant to transfer the indirect participant's
interest in the 2008 Bonds, on DTC's records, to the Tender Agent. The requirement for
physical delivery of the 2008 Bonds in connection with an optional tender or a mandatory
purchase will be deemed satisfied when the ownership rights in the 2008 Bonds are
transferred by DTC participants on DTC's records and followed by a book -entry credit of
tendered 2008 Bonds to the Tender Agent's DTC account.
(vii) Payments by the DTC participants to beneficial owners will be
governed by standing instructions and customary practices, as is now the case with
municipal securities held for the accounts of customers in bearer form or registered in
"street name," and will be the responsibility of such DTC participant and not of DTC, the
Paying Agent or the City, subject to any statutory and regulatory requirements as may be
in effect from time to time.
(viii) Provisions similar to those contained in this subsection A. may be
made by the City in connection with the appointment by the City of a substitute securities
depository, or in the event of a successor to any securities depository.
City of Miami Page 32 of 59 Printed On: 6/27/2008
File Number: 08-00726
(ix) Notwithstanding any other provisions of the 1998 Bond Ordinance,
as supplemented by this Ordinance, the 2008 Bonds for which a Bond Credit Facility is in
effect and which are purchased with the proceeds of a drawing on the Bond Credit
Facility shall be registered in the name of the Bond Credit Facility Issuer or its nominee
in the manner described in the Bond Credit Facility.
(cc) Replacement Bonds. The City shall issue 2008 Bond certificates
(the "Replacement Bonds") directly to the beneficial owners of the 2008 Bonds, or their
nominees, in the event that DTC determines to discontinue providing its services as
securities depository with respect to such 2008 Bonds, at any time by giving notice to
the City, and the City fails to appoint another qualified securities depository to replace
DTC. In addition, the City shall issue Replacement Bonds directly to the beneficial
owners of the 2008 Bonds, or their nominees, in the event the City discontinues use of
DTC as securities depository at any time upon determination by the City, in its sole
discretion and without the consent of any other person, that beneficial owners of the
2008 Bonds shall be able to obtain certificated 2008 Bonds.
(dd) Notices. In connection with any notice of redemption provided in
accordance with the 1998 Bond Ordinance, as supplemented herein, notice of such
redemption shall also be sent by the Paying Agent by first class mail, overnight delivery
service or other secure overnight means, postage prepaid, to any Rating Agency, the
securities depository, the Remarketing Agent and the Bond Credit Facility Issuer and to
at least two of the Information Services (described below) that disseminate securities
redemption notices, in each case not later than the mailing of notice required herein.
Information Services include: DPC Data, Inc., One Executive Drive, Fort Lee, New Jersey 07024;
Bloomberg Financial Markets, Municipal Repository, 100 Business Park Drive, Skillman, NJ 08558;
Interactive Data Pricing and Reference Data, Inc., Attention: Disclosure, 100 William Street, 15th Floor,
New York, NY 10038, and Standard and Poor's (NRMSIR), Attention: Repository, 55 Water Street, New
York, New York 10041; or, in accordance with then -current guidelines of the Securities and Exchange
Commission, such other addresses and or such other services providing information with respect to called
bonds, or any other such services as the City may designate in writing to the Paying Agent.
(x)
ARTICLE V
REDEMPTION OF 2008 BONDS
Optional Redemption.
(a) Commercial Paper Rate Bonds shall be subject to redemption at
the option of the City, in whole or in part, on their respective Purchase Dates at the
redemption price (100 percent of the principal amount), plus accrued interest to the
Redemption Date.
(b) Daily Rate Bonds or Weekly Rate Bonds shall be subject to
redemption at the option of the City, in whole or in part, on any Business Day, at the
City of Miami Page 33 of 59 Printed On: 6/27/2008
File Number. 08-00726
redemption price of 100 percent of the principal amount thereof, plus accrued interest to
the Redemption Date.
(c) Term Rate Bonds during an Interest Period that is less than four
years shall be subject to redemption at the option of the City, in whole or in part on their
individual Purchase Dates, at the redemption price of 100 percent of the principal
amount thereof, plus interest accrued to the Redemption Date.
(d) Term Rate Bonds during an Interest Period that is equal to or
greater than four years or Fixed Rate Bonds are subject to redemption at the option of
the City, in whole or in part, on any date following the No Call Period at the redemption
prices (plus accrued interest), both as set forth below:
OPTIONAL REDEMPTION DURING TERM RATE MODE
AND FIXED RATE MODE
Duration of Interest Period
in Term Rate Mode
or Fixed Rate Mode
No Call Period
(commencing on the date of
commencement of the Term Rate or
Fixed Rate Mode Interest Period)
redemption price
Greater than or equal to 11 years
8 years
100%
Greater than or equal to 8 years and less
than 1 I years
6 years
100%
Greater than or equal to 4 years and less
than 8 years
3 years
100%
Duration of Interest Period in Fixed
Rate Mode is less than 4 years
Fixed Rate Bonds are subject to optional
redemption at any time
100%
(e) The City may, in connection with a change to a Term Rate Mode
or Fixed Rate Mode, or on any Purchase Date for Term Rate Bonds, alter its rights as
described above in Section 5.01.D. hereof to redeem such 2008 Bonds on and prior to
the Mode Change Date or Purchase Date, as the case may be, without the consent of the
Bondholders of the 2008 Bonds; provided, that notice describing the alteration shall be
submitted to the Tender Agent, the Paying Agent the Bond Credit Facility Issuer, and
the Remarketing Agent, together with a Favorable Opinion of Bond Counsel, addressed
to them.
(f) Notwithstanding anything in this Ordinance to the contrary, if and
to the extent that any 2008 Bond in a Mode that does not require a Bank Credit Facility
is subject to optional redemption pursuant to this Ordinance, all or a portion of such
2008 Bond to be redeemed as specified in the notice of redemption, may be purchased
by the Paying Agent at the direction of the City on the date which would be the
redemption date if such 2008 Bond was redeemed rather than purchased in lieu thereof
at a purchase price equal to the redemption price which would have been applicable to
such 2008 Bond on the redemption date for the account of and at the direction of the
City who shall give the Paying Agent notice at least ten (10) days prior to the scheduled
City of Miami Page 34 of 59 Printed On: 6/27/2008
File Number: 08-00726
redemption date (forty-five (45) days prior to the scheduled redemption date for Fixed
Rate Bonds), or such lesser number of days as may be acceptable to the Paying Agent,
accompanied by a Favorable Opinion of Bond Counsel. In the event that the Paying
Agent is so directed to purchase such 2008 Bond in lieu of optional redemption, no
notice to the Registered Owners of the 2008 Bond to be so purchased (other than the
notice of redemption otherwise required hereunder) shall be required, and the Paying
Agent shall be authorized to apply to such purchase the funds which would have been
used to pay the redemption price for such 2008 Bond if such 2008 Bond had been
redeemed rather than purchased. Each 2008 Bond so purchased shall not be canceled or
discharged and shall be registered in the name of the City. Each 2008 Bond to be
purchased under this Section 5.01.F. which is not delivered to the Tender Agent on the
Purchase Date shall be deemed to have been so purchased and not optionally redeemed
on the purchase date and shall cease to accrue interest as to the former Registered Owner
on the Purchase Date.
Redemption in Part. In the event of redemption of less than all the 2008 Bonds,
then, subject to the provisions of this Section 5.02 below, such 2008 Bonds or portions
thereof to be redeemed shall be selected by the Paying Agent by lot in such manner as the
Paying Agent in its discretion may determine; provided, however, the 2008 Bonds to be
redeemed shall be in Authorized Denominations; and provided, further, any 2008 Bonds
which are Purchased Bonds and are subject to redemption shall be redeemed prior to any
other 2008 Bonds. New 2008 Bonds representing the unredeemed balance of the
principal amount thereof shall be issued to the Bondholder thereof, without charge
therefor. Any new 2008 Bond issued pursuant to this Section 5.02 shall be executed by
the City and authenticated by the Registrar and shall be in any Authorized Denominations
in an aggregate unpaid principal amount equal to the unredeemed portion of such 2008
Bond surrendered.
Notice of Redemption. Unless waived by any Bondholder of a 2008 Bond to be
redeemed, official notice of any such redemption shall be given by the Paying Agent on
behalf of the City by mailing a copy of an official redemption notice by first class mail, at
least 30 days (15 days, in the case of Daily Rate Bonds and Weekly Rate Bonds) prior to
the redemption date for such 2008 Bond, to the Bondholder of each 2008 Bond to be
redeemed at the address shown on the bond registration books.
All official notices of redemption shall be dated and shall state:
(i) The Redemption Date;
(ii) The redemption price;
(iii) The principal amount (and, in the case of partial
redemption, the respective principal amounts, identification numbers and maturity
date) of each 2008 Bond to be redeemed;
(iv) That on the Redemption Date the redemption price will
become due and payable upon each such 2008 Bond or portion thereof called for
City of Miami Page 35 of 59 Printed On: 6/27/2008
File Number: 08-00726
redemption, and that interest thereon shall cease to accrue from and after said
date; and
(v) The place where each 2008 Bond to be redeemed is to be
surrendered for payment of the redemption price, which place of payment shall be
the designated payment office of the Paying Agent.
Any defect in the notice given as provided in this Section 5.03 shall not
affect the validity of any proceedings for the redemption of any 2008 Bonds as to which
no defect occurred. Any notice mailed as provided in this Section 5.03 shall be
conclusively presumed to have been duly given and shall become effective upon mailing,
whether or not any Bondholder receives such notice.
So long as DTC is effecting book -entry transfers of the 2008 Bonds, the
Paying Agent shall provide the notices specified in this Section 5.03 only to DTC. It is
expected that DTC shall, in turn, notify its participants and that the participants, in turn,
will notify or cause to be notified the beneficial owners. Any failure on the part of DTC
or a participant, or failure on the part of a nominee of a beneficial owner of a 2008 Bond
to notify the beneficial owner of such 2008 Bond so affected, shall not affect the validity
of the redemption of such 2008 Bond .
Any notice of optional redemption given pursuant to this Section 5.03
shall state that it is conditional upon receipt by the Paying Agent of moneys sufficient to
pay the redemption price, plus interest accrued to the Redemption Date, or upon the
satisfaction of any other condition, or that it may be rescinded upon the occurrence of any
other event, and any conditional notice so given may be rescinded at any time before
payment of such redemption price and accrued interest if any such condition so
specified is not satisfied or if any such other event occurs. Notice of such rescission
shall be given by the Paying Agent to affected Bondholders of 2008 Bonds as
promptly as practicable upon the failure of such condition or the occurrence of such
other event.
Optional Redemption of Purchased Bonds. Pursuant to the applicable
provisions of the Bond Credit Facility Agreement, Purchased Bonds shall be subject to
optional redemption at such times, in such manner and pursuant to such terms as shall be
set forth in the applicable Bond Credit Facility Agreement with respect to the 2008
Bonds.
ARTICLE VI
PURCHASE OF 2008 BONDS
Optional Tender of Daily Rate Bonds and Weekly Rate Bonds.
(a) Subject to the provisions of Section 6.09, any Daily Rate Bond (or
portions thereof in an Authorized Denomination) is subject to purchase, on the demand
of the Bondholder thereof, at a price equal to the Purchase Price on any Business Day
City of Miami Page 36 of 59 Printed On: 6/27/2008
File Number: 08-00726
(such purchase to be made on the Business Day upon which such demand is made),
upon irrevocable telephonic notice to the Tender Agent and the Remarketing Agent
(promptly confirmed in writing by such Bondholder, delivered to the Tender Agent and
the Remarketing Agent by Electronic Means by 11:00 a.m., at their respective
designated offices) which states the CUSIP number and principal amount of such Daily
Rate Bond being tendered and the Purchase Date. Such tender notice, once transmitted
to the Tender Agent, shall be irrevocable with respect to the tender for which such
tender notice was delivered and such tender shall occur on the Business Day specified in
such Tender Notice. The Tender Agent shall, as soon as practicable, notify the Paying
Agent of the principal amount of Daily Rate Bonds being tendered. The contents of any
such irrevocable telephonic tender notice shall be conclusive and binding on all parties.
(b) Subject to the provisions of Section 6.09, the Bondholders of
Weekly Rate Bonds may elect to have such Weekly Rate Bonds (or portions thereof in
an Authorized Denomination) purchased at a price equal to the Purchase Price upon
delivery of an irrevocable written notice of tender, or irrevocable telephonic notice of
tender to the Tender Agent and Remarketing Agent, promptly confirmed in writing by
Electronic Means to the Tender Agent and the Remarketing Agent at their respective
designated offices, not later than 4:00 p.m. on a Business Day not less than seven days
before the Purchase Date specified by the Bondholder. Such notice shall (i) state the
CUSIP number and the principal amount of such Weekly Rate Bond being tendered and
(ii) state that such Weekly Rate Bond shall be purchased on the Purchase Date so
specified by the Bondholder.
(c) Notwithstanding anything herein to the contrary, during any period
that the 2008 Bonds are registered in the name of DTC or a nominee thereof pursuant to
this Ordinance, (i) any notice of tender delivered pursuant to this Section 6.01 shall also
(a) provide evidence satisfactory to the Tender Agent and the Remarketing Agent that
the party delivering the notice is the beneficial owner or a custodian for the beneficial
owner of the 2008 Bonds referred to in the notice, and (b) if the beneficial owner is other
than a DTC participant, identify the DTC participant through whom the beneficial owner
will direct transfer; (ii) on or before the Purchase Date, the beneficial owner must direct
(or if the beneficial owner is not a DTC participant, cause its DTC participant to direct)
the transfer of said 2008 Bond on the records of DTC; and (iii) it shall not be necessary
for 2008 Bonds to be physically delivered on the date specified for purchase thereof, but
such purchase shall be made as if such 2008 Bonds had been so delivered, and the
Purchase Price thereof shall be paid to DTC. In accepting a notice of tender of any 2008
Bond pursuant to this Section 6.01, the Tender Agent and the Remarketing Agent may
conclusively assume that the Person providing the notice of tender is the beneficial
owner of the 2008 Bonds being tendered and therefore entitled to tender them. The
Tender Agent and the Remarketing Agent assume no liability to anyone in accepting a
notice of tender from a Person whom it reasonably believes to be such a beneficial
owner of the 2008 Bonds.
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Mandatory Purchase at End of Commercial Paper Mode Interest Periods.
Subject to Section 6.09, each Commercial Paper Rate Bond shall be subject to
mandatory tender for purchase on its Purchase Date at the Purchase Price. No notice of
such mandatory purchase shall be given to the Bondholders of the Bonds.
Mandatory Purchase on Any Mode Change Date. Subject to Section 6.09, the
2008 Bonds to be changed to any Mode from any other Mode are subject to mandatory
tender for purchase on the Mode Change Date at the Purchase Price.
Mandatory Purchase of Term Rate Bonds or of Fixed Rate Bonds Subject to
Optional Redemption.
(d) Subject to Section 6.09, Term Rate Bonds are subject to mandatory
tender for purchase on each Purchase Date at the Purchase Price.
(e) Any Fixed Rate Bond which is subject to optional redemption
pursuant to Section 5.01 hereof may be subject, at the option of the City, to mandatory
purchase in lieu of redemption on the date of redemption thereof pursuant to Section
5.01.F. hereof.
Mandatory Purchase Upon Expiration Date; Event of Default under Bond Credit
Facility Agreement and Substitution Date of Bond Credit Facility. Subject to Section
6.09, any 2008 Bonds for which a Bond Credit Facility is in effect shall be subject to
mandatory tender for purchase on:
(f) The second Business Day preceding the Expiration Date of the
Bond Credit Facility, which second Business Day is hereinafter referred to as an
"Expiration Tender Date";
(g) The second Business Day following the date that the Tender Agent
and Paying Agent receive from the applicable Bond Credit Facility Issuer a written
notice of the occurrence of an event of default under the Bond Credit Facility Agreement
and directing the Tender Agent to cause a mandatory tender of the 2008 Bonds; and
(h) The Substitution Date for the Bond Credit Facility.
Notice of Mandatory Tender for Purchase.
(i) Tender Agent shall, at least 15 calendar days prior to the
Expiration Tender Date with respect to a Bond Credit Facility for the 2008 Bonds, give
notice to the Bondholders of the 2008 Bonds, the Bond Credit Facility Issuer; and the
Remarketing Agent of the mandatory tender of such 2008 Bonds on such Expiration
Tender Date, if it has not theretofore received confirmation that the Expiration Date has
been extended. Upon receipt of a notice of default under the applicable Bond Credit
Facility Agreement with respect to the 2008 Bonds, the Tender Agent shall promptly
give notice to the Bondholders of the 2008 Bonds, the Bond Credit Facility Issuer, and
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the Remarketing Agent of the mandatory tender of such 2008 Bonds which will occur on
the second Business Day following the date that it receives such notice of default.
(j) The Tender Agent shall, at least 30 calendar days prior to any
Substitution Date with respect to a Bond Credit Facility relating to the 2008 Bonds, give
notice to the 2008 Bondholders for such Series, the Bond Credit Facility Issuer for such
Series, and the Remarketing Agent of the mandatory tender of such 2008 Bonds on such
Substitution Date.
(k) The Tender Agent shall, at least 30 calendar days prior to any
Purchase Date for Term Rate Bonds or Fixed Rate Bonds or any Mode Change Date if
the Current Mode is the Term Rate Mode or the Fixed Rate Mode, and at least 15
calendar days prior to any Mode Change Date if the Current Mode is the Daily Mode,
the Weekly Mode or the Commercial Paper Mode, give notice to the affected 2008
Bondholders and the Remarketing Agent of the mandatory tender for purchase of such
2008 Bonds on such Purchase Date or Mode Change Date, as applicable.
(1) Except as provided in Section 6.02 hereof, notice of any mandatory
tender of 2008 Bonds shall state that such 2008 Bonds are to be purchased pursuant to
Section 6.03, 6.04 or 6.05 hereof, shall be provided by the Paying Agent or caused to be
provided -lay -the Tender Agent by mailing..a_-copy of the tory_tender by
first-class mail to each Bondholder of 2008 Bonds at the respective addresses shown
on the registration books kept by the Registrar. Each notice of mandatory tender for
purchase shall identify the reason for the mandatory tender for purchase, and specify
the Mandatory Purchase Date, the Purchase Price, the place and manner of payment,
that the Bondholder has no right to retain such 2008 Bonds and that no further interest
will accrue from and after the Mandatory Purchase Date to such Bondholder. Each
notice of mandatory tender for purchase caused by a change in the Mode applicable to
the 2008 Bonds shall in addition specify the conditions that have to be satisfied
pursuant to Section 4.10 hereof in order for the new Mode to become effective and the
consequences that the failure to satisfy any of such conditions would have. In the
event a mandatory tender of 2008 Bonds shall occur at or prior to the same date on
which an optional tender for purchase is scheduled to occur, the terms and conditions
of the applicable mandatory tender for purchase shall control. The Paying Agent shall
give a copy of any notice of mandatory tender given by it to the other Notice Parties.
Any notice mailed as provided in this Section 6.06 shall be conclusively presumed to
have been duly given, whether or not the Bondholder of the 2008 Bond receives the
notice, and the failure of such Bondholder to receive any such notice shall not affect
the validity of the action described in such notice. Failure by the Tender Agent to give
a notice as provided in this Section 6.06 shall not affect the obligation of the Tender
Agent to purchase the 2008 Bonds subject to mandatory tender for purchase on the
Mandatory Purchase Date.
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Purchase Fund The Purchase Fund established by the City pursuant to Section
10.02 hereof shall be held by the Tender Agent and may have such separate accounts as
shall be established upon written direction of the City to the Tender Agent. Unless
otherwise directed in writing by the City, upon the initial issuance and delivery of the
2008 Bonds, the Tender Agent shall establish separate accounts of the Purchase Fund for
each of the Tax -Exempt Series 2008 Bonds and the Taxable Series 2008 Bonds, and for
each source of funds described in Section 6.09 hereof to be deposited into the Purchase
Fund. In no event shall the Tender Agent commingle monies deposited into the accounts
described in this Section 6.07. The Purchase Fund and accounts therein shall be used for
the purpose of depositing moneys obtained from (a) the remarketing of 2008 Bonds, (b)
draws under a Bond Credit Facility, and (c) the City, and such deposited moneys shall be
used solely to pay the Purchase Price of 2008 Bonds or to reimburse a Bond Credit
Facility Issuer for a drawing on the Bond Credit Facility to pay the Purchase Price of
2008 Bonds.
Remarketing of 2008 Bonds; Notices.
(m) The Remarketing Agent for the 2008 Bonds shall offer for sale and
use its best efforts to find purchasers for: (i) 2008 Bonds or portions thereof as to which
notice of tender pursuant to Section 6.01 has been given, and (ii) 2008 Bonds required to
be tendered for purchase. The 2008 Bonds shall be remarketed at one hundred percent
(100%) of principal thereof plus accrued interest thereon. No 2008 Bonds shall be
remarketed to the City, unless permitted under applicable laws.
(n) (i) The Remarketing Agent shall notify the Tender Agent by
Electronic Means not later than 12:00 noon (1:00 p.m. in the case of Commercial
Paper Rate Bonds and Daily Rate Bonds) on the Purchase Date or Mandatory
Purchase Date of the registration instructions (i.e., the names of the tendering
Bondholders and the names, addresses and taxpayer identification numbers of
the Placement Agent, the desired Authorized Denominations and, in the case
of Commercial Paper Rate Bonds, Daily Rate Bonds or the Weekly Rate
Bonds, any account number for payment of principal and interest furnished
by a Placement Agent to the Remarketing Agent) with respect therctc; and
(ii) Unless otherwise permitted by DTC and the book -entry -
only system applicable to the 2008 Bonds, the Tender Agent shall authenticate
and have available for delivery to the Remarketing Agent prior to 1:30 p.m. on the
Purchase Date or Mandatory Purchase Date new 2008 Bonds for the respective
purchasers thereof.
(o) (i) The Remarketing Agent shall at or before 12:00 noon on
the Purchase Date or Mandatory Purchase Date, as the case may be, (A) notify the
City and the Tender Agent by Electronic Means of the amount of tendered 2008
Bonds that were not successfully remarketed, and (B) confirm to the Tender
Agent the completion of the transfer of the Purchase Price of remarketed 2008
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Bonds to the Tender Agent in immediately available funds, such confirmation to
include the pertinent Fed Wire reference number.
(ii) In the event that all of the tendered 2008 Bonds are not
successfully remarketed, the Tender Agent shall at or before 12:30 p.m. on the
Purchase Date or Mandatory Purchase Date, as the case may be, draw on the
applicable Bond Credit Facility in accordance with the terms of the Bond Credit
Facility the amount necessary to be drawn upon such Bond Credit Facility with
respect to the 2008 Bonds to pay the Purchase Price of such tendered 2008 Bonds
for which remarketing proceeds are not then on deposit in the Purchase Fund and
not successfully remarketed. No drawings under such Bond Credit Facility shall
be made for 2008 Bonds for which such Bond Credit Facility is not in effect. In
addition, no drawings under such Bond Credit Facility shall be made for 2008
Bonds held by the City or an affiliate of the City, or for Purchased Bonds.
(iii) Immediately available funds received by the Tender Agent
from the amount drawn under the Bond Credit Facility shall be deposited into the
Purchase Fund established pursuant to this Ordinance.
Source of Funds for Purchase of 2008 Bonds. On or before the close of business
on the Purchase Date or the -Mandatory -Purchase Date with respect .to -any 2008 Bonds,
including any Series thereof, the Tender Agent shall purchase such 2008 Bonds from the
Bondholders at the Purchase Price. Funds for the payment of such Purchase Price shall
be derived from amounts on deposit in the Purchase Fund, as described in Section 6.07
hereof in the order of priority indicated below:
(p) Immediately available funds transferred by the Remarketing Agent
to the Tender Agent derived from the remarketing of the 2008 Bonds;
(q) Immediately available funds drawn by and transferred to the
Tender Agent from amounts available under the Bond Credit Facility in effect with
respect to the 2008 Bonds; and
(r) At the City's sole discretion, upon deposit into the Revenue
Account established by the 1998 Bond Ordinance, as supplemented hereby, and other
funds and accounts held or set aside under the 1998 Bond Ordinance and this Ordinance
(excluding the Rebate Fund), Net Revenues available for the payment of the 2008
Bonds;
provided, that funds described in paragraph C. above shall not be commingled with the
funds described in paragraphs A. and B. above, provided further, that the failure of the
City to deposit such Net Revenues pursuant to paragraph C. above shall not constitute an
event of default under this Ordinance or the 1998 Bond Ordinance, and provided further,
that if a Bond Credit Facility is in effect with respect to the 2008 Bonds, and a properly
presented drawing under the Bond Credit Facility is not honored, then such 2008 Bonds
shall thereafter bear interest at the Maximum Rate until the Purchase Price is paid.
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Delivery of 2008 Bonds. Except as otherwise required or permitted by the book -
entry -only system of DTC, the 2008 Bonds or the applicable Series thereof sold by the
Remarketing Agent shall be delivered by such Remarketing Agent to the respective
purchasers thereof by 3:00 p.m. on the Purchase Date or the Mandatory Purchase Date, as
the case may be. The 2008 Bonds or the applicable Series thereof purchased with
moneys provided by the applicable Bond Credit Facility Issuer of the 2008 Bonds shall
be delivered at the direction of such Bond Credit Facility Issuer. The Purchased Bonds
will not be released upon remarketing until the Tender Agent has received written notice
from such Bond Credit Facility Issuer that the principal commitment and interest
commitment of the related Bond Credit Facility has been reinstated.
Delivery and Payment for Purchased 2008 Bonds; Undelivered 2008 Bonds.
Except as otherwise required or permitted by the book -entry -only system of DTC, the
2008 Bonds or any Series thereof that are purchased pursuant to this Ordinance shall be
delivered (with all necessary endorsements) at or before 12:00 noon on the Purchase Date
or Mandatory Purchase Date, as the case may be, at the office of the Tender Agent in
New York, New York; provided, however, that payment of the Purchase Price of 2008
Bonds purchased pursuant to Section 6.01 hereof shall be made only if such 2008 Bonds
so delivered to the Tender Agent conform in all respects to the description thereof in the
notice of tender. Payment of the Purchase Price shall be made by wire transfer in
imme id at 1y available funds by the Tender -Agent—by-the close of business on the
Purchase Date or Mandatory Purchase Date, as the case may be, or, if the Bondholder has
not provided or caused to be provided wire transfer instructions, by draft or check mailed
to the Bondholder at the address appearing in the books required to be kept by the
Registrar pursuant to this Ordinance. If 2008 Bonds to be purchased are not delivered by
the Bondholders to the Tender Agent by 12:00 noon on the Purchase Date or the
Mandatory Purchase Date, as the case may be, the Tender Agent shall hold any funds
received for the purchase of such 2008 Bonds in trust in a separate account and shall pay
such funds to the former Bondholders upon presentation of such 2008 Bonds subject to
tender. Any such amounts shall be held uninvested. Such undelivered 2008 Bonds shall
be deemed tendered and cease to accrue interest as to the former Bondholders on the
Purchase Date or the Mandatory Purchase Date, as the case may be, and moneys
representing the Purchase Price shall be available against delivery of such 2008 Bonds at
the designated office of the Tender Agent; provided, however, that any funds which shall
be so held by the Tender Agent and which remain unclaimed by the former Bondholder
of any such 2008 Bond not presented for purchase for a period of six years after delivery
of such funds to the Tender Agent, shall, to the extent permitted by law, upon request in
writing by the City and the furnishing of security or indemnity to the Tender Agent's
satisfaction, be paid to the City free of any trust or lien and thereafter the former
Bondholder of such 2008 Bond shall look only to the City and then only to the extent of
the amounts so received by the City without any interest thereon and the Tender Agent
shall have no further responsibility with respect to such moneys or payment of the
Purchase Price of such 2008 Bonds. The Tender Agent shall authenticate a replacement
2008 Bond for any undelivered 2008 Bond which may then be remarketed by the
Remarketing Agent or purchased by the Bond Credit Facility Issuer; provided, however,
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that if a book -entry only system is then in effect with respect to such 2008 Bonds, the
Tender Agent shall not be obligated to authenticate such replacement 2008 Bonds.
Remarketing of Purchased Bonds. The Remarketing Agent for a Series shall
offer for sale and use its best efforts to sell any 2008 Bonds that constitute Purchased
Bonds at a price equal to the principal amount thereof plus accrued interest. Such
Purchased Bonds shall be released only if prior to such release, the Tender Agent shall
have received notice from the related Bond Credit Facility Issuer that the Bond Credit
Facility has been reinstated in full or will be reinstated in full upon such release.
Proceeds from the remarketing of such 2008 Bonds shall be held in the Purchase Fund
established hereunder which shall be maintained for the account of and paid at the
direction of the Bond Credit Facility Issuer.
ARTICLE VII
BOND CREDIT FACILITY
Bond Credit Facility.
(a) The City has obtained the Bond Credit Facility being provided by
Sun Trust Bank as the initial Bond Credit Facility for the 2008 Bonds. The Bond Credit
Facility shall provide for draws thereon in an amount at least equal to the Bond Credit
Facility Amount for the 2008 Bonds.
(b) So long as the Bond Credit Facility Issuer is not in default of its
obligations under the Bond Credit Facility and the Bond Credit Facility Agreement,
upon providing the Tender Agent with funds pursuant to a drawing by the Tender Agent
under the Bond Credit Facility to pay the principal, Purchase Price or redemption price
of or interest on the 2008 Bonds, the Bond Credit Facility Issuer shall be subrogated to
the rights of the Holders of the 2008 Bonds receiving payment of such funds until such
time as the Bond Credit Facility is reimbursed in the amount of such funds drawn, and
until such time, such 2008 Bonds shall be deemed to be Outstanding hereunder.
(c) Whenever any amount is payable on a 2008 Bond for which a
Bond Credit Facility is in effect, whether for scheduled payments of principal or interest,
or for their purchase or redemption as provided in this Ordinance or in such 2008 Bond,
the Tender Agent shall at or before 12:30 p.m. draw on such Bond Credit Facility in
accordance with its terms for receipt of the amount necessary to timely pay the principal
of and interest on such 2008 Bonds in accordance with this Ordinance and such 2008
Bonds, provided that, the Tender Agent shall not draw on the Bond Credit Facility to
pay the principal or purchase price of or interest on (i) Purchased Bonds, (ii) 2008 Bonds
registered in the name of the City, or (iii) 2008 Bonds following their conversion to a
Mode that does not require a Bond Credit Facility. Proceeds of all draws under the
Bond Credit Facility shall be deposited into the Purchase Fund established hereunder
and will not be commingled with other funds held under this Ordinance. Proceeds of
any drawing under the Bond Credit Facility for interest accruing that are made prior to
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File Number: 08-00726
the Interest Payment Date and deposited into the Purchase Fund shall be used to pay
interest on the next Interest Payment Date. Such funds shall either be held uninvested or
invested in U.S. Government Obligations maturing the earlier of: (i) thirty (30) days, or
(ii) the next Interest Payment Date, or (iii) as needed to facilitate timely payment of
interest on the 2008 Bonds in accordance with this Ordinance and the 2008 Bonds.
(d) Purchased Bonds shall be registered in the name of the Bond
Credit Facility Issuer or as otherwise directed by the Bond Credit Facility Issuer.
Purchased Bonds shall constitute "Bank Bonds" as such term is defined in the Bond
Credit Facility Agreement and will be released and remarketed in accordance with and
subject to the requirements set forth in Section 6.12 hereof and in the Bond Credit
Facility Agreement.
(e) So long as a Bond Credit Facility is in effect with respect to the
2008 Bonds, amounts drawn under the Bond Credit Facility to pay the scheduled
payments of principal of or interest on the 2008 Bonds or to pay the redemption price of
the 2008 shall be reimbursed to the Bond Credit Facility Issuer from Net Revenues
deposited by the City into the accounts or subaccounts of the Bond Fund established
hereunder for the 2008 Bonds, as described in Section 10.01 hereof.
(I) So long as a Bond Credit Facility is in effect with respect to the
2008 Bonds, before the Bond Credit Facility is drawn on to pay the redemption price of
the 2008 Bonds pursuant to their optional redemption by the City, there shall be on
deposit in the accounts or subaccounts of the Bond Fund established hereunder sufficient
amounts to reimburse the Bond Credit Facility Issuer in full for the amount drawn on
and paid under the Bond Credit Facility to optionally redeem the 2008 Bonds.
(g) At any time, the City may obtain or provide for the delivery to the
Tender Agent of an Alternate Bond Credit Facility with respect to the 2008 Bonds . On
a Tender Date in connection with the substitution of a Bond Credit Facility, the Bond
Credit Facility being replaced shall be drawn on to pay the Purchase Price of tendered
2008 Bonds and such Bond Credit Facility shall not be released or cancelled until such
drawing has been honored. On or prior to the date on which an Alternate Bond Credit
Facility is obtained or delivered to the Paying Agent, the City shall furnish to the Tender
Agent and the Remarketing Agent (i) a Favorable Opinion of Bond Counsel, (ii) opinion
of counsel for the Alternate Bond Credit Facility issuer as to the validity and
enforceability of the Alternate Bond Credit Facility, as well as like opinion of foreign
counsel if the Alternate Bond Credit Facility issuer is not incorporated or formed in the
United States, and (iii) ratings from at least two (2) of three (3) nationally recognized
ratings agencies evidencing the highest category of short-term ratings (without regard to
modifiers). As provided in Section 6.05 hereof, all Outstanding 2008 Bonds will
become subject to mandatory tender for purchase on the Substitution Date.
(h) So long as the 2008 Bonds are in a Mode which requires a Bond
Credit Facility, the City shall obtain, in a reasonably timely manner, an Alternate Bond
Credit Facility with respect to the 2008 Bonds if the short-term credit rating of the Bond
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File Number: 08-00726
Credit Facility Issuer of the then existing Bond Credit Facility of the 2008 Bonds is
downgraded to a rating of less than "VMIG-1 "/"A-1 "/"F 1" by any two of Moody's, S&P
and Fitch, respectively. The short-term credit rating of such Alternate Bond Credit
Facility issuer shall not be less than "VMIG-1 "/"A-1 "/"Fl" by any two of Moody's, S&P
and Fitch, respectively.
(i) The City shall deliver to the Tender Agent and the Remarketing
Agent a copy of the Bond Credit Facility obtained pursuant to this Article VII on the
effective date of such Alternate Bond Credit Facility. In the event of an extension of the
Expiration Date, the City shall give the Tender Agent, the Paying Agent, and the
Remarketing Agent a written notice of the new Expiration Date at least 16 days prior to
the Expiration Tender Date. In the event of a substitution of a Bond Credit Facility with
an Alternate Bond Credit Facility, the City shall give the Tender Agent, the Paying
Agent, and the Remarketing Agent a written notice of the Substitution Date at least 31
days prior to such Substitution Date. The City shall give the Tender Agent, the Paying
Agent, and the Remarketing Agent a written notice of its election to terminate the Bond
Credit Facility at least 16 days prior to the Expiration Tender Date resulting from its
election to terminate such Bond Credit Facility.
(j) Upon the substitution, expiration or termination of a Bond Credit
Facility, the Tender Agent will return it to its issuer for canc-ellation; provided that, no
substitution or surrender shall take place unless all draws that are permitted under the
terms of the Bond Credit Facility and that are properly submitted in accordance with the
Bond Credit Facility have been honored.
ARTICLE VIII
SALE OF THE 2008 BONDS
Bond Purchase Agreement. The City hereby approves -the-form-of the Bond
Purchase Agreement attached hereto as Exhibit "A". The City hereby delegates to the
Chairman and the City Manager authority to accept an offer from the Underwriter to
purchase the 2008 Bonds which shall be provided in the form of the Bond Purchase
Agreement, subject to such changes, insertions and omissions and filling of blanks
therein as may be approved and made in such form by and in the discretion of the
Chairman and the City Manager in a manner consistent with the terms of this Ordinance,
or by the Certificate of the Chairman and the City Manager awarding the sale of the 2008
Bonds, execution and delivery of the Bond Purchase Agreement to be conclusive
evidence of such approval. Upon receipt of a disclosure statement from the Underwriter,
the Chairman and the City Manager are hereby authorized to accept the offer of the
Underwriter to purchase the 2008 Bonds in an aggregate principal amount of not
exceeding $42,000,000, provided however, that (i) the purchase price of the 2008 Bonds
shall reflect an underwriter's discount of not greater than 1% of the par amount of the
2008 Bonds, reduced by any original issue discount and increased by any premium
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File Number. 08-00726
reflected in the original offering price to the public of such current interest paying bonds,
if any, thereon, plus accrued interest thereon to the date of delivery, (ii) the true interest
cost rate (the "TIC") of the 2008 Bonds shall not exceed 5.75% for the Tax -Exempt
Series 2008 Bonds, and 6.75% for the Taxable Series 2008 Bonds, (iii) the interest rate
on the 2008 Bonds shall not exceed the maximum rate permitted by law, and (iv) the final
maturity of the 2008 Bonds shall not be later than October 1, 2036. The Chairman and
the City Manager are hereby authorized to execute the Bond Purchase Agreement for and
on behalf of the City pursuant to the terms hereof and of the Bond Purchase Agreement.
Official Statement. The City hereby approves the form of the Official Statement
attached hereto as Exhibit "B". The City hereby delegates to the City Manager and the
Chairman the authority to approve the final form and content of an Official Statement
related to the 2008 Bonds with such changes, modifications, insertions and deletions from
the attached form of Official Statement as the City Manager and Chairman shall approve,
such execution to be conclusive evidence of such approval. The City Manager and the
Chairman are hereby authorized to execute the Official Statement on behalf of the City
and the Department.
Approval of Form of Bond Credit Facility Agreement. The form of the Bond
Credit Facility Agreement attached hereto as Exhibit "C" is hereby approved, subject to
the changes, insertions and omissions and filling of blanks therein as may be approved
and made in such form of Bond Credit Facility Agreement by the City Manager and
Chairman executing the same, in a manner consistent with the provisions of this
Ordinance, such execution to be conclusive evidence of such approval. The City
Manager and Chairman are hereby authorized to execute the Bond Credit Facility
Agreement on behalf of the City. SunTrust Bank is hereby approved as the initial Bond
Credit Facility Issuer for the 2008 Bonds. The form of Bond Credit Facility attached
hereto as Exhibit "D" is hereby approved as the initial Bond Credit Facility for each
Series of the 2008 Bonds.
Approval of Form of Remarketing Agreement: Designation of Remarketing
Agent. The form of the Remarketing Agreement attached hereto as Exhibit "E" is
hereby approved, subject to the changes, insertions and omissions and filling of blanks
therein as may be approved and made in such form of Remarketing Agreement by the
City Manager and Chairman, in a manner consistent with the provisions of this
Ordinance, such execution to be conclusive evidence of such approval. The City
Manager and Chairman are hereby authorized to execute the Remarketing Agreement.
SunTrust Robinson Humphrey Inc. is hereby designated as the initial Remarketing Agent
for the 2008 Bonds.
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Approval of Form of Trustee, Tender Agent, Paying Agent and Registrar
Agreement Designation of Trustee, Tender Agent, Paying Agent and Registrar. The
form of the Trustee, Tender Agent, Paying Agent and Registrar Agreement (the "Tender
Agent Agreement") attached hereto as Exhibit "F" is hereby approved, subject to the
changes, insertions and omissions and filling of blanks therein as may be approved and
made in such form of Tender Agent Agreement by the City Manager and Chairman
executing the same, in a manner consistent with the provisions of this Ordinance, such
execution to be conclusive evidence of such approval. The City Manager and Chairman
are hereby authorized to execute the Tender Agent Agreement on behalf of the City in
substantially the form attached hereto with such changes, insertions, omissions and filling
of blanks therein as such officer shall approve. TD Bank, National Association is hereby
designated as the initial Trustee, Tender Agent, Paying Agent and Registrar and shall
serve in such capacities until it resigns or is removed and a successor Trustee, Tender
Agent, Paying Agent and Registrar is appointed for the 2008 Bonds as provided in the
Tender Agent Agreement. The duties of Trustee, Tender Agent, Paying Agent and
Registrar shall be performed by the same bank or trust company authorized to provide
such services and designated by the City in accordance with this Ordinance. The Tender
Agent shall transfer the Bond Credit Facility to any successor Tender Agent. The Tender
Agent shall not have a lien on any (i) proceeds from any remarketing of the 2008 Bonds,
(ii) proceeds received from each Bond Credit Facility, or (iii) any monies held for the
holders of the 2008 Bonds.
Approval of Form of Disclosure Dissemination Agent Agreement; Designation
of Dissemination Agent. The form of the Disclosure Dissemination Agent Agreement
(the "Dissemination Agent Agreement") attached hereto as Exhibit "G" is hereby
approved, subject to the changes, insertions and omissions and filling of blanks therein
as may be approved and made in such form of Dissemination Agent Agreement by the
City Manager and Chairman executing the same, in a manner consistent with the
provisions of this Ordinance, such execution to be conclusive evidence of such approval.
The City Manager and Chairman are hereby authorized to execute the Dissemination
Agent Agreement on behalf of the City in substantially the form attached hereto with
such changes, insertions, omissions and "filling of blanks therein as sudh officer shall
approve. Digital Assurance Certification, L.L.C. is hereby designated as the initial
Dissemination Agent and shall serve in such capacity until it resigns or is removed and a
successor Dissemination Agent is appointed for the 2008 Bonds as provided in the
Dissemination Agent Agreement.
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Designation of Qualified Derivative Agreement. For the purposes of the 1998
Bond Ordinance, as supplemented hereby, upon defeasance of the Refunded Bonds, the
City hereby re -designates that certain interest rate swap agreement (the "Swap"),
consisting of an ISDA Master Agreement dated March 30, 2006, a Schedule to the ISDA
Master Agreement and Credit Support Annex thereto, each dated as of March 30, 2006
and an Amended and Restated Confirmation dated March 22, 2006, entered into by the
City with Bear Stearns Financial Products Inc. (the "Counterparty") and hereby re-
confirms it as a Qualified Derivative Agreement under the 1998 Bond Ordinance, as
supplemented hereby, with respect to the 2008 Bonds. The Qualified Derivative
Payments to be made by the City under the Swap shall continue to be paid from the Bond
Fund (or appropriate account or subaccount established for the 2008 Bonds) on a parity
with interest payments on the 2008 Bonds and shall continue to be secured by a lien on
Net Revenues. The City Manager and Chairman are hereby authorized to execute any
one or more amendments, supplements or other documents related to the Swap to
effectuate the foregoing.
The City hereby covenants that it shall not amend, terminate, modify or
supplement, or request a consent to a departure from or a waiver of, any provision of
either this Ordinance or the Bond Ordinance in a manner relating in any way to the Swap,
or having a material adverse affect on the payment of or security for the City's
obligations under the Swap or any Surety Bond Policy issued for the Swap, or the rights
and remedies of the Counterparty or Ambac Assurance, as the provider of the Surety
Bond Policy for the Swap, without the prior written consent of the Counterparty and,
provided the Surety Bond Policy for the Swap is in effect, Ambac Assurance; it being
understood that the issuance of additional bonds or refunding bonds under a supplement
to the Bond Resolution shall not be construed as having a material adverse affect on the
payment of or security for the City's obligations under the Swap or any Surety Bond
Policy issued for the Swap, or the rights and remedies of the Counterparty or Ambac
Assurance, as the provider of the Surety Bond Policy for the Swap. Any such
amendment, termination, modification or supplement, or request for consent to a
departure from or waiver of, any provision of this Ordinance or the Bond Ordinance or as
described in this section if made without the prior written consent of the Counterparty or
Ambac Assurance, as applicable, shall be deemed null and void and given no effect, but
shall in no event be considered grounds for termination of the Surety Bond Policy for the
Swap, and unless already granted to the Counterparty under the Swap, shall not be
considered grounds for termination of the Swap. Notice of all interest rate determinations
shall be promptly delivered to Ambac Assurance, attention: Treasury Operations, Policy
# [spec. policy number].
ARTICLE IX
TAX COMPLIANCE AND REBATE PROVISIONS
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The 2008 Rebate Fund. There is hereby created and established a fund to be
known as "The City of Miami Tax Exempt Variable Rate Revenue Refunding Bonds,
Series 2008 Rebate Fund" (hereinafter referred to as the "2008 Rebate Fund"). Said 2008
Rebate Fund shall be maintained with the Paying Agent and shall be kept separate and
apart from all other funds of the City, and used for the purpose and in the manner
provided in this Section, and shall be and constitute a trust fund for such purposes. The
2008 Bonds, including any Additional Bonds or Refunding Bonds hereafter issued
pursuant to and within the terms, limitations and conditions contained in the 1998 Bond
Ordinance, as supplemented hereby, shall have no lien on or pledge of the moneys at any
time or from time to time on deposit in the 2008 Rebate Fund and the moneys in the 2008
Rebate Fund shall be available for use only as herein provided. The City shall use
moneys deposited in the 2008 Rebate Fund only for the payment of the Rebate Amount
with respect to the 2008 Bonds to the United States as required by Section 9.02 hereof.
Funds on deposit in the 2008 Rebate Fund in excess of the Rebate Amount, however,
may be withdrawn and paid over to the City upon the written direction of the City. In
complying with the foregoing, the City may rely upon Bond Counsel's Opinion with
respect thereto.
If any amount shall remain in the 2008 Rebate Fund after payment in full
of all 2008 Bonds issued hereunder and after payment in full of the Rebate Amount to the
-United States itr accordance with the terms hereof, such amount shall be available to the
City for any lawful purpose.
Notwithstanding any other provision of this Ordinance or the 1998 Bond
Ordinance, including in particular Section 5.1 of the 1998 Bond Ordinance, the obligation
to pay over the Rebate Amount to the United States and to comply with all other
requirements of Section 9.02 hereof and this Section 9.01 shall survive the defeasance or
payment in full of the 2008 Bonds.
Covenant Concerning Compliance with Tax Laws. In addition to any other
requirements contained in the 1998 Bond Ordinance, as supplemented hereby, the City
hereby -covenants -and agrees, for the benefit of the holders from time to time of the 2008
Bonds, to comply with the requirements contained in the Code to the extent necessary,
and any other requirements which, in Bond Counsel's Opinion, are necessary to preserve
the exclusion of interest on the 2008 Tax Exempt Bonds from the gross income of the
owners thereof for federal income tax purposes throughout the term of the issue.
Amendments to Article IX. Any provision of this Ordinance or of the 1998
Bond Ordinance to the contrary notwithstanding, the provisions of this Article IX may be
amended from time to time without the consent of the Tender Agent or the Bondholders
upon delivery to the Tender Agent of a Favorable Opinion of Bond Counsel.
ARTICLE X
ESTABLISHMENT OF CERTAIN ACCOUNTS AND SUBACCOUNTS
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Bond Fund Accounts and Subaccounts. In accordance with the terms and
provisions of the 1998 Bond Ordinance, including but not limited to Section 5.01
thereof, the City hereby authorizes the establishment of appropriate accounts and
subaccounts of the Bond Fund established under the 1998 Bond Ordinance for the 2008
Bonds. In particular, the City hereby establishes the following subaccounts of the
Principal Account and the Interest Account of the Bond Fund for the 2008 Bonds:
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A. Principal Account
(i) The "2008 Letter of Credit Principal Subaccount" C `the Letter of
Credit Principal Subaccount"). The Tender Agent shall deposit into the Letter of
Credit Principal Subaccount amounts drawn under the Bond Credit Facility for
regularly scheduled payments of principal on the 2008 Bonds, and shall hold and
disburse such amounts in accordance with the 1998 Bond Ordinance and this
Ordinance to pay regularly scheduled payments of principal on the 2008 Bonds.
B. Interest Account
(i) The "2008 Letter of Credit Interest Subaccount" (the "Letter of
Credit Interest Subaccount"). The Tender Agent shall deposit into the Letter of
Credit Interest Subaccount amounts drawn under the Bond Credit Facility for
regularly scheduled payments of interest on the 2008 Bonds, and shall hold and
disburse such amounts in accordance with the 1998 Bond Ordinance and this
Ordinance to pay regularly scheduled payments of interest on the 2008 Bonds.
(ii) The "2008 Letter of Credit Reimbursement Subaccount" (the
"Reimbursement Subaccount"). The Tender Agent shall deposit into the
Reimbursement Subaccount payments received from the Counterparty under the
Swap and any additional Net Revenues deposited by the City or the Department
in accordance with this Ordinance and the Bond Credit Facility Agreement and
shall disburse such amounts in order to reimburse the Bond Credit Facility Issuer
for drawings under the Bond Credit Facility that are honored by the Bond Credit
Facility Issuer.
(iii) The "2008 Swap Payment Subaccount" (the "Swap Subaccount").
The Tender Agent shall deposit into the Swap Subaccount payments due from the
City or the Department under the Swap and shall disburse such amounts to the
Counterparty in accordance with the terms of the Swap.
In accordance with Section 10.03 hereof, any primary officer of the City charged with the
responsibility of issuing the 2008 Bonds may, pursuant to a closing certificate or other
written direction provided to the Trustee, Tender Agent and Paying Agent, direct the
establishment of such further accounts or subaccounts or modify the use of the accounts
and subaccounts set forth herein as shall be necessary or convenient and in furtherance of
the purposes of this Ordinance. Except as set forth herein, the Tender Agent shall hold,
maintain and invest monies deposited in the Bond Fund Account for the 2008 Bonds as
provided in the 1998 Bond Ordinance and this Ordinance.
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2008 Bonds Purchase Fund. The City hereby establishes the "City of Miami,
Florida Variable Rate Parking System Revenue Refunding Bonds, Series 2008 Purchase
Fund" (the "Purchase Fund"). The Tender Agent shall establish separate accounts and
subaccounts of the Purchase Fund as described in Section 6.07 of this Ordinance.
Amounts drawn by the Tender Agent under the Bond Credit Facility shall be deposited
into the Purchase Fund and applied in accordance with this Ordinance. Amounts
deposited in the Purchase Fund shall be held by the Tender Agent uninvested, or may be
invested by the Tender Agent upon the written direction of the City, in Investment
Obligations.
Additional Accounts and Subaccounts. The City hereby approves the
establishment of such additional accounts and subaccounts as shall be necessary or
convenient for the accounting, management and administration of the 2008 Bonds, as
determined by any primary officer of the City who is delegated the responsibility of
issuing the 2008 Bonds. Any such officer may direct the Trustee, Tender Agent and
Paying Agent to establish such funds, accounts or subaccounts and provide directions
regarding the use of such accounts or subaccounts pursuant to a closing certificate or
other written direction provided to the Trustee, Tender Agent and Paying Agent in
connection with the issuance of the 2008 Bonds.
ARTICLE XI
TENDER AGENT, PAYING AGENT, TRUSTEE AND REGISTRAR PROVISIONS
The terms and provisions of Article IX of the 1998 Bond Ordinance shall
apply equally to the 2008 Bonds and the Trustee, Paying Agent, Tender Agent and
Registrar for the 2008 Bonds.
ARTICLE XII
MISCELLANEOUS
Surety Bond Provisions. On the date of the issuance of the Refunded Bonds,
Ambac Assurance delivered the Surety Bond for deposit into the Reserve Account. The
Surety Bond shall remain in full force and effect in connection with the issuance of the
2008 Bonds and the terms and provisions of this Section 12.01 shall apply for so long as
the Surety Bond is in effect and Ambac Assurance has honored its obligations under the
Surety Bond.
A. Any provision of this Ordinance or the 1998 Bond Ordinance expressly recognizing or
granting rights in or to Ambac Assurance may not be amended in any manner which affects the rights of
Ambac Assurance hereunder without the prior written consent of Ambac Assurance. Ambac Assurance
reserves the right to charge the City a fee for any consent or amendment to this Ordinance or the 1998
Bond Ordinance while the Surety Bond is outstanding.
B. Unless otherwise provided in this Section, Ambac Assurance's consent shall be required
in lieu of Holder consent, when required, for the following purposes: (i) execution and delivery of any
supplemental ordinance or any amendment, supplement or change to or modification of this Ordinance or
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the 1998 Bond Ordinance; (ii) removal of the Trustee or Paying Agent or selection and appointment of any
successor trustee or paying agent; and (iii) initiation or approval of any action not described in (i) or (ii)
above which requires Holder consent.
C. While the Surety Bond is in effect, the City or the Tender Agent, as appropriate, shall
furnish to the Surveillance Department of Ambac Assurance, upon request, the following:
(i) (a) a copy of any financial statement, audit and/or annual report of the Department or the
City; and (b) such additional information it may reasonably request. Upon request, such
information shall be delivered at the City's expense to the attention of the Surveillance
Department, unless otherwise indicated.
(ii) A copy of any notice to be given to the registered owners of the 2008 Bonds, including,
without limitation, notice of any redemption of or defeasance of the 2008 Bonds, and any
certificate rendered pursuant to this Ordinance or the 1998 Bond Ordinance relating to the security
of the 2008 Bonds.
(iii) To the extent that the City has entered into or subsequently enters into a continuing
disclosure agreement with respect to the 2008 Bonds, Ambac Assurance shall be included as party
to be notified.
D. While the Surety Bond is in effect, the City or the Tender Agent, as
appropriate, shall furnish to the General Counsel's office of Ambac Assurance the
following:
(i) The City shall notify Ambac Assurance of any failure of the City to provide relevant
notices or certificates under this Ordinance or the 1998 Bond Ordinance.
(ii) Notwithstanding any other provision of this Ordinance or the 1998 Bond Ordinance, the
Trustee or Tender Agent shall immediately notify Ambac Assurance if at any time there are
insufficient moneys to make any payments of principal and interest on the 2008 Bonds as required
and immediately upon the occurrence of (i) any event of default under this Ordinance or the 1998
Bond Ordinance, or (ii) any payment default under any related agreement with respect to the 2008
Bonds.
E. The Department and the City will permit Ambac Assurance to discuss the affairs,
finances and accounts of the Department or any information Ambac Assurance may reasonably request
regarding the security for the 2008 Bonds with appropriate officers of the Department or the City. The
Trustee or Tender Agent or Department or City, as appropriate, will permit Ambac Assurance to have
access to the projects financed with the proceeds of the Refunded Bonds and have access to and to make
copies of all books and records relating to the 2008 at any reasonable time during regular business hours.
F. As long as the Surety Bond shall be in full force and effect, the Department, the City, the
Trustee and Paying Agent, if appropriate, agree to comply with the following provisions:
(i) In the event and to the extent that moneys on deposit in the Principal Account, the Interest
Account or the Sinking Fund Account, plus all amounts on deposit in and credited to the
Reserve Account for the 2008 Bonds in excess of the amount of the Surety Bond, are
insufficient to pay the amount of principal and interest coming due on the 2008 Bonds, then
upon the later of: (i) one (1) day after receipt by the General Counsel of Ambac Assurance of
a demand for payment in the form attached to the Surety Bond as Attachment 1 (the "Demand
for Payment"), duly executed by the Paying Agent certifying that payment due under the 1998
Bond Ordinance, as supplemented by this Ordinance has not been made to the Paying Agent;
or (ii) the payment date of the 2008 Bonds as specified in the Demand for Payment presented
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by the Paying Agent to the General Counsel of Ambac Assurance, Ambac Assurance will
make a deposit of funds in an account with the Paying Agent or its successor, in New York,
New York, sufficient for the payment to the Paying Agent, of amounts which are then due to
the Paying Agent under the 1998 Bond Ordinance, as supplemented by this Ordinance (as
specified in the Demand for Payment) up to but not in excess of the Surety Bond Coverage, as
defined in the Surety Bond; provided, however, that in the event that the amount on deposit
in, or credited to, the Reserve Account, in addition to the amount available under the Surety
Bond, includes amounts available under a letter of credit, insurance policy, surety bond or
other such funding instrument (the "Additional Funding Instrument"), draws on the Surety
Bond and the Additional Funding Instrument shall be made on a pro rata basis to fund the
insufficiency.
(ii) the Trustee, or Paying Agent, if appropriate, shall, after submitting to Ambac Assurance
the Demand for Payment as provided in (a) above, make available to Ambac Assurance all
records relating to the Funds and Accounts maintained under the 1998 Bond Ordinance, as
supplemented by this Ordinance relating to the 2008 Bonds.
(iii) the Trustee, or Paying Agent, if appropriate, shall, upon receipt of moneys received from
the draw on the Surety Bond, as specified in the Demand for Payment, credit the Reserve
Account to the extent of moneys received pursuant to such Demand for Payment; and
(iv) the Reserve Account for the 2008 Bonds shall be replenished in the following priority:
(i) principal and interest on the Surety Bond shall be paid from first available Net Revenues;
(ii) after all such amounts are paid in full, amounts necessary to fund the Reserve Account for
the 2008 Bonds to the required level, after taking into account the amounts available under the
Surety Bond shall be deposited from next available Revenues.
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Authorizations. The City Manager, Chairman, Director, and Chief Financial
Officer, are each hereby authorized and directed, individually or with others pursuant to
their direction or authorization, to execute such other documents, instruments and
contracts, whether or not expressly contemplated hereby, and to execute and do all acts
and things required by the provisions of this Ordinance as may be necessary for the full,
punctual and complete performance of all the terms, covenants, provisions and
agreements herein and therein contained, or as otherwise may be necessary or desirable
to effectuate the purpose and intent of this Ordinance or the 1998 Bond Ordinance. Such
authorization shall include, but not be limited to, the selection and hiring of
professionals, including trustees, paying agents, escrow agents, verification agents and
any other professionals or service providers and the execution and delivery of
certificates, documents and agreements in connection with the provision of services by
such professionals or otherwise necessary to effectuate the purposes of this Ordinance.
The City Manager, Chairman, Director, and Chief Financial Officer, the Trustee and the
Paying Agent are hereby authorized to take such actions as may be necessary to qualify
the 2008 Bonds for deposit with DTC in accordance with the Blanket Issuer Letter of
Representations dated October 4, 1995 from the City to DTC (the "DTC Agreement")
and the taking of all actions required by such DTC Agreement, wire transfers of interest
and principal payments with respect to the Bonds, utilization of electronic book entry
data received from DTC in place of actual delivery of Bonds and provisions of notice
with respect to Bonds registered by DTC (or any of its designees identified to the City,
the Department, the Trustee or the Paying Agent) by ovemight delivery, courier service,
telegram, telecopy or other similar means of communication.The City Manager, the
Chairman, the Director and the Chief Financial Officer are hereby designated as the
primary officers of the City charged with the responsibility of issuing the 2008 Bonds.
Parties Interested Herein. Nothing in this Ordinance, expressed or implied is
intended or shall be construed to confer upon, or to give to, any person or entity, other
than the City, the Tender Agent, the Paying Agent, the Bond Credit Facility Issuer,
Ambac Assurance and the registered owners of the 2008 Bonds, any right, remedy or
claim under or by reason of this Ordinance or any covenant, condition or stipulation
hereof, and all covenants, stipulations, promises and agreements in this Ordinance, by
and on behalf of the City shall be for the sole and exclusive benefit of the City, the Board,
the Department, the Trustee, Tender Agent and Paying Agent, the Bond Credit Facility
Issuer, Ambac Assurance and the registered owners of the 2008 Bonds.
Controlling Law; Member of City not Liable. All covenants, stipulations,
obligations and agreements of the City contained in this Ordinance shall be deemed to be
covenants, stipulations, obligations and agreements of the City to the full extent
authorized by the Constitution and laws of the State of Florida. No covenant, stipulation,
obligation or agreement contained herein shall be deemed to be a covenant, stipulation,
obligation or agreement of any present or future member, agent, officer or employee of
the City in his or her individual capacity, and neither the City nor any official executing
the 2008 Bonds shall be liable personally on the 2008 Bonds or under this Ordinance or
shall be subject to any personal liability or accountability by reason of the issuance of the
2008 Bonds or the execution thereof by the City or such officers thereof.
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References. All references to time herein shall be deemed to refer to Eastern
Standard Time or Eastern Daylight Time, as applicable.
Notices.
(a) All notices required to be given to owners of 2008 Bonds
hereunder, unless otherwise expressly provided herein, shall be given by first class mail,
postage prepaid.
(b) The City shall give prior written notice to the Rating Agencies of
any of the following events:
(i) change of Tender Agent, Paying Agent, Trustee or
Remarketing Agent;
(ii) Any material changes to the 1998 Bond Ordinance or this
Ordinance that affect the 2008 Bonds;
(iii) Any changes to the Bond Credit Facility or any agreement
with the Bond Credit Facility Issuer, Remarketing Agent, or Tender Agent
pertaining to the 2008 Bonds;
(iv) Any expiration, termination or extension of the Bond
Credit Facility or the obtaining of an Alternate Bond Credit Facility pertaining to
the 2008 Bonds;
(v) Any action in connection with a change to a Daily Mode,
Term Rate Mode or Fixed Rate Mode or Commercial Paper Mode; and
(vi) Any redemption, defeasance, mandatory tender or
acceleration of all the Outstanding 2008 Bonds.
Notices to S&P shall be sent to: Standard & Poor's, Attn: Municipal
Structured Surveillance, 55 Water Street, 38th Floor, New York, New York, 10041.
Notices to Fitch shall be sent to: Fitch Ratings, Attn: Municipal Structured Surveillance,
1 State Street Plaza, New York, New York 10004. Notices to Moody's shall be sent to:
Moody's Investors Service, 7 World Trade Center, 250 Greenwich Street, New York,
New York 10007, Attention: Municipal Structured Products Group, 23M Floor.
Applicability of Remaining Terms and Provisions of the 1998 Bond Ordinance.
To the extent that such terms and provisions of the 1998 Bond Ordinance are not
inconsistent with the terms and provisions of this Ordinance, such terms and provisions
of the 1998 Bond Ordinance shall apply equally to the 2008 Bonds and shall be deemed
incorporated by reference into the body of this Ordinance.
Successorship of City Officers. In the event that the office of any officer or
official of the City, the Board or the Department who is vested with responsibility under
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this Ordinance is abolished or any two or more offices are merged or consolidated, or in
the event of a vacancy in any such office by reason of death, resignation, removal from
office or otherwise, or in the event any such officer or official becomes incapable of
performing the duties of his office by reason of sickness, absence from the City or
otherwise, all powers conferred and all obligations and duties imposed upon such officer
or official shall be performed by the officer or official succeeding to the principal
functions thereof or by the officer or official upon whom such powers, obligations and
duties are imposed by law.
Inconsistent Ordinances. All ordinances and parts thereof that are inconsistent
with any of the provisions of this Ordinance are hereby declared to be inapplicable to the
provisions of this Ordinance.
City, the Board, Department, Trustee and Bondholders Alone Have Rights Under
Ordinance. Except as otherwise expressly provided herein, nothing in this Ordinance,
expressed or implied, is intended or shall be construed to confer upon any person, firm
or corporation, other than the City, the Board, the Department, the Trustee, Tender
Agent and Paying Agent, the Bond Credit Facility Issuer, Ambac Assurance and the
registered owners of the 2008 Bonds. issued under and secured by this Ordinance, any
right, remedy or claim, legal or equitable, under or by reason of this Ordinance. This
Ordinance is intended to be for the sole and exclusive benefit of the City, the Board, the
Department, the Trustee, Tender Agent and Paying Agent, the Bond Credit Facility
Issuer, Ambac Assurance and the registered owners of the 2008 Bonds.
Effect of Partial Invalidity: Incorporation of Recitals. If any one or more of the
provisions of this Ordinance or of any 2008 Bonds or coupons issued hereunder is held
to be illegal or invalid; such illegality or invalidity shall not affect any other provision of
this Ordinance or of the 2008 Bonds, and this Ordinance and the 2008 Bonds shall be
construed and enforced as if such illegal or invalid provision had not been contained
herein or therein. The recitals set forth at the beginning of this Ordinance are hereby
incorporated by reference into the body of this Ordinance.
State Law Governs. The 2008 Bonds are issued and this Ordinance is adopted
with the intent that the laws of the State shall govern their construction.
Notice. The City Clerk shall cause to be published once, in a newspaper
published in the City, a notice in substantially the following form:
NOTICE
NOTICE IS HEREBY GIVEN that Ordinance No.
entitled as follows:
AN ORDINANCE OF THE CITY OF MIAMI, FLORIDA,
SUPPLEMENTING THAT CERTAIN ORDINANCE NO, 11693
ADOPTED BY THE CITY COMMISSION ON AUGUST 14, 1998;
AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $42,000,000
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IN AGGREGATE PRINCIPAL AMOUNT OF ITS VARIABLE RATE
PARKING SYSTEM REVENUE REFUNDING BONDS, SERIES 2008,
IN ONE OR MORE SERIES AND ON A TAX-EXEMPT OR TAXABLE
BASIS, FOR THE PURPOSES OF CURRENTLY REFUNDING AND
REDEEMING ALL OF THE CITY'S OUTSTANDING TAX-EXEMPT
VARIABLE RATE PARKING SYSTEM REVENUE BONDS, SERIES
2006, AND ITS TAXABLE VARIABLE RATE PARKING SYSTEM
REVENUE BONDS, SERIES 2006, AND PAYING CERTAIN COSTS
OF ISSUANCE IN CONNECTION THE ISSUANCE OF SUCH
BONDS; ESTABLISHING CRITERIA FOR DETERMINING THE
DATES, INTEREST RATES, INTEREST PAYMENT DATES,
PRINCIPAL AMOUNTS, PROVISIONS FOR TENDER AND
REDEMPTION AND MATURITY SCHEDULES FOR SUCH BONDS;
AWARDING THE SALE OF SAID BONDS TO SUNTRUST
ROBINSON HUMPHREY INC. ON A NEGOTIATED BASIS, AND
APPROVING THE CONDITIONS AND CRITERIA OF SUCH SALE;
APPROVING THE FORM OF AND AUTHORIZING THE
EXECUTION OF A BOND PURCHASE AGREEMENT WITH
SUNTRUST ROBINSON HUMPHREY INC.; APPROVING THE
FORM OF AND AUTHORIZING THE EXECUTION OF AN
OFFICIAL STATEMENT ON BEHALF OF THE -CITY; APPROVING
THE FORM OF AND AUTHORIZING THE EXECUTION AND
DELIVERY OF A BOND CREDIT FACILITY AGREEMENT WITH
SUNTRUST BANK; APPROVING THE FORM OF A BOND CREDIT
FACILITY FROM SUNTRUST BANK; APPROVING THE FORM OF
AND AUTHORIZING THE EXECUTION AND DELIVERY OF A
REMARKETING AGREEMENT AND DESIGNATING SUNTRUST
ROBINSON HUMPHREY INC. AS THE REMARKETING AGENT
THEREUNDER; APPROVING THE FORM OF AND AUTHORIZING
THE EXECUTION AND DELIVERY OF A TRUSTEE, TENDER.
AGENT, PAYING AGENT AND REGISTRAR AGREEMENT, AND
DESIGNATING TD BANK, NATIONAL ASSOCIATION, AS
TRUSTEE, PAYING AGENT, TENDER AGENT AND REGISTRAR
THEREUNDER; APPROVING THE FORM OF AND AUTHORIZING
THE EXECUTION AND DELIVERY OF A DISCLOSURE
DISSEMINATION AGENT AGREEMENT AND DESIGNATING
DIGITAL ASSURANCE CERTIFICATION, L.L.C. AS
DISSEMINATION AGENT THEREUNDER; DESIGNATING A
QUALIFIED DERIVATIVE AGREEMENT WITH RESPECT TO THE
2008 BONDS; DESIGNATING A SURETY BOND WITH RESPECT
TO THE 2008 BONDS; AUTHORIZING CERTAIN OFFICIALS AND
EMPLOYEES OF THE CITY AND THE DEPARTMENT TO TAKE
ALL ACTIONS REQUIRED IN CONNECTION WITH THE
ISSUANCE OF SAID BONDS; PROVIDING CERTAIN OTHER
DETAILS WITH RESPECT THERETO; AND PROVIDING AN
EFFECTIVE DATE FOR THIS ORDINANCE.
City of Miami
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was duly adopted by the City Commission of the City of Miami, Florida,
on the — day of June, 2008.
Any action or proceeding to contest the validity of said ordinance
or any of its provisions must be commenced within thirty (30) days after
the publication of this notice. After the expiration of such period of
limitation, no right of action or defense founded upon the invalidity of said
ordinance or any of its provisions shall be asserted, nor shall the validity
of said ordinance or any of its provisions be open to question in any court
upon any ground whatever, except in an action or proceeding commenced
within such periods.
By order of the City Commission of the City of Miami, Florida.
City Clerk
Posting. A copy of this Ordinance shall be posted by the City Clerk at the door
of the Miami -Dade County Courthouse at the place provided for notices within five (5)
days after the passage and adoption hereof.
Footnotes:
{1} If the Mayor does not sign this Ordinance, it shall become effective at the end of
ten calendar days from the date it was passed and adopted. If the Mayor vetoes this
Ordinance, it shall become effective immediately upon override of the veto by the City
Commission.
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