HomeMy WebLinkAboutCity of Tamarac Resolution R-2013-109TR12406
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CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2013Id
-
October 9, 2013
Page 1 of 35
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
TAMARAC, FLORIDA AUTHORIZING THE ISSUANCE OF ITS
CAPITAL IMPROVEMENT REVENUE NOTE, SERIES 2013
(TAXABLE), IN THE PRINCIPAL AMOUNT OF NOT TO
EXCEED $20,000,000 AT ANY ONE TIME, INITIALLY AS A
REVOLVING LINE OF CREDIT, TO REFINANCE ALL OF THE
OUTSTANDING CITY OF TAMARAC, FLORIDA TAXABLE
REDEVELOPMENT REVENUE NOTE, SERIES 2011, FINANCE
AND/OR REFINANCE THE COST OF ACQUISITION AND
REDEVELOPMENT OF REAL PROPERTY WITHIN THE CITY
TO BE USED FOR COMMUNITY DEVELOPMENT OR
REDEVELOPMENT PURPOSES, AND TO FINANCE AND/OR
REFINANCE VARIOUS CAPITAL IMPROVEMENTS WITHIN
THE CITY; PROVIDING FOR AN AUTOMATIC CONVERSION
TO A TERM LOAN ON OCTOBER 1, 2016; MAKING CERTAIN
FINDINGS OF PUBLIC PURPOSE; PROVIDING THAT THE
SERIES 2013 NOTE SHALL BE A LIMITED OBLIGATION OF
THE CITY PAYABLE FROM LEGALLY AVAILABLE NON -AD
VALOREM REVENUES BUDGETED, APPROPRIATED AND
DEPOSITED AS PROVIDED HEREIN; PROVIDING FOR THE
RIGHTS, SECURITIES AND REMEDIES FOR THE OWNER OF
THE SERIES 2013 NOTE; ESTABLISHING INTENT TO
REIMBURSE FROM NOTE PROCEEDS THE COSTS OF SUCH
PROJECTS FOR STATE LAW PURPOSES; MAKING CERTAIN
COVENANTS AND AGREEMENTS IN CONNECTION
THEREWITH; AND PROVIDING FOR SEVERA.BILITY AND AN
EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC,
FLORIDA AS FOLLOWS:
Section 1: Authority for this Resolution. This Resolution is adopted pursuant to the
provisions of the Constitution of the State of Florida, the City Charter of the Issuer, Chapter 166,
Part II, Florida Statutes and other applicable provisions of law (collectively, the "Act").
Section 2: De 'nitions. The following words and phrases shall have the following
meanings when used herein:
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"Act" shall have the meaning ascribed thereto in Section 1 hereof.
"Business Day" means any day except any Saturday or Sunday or. day on which the
Principal Office of the Original Purchaser is lawfully closed.
"City Attorney" means the City Attorney of the Issuer, or any assistant or deputy City
Attorney.
"City Manager" means the City Manager or assistant, deputy, interim or acting City
Manager of the Issuer.
"Clerk" means the City Clerk or assistant or deputy City Clerk of the Issuer.
"Debt" means at any date (without duplication) all of the following to the extent that
they are secured by or payable in whole or in part from any Non -Ad Valorem Revenues: (A) all
obligations of the Issuer for borrowed money or evidenced by bonds, debentures, notes or
similar instruments; (B) all obligations of the Issuer to pay the deferred purchase price of
property or services, except trade accounts payable under normal trade terms and which arise
in the ordinary course of business, (C) all obligations of the Issuer as lessee under capitalized
leases; and (D) all indebtedness of other Persons to the extent guaranteed by, or secured by,
Non -Ad Valorem Revenues of the Issuer; provided, however, if with respect to any obligation
contemplated in (A), (B), or (C) above, to which the Issuer has covenanted to budget and
appropriate sufficient Non -Ad Valorem Revenues to satisfy such obligation but has not secured
such obligation with a lien on or pledge of any Non -Ad Valorem Revenues then, and with
respect to any obligation contemplated in (D) above, such obligation shall not be considered
"Debt" for purposes of this Resolution unless the Issuer has actually used Non -Ad Valorem
Revenues to satisfy such obligation during the immediately preceding Fiscal Year or reasonably
expects to use Non -Ad Valorem Revenues to satisfy such obligation in the current or
immediately succeeding Fiscal Year. If an obligation is considered "Debt" as a result of the
proviso set forth in the immediately preceding sentence, it shall continue to be considered
"Debt" until the Issuer has not used any Non -Ad Valorem Revenues to satisfy such obligation
for two (2) consecutive Fiscal Years.
"Debt Service Fund" means the Fund established in Section 8 hereof.
"Director of Financial Services" means the Director of Financial Services or any assistant or
deputy Director of Financial Services of the Issuer.
"Financial Advisor" means Larson Consulting Services, LLC, Orlando, Florida.
"Fiscal Year" means the period commencing on October 1 of each year and continuing
through the next succeeding September 30, or such other period as may be prescribed by law.
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"Governmental Fund Revenues" shall mean total revenues of the Issuer derived from any
source whatsoever and that are allocated and accounted for in the "governmental funds" as
shown in the annual audited financial statements of the Issuer for the applicable Fiscal Year.
"Interest Rate" means, from time to time, the Pre -Conversion (Taxable) Variable Interest
Rate, Post -Conversion (Taxable) Variable Interest Rate or Post -Conversion (Taxable) Fixed
Interest Rate, whichever is applicable in accordance with the terms of this Resolution.
Florida.
"Issuer" means the City of Tamarac, Florida, a municipal corporation of the State of
"LIBOR" means the London InterBank Offered Rate.
"Maturity Date" means October 1, 2023.
"Mayor" means the Mayor or Vice Mayor of the Issuer.
"Non -Ad Valorem Revenues" means all Governmental Funds Revenues, other than
revenues generated from ad valorem taxation on real or personal property, which are legally
available to make the payments required herein.
"Note Counsel" means Bryant Miller Olive P.A. or any other attorney at law or firm of
attorneys, of nationally recognized standing in matters pertaining to the exclusion from gross.
income for federal income tax purposes of interest on obligations issued by states and political
subdivisions, and duly admitted to practice law before the highest court of any state of the
United States of America.
"One Month Libor Rate" means a fluctuating rate of interest equal to the one month
LIBOR which appears on the Bloomberg Reporting Service (or, if such source is not available,
such alternate source as determined by the Owner on the immediately preceding Business Day).
"Original Purchaser" means PNC Bank, National Association.
"Owner" or "Owners" means the Person or Persons in whose name or names Series 2013
Note shall be registered on the books of the Issuer kept for that purpose in accordance with
provisions of this Resolution.
"Person" means natural persons, firms, trusts, estates, associations, corporations,
partnerships and public bodies.
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"Pledged Revenues" means the Non -Ad Valorem Revenues budgeted, appropriated and
deposited as provided herein and the proceeds of any indebtedness incurred for the purpose of
refinancing the Series 2013 Note.
"Principal Office" means, with respect to the Original Purchaser, the office located at 420
S. Orange Avenue, Suite 300, Orlando, Florida 32801 or such other office as the Owner may
designate to the Issuer in writing.
"Project" means the acquisition and development or redevelopment of real property
within the City of Tamarac, Florida, to be used for community development or redevelopment
purposes, or any other capital improvements to public facilities owned by the Issuer.
"Project Costs" means all costs authorized to be paid from the Project Fund pursuant to
Section 10 hereof to the extent permitted under the laws of the State, including, specifically:
(A) Costs incurred directly or indirectly for or in connection with a Project or
a proposed or future Project or acquisition including, but not limited to, those for
preliminary planning and studies, architectural, construction and/or project
management or consulting services that are capitalizable, legal, financial, consulting,
engineering and supervisory services, labor, services, materials, equipment, accounts
receivable, acquisitions, land, rights -of -way, improvements and installation;
(B) Premiums attributable to all insurance required to be taken out and
maintained during the period of construction with respect to a Project to be acquired or
constructed, the premium on each surety bond, if any, required with respect to work on
such facilities, and taxes, assessments and other charges hereof that may become
payable during the period of construction with respect to such a Project;
(C) Costs incurred directly or indirectly in seeking to enforce any remedy
against a contractor or subcontractor in respect of any default under a contract relating
to a Project or costs incurred directly or indirectly in defending any claim by a contractor
or subcontractor with respect to a Project;
(D) Financial, legal, accounting, appraisals, title evidence and printing and
engraving fees, charges and expenses, and all other such fees, charges and expenses
incurred in connection with the authorization, sale, issuance and delivery of the Series
2013 Note;
(E) Capitalized interest funded from proceeds of the Series 2013 Note, if any,
for a reasonable period of time;
(F)
Any
other incidental and
necessary costs
including without limitation
any expenses,
fees
and
charges
relating
to
the
acquisition,
construction or installation of
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a Project, and the making of extraordinary repairs, renewals and replacements,
decommissioning or retirement of any portion of the Project, including the cost of
temporary employees of the Issuer retained to carry out duties in connection with the
acquisition, construction or erection of a Project and costs related to transition of such
Project into ownership by the Issuer;
(G) Costs incurred directly or indirectly in placing any Project in operation in
order that completion of such Project may occur;
(H) Costs of acquiring any real property from a Person, including but not
limited to the costs relating to any transaction related thereto;
(I) Any other costs relating to Project authorized pursuant to a Supplemental
Resolution of the Issuer and permitted under the laws of the State, subject to the prior
written approval of Note Counsel; and
(J) Reimbursements to the Issuer for any of the above items hereinbefore
paid by or on behalf of the Issuer, to the extent deemed permissible by Note Counsel.
It is intended that this definition be broadly construed to encompass all costs, expenses and
liabilities of the Issuer related to the Project which on the date of this Resolution or in the future
shall be permitted to be funded with the proceeds of the Series 2013 Note pursuant to the laws
of the State. Notwithstanding anything else in this Resolution to the contrary, in the Event of
Default, to the extent there are no other available funds held hereunder, use of the remaining
funds in the Project Fund to pay principal and interest on the Series 2013 Note to which it was
established shall constitute a "Project Cost" hereunder.
"Project Fund " means the Project Fund established with respect to the Series 2013 Note
pursuant to Section 10 hereof.
"Refunded Note" means the City of Tamarac, Florida Taxable Redevelopment Revenue
Note, Series 2011.
"Refunded Project" means the acquisition and redevelopment of real property within the
City of Tamarac, Florida, to be used for community redevelopment purposes and financed with
proceeds of the Refunded Note.
"Requisition" shall mean a written request for a disbursement from the authorized
amount of the Series 2013 Note signed by the Director of Financial Services, substantially in the
form attached hereto as Exhibit D and satisfactorily completed pursuant to the terms of such
Series 2013 Note.
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"Resolution" means this Resolution, pursuant to which the Series 2013 Note is authorized
to be issued, including any supplemental resolution(s).
"Series 2013 Note" means the Capital Improvement Revenue Note, Series 2013 (Taxable)
of the Issuer authorized by Section 4 hereof.
"State" means the State of Florida.
Section 3: Findin s.
(A) For the benefit of its inhabitants, the Issuer finds, determines and declares that it
is necessary for the continued preservation of the economic welfare, and the health, welfare and
safety, of the Issuer and its inhabitants to finance and/or refinance the cost of acquisition and
redevelopment of real property within the City of Tamarac, Florida, to be used for community
development or redevelopment purposes, and various other capital improvements to public
facilities owned by the Issuer. Issuance of the Series 2013 Note to refinance all of the
outstanding principal amount of the Refunded Note, the proceeds of which were used to
finance and refinance the Refunded Project and to finance/or refinance the Projects satisfies a
paramount public purpose by fostering community development and increased economic
activity in the Issuer by providing a more vibrant community in and for the Issuer and its
inhabitants, and for preserving the continued health, welfare, and safety of the Issuer and its
citizens.
(B) Debt service on the Series 2013 Note will be secured by the Pledged Revenues as
provided herein.
(C) Debt service on the Series 2013 Note and all other payments hereunder shall be
payable solely from moneys deposited in the manner and to the extent provided herein. The
Issuer shall never be required to levy ad valorem taxes or use the proceeds thereof to pay debt
service on the Series 2013 Note or to make any other payments to be made hereunder or to
maintain or continue any of the activities of the Issuer which generate user service charges,
regulatory fees or any other Non -Ad Valorem Revenues. The Series 2013 Note shall not
constitute a lien on any property owned by or situated within the limits of the Issuer.
(D) It is estimated that the Non -Ad Valorem Revenues will be available in the
General Fund after satisfying funding requirements for obligations having an express lien on or
pledge thereof and after satisfying funding requirements for essential governmental services of
the Issuer, in amounts sufficient to provide for the payment of the principal of and interest on
Series 2013 Note and all other payment obligations hereunder.
(E)
In response
to the Issuer's
Request
for Proposals
("RFP") dated August 9,
2013,
the
Issuer
has
received
an
offer
from the
Original
Purchaser
to
purchase
the
Series 2013
Note.
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The Financial Advisor, following a review of all bank responses to the RFP, has recommended
that the proposal from the Original Purchaser is the best means by which to achieve the
objectives described in Section 3(A) above.
(F) In consideration of the purchase and acceptance of the Series 2013 Note
authorized to be issued hereunder by those who shall be the Owner thereof from time to time,
this Resolution shall constitute a contract between the Issuer and the Owner.
Section 4: Authorization of Refinancing of the Refunded Note and the Projects. Subject and
pursuant to the provisions of this Resolution, an obligation of the Issuer to be known as the
"City of Tamarac, Florida Capital Improvement Revenue Note, Series 2013 (Taxable)" (the
"Series 2013 Note") is hereby authorized to be issued under and secured by this Resolution,
initially as a revolving line of credit, in the aggregate principal amount, taking into account any
principal amounts previously repaid, of not to exceed $20,000,000 at any one time for the
purpose of refinancing the Refunded Note, financing and/or refinancing the Projects, and
paying the costs of issuing the Series 2013 Note.
Upon the execution and delivery of the Series 2013 Note and simultaneous retirement of
I the Refunded Note, the Refunded Note shall no longer be outstanding and shall be cancelled
and no further draws thereunder shall be permitted.
The Project is hereby authorized.
Because of the characteristics of the Series 2013 Note, prevailing market conditions, and
additional savings to be realized from an expeditious sale of the Series 2013 Note, it is in the
best interest of the Issuer to accept the offer of the Original Purchaser to purchase the Series
2013 Note at a private negotiated sale. Prior to the issuance of the Series 2013 Note, the Issuer
shall receive from the Original Purchaser a Lender's Certificate, the form of which is attached
hereto as Exhibit B, and the Disclosure Letter containing the information required by Section
218.385, Florida Statutes, a form of which is attached hereto as Exhibit C.
Section 5: Description d,,Series 2013 Note. The Series 2013 Note shall be dated the date of
its execution and delivery, which shall be a date agreed upon by the Issuer and the Original
Purchaser, subject to the following terms:
(A) Interest Rate Prior to Conversion.
i. From the date of each respective Advance until the automatic conversion
on October 1, 2016, interest on the Series 2013 Note shall accrue on the outstanding
balance of the Series 2013 Note, taking into account any principal amounts previously
repaid, at a variable interest rate equal to the One Month Libor Rate plus 1.10% per
annum (the "Pre -Conversion (Taxable) Variable Interest Rate"). The Pre -Conversion
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(Taxable) Variable Interest Rate will initially be established two (2) Business Days prior
to the issuance of the Series 2013 Note. The Pre -Conversion (Taxable) Variable Interest
Rate shall adjust on the first Business Day of every month thereafter, to the rate
computed as of two (2) Business Days prior thereto, and remain fixed until the next
monthly adjustment date (each, a "Monthly Adjustment Date").
ii. Upon original issuance, the Series 2013 Note shall initially be in the mode
of a revolving line of credit permitting the Issuer to draw not to exceed $20,000,000 in
the aggregate principal amount at any one time, taking into account any principal
amounts previously repaid.
iii. Interest on the Series 2013 Note shall be paid semi-annually commencing
April 1, 2014, and on each subsequent October 1 and April 1 until conversion of the
mode to the term loan mode. Before conversion, no principal on the Series 2013 Note
shall be due.
iv. Prior to August 31, 2016, amounts repaid hereunder may be re -borrowed
so long as the , total principal amount of the Series 2013 Note outstanding at any one
time, taking into account all combined Advances (as hereinafter defined) which have not
been repaid, does not exceed $20,000,000.
(B) Conversion to Term Loan Mode; Interest Rate Following Conversion.
i. Effective on October 1, 2016, the Series 2013 Note shall automatically
convert into a term loan in a principal amount equal to the principal amount of the
Series 2013 Note outstanding on September 30, 2016. On September 1, 2016 (the
"Election Date"), the Director of Financial Services shall notify the Owner of the Series
2013 Note in writing as to which interest rate method it wants to apply to the Series 2013
Note during the term loan mode effective October 1, 2016, and can choose either (i) or
(11): (i) the Post -Conversion (Taxable) Variable Interest Rate; or (11*) the Post -Conversion
(Taxable) Fixed Interest Rate; provided, however, election of the Post -Conversion
(Taxable) Fixed Interest Rate is subject to the written consent of the Owner of the Series
2013 Note.
ii. The "Post -Conversion (Taxable) Variable Interest Rate" means a variable
interest rate equal to One Month Libor Rate plus 1.10% per annum. The Post -
Conversion (Taxable) Variable Interest Rate, if elected, will initially be established two
(2) Business Days prior to October 1, 2016. The Post -Conversion (Taxable) Variable
Interest Rate shall adjust on the first Business Day of every month thereafter, to the rate
computed as of two (2) Business Days prior thereto, and remain fixed until the next
Monthly Adjustment Date.
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iii. The "Post -Conversion (Taxable) Fixed Interest Rate" means a fixed
interest rate determined on the Election Date and which shall be determined by
amendment to this Resolution in accordance with Section 13.
iv. The principal of a term loan relating to the Series 2013 Note shall be
payable annually on each October 1, commencing on October 1, 2017. Upon conversion
to a term loan, the Owner of the Series 2013 Note shall provide an amortization schedule
to the Issuer that, with the approval of the Director of Financial Services, such approval
not to be unreasonably withheld, shall provide substantially level annual debt service
payments based on an assumed 7-year amortization and an agreed upon interest rate.
Such amortization schedule shall be attached to the Series 2013 Note as Schedule B.
(C) Principal and Interest Payment Dates. Interest on the Series 2013 Note shall be
paid semi-annually on each April 1 and October 1, commencing April 1, 2014. All principal on
the Series 2013 Note shall be paid in the manner and to the extent described in Section 5(B)
above.
(D) Prepayment of the Series 2013 Note. Upon at least five (5) Business Days prior
written notice from the Issuer to the Owner, the Series 2013 Note shall be subject to prepayment
on any Monthly Adjustment Date at the option of the Issuer in whole or in part at a price equal
to the principal amount thereof to be prepaid, plus accrued interest to the date fixed for
prepayment, without penalty. Upon the written direction of the Owner, prepayment in part
shall be applied first against accrued and unpaid interest and then against scheduled payments
of principal installments hereunder as designated by the Owner in writing.
(E) Form of the Series 2013 Note. The Series 2013 Note is to be in substantially the
form set forth in Exhibit A attached hereto, together with such non -material changes as shall be
approved by the Mayor and the City Manager, such approval to be conclusively evidenced by
the execution thereof by the Mayor and the City Manager. The Series 2013 Note shall be
executed on behalf of the Issuer with the manual or facsimile signature of the Mayor and the
City Manager and the official seal of the Issuer, be attested with the manual or facsimile
signature of the City Clerk, and be approved as to form by the City Attorney. In case any one or
more of the officers who shall have signed or sealed the Series 2013 Note or whose facsimile
signature shall appear thereon shall cease to be such officer of the Issuer before the Series 2013
Note so signed and sealed has been actually sold and delivered, such Series 2013 Note -may
nevertheless be sold and delivered as herein provided and may be issued as if the person who
signed or sealed such Series 2013 Note had not ceased to hold such office. The Series 2013 Note
may be signed and sealed on behalf of the Issuer by such person who at the actual time of the
execution of such Series 2013 Note shall hold the proper office of the Issuer, although, at the
date of such Series 2013 Note, such person may not have held such office or may not have been
so authorized. The Issuer may adopt and use for such purposes the facsimile signatures of any
such persons who shall have held such offices at any time after the date of the adoption of this
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Resolution, notwithstanding that either or both shall have ceased to hold such office at the time
the Series 2013 Note shall be actually sold and delivered.
(F) Original Denomination. The Series 2013 Note shall originally be issued in a
single denomination equal to the original principal amount authorized hereunder.
(G) Interest Rates Generally. The Interest Rate shall be calculated on the basis of a
360-day year comprised of twelve 30-day months. The Interest Rate shall in no event exceed the
maximum interest rate permitted by the Act.
Section 6: Registration and Exchange of Series 2013 Note; Persons Treated as Owner. The
Series 2013 Note is initially registered to the Original Purchaser. So long as the Series 2013 Note
shall remain unpaid, the Issuer will keep books for the registration and transfer of the Series
2013 Note. The Series 2013 Note shall be transferable only upon such registration books.
Notwithstanding anything herein to the contrary, the Original Purchaser may in the future
make transfers or enter into participation agreements or securitization transactions with respect
to the Series 2013 Note; provided, however, the Series 2013 Note must be in minimum
denominations of $100,000 upon any such transaction.
The Person in whose name the Series 2013 Note shall be registered shall be deemed and
regarded as the absolute owner thereof for all purposes, and payment of principal and interest
on such Series 2013 Note shall be made only to or upon the written order of the Owner. All
such payments shall be valid and effectual to satisfy and discharge the liability upon such Series
2013 Note to the extent of the sum or sums so paid.
Section 7: Payment of Principal and Interest; Limited Obligation. The Issuer promises that it
will promptly pay the principal of and interest on the Series 2013 Note at the place, on the dates
and in the manner provided therein according to the true intent and meaning hereof and
thereof. The Series 2013 Note is secured by a pledge of and lien upon the Pledged Revenues in
the manner and to the extent described herein. The Series 2013 Note shall not be or constitute a
general obligation or indebtedness of the Issuer as a "bond" within the meaning of Article VII,
Section 12 of the Constitution of Florida, but shall be payable solely from the Pledged Revenues
in accordance with the terms hereof. No holder of the Series 2013 Note issued hereunder shall
ever have the right to compel the exercise of any ad valorem taxing power or taxation of any
real or personal property thereon or the use or application of ad valorem tax revenues to pay
such Series 2013 Note, or be entitled to payment of such Series 2013 Note from any funds of the
Issuer except from the Pledged Revenues as described herein.
Section 8: Covenant to Budget and Appropriate; Establish Debt Service Fund. Subject to the
next paragraph, the Issuer covenants and agrees to appropriate in its annual budget, by
amendment, if necessary, from Non -Ad Valorem Revenues, and to deposit into the Debt Service
Fund hereinafter created, amounts sufficient to pay principal of and interest on the Series 2013
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Note not being paid from other amounts as the same shall become due. Such covenant and
agreement on the part of the Issuer to budget, appropriate and deposit such amounts of Non -
Ad Valorem Revenues shall be cumulative to the extent not paid, and shall continue until such
Non -Ad Valorem Revenues or other legally available funds in amounts sufficient to make all
such required payments shall have been budgeted, appropriated, deposited and actually paid.
No lien upon or pledge of such budgeted Non -Ad Valorem Revenues shall be in effect until
such monies are budgeted, appropriated and deposited as provided herein. The Issuer further
acknowledges and agrees that the obligations of the Issuer to include the amount of any
deficiency in payments in each of its annual budgets and to pay such deficiencies from Non -Ad
Valorem Revenues may be enforced in a court of competent jurisdiction in accordance with the
remedies set forth herein.
Until such monies are budgeted, appropriated and deposited as provided herein, 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 Issuer from pledging in the future its Non -Ad
Valorem Revenues, nor does it require the Issuer to levy and collect any particular Non -Ad
Valorem Revenues, nor does it give the holder of the Series 2013 Note a prior claim on the Non -
Ad Valorem Revenues as opposed to claims of general creditors of the Issuer. Such covenant to
budget and appropriate Non -Ad Valorem Revenues is subject in all respects to the prior
payment of obligations secured by a pledge of such Non -Ad Valorem Revenues heretofore or
hereafter entered into (including the payment of debt service on bonds and other debt
instruments). Anything in this Resolution to the contrary notwithstanding, it is understood and
agreed that all obligations of the Issuer hereunder shall be payable from the portion of Non -Ad
Valorem Revenues budgeted, appropriated and deposited as provided herein and nothing
herein shall be deemed to pledge ad valorem taxing power or ad valorem tax revenues or to
permit or constitute a mortgage or lien upon any assets owned by the Issuer and no holder of
the Series 2013 Note nor any other person, may compel the levy of ad valorem taxes on real or
personal property within the boundaries of the Issuer or the use or application of ad valorem
tax revenues in order to satisfy any payment obligations hereunder or to maintain or continue
any of the activities of the Issuer which generate user service charges, regulatory fees, or any
other Non -Ad Valorem Revenues. The obligation of the Issuer to budget, appropriate, deposit
and make payments hereunder from its Non -Ad Valorem Revenues is subject to the availability
of Non -Ad Valorem Revenues after the satisfaction of the funding requirements for obligations
having an express Lien on or pledge of such revenues and the funding requirements for essential
governmental services of the Issuer. Notwithstanding any provisions of this Resolution or the
Series 2013 Note to the contrary, the Issuer shall never be obligated to maintain or continue any
of the activities of the Issuer which generate user service charges, regulatory fees or any Non -
Ad Valorem Revenues. Until such monies are budgeted, appropriated and deposited as
provided herein, neither this Resolution nor the obligations of the Issuer hereunder shall be
construed as a pledge of or alien on all or any Non -Ad Valorem Revenues of the Issuer, but
shall be payable solely as provided herein and is subject in all respects to the provisions of
Section 166.241, Florida Statutes, and is subject, further, to the payment of services and
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programs which are for essential public purposes affecting the health, welfare and safety of the
inhabitants of the Issuer.
There is hereby created and established the "City of Tamarac, Florida Capital
Improvement Revenue Note Series 2013 (Taxable) Debt Service Fund," which fund shall be a
trust fund held by the Director of Financial Services, which shall be held solely for the benefit
of the Owner of the Series 2013 Note. The Debt Service Fund shall be deemed to be held in trust
for the purposes provided herein for such Fund. The money in such Fund shall be continuously
secured in the same manner as state and municipal deposits are authorized to be secured by the
laws of the State of Florida. The designation and establishment of the Debt Service Fund in and
by this Resolution shall not be construed to require the establishment of a completely
independent, self -balancing fund as such term is commonly defined and used in governmental
accounting, but rather is intended solely to constitute an earmarking of certain revenues and
assets of the Issuer for certain purposes and to establish certain priorities for application of such
revenues and assets as herein provided. The Issuer may at any time and from time to time
appoint one or more depositaries to hold, for the benefit of the Owner of the Series 2013 Note,
the Debt Service Fund established hereby. Such depository or depositaries shall perform at the
direction of the Issuer the duties of the Issuer in depositing, transferring and disbursing moneys
to and from each such Fund as herein set forth, and all records of such depositary in performing
such duties shall be open at all reasonable times to inspection by the Issuer and its agent and
employees. Any such depositary shall be a bank or trust company duly authorized to exercise
corporate trust powers and subject to examination by federal or state authority, of good
standing, and having a combined capital, surplus and undivided profits aggregating not less
than fifty million dollars ($50,000,000).
Notwithstanding anything herein to the contrary, the Issuer may invest amounts on
deposit in the Debt Service Fund in accordance with the Act and the Issuer's written investment
policy.
Section 9. Anti -Dilution Test.
(A) During such time as the Series 2013 Note is outstanding hereunder, the Issuer
agrees and covenants not to incur any Debt unless it demonstrates that Non -Ad Valorem
Revenues shall cover maximum annual debt service on the Series 2013 Note, any other Debt
and such proposed Debt by at least 1.5x. The calculation required in the preceding sentence
shall be determined using the average of actual Non -Ad Valorem Revenues for the prior two
Fiscal Years based on the Issuer's annual audited financial statements for such Fiscal Years.
(B) For the purposes of the covenants contained in this Section 9, maximum annual
debt service on Debt means, with respect to Debt that bears interest at a fixed interest rate, the
actual annual debt service, and, with respect to Debt which bears interest at a variable. interest
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rate, annual debt service on such Debt shall be determined assuming that interest accrues on
such Debt at the current "Bond Buyer Revenue Bond Index" as published in The Bond Buyer no
more than two weeks prior to any such calculation; provided, however, if any Debt, whether
bearing interest at a fixed or variable interest rate, constitutes Balloon Indebtedness, as defined
in the immediately following sentence, annual debt service on such Debt shall be determined
assuming such Debt is amortized over 25 years on an approximately level debt service basis.
For purposes of the foregoing sentence, "Balloon Indebtedness" means Debt, 25% or more of the
original principal of which matures or is obligated to be repaid during any one Fiscal Year. The
foregoing notwithstanding, for purposes of calculating annual debt service, any Debt which
bears interest at a variable rate with respect to which the Issuer has entered into an interest rate
swap or interest rate cap for a notional amount equal to the principal amount of such variable
rate indebtedness shall be treated for purposes of this Section 9 as bearing interest at a fixed rate
equal to the fixed rate payable by the Issuer under the interest rate swap, or the capped rate
provided by the interest rate cap.
(C) With respect to debt service on any Debt with respect to which the Issuer elects
to receive or is otherwise entitled to receive direct subsidy payments from the United States
Department of Treasury, when determining the interest on such Debt for any particular interest
payment date the amount of the corresponding subsidy payment shall be deducted from the
amount of interest which is due and payable with respect to such Debt on the interest payment
date, but only to the extent that the Issuer reasonably believes that it will be in receipt of such
subsidy payment on or prior to such interest payment date. In that case, such direct subsidy
payments shall not be treated as Non -Ad Valorem Revenues to avoid double counting.
Section 10. Application of Proceeds of Series 2013 Note; Prol*ect Fund and Requisition.
(A) Application of Proceeds of the Series 2013 Note. All proceeds from the draws on
the Series 2013 Note shall be used to refinance the Refunded Note, pay or refinance Project
Costs, and to pay associated costs of issuance (including but not limited to legal and financial
advisory fees and expenses) in accordance with the provisions in the next paragraph.
(B) Establishment of the Project Fund.
i. The Issuer hereby covenants that it will establish a fund with a depository
in the State of Florida, which is a member of the Federal Deposit Insurance Corporation
and which is eligible under the laws of the State of Florida to receive municipal funds, to
be known as the "City of Tamarac, Florida Taxable Capital Improvement Revenue Note,
Series 2013 (Taxable) Project Fund" (the "Project Fund"), and will account for the
proceeds in such Project Fund by earmarking the monies. The Project Fund established
herein may be invested in a common investment pool, provided that adequate
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accounting records are maintained to reflect and control the restricted allocation of the
moneys on deposit therein and such investments for the various purposes of such
Project Fund as herein provided. The designation and establishment of the Project Fund
in and by this Resolution shall not be construed to require the establishment of any
completely independent, self -balancing funds as such term is commonly defined and
used in governmental accounting, but rather is intended solely to constitute an
earmarking of certain revenues for certain purposes and to establish certain priorities for
application of such monies as herein provided.
ii. Proceeds from all draws on the Series 2013 Note herein authorized shall
be deposited, when drawn, into the Project Fund. When the Refunded Note has been
refinanced, the Projects have been completed and all Project Costs have been paid in full,
all funds remaining in the Project Fund shall be used to prepay all or a portion of the
Series 2013 Note pursuant to Section 5(D) hereof. All moneys deposited in said Project
Fund shall be and constitute a trust fund created for the purposes stated, and there is
hereby created alien upon such fund in favor of the Owners of the Series 2013 Note
until the moneys thereof shall have been applied in accordance with this Resolution.
(C) Funds and Accounts Held in Trust.
i. The funds and accounts created and established by this Resolution shall
constitute trust funds for the purpose provided herein for such funds. There is hereby
created alien upon such funds and accounts in favor of the Owners of the Series 2013
Note until the moneys thereof shall have been applied in accordance with this
Resolution and all of such funds, except as hereinafter provided, shall be continuously
secured in the same manner as municipal deposits of funds are required to be secured
by the laws of the State of Florida. Moneys on deposit to the credit of all funds and
accounts created hereunder may be invested pursuant to applicable law and the Issuer's
investment policy and shall mature not later than the dates on which such moneys shall
be needed to make payments in the manner herein provided. The securities so
purchased as an investment of funds shall be deemed at all times to be a part of the
account from which the said investment was withdrawn, and the interest accruing
thereon and any profit realized therefrom shall be credited to such fund or account,
except as expressly provided in this Resolution, and any loss resulting from such
investment shall likewise be charged to said fund or account.
ii. Notwithstanding the foregoing, to the extent proceeds from the sale of
the Series 2013 Note are so invested and no cash is remaining, the Project Fund shall
then constitute all such investments and the above -described depository account shall
not be established.
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iii. Notwithstanding anything herein to the contrary,
amounts on deposit in the Project Fund in accordance with th
written investment policy.
October 9, 2013
Page 15 of 35
e
the Issuer may invest
Act and the Issuer's
Section 11: Advances Linder the Note. On or prior to August 31, 2016, the Series 2013
Note may be drawn upon in multiple drawings (each an "Advance") under the following terms:
i. Each Advance must be requested by the Issuer (a "Requisition") in
writing in the form attached hereto as Exhibit D, executed by the Director of Financial
Services and delivered to the Owner.
ii. An Advance may not be requested more often than once per month and
no later than two (2) Business Days prior to such Advance.
Each Requisition must be a mmimurn principal amount of at least
$100,000 or such smaller amount which will deplete all amounts available from the
original $20,000,000 aggregate principal amount available to be outstanding at any one
time hereunder;
iv. Each Advance Request must state that the Issuer remains in full
compliance with the terms of this Resolution, that no Event of Default thereunder
currently exists and that no Event of Default thereunder would exist with the passage of
time or the giving of notice;
V. No Requisition shall be honored after August 31, 2016, or during the
continuation of an Event of Default under the Resolution;
vi. Each Advance must be for Project Costs.
Section 12: Applicable Provisions of Law; Waiver of Turd Trial. This Resolution shall be
governed by and construed in accordance with the laws of the State of Florida. THE ISSUER
CONSENTS TO FLORIDA JURISDICTION AND AGREES TO WAIVE TRIAL BY JURY IN
ANY ACTION ARISING UNDER THIS RESOLUTION OR THE SERIES 2013 NOTE.
Section 13: Amendment. This Resolution shall not be modified or amended in any
respect subsequent to the issuance of the Series 2013 Note except with the written consent of all
of the Owners of the Series 2013 Note.
Section 14: Limitation of Rights. With the exception of any rights herein expressly
conferred, nothing expressed or mentioned in or to be implied from this Resolution or the Series
2013 Note is intended or shall be construed to give to any Person other than the Issuer .and the
Owner any legal or equitable right, remedy or claim under or with respect to this Resolution or
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any covenants, conditions and provisions herein contained; this Resolution and all of the
covenants, conditions and provisions hereof being intended to be and being for the sole and
exclusive benefit of the Issuer and the Owner.
Section 15: Series 2013 Note Mutilated, Destroyed, Stolen or Lost. In case the Series 2013
Note shall become mutilated, or be destroyed, stolen or lost, the Issuer shall issue and deliver a
new Series 2013 Note of like tenor as the Note so mutilated, destroyed, stolen or lost, in
exchange and in substitution for such mutilated Series 2013 Note, or in lieu of and in
substitution for the Series 2013 Note destroyed, stolen or lost and upon the Owner furnishing
the Issuer proof of ownership thereof and indemnity reasonably satisfactory to the Issuer and
complying with such other reasonable regulations and conditions as the Issuer may prescribe
and paying such expenses as the Issuer may incur. The Series 2013 Note so surrendered shall be
canceled.
Section 16: Impairment oL Contract. The Issuer covenants with the Owner of the Series
2013 Note that it will not, without the written consent of the Owner of the Series 2013 Note,
enact any ordinance or adopt any resolution which repeals, impairs or amends in any manner
adverse to the Owner the rights granted to the Owner of the Series 2013 Note hereunder.
Section 17: Budget, Financial and Other Information.
i. The Issuer shall provide the Owner of the Series 2013 Note with a copy of
its annual budget, prepared in accordance with Florida law, within thirty (30) days of its
adoption date, and such other financial information regarding the Issuer as the Owner of the
Series 2013 Note may reasonably request.
ii. Not later than one hundred eighty (180) days after the close of each Fiscal
Year, _the Issuer shall provide the Owner of the Series 2013 Note with its Comprehensive
Annual Financial Report including annual financial statements for each Fiscal Year of the Issuer,
prepared in accordance with applicable law and generally accepted accounting principles and
audited by an independent certified public accountant.
All accounting terms not specifically defined or specified herein shall
have the meanings attributed to such terms under generally accepted accounting principles as
in effect from time to time, consistently applied.
iv. Notwithstanding anything herein to the contrary, failure to comply with
the covenants agreements in this Section 17 shall not constitute an Event of Default hereunder.
Section 18: Index. To the extent permitted by law and as set forth below, the Issuer
shall defend, indemnify and hold harmless (collectively the indemnification) the Original
Purchaser, each member, officer, commissioner, employee and agent of the Original Purchaser
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and each other person, if any, who has the power, directly or indirectly, to direct or cause the
direction of the management and policies of the Original Purchaser, from and against, any and
all liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees), suits,
claims and judgments of whatsoever kind and nature in any manner directly or indirectly (by
way of the Issuer, its successors and assigns, or directly or indirectly through the agents,
contractors, employees, licensees or otherwise of the Issuer or its successors and assigns) arising
or resulting from, out of, or in connection with, this Resolution as a result of the breach or
violation of any agreement, covenant, representation or warranty by the Issuer set forth in the
this Resolution or any document delivered pursuant hereto or thereto or in connection herewith
or therewith, but not including an action arising from the alleged invalidity of the Series 2013
Note, except to the extent that such invalidity is caused by an act or omission of the Issuer or is
caused by the invalidity of this Resolution with respect to the Original Purchaser. In connection
therewith, the Original Purchaser agrees to use counsel reasonably acceptable to the Issuer. The
Original Purchaser shall give to the Issuer prompt notice of any such suits or claims.
This indemnification shall be construed to limit recovery by the indemnified party
against the Issuer to only those damages that are found to result from the negligence of the
Issuer, its governing body, or its employees. This indemnification shall not be construed to be
an indemnification for the acts, or omissions of third parties, independent contractors or third
party agents of the Issuer. This indemnification shall not be -construed as a waiver of the
Issuer's sovereign immunity and shall be limited to the extent described in Section 768.28,
Florida Statutes. An action may not be instituted on an indemnification claim against the Issuer
unless the claimant presents the claim in writing to the Issuer's Risk Manager within three (3)
years after such claim accrues or the Issuer's Risk Manager denies the claim in writing. For
purposes of this Section 18, the requirements of notice to the Issuer's Risk Manager or denial of
the claim are conditions precedent to maintaining an action but shall. not be deemed to be
elements of the cause of action and shall not affect the date on which the cause of action accrues.
Notwithstanding any other provisions of this Section 18, the value of this indemnification
including attorneys' fees and costs associated therewith, is limited to the maximum sum of
$200,000 as the result of all claims and judgments arising out of the same incident or occurrence,
not to exceed the sum of $300,000 for any claim or judgment or portions thereof, except with
respect to an action arising from the invalidity of the Series 2013 Note to the extent such
invalidity is caused by an act or omission of the Issuer or is caused by the invalidity of this
Resolution with respect to the Issuer.
The foregoing notwithstanding, nothing herein contained shall be construed and the
Original Purchaser shall not have the right to compel the exercise of the taxing power of the
Issuer in any form for the payment by the Issuer of its obligations, if any, hereunder.
The provisions of this Section shall survive the termination of this Resolution.
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Section 19: Events of Default; Remedies of Owner. The following shall constitute "Events
of Default:" (i) if the Issuer fails to make any payment of principal of or interest on the Series
2013 Note or any other debt of the Issuer secured by a covenant to budget and appropriate Non -
Ad Valorem Revenues as the same becomes due and payable; (ii) if the Issuer defaults in the
performance or observance of any covenant or agreement contained in this Resolution or the
Series 2013 Note (other than set forth in (i) above and other than the covenants and agreements
in Section 17 hereof) and fails to cure the same within thirty (30) days following written notice
thereof; (iii) filing of a petition by or against the Issuer relating to bankruptcy, reorganization,
arrangement or readjustment of debt of the Issuer or for any other relief relating to the Issuer
under the United States Bankruptcy Code, as amended, or any other insolvency act or law now
or hereafter existing, or the involuntary appointment of a receiver or trustee for the Issuer, and
the continuance of any such event for ninety (90) days undismissed or undischarged; (iv) the
occurrence of an event of default with respect to any other indebtedness of the Issuer secured
by a covenant of the Issuer to budget and appropriate Non -Ad Valorem Revenues which results
in the acceleration of such indebtedness of the Issuer; (v) final judgment that one" or more
material provisions of this Resolution or the Series 2013 Note is invalid, illegal or unenforceable
in any respect; or (vi) final judgment for the payment of money in the amount of $5,000,000 or
more is rendered against the Issuer, and the Issuer is liable to pay such judgment pursuant to
the provisions of Chapter 768, Florida Statutes or other applicable law, the payment of which
would materially adversely affect the Issuer's ability to meet its obligations hereunder (it being
agreed that, if insurance or adequate reserves are available to make such payment, such
judgment would not materially affect the Issuer's ability to meet its obligation hereunder) and
at any time after ninety (90) days from the entry thereof, unless otherwise provided in the final
judgment (a) such judgment shall not have been discharged, or (b) the Issuer shall not have
taken and be diligently prosecuting an appeal therefrom and, to the extent that any final process
or proceeding supplementary to enforce such judgment is lawfully available, such process or
proceeding has not been stayed pending determination of such appeal.
Upon the occurrence and during the continuation of any Event of Default, the Owner of
the Series 2013 Note may, in addition to any other remedies set forth in this Resolution or the
Series 2013 Note, either at law or in equity, by suit, action, mandamus or other proceeding in
any court of competent jurisdiction, protect and enforce any and all rights under the laws of the
State, or granted or contained in this Resolution, and may enforce and compel the performance
of all duties required by this Resolution, or by any applicable statutes to be performed by the
Issuer.
Upon and during the continuance of an Event of Default, notwithstanding anything
herein to the contrary, the Interest Rate shall adjust to the Default Rate as of the date of the
occurrence. "Default Rate" means the lesser of (a) the maximum rate permitted by applicable
law, and (b) the Prime Rate plus 3.00% per annum. "Prime Rate" means that index rate of
interest which the Owner, from time to time announces as its prime rate, which rate is an index
rate for guidance to loan officers and is not necessarily the best or lowest rate charged
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October 9, 2013
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borrowing customers of the Owner, or if such rate is no longer announced, such comparable
prime rate as shall be published in the Wall Street Journal.
In case of an Event of
Default, upon
written declaration of the
Owner,
the entire debt
then remaining unpaid
under
the
Series 2013
Note
shall
be immediately
due
and
payable.
The Issuer covenants and agrees to notify the Owner of any Event of Default it becomes
aware of within ten (10) days of becoming aware of such Event of Default.
Section 20: Sever . If any provision of this Resolution shall be held or deemed to be
or shall, in fact, be illegal, inoperative or unenforceable in any context, the same shall not affect
any other provision herein or render any other provision (or such provision in any other
context) invalid, inoperative or unenforceable to any extent whatever.
Section 21: Business Dates. In any case where the due date of interest on or principal of a
Series 2013 Note is not a Business Day, then payment of such principal or interest need not be
made on such date but may be made on the next succeeding Business Day, provided that credit
for payments made shall not be given until the payment is actually received by the Owner.
Section 22: Applicable
Provisions of
,Law.
This Resolution shall be governed by and
construed
in accordance
with
the
laws of the
State
of Florida.
Section 23: Rules of Interpretation. Unless expressly indicated otherwise, references to
sections or articles are to be construed as references to sections or articles of this instrument as
originally executed. Use of the words "herein," "hereby," "hereunder," "hereof," "hereinbefore,"
"hereinafter" and other equivalent words refer to this Resolution and not solely to the particular
portion in which any such word is used.
Section 24: Captions. The captions and headings in this Resolution are for convenience
only and in no way define, limit or describe the scope or intent of any provisions or sections of
this Resolution.
Section 25: City Commission Members of the Issuer .Exempt from Personal Liability. No
recourse under or upon any obligation, covenant or agreement of this Resolution or the Series
2013 Note or for any claim based thereon or otherwise in respect thereof, shall be had against
any City Commission member of the Issuer, as such, of the Issuer, past, present or future, either
directly or through the Issuer it being expressly understood (a) that no personal liability
whatsoever shall attach to, or is or shall be incurred by, the City Commission member of the
Issuer, as such, under or by reason of the obligations, covenants or agreements contained in this
Resolution or implied therefrom, and (b) that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such rights and claims
against, every such City Commission member of the Issuer, as such, are waived and released as
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October 9, 2013
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a condition of,
and as a
consideration
for, the execution of this Resolution and the issuance of
the
Series 2013
Note, on
the
part of the
Issuer.
Section 26: Authorizations; Budget Adjustments.
(A) The Mayor and any member of the City Commission, the City Manager, the City
Attorney, the City Clerk, the Director of Financial Services and such other officials and
employees of the Issuer as may be designated by the Issuer are each designated as agents of the
Issuer in connection with the issuance and delivery of the Series 2013 Note 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 Issuer that are necessary or desirable in
connection with the execution and delivery of the Note, and which are specifically authorized
or are not inconsistent with the terms and provisions of this Resolution.
(B) The Director of Financial Services or his designee is hereby authorized and
empowered to make all budget adjustments to effectuate the intent of this Resolution.
Section 27: Intent to Reimburse. The City Commission hereby expresses its intention that
the Issuer be reimbursed from the proceeds of the Series 2013 Note for costs relating to the
Project. Pending reimbursement, the Issuer expects to use funds on deposit in the City's
General Fund or other appropriate fund or account to pay such costs. This Resolution is
intended to constitute with respect to the Project a declaration of official intent for purposes of
the Act.
Section 28: Repealer. All resolutions or parts thereof in conflict herewith are hereby
repealed.
Section 29: No Third Partite 'ciaries. Except such other persons as may be expressly
described in this Resolution or in the Series 2013 Note, nothing in this Resolution or in the Series
2013 Note, expressed or implied, is intended or shall be construed to confer upon any person,
other than the Issuer and the Owner, any right, remedy or claim, legal or equitable, under and
by reason of this Resolution, or any provision thereof, or of the Series 2013 Note, all provisions
thereof being intended to be and being for the sole and exclusive benefit of the Issuer and the
Persons who shall from time to time be Owners.
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Section 30:
adoption.
October 9, 2013
Page 21 of 35
Effective Date. This Resolution shall take effect immediately upon its
[Remainder of page intentionally left blank]
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PASSED AND ADOPTED this 9thday of October, 2013.
CITY OF TAMARAC, FLORIDA
(SEAL)
BY:
NAME: BETH TALABISCO
TITLE: MAYOR
ATTEST:
I Impow
mow,,
PATRICIA TEUFEL,
CITY CLERK
RECORD OF COMMISSION VOTE:
MAYOR TALABISCO aiAag"A�
DIST 1: COMM. BUSHNE
DIST 2: COMM. GOMEZ
DIST 3: COMM. GLASS
DIST 4: V/M. DRESSLEF
I HEREBY CERTIFY THAT I HAVE
APPROVED THIS RESOLUTION
AS TO FORM
VICITY
AMI�EL S. GOREN
ATTORNEY
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EXHIBIT A
[FORM OF SERIES 2013 NOTE]
ANY OWNER SHALL, PRIOR TO BECOMING A REGISTERED OWNER, EXECUTE A
LENDER'S CERTIFICATE IN THE FORM ATTACHED TO THE RESOLUTION (HEREIN
DEFINED) CERTIFYING, AMONG OTHER THINGS, THAT SUCH REGISTERED OWNER IS
AN "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN THE SECURITIES ACT OF
1933, AS AMENDED, AND REGULATION D THEREUNDER.
October 2013
CITY OF TAMARAC, FLORIDA
CAPITAL IMPROVEMENT REVENUE NOTE, SERIES 2013 (TAXABLE)
KNOW ALL MEN BY THESE PRESENTS that the City of Tamarac, Florida (the
"Issuer"), a municipal corporation created and existing pursuant to the Constitution and the
laws of the State of Florida, for value received, promises to pay from the sources hereinafter
provided, to the order of PNC Bank, National Association or registered assigns (hereinafter, the
"Owner"), the principal amount outstanding hereunder (to be noted on Schedule A attached to
this City of Tamarac, Florida Capital Improvement Revenue Note, Series 2013 (Taxable) (the
"Series 2013 Note") in accordance with the terms hereof and in the hereinafter defined
Resolution), on the dates as hereinafter described, together with interest on the outstanding
principal balance, taking into account any principal amounts previously repaid, at the Interest
Rate defined herein, calculated on the basis of a 360-day year comprised of twelve 30-day
months; provided, however, that such Interest Rate shall in no event exceed the maximum
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October 9, 2013
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interest rate permitted by applicable law. Notwithstanding anything hereunder or in the
Resolution to the contrary, no more than $20,000,000 may be outstanding hereunder at any one
time. "Interest Rate" means the Pre -Conversion (Taxable) Variable Interest Rate, the Post -
Conversion (Taxable) Variable Interest Rate or the Post -Conversion (Taxable) Fixed Interest
Rate, whichever is applicable in accordance with the terms hereof and in the Resolution. This
Series 2013 Note shall have a final Maturity Date of October 1, 2023.
The Interest Rate from the date of each respective Advance until the automatic
conversion on October 1, 2016 from the revolving line of credit mode to the term loan mode (the
"Pre -Conversion (Taxable) Variable Interest Rate") is equal to the One Month Libor Rate plus
1.10% per annum. The "One Month Libor Rate" is a fluctuating rate of interest equal to the one
month London Interbank Offered Rate ("LIBOR") which appears on the Bloomberg Reporting
Service (or, if such source is not available, such alternate source as determined by the Owner on
the immediately preceding Business Day). The Pre -Conversion (Taxable) Variable Interest Rate
will be initially established two (2) Business Days prior to the issuance of this Series 2013 Note.
The Pre -Conversion (Taxable) Variable Interest Rate shall adjust on the first Business Day of
every month thereafter, to the rate computed as of two (2) Business Days prior thereto, and
remain fixed until the next monthly adjustment date.
Interest shall be payable to the Owner on each April 1 and October 1, commencing on
April 1, 2014.
No principal payments on this Series 2013 Note are required while this Series 2013 Note
bears interest at the Pre -Conversion (Taxable) Variable Interest Rate.
Prior to the August 31, 2016, amounts repaid hereunder may be re -borrowed so long as
the total principal amount of the Note outstanding, taking into account all combined advances
which have not been repaid, does not exceed $20,000,000.
Effective on October 1, 2016, this Series 2013 Note shall automatically convert into a term
loan in a principal amount equal to the principal amount of this Series 2013 Note outstanding
on September 30, 2016. On September 1, 2016 (the "Election Date"), the Director of Financial
Services shall notify the Owner of this Series 2013 Note in writing as to which interest rate
method it wants to apply to this Series 2013 Note during the term loan mode effective October
1, 2016, to be noted on Schedule B attached to this Series 2013 Note, and can choose either (i) or
(ii): (i) the Post -Conversion (Taxable) Variable Interest Rate; or (H) the Post -Conversion
(Taxable) Fixed Interest Rate; provided, however, election of the Post -Conversion (Taxable)
Fixed Interest Rate is subject to the written consent of the Owner of this Series 2013 Note.
The "Post -Conversion (Taxable) Variable Interest Rate" means a variable interest rate
equal to One Month Libor Rate plus 1.10% per annum. The Post -Conversion (Taxable) Variable
Interest Rate, if elected, will initially be established two (2) Business Days prior to October 1,
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2016. The Post -Conversion '(Taxable) Variable Interest Rate shall adjust on the first Business
Day of every month thereafter, to the rate computed as of two (2) Business Days prior thereto,
and remain fixed until the next monthly adjustment date.
The "Post -Conversion (Taxable) Fixed Interest Rate" means a fixed interest rate
determined on the Election Date and which shall be determined by amendment to the
Resolution in accordance with Section 13 thereof.
The principal of a term loan relating to this Series 2013 Note shall be payable annually
on each October 1, commencing on October 1, 2017. Upon conversion to a term loan, the Owner
shall provide an amortization schedule to the Issuer that, with the approval of the Director of
Financial Services, such approval not to be unreasonably withheld, shall provide substantially
Y
level annual debt service payments based on an assumed 7-year amortization and an agreed
upon assumed interest rate. Such amortization schedule shall be attached to this Series 2013
Note as Schedule B.
A final payment in the amount of the entire principal balance, together with all accrued
and unpaid interest hereon, shall be due and payable in full on the Maturity Date.
Upon at least five (5) Business Days prior written notice from the Issuer to the Owner,
this Series 2013 Note shall be subject to prepayment on any Monthly Adjustment Date (as
defined in the Resolution) at the option of the Issuer in whole or in part at a price equal to the
principal amount thereof to be prepaid, plus accrued interest to the date fixed for prepayment,
without penalty. Upon the written direction of the Owner, prepayment in part shall be applied
first against accrued and unpaid interest and then against scheduled payments of principal
installments hereunder as designated by the Owner in writing.
If any date for the payment of principal and interest hereon shall fall on a day which is
not a Business Day (as defined in the Resolution) the payment due on such date shall be due on
the next succeeding day which is a Business Day, but the Issuer shall not receive credit for the
payment until it is actually received by the Owner.
All payments by the Issuer pursuant to this Series 2013 Note shall apply first to accrued
interest, then to other charges due the Owner, and the balance thereof shall apply to principal.
THIS SERIES 2013 NOTE DOES NOT CONSTITUTE A GENERAL INDEBTEDNESS OF
THE ISSUER WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY OR
CHARTER PROVISION OR LIMITATION, AND IT IS EXPRESSLY AGREED BY THE OWNER
OF THIS SERIES 2013 NOTE THAT SUCH OWNER SHALL NEVER HAVE THE RIGHT TO
REQUIRE OR COMPEL THE EXERCISE OF THE AD VALOREM TAXING POWER OF THE
ISSUER OR TAXATION OF ANY REAL OR PERSONAL PROPERTY THEREIN OR USE OR
APPLICATION OF AD VALOREM TAX REVENUES OF THE ISSUER FOR THE PAYMENT
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OF THE PRINCIPAL OF AND INTEREST ON THIS SERIES 2013 NOTE OR THE MAKING OF
ANY OTHER PAYMENTS PROVIDED FOR IN THE RESOLUTION.
This Series 2013 Note is issued pursuant to the Constitution of the State of Florida,
Chapter 166, Part II, Florida Statutes, the municipal charter of the Issuer and a resolution duly
adopted by the Issuer on October 9, 2013, as amended and supplemented from time to time
(herein referred to as the "Resolution"), and is subject to all the terms and conditions of the
Resolution. All terms, conditions and provisions of the Resolution including, without
limitation, remedies in the Event of Default, are by this reference thereto incorporated herein as
a part of this Series 2013 Note. Payment of the Series 2013 Note is secured by a pledge of and
lien upon the Pledged Revenues, in the manner and to the extent described in the Resolution.
Terms used herein in capitalized form and not otherwise defined herein shall have the
meanings ascribed thereto in the Resolution.
The Series 2013 Note shall initially be issued as a revolving line of credit in an amount
not to exceed $20,000,000 at any one time, taking into account any principal amounts previously
repaid, which shall be subject to conversion to a term loan as described above, and the Issuer
promises to pay the Owner interest on amounts outstanding from the date funds are drawn at
the Interest Rate described above, but in no event shall it exceed the maximum interest rate
permitted by applicable law. No principal payments on this Series 2013 Note are required while
this Series 2013 Note bears interest at the Pre -Conversation (Taxable) Variable Interest Rate.
The Issuer may make draws on this Series 2013 Note until and including August 31, 2016.
Draws under this Series 2013 Note, unless an Event of Default, or event that with the giving of
notice or the passage of time would constitute an Event of Default, then exists, may be made in
the manner prescribed in the Resolution.
This Series 2013 Note may be exchanged or transferred by the Owner hereof but only
upon the registration books maintained by the Issuer and in the manner provided in the
Resolution.
It is hereby. certified, recited and declared that all acts, conditions and prerequisites
required to exist, happen and be performed precedent to and in the execution, delivery and the
issuance of this Series 2013 Note do exist, have happened and have been performed in due time,
form and manner as required by law, and that the issuance of this Series 2013 Note is in full
compliance with and does not exceed or violate any constitutional or statutory limitation.
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TR12406
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IN WITNESS WHEREOF, the City of Tamarac, Florida has caused this Series 2013 Note
to be executed in its name by the manual signature of its Mayor and City Manager, attested by
the manual signature of its City Clerk, and approved as to form by the manual signature of its
City Attorney, and its seal to be impressed hereon, all as of this 12 a day of October, 2013.
p Y
.(SEAL)
ATTESTED AND COUNTERSIGNED
C F1-:J;A
• r • 1 low
I
Title: City Clerk
CITY OF T
By.
Name:
Title. -
C, FLORIDA
Beth Talabisco
Mayor
Name: Michael C. Cernech
Title: City Manager
APPROVED AS TO FORM
t
i ':4
e
ame: Samuel S. Goren
Title: City Attorney
{25233/009/00790941.DOCvIO)
Date of
Transaction
SCHEDULE A
OUTSTANDING PRINCIPAL
Issuer's
Principal Initials
Advance knot required)
Principal
Repayments
TR12406
October 9, 2013
Page 28 of 35
Outstanding
Principal
Balance
JJ_
$
S
$
JJ-
$
$
$
JJ_
$
$
$
JJ-
$
$
$
JJ-
$
$
$
JJ-
8
$
$
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TR 12406
October 9, 2013
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SCHEDULE B
(To be completed at time of conversion to term mode)
PRINCIPAL AMORTIZATION SCHEDULE
(To come)
INTEREST RATE POST -CONVERSION
[Post -Conversion (Taxable) Variable Interest Rate: [N/A or describe formula]]
[Post -Conversion (Taxable) Fixed Interest Rate: [N/A or %]]
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EXHIBIT B
FORM OF LENDER'S CERTIFICATE
This is to certify that PNC Bank, National Association (the "Lender") has made a loan
(the "Loan") to the City of Tamarac, Florida (the "Issuer"). The Loan is evidenced by the Issuer's
Capital Improvement Revenue Note, Series 2013 dated , 2013 (the "Note"). The
Lender acknowledges that the Note is being issued to evidence a private direct loan and not as
part of publicly offered municipal securities, and that the Issuer will not make a filing with the
Municipal Securities Rulemaking Board's Electronic Municipal Market Access repository. Any
capitalized terms not otherwise defined herein shall have the meaning set forth in a resolution
adopted by the City Commission on October 9, 2013 (the "Resolution").
We are aware that investment in the Loan involves various risks, that the Note is not a
general obligation of the Issuer or payable from ad valorem tax revenues, and that the
repayment of the Loan is secured solely from the sources described in the Resolution (the "Loan
Security").
We have made such independent investigation of the Loan Security as we, in the
exercise of sound business judgment, consider to be appropriate under the circumstances. In
making our lending decision, we have relied upon the accuracy of information which has been
provided to us by the Issuer and the Financial Advisor. We acknowledge that the Financial
Advisor is not acting as a placement agent.
We have knowledge and experience in financial and business matters and are capable of
evaluating the merits and risks of the Loan and can bear the economic risk of our Loan.
The Lender has conducted its own investigation, to the extent it deems satisfactory or
sufficient, into matters relating to business affairs or conditions (either financial or otherwise) of
the Issuer in connection with the Loan and no inference should be drawn that the Lender, in the
acceptance of said Note, is relying on Note Counsel or Issuer's Counsel as to any such matters
other than the legal opinions rendered by Note Counsel, Bryant Miller Olive P.A., and by
Issuer's Counsel, Goren, Cherof, Doody & Ezrol, P.A.
We acknowledge that we are making the Loan for our own account. We will not
knowingly take any action to cause the Note to be characterized as a security issued by the
Issuer.
We understand that the Loan is evidenced by the Note and the Note is issued in a single
denomination equal to the aggregate principal amount of the Loan and may not be transferred
except in whole and will not be transferred to any kind of trust under any circumstances, and
we further understand the Loan may not be transferred in denominations less than $100,000
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October 9, 2013
Page 31 of 35
even in whole. The Note may only be sold to a Permitted Lender in whole, in a denomination
of not less than $100,000, with the Issuer's consent. "Permitted Lender" means any bank, trust
company, savings institution or insurance company that is engaged as a regular part of its
business in making Loan and is authorized to do business in the State of Florida.
We are not acting as a broker or other intermediary and are funding the Loan with our
own capital and for our own account and not with a present view to a resale or other
distribution to the public. We are a national bank.
This Certificate is furnished by us as Lender based solely on our knowledge on the day
hereof and is solely for the benefit of the Issuer and may not be relied upon by, or published or
communicated to, any other person .without our express written consent. We disclaim any
obligation to supplement this letter to reflect any facts or circumstances that may hereafter come
to our attention.
DATED this day of October, 2013.
PNC BANK, NATIONAL ASSOCIATION
By:
Name: Nick Ayotte
Title: Vice President, Public Finance
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October 9, 2013
Page 32 of 35
EXHIBIT C
FORM OF DISCLOSURE LETTER
Following a competitive selection process and in response to the City's Request for
Proposals dated August 9, 2013, the undersigned, as purchaser, proposes to negotiate with the
City of Tamarac, Florida (the "Issuer") for the private purchase of its City of Tamarac, Florida
Capital Improvement Revenue Note, Series 2013 (Taxable) (the "Series 2013 Note"), in the
principal amount of not to exceed $20,000,000, taking into account any principal amounts
previously repaid. Prior to the award of the Series 2013 Note, the following information is
hereby furnished to the Issuer:
1. Set forth is an itemized list of the nature and estimated amounts of expenses to
be incurred for services rendered to us (the "Bank") in connection with the issuance of the Series
2013 Note (such fees and expenses to be paid by the Issuer):
$5,500
B ank's Counsel
Akerman Senterfitt
2. (a) No other fee, bonus or other compensation is estimated to be paid by the
Bank in connection with the issuance of the Series 2013 Note to any person not regularly
employed or retained by the Bank (including any "finder" as defined in Section 218.386(1)(a),
Florida Statutes), except as specifically enumerated as expenses to be incurred by the Bank, as
set forth in paragraph (1) above.
(b) No person has entered into an understanding with the Bank, or to the
knowledge of the Bank., with the Issuer, for any paid or promised compensation or valuable
consideration, directly or indirectly, expressly or implied, to act solely as an intermediary
between the Issuer and the Bank or to exercise or attempt to exercise any influence to effect any
transaction in the purchase of the Series 2013 Note.
3. The amount of the underwriting spread expected to be realized by the Bank is $0.
4. The management fee to be charged by the Bank is $0.
5. Truth -in -Bonding Statement:
The
Series 2013 Note
is being issued primarily
to finance and/or refinance
the cost of
acquisition
and
development
or redevelopment
of real
property within the City to
be used for
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October 9, 2013
Page 33 of 35
community development or redevelopment purposes, and various other capital improvements
to public facilities owned by the City.
Unless earlier redeemed and assuming all proceeds of the Series 2013 Note are drawn on
the date hereof, the Series 2013 Note is expected to be repaid by October 1, 2023; at an assumed
interest rate of %, assuming all proceeds are drawn on the delivery day of the Series 2013
Note and further assuming an amortization schedule beginning after the conversion date that
approximates level annual debt service for 7-years (with no principal amortization assumed in
the first 3-years), total interest paid over the life of the Series 2013 Note is estimated to be
The Series 2013 Note will be payable solely from a covenant to budget and appropriate
from Non -Ad Valorem Revenues sufficient to make such payments, appropriated and
deposited as described in a resolution of the Issuer adopted on October 9, 2013 (the
"Resolution"). See the Resolution for a definition of Non -Ad Valorem Revenues. Based on the
above assumptions,
approximately $
issuance of the Series 2013 Note is estimated to result in a maximum of
of revenues of the Issuer not being available to finance the
services of the Issuer during the life of- the Series 2013 Note.
6. -The name and address of the Bank is as follows:
PNC Bank, National Association
420 South Orange Avenue
Suite 3000
Orlando, Florida 32801
IN WITNESS WHEREOF, the undersigned has executed this Disclosure Letter on behalf
of the Bank this day of October, 2013.
PNC BANK, NATIONAL ASSOCIATION
Bv:
Name: Nick Ayotte
Title: Vice President, Public Finance
(25233/009/00790941.DOCv10}
EXHIBIT D
FORM OF REQUISITION
City of Tamarac, Florida
Capital Improvement Revenue Note, Series 2013 (Taxable)
REQUISITION FOR PAYMENT
Amount Requested:
Total Disbursements to Date Taking into
Account any Principal Amounts:
Previously Repaid:
TOTAL:
8
2
S
TR12406
October 9, 2013
Page 34 of 35
1. Unless otherwise noted, all capitalized terms herein shall have the meanings
assigned to them in the Resolution of the City of Tamarac, Florida adopted on October 9, 2013
relating to the above -referenced Note (the "Resolution").
2. The Issuer hereby certifies that proceeds from this Requisition have been or will
be used for Project Costs and has not been the basis of any previous disbursement.
3. The Issuer hereby certifies that no Event of Default, or event that with the giving
of notice or the passage of time would constitute an Event of Default, exists.
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4. Please wire the funds to [WIRE INSTRUCTIONS TO BE SUPPLIED].
This day of , 20
CITY OF TAMARAC, FLORIDA
By.
Title: Director of Financial Services
APPROVED BY:
PNC Bank, National Association, as Owner
of the Series 2013 Note
By•
Authorized Representative
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