HomeMy WebLinkAboutLegislation- Version 1City of Miami
Legislation
Resolution
City Hall
3500 Pan American Drive
Miami, FL 33133
www.miamigov.com
Final Action Date:
File Number: 12-00908
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $50,000,000 IN AGGREGATE
PRINCIPAL AMOUNT OF SPECIAL OBLIGATION NON -AD VALOREM REVENUE
REFUNDING BONDS, SERIES 2012 (PORT OF MIAMI TUNNEL PROJECT); FOR THE
PURPOSE OF, TOGETHER WITH ANY OTHER AVAILABLE MONEYS, REFUNDING THE
CITY'S REVENUE NOTE, SERIES 2010 (PORT OF MIAMI TUNNEL AND ACCESS
IMPROVEMENT PROJECT) OUTSTANDING IN THE AGGREGATE PRINCIPAL AMOUNT OF
$45,000,000 (THE "NOTE"); PROVIDING FOR THE RIGHTS AND SECURITY OF ALL
HOLDERS OF BONDS ISSUED PURSUANT TO THIS RESOLUTION; PROVIDING CERTAIN
DETAILS OF THE BONDS; DELEGATING OTHER DETAILS' AND MATTERS IN
CONNECTION WITH THE ISSUANCE OF THE BONDS TO THE CITY MANAGER, WITHIN
THE LIMITATIONS AND RESTRICTIONS STATED HEREIN; PROVIDING FOR THE
PAYMENT OF SUCH BONDS FROM LEGALLY AVAILABLE NON -AD VALOREM REVENUES
BUDGETED AND APPROPRIATED BY THE CITY FOR SUCH PURPOSE; APPOINTING A
BOND REGISTRAR; AUTHORIZING A BOOK -ENTRY REGISTRATION SYSTEM FOR THE
BONDS; AUTHORIZING THE NEGOTIATED SALE AND AWARD BY THE CITY MANAGER
OF THE BONDS TO THE UNDERWRITER, WITHIN THE LIMITATIONS AND RESTRICTIONS
STATED HEREIN; APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION AND
DELIVERY OF A BOND PURCHASE AGREEMENT; APPROVING THE FORM OF AND
DISTRIBUTION OF A PRELIMINARY LIMITED OFFERING MEMORANDUM AND A LIMITED
OFFERING MEMORANDUM AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE
LIMITED OFFERING MEMORANDUM; COVENANTING TO PROVIDE CONTINUING
DISCLOSURE IN CONNECTION WITH THE BONDS AND AUTHORIZING THE EXECUTION
AND DELIVERY OF A CONTINUING DISCLOSURE AGREEMENT WITH RESPECT
THERETO AND APPOINTING A DISCLOSURE DISSEMINATION AGENT THEREUNDER;
CREATING A BOND FUND AND CERTAIN ACCOUNTS, AND SUBACCOUNTS AND
PROVIDING FOR THE APPLICATION OF THE PROCEEDS OF THE BONDS; DELEGATING
TO THE CITY MANAGER AUTHORITY TO NEGOTIATE AND OBTAIN A BOND INSURANCE
POLICY AS CREDIT ENHANCEMENT FOR THE BONDS AND/OR A RESERVE ACCOUNT
INSURANCE POLICY FOR DEPOSIT TO THE CREDIT OF THE DEBT SERVICE RESERVE
ACCOUNT AND AUTHORIZING THE EXECUTION AND DELIVERY OF AGREEMENTS WITH
THE PROVIDER(S) THEREOF; PROVIDING COVENANTS FOR THE PROVIDER(S) OF
SUCH BOND INSURANCE POLICY AND/OR RESERVE ACCOUNT INSURANCE POLICY;
AUTHORIZING THE CITY MANAGER, THE CITY ATTORNEY AND CERTAIN OTHER
OFFICIALS AND EMPLOYEES OF THE CITY TO TAKE ALL ACTIONS REQUIRED IN
CONNECTION WITH THE ISSUANCE OF THE BONDS; AND PROVIDING FOR AN
EFFECTIVE DATE.
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WHEREAS, the City of Miami, Florida (the "City") has previously issued the Note to
provide for the interim financing of the City's financial contribution towards the Port of Miami
Tunnel and Access Improvement Project (the "Tunnel Project"); and
WHEREAS, the City Commission of the City (the "Commission") has determined that it is
desirable, subject to the provisions of this Resolution, to authorize the issuance by the City of its
Special Obligation Non -Ad Valorem Revenue Refunding Bonds, Series 2012 (Port of Miami
Tunnel Project), in an aggregate principal amount not to exceed $50,000,000 (the "Bonds"), for
the purpose of, together with any other available moneys, (i) refinancing the Note, including the
payment of accrued interest, (ii) funding a deposit to the Debt Service Reserve Account or
paying the premium for a Reserve Account Insurance Policy for the Bonds, and (iii) paying
certain costs of issuance of the Bonds, including if necessary, the premium for a Bond
Insurance Policy; and
WHEREAS, the Commission has further determined that due to the uncertainty of the
municipal bond market and the need to access such market when most advantageous to the
City, it is in the best interest of the City to delegate to the City Manager, who may consult with
the Director of Finance and Financial Advisor (as such terms are defined below), the
determination of various terms of the Bonds, the award of the Bonds and other actions in
connection with the issuance of the Bonds, all as provided and subject to the limitations
contained in this Resolution; and
WHEREAS, for reasons more fully set forth herein, the Commission finds and
determines it to be in the best interest of the City to authorize the sale of the Bonds on the basis
of a negotiated sale rather than a public sale by competitive bid;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF
MIAMI, FLORIDA:
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS, AUTHORITY AND FINDINGS; RESOLUTION
CONSTITUTES A CONTRACT
Section 1.01. Definitions 1
Section 1.02. Authority for this Resolution 6
Section 1.03. Findings 6
Section 1.04. Resolution Constitutes Contract 7
ARTICLE II
AUTHORIZATION AND DETAILS OF BONDS AND CERTAIN DOCUMENTS
Section 2.01. Authorization of Bonds and Refinancing of Note 8
Section 2.02. Certain Details of Bonds .8
Section 2.03. Redemption Provisions 9
Section 2.04. Execution of Bonds 10
Section 2.05. Negotiability, Registration and Cancellation 10
Section 2.06. Bonds Mutilated, Destroyed, Stolen or Lost ..11
Section 2.07. Preparation of Definitive Bonds; Temporary Bonds .11
Section 2.08. Form of Bonds 12
Section 2.09. Book -Entry Only System for the Bonds; Qualification for DTC .12
Section 2.10. Negotiated Sale; Bond Purchase Agreement 14
Section 2.11. Preliminary Limited Offering Memorandum; Limited Offering
Memorandum; Limited Offering 15
Section 2.12. Continuing Disclosure 15
Section 2.13. Guaranty Agreement .16
ARTICLE III
COVENANTS, FUNDS AND APPLICATION THEREOF
Section 3.01. Bonds Not to be Indebtedness of the City 17
Section 3.02. Bonds Secured By Pledge of Pledged Funds 17
Section 3.03. Application of Bond Proceeds 17
Section 3.04. Covenants of the City 18
Section 3.05. Events of Default; Remedies 24
Section 3.06. Enforcement of Remedies 25
Section 3.07. Effect of Discontinuing Proceedings 26
Section 3.08. Directions to Default Trustee as to Remedial Proceedings 26
Section 3.09. Restrictions on Actions by Individual Bondholders 26
Section 3.10. Additional Debt 27
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ARTICLE IV
CONCERNING THE BOND REGISTRAR
Section 4.01. Appointment and Acceptance of Duties .28
Section 4.02. Responsibilities of Bond Registrar .28
Section 4.03. Evidence On Which Bond Registrar May Act 28
Section 4.04. Compensation 28
Section 4.05. Certain Permitted Acts .29
Section 4.06. Merger or Consolidation 29
Section 4.07. Adoption of Authentication 29
Section 4.08. Resignation or Removal of Bond Registrar and Appointment of Successor 29
Section 4.09. Vacancy 29
ARTICLE V
EXECUTION OF INSTRUMENTS BY BONDHOLDERS AND PROOF OF OWNERSHIP OF
BONDS
Section 5.01. Proof of Execution of Documents and Ownership 31
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Modification or Amendment 32
Section 6.02. Severability of Invalid Provisions 33
Section 6.03. Unclaimed Money 33
Section 6.04. Payments Due on Saturdays, Sundays and Holidays 34
Section 6.05. Controlling Law; Members of Commission Not Liable 34
Section 6.06. Further Authorizations 34
Section 6.07. Headings for Convenience Only 34
Section 6.08. Repealing Clause 34
Section 6.09. Time of Taking Effect 35
Exhibit A — Form of Bond
Exhibit B — Form of Bond Purchase Agreement
Exhibit C — Form of Preliminary Limited Offering Memorandum
Exhibit D — Form of Continuing Disclosure Agreement
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ARTICLE I
DEFINITIONS, AUTHORITY AND FINDINGS;
RESOLUTION CONSTITUTES A CONTRACT
SECTION 1.01. Definitions. In addition to the terms defined elsewhere in this
Resolution, including the recitals, the following terms shall have the following meanings in this
Resolution:
"Account" shall mean an account created and established under this Resolution.
"Act" shall mean the Constitution and the laws of the State, including, without limitation,
Chapter 166, Florida Statutes, as amended, and the City of Miami Charter.
"Amortization Requirements" shall mean such moneys required to be deposited in the
Bond Redemption Subaccount within the Debt Service Account for the purpose of the
mandatory redemption or payment at maturity of any Term Bonds, the specific amounts and
times of such deposits to be set forth in the City Manager's Certificate.
"Annual Debt Service Requirement" for any Fiscal Year, as applied to the Bonds or any
portion thereof, or such other Debt as described in Section 3.10(b) hereof, as applicable, shall
mean the respective amounts which are needed to provide:
(a) for paying the interest on all Bonds then Outstanding which is payable on
each Interest Payment Date in such Fiscal Year;
(b) for paying the principal of all Serial Bonds then Outstanding which is
payable upon the maturity of such Serial Bonds in such Fiscal Year;. and
Year.
(c) the Amortization Requirements, if any, for the Term Bonds for such Fiscal
For purposes of computing (a), (b) and (c) above, (i) any principal, interest or Amortization
Requirements due on October 1 in a Fiscal Year shall be deemed due in the preceding Fiscal
Year, (ii) if all or a portion of the principal of or interest on Bonds is payable from moneys
irrevocably set aside or deposited for such purpose, together with projected earnings thereon to
the extent such earnings are projected to be from Permitted Investments, such principal or
interest shall not be included in determining Annual Debt Service Requirements if such moneys
and/or Permitted Investments will provide moneys which shall be sufficient to pay when due
such principal and interest, and (iii) if all or a portion of the principal of or interest on the Bonds
is payable from any source other than Non -Ad Valorem Revenues, such portion of principal or
interest shall not be included in the determination of Annual Debt Service Requirements;
provided, however, for purposes of this clause (iii), that such other source of moneys has been
irrevocably committed to the payment of such debt service on the Bonds pursuant to a separate
resolution duly adopted by the Commission or such other source of moneys has been actually
deposited in the applicable subaccount of the Debt Service Account for the payment of such
debt service on the Bonds. For purposes of computing (a), (b) and (c) above, in connection with
Section 3.10(b) hereof "Bonds" shall include any Debt as described in such Section.
"Authorized Denominations" shall mean $100,000 and integral multiples of $5,000 in
excess of $100,000.
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"Authorized City Representative" shall mean the individual officer or officers of the City
designated to act on behalf of the City under the Resolution, pursuant to a certificate of the City
Manager delivered on the date of issuance and delivery of the Bonds, as the same may be
modified or amended in writing from time to time with any amendment or modification being filed
with the City Clerk and the Bond Registrar.
"Authorized Depository" shall mean any bank, trust company, national banking
association, savings and loan association, savings bank or other banking association selected
by the City as a depository, which is authorized under Florida law to be a depository of
municipal funds and which has complied with all applicable state and federal requirements
concerning the receipt of City funds.
"Bond Fund" shall mean the City of Miami Special Obligation Non -Ad Valorem Revenue
Refunding Bonds, Series 2012 (Port of Miami Tunnel Project) Bond Fund, created and
established pursuant to Section 3.04(b) of the Resolution.
"Bondholder," "Holder," "Holder of Bonds" or "Owner" or any similar term, shall mean any
person who shall be the registered owner of any Outstanding Bond or Bonds.
"Bond Insurance Policy" shall mean the financial guaranty insurance policy to be issued
by a bond insurer guaranteeing the payment when due of the principal of and interest on the
Bonds as provided therein.
"Bond Purchase Agreement" shall mean the Bond Purchase Agreement to be entered
into between the City and the Underwriter providing for the sale of the Bonds to the Underwriter.
"Bond Registrar" shall mean U.S. Bank National Association, or any successor thereto.
"Bonds" shall mean the City of Miami, Florida Special Obligation Non -Ad Valorem
Revenue Refunding Bonds, Series 2012 (Port of Miami Tunnel Project), in an aggregate
principal amount not to exceed $50,000,000.
"Chief Financial Officer" shall mean the Chief Financial Officer of the City or the officer
succeeding to the principal functions of the Chief Financial Officer.
"City" shall mean the City of Miami, Florida.
"City Attorney" shall mean the City Attorney of the City, any Deputy City Attorney or
Assistant City Attorney designated by the City Attorney or the officer succeeding to the principal
functions of the City Attorney.
"City Clerk" shall mean the City Clerk of the City, any Deputy City Clerk or the City
Clerk's designee or the officer succeeding to the principal functions of the City Clerk.
"City Manager" shall mean the City Manager of the City, any Assistant City Manager or
other designee of the City Manager or the officer succeeding to the principal functions of the
City Manager.
"City Manager's Certificate" means the certificate dated the date of the sale of the Bonds
to be executed by the City Manager, which certificate shall provide certain details of the Bonds
as required by this Resolution.
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"Code" shall mean the Internal Revenue Code of 1986, as amended, and all temporary,
proposed or permanent implementing regulations promulgated or applicable thereunder.
"Commission" shall mean the City Commission of the City.
"Continuing Disclosure Agreement" shall mean the Continuing Disclosure Agreement
described in Section 2,12 hereof and any disclosure dissemination agent agreement to be
entered into between the City and the Disclosure Dissemination Agent as provided in Section
2.12. •
"Debt" shall have the meaning set forth in Section 3.10(b) hereof.
"Director of Finance" shall mean the Director of Finance of the City or his or her
designee or the officer succeeding to his or her principal functions; provided, however; that if at
any time there is no person serving in the capacity of Director of Finance, then the duties and
obligations of the Director of Finance under this Resolution shall be performed by the Chief
Financial Officer or such other officer of the City designated by the City Manager to perform the
same.
"Disclosure Dissemination Agent" shall mean Digital Assurance Certification, L.L.C., or
such other Disclosure Dissemination Agent as the City may designate from time to time.
"DTC" shall mean The Depository Trust Company, New York, New York.
"Financial Advisor" shall mean Public Financial Management, Inc., financial advisor to
the City in connection with the issuance of the Bonds.
"Fiscal Year" shall mean that period commencing on October 1 and continuing to and
including the next succeeding September 30, or such other annual period as may be prescribed
by law or by the City in accordance with law.
"Fitch" shall mean Fitch Ratings, its successors and assigns, and if such entity no longer
performs the functions of a securities rating agency, "Fitch" shall refer to any other nationally
recognized securities rating agency designated by the City in a written certificate filed with the
City Clerk.
"Government Obligations" means:
(a) Direct obligations of, or obligations guaranteed by, the United States of
America;
(b) Any bonds or other obligations of any state of the United States of
America or of any agency, instrumentality or local governmental unit of any such state (i)
which are not callable prior to maturity or as to which irrevocable instructions have been
given to the trustee of such bonds or other obligations by the obligor to give due notice
of redemption and to call such bonds for redemption on the date or dates specified in
such instructions, (ii) which are secured as to principal and interest and redemption
premium, if any, by a fund consisting only of cash or bonds or other obligations of the
character described in clause (a) hereof which fund may be applied only to the payment
of such principal of and interest and redemption premium, if any, on such bonds or other
obligations on the maturity date or dates thereof or the redemption date or dates
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specified in the irrevocable instructions referred to in subclause (i) of this clause (b), as
appropriate, and (iii) as to which the principal of and interest on the bonds and
obligations of the character described in clause (a) hereof which have been deposited in
such fund along with any cash on deposit in such fund are sufficient to pay principal of
and interest and redemption premium, if any, on the bonds or other obligations
described in this clause (b) on the maturity date or dates thereof or on the redemption
date or dates specified in the irrevocable instructions referred to in subclause (i) of this
clause (b), as appropriate;
(c) Evidences of indebtedness issued by the Federal Home Loan Banks,
Federal Home Loan Mortgage Corporation (including participation certificates), Federal
Financing Banks, or any other agency or instrumentality of the United States of America
created by an act of Congress provided that the obligations of such agency or
instrumentality are unconditionally guaranteed by the United States of America or any
other agency or instrumentality of the United States of America or of any corporation
wholly -owned by the United States of America; and
(d) Evidences of ownership of proportionate interests in future interest and
principal payments on obligations described in (a) held by a bank or trust company as
custodian.
"Interest Payment Date" shall mean such dates of each Fiscal Year on which interest is
payable on any Bonds that are Outstanding, as set forth in the City Manager's Certificate.
"Limited Offering Memorandum" shall mean the final Limited Offering Memorandum with
respect to the Bonds.
"Maximum Annual Debt Service" shall mean, at any time and with respect to all of the
Bonds, the greatest Annual Debt Service Requirement in the then current or any succeeding
Fiscal Year.
"Mayor" shall mean the Mayor of the City or the officer succeeding to his or her principal
functions.
"Moody's" shall mean Moody's Investors Services, Inc., its successors and assigns, and
if such entity no longer performs the functions of a securities rating agency, "Moody's" shall refer
to any other nationally recognized securities rating agency designated by the City in a written
certificate filed with the City Clerk.
"Non -Ad Valorem Revenues" shall mean all revenues of the City derived from any
source whatsoever, other than ad valorem taxation on real or personal property, which are
legally available to make the payments required herein.
"Note" shall mean the City's Revenue Note, Series 2010 (Port of Miami Tunnel and
Access Improvement Project), outstanding in the aggregate principal amount of $45,000,000.
"Omni CRA" shall mean the Community Redevelopment Agency for the Omni
Community Redevelopment District, created pursuant to Resolution 86-868 of the City and
Ordinance 87-47 of Miami -Dade County, Florida, as the geographic boundaries of the same
may be expanded or contracted from time to time in accordance with applicable law.
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"Outstanding" when used with reference to the Bonds, shall mean, as of any date of
determination, all Bonds theretofore authenticated and delivered except:
(a) Bonds theretofore canceled by the Bond Registrar or delivered to the
Bond Registrar for cancellation;
(b) Bonds which are deemed paid and no longer Outstanding as provided
herein;
(c) Bonds in lieu of which other Bonds have been issued pursuant to the
provisions hereof relating to Bonds destroyed, stolen or lost, unless evidence
satisfactory to the Bond Registrar has been received that any such Bond is held by a
bona fide purchaser; and
(d) For purposes of any consent or other action to be taken hereunder by the
Holders of a specified percentage of principal amount of Bonds, Bonds held by or for the
account of the City.
"Permitted Investments" shall mean and include such obligations as shall be permitted to
be legal investments of the City by the laws of the State.
"Pledged Funds" shall mean, collectively, all moneys, securities and instruments held in
the Bond Fund and the Accounts (and subaccounts) therein created and established by this
Resolution for the Bonds, except the Rebate Account.
"Preliminary Limited Offering Memorandum" shall mean the Preliminary Limited Offering
Memorandum with respect to the Bonds.
"Provider" shall mean the provider of a Bond Insurance Policy and/or a Reserve Account
Insurance Policy.
"Qualified Institutional Buyers" shall mean "qualified institutional buyers" as defined in
Rule 144A promulgated under the Securities Act of 1933, as amended.
"Rebate Amount" shall have the meaning assigned to such term in Section 3.04(g) of
this Resolution.
"Regular Record Date" shall have the meaning assigned to such term in Section 2.02 of
this Resolution.
"Reserve Account Insurance Policy" shall mean the insurance policy, surety bond or
other acceptable evidence of insurance, if any, deposited in the Debt Service Reserve Account
in lieu of or in partial substitution for cash or securities on deposit therein. The issuer providing
such insurance shall be a municipal bond insurer rated, at the time of deposit in the Debt
Service Reserve Account, in any of the two highest rating categories of Moody's, Standard &
Poor's or Fitch.
"Reserve Account Requirement" shall mean with respect to the Bonds, an amount up to
the lesser of (i) the Maximum Annual Debt Service on all Bonds Outstanding, (ii) 125% of the
average Annual Debt Service Requirement on all Bonds Outstanding, or (iii) 10% of the
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proceeds of the Bonds within the meaning of the Code, as shall be determined by the City
Manager at the time of sale of the Bonds and set forth in the City Manager's Certificate.
"Resolution" shall mean this Resolution as the same may from time to time be further
amended and supplemented in accordance with the terms hereof.
"Serial Bonds" shall mean the Bonds which shall be stated to mature in annual or semi-
annual installments but not including Term Bonds.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a business of
Standard & Poor's Financial Services LLC, its successors and assigns, and if such entity no
longer performs the functions of a securities rating agency, "Standard & Poor's" shall refer to
any other nationally recognized securities rating agency designated by the City in a written
certificate filed with the City Clerk.
"State" shall mean the State of Florida.
"Subaccount" shall mean any one or more subaccount, as the context may require,
created and established in an Account under this Resolution.
"Term Bonds" shall mean the Bonds which shall be stated to mature on one date and for
the amortization of which Amortization Requirements are required to be deposited into the Bond
Redemption Subaccount in the Debt Service Account.
"Tunnel Project" shall mean the acquisition, construction and reconstruction by the
Florida Department of Transportation of the Port of Miami Tunnel and Access Improvement
Project, as provided in the Omni CRA Community Redevelopment Plan.
"Underwriter" shall mean Wells Fargo Bank, National Association.
Words importing the singular number shall include the plural number in each case and
vice versa. Words defined in Section 1.01 hereof that appear in this Resolution in lower case
form shall have the meanings ascribed to them in the definitions in Section 1.01 unless the
context shall otherwise indicate. The word "person" shall include corporations and associations,
including public bodies, as well as natural persons, unless the context shall otherwise indicate.
The word "Bond" or "Bonds" shall mean any Bond or Bonds or all of the Bonds, as the case may
be, issued under the provisions of this Resolution.
Whenever in this Resolution the City is required or permitted to take action or perform an
act, such action or act shall be taken or performed by an appropriate Authorized City
Representative, unless such action or act by its nature must be taken or performed by the
Commission.
SECTION.1.02. Authority for this Resolution. This Resolution is adopted pursuant to
the provisions of the Act.
SECTION 1.03. Findings. It is hereby ascertained, determined and declared:
(a) The recitals to this Resolution are incorporated herein as findings.
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(b) The issuance of the Bonds to refinance the Note with the proceeds thereof and
any other available moneys will serve a valid public and municipal purpose in accordance with
the Act.
(c) The principal of and interest on the Bonds and all required debt service, reserve
and other payments shall be secured solely by and payable from the Pledged Funds. None of
the City, the State or any political subdivision thereof shall ever be required to levy ad valorem
taxes to pay the principal of or interest on the Bonds or to make any of the debt service, reserve
or other payments required by this Resolution or the Bonds, and the Bonds shall not constitute a
lien upon any property owned by or situated within the corporate territory of the City, except as
provided herein with respect to the Pledged Funds.
(d) In accordance with Section 218.385(1), Florida Statutes, as amended, the
Commission hereby finds, determines and declares, based upon the advice of the Financial
Advisor, that a negotiated sale of the Bonds is in the best interest of the City for the following
reasons:
(i) the complex structure and timing of the issuance of the Bonds and the
refinancing of the Note require extensive planning, and it is not practical for the City and
the Financial Advisor to engage in such planning within the time constraints and
uncertainties inherent in a competitive bidding process; and
(ii) it is necessary to be able to sell the Bonds when market conditions are
most favorable in order to attain the most favorable interest rates on the Bonds; the
vagaries of the current and near future municipal bond market demand that the
Underwriter have the maximum time and flexibility to price and market the Bonds, in
order to obtain the most favorable interest rates available.
(e) It is in the best interest of the City to offer and sell the Bonds to Qualified
Institutional Buyers and subject to the restrictions on transfer described in this Resolution.
SECTION 1.04. Resolution Constitutes Contract. In consideration of the acceptance of
the Bonds authorized to be issued hereunder by those who shall own the same from time to
time, this Resolution shall be deemed to be and shall constitute a contract between the City and
such Bondholders, and the covenants and agreements herein set forth to be performed by the
City shall be for the equal benefit, protection and security of the owners of any and all of such
Bonds, all of which shall be of equal rank and without preference, priority, or distinction of any of
the Bonds over any other thereof except as expressly provided therein and herein.
[END OF ARTICLE I]
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ARTICLE II
AUTHORIZATION AND DETAILS OF BONDS AND CERTAIN DOCUMENTS
SECTION 2.01. Authorization of Bonds and Refinancing of Note. The refinancing of the
Note is hereby authorized. Subject and pursuant to the provisions of this Resolution, bonds of
the City to be known as "Special Obligation Non -Ad Valorem Revenue Refunding Bonds, Series
2012 (Port of Miami Tunnel Project) (the "Bonds"), .are hereby authorized to be issued in an
aggregate principal amount not to exceed Fifty Million Dollars ($50,000,000), for the purpose of,
together with any other available moneys, (i) refinancing the Note, including the payment of
accrued interest, . (ii) funding a deposit to the Debt Service Reserve Account or paying the
premium for a Reserve Account Insurance Policy for the Bonds, and (iii) paying certain costs of
issuance of the Bonds, including if necessary, the premium for a Bond Insurance Policy.
Subject to the limitations contained herein, the Bonds shall be issued in such aggregate
principal amount, shall be dated, shall mature on such date or dates, but not later than
September 30, 2030, and in such principal amounts, shall be in the form of Serial Bonds or
Term Bonds or a combination thereof, shall have such semi-annual Interest Payment Dates,
shall bear interest at such rates not to exceed the maximum rate permitted by law (subject to
the Maximum TIC stated in Section 2.10 hereof), with respect to any Term Bonds shall have
such Amortization Requirements, shall have a Reserve Account Requirement and shall be
subject to redemption at such times and at such prices, all as shall be determined by the City
Manager, after consultation with the Director of Finance and the Financial Advisor, and set forth
in the City Manager's Certificate.
The Commission hereby appoints U.S. Bank National Association, as Bond Registrar for
the Bonds.
SECTION 2.02. Certain Details of Bonds. The Bonds shall be issued as fully registered
bonds in Authorized Denominations. The Bonds shall be numbered consecutively from 1
upward and preceded by the letter "R".
The principal of and redemption premium, if any, on the Bonds shall be payable upon
presentation and surrender at the designated corporate trust office of the Bond Registrar.
Interest on the Bonds shall be paid on each Interest Payment Date by check or draft drawn
upon the Bond Registrar and mailed to the Holders of the Bonds at the addresses as they
appear on the registration books maintained by the Bond Registrar at the close of business on
the 15th day (whether or not a business day) of the month next preceding the Interest Payment
Date (the "Regular Record Date"); provided, however, that (i) if ownership of Bonds is
maintained in a book -entry only system by a securities depository, such payment may be made
by automatic funds transfer to the securities depository or its nominee or (ii) if such Bonds are
not maintained in a book -entry only system by a securities depository, upon written request of
the Holder of $1,000,000 or more in principal amount of Bonds, such payments may be made
by wire transfer to the bank and bank account specified in writing by such Holder (such bank
being a bank within the continental United States), if such Holder has advanced to the Bond
Registrar the amount necessary to pay the cost of such_ wire transfer or authorized the Bond
Registrar to deduct the cost of such wire transfer from the payment due to such Holder.
Notwithstanding anything in this paragraph to the contrary, any interest not punctually paid on a
Regular Record Date shall forthwith cease to be payable to the Holder on such Regular Record
Date and may be paid at the close of business on a special record date for the payment of such
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defaulted interest to be fixed by the Bond Registrar, notice of which shall be given not less than
10 days prior to such special record date to such Holder.
SECTION 2.03. Redemption Provisions. The Bonds may be subject to redemption prior
to maturity at such times, at such redemption prices and upon such terms in addition to the
terms contained in this Resolution as may be set forth in the City Manager's Certificate,
provided that any optional redemption premium shall not exceed two percent (2%). The
optional redemption of the Bonds, if any, may be conditioned upon the receipt by the Bond
Registrar of sufficient moneys to pay the redemption price of the Bonds to be redeemed.
Notice of redemption for Bonds being redeemed shall be given by deposit in the U.S.
mail of a copy of a redemption notice, postage prepaid, at least thirty (30) days before the
redemption date, to all registered owners of the Bonds or portions of the Bonds to be redeemed
at their addresses as they appear on the registration books to be maintained in accordance with
the provisions hereof. Failure to mail any such notice to a registered owner of a Bond, or any
defect therein, shall not affect the validity of the proceedings for redemption of any Bond or
portion thereof with respect to which no failure or defect occurred. Such notice shall set forth
the date fixed for redemption, the rate of interest borne by each Bond being redeemed, the
name and address of the Bond Registrar, the redemption price to be paid and, if less than all of
the Bonds then Outstanding shall be called for redemption, the distinctive numbers and letters,
including CUSIP numbers, if any, of such Bonds to be redeemed and, in the case of Bonds to
be redeemed in part only, the portion of the principal amount thereof to be redeemed. If any
Bond is to be redeemed in part only, the notice of redemption which relates to such Bond shall
also state that on or after the redemption date, upon surrender of such Bond, a new Bond or
Bonds in a principal amount equal to the unredeemed portion of such Bond and in an
Authorized Denomination will be issued. If the optional redemption of any of the Bonds is
conditioned upon the receipt of sufficient moneys as described above, the notice of redemption
which relates to such Bonds shall also state that the redemption is so conditioned.
Any notice mailed as provided in this section shall be conclusively presumed to have
been duly given, whether or not the owner of such Bond receives such notice.
Notice having been given in the manner and under the conditions hereinabove provided,
the Bonds or portions of Bonds so called for redemption shall, on the redemption date
designated in such notice, become and be due and payable at the redemption price provided for
redemption for such Bonds or portions of Bonds on such date; provided, however, that Bonds or
portion of Bonds called for optional redemption and which redemption is conditioned upon the
receipt of sufficient moneys as described above, shall not become due and payable on the
redemption date if sufficient moneys to pay the redemption price of such Bonds or portions of
Bonds have not been received by the Bond Registrar on or prior to the redemption date. On the
date so designated for redemption, moneys for payment of the redemption price being held in
separate accounts by the Bond Registrar in trust for the registered owners of the Bonds or
portions thereof to be redeemed, all as provided in this Resolution, interest on the Bonds or
portions of Bonds so called for redemption shall cease to accrue, such Bonds and portions of
Bonds shall cease to be entitled to any lien, benefit or security under this Resolution and shall
be deemed paid hereunder, and the registered owners of such Bonds or portions of Bonds shall
have no right in respect thereof except to receive payment of the redemption price thereof and,
to the extent provided below, to receive Bonds in Authorized Denominations for any
unredeemed portions of the Bonds.
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In case part but not all of a Bond shall be selected for redemption, the registered owners
thereof shall present and surrender such Bond to the Bond Registrar for payment of the
principal amount thereof so called for redemption, and the City shall execute and deliver to or
upon the order of such registered owner, without charge therefor, for the unredeemed balance
of the principal amount of the Bonds so surrendered, a Bond or Bonds in Authorized
Denominations fully registered as to principal and interest.
SECTION 2.04. Execution of Bonds. The Bonds shall be executed in the name of the
City by the City Manager and the seal of the City shall be imprinted, reproduced or lithographed
on the Bonds and attested to and countersigned by the City Clerk. In addition, the City Attorney
shall sign the Bonds, showing approval of the form and correctness thereof. The signatures of
the City Manager, the City Clerk and the City Attorney on the Bonds may be by facsimile. If any
officer whose signature appears on the Bonds ceases to hold office before the delivery of the
Bonds, his signature shall nevertheless be valid and sufficient for all purposes. In addition, any
Bond may bear the signature of, or may be signed by, such persons as at the actual time of
execution of such Bond shall be the proper officers to sign such Bond, although at the date of
such Bond or the date of delivery thereof such persons may not have been such officers.
The Bonds shall bear thereon a certificate of authentication, in the form set forth in
Exhibit A hereto, executed manually by the Bond Registrar. Only such Bonds as shall bear
thereon such certificate of authentication shall be entitled to any right or benefit under this
Resolution and no Bond shall be valid or obligatory for any purpose until such certificate of
authentication shall have been duly executed by the Bond Registrar. Such certificate of the
Bond Registrar upon any Bond executed on behalf of the City shall be conclusive evidence that
the Bond so authenticated has been duly authenticated and delivered under this Resolution and
that the Holder thereof is entitled to the benefits of this Resolution.
SECTION 2.05. Negotiability, Registration and Cancellation. The provisions of this
Section 2.05 are subject in all respects to the provisions of Section 2.09 hereof, for so long as
the Bonds are issued and maintained as uncertificated securities through DTC's book -entry only
system. At the option of the Holder thereof and upon surrender thereof at the designated
corporate trust office of the Bond Registrar with a written instrument of transfer satisfactory to
the Bond Registrar duly executed by the Holder or his duly authorized attorney and upon
payment by such Holder of any charges which the Bond Registrar or the City may make as
provided in this Section, the Bonds may be exchanged for Bonds of the same series, aggregate
principal amount of the same maturity of any other Authorized Denominations.
The Bond Registrar shall keep books for the registration of Bonds and for the registration
of transfers of Bonds. The Bonds shall be transferable by the Holder thereof in person or by his
attorney duly authorized in writing only to a Qualified Institutional Buyer upon the books of the
City kept by the Bond Registrar and only upon surrender thereof together with a written
instrument of transfer satisfactory to the Bond Registrar duly executed by the Holder or his duly
authorized attorney. Upon the transfer -of any such Bond, the City shall cause to be issued in
the name of the transferee (which must be a Qualified Institutional Buyer) a new Bond or Bonds.
The City, the Bond Registrar and any other fiduciaries may deem and treat the person in
whose name any Bond shall be registered upon the books kept by the Bond Registrar as the
absolute Holder of such Bond, whether such Bond shall be overdue or not, for the purpose of
receiving payment of, or on account of, the principal of, redemption premium, if any, and interest
on such Bond as the same becomes due and for all other purposes. All such payments so
made to any such Holder or upon his order shall be valid and effectual to satisfy and discharge
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the liability upon such Bond to the extent of the sum or sums so paid, and neither the City, the
Bond,Registrar nor any other fiduciary shall be affected by any notice to the contrary.
In all cases in which the privilege of exchanging Bonds or transferring Bonds is
exercised, the City shall execute and the Bond Registrar shall authenticate and deliver Bonds in
accordance with the provisions of this Resolution. All Bonds surrendered in any such
exchanges or transfers shall forthwith be delivered to the Bond Registrar and canceled by the
Bond Registrar in the manner provided in this Section. There shall be no charge for any such
exchange or transfer of Bonds, but the City or the Bond Registrar may require the payment of a
sum sufficient to pay any tax, fee or other governmental charge required to be paid with respect
to such exchange or transfer. Neither the City nor the Bond Registrar shall be required (a) to
transfer or exchange Bonds for a period of 15 days next preceding any selection of Bonds to be
redeemed or thereafter until after the mailing of any notice of redemption; or (b) to transfer or
exchange any Bonds called for redemption.
All Bonds paid or redeemed, either at or before maturity shall be delivered to the Bond
Registrar when such payment or redemption is made, and such Bonds, together with all Bonds
purchased by the City, shall thereupon be promptly canceled. Bonds so canceled may at any
time be destroyed by the Bond Registrar, who shall execute a certification of destruction in
duplicate by the signature of one of its authorized officers describing the Bonds so destroyed,
and one executed certificate shall be filed with the City and the other executed certificate shall
be retained by the Bond Registrar.
SECTION 2.06. Bonds Mutilated, Destroyed, Stolen or Lost. In case any Bond shall
become mutilated, destroyed, stolen or lost, the City may execute and the Bond Registrar shall
authenticate and deliver a new Bond, with such maturity, Authorized Denomination and interest
rate as the Bond so mutilated, destroyed, stolen or lost; provided that, in the case of any
mutilated Bond, such mutilated Bond shall first be surrendered to the City and, in the case of
any lost, stolen or destroyed Bond, there shall first be furnished to the City and the Bond
Registrar evidence of such loss, theft, or destruction satisfactory to the City and the Bond
Registrar, together with indemnity satisfactory to them. In the event any such Bond shall be
about to mature or has matured or has been called for redemption, instead of issuing a
duplicate Bond, the City may direct the Bond Registrar to pay the same without surrender
thereof. The City and Bond Registrar may charge the Holder of such Bonds their reasonable
fees and expenses in connection with this transaction. Any Bond surrendered for replacement
shall be canceled in the same manner as provided in Section 2.05 hereof.
Any such duplicate Bonds issued pursuant to this Section shall constitute additional
contractual obligations on the part of the City, whether or not the lost, stolen or destroyed Bonds
be at any time found by anyone, and such duplicate Bonds shall be entitled to equal and
proportionate benefits and rights as to lien on and source and security for payment from the
applicable Pledged Funds, with all other Bonds issued hereunder.
SECTION 2.07. Preparation of Definitive Bonds; Temporary Bonds. The definitive
Bonds shall be lithographed, printed or typewritten. Until the definitive Bonds are prepared, the
City Manager and City Clerk may execute and the Bond Registrar may authenticate, in the
same manner as is provided in Section 2.04, and deliver, in lieu of definitive Bonds, but subject
to the same provisions, limitations and conditions as the definitive Bonds, one or more printed,
lithographed or typewritten temporary fully registered Bonds, substantially of the tenor of the
definitive Bonds in lieu of which such temporary Bond or Bonds are issued, in Authorized
Denominations, and with such omissions, insertions and variations as may be appropriate to
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such temporary Bonds. The City at its own expense shall prepare and execute and, upon the
surrender at the designated corporate trust office of the Bond Registrar of such temporary
Bonds for which no payment or only partial payment has been provided, the Bond Registrar
shall authenticate and, without charge to the Holder thereof, deliver in exchange therefor, at the
principal corporate trust office of the Bond Registrar, definitive Bonds of the same aggregate
principal amount and maturity as the temporary Bonds surrendered. Until so exchanged, the
temporary Bonds shall in all respects be entitled to the same benefits and security as definitive
Bonds issued pursuant to this Resolution.
SECTION 2.08. Form of Bonds. (a) The text of the Bonds shall be of the tenor set forth
in Exhibit A to this Resolution, with such omissions, insertions and variations as may be
necessary and desirable and authorized or permitted by this Resolution.
(b) Every Bond authenticated and delivered under this Resolution, including any
issued upon transfer, exchange or replacement of such Bond, shall be issued and delivered
only to Qualified Institutional Buyers, and each Bond shall bear on its face a legend stating such
restriction in substantially the following form:
THIS BOND IS SUBJECT TO TRANSFER RESTRICTIONS. THE INITIAL PURCHASER
HEREOF AND ANY SUBSEQUENT TRANSFEREE, BY PURCHASING THIS BOND, AGREES
FOR THE BENEFIT OF THE CITY OF MIAMI, FLORIDA, THAT THIS BOND MAY BE
TRANSFERRED, RESOLD OR ASSIGNED ONLY TO ANOTHER QUALIFIED
INSTITUTIONAL BUYER. NOTWITHSTANDING ANYTHING IN THE RESOLUTION OR THIS
BOND TO THE CONTRARY, NO TRANSFER, RESALE OR ASSIGNMENT OF THIS BOND
SHALL BE EFFECTIVE UNLESS THE TRANSFER, RESALE OR ASSIGNMENT OF THIS
BOND IS TO ANY PURCHASER, TRANSFEREE, ASSIGNEE OR PARTICIPANT THAT IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A PROMULGATED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THIS BOND HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS. ANY TRANSFER, RESALE, ASSIGNMENT OR OTHER DISPOSITION
OF THIS BOND, OR ANY PARTICIPATION HEREIN, SHALL BE IN EACH CASE ONLY IN A
MANNER THAT DOES NOT VIOLATE THE SECURITIES ACT OF 1933, AS AMENDED, AND
THE RULES AND REGULATIONS PROMULGATED THEREUNDER, OF ANY APPLICABLE
STATE SECURITIES LAWS. THIS BOND SHALL BE ISSUED AND SOLD, AND MAY ONLY
BE TRANSFERRED, IN DENOMINATIONS OF $100,000 OR ANY INTEGRAL MULTIPLE OF
$5,000 IN EXCESS OF $100,000.
SECTION 2.09. Book -Entry Only System for the Bonds; Qualification for DTC. (a)
During any and all times that the Bonds are registered in the name of any securities depository
pursuant to a book -entry only system of registration, such securities depository shall for all
purposes under this Resolution be considered the registered owner of such Bonds and all
references herein to the registered owners or holders shall mean such securities depository.
The City, the Paying Agent and the Bond Registrar shall not have any obligation with respect to
any depository participant or beneficial owner of the Bonds during such time as the Bonds are
registered in the name of a securities depository pursuant to a book -entry only system of
registration.
(b) The Bonds shall initially be issued as uncertificated securities through the book -
entry only system maintained by DTC. The City and the Bond Registrar are hereby authorized
to take such actions as may be necessary to qualify the Bonds for deposit with DTC, including
but not limited to those actions as are set forth in the letter of representations between the City
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and DTC, 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 notices with respect to Bonds registered by DTC (or any of its designees identified
to the City and the Bond Registrar) by overnight delivery, courier service, telegram, telecopy or
other similar means of communication.
(c) While the Bonds are registered in the name of Cede & Co., as nominee of DTC,
or otherwise held pursuant to a book -entry only system maintained by another depository, the
City, the Bond Registrar and the Paying Agent shall have no responsibility or obligation to any
DTC participant (or any participant of such other depository) or to any beneficial owner (the
"Beneficial Owner") of such Bonds. Without limiting the immediately preceding sentence, the
City, the Bond Registrar and the Paying Agent shall have no responsibility or obligation with
respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC participant (or any
such other depository) with respect to any beneficial ownership interest in the Bonds, (ii) the
delivery to any DTC participant, any Beneficial Owner or any other person, other than DTC (or
any such other depository), of any notice with respect to such Bonds, including any notice of
redemption, or (iii) the payment to any DTC participant, any Beneficial Owner or any other
person, other than DTC (or any such other depository), of any amount with respect to principal
of, redemption premium, if any, or interest on the Bonds. Notwithstanding any other provision of
this Resolution to the contrary, the City, the Bond Registrar and the Paying Agent shall be
entitled to treat and consider DTC (or any such other depository) as the absolute owner of such
Bonds for the purpose of payment of principal of, redemption premium, if any, and interest on
such Bonds, for the purpose of giving notices of redemption and other matters with respect to
such Bonds, for the purpose of registering transfers with respect to such Bonds, and for all other
purposes whatsoever. The Paying Agent shall pay all principal of, redemption premium, if any,
and interest on such Bonds only to or upon the order of DTC (or any such other depository then
in effect) and all such payments shall be valid and effective to fully satisfy and discharge the
City's obligations with respect to payment of principal of, redemption premium, if any, and
interest on such Bonds to the extent of the sum or sums so paid. No person other than DTC (or
any such other depository then in effect) shall receive Bonds evidencing the obligation of the
City to make payments of amounts due pursuant to this Resolution. Upon delivery by DTC (or
any such other depository then in effect) to the City of written notice to the effect that DTC (or
any such other depository then in effect) has determined to substitute a new nominee in place of
an existing nominee, and subject to the provisions in this Resolution with respect to interest
checks or drafts being mailed to the Registered Owners at the close of business on the Record
Date, the name of the existing nominee in this Resolution shall refer to such new nominee.
(d) (1) The securities depository may determine to discontinue providing its
services with respect to the Bonds at any time by giving written notice to the City and the Bond
Registrar and discharging its responsibilities with respect thereto under applicable law.
(2) The City, in its sole discretion and without the consent of any other
person, may terminate the services of a securities depository with respect to the Bonds if
the City determines that the continuation of the system of book -entry -only transfers
through such securities depository is not in the best interests of the Beneficial Owners of
the Bonds or is burdensome to the City, and shall terminate the services of such
securities depository with respect to the Bonds upon receipt by the City and the Bond
Registrar of written notice from the depository to the effect that it has received written
notice from its participants having interest, as shown in the records of the depository, in
an aggregate principal amount of not less than fifty percent (50%) of the Bonds that: (i)
the depository is unable to discharge its responsibilities with respect to the Bonds; or (ii)
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a continuation of the requirement that all of the Outstanding Bonds be registered in the
registration books kept by the Bond Registrar in the name of the depository's nominee is
not in the best interest of the Beneficial Owners of the Bonds.
(3) Upon the termination of the services of the depository with respect to the
Bonds pursuant to subsection (d)(2)(ii) hereof, or upon the discontinuance or termination
of the services of the depository with respect to the Bonds pursuant to subsection (d)(1)
or subsection (d)(2)(i) hereof after which no substitute securities depository willing to
undertake the functions of the existing depository hereunder can be found which, in the
opinion of the City, is willing and able to undertake such functions upon reasonable and
customary terms, such Bonds shall no longer be restricted to being registered in the
registration books kept by the Bond Registrar in the name of the depository's nominee.
In such event, the City shall issue and the Bond Registrar shall authenticate bond
certificates as requested by the depository of the like principal amount in Authorized
Denominations to the identifiable Beneficial Owners in replacement of such Beneficial
Owners' beneficial interest in the Bonds.
(4) Notwithstanding any other provisions of this Resolution to the contrary, so
long as the Bonds are registered in the name of the depository's nominee, all payments
with respect to the principal of, redemption premium, if any, and interest on such Bonds
and all notices with respect to such Bonds shall be made and given, respectively, to
such depository as provided in the representation letter (or other similar document
required by the depository) of the City and the Bond Registrar addressed to the
depository with respect to such Bonds.
(5) In connection with any notice or other communication to be provided to
Bondholders pursuant to this Resolution by the City or the Bond Registrar with respect to
any consent or other action to be taken by Bondholders, the City or the Bond Registrar,
as the case may be, shall establish a record date for such consent or other action and
give the securities depository notice of such record date not less than fifteen (15)
calendar days in advance of such record date to the extent possible.
SECTION 2.10. Negotiated Sale; Bond Purchase Agreement. The negotiated sale of
the Bonds to the Underwriter is hereby authorized at a purchase price (not including original
issue premium or original issue discount) of not less than 97.5% of the aggregate principal
amount of the Bonds then issued (the "Minimum Purchase Price") and at a true interest cost
rate ("TIC") not to exceed 4.75% (the "Maximum TIC"). The City Manager, after consultation
with the Director of Finance and the Financial Advisor, is hereby authorized to award the Bonds
to the Underwriter at one time or separately at,a purchase price of not less than the Minimum
Purchase Price and at a TIC not in excess of the Maximum TIC, with the actual purchase price
and TIC to be set forth in the City Manager's Certificate. The execution and delivery of a Bond
Purchase Agreement for and on behalf of the City by the City Manager shall be conclusive
evidence of the City's acceptance of the Underwriter's proposal to purchase such Bonds.
Upon compliance by the Underwriter with the requirements of Section 218.385(2) and
(3), Florida Statutes, and Section 218.385(6), Florida Statutes, by filing the "truth -in -bonding
statement" and the "disclosure statement" required by said statutory provisions, the City
Manager is hereby authorized to execute and the City Clerk is hereby authorized to attest to,
seal and deliver the Bond Purchase Agreement in substantially the form attached hereto as
Exhibit "B", subject to such changes, insertions and omissions and such filling in of blanks
therein as may be approved by the City Manager upon the advice of the City Attorney and Bond
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Counsel. The execution, attestation and delivery of such Bond Purchase Agreement, as
described herein, shall be conclusive evidence of the City's approval of any such
determinations, changes, insertions, omissions or filling in of blanks.
SECTION 2.11. Preliminary Limited Offering Memorandum; Limited Offering
Memorandum; Limited Offering. The use of a Preliminary Limited Offering Memorandum in
connection with the marketing of the Bonds to Qualified Institutional Buyers as described below
is hereby authorized. The Preliminary Limited Offering Memorandum in substantially the form
attached hereto as Exhibit "C" is hereby approved subject to such changes, insertions and
omissions and such filling in of blanks therein as may be approved by the City Manager. The
City Manager is hereby authorized to approve and execute, on behalf of the City, the Limited
Offering Memorandum relating to the Bonds with such changes from the Preliminary Limited
Offering Memorandum, within the authorizations and limitations contained herein, as the City
Manager in consultation with the City Attorney, Bond Counsel and the City's Disclosure Counsel
in his sole discretion, may approve, such execution to be conclusive evidence of such approval.
The City Manager is hereby authorized to provide for the printing of the Preliminary Limited
Offering Memorandum and the Limited Offering Memorandum by the lowest and most
responsive bidder therefor and the payment of the cost of such printing is hereby authorized to
be paid from the proceeds of the Bonds.
The City Manager is hereby further authorized to execute and deliver on behalf of the
City any supplement or amendment to the Preliminary Limited Offering Memorandum or the
Limited Offering Memorandum as may be required under the provisions of the Bond Purchase
Agreement or otherwise to comply with the federal securities laws, after consultation with the
City Attorney, Bond Counsel and the City's Disclosure Counsel.
The. Bonds shall be offered and sold only to purchasers reasonably believed by the
Underwriter to be Qualified Institutional Buyers, and each initial purchaser of the Bonds (for this
purpose excluding the Underwriter, but including all persons purchasing Bonds in the initial
offering through the Underwriter) shall execute and deliver at closing an investor letter
substantially in the form set forth as an exhibit to the Bond Purchase Agreement.
SECTION 2.12. Continuing Disclosure. For the benefit of the Holders and beneficial
owners from time to time of the Bonds, the City agrees to provide or cause to be provided
certain continuing disclosure consisting of financial information and operating data, financial
statements and notices. In order to describe and specify the terms of the City's continuing
disclosure commitment, including provisions for enforcement, amendment and termination, the
City Manager is hereby authorized and directed to sign and deliver, in the name and on behalf
of the City, the Continuing Disclosure Agreement, in substantially the form attached hereto as
Exhibit "D," subject to such changes, modifications, insertions and omissions and such filling in
of blanks therein as may be approved by the City Manager, after consultation with the City
Attorney and the City's disclosure counsel. Digital Assurance Certification, L.L.C. ("DAC") is
hereby appointed as Disclosure Dissemination Agent under the Continuing Disclosure
Agreement. If required by DAC, the City Manager is authorized to execute and deliver on behalf
of the City DAC's standard disclosure dissemination agent agreement, with such changes,
modifications, insertions and omissions and such filling in of blanks therein as may be approved
by the City Manager, after consultation with the City Attorney and the City's Disclosure Counsel.
The execution of the Continuing Disclosure Agreement and any disclosure dissemination agent
agreement for and on behalf of the City by the City Manager shall be deemed conclusive
evidence of the City's approval of the Continuing Disclosure Agreement and such disclosure
dissemination agent agreement. Notwithstanding any other provisions of this Resolution, any
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failure by the City to comply with any provisions of such Continuing Disclosure Agreement shall
not constitute a default under this Resolution and the remedies therefor shall be solely as
provided in the Continuing Disclosure Agreement.
The City Manager and/or the Director of Finance is further authorized to establish, or
cause to be established, procedures and policies, including, but not limited to, the creation of a
task force or committees in order to ensure compliance by the City with the Continuing
Disclosure Agreement, including the timely provision of information and notices. Prior to making
any filing in accordance with such agreement, the Director of Finance may consult with the City
Attorney and the City's Disclosure Counsel. The Director of Finance, acting in the name and on
behalf of the City, shall be entitled to rely upon any legal advice provided by the City Attorney
and the City's Disclosure Counsel in determining whether.a filing should be made.
SECTION 2.13. Guaranty Agreement. In order to produce the lowest true interest cost
possible for the Bonds or any portion thereof, the City Manager is hereby authorized to secure a
Bond Insurance Policy and/or a Reserve Account Insurance Policy with respect to the Bonds, if,
after consultation with the Director of Finance and the Financial Advisor, the City Manager
determines that obtaining a Bond Insurance Policy and/or a Reserve Account Insurance Policy
is in the best interests of the City. The City is hereby authorized to provide for the payment of
any premiums on such Bond Insurance Policy and/or Reserve Account Insurance Policy from
the proceeds of the issuance of such Bonds and to enter into such agreements as may be
necessary to secure a Bond Insurance Policy and/or a Reserve Account Insurance Policy, with
the City Manager's execution of any such agreements, after consultation with the City Attorney
and Bond Counsel, to be conclusive evidence of the City's approval thereof. The provisions of
any such agreement shall supersede any inconsistent provision of this Resolution.
[END OF ARTICLE II]
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ARTICLE III
COVENANTS, FUNDS AND APPLICATION THEREOF
SECTION 3.01. Bonds Not to be Indebtedness of the City. The Bonds shall not be and
shall not constitute an indebtedness of the City, within the meaning of any constitutional,
statutory or charter provisions or limitations, but shall be secured solely by and payable from the
Pledged Funds, as provided in this Resolution. No holder or holders of any Bonds issued
hereunder shall ever have the right to compel the exercise of the ad valorem taxing power of the
City, the State or any political subdivision thereof, or taxation in any form of any real or personal
property therein, or the application of any moneys of the City, except the Pledged Funds and,
solely to the extent provided in Section 3.04(a) hereof, the Non -Ad Valorem Revenues, to pay
the Bonds or the interest thereon or to make any debt service, reserve or other payments
provided for herein.
SECTION 3.02. Bonds Secured By Pledge of Pledged Funds.
The payment of the principal of, interest and redemption premium, if any, on all of the
Bonds . issued hereunder shall be secured forthwith equally and ratably by a first lien on and
pledge of the Pledged Funds. The Pledged Funds are hereby irrevocably pledged to the
payment of the principal of and interest on the Bonds authorized herein, and other payments
provided for herein, as the same become due and payable. The Bonds and the obligation
evidenced thereby shall not constitute a lien upon any property of or in the City, but shall
constitute a lien only on the Pledged Funds all in the manner provided in this Resolution.
The Bonds shall be payable from the Non -Ad Valorem Revenues solely in accordance
with the provisions of Section 3.04(a) hereof.
SECTION 3.03. Application of Bond Proceeds.
Proceeds (net of Underwriter's discount) from the sale of the Bonds shall be applied as
follows:
(a) An amount which is equal to the principal of and accrued interest on the Note
through its redemption date, shall be transferred to Wells Fargo Bank, National Association, as
holder of the Note, in full payment and satisfaction of the Note.
(b) An amount equal to the Reserve Account Requirement for the Bonds shall be
deposited into the Debt Service Reserve Account or, if applicable, an amount equal to the
premium payable for the Reserve Account Insurance Policy shall be paid to the Provider and
such Reserve Account Insurance Policy shall be held by the Bond Registrar to the credit of the
Debt Service Reserve Account for the benefit of the Bonds and the holders thereof.
(c) An amount of proceeds to be determined by the City Manager, upon consultation
with the Director of Finance, shall be deposited in a separate account designated "City of Miami
Special Obligation Non -Ad Valorem Revenue Refunding Bonds Series 2012 (Port of Miami
Tunnel Project) Cost of Issuance Account" (the "Cost of Issuance Account") which is hereby
established with the City and shall be disbursed for payment of expenses incurred in connection
with the issuance of the Bonds (including payment of the expenses of the City); provided that
the premium for a Bond Insurance Policy, if any, may be paid on behalf of the City by the
Underwriter directly to the Provider. Any balance remaining after payment or provision for
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payment of such costs and expenses has been made shall be transferred to the Interest
Subaccount in the Debt Service Account and used solely to pay interest on the Bonds.
SECTION 3.04. Covenants of the City. The City hereby covenants and agrees with the
holders of any and all of the Bonds issued pursuant to this Resolution as follows:
(a) Covenant to Budget and Appropriate. The City covenants and agrees to budget
and appropriate in its annual budget, by amendment, if necessary, from Non -Ad Valorem
Revenues lawfully available in each Fiscal Year, amounts sufficient to satisfy (i) the Annual Debt
Service Requirement for such Fiscal Year, (ii) any deposits required to be made into the Debt
Service Reserve Account during such Fiscal Year, (iii) any other amounts due the Providers of
any Bond Insurance Policy, Reserve Account Insurance Policy and the Bond Registrar during
such Fiscal Year and (iv) any Rebate Amount due during such Fiscal Year as provided in
Section 3.04(g). Such covenant and agreement on the part of the City to budget and
appropriate such amounts of Non -Ad Valorem Revenues shall be cumulative to the extent not
paid, and shall continue until such Non -Ad Valorem Revenues or other legally available moneys
in amounts sufficient to make all such required payments shall have been budgeted,
appropriated and actually paid. Notwithstanding the foregoing covenant of the City, the City
does not covenant to maintain any services or programs, now provided or maintained by the
City, which generate Non -Ad Valorem Revenues.
Such covenant to budget and appropriate does not create any lien upon or pledge of
such Non -Ad Valorem Revenues, nor does it preclude the City from pledging in the future its
Non -Ad Valorem Revenues, nor does it require the City to levy and collect any particular Non -
Ad Valorem Revenues, nor does it give the Bondholders, the Providers of any Bond Insurance
Policy, Reserve Account Insurance Policy or the Bond Registrar a prior claim on the Non -Ad
Valorem Revenues as opposed to claims of general creditors of the City. Such covenant to
budget and appropriate Non -Ad Valorem Revenues is subject in all respects to the payment of
obligations secured by a pledge of such Non -Ad Valorem Revenues heretofore or hereinafter
entered into (including the payment of debt service on bonds and other debt instruments).
However, the covenant to budget and appropriate in its general annual budget for the purposes
and in the manner stated herein shall have the effect of making available in the manner
described herein Non -Ad Valorem Revenues and placing on the City a positive duty to budget
and appropriate, by amendment, if necessary, amounts sufficient to meet itsobligations
hereunder; subject, however, in all respects to the restrictions of Section 166.241(2), Florida
Statutes, which provides, in part, that the governing body of each municipality make
appropriations for each Fiscal Year which, in any one year, shall not exceed the amount to be
received from taxation or other revenue sources; and subject further, to the payment of services
and programs which are for essential public purposes affecting the health, welfare and safety of
the inhabitants of the City or which are legally mandated by applicable law.
(b) Disposition of Non -Ad Valorem Revenues. There is hereby created and
established the "City of Miami Special Obligation Non -Ad Valorem Revenue Refunding Bonds,
Series 2012 (Port of Miami Tunnel Project) Bond Fund" (the "Bond Fund"). Within the Bond
Fund there are hereby established and created the following Accounts and subaccounts: (i) the
"City of Miami Special Obligation Non -Ad Valorem Revenue Refunding Bonds, Series 2012
(Port of Miami Tunnel Project) Debt Service Account" (the "Debt Service Account"), which shall
include three (3) separate subaccounts to be known as the "Interest Subaccount," the "Principal
Subaccount," and the "Bond Redemption Subaccount;" (ii) the "City of Miami Special Obligation
Non -Ad Valorem Revenue Refunding Bonds, Series 2012 (Port of Miami Tunnel Project) Debt
Service Reserve Account" (the "Debt "Service Reserve Account"); and (iii) the "City of Miami
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Special Obligation Non -Ad Valorem Revenue Refunding Bonds, Series 2012 (Port of Miami
Tunnel Project) Cost of Issuance Account (the "Cost of Issuance Account") established for the
purposes of Section 3.03(c) hereof. Additionally, the Rebate Account is established and created
for the purposes of and by Section 3.04(g) hereof. The Bond Fund and the 'Accounts (and
subaccounts) therein and the Rebate Account shall be held by the City in an Authorized
Depository.
Non Ad -Valorem Revenues appropriated in 'each Fiscal Year for the purposes of and as
provided in Section 3.04(a) above shall be applied in the following manner:
(1) To the full extent necessary, for deposit into the Interest Subaccount in
the Debt Service Account, by no later than the fifth (5th) day preceding each Interest
Payment Date, such sums as shall be sufficient to pay the interest becoming due on the
Bonds on each such Interest Payment Date; provided, however, that such deposits for
interest shall not be required to be made into the Interest Subaccount to the extent that
money on deposit therein is sufficient for such purpose.
The City shall, on each Interest Payment Date, transfer to the Bond Registrar
moneys in an amount equal to the interest due on such Interest Payment Date or shall,
prior to such Interest Payment Date, advise the Bond Registrar of the amount of any
deficiency in the amount so to be transferred so that the Bond Registrar may give the
appropriate notice required to provide for the payment of such deficiency on such
Interest Payment Date from any Reserve Account Insurance Policy, if any, on deposit in
the Debt Service Reserve Account or from the Bond Insurance Policy, if any, as
applicable.
(2) (A) To the full extent necessary, for deposit into the Principal
Subaccount in the Debt Service Account, by no later than the fifth (5th) day preceding
each principal maturity date, the principal amount of Serial Bonds which will mature and
become due on such maturity date; provided, however, that such deposits for principal
shall not be required to be made into the Principal Subaccount to the extent that money
on deposit therein is sufficient for such purpose.
The City shall, on each principal payment date, transfer to the Bond Registrar
moneys in an amount equal to the principal due on such principal payment date or shall,
prior to such principal payment date, advise the Bond Registrar of the amount of any
deficiency in the amount so to be transferred so that the Bond Registrar may give the
appropriate notice required to provide for the payment of such deficiency on such
principal payment date from any Reserve Account Insurance Policy, if any, on deposit in
the Debt Service Reserve Account or from the Bond Insurance Policy, if any, as
applicable.
(B) To the full extent necessary, for deposit into the Bond Redemption
Subaccount, if applicable, in the Debt Service Account by no later than the fifth (5th) day
preceding each redemption or maturity date, the Amortization Requirements as may be
necessary for the payment of any Term Bonds payable from the Bond Redemption
Subaccount on such redemption or maturity date; provided, however, that such deposits
for Amortization Requirements shall not be required to be made into the Bond
Redemption Subaccount to the extent that money on deposit therein is sufficient for such
purpose.
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The moneys in the Bond Redemption Subaccount shall be used solely for the
purchase or redemption of Term Bonds payable therefrom. The City may at any time
purchase any of said Term Bonds or portions thereof at prices not greater than the then
redemption price of said Term Bonds. If the Term Bonds are not then redeemable, the
City may purchase said Term Bonds at prices not greater than the redemption price of
such Term Bonds on the next ensuing redemption date. The City shall be mandatorily
obligated to use any moneys in the Bond Redemption Subaccount for the redemption
prior to maturity of such Term Bonds in such manner and at such times as the same are
subject to mandatory redemption. If, by the application of moneys in the Bond
Redemption Subaccount, the City shall purchase or call for redemption in any year Term
Bonds in excess of the Amortization Requirements for such year, such excess of Term
Bonds so purchased or redeemed shall be credited in such manner and at such times as
the Director of Finance, upon consultation with the City Manager, shall determine over
the remaining payment dates.
The City shall, on each redemption or maturity date, transfer to the Bond
Registrar moneys in an amount equal to the payments due on any Term Bonds on such
redemption or maturity date or shall, prior to such redemption or maturity date, advise
the Bond Registrar of the amount of any deficiency in the amount so to be transferred so
that the Bond Registrar may give the appropriate notice required to provide for the
payment of such deficiency on such redemption or maturity date from any Reserve
Account Insurance Policy on deposit in the Debt Service Reserve Account or from the
Bond Insurance Policy, if any, as applicable.
(3) To the full extent necessary, for deposit into the Debt Service Reserve
Account by no later than the fifteenth (15th) day of each month in each year, beginning
with the fifteenth (15th) day of the first full calendar month following the date on which
there is a deficiency in the amount required to be on deposit in the Debt Service Reserve
Account, such sums as shall be at least sufficient to pay an amount equal to one -twelfth
(1/12) of the difference between the amount on deposit in the Debt Service Reserve
Account (including any Reserve Account Insurance Policy) and the Reserve Account
Requirement; provided, however, that no payments shall be required to be made into the
Debt Service Reserve Account whenever and as long as the amount on deposit therein
(including any Reserve Account Insurance Policy) shall be equal to the Reserve Account
Requirement for the Bonds.
Moneys in the Debt Service Reserve Account shall be used only for the purpose
of making payments of principal of and interest on the Bonds when the moneys in any
other Account held pursuant to this Resolution and available for such purpose are
insufficient therefor.
Any moneys in the Debt Service Reserve Account in excess of the Reserve
Account Requirement for the Bonds may, in the discretion of the City, be transferred to
and deposited in the Interest Subaccount, the Principal Subaccount or the Bond
Redemption Subaccount as the City at its option may determine.
Notwithstanding the foregoing provisions, in lieu of or in substitution for the
required deposits (including . existing deposits therein) into the Debt Service Reserve
Account, the City may cause to be deposited into the Debt Service Reserve Account a
Reserve Account Insurance Policy for the benefit of the Holders of the Bonds
Outstanding, which Reserve Account Insurance Policy shall be payable or available to
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be drawn upon, as the case may be (upon the giving of notice as required thereunder),
on any Interest Payment Date or principal payment date or mandatory redemption date
on which a deficiency exists which cannot be cured by moneys in any other Account
held pursuant to this Resolution and available for such purpose. If a disbursement is
made under the Reserve Account Insurance Policy, the City shall be obligated to either
(i) reinstate the maximum limits of such Reserve Account Insurance Policy within twelve
months by increasing the amount payable or available to be drawn thereunder in equal
monthly amounts over such twelve month period, or (ii) deposit, on a monthly basis in
accordance with the first paragraph of this Section 3.04(b)(3), into the Debt Service
Reserve Account from the Non -Ad Valorem Revenues appropriated in accordance with
Section 3.04(a) hereof, moneys in the amount of the disbursements made under such
Reserve Account Insurance Policy, or a combination of such alternatives as shall cause
the amount then on deposit or to the credit of the Debt Service Reserve Account to
equal the Reserve Account Requirement for the Bonds Outstanding.
In the event that upon the occurrence of any deficiency in the Interest
Subaccount, the Principal Subaccount or the Bond Redemption Subaccount, the Debt
Service Reserve Account is then funded with a Reserve Account Insurance Policy, the
City or the Bond Registrar, as applicable, shall, on an interest or principal payment date
or mandatory redemption date to which such deficiency relates, draw upon or cause to
be paid under such facilities, on a pro-rata basis thereunder, an amount sufficient to
remedy such deficiency, in accordance with the terms and provisions of such facilities
and any corresponding reimbursement or other agreement governing such facilities;
provided however, that if at the time of such deficiency the Debt Service Reserve
Account is only partially funded with a Reserve Account Insurance Policy, prior to
drawing on such facilities or causing payments to be made thereunder, the City shall first
apply any cash and securities on deposit in the Debt Service Reserve Account to
remedy the deficiency and, if after such application a deficiency still exists, the City or
the Bond Registrar, as applicable, shall make up the balance of the deficiency by
drawing on such facilities or causing payments to be made thereunder, as provided in
this paragraph. Amounts drawn or paid under a Reserve Account Insurance Policy shall
be applied as set forth in the second paragraph of this Section 3.04(b)(3). Any amounts
drawn or paid under a Reserve Account Insurance Policy shall be reimbursed to the
Provider thereof in accordance with the terms and provisions of the reimbursement or
other agreement governing such facility.
The Debt Service Reserve Account shall be valued on the last day of each Fiscal
Year and the value of securities on deposit therein shall be the lower of par, or if
purchased at other than par, amortized value. Amortized value, when used with respect
to securities purchased at a premium above or a discount below par, shall mean the
value at any given date obtained by dividing the total premium or discount at which such
securities were purchased by the number of interest payment dates remaining to
maturity on such securities after such purchase and by multiplying the amount so
calculated by the number of interest payment dates having passed since the date of
purchase; and (i) in the case of securities purchased at a premium, by deducting the
product thus obtained from the purchase price, and (ii) in the case of securities
purchased at a discount, by adding the product thus obtained to the purchase price.
(4) To the Providers, if any, and the Bond Registrar, as applicable, in
payment of amounts payable to such parties during such Fiscal Year not paid pursuant
to the above provisions.
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Notwithstanding the foregoing or any other provision herein to the contrary, if any
amount applied to the payment of principal of and redemption premium, if any, and interest on
the Bonds that would have been paid from the Accounts in the Bond Fund, is paid instead under
the Bond Insurance Policy, amounts deposited in such applicable Account may be paid, to the
extent required, to the Provider of the Bond Insurance Policy having theretofore made said
corresponding payment.
(c) Investment of Moneys. The Debt Service Account, including the Interest
Subaccount, Principal Subaccount and Bond Redemption Subaccount therein, the Debt Service
Reserve Account, and the Cost of Issuance Account shall constitute trust funds and shall be
invested by the City as provided in this Section 3.04(c).
Moneys on deposit in the Interest Subaccount, Principal Subaccount and Bond
Redemption Subaccount of the Debt Service Account, and in the Cost of Issuance Account may
be invested in Permitted Investments maturing not later than the dates on which such moneys
will be needed for the purposes of such Account or subaccounts.
Moneys on deposit in the Debt Service Reserve Account may be invested in Permitted
Investments maturing not later than five years from the date of deposit of such Permitted
Investment into the Debt Service Reserve Account.
All income and earnings received from the investment and reinvestment of moneys in
the Interest Subaccount, the Principal Subaccount and the Bond Redemption Subaccount in the
Debt Service Account shall be retained therein and applied as a credit against the obligation of
the City to deposit moneys to such subaccounts pursuant to Section 3.04(b)(1) and Section 3.04
(b)(2)(A) and Section 3.04 (b)(2)(B) of this Resolution, respectively.
All income and earnings received from the investment and reinvestment of moneys in
the Debt Service Reserve Account shall be retained in the Debt Service Reserve Account and
applied as a credit against the obligation of the City to deposit moneys to such Account, unless
the amount in such Account shall exceed the Reserve Account Requirement for the Bonds, in
which event such excess may be applied in the manner set forthfor excess amounts in the Debt
Service Reserve Account, as described in Section 3.04 (b)(3).
All income and earnings received from the investment and reinvestment of moneys in
the Cost of Issuance Account and any excess amounts on deposit therein shall be transferred to
the Interest Subaccount in the Debt Service Account.
For the purpose of investing or reinvesting, the City may commingle moneys in the
Accounts and subaccounts created and established hereunder in order to achieve greater
investment income; provided that the City shall separately account and separately report for the
amounts so commingled. The amounts required to be accounted for in each of the Accounts
and subaccounts designated herein may be deposited in a single bank account provided that
adequate accounting procedures are maintained to reflect and control the restricted allocations
of the amounts on deposit therein for the various purposes of such Accounts and subaccounts
as herein provided. The designation and establishment of the Bond Fund, and the Accounts
and subaccounts therein, in and by this Resolution shall not be construed to require the
establishment of any completely independent fund and accounts, but rather is intended solely to
constitute an allocation of certain revenues and assets for certain purposes and to establish
such certain priorities for application of certain revenues and assets as herein provided.
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(d) Books and Records. The City will keep separately identifiable accounting
records for the Pledged Funds by the use of a fund and accounts established in accordance
with generally accepted accounting principles, and any Holder of a Bond or Bonds issued
pursuant to this Resolution, shall have the right at all reasonable times to inspect all records,
accounts and data of the City relating thereto. Such records and accounts shall contain the
statements required by generally accepted accounting principles applicable to governmental
entities.
(e) No Impairment of Contract. The City has full power and authority to irrevocably
pledge the Pledged Funds to the payment of the principal of and interest on the Bonds. The
pledge of such Pledged Funds, in the manner provided herein, shall not be subject to repeal,
modification or impairment by any subsequent resolution, ordinance or other proceedings of the
City so long as any Bonds are Outstanding hereunder. The City shall take all actions necessary
and pursue such legal remedies which may be available to it either in law or in equity to prevent
or cure any impairment by any entity other than the City within the meaning of this subsection.
(f) Discharge and Satisfaction of Bonds. The covenants, liens and pledges entered
into, created or imposed pursuant to this Resolution may be fully discharged and satisfied with
respect to all or a portion of the Bonds in any one or more of the following ways:
(1) by paying the principal of and interest on such Bonds when the same
shall become due and payable; or
(2) by depositing in the Interest Subaccount, the Principal Subaccount and
the Bond Redemption Subaccount of the Debt Service Account and/or in such other
accounts which are irrevocably pledged to the payment of the Bonds as the City may
hereafter create and establish by resolution, certain moneys which together with other
moneys lawfully available therefor, if any, shall be sufficient at the time of such deposit to
pay when due the principal, redemption premium, if any, and interest due and to become
due on the Bonds on or prior to the redemption date or maturity date thereof; or
(3) by depositing in the Interest Subaccount, the Principal Subaccount and
the Bond Redemption Subaccount of the Debt Service Account and/or such other
accounts which are irrevocably pledged to the payment of the Bonds as the City may
hereafter create and establish by resolution, moneys which together with other moneys
lawfully available therefor, when invested in Government Obligations which shall not be
subject to redemption prior to their maturity other than at the option of the holder thereof,
will provide moneys which shall be sufficient to pay when due the principal, redemption
premium, if any, and interest due and to become due on said Bonds on or prior to the
redemption date or maturity date thereof and delivering a verification report of a
nationally recognized certified public accountant as to the adequacy of such deposit,
together with investment earnings thereon, to pay when due the principal, redemption
premium, if any, and interest due or to become due on or prior to the redemption date or
maturity date of the Bonds.
(4) Notwithstanding the foregoing, all references to the discharge and
satisfaction of Bonds shall include the discharge and satisfaction of any portion of the
Bonds, any maturity or maturities of the Bonds, any portion of a maturity of the Bonds or
any combination thereof.
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Upon such payment or deposit in the amount and manner provided in this Section 3.04
(f), Bonds shall be deemed to be paid and shall no longer be deemed to be Outstanding for the
purposes of this Resolution and all liability of the City with respect to said Bonds shall cease,
terminate and be completely discharged and extinguished, and the Holders thereof shall be
entitled to payment solely out of the moneys or securities so deposited; provided that in the
event said Bonds do not mature and are not to be redeemed within the next succeeding sixty
(60) days, the City shall have given the Bond Registrar irrevocable instructions to give, as soon
as practicable, a notice to the Holders of said Bonds by first-class mail, postage prepaid, stating
that the deposit of said moneys or Government Obligations has been made with an appropriate
fiduciary institution acting as escrow agent solely for the Holders of said Bonds and other Bonds
being defeased, and that said Bonds are deemed to have been paid in accordance with this
Section and stating such maturity or redemption date upon which moneys are to be available for
the payment of the principal of and redemption premium, if any, and interest on said Bonds.
In the event that the principal or redemption price, if applicable, and interest due on the
Bonds shall be paid by the Provider pursuant to the terms of the Bond Insurance Policy, the
assignment and pledge created hereunder and all covenants, agreements and other obligations
of the City to the Bondholders shall continue to exist and the Provider shall be subrogated to the
rights of such Bondholders.
If any portion of the moneys deposited for the payment of the principal of and
redemption premium, if any, and interest on any portion of Bonds is not required for such
purpose, the City may use the amount of such excess free and clear of any trust, lien, security
interest, pledge or assignment securing said Bonds or otherwise existing under this Resolution.
(g) Compliance with Tax Requirements. The City covenants and agrees to comply
with the requirements applicable to it contained in the Code to the extent necessary to preserve
the exclusion of interest on the Bonds from gross income for federal income tax purposes.
Specifically, without intending to limit in any way the generality of the foregoing, the City
covenants and agrees:
(1) to pay to the United States of America, at the times required pursuant to
Section 148(f) of the Code, any rebate amount ("Rebate Amount") determined pursuant to
Section 148(f) of the Code; in order to facilitate such payments, if any, there is hereby created
and established the "City of Miami Special Obligation Non -Ad Valorem Revenue Refunding
Bonds, Series 2012 (Port of Miami Tunnel Project) Rebate Account" (the "Rebate Account");
(2) to maintain and retain all records pertaining to and to be responsible for
making or causing to be made all determinations and calculations of the Rebate Amount and
required payments of the Rebate Amount as shall be necessary to comply with the Code;
(3) to refrain from using proceeds from the Bonds in a manner that would
cause the Bonds or any of them, to be classified as private activity bonds under Section 141(a)
of the Code; and
(4) to refrain from taking any action that would cause the Bonds, or any of
them, to become arbitrage bonds under Section 148 of the Code.
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SECTION 3.05. Events of Default; Remedies. Each of the following events is hereby
declared an "event of default," that is to say if:
(a) payment of principal of the Bonds shall not be made when the same shall
become due and payable, either at maturity (whether by acceleration or otherwise) or on
required payment dates by proceedings for redemption or otherwise; or
(b) Payments of any installment of interest shall not be made when the same shall
become due and payable; or
(c) the City shall fail to make any deposits required to be made hereunder or shall
otherwise fail to comply with any of the covenants and obligations of the City hereunder and
such failure shall continue unremedied for a period of thirty (30) days after such failure to
deposit or other such occurrence; or
(d) an order or decree shall be entered, with the consent or acquiescence of the
City, appointing a receiver or receivers of the City, or the filing of a petition by the City for relief
under federal bankruptcy laws or any other similar law or statute of the United States of America
or the State of Florida, which shall not be dismissed, vacated or discharged within thirty (30)
days after the filing thereof; or
(e) any proceedings shall be instituted, with the consent or acquiescence of the City,
for the purpose of effecting a composition between the City and its creditors or for the purpose
of adjusting the claims of such creditors, pursuant to any federal or state statutes now or
hereafter enacted, if the claims of such creditors are under any circumstances payable from the
Pledged Funds.
Notwithstanding the foregoing, with respect to the events described in clause (c), the
City shall not be deemed in default hereunder if such default can be cured within a reasonable
period of time and if the City in good faith institutes appropriate curative action and diligently
pursues such action until the default has been corrected.
SECTION 3.06. Enforcement of Remedies. Upon the happening and continuance of
any. event of default specified in Section 3.05, then and in every such case the owners of not
less than twenty-five percent (25%) of the aggregate principal amount of the Bonds Outstanding
may appoint any state bank, national bank, trust company or national banking association
qualified to transact business in Florida to serve as trustee for the benefit of the holders of all
Bonds then outstanding (the "Default Trustee"). Notice of such appointment, together with
evidence of the requisite signatures of the holders of twenty-five percent (25%) of the aggregate
principal amount of the Bonds Outstanding and the trust instrument under which the Default
Trustee shall have agreed to serve shall be filed with the City and the Default Trustee and
notice of such appointment shall be mailed to the registered holders of the Bonds. No more
than one Default Trustee may be appointed and serving hereunder at any one time; however,
the holders of a majority of the aggregate principal amount of the Bonds Outstanding may
remove the Default Trustee initially appointed and appoint a successor and subsequent
successors at any time. If the default for which the Default Trustee was appointed is cured or
waived pursuant to this Section 3.06, the appointment of the Default Trustee shall terminate with
respect to such default.
After a Default Trustee has been appointed pursuant to the foregoing, the Default
Trustee may proceed, and upon the written request of owners of twenty-five percent (25%) of
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the aggregate principal amount of the Bonds Outstanding shall proceed, to protect and enforce
the rights of the Bondholders under the laws of the State of Florida, including the Act, and under
this Resolution, by such suits, actions or special proceedings in equity or at law, or by
proceedings in the office of any board, body or officer having jurisdiction, either for the specific
performance of any covenant or agreement contained herein or in aid of execution of any power
herein granted or for the enforcement of any proper legal or equitable remedy, all as the Default
Trustee, being advised by counsel, shall deem most effectual to protect and enforce such rights.
In the enforcement of any remedy against the City under this Resolution the Default
Trustee shall be entitled to sue for, enforce payment of and receive any and all amounts then or
during any City default becoming, and at any time remaining, due from the City for principal,
interest or otherwise under any provisions of this Resolution or of such Bonds and unpaid, with
interest on overdue payments of principal and, to the extent permitted by law, on interest, at the
rate or rates of interest specified in such Bonds, together with any and all reasonable costs and
expenses of collection and of all proceedings hereunder and under such Bonds, without
, prejudice to any other right or remedy of the Default Trustee or of the Bondholders, and to
recover and enforce any judgment or decree against the City, but solely as provided herein and
in such Bonds, for any portion of such amounts remaining unpaid and interest, reasonable costs
and expenses as above provided, and to collect (but solely from moneys in the Bond Fund
(except the Rebate Account) and any other moneys available for such purpose) in any manner
provided by law, the moneys adjudged or decreed to be payable.
SECTION 3.07. Effect of Discontinuing Proceedings. In case any proceeding taken by
the Default Trustee or any Bondholder on account of any default shall have been discontinued
or abandoned for any reason or shall have been determined adversely to the Default Trustee or
such Bondholder, then and in every such case the City, the Default Trustee and the
Bondholders shall be restored to their former positions and rights hereunder, respectively, and
all rights, remedies and powers of the Default Trustee shall continue as though no such
proceeding had been taken.
SECTION 3.08. Directions to Default Trustee as to Remedial Proceedings. Anything in
this Resolution to the contrary notwithstanding, the holders of a majority of the aggregate
principal amount of the Bonds Outstanding shall have the right, by an instrument or concurrent
instruments in writing executed and delivered to the Default Trustee, to direct the method and
place of conducting all remedial proceedings to be taken by the Default Trustee hereunder,
provided that such direction shall not be otherwise than in accordance with law or the provisions
of this Resolution, and that the Default Trustee shall have the right to decline to follow any such
direction which in the opinion of the Default Trustee would be unjustly prejudicial to Bondholders
not parties to such direction.
SECTION 3.09. Restrictions on Actions by Individual Bondholders. No Bondholder shall
have any right to institute any suit, action or proceeding in equity or at law for the execution of
any trust hereunder or for any other remedy hereunder unless such Bondholder previously' shall
have given to the Default Trustee written notice of the event of default on account of which such
suit, action or proceeding is to be taken, and unless the holders of not less than twenty-five
percent (25%) of the aggregate principal amount of the Bonds Outstanding shall have made
written request of the Default Trustee after the right to exercise such powers or right of action,
as the case may be, shall have accrued, and shall have afforded the Default Trustee a
reasonable opportunity either to proceed to exercise the powers hereinabove granted or to
institute such action, suit or proceeding in its or their name, and unless, also, there shall have
been offered to the Default Trustee reasonable security and indemnity against the costs,
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expenses and liabilities to be incurred therein or thereby, including the reasonable fees of its
attorneys (including fees on appeal), and the Default Trustee shall have refused or neglected to
comply with such request within a reasonable period of time; and such notification, request and
offer of indemnity are hereby declared in every such, case, at the option of the Default Trustee,
to be conditions precedent to the execution of the powers and trusts of this Resolution or for any
other remedy hereunder. It is understood and intended that no one or more owners of the
Bonds hereby secured shall have any right in any manner whatever by his or their action to
affect, disturb or prejudice the security of this Resolution, or to enforce any right hereunder,
except in the manner herein provided, and that all proceedings at law or in equity shall be
instituted, had and maintained in the manner herein provided and for the benefit of all
Bondholders, and that any individual rights of action or any other right given to one or more of
such owners by law are restricted by this Resolution to the rights and remedies herein provided.
Nothing contained herein, however, shall affect or impair the right of any Bondholder,
individually, to enforce the payment of the principal of and interest on his Bond or Bonds at and
after the maturity thereof, at the time, place, from the source and in the manner provided in this
Resolution.
SECTION 3.10. Additional Debt.
(a) Issuance of Additional Indebtedness. The City will not issue any obligations
(other than the Bonds authorized by Section 2.01 hereof) secured by or payable from the
Pledged Funds, or any portion thereof, or voluntarily create or cause to be created any debt,
lien, pledge, assignment, encumbrance or other charge, in each case, having priority to or being
on a parity with the lien securing the Bonds issued pursuant to this Resolution upon the Pledged
Funds or any portion thereof.
The City hereby agrees that it will not issue or incur any other debt obligation (other than
the Bonds authorized by Section 2.01 hereof) secured by or payable from a covenant to budget
and appropriate all or a portion of the City's Non -Ad Valorem Revenues or secured by or
payable from specific sources of Non -Ad Valorem Revenues, unless the issuance of such debt
obligations complies with Section 3.10(b) hereof, as evidenced by a certificate of the Director of
Finance, upon consultation with the City Manager, filed with the Commission on or prior to the
issuance or incurrence of such debt.
(b) Anti -Dilution Test. The City may incur additional debt (other than the Bonds
authorized by Section 2.01 hereof) that is payable from all or a portion of the Non -Ad Valorem
Revenues only if the total amount of Non -Ad Valorem Revenues for the prior Fiscal Year were
(a) at least 2.00 times the aggregate Maximum Annual Debt Service of all debt (including all
long-term financial obligations appearing on the City's most recent audited financial statements
and the debtproposed to be incurred) to be paid from Non -Ad Valorem Revenues and not other
moneys of the City (collectively, "Debt"), including any Debt payable from one or several specific
sources of Non -Ad Valorem Revenues, but only to the extent such Non -Ad Valorem Revenues
are legally available to pay debt service on the Bonds, and (b) so long as the Bonds are
outstanding and if a Reserve Account Insurance Policy is in effect, at least 1.00 times the
obligation of the City to repay any costs then due and owing to the Provider of a Reserve
Account Insurance Policy.
[END OF ARTICLE III]
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ARTICLE IV
CONCERNING THE BOND REGISTRAR
SECTION 4.01. Appointment and Acceptance of Duties. The Bond Registrar shall
signify its acceptance of the duties and obligations imposed upon it by this Resolution by
executing and delivering to the City a written acceptance thereof.
SECTION 4.02. Responsibilities of Bond Registrar. The recitals of facts contained
herein and in the Bonds shall be taken as the statements of the City and the Bond Registrar
assumes no responsibility for the correctness of the same. The Bond Registrar makes no
representation as to the validity or sufficiency of this Resolution or of any Bonds issued
thereunder or as to the security afforded by this Resolution, and the Bond Registrar shall not
incur any liability in respect thereof. The Bond Registrar shall, however, be responsible for its
representation contained in its certificate of authentication of the Bonds. The Bond Registrar
shall be under no responsibility or duty with respect to the application of any moneys paid by the
Bond Registrar in accordance with the provisions of this Resolution to or upon the order of the
City. The Bond Registrar shall be under no obligation or duty to perform any act which would
involve it in expense or liability or to institute or defend any suit in respect thereof, or to advance
any of its own moneys, unless properly indemnified. The Bond Registrar shall not be liable in
connection with the performance of its duties hereunder except for its own negligence,
misconduct or default.
SECTION 4.03. Evidence On Which Bond Registrar May Act.
(a) The Bond Registrar, upon receipt of any notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other paper or document furnished to it pursuant to
any provision of this Resolution, shall examine such instrument to determine whether it
conforms to the requirements of this Resolution and shall be protected in acting upon any such
instrument believed by it to be genuine and to have been signed or presented by the proper
party or parties. The Bond Registrar may reasonably consult with counsel, who may or may not
be counsel to the City, and the opinion of such counsel shall be full and complete authorization
and protection in respect of any action taken or suffered by it under this Resolution in good faith
and in accordance therewith.
(b) Whenever the Bond Registrar shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering any action under this Resolution, such
matter (unless other evidence in respect thereof be therein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate of the Director of Finance,
upon consultation with the City Manager, and such certificate shall be full warrant for any action
taken or suffered in good faith under the provisions of this Resolution upon the faith thereof; but
in its discretion the Bond Registrar may in lieu thereof accept other evidence of such fact or
matter or may require such further or additional evidence as it may deem reasonable.
(c) Except as otherwise expressly provided in this Resolution, any request, order,
notice or other direction required or permitted to be furnished pursuant to any provision hereof
by the City to the Bond Registrar shall be sufficiently executed in the name of the City by the
Director of Finance, upon consultation with the City Manager.
SECTION 4.04. Compensation. The City may agree with the Bond Registrar to pay to
the Bond Registrar from time to time reasonable compensation for all services rendered under
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this Resolution, and also all reasonable expenses, charges, counsel fees and other
disbursements, including those of its attorneys, agents and employees, incurred in and about
the performance of their powers and duties under this Resolution. The City may also agree with
the Bond Registrar to indemnify the Bond Registrar for any and all of its reasonable fees, costs
and expenses resulting from any claim, liability or the like incurred in and about the performance
of its powers and duties under this Resolution.
SECTION 4.05. Certain Permitted Acts. The Bond Registrar, individually or otherwise,
may become the owner of any Bonds, with the same rights it would have if it were not a
fiduciary. To the extent permitted by law, the Bond Registrar may act as depositary for, and
permit any of its officers or directors to act as a member of, or in any other capacity with respect
to, any committee formed to protect the rights of Bondholders or to effect or aid in any
reorganization growing out of the enforcement of the Bonds or this Resolution, whether or not
any such committee shall represent the Holders of a majority in principal amount of the Bonds
then Outstanding.
SECTION 4.06. Merger or Consolidation. Any entity into which the Bond Registrar may
be merged or converted or with which it may be consolidated or any entity resulting from any
merger, conversion or consolidation to which it shall be a party or any entity to which the Bond
Registrar may sell or transfer all or substantially all of its business, provided such entity shall be
authorized by law to perform all duties imposed upon it by this Resolution, shall be the
successor to the Bond Registrar without the execution or filing of any paper or the performance
of any further act.
SECTION 4.07. Adoption of Authentication. In case any of the Bonds contemplated to
be issued under this Resolution shall have been authenticated but not delivered, any successor
Bond Registrar may adopt the certificate of authentication of any predecessor Bond Registrar so
authenticating such Bonds and deliver such Bonds so authenticated; and in case any of the said
Bonds shall not have been authenticated, any successor Bond Registrar may authenticate such
Bonds in the name of the predecessor Bond Registrar, or in the name of the successor Bond
Registrar, and in all such cases such certificate shall be fully effective.
SECTION 4.08. Resignation or Removal of Bond Registrar and Appointment of
Successor. The Bond Registrar may at any time resign and be discharged of the duties and
obligations created by this Resolution by giving at least 60 days' written notice to the Provider
and the City. The Bond Registrar may be removed by the City at any time by an instrument filed
with the Bond Registrar and the Provider signed by the Director of Finance, upon consultation
with the City Manager. Any successor Bond Registrar shall be appointed by the City and shall
be fully qualified to act in such capacity under the laws of the State, be willing and able to
accept the office on reasonable and customary terms and be authorized by law to perform all
the duties imposed upon it by this Resolution. The City shall notify the Provider of the
appointment of any successor Bond Registrar. In the event of the resignation or removal of the
Bond Registrar, the Bond Registrar shall pay over, assign and deliver any moneys held by it as
Bond Registrar to its successor.
SECTION 4.09. Vacancy. If at any time hereafter the Bond Registrar shall resign, be
removed, be dissolved, or otherwise become incapable of acting, by bankruptcy or otherwise, or
if the bank, trust company or securities firm acting as Bond Registrar shall be taken over by any
governmental official, agency, department or board, the position of Bond Registrar shall
thereupon become vacant. If the position of Bond Registrar shall become vacant for any of the
foregoing reasons or for any other reasons, the City shall appoint a successor Bond Registrar.
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If no appointment of a successor Bond Registrar shall be made pursuant to the
foregoing provisions of this Section, the Holder of any Bond Outstanding hereunder or any
retiring Bond Registrar may apply to any court of competent jurisdiction to appoint a successor
Bond Registrar. Such court may thereupon, after such notice, if any, as such court may deem
proper and prescribe, appoint a successor Bond Registrar.
[END OF ARTICLE IV]
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ARTICLE V
EXECUTION OF INSTRUMENTS BY BONDHOLDERS
AND PROOF OF OWNERSHIP OF BONDS
SECTION 5.01. Proof of Execution of Documents and Ownership.
(a) Any request, direction, consent or other instrument in writing required by this
Resolution to be signed or executed by Bondholders may be in any number of concurrent
instruments of similar tenor and may be signed or executed by such Bondholders in person or
by their attorneys or legal representatives appointed by an instrument in writing. Proof of the
execution of any such instrument and of the ownership of Bonds shall be sufficient for any
purpose of this Resolution and shall be conclusive in favor of the Bond Registrar with regard to
any action taken by it under such instrument if made in the following manner:
(1) The fact and date of the execution by any person of any such instrument
may be proved by the verification of any officer in any jurisdiction who, by the laws
thereof, has power to take affidavits within such jurisdiction, to the effect that such
instrument was subscribed and sworn to before him, or by an affidavit of a witness to
such execution. Where such execution is on behalf of a person other than an individual,
such verification shall also constitute sufficient approval of the authority of the signor
thereof.
(2) The ownership of Bonds shall be proved by the registration books
required to be maintained pursuant to the provisions of this Resolution.
Nothing contained in this Article shall be construed as limiting the Bond Registrar to such
proof, it being intended that the Bond Registrar may accept any other evidence of the matters
herein stated which it may deem sufficient.
(b) If the City shall solicit from the Holders any request, direction, consent or other
instrument in writing required or permitted by this Resolution to be signed or executed by the
Holders, the City may, at its option, fix in advance a record date for determination of Holders
entitled to give each request, direction, consent or other instrument, but the City shall have no
obligation to do so. If such a record date is fixed, such request, direction, consent or other
instrument may be given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Bonds have authorized or agreed or
consented to such request, direction, consent or other instrument, and for that purpose the
Bonds shall be computed as of such record date.
(c) Any request or consent of the Holder of any Bond shall bind every future Holder
of the same Bond in respect of anything done in pursuance of such request or consent.
[END OF ARTICLE V]
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ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.01. Modification or Amendment. Except as otherwise
paragraph hereof, .0o adverse material modification or amendme
resolution a ereof o fofhsesolued inor the third
Bonds without da consenthrofn or
wsupplemental nhereto, may amendment of this Resolution, eof any
aggregate uttheof the Bonds Hen of be made fiftyaftperthe issuance any
aggregation principal auram amountnt shall permitHolders is more than owever,
me rate modification
interest am thereon, h affect the change Outstanding; reduction
in
a in the maturity of provided,
Bondsora eeduct on non
onthest
the Bonds, as the same mature or become due, from the
nlorem as ase same ed in Section p mise of fhfe City to pee tge.prindsl r and n-
V required as pr ifdr such 3.04 a Pledged e Fundseor the Non -Adders
()hereof, or reduce the percentage of Holders
of Bonds all the Bonds. aomodification or amendment, without the consent of the
HFor the purposes of this Section 6.01, so long as the Bond Insurance
and the Provider has not defaulted in its obligations thereunder
the sole Holder r the Bonds,This Resolution
rovidePolicy is in effect
the Provider shall be deemed
the Holders of Bonds or thmaye Prog amended, changed,
eider: modified and altered without the consent of
(a)
to cure any ambiguity or formal defect or omissi
supplemental resolutions or to correct or supplement any provision contained herein which may
be defective or inconsistent with any other provisions contain °n in this Resolution or
contained herein; or
(b) to grant to or confer upon the Bondholders any
powers, authority or security that may lawfully be granted to or conferred
or additional tights, remedies,
upon the Bondholders;
(c) to add to the conditions, limitations and restrictions
beunder the provisions of this Resolution, other conditions,
observed; or limitationson the issuance Bonds
and restrictions thereafter to
(d) to add to the covenants and agreements
covenants and agreements ath thereafter agreements
by
power covenants
reserved o or conferred upon theseCity; of the City in this Resolution other
the City or to surrender any right or
or
(e) to qualify the Bonds or any of the Bonds for registration under the Securities Act
of 1933, as amended, or the Securities Exchange Act of 1934, as amended; or
(f) to qualify this under the Resolution as an "indenture" und
as amended; or Trust Indenture Act of 1939,
(g) to permit Bonds to be issued in book entry form with
(h) to make such changes as may be necessaryfor or without physical bonds; or
Reserve Account Insurance Policyissuance
deposited in the the Bond Insurance Policyoor a
Debt Service Reserve Account in
City of Miami
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If at any time the City shall so request the Bond Registrar, the Bond Registrar shall
cause a notice of a proposed supplemental resolution requiring the consent of Bondholders to
be mailed, postage prepaid, to all Holders of Bonds then Outstanding at their addresses as they
appear on the registration books. Such notice shall briefly set forth the nature of the proposed
supplemental resolution and shall state that a copy thereof is on file at the designated corporate
trust office of the Bond Registrar for inspection by all Bondholders. The Bond Registrar shall
not, however, be subject to any liability to any Bondholder by reason of its failure to mail the
notice required by this Section, and any such failure shall not affect the validity of such
supplemental resolution when consented to or approved as provided in this Section.
Whenever, at any time after the date of the mailing of such notice, the City shall have
received an instrument or instruments purporting to be executed by the Holders of more than
fifty per centum (50%) in aggregate principal amount of the Bonds then Outstanding, which
instrument or instruments shall refer to the proposed supplemental resolutions described in
such notice and shall specifically consent to and approve the adoption thereof, and the City
shall file with the City Clerk a certificate signed by the City Manager that the Holders of such
required percentage of Bonds have filed such consents, the City may adopt such supplemental
resolution in substantially such form without liability or responsibility to any Holder, of any Bond,
whether or not such Holder shall have consented thereto. It shall not be necessary for the
consent of the Holders to approve the particular form of any proposed supplemental resolution,
but it shall be sufficient if such consent shall approve the substance thereof.
If the Holders of more than fifty per centum (50%) in aggregate principal amount of the
Bonds Outstanding at the time of the execution of such supplemental resolution shall have
consented to and approved the adoption thereof as herein provided, no Holder shall have any
right to object to the adoption of such supplemental resolution, or to object to any of the terms
and provisions therein contained, or the operation thereof, or in any manner to question the
propriety of the adoption thereof, or to enjoin or restrain the City from adopting the same or from
taking any action pursuant to the provisions thereof.
SECTION 6.02. Severability of Invalid Provisions. If any one or more of the covenants,
agreements or provisions of this Resolution should be held contrary to any express provision of
law or contrary to the policy of express law, though not expressly prohibited, or against public
policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or
provisions shall be null and void and shall be deemed separate from the remaining covenants,
agreements or provisions, and shall in no way affect the validity of any of the other provisions of
this Resolution or of the Bonds issued hereunder.
SECTION 6.03. Unclaimed Money. Notwithstanding any provisions of this Resolution,
any money held by the Bond Registrar for the payment of the principal or redemption price of, or
interest on, any Bonds and remaining unclaimed for five (5) years after the principal of all of the
Bonds has become due and payable (whether at maturity or upon call for redemption), if such
money were so held at such date, or five (5) years after the date of deposit of such money if
deposited after such date when all of the Bonds became due and payable, shall be repaid to the
City free from the provisions of this Resolution, and all liability of the Bond Registrar with respect
to such money shall thereupon cease; provided, however, that before the repayment of such
money to the City as aforesaid, the City shall first publish at least once in a financial newspaper
or journal published and of general circulation in New York, New York, a notice, in such form as
may be deemed appropriate by the City with respect to the Bonds so payable and not
presented, and with respect to the provisions relating to the repayment to the City of the money
held for the payment thereof.
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SECTION 6.04. Payments Due on Saturdays, Sundays and Holidays. In any case
where the date of maturity of interest on or principal of the Bonds or the date fixed for
redemption of any Bonds shall be a Saturday, Sunday or a day on which the Bond Registrar is
required, or authorized or not prohibited, by law (including executive orders) to close and is
closed, then payment of such interest, principal or redemption price, as applicable, need not be
paid by the Bond Registrar on such date but may be paid on the next succeeding business day
on which the Bond Registrar is open for business with the same force and effect as if paid on
the date of maturity or the date fixed for redemption, and no interest shall accrue for the period
after such date of maturity.
SECTION 6.05. Controlling Law; Members of Commission Not Liable. The provisions of
this Resolution shall be governed by, and interpreted in accordance with, the laws of the State.
All covenants, stipulations, obligations and agreements of the City contained in this Resolution
shall be deemed to be covenants, stipulations, obligations and agreements of the City to the full
extent authorized by the Act and provided by the Constitution and laws of the State. 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 or
employee of the Commission or the City in his individual capacity, and neither the members of
the Commission nor any official executing the Bonds shall be liable personally on the Bonds or
this Resolution or shall be subject to any personal liability or accountability by reason of the
issuance or the execution of such Bonds.
SECTION 6.06. Further Authorizations. The City Manager, the City Clerk, the Director
of Finance, the City Attorney and such other officers, employees and staff of the City as may be
designated by the City Manager are each designated as agents of the City in connection with
the issuance and delivery of the Bonds and are authorized and empowered, collectively or
individually, to take all action and steps and to execute all instruments, documents and
contracts on behalf of the City, that are necessary or desirable in connection with the execution
and delivery of the Bonds, the refinancing of the Note and such other actions which are not
inconsistent with the terms and provisions of this Resolution.
SECTION 6.07. Headings for Convenience Only. Any headings preceding the texts of
the several articles and sections hereof shall be solely for convenience of reference and shall
not constitute a part of this Resolution, nor shall they affect its meaning, construction or effect.
SECTION 6.08. Repealing Clause. All resolutions of the City in conflict with the
provisions of the Resolution are, but only to the extent of such conflict, hereby superseded and
repealed.
SECTION 6.09. Time of Taking Effect. This Resolution shall take effect immediately
upon its adoption and execution by the Mayor.{1}
APPROVED AS TO FORM AND CORRECTNESS:
JULIE O. BRU
CITY ATTORNEY
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Footnotes:
{1} If the Mayor does not sign this Resolution, it shall become effective at the end of ten
calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it
shall become effective immediately upon override of the veto by the City Commission.
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